Monday
April 29, 1996
Part IB
Environmental
Protection Agency
40 CFR Part 260, et al.
Requirements for Management of
Hazardous Contaminated Media;
Proposed Rule
= I
-------
-------
18780
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 260, 261, 262, 264, 268,
269 and 271
[FRL-5460-4]
RIN 2050-AE22
Requirements for Management of
Hazardous Contaminated Media
(HWIR-Media)
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
SUMMARY: As part of the President's
regulatory reform initiative, the United
States Environmental Protection Agency
(EPA) is proposing new regulations for
contaminated media, including
contaminated soils, ground water, and
sediments, that are managed during
government-overseen remedial actions.
The proposed rule would address
contaminated media that are currently
subject to regulation as "hazardous
waste" under the Resource Conservation
and Recovery Act (RCRA). The rule's
purpose is to develop more flexible
management standards for media and
wastes generated in the course of site
cleanups.
To accomplish the objective, the
proposal would establish modified Land
. Disposal Restrictions (LDR) treatment
requirements, and modified permitting
procedures for higher-risk,
contaminated media that remain subject
to hazardous waste regulations; and give
EPA and authorized States the authority
to remove certain lower-risk,
contaminated media from regulation as
"hazardous wastes" under most of
Subtitle C of RCRA. Under this
proposal, many contaminated media
management units would be relieved
from die obligation to comply with
Minimum Technological Requirements
(MTRs). The State-authorization
procedures for RCRA program revisions
would be simplified for this proposed
rule; the Hazardous Waste Identification
Rule (HWIR-waste); and the Revised
Technical Standards for Hazardous
Waste Combustion Facilities. Today's
proposal also proposes to withdraw the
regulations for corrective action
management units (CAMUs). In
addition, dredged material permitted
under CWA or MPRSA would be
, exempted from Subtitle C.
DATES: Written comments on this
proposal should be submitted on or
before July 29,1996.
The Agency will hold a public
hearing on this proposal on June 4,
1996.
ADDRESSES: Commenters must send an
original and two copies of their
comments referencing docket number
F-96-MHWP-FFFFF to: (1) If using
regular US Postal service mail: RCRA
Docket Information Center, Office of
Solid Waste (5305W), U.S.
Environmental Protection Agency
Headquarters (EPA, HQ), 401 M Street,
SW, Washington, D.C. 20460 or (2) if
using special delivery, such as overnight
express service: RCRA Docket
Information Center (RIC), Crystal
Gateway One, 1235 Jefferson Davis
Highway, First Floor, Arlington, VA
22202. Comments may also be
submitted electronically through the
Internet to: RCRA-
Docket@epamail.epa.gov. These
comments should be identified by the
docket number F-96-MHWP-FFFFF,
and submitted as an ASCII file to avoid
the use of special characters and
encryptions.
Please do not submit any Confidential
Business Information (CBI)
electronically. An original and two
copies of CBI must be submitted under
separate cover to: RCRA CBI Document
Control Officer, Office of Solid Waste
(5305W), U.S. EPA, 401 M Street, SW,
Washington, D.C. 20460.
Public comments and supporting
materials are available for viewing in
the RCRA Information Center (RIC)
located at Crystal Gateway One, 1235
Jefferson Davis Highway, First Floor,
Arlington, VA. The RIC is open from
9:00 a.m. to 4:00 p.m., Monday through
Friday, excluding Federal holidays. To
review docket materials, please make an
appointment by calling (703) 603-9230.
The public may copy a maximum of 100
pages from any regulatory docket at no
charge. Additional copies will cost $.15/
page.
The June 4,1996 public hearing will
be held at the Key Bridge Marriott,
located at 1401 Lee Highway, Arlington,
VA 22209. The main switchboard
number for the hotel is (703) 524-6400.
Individuals interested in more complete
directions or room reservations should
contact the hotel directly. Registration
for the hearing will begin at 8:30 a.m..
The hearing will begin at 9:00 a.m. and
end at 5:00 p.m. unless concluded
earlier. Oral and written statements may
be submitted at the public hearing. Time
for the public hearing is limited; oral
presentations will be made in the order
that requests are received and will be
limited to 15 minutes, unless additional
time is available. Requests to speak at
the hearing should be submitted in
writing to: Carolyn Hoskinson (5303W)
U. S. Environmental Protection Agency,
401 M Street, SW, Washington, D.C.
20460. Please clearly mark your request
as a request to speak at the public .
hearing and include both the scheduled
date of the hearing (June 4,1996) and
the docket number (F-96-MHWP-
FFFFF). Requests to speak may also be
made on the day of the hearing by
registering at the door; requests to speak
by individuals who choose to register at
the door on the day of the hearing will
be granted in the order received, as time
permits. Individuals are requested to
provide a copy of their testimony for the
record.
FOR FURTHER INFORMATION CONTACT: For
general information, contact the RCRA
Hotline at 1-800-424-9346 or TDD 1-
800-553-7672 (hearing impaired). In
the Washington metropolitan area, call
703-412-9810 or TDD 703-412-3323.
For more detailed information on
specific aspects of this rulemaking,
contact Carolyn L. Hoskinson, Office of
Solid Waste (5303W), U.S.
Environmental Protection Agency, 401
M Street, SW, Washington, D.C. 20460,
(703) 308-8626. For further information
on EPA's development of the guidance
document "Best Management Practices
for Soils Treatment Technologies,"
contact Subijoy Dutta (703) 308-8608,
(internet address:
dutta.subijoy@epamail.epa.gov). For
further information on EPA's
development of a guidance document
for sampling and analysis, which is
associated with today's proposal,
contact James R. Brown (703) 308-8656,
(internet address:
brown.jamesr@epamail.epa.gov).
SUPPLEMENTARY INFORMATION: The index
is available on the Internet. Please
follow these instructions to access the
information electronically:
Gopher: gopher.epa.gov
WWW: http://www.epa.gov
Dial-up: (919) 558-0335
This report can be accessed from the
main EPA Gopher menu in the
directory: EPA Offices and Regions/
Office of Solid Waste and Emergency
Response (OSWER)/Office of Solid
Waste (RCRA)/Hazardous Waste/
Corrective Action/(HWIRMDIA).
FTP: ftp.epa.gov
Login: anonymous
Password: Your Internet Address
Files are located in /pub/gopher/
OSWRCRA
The official record for this action will
be kept in paper form. Accordingly, EPA
will transfer all comments received
electronically into paper form and place
them in the official record, with all of
the comments received in writing. The
official record is the paper record
maintained at the address in ADDRESSES
at the beginning of this document.
-------
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules
18781
EPA's responses to comments,
\vhether written or electronic, will be
printed in the Federal Register, or in a
"response to comments document"
placed in the official record for this
rulemaking. EPA will not immediately
reply to commenters electronically other
than to clarify electronic comments that
may he garbled during transmission or
conversion to paper form.
Outline
The information presented in this
preamble is organized as follows:
I. Authority
II. Background
A. Purpose and Context for Today's
Proposed Rule
B. Relationship to Previous
Regulatory Initiatives
1. Proposed Subpart S Corrective
Action Requirements
2. Final Rules for Corrective Action
Management Units (CAMUs)
3. Proposed Land Disposal
Restrictions for Hazardous Soils
4. Deferral of the Toxicity
Characteristic for Petroleum
Contaminated Media and Debris
from Cleanup of Releases from
Underground Storage Tanks (USTs)
5. Suspension of the Toxicity
Characteristic for Non-UST
Petroleum Contaminated Media
(proposed rule)
6. Proposed Hazardous Waste
Identification Rule (May 20,1992)
7. Relationship to CERCLA
8. Relationship to HWIR-waste Rule
(Dec. 21,1995)
9. Relationship to RCRA Legislative
Reforms
C. Origin of Today's Proposed Rule
m. EPA's Policy Objectives for the
HWIR-mediaRule
IV. Introduction and Overview of
Today's Proposal and Alternatives
to Today's Proposal
A. Today'sProposed Approach
B. Alternative Approaches Including
Unitary Approach
C. Relationship to HWIR-waste Rule
V. Section by Section Analysis
A. General Provisions
1. General Scope of Today's
Proposal—§ 269.1
2. Purpose/Applicability—§269.2
3. Definitions—§ 269.3
4. Identification of Media Not Subject
to Regulation as Hazardous Waste—
§269.4
B. Other Requirements Applicable to
Management of Hazardous
Contaminated Media
1. Applicability of Other
Requirements—§ 269.10
2. Intentional Contamination of Media
Prohibited—§ 269.11
3. Interstate Movement of
Contaminated Media—§ 269.12
C. Treatment Requirements
1. Overview of the Land Disposal
Restrictions
2. Treatment Requirements—§ 269.30
3. Constituents Subject to Treatment
4. Nonanalyzable Constituents
5. Review of Treatment Results—
§269.33
6. Management of Treatment
Residuals—§ 269.34
7. Media Treatment Variances—
§269.31
8, Request for Comment on Other
Options
9. LDR Treatment Requirements for
Non-HWIR-media Soils .
10. Issues Associated with Hazardous
Debris
D. Remediation Management Plans
(RMPs)
1. General Requirements—§ 269.40
2. Content of RMPs—§ 269.41
3. Treatability Studies—§ 269.42
4. Approval of RMPs—§ 269.43
5. Modification of RMPs—§ 269.44
6. Expiration, Termination, and
Revocation of RMPs—§ 269.45
E. Streamlined Authorization
Procedures for Program Revisions
(Part 271)
1. Statutory and Regulatory
Authorities
2. Background and Approach to
Streamlined Authorization
3. Streamlined Procedures—§ 271.21
4. Authorization for Revised
Technical Standards for Hazardous
Waste Combustion Facilities
5. Request for Comment: on
Application, of Category 1
Procedures to Portions of HWIR-
waste Proposal
6. HWIR-media Specific
Authorization Considerations—
§ 271.28
7. Effect in Authorized States
8. Request for Comment on EPA's
Approach to Authorization
F. Corrective Action Management
Units—§ 264.552
G. Remediation Piles—§§ 260.10 and
264.554,
H. Dredged Material Exclusion—
§261.4
VI. Alternative Approaches to HWIR-
media Regulations
A. The Unitary Approach
1. Overview of the Unitary Approach
2. Legal Authority for the Unitary
Approach
3. LDRs Under the Unitary Approach
4. The RAP Process Under the Unitary
Approach
5. State Authorization for the Unitary
Approach
6. Enforcement Authorities Under the
Unitary Approach
7. State Jurisdiction Under the
Unitary Approach
B. Hybrid Approach
C. Key Elements of an HWIR-media
Rule
1. Scope of the Rule (Regarding Non-
media Remediation Wastes)
2. The Bright Line
3. RAPs, RMPs, and RCRA Permits
4. Request for Comment
VII. Effective Date of Final HWIR-media
Rule
VIII. Regulatory Requirements
A. Assessment of Potential Costs and
Benefits
1, Executive Order 12866
2. Background
3. Need for Regulation
4. Assessment of Potential Costs and
Benefits
5. Regulatory Issues .
B. Regulatory Flexibility Analysis
C. Paperwork Reduction Act
I. Authority
These regulations are proposed under
the authority of sections 2002(a), 3001,
3004, 3005, 3006, and 3007 of the Solid
Waste Disposal Act of 1970, as amended
by the Resource Conservation and
Recovery Act of 1976 [RCRA], as
amended by the Hazardous and Solid
Waste Amendments of 1984 [HSWA], 42
U.S.C. §§6912(a), 6921, 6924, 6925,
6926, and 6927.
II. Background
A. Purpose and Context for Today's
Proposed Rule
Since 1980, the Environmental
Protection Agency (EPA) has developed
a comprehensive regulatory framework
under Subtitle C of RCRA that governs
the identification, generation,
transportation, treatment, storage, and
disposal of hazardous wastes. The
RCRA program is generally considered
prevention- rather than response-
oriented. The regulations center around
two broad objectives: to prevent releases
of hazardous wastes and constituents
through a comprehensive and
conservative set of management
requirements (commonly referred to as
"cradle to grave management"); and to
minimize the generation and maximize
the legitimate reuse and recycling of
hazardous wastes.
The RCRA regulations constitute
'minimum national standards for '
management of hazardous wastes. In
general, they apply equally to all
hazardous wastes, regardless of where
or how generated, and to all hazardous
waste management facilities, regardless
of how much government oversight any
given facility receives. In order to
ensure an adequate level of protection
nationally, the RCRA regulations have
-------
18782
Federal Register /Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules
been conservatively designed to ensure
proper management of hazardous wastes
over a range of waste types,
environmental conditions, management
scenarios, and operational
contingencies. '' ;
In the course of administering current
RCRA regulations, 16 contaminated
media generated during site cleanups,
EPA and the States have recognized
fundamental differences in both
incentives and objectives for
prevention- and cleanup-oriented
programs. For example, the stringent
treatment requirements established by
RCRA land disposal restrictions (LDRsj
have encouraged many generators to
reduce the amount of hazardous waste
they generate. On the other hand, when
these requirements are applied in the
context of site cleanup, they often
provide a strong incentive to leave
hazardous waste and contaminated
media in place, or to select alternate
remedies that will minimize the
applicability of RCRA regulations. This
can result in remedies that are less
protective of human health and the
environment. (See 54 FR 41566, October
10,1989; 58 FR 8658, (February 16;
1993); and the information in the docket
to today's proposed rule)).
In the administration of remedial
programs such as Superfund and the
RCRA corrective action program, EPA
and the States are already faced with an
unacceptable situation that must be
remedied while operating within the
technical and practical realities of the
site. Remedial actions generally receive
intensive government oversight, and
remedial decisions are made by a State
or Federal Agency only after site-
specific conditions have been
thoroughly investigated. In contrast,
prevention-oriented hazardous waste
regulations are generally implemented
independently by facility owner/
operators through compliance with
national regulatory requirements.
In addition to differences in the
incentives and objectives of cleanup-
and prevention-oriented programs, EPA
and the States recognize that frequently
there are significant differences between
"as-generated" process wastes and
contaminated media or other
remediation wastes. For example,
contaminated media are often
physically quite different from as-
generated wastes. Contaminated soils
often contain complex mixtures of
multiple contaminants, and are highly
variable in their composition, handling,
and treatability characteristics. For this
reason, treatment of contaminated soils
can be particularly complex, involving •
one or a series of custom-designed
treatment systems. As-generated wastes,
however, are usually more consistent in
composition, since they are derived
from specific known manufacturing
processes.
Historically, EPA and the States have
sought to address the 'application of
RCRA's prevention-oriented standards
to remedial actions through a series of
regulatory and policy directives. These
policies aim at preserving RCRA's goal
of protectiveness, while providing
government regulators the flexibility
and tools necessary to craft effective
site-specific remedies. These include
the "Area of Contamination" policy, the
"Contained-in" policy, the presumption
for LDR treatment variances for
contaminated soils, and the regulations
for Corrective Action Management Units
and Temporary Units, which are
discussed in section (V)(F) of this ,
preamble. (See e.g., memorandum from
Michael Shapiro, Director, Office of
Solid Waste, Stephen D. Luftig, Director,
Office of Emergency and Remedial
Response, and Jerry Clifford, Director,
Office of Site Remediation Enforcement,
EPA to RCRA Branch Chiefs and
CERCLA Regional Managers, (March 13,
1996); section (V)(A)(4)(a) of today's
preamble; 55 FR 8666, 8758-8760
(March 8,1990); "Superfund LDR Guide
#6A (2nd Edition) Obtaining a Soil and
Debris Treatability Variance for
Remedial Actions" EPA/Superfund
Publication: 9347.3-06FS (September
1990); "Superfund LDR Guide #6B
Obtaining a Soil and Debris Treatability
Variance for Removal Actions" EPA/
Superfund Publication: 9347.3-06BFS
(September 1990); and 58 FR 8658 ;
(February 16,1993)).
With the exception of the Corrective
Action Management Unit regulations,
EPA is not proposing that this
rulemaking withdraw any of these
policies or directives.
Instead, EPA seeks to formally'
recognize the differences between as-
generated waste and contaminated
media, by creating a framework that: (1)
Allows State and Federal regulators to
impose site-specific management
requirements on lower-risk
contaminated media, and (2) modifies
LDR treatment and other requirements
that are applicable to higher-risk
contaminated media. Since EPA
proposes that higher-risk contaminated
media remain subject to regulation as
"hazardous waste," management of
these media would remain subject to
most of the other applicable RCRA
Subtitle C requirements.
EPA has found that the administrative
procedures associated with issuance of
RCRA permits can often significantly
delay cleanup actions. To relieve this
problem, EPA is also proposing to
streamline the administrative
requirements for hazardous waste
permits that are needed for government-
overseen remedial actions. In addition,
the proposal contains provisions for
State authorization not only for today's
proposal, but for all RCRA program
revisions, specifically including the
Revised Technical Standards for
Hazardous Waste Combustion Facilities
and the HWIR waste proposals. These
are much more streamlined than the
RCRA program's current procedures.
In today's notice, EPA is also
soliciting comment on an approach that
would remove remediation wastes—
defined broadly— from the definition of
solid waste, if they were managed under
a State or EPA-approved plan.
hi another matter, today'sproposal
would exclude dredged material from
RCRA Subtitle C when it is managed
according to a permit under CWA or
MPRSA.
Finally, EPA wishes to emphasize that
this proposal and other alternatives
discussed address only the management
of wastes that are generated during
cleanup actions—it does not consider
issues associated with what wastes
should be cleaned up, what the cleanup
levels should be, or how remedies are
selected. EPA believes that these and
other "how clean is clean" issues are
best determined by other State and
Federal regulations and guidelines.
Throughout the development of
today's proposal, EPA has worked very
closely with States as "co-regulators,"
and the Agency believes that most
States share the views and goals
expressed in these pages by EPA.
B. Relationship to Previous Regulatory
Initiatives
As noted above, the need for an
alternative regulatory scheme for
management of contaminated media and
remediation waste has been recognized
for some time. In recent years, EPA has
developed several regulatory initiatives
to address that need. Today's proposal
is intended to address the issues and
problems discussed above in a single,
comprehensive regulatory package. As
such, it modifies and/or replaces many
of the Agency's previous regulatory
initiatives, as discussed below.
1. Proposed Subpart S Corrective Action
Regulations
hi July 1990, EPA proposed
comprehensive regulations to address
the substantive and procedural
requirements for implementing
corrective actions at RCRA facilities
under the authorities of RCRA sections
3004(u) and 3004(v) (42 USC
§§ 6924(u),(v)). Commonly known as the
-------
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules 18783
"Subpart S proposal," the proposal
discussed various technical issues
associated with site cleanup including
"action levels", cleanup standards,
remedy selection, points of compliance
and other cleanup requirements. The
Subpart S proposal has been the
primary guidance for the RCRA
corrective action program since its
publication.
In general, the Subpart S proposal
contemplated that contaminated media
would be subject to the same regulatory
requirements that apply to as-generated
wastes. Although EPA generally did not
use the Subpart S proposal to address
issues associated with contaminated
media management, the Agency did
introduce the concept of Corrective
Action Management Units (CAMUs) and
temporary units (TUs) as a means of
providing some relief from the burdens
that LDRs and other Subtitle C
requirements can impose on cleanup
activities. The CAMU concept is
discussed more completely below, and
in section (V)(F), of today's proposal.
Today's proposal would establish a
more definitive and comprehensive set
of requirements for the management of
contaminated media—and provide
considerably more regulatory relief—
than the Subpart S proposal would have
in this area. Currently EPA is
roexamining the Subpart S proposal,
and working to finalize and/or
repropose some of those regulations in
approximately 18 months. As a
precursor to the Subpart S rulemaking,
the Agency is issuing an Advanced
Notice of Proposed Rulemaking
(ANPRM). One of the purposes of the
ANPRM is to describe the relationship
of the Subpart S initiative to other
Agency initiatives, including today's
proposal. The Agency expects that if
finalized, the HWIR-media rules will be
an essential complement to and an
integral part of the final RCRA
corrective action regulations.
2. Final Rules for Corrective Action
Management Units (CAMUs)
On February 16,1993 EPA published
final regulations for CAMUs and TUs
(58 FR 8658). In essence, the CAMU
concept provides considerable
flexibility to EPA and implementing
States to specify design, operating, and
closure/post closure requirements for
units used for land-based temporary
storage, or for treatment of wastes that
are generated during cleanup at an
RCRA facility. The CAMU also specifies
requirements for units that are used as
long-term repositories for cleanup
wastes. Decision criteria for the
designation of CAMUs are specified in
those rules. Most importantly, the
placement of cleanup wastes into an
approved CAMU does not trigger RCRA
LDR requirements (40 CFR 264.552
(a)(l)). Thus, appropriate treatment
requirements can be specified by the
overseeing Agency ' on a site- and
waste-specific basis. In addition, the
CAMU rule provides that consolidation
or placement of cleanup wastes into a
CAMU does not trigger RCRA section
3004(o) minimum technology
requirements (MTRs) (40 CFR 264.552
.
The CAMU rule did not address,
however, issues pertaining to the delay
often caused by the need to obtain
RCRA permits for cleanup actions.
While the regulations provide relief
from MTRs and LDRs, CAMUs must be
approved by the same procedures used
for approving other types of hazardous
waste management units; i.e., through
RCRA permits or permit modifications,
or through orders.
The CAMU rule received broad
support from many affected
stakeholders. Since its adoption, EPA
and the States have been using the
CAMU rule to provide appropriate
regulatory relief for cleanups conducted
under RCRA, CERCLA, and State
cleanup authorities. Some parties,
however, have expressed concern that,
according to the rule, LDRs do not apply
to wastes managed in a CAMU. They
have questioned whether the rule
provides too much discretion to EPA
and the States, and whether this
discretion could result in unacceptably
lenient treatment requirements. On May
14, 1993 these parties filed a petition for
review with the U.S. Court of Appeals
for the District of Columbia Circuit
which challenged both the legal and
policy bases for the final CAMU rules.
Environmental Defense Fund v. EPA,
No. 93-1316 (D.C. Cir.).
As part of the dialogue that prefaced
the creation of the HWIR Federal
Advisory Committee (discussed more
fully in section C, "Origin of Today's
1 Throughout this notice, EPA uses the term
"overseeing agency" to mean either EPA or the
State authorized for the HWIR-media program. Most
States are authorized for the RCRA base program,
and so would be eligible, as appropriate, to receive
authorization for the HWIR-media program if they
chose to do so (for a discussion of authorization for
LDRs under this proposal, see the State
authorization discussion in this preamble). For
those States not authorized for the RCRA base
program, EPA would operate the HWIR-media
program in that State, just as it operates the rest of
the RCRA program in that State. Also, EPA might
run a cleanup program (e.g., RCRA Corrective
Action or Superfund) in a State that receives
authorization for the HWIR-media program. In that
case, EPA would consult with or seek approval
from the State, as appropriate, in order to approve
the RMP. The Agency hopes that the EPA Regions
and States will develop agreements regarding how
this approval will take place.
Proposed Rule"), the Agency agreed to
reexamine the CAMU regulations in the
context of developing this proposal,
which is intended to be a broader, more
comprehensive response to the
problems in applying traditional RCRA
Subtitle C standards to the management
of remediation wastes. As discussed in
detail elsewhere in this preamble (see
section (V)(F)), today's proposal would
supersede the CAMU regulations. A
more detailed discussion of the
relationship between today's proposal
and the CAMU regulation is presented
in section (V)(F).
3. Proposed Land Disposal Restrictions
for Hazardous Soils
On September 14,1993 (58 FR 48092),
EPA proposed the "Phase II" land
disposal restriction regulations, which
included provisions to establish
constituent-specific treatment standards
for soils contaminated with hazardous
wastes. In that proposal, the Agency
reiterated that combustion is not always
the appropriate BOAT for soils, and
proposed treatment standards tailored
specifically to contaminated soils. The
Agency acknowledged the limitations of
the data available when the proposal
was written regarding the levels that can
be achieved by treating various matrices
of contaminated soils with available
technologies (58 FR 48092, 48125
(September 14,1993)). Because of these
uncertainties, the Agency outlined
several options to establish treatment ;
standards for contaminated soils. Two
options described in the proposal's
preamble would have based soil
treatment standards on some multiplier
of the universal treatment standards for
hazardous wastes (which were included
in the same proposal). Another
proposed option was based on a simple
90% reduction standard. The Phase II
proposal also contained provisions for
codifying the RCRA "contained-in"
policy for soils. This policy, which is
discussed in detail in section
(V)(A)(4)(a) of this preamble, is based on
the concept that environmental media
(e.g., soils, ground water) that are
contaminated with listed hazardous
wastes or that exhibit a hazardous
characteristic are not of themselves
hazardous. However, these media must
be regulated under Subtitle C because
they contain hazardous wastes;
conversely, once they are determined to
no longer contain hazardous wastes, the
media are generally no longer regulated
under RCRA Subtitle C.
EPA received a number of comments
on the proposed soil treatment
standards, many of which strongly
urged the Agency to address LDR
treatment standards for contaminated
-------
18784
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules
soils and codification of the contained-
in policy in the context of HWIR-media
regulations, rather than as part of the
LDR Phase II rule. The Agency agreed
with those who commented, and in a
subsequent Federal Register notice (58
FR 59976, November 12,1993)
announced its intention to use the
HWIR-media rule as the vehicle for
promulgating these standards. That
notice also extended the deadline for
comments and data concerning Phase II
provisions for hazardous soils to March
18,1994. The Phase II final rule (minus
the soil treatment standards) was
promulgated on September 19,1994 (59
FR 47980).
4. Deferral of the Toxicity Characteristic
for Petroleum Contaminated Media and
Debris From Cleanup of Releases From
Underground Storage Tanks (USTs)
On February 12,1993, EPA published
a proposal to defer the applicability of
the toxicity characteristic (TC) rule for
petroleum contaminated media and
debris that are generated during
underground storage tank cleanups.
This was a follow-up proposal to the
Agency's original temporary deferral,
which was part of the final rulemaking
for the toxicity characteristic (55 FR
11798,11862, March 29,1990). The
Agency will be assessing studies to
support a final decision as to whether
UST petroleum contaminated media
and debris should be regulated as
hazardous wastes under RCRA Subtitle
C. Today's proposal does not address
whether or not this material should be
regulated as hazardous waste; thus, the
temporary exclusion described here will
remain in effect until the Agency
publishes a separate final rulemaking
determination. (Note that because
today's proposal does not address this
issue, it does not reopen the comment
period for the February 12,1993
proposal.)
5. Suspension of the Toxicity
Characteristic for Non-UST Petroleum
Contaminated Media (Proposed Rule)
On December 24,1992, EPA proposed
to suspend temporarily the applicability
of the toxicity characteristic (TC) to
media contaminated with releases of
petroleum from sources other than
underground storage tanks. This
proposal was developed in response to
petitions from a number of States. Their
contention was that exempting
petroleum contaminated media from
UST cleanups—while cleanup of
petroleum releases from other sources
(such as aboveground tanks) remained
subject to Subtitle C—made little sense.
In December 1992, EPA answered the
States' petitions, and announced its
intention to suspend the applicability of
the toxicity characteristic to all
petroleum contaminated media (57 FR
61542). The suspension would have
taken effect only in States that certified
that they had effective authorities and
programs in place that could compel
cleanup and regulate the management of
such petroleum contaminated media in
a protective manner. Also, the
suspension would only apply to media
generated during State or Federally
supervised cleanup actions. EPA
proposed that the suspension be
effective for three years, during which
time the Agency would conduct more
thorough studies to determine whether
or not—and how—petroleum
contaminated media should be
regulated under RCRA.
After the proposed suspension was
published, it became clear that many
issues addressed in that proposal
applied not only to media contaminated
by petroleum releases, but also to the
management of all types of
contaminated media. The issues
associated with judging the adequacy of
State cleanup programs and whether
such programs can ensure protective
management of cleanup wastes outside
of the Subtitle C system were also
recognized as relevant to other
regulatory initiatives involving State
authorization under RCRA.
Soon after the publication of the
proposed suspension, the Agency, in
concert with the States and other
stakeholders, launched a major,
comprehensive effort to address the
regulation of contaminated media under
Subtitle C. (See the following discussion
of the HWIR-media rulemaking
proposal). EPA and the others
recognized that these more
comprehensive HWIR-media rules
would have to deal essentially with the
same set of issues addressed in the
proposed suspension for petroleum
contaminated media. Thus, finalizing
the proposed suspension would have
required reaching decisions on a
number of issues common to both rules.
In effect, finalizing the TC suspension
rule would have preempted the HWIR-
media process in many respects. To
preserve the process, and to avoid the
redundancy of developing two
regulations to address the same basic
problems, EPA decided not to proceed
with finalizing the TC Suspension.
Instead, the Agency chose to address
those issues in the broader context of
the HWIR-media rulemaking process.
The Agency believes that the
flexibility introduced into Subtitle C
requirements in today's proposal
sufficiently addresses the issues raised
under the proposed "Suspension of the
Toxicity Characteristic for Non-UST
Petroleum Contaminated Media," and
therefore believes that if the HWIR-
media rule is finalized, it will not be
necessary to finalize the TC suspension.
The Agency requests comments on
whether additional flexibility (beyond
ttiat provided for in today's proposal) is
necessary for non-UST petroleum
contaminated media.
6. Proposed Hazardous Waste
Identification Rule (May 20,1992)
Shortly after the publication of the
proposed TC suspension, the Agency
completed a separate (but related)
rulemaking proposal, commonly
referred to as the Hazardous Waste
Identification Rule (HWIR) (57 FR
21450, May 20,1992). This proposed
rule was issued in response to the U.S.
Court of Appeals, District of Columbia
Circuit's vacature of the mixture and
derived fro^n rules (Shell Oil Co. v. EPA,
950 F.2d 741 (D.C. Cir. 1991)), which
were issued in 1980 as part of the
original RCRA hazardous waste
regulations. In that HWIR proposal, EPA
outlined alternative regulatory
approaches for establishing "exit" levels
for hazardous wastes (i.e., concentration
levels below which listed hazardous
wastes would no longer be subject to
Subtitle C jurisdiction). The primary
focus of the HWIR proposal was on the
"exit" of as-generated hazardous wastes
from the Subtitle C system. However, a
separate portion of the proposal
outlined conceptual approaches for
revising Subtitle C requirements as they
currently apply to the management of
contaminated media (57 FR 21450,
21463, May 20,1992).
The HWIR proposal received
considerable interest. A number of
commenters expressed strong concerns
about the proposal as a whole, and the
process that was used to develop it.
Some of the concerns focussed on EPA's
failure to consult with the States and the
public prior to issuing the very complex
and significant proposal. Because of
process related issues, the strong views
expressed by the States, and the
importance of the rulemaking, EPA
decided that a more deliberate and
inclusive process was needed for
developing the regulations. On October
5,1992 the Agency formally announced
its intention to withdraw the May 20,
1992 proposal, and start a series of
discussions with various stakeholders to
develop a new, carefully considered
approach to crafting both exit levels for
"as-generated" wastes and management
standards for cleanup of contaminated
media.
-------
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules 18785
7. Relationship to CERCLA
The rule being proposed today would
be expected to have a significant impact
at sites being addressed under CERCLA.
Superfund sites generate large quantities
of remediation waste, and compliance
with RCRA requirements in the
management of this waste has been a
recurring concern. The substantive
requirements of RCRA Subtitle C,
including land disposal restrictions,
apply to hazardous wastes at these sites,
and permits are required for off-site
actions.
Under the approach proposed today,
the flexibility being provided for
management of remediation waste
would be available to CERCLA
responses. It should be noted, however,
that CERCLA responses must comply
with all "applicable" or "relevant and
appropriate" requirements, both Federal
and State. Therefore, until a RCRA
authorized State is authorized for the
HVVIR-media rule, the State's existing
RCRA regulatory system would be
applicable (or relevant and appropriate)
to Superfund actions in the State.
8. Relationship to HWIR-waste Rule
Pec. 21,1995)
See preamble section (IV)(C).
9. Relationship to RCRA Legislative
Reform
On March 16,1995 the President
committed to identify high cost, low
benefit provisions of the Resource
Conservation and Recovery Act (RCRA)
for legislative reform. After an extensive
stakeholder outreach process, the
Administration selected two issues. The
first issue for legislative reform, an
exemption for certain low risk wastes
from costly regulation under RCRA's
land disposal restrictions program, was
signed into law—the Land Disposal
Flexibility Act—by the President on
March 26,1996.
The second topic identified for
legislative reform was the application of
RCRA hazardous waste management
requirements to cleanup wastes. The
Administration currently is discussing
with stakeholders and Congress the
possible development of bipartisan
legislation to expedite the safe and cost-
effective management of cleanup wastes
that are currently subject to RCRA
hazardous waste management
requirements. In addition to RCRA
cleanup sites, the type of reform being
discussed would benefit site cleanups
under Superfund, Brownfields and State
voluntary programs. EPA has requested
comment on a range of alternatives to
today's proposal that are consistent with
the range of alternatives being discussed
for legislative reforms.
C. Origin of Today's Proposed Rule
In order to facilitate discussions with
various stakeholders, EPA established a
formal advisory Committee, chartered
under the Federal Advisory Committee
Act (FACA). Chaired jointly by the
Director of the Office of Solid Waste and
the Commissioner of the Oregon
Department of Environmental Quality
(representing the States as "co-
regulators"), the HWIR FACA
Committee included representatives
from industry, environmental
organizations, the States, and other
affected organizations.
One of the initial decisions reached
by the FACA Committee was to create
separate sub-groups to address the two
major components of the rule—the
provisions for contaminated media, and
the provisions for as-generated wastes.
Since then, these two efforts have
proceeded in parallel, and have evolved
into separate but obviously related
rulemakings. A more complete
description of the proceedings of the
HWIR FACA Committee and subsequent
deliberations of its two sub-groups can
be reviewed in the Docket for this rule,
and the HWIR-waste rule (60 FR 66344-
469, Dec. 21,1995).
In July 1993 the FACA Committee ,
developed and approved a conceptual
framework for the HWIR-media rule.
Commonly referred to as the
"Harmonized Approach," this
framework embodied a number of
compromises reached among the
participants in the process. It was
recognized by the Committee that the
Harmonized Approach was only a
conceptual outline for crafting a
proposed HWIR-media rule, and that a
number of important issues remained to
be resolved. However, the participants
agreed that EPA, in partnership with the
States, should begin the formal
rulemaking process with the objective of
assessing the remaining issues,
determining the viability of such a rule
from a legal, technical, and policy
standpoint, and if possible, developing
a proposed rule that embodied the
general concepts and directions
outlined in that approach. Today's
proposal represents the culmination of
those efforts.
It should be understood that this
proposal, which is patterned after the
Harmonized Approach, represents the
Agency's best efforts to fulfill the
directive of the HWIR FACA Committee.
In developing the proposal it was
necessary to make decisions on a
number of important issues, some of
which were not specifically addressed
in the Harmonized Approach, including
some issues that were not identified
during the FACA process. The Agency
recognizes that although tentative
consensus was reached by the FACA
Committee on the harmonized
approach, it cannot be assumed that
today's proposal will meet with the
approval of all members of the
Committee. In fact, some stakeholders
have already expressed concerns with
some of the specifics of today's
proposal.
It is the Agency's view that today's
proposal would offer many benefits ,
beyond the present regulatory situation.
However, it is quite possible that other,
different regulatory approaches could
achieve the same objectives and levels
of protection, and might offer other
advantages in terms of simplicity, cost-
effectiveness and/or ease of
implementation/A discussion of
possible alternative approaches to
today's proposed rule is presented in
sections IV and VI of this preamble.
In any case, EPA in consultation with
the States, will continue to seriously
examine the strengths and weaknesses
of the proposal presented in today's
notice, and of the alternatives discussed.
The Agency specifically requests
comments on the approaches taken in
today's proposed rule, and the specific
strengths and weaknesses of the
proposed options as. well as the
alternatives discussed in section VI of
this preamble.
Alternative regulatory approaches,
and any advantages they may have in
comparison to today's proposal, will be
very carefully considered. The Agency
is committed to issuing a final HWIR-
media rule that achieves as much
desirable regulatory relief as possible,
that is protective of human health and
the environment, and that can be easily
understood and implemented.
III. EPA's Policy Objectives for the
HWIR-Media Rule
In developing today's proposal, EPA,
in consultation with the States,
identified several key policy objectives.
These are discussed below.
Special Requirements Should Be
Developed That Are Appropriate for
Management of Contaminated Media
As discussed above, based on their
experiences overseeing and
implementing environmental cleanups,
EPA and the States believe that many of
the current prevention-oriented
regulations under RCRA are
inappropriate for regulating the
management of contaminated media.
EPA and the States have found that
these prescriptive standards can create
disincentives foriiction, and constrain
the range of options available to
-------
18786
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules
environmental remediators. Thus, in
order to better align the regulatory
controls for the unique challenges
associated with contaminated media,
existing Subtitle C requirements should
be modified to create a more flexible
and common-sense regulatory system
for management of contaminated media.
Requirements for Management of
Contaminated Media Should Be Flexible
and Should Reflect Actual Media
Cleanup Site Conditions and the
Characteristics of the Contaminated
Media
EPA and the States have found that
cleanup of hazardous waste sites often
requires regulators to make numerous
site- and media-specific cleanup
decisions that can be at odds with
RCRA's uniform national standards.
Although some may argue that applying
uniform national LDR treatment
standards and other national standards
is appropriate for contaminated media,
EPA is persuaded that for the most part,
site-specific flexibility is necessary to
ensure the most effective management
of these wastes. EPA further believes
that EPA and/or State oversight of
media management activities will
ensure that this additional flexibility
will not be abused.
State and Federal Cleanup Programs
That Have Adequate Authorities and
That Are Responsibly Administered Can
and Should Be Relied Upon To Exercise
Sound Professional Judgment in
Implementing HWIR-Media Regulations
For some time many States have been
successfully operating cleanup
programs under State authorities. These
States have often completed cleanups at
substantial numbers of sites, and have
demonstrated a capability for overseeing
technically complex cleanups while
ensuring adequate protection of human
health and the environment. Many of
these programs are patterned after
existing Federal programs such as
CERCLA or RCRA corrective action.
EPA is confident, therefore, that many
States will be able to effectively
implement these new regulations, and
exercise sound judgment in making site-
specific management decisions.
HWIR-Media Regulations Should to the
Extent Possible Remove Administrative
Obstacles To Expedite Cleanups, and
Provide Incentives for Voluntary
Initiation of Cleanup by Responsible
Parties
The obstacles posed by RCRA permit
requirements for cleanups that involve
on-site treatment, storage or disposal of
contaminated media, and other cleanup
wastes have been recognized for some
time. EPA believes that today's proposal
would provide considerable relief from
these administrative obstacles. At the
same time, adequate opportunities for
public participation must be
maintained. EPA believes that the new
administrative procedures presented in
today's proposal for remedial actions
that would otherwise require traditional
RCRA permits would meet the goal of
streamlining the process, while
maintaining opportunities for public
participation.
Because this proposal would provide
considerable substantive relief (through
more flexible management standards),
and relief from administrative obstacles,
EPA believes that the rule would have
the additional benefit .of stimulating
voluntary initiation of cleanup actions
by owners and operators of
contaminated properties.
Authorizing States for HWIR-Media
Regulations Should Be Streamlined and
Simplified To Save Time and Resources
The process for authorizing States for
the RCRA Subtitle C program has been
characterized by lengthy procedures,
large resource expenditures, and
detailed, line-by-line reviews of State
authorization applications. The goal of
these procedures has been to ensure
before the State may receive
authorization, that State programs are
equivalent—in the strictest sense of the
word—to the Federal program. EPA
views the HWIR-media regulations as an
opportunity to rethink the State
authorization process, with the goal of
creating a new approach that relies on
less up-front review by EPA, a greater
reliance on certification by States, and
more credible and effective sanctions on
States that do not effectively implement
the regulations for which they are
authorized. EPA expects that this new
approach to State authorization will be
applied to other parts of the RCRA
program. If it is successful, the approach
may become the template for the RCRA
program as a whole. (This is discussed
in more detail in section (V)(E).)
The Regulations Should Be Easy To
Understand
The RCRA Subtitle C program has
been criticized by many for being overly
complex and thus difficult to comply
with. This rule is not intended to fix all
of the program's complexities; however,
a primary objective in creating this new
regulatory framework for management
of contaminated media was to ensure
that the new regulations are as easy to
understand—and implement—as
possible.
IV. Introduction and Overview of
Today's Proposal and Alternatives to
Today's Proposal
A. Today's Proposed Approach
Today's proposal would establish two
new regulatory regimes for management
of contaminated media that would
otherwise be subject to regulation under
the current RCRA Subtitle C regulations,
if the media are managed under the
oversight of EPA or an authorized State.
The rule would establish a "Bright
Line"—a set of constituent-specific
concentrations—to distinguish between
those two regimes based on whether
media are more highly contaminated, or
contaminated at lower levels.
Media which were contaminated with
constituent concentrations below Bright
Line values would be eligible to exit
from Subtitle C regulation if the State or
EPA determined that the media did not
contain waste that present a hazard (i.e.,
hazardous waste). (See RCRA § 1004(5)).
Most management requirements for
contaminated media that do not contain
hazardous wastes would be specified by
the overseeing Agency on a case-by-case
basis.
Today's proposal also addresses
application of the Land Disposal
Restrictions (LDRs) to both hazardous
and non-hazardous contaminated
media. Hazardous contaminated media
are environmental media that contain
hazardous wastes or exhibit a hazardous
characteristic and have not been
determined, pursuant to § 269.4, to no
longer contain hazardous wastes. Non-
hazardous contaminated media are
media determined, pursuant'to § 269.4,
not to contain hazardous waste. LDRs
apply to media contaminated by
hazardous wastes when the wastes were
land disposed after the effective date of
the applicable land disposal
prohibitions. When the wastes that are
contaminating the media were land
disposed before the effective date of the
applicable land disposal prohibitions,
LDRs attach to the media when the
media are removed from the land,
unless the media have been determined
not to contain hazardous wastes before
they are removed from the land. Media
subject to the LDRs must be treated to
meet LDR treatment standards prior to
placement, or re-placement, in a land
disposal unit (except a no-migration
unit). As stated above, media
contaminated by hazardous wastes
placed before the effective dates of the
applicable land disposal prohibitions
and determined to no-longer contain
hazardous waste before they are
removed from the land are not subject
to the land disposal restrictions.
-------
Federal Register / Vol. 61. No. 83 / Monday, April 29, 1996 / Proposed Rules
18787
In some cases, hazardous
contaminated media may be determined
to no-longer contain hazardous waste,
but may remain subject to the land
disposal restriction treatment standards.
As discussed more completely later in
today's preamble, this is based on the
logic that, once attached, the obligation
to meet land disposal restriction
treatment standards continues even if a
waste is no longer considered hazardous
under RCRA Subtitle C.
Under current regulations, media
subject to the land disposal restriction
treatment standards must meet the
standards for the hazardous wastes
contained (or, in some cases, formerly
contained) in the media, that is, the
same treatment standard the
contaminating hazardous wastes would
have to meet if they were newly
generated. Today's proposal would
modify the land disposal restriction
treatment standards for media subject to
the LDRs so that the treatment standards
reflect the site-specific nature of
cleanup activities and media treatment
technologies and strategies more
accurately and appropriately. Today's
proposal also establishes new Media
Treatment Variances to ensure that,
when the generic LDR treatment
standards are technically impracticable
or inappropriate or, for contaminated
media with all constituent
concentrations below the Bright Line,
when the statutory LDR standard can be
met with less treatment than required by
the generic LDR treatment standards,
appropriate treatment will be required.
When contaminated media determined
by a State or EPA to no-longer contain
hazardous waste is still subject to the
LDRs, today's proposal establishes a
policy that site-specific Media
Treatment Variances would be
appropriate.
Contaminated media that contain
hazardous wastes would continue to be
regulated as hazardous wastes, but
certain Subtitle C requirements would
be modified. Most importantly, the LDR
treatment standards for media would be
amended, to account for the highly
variable characteristics of media (such
as soils) that are mixed with hazardous
wastes, and the technical uncertainties
involved with treating such
heterogeneous materials. One of the
primary objectives of the proposed rule
is to replace generic, national standards
with more tailored and flexible
requirements for contaminated media.
The rule would establish a new
mechanism for imposing these site-
specific requirements—remediation
management plans (RMPs). These plans
would be the vehicle for imposing (and
enforcing) the new requirements, while
ensuring public participation in the
decision making process. An approved
RMP would be required for both wastes
that contain hazardous wastes and those
determined not to contain hazardous
wastes. Thus, the regulations would not
be self-implementing—the increased
flexibility allowed under the new rules
would be available to owner/operators
and other responsible parties only when
there is sufficient government oversight
to ensure that such flexibility is not
abused.
The use of RMPs should accelerate
and streamline cleanup actions in
several ways. First, an approved RMP
would be considered a RCRA permit,
eliminating the need to issue traditional,
time-intensive RCRA permits for
cleanup actions. Second, the procedures
for reviewing and approving RMPs
would be considerably less complex
than those required for RCRA permits.
Third, RMP's would not trigger the
requirement for facility-wide (and
beyond facility boundary) corrective
action requirements under § 3004(u) and
(v) of RCRA. Thus, the delays and other
disincentives that have often been
caused by the need to obtain a RCRA
permit for certain cleanup activities
should be significantly eased.
It should be noted that certain types
of remediation wastes, such as sludges,
debris, and other non-media
remediation wastes, would not be
subject to the more flexible treatment
standards specified in the proposal and
could not exit from hazardous waste
regulation through a contained-in
determination. Such materials would be
subject to the traditional Subtitle C
regulations, including LDR
requirements. However, RMPs could be
used (at the discretion of the overseeing
Agency) to address all types of
remediation wastes.
Today's proposal would also replace
the current regulations for CAMUs,
which were promulgated on February
16,1993. New CAMUs could not be
approved after the publication date of
the final HWIR-media rule; however,
existing CAMUs would be
"grandfathered", and could continue
operating for the duration of the
remedial operations. For situations in
which cleanup wastes are simply stored
or treated in piles as part of cleanup
activities, a new type of unit—a
remediation pile—could be used
without triggering LDRs and MTRs. A
significant difference between the
requirements for these remediation piles
and the current CAMU requirements is
that these piles would be only
temporary and could not be used as a
disposal option for remediation wastes.
Remediation piles could only be used
during the duration of the cleanup
activities at the site.
Another important feature of this
proposal is it's new approach to
authorizing States for the rule, which
would be much more streamlined than
existing authorization procedures.
Under the new approach, States would
certify that they have an equivalent
program, and EPA would only do a very
brief review prior to authorization,
rather than a meticulous line-by-line
review of the States' regulations to
determine equivalence. Once
authorized, EPA would monitor the
State's implementation of the program.
Ultimately, the Agency could revoke a
State's authorization specifically for this
rule, without having to revoke the
State's entire RCRA program (as is
currently the case).
B. Alternative Approaches Including
Unitary Approach
The Agency also solicits comments;
regarding alternative approaches to
implementing the objectives of today's
proposal. An alternative that was
originally suggested by Industry
stakeholders has received attention and
support from many stakeholders. This
alternative approach is commonly
referred to as the "Unitary Approach.2"
The Unitary Approach would exempt
all cleanup wastes (including
contaminated media and non-media
remediation wastes) from Subtitle C
regulation if they meet certain
conditions (the rule would thus be
based on a conditional exclusion
theory). The conditional exclusion,
requires that these remediation wastes
be managed under an enforceable
"Remedial Action Plan" or RAP
approved by EPA or an authorized State
program. The Unitary Approach would
not include a Bright Line concept. All
cleanup wastes would be subject to site-
specific management requirements set
by the overseeing Agency (EPA or State)
in the RAP. EPA also believes that many
of the key elements of different options
and alternatives discussed in this
proposal could be combined in different
ways to construct an effective HWIR-
media program. The following table
illustrates three different combinations
of the key elements, and is intended to
facilitate comparison of options. A
further discussion of alternative
approaches and hybrids, is provided in
section VI of the preamble to today's
proposal.
2 See letter from James R. Roewer, USWAG
Program Manager, Utilities Solid Waste Activities
Group, to Michael Shapiro, Director, Office of Solid
Waste, EPA (September 15,1995) in the docket for
today's proposal.
-------
18788
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules
TABLE 1
Key elements
Proposed option
Hybrid contingent management
option
Unitary approach
Legal Theory
Contained-in
Scope
Bright Line
Hazardous vs. Non-
hazardous.
LDRs
Permitting
Media only
Bright Line—10-3 and Hazard index
of 10.
All media above Bright Line are sub-
ject to Subtitle C; below is site- spe-
cific decision.
LDRs required for media where LDRs
attaches2.
RMP serves as RCRA permit for
media that remain subject to Subtitle
C.
Conditional Exclusion for below the
Bright Line.
All remediation wastes
Bright Line (a) (for media) same as
proposal, or (b) qualitative Bright
Line1.
All remediation wastes above Bright
Line are subject to Subtitle C; below
(when managed according to RAP
or RMP) are not hazardous.
LDRs required for wastes where LDRs
attaches2.
RMP serves as RCRA permit for
wastes that are above .the Bright
Line; for wastes below the Bright
Line, RMP does not have to serve
as RCRA permit.
Conditional Exclusion.
All remediation wastes.
No Bright Line.
All remediation wastes managed ac-
cording to RAP or RMP are not haz-
ardous.
LDRs required for wastes where LDRs
attaches.3
No requirement that RAP/RMP serve
as RCRA permit, since wastes are
not subject to Subtitle C.
1 See discussion of qualitative Bright Line below.
2See discussion of applicability of LDRs in section (V)(C). „„„„,„,,
3 See discussion of alternative option for LDR applicability in section (Vl)(A)(3).
The Agency believes that the
alternative approaches provide more
flexibility than today's approach, and
requests comments on the Unitary
Approach as an alternative to today's
proposal, as well as other options that
combine different key elements.
C. Relationship to HWIR-Waste Rule
EPA recently proposed two
approaches for exemptions from
Subtitle C regulation that focus on listed
hazardous wastes that are not
undergoing remediation (60 FR 66344-
469, Dec. 21,1995). Under the "HWIR-
waste" proposal, listed wastes, wastes
mixed with listed wastes and wastes
derived from listed wastes would be
eligible for exemption from Subtitle C
where tests show that all hazardous
constituents fall below one of the two
sets of "exit levels" set out in the
proposal.
EPA's goal for the generic option was
to identify levels of hazardous
constituents that would pose no
significant threat to human health or the
environment regardless of how the
waste was managed after it exited
Subtitle C jurisdiction. EPA derived.
these exit levels by making reasonable
worst case assumptions about releases
from a variety of solid waste
management units. The exit values are
designed to be protective even if there
is no further regulation or oversight by
any Federal or State agency. Moreover,
the proposal does not require any
regulatory agency to review exit claims
or make decisions as to whether an exit
is warranted. As noted in that proposal,
in addition to listed hazardous wastes,
both contaminated media and wastes
that do not contain media, but are
undergoing cleanup, would be eligible
to exit Subtitle C at these levels under
this self-implementing process.
However, since the exit levels do not
account for site-specific factors that may
exist at cleanup sites, large quantities of
remediation wastes and contaminated
media might not qualify for exit.
The second set of exit levels proposed
in the HWIR-waste notice is somewhat
less conservative because risk reduction
credit is given for the conditions of the
exemption, thus, adhering to the overall
risk protection goal. These levels,
however, would be available only to
waste handlers that comply with
specified conditions for the
management of the exempted wastes.
(The proposed option has a condition
prohibiting management in land
application units.) The notice also
describes and requests preliminary
comments on several other options for
conditional exemptions with more
extensive conditions that would
increase risk protection and would,
presumably, yield even less
conservative exit levels. One of these
options described could allow
regulatory agencies to calculate
exemption levels for individual waste
management facilities using site-specific
data. Waste that exited under this
option would be subject to the
conditions of the exit, enforced through
ordinary, periodic compliance
inspections, as opposed to special site-
specific oversight.
Today's HWIR-media proposal, unlike
the HWIR-waste generic option, does
not seek to identify constituent
concentrations that would be safe
regardless of the manner in which the
media is managed. Rather, it tries to
distinguish between (1) contaminated
media that are eligible to exit because it
is likely that they can be managed safely
under cleanup authorities outside of
Subtitle C, and (2) media that contain so
much contamination that Subtitle C
management is warranted. For
exempted media EPA is proposing to
require that a regulatory agency make
any appropriate site-specific decisions
about the management of remediation
wastes, and impose those decisions in
an enforceable document. EPA also
expects that States will conduct
significant oversight of these
requirements during the course of their
remediation activities. This scheme
provides for more extensive oversight
than most of the conditional exemption
options in the HWIR-waste proposal.
Consequently, the "Bright Line"
concentrations in this proposal (that
identify media that are eligible for
exclusion from Subtitle C) are not as
conservative as either the generic or the
proposed conditional exemption option
in the HWIR-waste proposal. EPA
anticipates that larger quantities of
contaminated media will be eligible for
exemption under this proposal than
under the HWIR-waste proposal. (For a
further discussion of the technical
methodologies used for developing the
HWIR-waste exit levels and the HWIR-
media Bright Line levels see section
(V)(A)(4)(c) of today's preamble and the
background documents for the two
proposals in the docket.)
Finally, this proposal, unlike the
HWIR-waste proposal, provides
additional flexibility for materials that
remain subject to Subtitle C jurisdiction.
For example, EPA is proposing special
-------
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules
18789
permitting and land disposal restriction
standards for proposed Part 269. EPA
believes this relief will increase
environmental protection by reducing
regulatory disincentives to cleanup.
V. Section-by-Section Analysis
A. General Provisions
1. General Scope of Today's Proposal—
§269.1
Today's proposal would establish a
new Part 269 of 40 CFR, which would
prescribe special standards for State or
EPA-overseen cleanups managing
contaminated media.
In § 269.1, today's proposed rule
articulates several important provisions
that apply generally to the Part 269
regulations, which are intended to
clarify what these rules are intended to
do. The following is a discussion of
each of those provisions.
The first provision (§ 269.1(a))
clarifies that the rules (except the
provisions for RMPs, in Subpart D)
would apply only to materials that
would otherwise be subject to Subtitle
C hazardous waste regulations. The
rules would not expand the coverage of
Subtitle C regulations, or otherwise
cause wastes to be considered
hazardous that have not been so •
regulated before. In other words,
contaminated media would have to be
hazardous by characteristic, or be
contaminated with a listed hazardous
waste to become subject to this
rule'sprovisions. Other contaminated
media—regardless of constituent
levels—would not have to be managed
as hazardous wastes, and therefore,
would not fall under the scope of this
rule.
In discussions with various
stakeholders, EPA has become aware
that the "coverage" issue has been the
source of some confusion. The rule has
been perceived by some as applying to
all media that might be managed as part
of cleanup activities, rather than just
those media that are currently subject to
regulation as hazardous wastes. This
provision is intended to clarify this
point.
The second provision (§ 269.1(b)) is
intended to explain that today's
proposal would only affect certain
specific Subtitle C regulations as they
apply to hazardous contaminated media
(i.e., media that contain hazardous
waste). The primary effect of Part 269
concerning these media would be to
replace the current LDR regulations
(specified in Part 268) with modified
treatment requirements, and to
significantly streamline permit
requirements. Other regulations that .
apply to treatment, storage, and disposal
of hazardous wastes would continue to
apply to hazardous contaminated
medial For example, if hazardous
contaminated media were generated
from cleanup activities—and
subsequently stored in tanks or
containers for greater than 90 days—the
tanks and containers would have to
comply with the Subparts I or J
requirements of Part 264 (or Part 265, if
at an interim status facility). Other Part
264 and 265 requirements would
continue to apply in similar fashion.
The third provision (§ 269.1(c))
addresses the interplay between these
HWIR-media rules and other cleanup-
related laws and regulations.
Specifically, it clarifies that remedy
selection standards, other "how-clean-
is-clean" standards, and guidelines that
are specified in cleanup statutes and/or
regulations, would not be affected by
these rules. EPA wishes to emphasize
that the proposed HWIR-media rules
would not affect which media or wastes
at a site must be cleaned up, or how
much contaminated media should be
excavated. Such decisions are usually ..
made according to Federal or State
cleanup laws and regulations, most of
which specify certain guidelines or
criteria for determining how sites are to
be cleaned up. Only after those
decisions are made would these HWIR-
media regulations come into play.
The fourth provision (§ 269.1(dj) is
meant to emphasize a very important
point regarding the Bright Line, which
is that the Bright Line values identified
in the proposal are not designed as
cleanup levels. As stated elsewhere in
this preamble (see (V)(A)(4)(c)), the
Bright Line concept has very little to do
with setting cleanup levels or making
other "how-clean-is-clean" decisions.
Cleanup levels usually take into account
various site-specific and contaminant-
specific factors, and are meant to ensure
that risks from exposure to residual
contamination are at acceptable levels.
Bright Line concentrations would
determine only whether the overseeing'
Agency has the discretion to conclude
that media no longer contain hazardous
waste, and therefore decide what
management standards would apply to
that media if generated during a
cleanup. The use of Bright Line
concentrations as cleanup levels would
generally be inappropriate.
The fifth, and final provision,
(§ 269.1(e)) specifies that these rules
would not be self-implementing. As
explained elsewhere in this preamble),
and in the proposed rule language
(§ 269.1(e)), the provisions of Part 269
can only be implemented with oversight
by EPA or an authorized State, by an
3 Note that this only applies to hazardous
contaminated media; media exempt from Subtitle C
because of contained-in decisions (see §269.4)
would not be subject to any Subtitle C regulations
except perhaps LDRs. (See discussion of LDRs in
section (V)(C) of this preamble).
Plan (RMP) or analogous document.
2. Purpose/Applicability—§ 269.2
As described above, this rule would
modify the existing Subtitle C
requirements for the management of
more highly contaminated media, and
would, in effect, exempt lesser
contaminated media (that are
determined not to contain any
hazardous waste, and are managed in
accordance with an approved
Remediation Management Plan (RMP))
from most RCRA Subtitle C
requirements; For such less-
contaminated media, EPA and the States
would impose appropriate management
requirements on a site- and waste-
specific basis, pursuant to authorities
not reliant on the presence of RCRA
hazardous waste.
The Agency is proposing to
promulgate these regulations in a new-
Part (Part 269) of Title 40 of the Code
of Federal Regulations. Issuing the rules
for contaminated media management in
a readily identified, discrete part of the
Subtitle C regulations should help to
make them clearer and easier to
understand for both regulators and the
regulated community. Although an
alternate approach was considered that
would have promulgated the rules as a
series of amendments and modifications
to the existing Subtitle C regulations
(Parts 260. to 271), EPA believes such an
alternative would be more difficult to
understand, and would add to the
complexity of an already complex body
of rules.
Section 269.2 of today's proposal is
intended to establish the general scope
and applicability of these rules. As
such, this part of the proposal addresses
a number of important issues that were
the subject of considerable debate
during the FACA Committee process.
The following is an explanation of how
this proposal addresses those specific
issues.
Section 269.2 specifies that Part 269
(except Subpart D) would apply only to
hazardous contaminated media, not to
all cleanup wastes. Therefore, non-
media remediation wastes (e.g.,
excavated drum waste) would be subject
to the same regulatory requirements that
apply to as-generated hazardous wastes
(with the exception of the Subpart D
provisions for Remediation Management
Plans). Likewise, hazardous debris
under today's proposal would be subject
to the existing LDR treatment standards
-------
18790
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules
for debris, as well as other Subtitle C
requirements.
The question of which types of
remediation wastes should be covered
under the HWIR-media rule was one of
the major issues left unresolved by the
FACA Committee under the
Harmonized Approach. Although all
parties on the Committee agreed that
hazardous contaminated media (as
defined in § 269.3-^see ensuing
preamble discussion) should be subject
to this modified regulatory system, some
groups argued that other types of
remediation wastes, such as sludges,
and other remediation wastes should
also be covered by the rule. Those
groups argued that separating media
from non-media in this context is an
artificial distinction that is inconsistent
with the realities of managing wastes
during cleanup operations. They
contended that the rationale for
modifying requirements for
contaminated media applies equally to
these non-media wastes_(e.g., the
presence of an overseeing agency, and
disincentives for cleanup created by
Subtitle C requirements). They.
maintained that the coverage of the rule
should reflect the differences between
cleanup- and prevention-oriented waste
management, rather than create new
categories of remediation wastes.
Other parties involved in the FACA
Committee argued strongly that the rule
should be narrower in scope, and
should include only the types of
remediation wastes that are clearly
different in nature from newly-
generated wastes. They said that
because non-media remediation wastes
(e.g., drummed wastes and sludges), are
physically and chemically similar to as-
generated hazardous wastes they should
be subject to the same treatment
standards and other requirements that
apply to as-generated wastes. The. fact
that such wastes are managed as a result
of cleanup actions (those parties argued)
does not mean that they should be
subject to the more flexible rules for
remediation waste proposed today. .
EPA decided to limit the scope of
today's proposal to, contaminated media
for several reasons. First, the cohtained-
in concept used in this proposal for
exempting materials from Subtitle C
only applies to media (and, as discussed
below, debris). Thus, a different legal
concept would have to be used to
exempt other types of remediation
wastes from Subtitle C. Further
discussion of this issue is presented in
section (VI)(A) of this preamble.
, Another reason for limiting the
applicability of the rule-to contaminated
media is that the cost-benefit analysis
prepared for this rule indicates that, on
a national basis, contaminated media
comprise approximately 80% of the
total volume of material that is typically
managed at Superfund (Federal and
State) sites, RCRA corrective action
sites, and voluntary cleanup sites. The
rule would thus provide a considerable
amount of regulatory relief, thereby
removing the disincentive for cleanup
this rule is designed to address. It can
also be argued that the need for
regulatory relief, particularly from LDR
requirements, is more acute for
contaminated media than other
remediation wastes. This is because, as
discussed in section (II)(A) of this
preamble, they are often more complex
to treat effectively, since there are often
large, heterogeneous volumes of media,
with-numerous types of contaminants
present, requiring multiple types of
treatment technologies. In addition, this
rule, if finalized, will constitute a major
change in the way the covered materials
are regulated under RCRA and will
require a "break-in" period while
regulators and the regulated community
adjust to the new system. Therefore, it
may be prudent to limit the rule to cover
only contaminated media, at least until
EPA and the States have established a
track record in implementing this new
regulatory system.
By limiting the applicability of this
proposed rule to contaminated media,
EPA is not discounting the arguments of
those who believe that the rule should
be more expansive in scope. It is
acknowledged that the rule as drafted
may create complexities for site
managers and regulators in
distinguishing and separating media
from other remediation wastes at a site,
and then applying two different
regulatory regimes to their management.
The Agency also recognizes that at
many cleanup sites, the issue of whether
to pick up and manage remediation
wastes or to leave them in place,
involves old wastes, not media/The
Agency has also found in the Cost/
Benefit assessment for today's proposed
rule that an alternative which would
include all remediation wastes in the
scope of this rule would provide
significantly more cost savings than the
proposed option. As discussed in
section (VTj(A) of this preamble, the
Agency is seriously considering
applying the rule to all remediation
wastes and specifically requests
comments and factual data concerning
whether it is appropriate to do so.
Specifically, the Agency seeks comment
on the benefits of including all cleanup
wastes, and what types of
implementation difficulties, if any,
would be created by regulating
hazardous contaminated media and ,
other hazardous remediation wastes
separately and how easy those problems
are to overcome.
Debris. A related issue concerning the
scope of today's proposal is whether the
substantive portions of the rule should
cover hazardous debris.4 Although the
FACA Committee did not examine this
question in detail, individual members'
of the committee, as well as several
other stakeholders (including several
States) have recently contended that the
rule should include debris and should
allow it to be addressed under the same
modified regulatory scheme as for
media. These parties argue that although
under today's proposal, requirements
for debris could be addressed in an
RMP, separate management standards
(particularly the LDR treatment
standards) for debris can complicate
cleanups by requiring physical
separation of debris from non-debris
remediation wastes, and requiring
different treatment technologies, where ,
debris and media often can be handled
together without compromising
environmental protection.
Because this issue arose late in the
preparation of today's proposed rule,
EPA has decided, with a few
exceptions,5 not to include hazardous
debris in the scope of today's proposal.
However, should the Agency receive
persuasive comments, it will consider
including hazardous debris in the final
rule.
EPA requests comment on whether
hazardous debris should be included in
the final Part 269 rule and, if debris is
included, the management standards or
combinations of management standards
(e.g., some combination of the existing
Debris Rule standards and the standards
for contaminated media proposed today)
4Debris is defined in 40 CFR 268.2(g) as "solid .
material exceeding a 60 mm particle size that is :
intended for disposal and that is: a manufactured
object; or plant or animal matter; or natural geologic
material. However, the following materials are not.
debris: any material for which a specific treatment
standard is provided in Subpart D, Part 268, namely
lead acid batteries, cadmium batteries, and
radioactive lead solids; process residuals such as
smelter slag and residues from the treatment of ,
waste, wastewater, sludges, or air emission
residues; and intact containers of hazardous waste
that are not ruptured and that retain at least 75%
of their original volume. A mixture of debris that
has not been treated to the standards provided by
§ 268.45 and other material is subject to regulation
as debris if the mixture is comprised primarily of
debris, by volume, based on visual inspection."
Hazardous debris is defined in 40 CFR 268.2(h) as
"debris that contains a hazardous waste listed in
Subpart D of Part 261 of this chapter, or that
exhibits a characteristic of hazardous waste
identified in Subpart C of Part 261 of this chapter."
5 The exceptions are today's proposed regulations
for remediation management plans and remediation
piles, as discussed in the applicable sections of
today's preamble. ' • • .
-------
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules 18791
that should be imposed. EPA requests
that commenters address the
distinctions, if any, which should be
made between naturally occurring
debris (e.g., gravel, tree roots) and man-
made debris (e.g., crushed drums,
sorbants). For example, should naturally
occurring debris be included in the final
Part 269 rule and subject to the same
standards as contaminated media
because it is often co-located with
media? While these issues were
specifically raised in the context of
petroleum contaminated debris, EPA
believes they are also applicable to
debris more generally.
Details associated with the potential
application of today's proposed
requirements for contaminated media to
hazardous debris are discussed later in
sections (V)(A)(4)(b) and (V)(C)(10) of
this preamble.
Oversight. Section 269.2(b) specifies
that the regulations of Part 269 would
apply only to cleanup activities that are
overseen by EPA or an authorized State
agency, in accordance with an approved
plan (i.e., a RMP). This limitation is a
key feature of the proposal.
As discussed earlier, remedial actions
under RCRA, CERCLA, and other
Federal and State cleanup programs are
typically conducted with substantial
government oversight. Often this occurs
because the implementing agencies have
decided to make many decisions
relating to cleanup on a site-specific
basis rather than promulgating generally
applicable regulations. Agencies have
preferred site-specific decision-making
in the area of cleanup because remedial
management decisions are extremely
complex, and because site-specific
factors play very important roles in the
design and implementation of protective
remedies. It is the Agency's belief that
the government agency overseeing a
particular remedial action is generally
best suited to make decisions
concerning the management of the
contaminated media from that site,
because they would be most familiar
with the site-specific conditions that
would affect how the media should be
properly managed. Thus, for the
majority of media (i.e., those with all
constituent concentrations below the
Bright Line), today's proposal would
allow EPA or the State to impose site-
specific standards in lieu of most of the
current Subtitle C requirements.
In many States, several cleanup
programs are operated by different
programs or agencies of the State
government. It is the intention of the
Agency to authorize for this rule, State
RCRA programs that have incorporated
the rule and plan to rely on companion
authorities that are not reliant on the
presence of hazardous wastes for
jurisdiction (e.g., State solid waste laws,
or State Superfund laws, and RCRA
corrective action authority at TSDFs),
and that are capable of assuring sound
media management decisions for media
determined to no longer contain
hazardous wastes. EPA would then
allow those States to determine which
companion authority(s) should be used
to define media management
requirements at any specific site.
Likewise, management standards for
media determined to no longer contain
hazardous wastes may be imposed, as
appropriate, under Federal cleanup
programs, such as Superfund or RCRA .
corrective action.
Since these proposed Part 269
regulations and appropriate site-specific
management standards for media
determined to no longer contain
hazardous wastes would be
implemented and enforced on a site-by-
site basis, some mechanism must be
available for the overseeing Agency to
document the site-specific
requirements, and thus provide a means
to enforce compliance with those
requirements. The proposal specifies
that these rules will only apply when
EPA or an authorized State approves a
remediation management plan for the
site. The requirements that contained-in
decisions and appropriate non-Subtitle
C management standards must be
included in RMPs would also serve the
very important purpose of providing the
information necessary for the Agency to
monitor whether an authorized State is
implementing the HWIR-media rule in a
protective manner (e.g., whether the
State is making protective contained-in
determinations). As discussed more
fully in section (V)(E) below, today's
proposal would allow EPA to withdraw
a State's HWIR-media authorization if
the Agency determines that the State is
not managing the contaminated media
addressed by the rule in a protective
manner.
An approved RMP may also constitute
a RCRA permit in cases where such
permits are required specifically for
cleanup activities. Further discussion of
RMPs is presented elsewhere in this
preamble.
§ 269.2(c) is designed to make clear
that this rule does not expand the
applicability of Subtitle C requirements
to any materials for which Subtitle C
would otherwise not apply. Materials
and activities that are not already
subject to Subtitle C would not be
required to begin complying with
Subtitle C standards. For example, if a
site owner managed hazardous
contaminated media under the 90-day
accumulation provision of 40 CFR
262.34, this rule would not require him
to obtain a RCRA Part B permit or a
RMP. Similarly, if a site owner treats
hazardous contaminated media in situ
(i.e., without triggering the RCRA Land
Disposal Restrictions), this rule would
not subject him to the proposed media-
specific LDR standards in Part 269.
3. Definitions—§269.3
Section 269.3 defines several
important new terms that are unique to
Part 269 6. These terms are defined here,
rather than in § 260.10 (where most of
RCRA's regulatory terminology is
defined), for the sake of convenience,
and to emphasize that these are terms
that would be specific only to this
portion of the hazardous waste
regulations. Of course, the definitions in
§ 260.10 would apply to Part 269 as
well. The following is a discussion of
each new term.
Bright Line Constituent. Today's
proposal specifies the following
definition:
Bright Line constituent means any
constituent found in media that is listed in
Appendix A of this Part, and which is: (1)
The basis for listing of a hazardous waste (as
specified in Appendix VII of 40 CFR Part
261) found in that media; or (2) a constituent
which causes the media to exhibit a
hazardous characteristic.
This definition would be used to
establish which constituent
concentrations in the media must be
measured against Bright Line
concentrations, which in turn would
determine whether the Director has the
discretion to decide that the media do
not contain hazardous waste. The
Agency considered several approaches
for defining this term, including
defining it to include any constituent
that: (I) May be present in the media, (2)
may be present in the media and
originated from hazardous waste, or (3)
may be present in the media, originated
from hazardous waste, and was a
constituent that either formed the basis
for the waste's hazardous waste listing
or caused the media to exhibit a
hazardous characteristic.
The Agency rejected the first option
because it could be over inclusive; i.e.,
there could be concentrations of
constituents in the media that exceed
Bright Line concentrations, but did not
originate from hazardous waste (e.g.,
6The term "Director" as used in today's proposed
rule means "Director" as defined currently in 40
CFR 270.2. The HWIR-waste proposal (60 FR
66344-469, Dec. 21,1995) would move that
definition to 260.10, in which case the 260.10
definition would be sufficient to define "Director"
for purposes of today's proposal. For that reason,
today's rule does not propose a definition for
"Director."
-------
18792
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules
naturally occurring constituents). Since
under the contained-in principle, media
are only regulated under Subtitle G
because they contain hazardous waste,
this approach could inappropriately
extend the reach of the Subtitle C
regulations.
EPA chose the third option over the
second reasoning that the use of the
same constituents that have caused the
wastes in the media to be regulated as
hazardous form a sound basis for
deciding whether those same media
should be eligible to be "deregulated."
The sole purpose of the Bright Line is
to determine whether the media should
be eligible for a contained-in
determination; the conclusion that all
Bright Line constituents are below the
Bright Line does not necessarily
determine that the media no longer
contain waste. If the media contain
other constituents of concern, the
Director could, where appropriate, use
the constituents as the basis for denying
a request that the media be determined
to no longer contain hazardous wastes.
At some point in the site-cleanup
process it would be necessary to
determine which constituents in the
media are Bright Line constituents. For
media that exhibit a hazardous
characteristic, the Bright Line
constituents should be readily identified
(i.e., by chemical analysis). For media
contaminated with listed hazardous
wastes, Appendix VII to 40 CFR Part
261 lists the constituents that were the
basis for listing the waste as hazardous.
The Agency recognizes that
identifying the presence of listed wastes
(and thus the Bright Line constituents)
in media is not always simple. It has
been the Agency's longstanding policy
that in cases where the origin of the
contaminants is unknown, the lead
agency may assume that contaminants
in media did not originate from listed
hazardous wastes. (See e.g., 55 FR 8666,
8758, March 8,1990, and 53 FR 51394,
51444, (December 21,1988)). It is
generally the responsibility of the
owner/operator or responsible party to
make a good faith effort to determine
whether hazardous constituents in
media have originated from listed
hazardous wastes. If the origin of
constituents in media cannot be
determined, and the media do not
exhibit a hazardous characteristic, then
the media would not be subject to
Subtitle C regulations in the first place.
Although Bright Line constituents
may help to determine the regulatory
status of media they would not
necessarily be the only constituents
subject to LDR treatment standards. A
discussion of how LDR standards would
be applied to hazardous waste
constituents in hazardous contaminated
media is presented hi section (V)(C) of
this preamble.
The tables in Appendix A specify
concentrations for 100 constituents for
which verified human health effects
data were available to the Agency at the
time of the proposal's publication.
These constituents are also the ones
most commonly found in contaminated
media at Superfund sites. EPA expects
that Bright Line concentrations for
additional constituents will be available
before publication of the final Part 269
rules. However, it is likely that for some
time Appendix A will be an incomplete
list. Comment is invited as to whether
this list should be updated, as data
become available, to include as many
constituents as possible, or whether for
purposes of this regulation it is
acceptable to have a Bright Line list that
does not specify levels for every
constituent that might be found at a
cleanup site.
In cases where constituents are
present in media but are not among
those listed with concentration values
in Appendix A to Part 269—the Director
would have the discretion (but not the
obligation) to specify site-specific or
State-wide Bright Line concentrations.
The Director's discretion to decide
whether media contained hazardous
wastes is unconstrained with respect to
these constituents.
For constituents that do not have
established Bright Line concentration
values, EPA believes it would generally
be appropriate to use similar
assumptions to those used to establish
the current Bright Line concentrations.
The technical background documents
which describe the assumptions,
equations, and models used to set the
Bright Line numbers are in the docket
for today's rule.
Additional discussion of the Bright
Line concept is presented in section
(V)(A)(4)(c) of this preamble, including
, information on the specific numbers in
Appendix A and how they were
calculated. The Agency requests
comments on this definition of Bright
Line constituents, hi particular, the
Agency seeks comments on the
approach of defining Bright Line
constituents as those constituents that
caused the waste to be hazardous in the
first place. For example, would it make
more sense to define Bright Line
constituents as any constituents for
which LDR treatment would be
required? (Constituents that would be
required to be treated for LDR are
discussed in section (V)(C)(3) below.)
This approach may be appropriate,
since the owner/operator would already
be addressing these constituents for LDR
purposes. The Agency requests
comments on approaches for making
contained-in decisions for constituents
that do not have levels specified in
Appendix A.
Hazardous contaminated media.
Today's rule proposes the following
definition of hazardous contaminated
media:
Hazardous contaminated media means
media that contain hazardous wastes listed in
Part 261 Subpart D of this chapter, or that
exhibit one or more of the characteristics of
hazardous waste defined in Part 261, Subpart
C of this chapter, except media which the ,
Director has determined do not contain
hazardous wastes pursuant to § 269.4 of this
Part (non-hazardous contaminated media).
This definition would be used to
identify media that remain subject to
regulation as hazardous wastes under
RCRA Subtitle C.
Media. Today's rule proposes the
following definition of media:
Media means materials found in the
natural environment such as soil, ground
water, surface water, and sediments; or a
mixture of such materials with liquids,
sludges, or solids which is inseparable by
simple mechanical removal processes and is
made up primarily of media. This definition
does not include debris (as defined in
§268.2).
This definition is intended to include
a broad range of naturally occurring
environmental media that may become ,
contaminated with hazardous wastes.
Debris has not been included in this
definition, for reasons cited in the
earlier discussion of debris, section
(V)(A)(2), although, as discussed in that ,
section, EPA solicits comments on
whether it should be. However,
hazardous debris or other remediation
wastes may be managed in remediation
piles (see discussion of proposed
§ 264.554), and could be addressed in a
remediation management plan under
today's proposal.
Media Remediation Site. Today's rule
proposes the following definition of
media remediation site:
Media remediation site means an area
contaminated with hazardous waste that is
subject to cleanup under State or Federal
authority, and areas that are iri close
proximity to the contaminated area at which
remediation wastes are being managed or
will be managed pursuant to State or Federal
cleanup authorities (such as RCRA corrective
action or CERGLA). A media remediation site
is not a facility for the purpose of
implementing corrective action under
§ 264.1*01, but may be subject to such
corrective action requirements if the site is
located within such a facility (as defined in
§260.10).
EPA also proposes to amend the
definition of facility in § 260.10 to
-------
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules 18793
exclude media remediation sites (except
those located at a TSDF).
The concept of a media remediation
site is new in the RCRA context,
although it is similar to the "on-site"
concept that is denned in the Superfund
program. Traditionally, RCRA has
focused on "facilities" for purposes of
applying hazardous waste regulations.
These are generally properties where
industrial operations manage hazardous
wastes that they have generated, or
where commercial hazardous waste
treatment, storage, and/or disposal
operations are conducted. For purposes
of implementing corrective actions
under §3004 (u) and (v) and 3008(h), a
facility is defined (see § 260.10) as "all
contiguous property under the control
of the owner or operator" where
hazardous wastes are managed.
Applying this concept of a facility to
cleanup actions can be problematic in
some cases, particularly where cleanup
activities are being conducted on
property that was never before regulated
under RCRA (e.g., land that became
contaminated before RCRA regulations
were promulgated). Under the current
regulations, if the cleanup activities at
such a site require a RCRA permit, the
site would become a "facility" for RCRA
purposes, and corrective action
requirements would apply to all
contiguous property that is under the
control of the owner or operator. This
has created disincentives for cleanups at
properties not heretofore regulated
under RCRA. For example, obtaining a
permit can be a time- and resource-
intensive undertaking, and the facility-
wide corrective action requirements that
attach once the permit is issued can also
deter cleanups. Since a media
remediation site would not be
considered a facility for RCRA purposes,
a RMP issued for the cleanup activities
at the site would not trigger any of the
RCRA corrective action requirements
mandated by RCRA § 3004 (u) and (v).
EPA believes that using the concept of
a media remediation site in applying
Part 269 regulations, instead of calling
them RCRA facilities, is sensible and
consistent with the RCRA statute. The
HWIR FACA Committee also supported
this approach. As originally conceived,
RCRA facilities were generally
properties whose owners and operators
were engaged in ongoing hazardous
waste management. Requiring corrective
action for such facilities (both facility-
wide and beyond the facility boundary)
was seen as a quid pro quo; i.e., one of
the costs of doing business for those
engaged in—and in some way profiting
from—the management of hazardous
wastes. In a remedial context, however,
there is no profit or advantage gained by
owners and operators from managing
hazardous wastes; it is simply
incidental to performing an act that is
• environmentally beneficial (i.e.,
cleaning up a site). Viewing cleanup
sites as traditional hazardous waste
facilities (and thus imposing additional
cleanup responsibilities) can have the
effect of penalizing those who wish to
clean up their properties.
EPA does not believe that Congress
intended for RCRA to create obstacles
like this one to cleaning up
contaminated sites. Under § 3004(u) of
RCRA, the corrective action requirement
applies to "a treatment, storage, or
disposal facility seeking a permit." This
clearly refers to facilities that need
permits because they are in the business
of hazardous waste management. In the
Agency's opinion, sites that only
conduct hazardous waste management
incidental to cleanup activities are not
the types of facilities to which Congress
intended to apply the § 3004 (u) and (v)
facility-wide (and beyond the facility '
boundary) corrective action
requirements.
In some cases, a media remediation
site could .be part of an operating (or
closing) RCRA hazardous waste
management facility'that is already
subject the § 3004 (u) and (v) corrective
action requirements; in those cases,
identifying an area of the facility as a
media remediation site would not have
any effect on the corrective action
requirements for that site or the rest of
the facility. The only advantage to
designating part of a RCRA-regulated
facility as a media remediation site
would be that more streamlined permit
procedures (for RMPs—see § 269.43)
could be used for that part of the
facility.
Under the proposed definition, a .
mediaTemediation site would be
limited to the area that is contaminated
and subject to cleanup, and adjacent
areas that are used for managing
remediation wastes as part of cleanup
activities. Areas that are remote from the
contaminated site would not be eligible
to be media remediation sites. For
example, if remediation wastes were
generated from a site and subsequently
transported off-site for treatment or
disposal, the treatment/disposal sites
could not be considered media
remediation sites. These off-site units
would be subject to regulation as RCRA.
facilities for permitting and corrective
action purposes.
Of course, units used to manage non-
hazardous remediation wastes
(including non-hazardous contaminated
media—e.g., media determined not to
contain hazardous waste), would not
need to comply with Subtitle C ,
regulations, nor would such units need
RCRA permits. In other words, if the
Director determined that media did not
contain hazardous waste, units used for
subsequent management of the media
(on or bff site) would not be subject to
permitting or other Subtitle C
requirements.
EPA considered the option of
allowing certain off-site areas to be
considered media remediation sites,
such as sites dedicated to managing
only remediation wastes, and sites
where only remediation wastes from a
specific cleanup site were managed.
These options could provide significant
advantages. For example, excavating
wastes from a site located in a
floodplain, and staging those wastes in
a more secure location away from the
floodplain, prior to ultimate disposal
could be a reasonable remedy. As
proposed, the off-site staging area could
not be considered a media remediation
site—it would have to be permitted as
a traditional hazardous waste storage
facility. The Agency recognizes that
allowing the use of RMPs at off-site
staging facilities might be more
streamlined than requiring RCRA
permits. However, an option that would
allow off-site areas to be considered
media remediation sites (or to be
permitted under RMPs) could be more
complicated to administer. The Agency
does not want to restrict off-site
management of remediation wastes, but
simply to ensure that these off-site
locations are adequately overseen. The
Agency requests comments on allowing
off-site areas to be regulated as media
remediation sites under Part 269, and
any specific requirements or limitations
that should be imposed on off-site
media remediation sites.
Today's proposal would allow the
Director to include areas in close
proximity to contaminated land that is
being cleaned up as part of a designated
media remediation site. This would
allow the site managers a limited
amount of room for conducting cleanup
operations outside the area that is
actually contaminated. For example,
cleaning up a lagoon full of sludges
might involve constructing and
operating a treatment unit at the site; in
many cases, it might be impractical or
impossible to locate the treatment unit
within the lagoon. This provision would
require some judgment on the part of
regulators responsible for defining the
boundaries of a media remediation site.
EPA solicits comments on this
provision, and oil the more general
question of how expansive the
definition should be, and what types of
operations or areas should be included
or excluded.
-------
18794
Federal Register / Vol. 61, No. 83 /Monday, April 29, 1996 / Proposed Rules
Non-hazardous contaminated media.
Today's rule proposes the following
definition of non-hazardous
contaminated media:
Non-hazardous contaminated media means
media that are managed as part of cleanup
activities and that the Director has
determined do not contain hazardous wastes
(according to § 269.4), but absent such a
determination would have been hazardous
contaminated media.
This definition is intended to
encompass any media that would have
been subject to RCRA Subtitle C
management requirements but the
Director determined that they do not
contain waste that presents a hazard
(i.e., hazardous waste) based on controls
in a RMP. (See discussion in section
(V)(A)(4)(a) of this proposal). This
definition is intended to differentiate
non-hazardous contaminated media
from media which would never have
been subject to Subtitle C in the first
instance (e.g., soil that was never
contaminated with hazardous waste.)
Under today's proposal, management
of non-hazardous contaminated media
would nevertheless be subject to control
and oversight from EPA or an
authorized State. As discussed in
section (V)(A)(4)(a), in order for
hazardous contaminated media to be
designated non-hazardous contaminated
media, the Director would need to
specify any appropriate management
controls in an approved RMP. Since the
intent of this rule is not to expand the
reach of RCRA Subtitle C requirements,
"never contaminated soil" would not be
subject to the requirements set forth in
this part for non-hazardous
contaminated media.
Inherent in this definition is the idea
that, even though these media would
not be regulated as hazardous wastes,
they might nevertheless be
"contaminated" enough to be of some
concern to the overseeing agency's site
cleanup decisions. In fact, most of the
media that are generated and managed
as part of cleanups would likely be
eligible to be considered non-hazardous,
according to the results of the
Regulatory Impact Analysis prepared for
this proposed rule.
Remediation Management Plan
(RMP). Today's rule proposes the
following definition for Remediation
Management Plan:
Remediation Management Plan means the
plan which describes specifically how
hazardous and non-hazardous contaminated
media will be managed in accordance with
this Part. Such a plan may also include, as
allowed under Subpart D of this Part,
requirements for other remediation wastes
and any other (non-Part 269) requirements
applicable to hazardous contaminated media.
The requirements of today's proposal
depend on a responsible overseeing
agency (EPA or an authorized State) to
approve and monitor compliance with
many site-specific decisions regarding,
the management of hazardous
contaminated media. The RMP would
provide the documentation of the plan
and relevant information to demonstrate
compliance with applicable
requirements. A unique aspect of the
RMP is that there could be several
different kinds of RMPs. Since
hazardous and non-hazardous
contaminated media would be managed
under any number of Federal and State
programs, the Agency believes that it
would be unnecessarily burdensome to
require a fixed form of documentation,
as long as the required information is
adequately included or described in the
documents already being used by the
programs that implement the remedial
activities. In other words, this rule
would allow any enforceable document
containing the information required to
be included in a RMP if it also goes
through at least the minimum public
participation requirements in proposed
§269.43.
Sediment. Today's proposal specifies
the following definition for sediments:
Sediment is the mixture of assorted
material that settles to the bottom of a water
body. It includes the shells and coverings of
mollusks and other animals, transported soil
particles from surface erosion, organic matter
from dead and rotting vegetation and
animals, sewage, industrial wastes, other
organic and inorganic materials, and
chemicals.
This definition is from EPA's Office of
Water's document from June 1993,
entitled "Selecting Cleanup Techniques
for Contaminated Sediments," EPA
823-B93-001, p. xiv, which is available
in the docket to today's proposal. For
further discussion of how the proposal
would affect management of
contaminated sediments, see sections
(V)(A)(4)(c) and (V)(H) of this preamble.
Soil. Today's proposal specifies the
following definition of soil, for the
purpose of implementing Part 269
regulations:
Soil means unconsolidated earth material
composing the superficial geologic strata
(material overlying bedrock), consisting of
clay, silt, sand, or gravel size particles (sizes
as classified by the U.S. Soil Conservation
Service), or a mixture of such materials with
liquids, sludges, or solids which is
inseparable by simple mechanical removal
processes, and is made up primarily of soil.
This definition was originally
proposed in the September 14,1993
Phase H LDR proposal (58 FR 48092,
48123). It would allow regulators to
distinguish between soils, debris, and
other remediation wastes by judging the
results of simple, in-situ mechanical
removal processes to separate the
materials. These processes would
include pumping, dredging, or
excavation by backhoe, or other devices.
This approach would eliminate
requirements for chemical analysis of
soil, to differentiate between waste, soil
and debris (e.g., considering such things
as soil particle size, elemental
composition of the soil, or other
properties that might distinguish soil
from other remediation wastes). The
Agency is not proposing that owner/
operators or the Director distinguish
more precisely than specified in today's
proposal between waste, soil, or
debris—through a chemical analysis or
other tests—since these approaches
would be difficult to develop, support,
and administer. Specifically, a basis for
chemical analysis or other tests has.not
been developed, and implementation of
this approach would most likely not be
beneficial. Instead it would simply
delay the progress of remedial actions.
The Agency specifically solicits
comments on this proposed definition
for soil, and this type of approach for
classifying mixtures of soil and other
materials.
4. Identification of Media Not Subject to
Regulation as Hazardous Waste—§ 269.4
Section 269.4 specifies that, as long as
media do not contain Bright Line
Constituents that are at or above Bright
Line concentrations, the Director may
determine if those media contain
hazardous wastes. If not, the Director
may determine that the media would
not be subject to most RCRA hazardous
waste management requirements.7 This
does not mean, however, that
management of those media would be
unrestricted. Instead, the rule would
require EPA or the State to impose
appropriate management requirements
in an approved RMP, using authorities
that do not depend on the presence of
hazardous wastes (i.e., general cleanup
authorities as provided in Federal or
State cleanup statutes).
The Agency is imposing this
condition on decisions that media no .
longer contain hazardous wastes,
because the proposed rule, as discussed
below, would allow those decisions to
be made where media may be more
highly contaminated than media the,
Agency has traditionally deemed to no
longer contain hazardous waste. If, for
some reason, a RMP were terminated
prior to completion of a remedy, those
'The exception is, in some cases, the requirement
to comply with the land disposal treatment
standards. (See discussion in (V){Q.)
-------
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules
18795
media would again become subject to
Subtitle C regulation. Understanding the
role of the Bright Line and the
contained-in principle is essential to
understanding how today's proposal
•would work. Both the contained-in
principle and the Bright Line are
explained below.
a. The contained-in principle in
today's proposed rule background. The
contained-in principle is the basis for
EPA's longstanding policy regarding the
application of RCRA Subtitle C
requirements to mixtures of
environmental media (e.g., soils, ground
water, sediments) and hazardous
wastes. This concept has been discussed
previously in several Agency directives
and in several RCRA ralemakings. (See,
e.g., 58 FR 48092,48127 (September 14,
1993)). In today's proposed rule the
Agency is expanding this concept as the
basis for allowing EPA or an authorized
State to exempt certain contaminated
media from the stringent, prevention-
oriented RCRA regulations for
hazardous waste management that
previously would have applied.
The contained-in concept was
originally developed to define the
regulatory status of environmental
media that are contaminated with
hazardous wastes. The mixture rule at
40 CFR 261.3(a)(2)(iv) states that "a
mixture of solid waste and one or more
[listed] hazardous wastes" constitutes a
listed waste itself (emphasis added).
Similarly, the derived-from rule at 40
CFR 261.3(c)(2)(i) provides that "a solid
waste generated from the treatment,
storage, or disposal of a hazardous
waste" is a hazardous waste (emphasis
added).
Since media are not soh'd wastes,
these rules do not apply to mixtures of
media and hazardous wastes. However,
two other regulations subject
contaminated media to Subtitle C
requirements. Under 40 CFR 261.3(c)(l)
a "Hazardous waste will remain a
hazardous waste" unless and until
certain specified events occur. Under 40
CFR 261.3(d)(2) a "waste which
contains" a listed waste remains a
hazardous waste until it is delisted.
Together these regulations provide for
continued regulation of hazardous
wastes even after they are released to
the environment and mingled with
media.
The U.S. Court of Appeals for the
District of Columbia Circuit upheld this
interpretation of §§261.3(c)(l) and
(d)(2) in Chemical Waste Management
Inc. v. EPA, 869 F.2d 1526,1538-40
(B.C. Cur. 1989), and EPA has explained
the policy and its regulatory basis in
numerous preambles and letters. (See 53
FR 31138, 31142, 31148 (Aug. 17,1988);
57 FR 21450, 21453 (May 20,1992)
(inadvertently citing 40 CFR 261(c)(2) in
lieu of § 261.3(d)(2)); memorandum
from Marcia E. Williams, Director, EPA
Office of Solid Waste, to Patrick Tobin,
EPA Region IV (Nov. 15,1986); letter
from Jonathan Z. Camion, EPA Acting
Assistant Administrator, Office of Solid
Waste and Emergency Response, to
Thomas Jorling, Commissioner, New
York Department of Environmental
Conservation (June 19,1989); and letter
from Sylvia K. Lowrance, Director, EPA
Office of Solid Waste, to John Ely,
Enforcement Director, Virginia
Department of Waste Management (Mar.
26,1991). Under the contained-in
policy, media contaminated with listed
hazardous wastes are not wastes
themselves, but they contain hazardous
wastes and must therefore be managed
as hazardous wastes until they no longer
contain the waste. This concept is based
on the idea that at some point (e.g., at
some concentration of hazardous
constituents) the media would no longer
contain the hazardous waste, or be
subject to RCRA Subtitle C regulations.
Because the regulations that serve as
the basis for the contained-in policy are
part of the "base" RCRA program that
was in effect prior to 1984, the Agency
has taken the position that EPA or the
State agency authorized to administer
the "base" RCRA regulations may
determine whether media contain listed
wastes. Decisions that media no longer
contain listed hazardous wastes (or
"contained-in" decisions) have typically
been made on a case-by-case basis,
according to the risks posed by the
contaminated media. The Agency has
not issued any definitive guidance or
regulations for determining appropriate
contained-in levels; however, EPA
Regions and States have been advised
that conservative, health-based levels
derived from direct exposure pathways
would clearly be acceptable a's
"contained-in" levels. (See
memorandum from Sylvia K. Lowrance
to Jeff Zelikson, Region IX, (January 24,
1989)). It has been the common practice
of EPA and many States to specify
conservative, risk-based levels
calculated with standard conservative
exposure assumptions (usually based on
unrestricted access), or site-specific risk
assessments.
With regard to mixtures of media and
characteristic wastes, EPA has often
stated that media are regulated under
RCRA Subtitle C if they exhibit a
hazardous waste characteristic. (See 57
FR 21450, 21453, (May 20,1992)). But,
since media generally are not wastes,
they become regulated when they have
been contaminated with solid or
hazardous wastes and the resultant
mixture exhibits a characteristic. EPA
has also taken the position that
contaminated media cease to be
regulated as hazardous waste when
sufficient quantities of hazardous
constituents are removed so that the
mixture ceases to exhibit a
characteristic8 (57 FR 21450, 21453,
May 20,1992).
The contained-in concept in today's
proposed rule. One of the primary
objectives of today's proposal is to
remove lower risk contaminated media
from Subtitle C jurisdiction so that more
appropriate, site-specific management
requirements can be specified by the
overseeing Agency. For the purpose of
this rulemaking EPA has chosen to use
the contained-in concept as the basis for
allowing these materials to be exempted
from Subtitle C requirements. In
formulating the proposal, the Agency
considered alternative concepts that
might be provided under the RCRA
statute that would produce the same or
similar exemption. Those concepts are
discussed in section (VI)(A)(2) of this
preamble.
Today's proposal would allow two
separate regulatory regimes to be
applied to the management of
contaminated media under EPA or
State-approved cleanups. For media
determined to contain hazardous
wastes, modified LDR treatment
standards would apply, as would other
applicable Subtitle C requirements. For
media determined not to contain
hazardous wastes, Subtitle C
requirements would generally not
apply, and the State or EPA would have
considerable discretion in applying
appropriate management standards.
The proposed rule would limit an
overseeing agency's discretion to make
site-specific decisions that media no
longer contain wastes by specifying
"Bright Line" concentration levels.
Media that are contaminated below
Bright Line concentrations would be
eligible for contained-in decisions by
the overseeing Agency. However, Bright
Line concentrations would not
constitute ah automatic exemption from
Subtitle C; rather, they would represent
the concentration below which the State
or EPA might determine that media do
not contain hazardous waste.
As described below, EPA believes it
would generally be acceptable to make
a decision that media do not contain
hazardous waste at the Bright Line
concentrations specified in today's
proposal. However, the proposed rule is
8 Recent developments under the RCRA. land
disposal restrictions (LDRs) may suggest a
qualification to this latter point. (See discussion of
LDRs in section (V)(C) of today's preamble.)
-------
1.B7O6
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules
designed to provide for site-specific
discretion in making such decisions.
Thus, it is possible that some States
might choose to specify—on a site-
specific basis, more broadly as a matter
of policy, or in regulations—contained-
in levels that are lower (i.e., more
stringent) than the Bright Line
concentrations specified in today's
proposal. Moreover, States can be more
stringent than the Federal program, and
adopt lower Bright Line concentrations.
In applying the contained-in concept,
today's proposed rule does not
distinguish between media that are
contaminated with listed hazardous
wastes, and media that exhibit a
hazardous waste characteristic. In both
cases, it is the concentration levels of
the individual hazardous constituents in
the media that determine how the media
will be regulated under Part 269. The
origin of the constituents (i.e., listed
wastes or characteristic hazardous
wastes) is irrelevant in comparing
measured levels in the media with
Bright Line concentrations and/or
contained-in concentrations.
EPA sees no reason to apply the
Bright Line concept differently to media
contaminated with listed hazardous
wastes and media that exhibit a
hazardous characteristic. In either case
the media could presumably be
contaminated with the same types of
hazardous constituents, at similar
concentrations, that would present
similar potential risks if mismanaged.
Thus, applying these rules differently,
depending on how the media came to be
regulated as hazardous, would be
unnecessary and artificial, and would
further complicate how these rules
would be implemented in the field.
EPA recognizes that today's rule
could have the effect of excluding from
Subtitle C regulation some media that
until now have been considered
hazardous—i.e., media that exhibit a
hazardous waste characteristic, with
constituent concentrations below the
Bright Line and EPA or the State makes
a determination that the media no
longer contain hazardous waste (often
based on protective management
controls). However, EPA believes that
there is no compelling environmental
rationale for not including such media
in Part 269 regulation. The risk
presented even by characteristic wastes
is dependent on site-specific
circumstances. Therefore, because
today's proposal would require the
Director to impose any management
controls on contaminated media that are
necessary to protect human health and
the environment, whether the media is
contaminated with listed or
characteristic waste is unimportant.
Under today's proposed rule,
contained-in decisions would be
documented in the site's approved
Remediation Management Plan (RMP).
If an approved RMP expires or is
terminated, the provisions of today's
proposal would no longer apply.
Therefore, all contaminated media that
are addressed in the RMP (i.e., media
that are contaminated both above and
below contained-in concentrations)
would again prospectively be subject to
the "base" Subtitle C regulations. For
example, if a cleanup of contaminated
soil was half completed when a RMP
was terminated or expired, the half that
was completed in compliance with the
RMP while it was in effect, would
continue to be considered to be in
compliance. For example, if
contaminated soil was determined not
to contain hazardous waste, and was
disposed of in a Subtitle D landfill
according to the requirements of the
RMP, that Subtitle D landfill would not
be considered retroactively to have
accepted hazardous wastes. The half of
the cleanup that was not completed
when the RMP was terminated or
expired, however, would have to be
completed prospectively in compliance
with the non-Part 269 Subtitle C
regulations.
Effect of contained-in decisions under
today's rule. Once the overseeing
Agency has made a decision that media
with constituents at certain
concentrations no longer contain
hazardous wastes (i.e., "a contained-in
decision"), the media would no longer
be regulated as hazardous wastes under
Federal RCRA regulations (§ 261.4(g)
and § 269.4(a)).9 The Agency requests
comments, however, on whether the
Agency should exempt the media
instead, only if it were managed in
compliance with the provisions of the
RMP. The Agency did not propose this
approach primarily because it could be
unduly harsh, since any violation, no
matter how minor, would result in a
reversion to Subtitle C. However, this '
approach could be incorporated into
RMPs on a case-by-case basis, where the
Director could specify in the RMP the
provision(s) who's violation would
result in a reversion to Subtitle C
regulation. (See discussion below).
A contained-in decision for wastes at
a cleanup site would not, however,
eliminate the Administrator's authority
to require the owner/operator (or other
9 The Agency notes, however, that by explicitly
providing in § 261.4 that decisions under Part 269
that media no longer contain hazardous waste are
not subject to most Subtitle C regulations, EPA
would not intend to affect in any way the authority
of EPA and authorized States to make contained-in
decisions outside of the HWIR-media context.
responsible parties at sites not regulated
by RCRA) to conduct remedial actions
for media that do not contain hazardous
wastes. Specifically, Federal cleanup
authorities under RCRA section 3004(u)
at TSDFs, section 7003, and CERCLA
authorities, authorize the Agency to
require cleanup of a broad spectrum1 of
hazardous constituents and/or
hazardous substances, however, the
presence of hazardous waste(s) in media
is not a requirement for exercising those
authorities. Many State cleanup
authorities have similar provisions.
Decision factors for contained-in
decisions. Because the Agency does not
want to constrain site-specific decision-
making, today's proposed rule would
not mandate specific factors for making
contained-in decisions, but would allow
the Director to base these decisions on
appropriate site-specific factors.
However, EPA requests comments on
whether decision factors should be
codified for making contained-in
decisions. EPA believes that the Bright
Line concentrations will generally be
acceptable for contained-in decisions;
however, decision factors could help
authorities determine, on a site-specific
basis, what types of management
controls (see discussion below), if any,
would make the Bright Line
concentrations appropriate
concentrations at which to make
contained-in decisions. Decision factors
could also aid in determining other
appropriate levels at which to make
contained-in decisions.
Given the multiplicity of different
types of sites, EPA requests comments
on what decision factors, if the Agency
decided to include them in the final
rule, would ensure consistent decision-
making, and yet keep the process
efficient and flexible. Although EPA
does not believe it would be appropriate
to do a risk assessment at every site,
particularly if the cleanup is of a
relatively simple nature, the Agency
does believe that the following factors
(adapted from the LDR proposal for
hazardous soils) contain the types of
information that may be appropriate
(depending on the specific
circumstances at a given site) to
consider in making contained-in
decisions:
—Media properties;
—Waste constituent properties
(including solubility, mobility,
toxicity, and interactive effects of
constituents present that may affect
these properties);
—Exposure potential (including
potential for direct human contact,
and potential for exposure of sensitive
environmental receptors, and the
-------
Federal Register / Vol. 61, No. 83 7 Monday, April 29, 1996 / Proposed Rules 18797
effect of any management controls
which could lessen this potential);
—Surface and subsurface properties
(including depth to groundwater, and
properties of subsurface formations);
—Climatic conditions;
—Whether the media pose an
unacceptable risk to human health •
and the environment; and
—Other site or waste-specific properties
or conditions that may affect whether
residual constituent concentrations
will pose a threat to human health
and the environment.
Most of these factors were proposed
in the LDR proposal for hazardous soil
(58 FR 48092, September 14,1993) as
decision factors that might be
considered by the Director in making
contained-in decisions. If the proposal
for hazardous soil had been finalized, it
would have codified the contained-in
principle for hazardous soil. Today's
suggested factors differ from those in the
hazardous soil proposal in one .
significant respect. The Agency has
determined that it may be appropriate,
when assessing "exposure potential," to
consider site-specific management
controls imposed by the Director that
limit potential exposures of human or
environmental receptors to media. The
Agency made this change because EPA
believes that States overseeing cleanups
might determine that media that would
have traditionally been considered to
contain hazardous waste (e.g., media
that contained listed wastes and posed
an unacceptable risk under traditional
exposure scenarios) no longer presented
a hazard (and thus did not contain
"hazardous" waste), based on site-
specific management controls imposed
by the Director.
This position is based upon EPA's
understanding that RCRA provides EPA
and the States the discretion to
determine that a waste need not be
defined as "hazardous" where
restrictions are placed on management
such that no improper management
could occur that might threaten human
health or the environment. (See
definition of hazardous waste at RCRA
section 1004(5)(B)). The HWIR-waste
proposal included a full discussion of
the legal basis for this position. For the
sake of clarity, it is repeated below (60 .
FR 66344-469, Dec. 21,1995).
EPA's original approach to
determining whether a waste should be
listed as hazardous focused on the
inherent chemical composition of the
waste, and assumed that
mismanagement would occur, causing
people or organisms to come into
contact \vith the waste's constituents.
(See 45 FR 33084, 33113, (May 19,
1980)). Based on more than a decade of
experience with, waste management,
EPA believes that it is inappropriate to
assume that worst-case mismanagement
will occur. Moreover, EPA does not
believe that worst-case assumptions are
compelled by statute.
In recent hazardous waste listing
decisions, EPA identified some likely
"mismanagement" scenarios that are
reasonable for almost all wastewaters or
non-wastewaters, and looked hard at
available data to determine if any of
these are unlikely for the specific wastes
being considered, or if other scenarios
are likely, given available information
about current waste management
practices. (See the Carbamates Listing
Determination (60 FR 7824, February 9,
1995) and the Dyes and Pigments
Proposed Listing Determination (59 FR
66072, December 22,1994)). Further
extending this logic, EPA believes that
when a mismanagement scenario is not
likely, or has been adequately, addressed
by other programs, the Agency need not
consider the risk from that scenario in
deciding whether to classify the waste
as hazardous.
EPA believes that the definition of
"hazardous waste" in RCRA section
1004(5) permits this approach to
hazardous waste classification. Section
1004(5)(B) defines as "hazardous" any
waste that may present a substantial
present or potential hazard to human
health or the environment "when
improperly * * * managed." EPA reads
this provision to allow it to determine
the circumstances under which a waste
may present a hazard and to regulate the
waste only when those conditions
occur. Support for this reading can be
found by contrasting section 1004(5) (B) '•
with section 1004(5)(A), which defines
certain inherently dangerous wastes as
"hazardous" no matter how they are
managed. The legislative history of
Subtitle C of RCRA also appears to
support this interpretation, stating that
"the basic thrust of this hazardous waste
title is to identify what wastes are
hazardous in what quantities, qualities,
and concentrations, and the methods of
disposal which may make such wastes
hazardous." H. Rep. No. 94-1491, 94th
Cong., 2d Sess.6 (1976), reprinted in, "A
Legislative History of the Solid Waste -
Disposal Act, as Amended,"
Congressional Research Service, Vol.1,
567 (1991) (emphasis added).
EPA also believes that section 3001
gives it flexibility in order to consider
the need to regulate as hazardous those
wastes that are not managed in an
unsafe manner (section 3001 requires
that EPA decide, in determining
whether to list or otherwise identify a
waste as hazardous waste, whether a
waste "should" be subject to the
requirements of Subtitle C). EPA's
existing regulatory standards for listing
hazardous wastes reflect that flexibility
by allowing specific consideration of a
waste's potential for mismanagement.
(See § 261.11(a)(3) (incorporating the
language of RCRA section 1004(5)(B))
and § 261.11(c)(3)(vii) (requiring EPA to
consider plausible types of
mismanagement)). Where
mismanagement of a waste is
implausible, the listing regulations do
not require EPA to classify a waste as
hazardous, based on that
mismanagement scenario.
Two decisions by the U.S. Court of
Appeals for.the District of Columbia
Circuit provide potential support for the
approach to defining hazardous waste,
in Edison Electric Institute v. EPA, 2
F.3d 438, (D.C. Cir. 1993) the Court
remanded EPA's RCRA Toxicity
Characteristic ("TC") as applied to
certain mineral processing wastes
because the TC was based on modeling
of disposal in a municipal solid waste
landfill, yet EPA provided no evidence
that such wastes were ever placed in
municipal landfills or similar units.
This suggests that the Court might
approve a decision to exempt a waste
from Subtitle C regulation if EPA were
to find that mismanagement was
unlikely to occur. In the same decision
the Court upheld a temporary
exemption from Subtitle C for
petroleum-contaminated media because
such materials are also subject to
Underground Storage Tanks regulations
under RCRA Subtitle I. The court
considered the fact that the Subtitle I
standards could prevent threats to
human health and the environment to
be an important factor supporting the
exemption. Id. At 466. In NRDCv. EPA,
25 F.3d 1063 (D.C. Cir. 1994) the Court
upheld EPA's finding that alternative
management standards for used oil
promulgated under section 3014 of
RCRA reduced the risks of
mismanagement and eliminated the
need to list used oil destined for
recycling. (The Court, however, did not
consider arguments that taking
management standards into account
violated the statute because petitioners.
failed to raise that issue during the
comment period.)
The Agency believes, therefore, that
EPA and the States may consider site-
specific management controls when
making contained-in decisions pursuant
to proposed Part 269. EPA believes that
this approach is especially appropriate •
in the Part 269 context, because of the
significant level of oversight generally
given to cleanup actions. Management
controls that are tailored to site-specific
-------
18798
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules
circumstances and imposed in
enforceable documents, and State or
EPA oversight of cleanup activities,
would ensure that the site-specific
management controls that the Director
relied upon in making each contained-
in decision would continue to be
implemented. In addition'(although
EPA is not proposing to require it as a
federal matter), States may want to
consider making such contained-in
decisions conditional; i.e., media would
only be considered nonhazardous so
long as they were managed in the
manner considered by the Director in
making the contained-in decision.
Deviations (any, or specific ones) would
result in a reversion to Subtitle C
regulation.
EPA specifically requests comments
on the following: (1) Should the Agency
specify a list of criteria to consider; (2)
should the Agency prepare decision
factors as guidance; (3) should the
Agency promulgate decision factors as
part of the final rule; (4) are the above
decision factors appropriate for making
these decisions; (5) if so, should the
criteria listed above be more or less
specific regarding the conditions that
would allow or preclude,contained-in
decisions; (6) are there other factors the
Director should consider when making
contained-in decisions, in addition to .
those listed above; and (7) should there
be fewer factors to consider?
b. Issues associated with hazardous
debris. When EPA promulgated land
disposal treatment standards for
hazardous debris, it also codified the
contained-in principle for debris
contaminated with listed hazardous
waste. (See 57 FR 37194, 37221, (August
18,1992)). At the time EPA codified the
contained-in principle for hazardous
debris, it was the Agency's practice to
make contained-in decisions at "health-
based,"10 levels, thus a decision that
debris no longer contain hazardous
waste would clearly also constitute a
"minimize threat" determination for
purposes of RCRA section 3004(m).
Therefore, contained-in decisions under
40 CFR 260.3(f)(3) also eliminate the
duty to comply with the land disposal
restriction requirements of'40 CFR Part
268. EPA requests comments on
whether the contained-in principle
codified for hazardous debris is
adequate or whether the contained-in
policy should be applied to debris in the
same way today's proposed rule applies
it to hazardous contaminated media. For
example, should contained-in decisions
for debris incorporate the Bright Line
concept? If a Bright Line is established
lb See memoranda discussed in section
(V)(A)(4)(a) of today's preamble.
for debris, should it be the same as the
Bright Line in today's proposed rule for
hazardous contaminated media or
would some other Bright Line values or
methodology be more appropriate for
debris? Are there issues associated with
requiring that debris be tested to
determine if it has constituent
concentrations greater than Bright Line
concentrations? Is testing routinely too
complicated for debris matrices? Should
contained-in decisions for debris be ' •
based on determinations made for
media co-located with the debris (i.e., if
debris were located in the same area as
media that was determined not to
contain hazardous wastes, should the
debris be presumed not to contain
hazardous wastes)? Similarly, if debris
is located in the same area as media that
have constituent concentrations less
than Bright Line concentrations, should
the debris be presumed to also be below
the Bright Line? '
Alternatively, should the Director be
able to make contained-in decisions, as
they are described in today's proposed
rule, without application of the Bright
Line to debris (as we are proposing for
sediment? (See preamble,(V)(A)(4)(c)). If
allowed, should these contained-in
decisions replace the existing
contained-in decisions available for
debris or should the existing contained-
in decisions be maintained with non-
Bright Line contained-in decisions (as
discussed in today's proposed rules
addressing sediments—see preamble
(V)(A)(4)(c)) available for debris
managed under a RMP? Are other
combinations of the existing debris
contained-in decision provisions and
the contained-in decision provision for
media in today's proposed rule
appropriate?
While today's proposed rule does not
include changes to the existing
contained-in principle as applied to
debris contaminated with listed
hazardous waste, EPA could include
revisions to the standard in response to
public comment. Issues associated with
hazardous debris and the possibility of
including debris in the final Part 269
rules are also discussed in sections
(V)(C)(10) and (V)(A)(2) of today's
preamble.
c. The Bright Line. One of the key
features of the "Harmonized Approach"
developed through the FACA process
was the concept of a "Bright Line." The
Bright Line would divide contaminated
media into two different categories,
which would be subject to two different
regulatory regimes. Although ,
straightforward in concept, the Agency
has found it challenging to establish a
set of numbers to serve this purpose.
As conceived by the FACA
Committee, and presented in Appendix
A to today's proposal, the Bright Line is
a set of constituent-specific, risk-based
concentration levels. In agreeing on a
Bright Line approach, the FACA
Committee anticipated that a substantial
proportion of contaminated media
would fall below the Bright Line, and
thus be eligible, at the Director's
discretion, for flexible, site-specific
requirements (non-Subtitle C) set by the
overseeing Agency. At the same time,
the FACA Committee agreed that the
Bright Line should ensure that very
highly contaminated media
(traditionally considered "hot spots") be
subject to uniform national protective
standards (e.g., treatment). EPA believes
that the Bright Line values presented in
today's proposal are a reasonable
attempt to balance both of these
important objectives.
As originally conceived, the Bright
Line was intended to represent in some
manner the relative risk posed by
contaminated media. Simply put, media
contaminated above Bright Line
concentrations should pose higher risks
than media below the Bright Line under
a given exposure scenario. Since the
Bright Line is only an indicator of
relative risk, the levels should not be
interpreted as representing what is
protective or "clean." The actual risk of
any particular contaminated medium
depends on the circumstances by which
human or environmental receptors may
be exposed to the medium. EPA wishes
to emphasize that Bright Line
concentrations are not cleanup levels.
The Bright Line simply is a means of
identifying which regulatory regime
may be appropriate for the
contaminated media at a cleanup site.
The Agency believes that the
management of contaminated media
would be conducted in a protective
manner under either of the regulatory
schemes that would be established by
the rule. The underlying assumption is
that managing contaminated media
under the HWIR-media rule would
eliminate significant exposures to
humans or ecological receptors. This is
because the overseeing agency's
presence ensures that media will be
managed in a way that directly
addresses the risk posed by site-specific
circumstances. Thus, protection of
human health and the environment can
be ensured by applying either the
national standards for media that
contain hazardous waste, or the site-
specific standards specified by the
overseeing agency for media, which the
overseeing agency has determined do
not contain hazardous waste, based on
the proposed management standards
-------
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules 18799
identified in the RMP. Thus, in
establishing Bright Line concentrations,
EPA finds it reasonable to consider the
potential effect of different sets of Bright
Line concentrations in terms of the
proportional volumes of media that
would fall above and below the Bright
Line. EPA believes that unless a
substantial amount of contaminated
media are eligible for site-specific
decision-making, the disincentives for
clean-up will not be eliminated
(therefore resulting in greater overall
risk to human health and the
environment).
Thus, EPA's goal was to develop
Bright Line concentrations that would
remove a significant amount of
contaminated media from Subtitle C
jurisdiction, while ensuring that "hot
spots" would remain subject to
mandatory national standards. In
deciding now to determine such levels,
the Agency considered several
approaches that included selecting
concentrations based solely on volume.
This approach, however, was rejected
because there was no way to account for
the relative degree of risk posed by
different constituents. In other words,
because some constituents are more
hazardous than others at the same
concentration, a Bright Line based
purely on volume would not account for
this difference.
EPA, therefore, wanted to set Bright
Line concentrations for different
constituents at different levels in order
to account for this variance in relative
risk. In order to do this, EPA needed to
consider a potential exposure scenario
that would account for the difference in
relative risk of these different
constituents. Because risk occurs only
when there is a chance of exposure, at
least one set of exposure assumptions
would be necessary to establish the
Bright Line.
Since one of the goals of the Bright
Line was to identify the most highly
contaminated media, the FACA
Committee recommended using 10-3 as
a benchmark for setting the Bright Line.
Therefore, the Bright Line values in
Appendix A were based on a 10-3 risk .
level for carcinogenic constituents
(using the assumptions described
above), and a health index of 10 for non-
carcinogens, (that is, 10 x the
concentration at which adverse health
effects occur) according to certain
exposure assumptions. This approach is
consistent with the Superfund Principle
Threats concept which uses 10-3 as a
factor to identify the principle threats at
Superfund sites.
Describing the Bright Line theory was
relatively easy compared with
determining Bright Line concentrations
for all media which would be subject to
today's Part 269 proposal. Today's rule
proposes to define soil, ground water,
surface water, and sediments as media.
However, the potential exposure
assumptions that could be used to
determine Bright Line concentrations
vary for different types of media.
Therefore, EPA established two sets of
Bright Line values, one for soils, and
one for ground water and surface water.
Today's proposed rule does not
include Bright Line numbers for
contaminated sediments. The amount of
sediment that is classified as RCRA
hazardous is very low. Thus, EPA
proposes that site-specific contained-in
decisions be made for hazardous
contaminated sediments. The Agency
requests comments on whether to
develop a Bright Line specifically for
contaminated sediments. The Agency
also requests comments on whether it
would be appropriate to use the Bright
Line for soil for sediments.
Bright Line concentrations for soils. In
setting the Bright Line for soils, EPA
chose to use exposure scenarios and
assumptions that were developed for the
Superfund Soil Screening Levels (SSLs),
because that effort used standard risk
scenarios that have been widely used
and accepted by the Agency (and by
many States). The SSLs were developed
for a purpose different from the Bright
Line;'' however, the exposure scenarios
used in that effort are good indicators of
relative risk for developing Bright Line
values.
The SSLs are based on three human
exposure scenarios; direct contact
ingestion, inhalation, and drinking
contaminated ground water. Each
scenario is based on a specific set of
assumptions for such things as body
weight, frequency of exposure, daily
intake rates, and other factors. The ,
inhalation pathway also uses certain
models to calculate wind dispersion and
the uptake of airborne contaminants by
human receptors.
Today's proposed Bright Line
numbers for soils are based on only two
of those human exposure scenarios—
direct contact ingestion and inhalation.
The Bright Line value for each
constituent is based on whichever
pathway yields the more conservative
(i.e., lower) concentration. EPA
recognizes that protection of ground
water is one of RCRA's major goals and
"Superfund Soil Screening Levels (SSLs) were
developed as a screening tool to determine when
further investigation is necessary at Superfund
sites. Because the SSLs are intended to be
conservative, and trigger investigation whenever
prudent, they are set at a 10"6 level for carcinogens.
For more information on SSLs, call David Cooper
(703) 603-8763.
that many of the Subtitle C design and
operating standards were developed to
protect ground water resources.
Therefore, EPA considered the
possibility of using the ground water
exposure pathway in setting Bright Line
concentrations for soils. However, the
migration of contaminants from soils to
ground water is fundamentally site-
specific, and influenced by a number of
site-specific factors such as depth to
ground water; soil porosity; carbon
content and other soil characteristics;
amount of rainfall; solubility of the
contaminants; and numerous other site-
and constituent-specific conditions. The
Agency has found less variability in fate
and transport potential for inhalation
and ingestion exposures in residential
settings.
EPA is reluctant to use a greatly
simplified ground water model that
would not take any site-specific or
constituent-specific factors into account.
In order to address concerns posed to
ground water on a more appropriate
site-specific basis, EPA prefers to allow
for consideration of ground water risks
in making site-specific decisions
regarding either the contained-in
decision and/or the site-specific
management requirements. Given the
overseeing Agency's discretion to
determine these standards on a site-
specific basis, and given that EPA
believes that site-specific decisions are
most appropriate for ground water risk
decisions, the Agency has proposed that
the ground water exposure pathway
should not be considered in setting the
national Bright Line values for soils.
Finally, EPA proposes two
considerations to overlay the soil Bright
Line numbers. EPA proposes to cap the
Bright Line values at 10,000 ppm,
equivalent to 1% of the volume of the
contaminated media. EPA believes that.
it is reasonable to classify media as
highly contaminated if 1% of the
volume of media is contaminated with
a particular constituent. Therefore
capping the Bright Line at 10,000 ppm
is consistent with the intention that the
Bright Line distinguish between highly
contaminated and less contaminated
media. The second cap on the soil
Bright Line values is the saturation limit
(Csat). EPA believes it is sound science
to compare the concentrations
developed through the inhalation and
ingestion risk scenarios to the actual
concentration that could physically
saturate the soil. If the Csat was lower
than the concentrations from the
inhalation'or ingestion scenarios, EPA
set the Bright Line concentration at the
Csat. For further details on specific
assumptions and methodologies used to
-------
18800
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules
determine the Bright Line values for
soils, see Appendix A-l.
The Agency also considered several
alternatives for establishing exposure
assumptions for soil Bright Line
numbers. These alternatives are
discussed below. Estimates of the
impacts of each alternative (in terms of
volumes of media exempted) are all
based on a 10 ~3 risk for carcinogens,
and a health index of 10 for non-
carcinogens (that is lOx the
concentration at which adverse health
effects occur).
Alternative #1—Bright Line for soils
based on inhalation, ingestion, and
migration to ground water. In addition
to inhalation and ingestion pathways,
this alternative would use a generic
model to derive soil levels that, given
certain fate and transport assumptions,
would result in transfer of contaminants
in the soils to ground water at or below
drinking water standards (i.e.,
maximum concentration levels, or
MCL's). EPA did not choose this
alternative primarily because of the site-
specific variability of calculating ground
water exposure scenarios (as discussed
above). In addition, this approach
would result in Bright Line numbers
that were considerably lower than those
in the proposed option. The Agency
estimated that under this alternative,
approximately 50 percent of
contaminated media would fall below
the Bright Line, compared to 70 to 75
percent under the proposed option.
Alternative #2—Bright Line for soils
based on inhalation and ingestion
pathways, with concentrations
calculated on a site-specific basis for the
soil-to-ground water pathway. This
option would yield Bright Line numbers
that would approximate more closely
ground water risks for each site.
However, it would have the
disadvantage of requiring considerable
data gathering and analysis simply to
calculate Bright Line concentrations,
and these concentrations would
obviously differ from site to site. This
contradicts the idea of the Bright Line
as "bright"—i.e., an easily referenced
set of numbers that can be applied in a
standard fashion. However, since Bright
Line numbers would vary widely across
the range of cleanup sites, volume
estimates for this alternative are not
possible to calculate.
Alternative #3—Bright Line numbers
for soils based on a multipathway
analysis. Under this alternative,
numerous exposure pathways would be
considered for each constituent, and
Bright Line concentrations would be set
for the most conservative pathway (i.e.,
the pathway that resulted in the lowest
concentration level). In some respects
this approach would be consistent with
the multipathway approach being used
in the HWIR proposed rule for as-
generated wastes (60 FR 66344-469,
Dec. 21,1995). However, the Bright Line
is intended for a very different purpose
than the "exit levels" being developed
for that proposed rule. For instance, the
exit levels in the HWIR-Waste rule
(discussed in section (II)(B) of this
preamble) generally assume that exited
wastes will not be subject to any
management requirements, whereas this
proposal assumes that these wastes will
be managed protectively under State/
EPA oversight. In addition, the resulting
Bright Line values would be much
lower than those proposed today, thus
much less media would be regulated
"below the line."
Bright Line concentrations for ground
water and surface water. Today's
proposed rule also establishes Bright
Line values specifically for
contaminated ground water. (See
Appendix A-2 and discussion below).
As with contaminated soils, highly-
concentrated, contaminated ground
water would be subject to specific
national management standards, while
less-contaminated ground water could
be managed according to site-specific
requirements imposed by the State or
EPA.
To set Bright Line concentrations for
ground water and surface water
(Appendix A-2), EPA used standard
exposure assumptions for human
ingestion of contaminated water. EPA
believes that it is appropriate to use the
same Bright Line values for surface
water and ground water. And for the
same reasons discussed above for soils,
the Agency believes a multi-pathway
approach, or "actual risk" approach is
not necessary for setting Bright Line
concentrations for ground water and
surface water.
EPA has used the same philosophical
approach for the ground water/surface
water Bright Line as it has used for soils,
by analyzing relative risk and relying on
the oversight of authorized States or
EPA to ensure that hazards are
addressed on a site-specific basis. In
addition, EPA used a 10,000 ppm cap
for the ground water/surface water
Bright Line, just as for the soil Bright
Line. This is explained in the soil Bright
Line section of the preamble. Finally, if
the concentrations from the ingestion of
contaminated water were below the
detection limits for that constituent in
water (the EQC), EPA set the Bright Line
at the EQC. More details on the specific
assumptions and methodologies used to
determine these concentrations are
included in Appendix A—2.
Issues common to both sets of Bright
Line numbers. In developing today's
proposed Bright Line concentrations,
some stakeholders said that EPA would
need to calculate a number of additional
direct and indirect pathways to evaluate
the relative risks of contaminated media
completely. The stakeholders also said
that the Agency would need to predict
risks to ecological receptors (i.e., plants
and animals) as well as human health
risks. EPA, however, does not believe
that evaluation of additional pathways
is necessary. The pathways selected
already provide a sufficient basis for
distinguishing relatively lower-risk
contaminated media from relatively
higher-risk media. The evaluation of
other pathways and receptors would be
important and, in some cases, necessary
if the Bright Line represented "safe"
levels of contamination. As explained
above, however, the Bright Line serves
no such purpose. It merely identifies
which of two regulatory schemes would
apply to certain contaminated media. If
site-specific factors demonstrate that a
decision that media no longer contain
hazardous wastes, would be
inappropriate, then the overseeing
agency has the discretion not to make
such a determination.
Some stakeholders have voiced
concerns about the land use
assumptions that were used to set the
Bright Line. The SSLs used residential
land use assumptions; therefore,
residential land use assumptions form
the basis for the proposed Bright Line
for soils. EPA recognizes that the
residential land use assumptions that
underlie the ingestion and inhalation
exposure pathways used for today's
Bright Line values for soil may be
inappropriate for managing risks at
many sites that would be subject to
these HWIR-media regulations.
However, since the purpose of using
risk assessment to develop the Bright
Line is to differentiate between the
relative risks of constituents, and not to
establish the risks posed at specific
sites, either residential or industrial
assumptions would have been equally
appropriate. Since the Agency's
residential risk assessment methodology
is more developed than the industrial
methodology, the Agency chose to use
residential assumptions for developing
the Bright Line. The Bright Line for
ground water and surface water does not
include assumptions about land use.
(See discussion above).
Request for comment. EPA solicits
comments on the approaches used to
develop today's proposed Bright Lines.
The Agency also requests comment on
the alternatives described above, as well
-------
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules 13801
as any other possible approaches to
developing the Bright Line.
In addition, EPA requests comments
on whether it is necessary to have a
Bright Line at all. If there were no Bright
Line, all media would he eligible for
contained-in decisions by the
overseeing agency on a site-specific
basis. Alternatively, the "unitary
approach," discussed in section VI of
this preamble, xvould eliminate the
Bright Line, and instead would exempt
all cleanup wastes managed under a
RMP from Subtitle C requirements.
Technical methodology. As discussed
above, the technical methodologies used
in calculating Bright Line
concentrations for soil ingestion and
inhalation are those that were used to
develop "soil screening levels" for
contaminated sites (59 FR 67706,
December 30,1994). In the proposed
soil screening level guidance, values for
the soil-to-ground water pathway would
generally be calculated with data
derived from site-specific factors and
conditions, although generic values for
this pathway would be presented in
situations where site-specific data were
unavailable. These technical methods
and formulae are available for review in
the docket for this rulemaking, and in
the docket for the soil screening level
proposal since they support both rules.
EPA requests comments on the
methods, formulae, and technical
underpinnings used for this rulemaking.
Comments could include information
on particular constituents that could
change proposed Bright Line
concentrations, information that may be
used to determine Bright Line numbers
for constituents that currently do not
have Bright Line numbers. Commenters
should keep in mind that the Agency's
objective is to provide regulatory relief
by encouraging contaminated media
with a lower degree of risk to exit from
Subtitle C regulation—provided that
adequate safeguards exist to protect
human health and the environment.
EPA has often found it necessary to
propose sets of risk-based numbers to
address contaminated media, for
example; Subpart S action levels, (55 FR
30798, July 27,1990), Superfund Soil
Screening Levels (see below), and
today's proposed rule. Since the
Agency's understanding of risk
assessment and the science surrounding
risk based numbers is constantly
developing, EPA has realized that
almost as soon as risk-based numbers
are published, they can become
outdated. As a very current example,
today EPA is proposing Bright Line
concentrations based, in part, on the
Superfund Soil Screening Levels (EPA/
9355.4-14FS, EPA/540/R-94/101 PB95-
963529 (December 1994)). After today's
proposed Bright Line concentrations
were calculated, but before this proposal
was published, some of the technical
inputs used to calculate the Superfund
Soil Screening levels were adjusted in
response to public comments (e.g.,
volatilization factors, cancer slope
factors, etc.). EPA did not have time to
recalculate the Bright Line
concentration before publishing them.
In response to this problem, EPA
requests comment on alternatives to
keep the Bright Line concentrations up-
to-date with the most current Agency ,
risk information and policies (e.g.,
adjustments to the Soil Screening
levels,12 changes in reference doses or
cancer slope factors in the IRIS or
HEAST databases). For purposes of
comment on this proposal, EPA will
update the Bright Line calculations and
place them in the docket for this rule.
EPA believes it might be appropriate,
instead of promulgating actual Bright
Line concentrations in the final rule, to
promulgate the methodology that could
be used to develop constituent-specific
concentrations, in Appendix A to this
rule, and to provide guidance on
appropriate sources for needed
underlying risk-based information. EPA
believes it might then be appropriate for
States to update their lists of Bright Line
concentrations on a regular basis, such
as every six months, to remain current
with developments in risk information.
As an alternative, EPA believes it may
be appropriate for States and/or EPA to
calculate new Bright Line
concentrations for each new RMP at the
time it is proposed for public comment.
In any case, the Bright Line
concentrations being used under a RMP
must be stated in the RMP, and
available during public comment on the
RMP. The Agency requests comment on
these alternatives, and any other
suggestions for keeping Bright Line
concentrations up-to-date.
The Agency also recognizes the
problems of trying to comply with a
"moving target." A cleanup could be
completed or underway using a certain
set of Bright Line concentrations that
could then change. EPA believes it
might be appropriate to protect those
past and on-going cleanup operations
from the requirement to change course
mid-way, or to revisit completed . ;
remediation waste management under a
RMP which used outdated Bright Line
concentrations. In the Superfund
program, requirements that are revised
12The Soil Screening Guidance has addressed
this problem by publishing the methodology as the
guidance itself, and only providing the actual
concentrations as examples in the appendix to the
guidance.
or newly promulgated after the ROD is
signed must be attained only when EPA
determines that these requirements are
ARARs and that they must be met to
ensure that the remedy is protective (40
CFR 300.430(f)(l)(ii)(J)). Another
alternative could be a shield such as is
provided for RCRA permits in 40 CFR
270.4, which could specify that
compliance with a RMP would equal
compliance with RCRA. EPA requests
comments on this protection issue, and
how best to achieve it.
Relationship of the HWIR-media
Bright Line to the HWIR-waste exit
levels. As described earlier in this
preamble (in section (IV)(C)) the
objectives for the HWIR-waste exit
levels and the HWIR-media Bright Line
are different. The HWIR-waste exit
levels are intended to identify levels of
hazardous constituents that would pose
no significant threat to human health or
the environment regardless of how the
waste was managed after it exited
Subtitle C jurisdiction. The HWIR-
media Bright Line levels are simply
intended to distinguish between (1)
contaminated media that are eligible to
exit Subtitle C because it is likely that
they can be managed safely under
cleanup authorities outside of Subtitle
C, and (2) media that contain so much
contamination that Subtitle C
management is warranted. Because of
these different objectives, EPA :
developed the two proposals using
different methodologies. For the soil
Bright Line, HWIR-media used a
calculation based on ingestion and
inhalation of soil at 10 ~3 cancer risk,
and a hazard index of 10 for non-
carcinogens. For the non-wastewater
HWIR-waste exit level (which is most
readily comparable to the soil Bright
Line), EPA used an analysis that
evaluates exposures from multiple
pathways to identify those pathways
that may result in a 10 ~6 cancer risk
and hazard index of 1 for non-
carcinogens. EPA then selected the most
limiting pathway, (most conservative),
as the exit criteria. EPA believed that
the HWIR-waste levels would be more
conservative than the HWIR-media
concentrations. However, upon a recent
comparison of the two sets of numbers,
some HWIR-waste exit levels are at .
higher concentrations (less
conservative) than the HWIR-media ,
Bright Line concentrations. In the
comparison of those concentrations,
EPA determined that for about 27% of
the HWIR-media Bright Line
concentrations of chemical constituents
for soil, the HWIR-waste exit levels for
non-wastewater were higher.
A similar result was found when EPA
compared the HWIR-media
-------
18802
Federal Register /Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules
groundwater/surface water Bright Line
concentrations to the HWIR-waste
wastewater exit levels. In that case, EPA
used direct ingestion of groundwater
resulting in a cancer risk of 10 ~3 and
hazard index of 10 for non-carcinogens
to calculate the HWIR-media Bright
Line. For the HWIR-waste wastewater
exit level, EPA again analyzed multiple
pathways to identify those that would
result in a cancer risk of 10 ~6 and a
hazard index of 1 for non-carcinogens
and then selected the most limiting
pathway as the exit criteria. For
approximately 20% of the HWIR-media
Bright Line concentrations for
groundwater/surface water the HWIR-
waste, concentrations for wastewater
were higher.
One of the practical concerns that
arises from.this difference in
concentrations is this: if contaminated
media is below the HWIR-waste exit
levels, then that media is eligible for
exit under that rulemaking just like any
other hazardous waste. Therefore, if the
HWIR-media rule specified that media
at concentrations below the HWIR-waste
exit levels were still "above the Bright
Line" and not eligible for a contained-
in determination, the two rules would
be inconsistent. EPA recognizes that this
inconsistency must be addressed before
' promulgation of these two final rules,
and requests comments on how to
resolve this issue. A preliminary
description of the primary differences in
the methodologies follows.
One of the most significant
differences between the HWIR-waste
and the HWIR-media methodologies is
that the HWIR-waste methodology was
designed to calculate an acceptable
concentration at which as-generated
waste and treatment residuals could exit
the Subtitle C system. A part of that
methodology assumed that exited
wastes might be managed in such a way
as to contaminate soils and
groundwater, and calculated the.
potential risk to receptors from the
contaminated soil or groundwater.
Therefore, the HWIR-waste analysis
models fate and transport between the
original waste and the contaminated
media, assuming some loss of
concentration due to many factors, such
as: partitioning of constituents to air,
soil, and water; losses of contaminant
mass through biodegradation;
bioaccumulation through the food
chain; and volatilization, hydrolysis,
and dispersion of contaminants during
transport. The HWIR-media
methodology begins at the point where
soils and groundwater are already
contaminated. Therefore,- the HWIR-
media Bright Line did not incorporate
fate and transport considerations to
calculate the Bright Line concentrations,
but assumed the receptor was in direct
contact with the contaminated media.
Specific comparison of soil Bright
Line to non-wastewater exit levels. If
contaminated soil were managed under
the HWIR-waste proposal, the soil
would be subject to the exit criteria for
non-wastewaters. That is why EPA
compared the soil Bright Line to the
non-wastewaters exit level. For this
analysis, the HWIR-media Bright Line
for soil based on ingestion or inhalation
was compared with the exit criterion for
non-wastewater identified as the most
limiting pathway (e.g., soil ingestion,
fish ingestion) in the HWIR-waste
proposal. Thus, the analysis was not
necessarily a comparison of exit.criteria
and Bright Lines for similar exposure
pathways.
The analysis indicated that for 27 of
the HWIR-media Bright Line constituent
concentrations for soil, the proposed
Bright Line concentration was lower
than the exit criterion for HWIR-wastes
for non-wastewater. Of these
constituents, six of the lower proposed
Bright Line concentrations are lower
because the HWIR-media number was •
intentionally "capped" at 10,000 parts
per million. EPA decided to propose a
10,000 ppm cap, equivalent to 1% of the
volume of the contaminated media, (as
discussed above) because EPA believes
that it is reasonable to classify media as
highly contaminated if 1% of the
volume of media is contaminated with
a particular constituent. Therefore
capping the Bright Line at 10,000 ppm
ia consistent with the intention that the
Bright Line distinguish between highly
contaminated and less contaminated
media. The HWIR-waste proposal did
not propose to cap the exit levels
because it was not intended to
differentiate wastes based on higher vs.
lower concentration, but instead to
differentiate based on risk factors.
For 12 of the 27 constituents, HWIR-
media Bright Lines are established at
soil saturation limits (Csat) that are less
than the corresponding HWIR-waste exit
level. EPA believes it is sound science
for a rule establishing soil
concentrations to compare the
concentrations developed through the
inhalation and ingestion risk scenarios
to the actual concentration that could
physically saturate the soil. If the Csat
was lower than the concentrations from
the inhalation or ingestion scenarios,
EPA set the Bright Line concentration at
the Csat. The HWIR-waste proposal
(since it is proposed for as generated
wastes, not soils) did not propose to cap
the exit levels at the soil saturation .
limit.
For the other nine of the 27
constituents, differences in the results
can be attributed to several factors
related to the underlying assumptions of
the methodologies used to calculate the
criteria.13 These include the fate and
transport differences discussed above,
and:
—Receptors. Although many of the
exposure assumptions (e.g., exposure
duration, exposure frequency,
ingestion rate) are common to the
analyses, there are still significant
differences in the location of the
receptors that will affect the exit
criteria. The HWIR-media Bright
Lines are based on an exposure
scenario in which a resident lives
directly on the contaminated media
and ingests contaminated soil or
inhales particulate and volatile
emissions. The HWIR-waste exit
levels consider several exposure
scenarios; however, none are directly
comparable to the HWIR-media
exposure scenario. These exposure
scenarios include an off-site resident,
an adult off-site resident, a child off-
site resident, an adult and child on-
site 10 years after site closure, and an
on-site worker.
—Sources. The HWIR-media Bright.
Lines for soil ingestion and inhalation
exposure pathways are based solely
on contaminated soils and assume
that the soil is an infinite source. The
HWIR-waste non-groundwater non-
wastewater exposure pathways
consider three sources: land
application units, waste piles, and ash
monofills. Waste piles and ash
monofills are assumed to be infinite
sources; however, the land
application units are assumed to be
finite sources. This assumption may
result in higher (less conservative)
exit criteria under HWIR-waste.
A comparison of the toxicity
benchmarks indicates that the HWIR-
media Bright Lines and the HWIR-waste
exit levels generally start with the same
toxicity benchmark (all but three
chemicals for oral ingestion and all but
four chemicals for inhalation use the
same toxicity benchmarks). Thus, the
apparent discrepancies in the criteria
can be attributed to the significant
differences in the fate and transport
modeling of the chemicals in the HWIR-
process waste analysis, the receptors
evaluated, and assumptions related to
the sources (as described above).
13 If the HWIR-media proposed Bright Line
concentrations were updated to reflect the updated
Soil Screening levels, as discussed above, two of
these nine remaining constituents would have
higher HWIR-media Bright Line concentrations than
HWIR-waste exit levels.
-------
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules
18803
Specific comparison of Groundwater/
Surface Water Bright Line to wastewater
exit levels. If contaminated groundwater
were managed under the HWIR-waste
proposal, the groundwater would be
subject to the exit criteria for
wastewaters. That is why EPA
compared the groundwater/surface
water Bright Line to the wastewaters
exit level. For this analysis, the HWIR-
media Bright Line for groundwater/
surface water based on ingestion of
groundwater was compared with two
options for the exit criterion for
wastewater for the HWIR-waste
proposal, one based on toxicity
benchmarks and one based on toxicity
benchmarks and MCLs.
The analysis indicated that 38
constituents had higher proposed
HWIR-waste exit criteria than proposed
HWIR-media Bright Line
concentrations.14 For one of these 38
constituent, only the MCL option for the
HWIR-waste exit level was higher. For
four of the 38 constituents, only the
toxicity benchmark only option for the
HWIR-waste exit level was higher. None
of these 38 constituents were affected by
the HWIR-media 10,000 ppm cap, and
there is not a saturation limit cap on the
HWIR-media groundwater/surface water
Bright Line.
Similar to the comparison of the
HWIR-media soil Bright Line to the
HWIR-waste non-wastewater exit levels,
the HWIR-media groundwater/surface
water Bright Line and the HWIR-waste
waslewater exit levels use different
methodologies, and therefore produce
different results. Again, a key difference
between the two sets of concentrations
is the use of fate and transport
modeling. The HWIR-waste proposal
assumes some loss through fate and
transport, whereas the HWIR-media
methodology assumes direct ingestion
of the contaminated groundwater (more
details on the two methodologies can be
found in the dockets for the two
proposed rules).
Request for comments. Because of the
above comparisons, EPA has .
determined that for some constituents,
because the HWIR-media methodology
was more conservative than the HWIR-
waste methodology, that conservatism
outweighed the fact that the HWIR-
media risk target (10 ~3 for limited
pathways) was less conservative than
the HWIR-waste risk target (10 ~6 for
multiple pathways). Therefore some of
the HWIR-waste exit levels, which were
"If tho HWlR-modia proposed Bright Line
concentrations woro updated to reflect current
updated risk information, as discussed above, two
of Ihcso 38 constituents would have higher HWIR-
mcdla Bright Lino concentrations than HWIR-waste
exit levels.
intended to be more conservative
overall than the HWIR-media Bright
Line, are set at higher concentrations.
As described above, EPA recognizes that
these discrepancies must be resolved
before promulgation of the two
proposed rules. For further detail on the
methodologies used to develop the
HWIR-media Bright Line, Soil Screening
Levels and the HWIR-waste exit levels,
see the docket for the two proposed
HWIR rules. EPA requests comments on
how to resolve these issues.
B. Other Requirements Applicable to
Management of Hazardous
Contaminated Media
I. Applicability of Otiier
Requirements—§269.10
The purpose of today's proposed rule
would be to modify the identification,
permitting, management, treatment, and
disposal requirements for contaminated
media. It is not intended to replace the
entire scope of Subtitle C requirements
as they relate to media. For that reason,
many existing Subtitle C requirements
would continue to apply to remedial
actions conducted in accordance with
this Part. Specifically, 40 CFR Parts
262-267 and 270 would continue to
apply when complying with this Part,
except as specifically replaced by the
provisions of this Part. In addition,
when treating media subject to LDRs
according to the treatment standards in
§ 269.30, the following provisions of
Part 268 would continue to apply'
§§268.2-268.7 (definitions, dilution
prohibition, surface impoundment
treatment variance, case-by-case
extensions, no migration petitions, and
waste analysis and recordkeeping),
§ 268.44 (treatment variances), and
/ § 268.50 (prohibition on storage). Again,
the Agency does not intend to recreate
all of the Subtitle C requirements, but in
this case only replace certain
requirements themselves as they relate
to hazardous contaminated media.
2. Intentional Contamination of Media
Prohibited—§ 269.11
EPA recognizes that promulgation of
standards for hazardous contaminated
media that are less onerous than the
requirements for hazardous waste may
create incentives for mixing waste with\
soil or other media to render the waste
subject to these provisions. The Agency
expressly proposes to prohibit this
behavior (§ 269.11).
EPA recognizes, however, that
sometimes it is necessary to have some
mixing of contaminated media for
technical purposes to facilitate cleanup.
That mixing is not the prohibited
mixing referred to here. This prohibition
specifically includes the intent to avoid
regulation. If the intent of the mixing is
to better comply with the regulations
that would apply to the wastes prior to
mixing, then it would not be prohibited
under this clause. The Agency requests
comments on whether further
safeguards, in addition to this proposed
provision and the civil and criminal
enforcement authorities of RCRA, are
needed to ensure that no attempts are
made to mix wastes with media to take
advantage of the reduced requirements
of the proposed HWIR-media rule.
3. Interstate Movement of Contaminated
Media—§ 269.12
EPA recognizes that media that would
be exempted under today's rule, but that
previously would have been managed as
hazardous wastes, would be transported
to and through States that were not the
overseeing agency for the remedial
action that generated those media.
Therefore, the Agency designed the
interstate movement requirements of
proposed § 269.12 to ensure that
receiving (consignment) States—or
States through which media would
travel—could approve the designation
that the media is not hazardous before
they accepted the media for transport or
disposal.
The default in these requirements is
that the media must be managed as
Subtitle C waste in the receiving or
transporting State if the receiving or
transporting State has not been notified
of the designation as non-hazardous, or
if the receiving or transporting State
, does not agree with the determination.
Receiving and transporting States would
also have to be authorized for this Part
in order to approve these decisions in
their States. If a receiving or
transporting State agrees to the
redesignation, then the media may be
managed as non-hazardous.
EPA requests comments on these
interstate movement requirements,
specifically on any implementation
concerns with this approach, and any
suggestions to ease implementation.
Several people have expressed concern
about notifying the States through
which the media would be transported,
but not ultimately disposed. The
Agency believes that it may be
appropriate to limit notification
- requirements to the States ultimately
receiving the media. EPA also feels that
it would be necessary to limit the
designation of media as non-hazardous
only to States that are authorized for
this Part. The Agency believes that this
would be necessary because the
authority to make these coiitained-in
decisions is an integral element for
authorization for this Part. EPA believes
-------
18804
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules
that it may be appropriate to allow
States not authorized for this Part to
simply approve another authorized
States' decision that the media are not
hazardous. The Agency requests
comments on these issues.
C. Treatment Requirements
1. Overview of the Land Disposal
Restrictions
The Hazardous and Solid Waste
Amendments (HSWA) to the Resource
Conservation and Recovery Act (RCRA),
enacted on November 8,1984, largely
prohibit land disposal of hazardous
wastes.15 Once a hazardous waste is
prohibited from land disposal, the
statute provides only two options:
comply with a specified treatment
standard prior to land disposal, or
dispose of the waste in a unit that has
been found to satisfy the statutory no
migration test (referred to as a "no
migration" unit) (RCRA section
3004(m)). Storage of waste prohibited
from land disposal is also prohibited,
unless the storage is solely for the
purpose of accumulating the quantities
of hazardous waste that are necessary to
facilitate proper recovery, treatment, or
disposal (RCRA section 3004(j)). For
purposes of the land disposal
restrictions, land disposal includes any
placement of hazardous waste into a
landfill, surface impoundment, waste
pile, injection well, land treatment
facility, salt dome formation, salt bed
formation, or underground mine or cave
(hereafter referred to as "placement")
(RCRA section 3004(k)).
Not all management of hazardous
waste constitutes placement for
purposes of the LDRs. EPA has
interpreted "placement" to include
putting hazardous waste into a land-
based, moving hazardous waste from
one land-based unit to another, and
removing hazardous waste from the
land, managing it in a separate unit, and
re-placing it in the same (or a different)
land-based. Placement does not occur
when waste is consolidated within a
land-based unit, when it is treated in
situ, or when it is left in place (e.g.,
capped). (See 55 FR 8666, 8758-8760,
(March 8,1990) and "Determining
When Land Disposal Restrictions (LDRs)
Are Applicable to CERCLA Response
Actions," EPA, OSWER Directive
9347.3-O5FS, (July 1989)).
15 The LDR requirements are not cleanup
requirements; LDR.treatment standards do not
trigger removal, exhumation, or other management
of contaminated environmental media; however,
other applicable requirements, such as State or
Federal cleanup requirements, could trigger such
actions which, in turn, could trigger LDR
requirements.
Congress directed EPA to establish
treatment standards for all hazardous
wastes restricted from land disposal at
the same time as the land disposal
prohibitions take effect. According to
the statute, treatment standards
established by EPA must substantially
dimmish the toxicity of the waste or
substantially reduce the likelihood of
migration of hazardous constituents
from the waste so that short- and long-
term threats to human health and the
environment are minimized (RCRA
section 3004(m)(l)). In Hazardous
Waste Treatment Council v. EPA, 886
F.2d 355 (D.C. Dir. 1989), Cert. Denied .
Ill S.Ct 139 (1990), the court held that
section 3004(m) allows both technology-
and risk-based treatment standards,
provided that technology-based
standards are not established "beyond
the point at which there is not a 'threat'
to human health or the environment."
id. at 362 (i.e., beyond the point at
which threats to human health and the
environment are minimized) (59 FR
47980, 47986, September 19,1994).
Hazardous wastes that have been treated
to meet the applicable treatment
standard may be land disposed in land
disposal facilities that meet the
requirements of RCRA Subtitle C (RCRA
section 3004(m)(2)).
Congress established a schedule for
promulgation of land disposal
restrictions and treatment standards for
all hazardous wastes listed and
identified as of November 8,1984 (the
effective date of the HSWA
amendments) so that treatment
standards would be in effect, and land
disposal of all hazardous waste that did
not comply with the standards would be
prohibited, by May 8,1990 (RCRA
section 3004(g)). For some classes of
hazardous wastes, Congress established
separate schedules: for certain
hazardous wastes identified by the State
of California ("California List"),
Congress directed EPA to establish
treatment standards and prohibit land
disposal by July 8,1987; for hazardous
wastes containing solvents and dioxins,
Congress directed the Agency to
establish treatment standards and
prohibit land disposal by November 8,
1986. (RCRA sections 3004(d) and (e)).
For wastes listed or identified as
hazardous after the HSWA amendments
(referred to as "newly identified
wastes"), EPA must establish treatment
standards and land disposal
prohibitions within six months of the
effective date of the listing or
identification (RCRA section 3004(g)(4))
Under current regulations,
environmental media containing
hazardous waste are prohibited from
land disposal unless they are treated to
meet the treatment standards
promulgated for the original hazardous
waste in question (i.e., the same
treatment standard the contaminating
hazardous waste would have to meet if
it were newly generated). (See 58 FR
48092, 48123, (September 14, 1993)).
The land disposal restrictions
generally attach to hazardous wastes, or
environmental media containing
hazardous wastes, when they are first
generated. Once these restrictions
attach, the standards promulgated
pursuant to section 3004(m) must be
met before the wastes (or environmental
media containing the wastes) can be
placed into any land disposal unit other
than a no migration unit. In cases
involving characteristic wastes, the D.C.
Circuit held that even elimination of the
property that caused EPA to identify
wastes as hazardous in the first instance
(e.g., treating characteristic wastes so
they no longer exhibit a hazardous
characteristic) does not automatically
eliminate the duty to achieve
compliance with the land disposal
treatment standards. (Chemical Waste
Management v. U.S. EPA, 976 F.2d 2,22
(D.C. Dir. 1992), cert, denied, 113 S.Ct
1961 (1993).) The Agency has examined
the logic of the Chemical Waste decision
and concluded that the same logic could
arguably be applied in the remediation
context; i.e., a determination that
environmental media once subject to
LDR standards no longer contain
hazardous wastes may not automatically
eliminate LDR requirements. While the
Chemical Waste court did not
specifically address the remediation
context, the Agency believes it may be
prudent to follow the logic the court
applied to characteristic wastes, and has
developed today's proposal accordingly.
It is important to note that the land
disposal restrictions apply only to
hazardous (or, in some cases, formerly
hazardous) wastes and only to
placement of hazardous wastes after the
effective date of the applicable land
disposal prohibition—generally May 8,
1990 for wastes listed or identified at
the time of the 1984 amendments, or six
months after the effective date of the
listing or identification for newly
identified wastes.16 In other words, the
duty to comply with LDRs has already
attached to hazardous wastes land
disposed ("placed") after the applicable
effective dates, but not to hazardous
wastes disposed prior to the applicable
effective dates. Accordingly, hazardous
16A detailed listing of when the land disposal
prohibitions took effect for individual hazardous
wastes can be found in 40 CFR Part 268, Appendix
VII.
-------
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules
18805
wastes disposed prior to the effective
date of the applicable prohibition only
become subject to the LDRs if they are
removed from the land and placed into
a land disposal unit after the effective
date of the applicable prohibition. (See
53 FR 31138, 31148, (August 17,1988)
and Chemical Waste Management v. US
EPA, 86 9 F.2d 1526,1536 (D.C. Cir.
1989)), "treatment or disposal of
[hazardous waste] will be subject to the
JLDR1 regulation only if that treatment
or disposal occurs after the
promulgation of applicable treatment
standards.") Similarly, environmental
media contaminated by hazardous
wastes placed before the effective dates
of the applicable land disposal
restrictions does not become subject to
the LDRs unless they are removed from
the land and placed into a land disposal
unit after the effective dates of the
applicable restrictions.
The land disposal restrictions do not
attach to environmental media
contaminated by hazardous wastes
when the wastes were placed before the
effective dates of the applicable land
disposal prohibitions. If these media are
determined not to contain hazardous
wastes before they are removed from the
land, then they can be managed as non-
hazardous contaminated media and
they're not subject to land disposal
restrictions. For example, soil
contaminated by acetone land disposed
("placed") in 1986 (prior to the effective
date of the land disposal prohibition for
acetone) and, while still in the land,
determined not to contain hazardous
waste, is not subject to the land disposal
restrictions.17 This is consistent with the
Agency's approach in the HWIR-waste
rule, where it indicates that LDRs do not
attach to wastes that are not hazardous
at the time they are first generated (60
FR 66344, December 21,1995).
Since application of the land disposal
restrictions is limited, in order to
determine if a given environmental
medium must comply with LDRs one
must know the origin of the material
contaminating the medium (i.e.,
hazardous waste or not hazardous
waste), the date(s) the material was
placed (i.e., before or after the effective
date of the applicable land disposal
prohibition), and whether or not the
medium still contains hazardous waste
(i.e., contained-in decision or not).
"Similarly, soil contaminated by acetone placed
In a solid wasto management unit in 1986, but
leaked into tho soil at somo point after 1986, is not
subject to tho land disposal restrictions provided
that, whilo tho soil is still in the land, the Director
determines it docs not contain hazardous wastes.
LDRs would not attach because, in this case, it is
tho initial placement of hazardous waste that
determines whether there is a duty to comply with
Facility owner/operators should make
a good faith effort to determine whether
media were contaminated by hazardous
wastes and ascertain the dates of
placement. The Agency believes that by
using available site- and waste-specific
information 6uch as manifests,
vouchers, bills of lading, sales and
inventory records, storage records,
sampling and analysis reports, accident
reports, site investigation reports, spill
reports, inspection reports and logs, and
enforcement orders and permits, facility
owner/operators would typically be able
to make these determinations. However,
as discussed earlier in the preamble of
today's proposal, if information is not >
available or inconclusive, facility '
owner/operators may generally assume
that the material contaminating the
media were not hazardous wastes.
Similarly, if environmental media were
determined to be contaminated by
hazardous waste, but if information on
the dates of placement is unavailable or
inconclusive, facility owner/operators
may, in most cases assume the wastes
were placed before the effective date.
The Agency believes that, in general,
it is reasonable to assume that
environmental media do not contain
hazardous wastes placed after the
effective dates of the applicable land
disposal prohibitions when information
on the dates of placement is unavailable
or inconclusive, in part, because current
regulations, in effect since the early
1980's, require generators of hazardous
waste to keep detailed records of the
amounts of hazardous waste they
generate. These records document
whether the waste meets land disposal
treatment standards and list the dates
and locations of the waste's ultimate
disposition. With these records, the
Agency should be able to determine if
environmental media were
contaminated by hazardous wastes and
if they would be subject to the land
disposal restrictions.
In addition, EPA believes that the
majority of environmental media
contaminated by hazardous wastes were
contaminated prior to the effective dates
of the applicable land disposal
restrictions. Generally, the
contamination of environmental media
by hazardous waste after the effective
date of the applicable land disposal
restriction would involve a violation of
the LDRs, subject to substantial fines
and penalties, including criminal
sanctions. The common exception
would be one-time spills of hazardous
waste or hazardous materials. In these
cases, the Agency believes that,
typically, independent reporting and
record keeping requirements (e7g.> ,
CERCLA sections 102 and 103 reporting
requirements or state spill reporting
requirements) coupled with ordinary
"good housekeeping" procedures, result
in records that will allow the Agency to
determine.the nature of the spilled
material, and the date (or a close
approximation of the date) of the spill.
The Agency requests comments on this
approach and on any other assumptions,
records, or standards of evaluation thsit
would ensure that facility owner/
operators would identify any
contaminated media subject to land
disposal restrictions properly and
completely.
Information on contained-in decisions
should be immediately available since,
generally, these determinations are
made by a regulatory agency on a site-
specific basis and careful records are
kept. . -
2. Treatment Requirements—§ 269'.30
a. Approach to treatment
requirements and recommendations of
the FACA Committee. RCRA section
3004(m) requires that treatment
standards for wastes restricted from
land disposal, "** * specify those
levels or methods of treatment, if any,
which substantially diminish the
toxicity of the waste or substantially
reduce the likelihood of migration of
hazardous constituents from the waste
so that short-term and long-term threats
to human health and the environment
are minimized." A recurring debate
through EPA's development of the land
disposal restriction program has been
whether treatment standards should be
technology-based (i.e., based on
performance of a treatment technology)
or risk-based (i.e., based on assessment
of risks to human health and the
environment that are posed by the
wastes). The Agency believes that both
approaches are allowed. It has long been
recognized that Congress did not
directly address the questions of how to
set treatment standards in the language
of section 3004(m).18 In addition,
Congress did not specifically address
whether the LDR treatment standards
for newly generated wastes and
remediation wastes must be identical;
the structure of RGRA's LDR provisions
suggests that Congress believed that
remediation waste may merit special
consideration. (See, RCRA sections
3004(d)(3) and 3004(e)(3), which
18See, e.g., 51 FR 40572, 40578 (November 7,
1986); Hazardous Waste Treatment Council v. US
EPA, 886 F.2d 355, 361-3 D.C. Cir. 1989); 55 FR
6640, 6641 (February 26,1990). The legislative
history of section 3004(m) is likewise inconclusive.
See discussion of the legislative history at 55 FR
6640, 6641-6642 (February 26,1990)"[a]t a
minimum, the [legislative history shows] that
Congress did not provide clear guidance on the
meaning of 'minimize threats'." '
-------
18806 Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules
provided a separate schedule for
establishing LDR prohibitions and
treatment standards for most
remediation wastes).
EPA's preference would be to
establish generic nationwide risk-based
treatment standards that represent
minimized threats to human health and
the environment in the short- and long-
term. However, the difficulties involved
in establishing risk-based standards for
contaminated media on a generic
nationwide basis are formidable19, due,
in large part, to the wide variety of site-
specific physical and chemical
compositions encountered during
cleanups in the field. In the absence of
the information necessary to develop
generic, risk-based standards for
contaminated media, the Agency is
proposing generic standards using a
technology-based approach and,- for
lower-risk media subject to the LDRs,
provisions for site-specific, risk-based
minimize threat determinations. (See
discussion of Media Treatment
Variances, below).
Technology-based standards achieve
the objective of minimizing threats by
eliminating as much of the uncertainty
associated with disposal of hazardous
waste as possible. For this reason^
technology-based standards werfe
upheld as legally permissible so long as
they are not established "beyond the
point at which there is not a "threat" to
human health or the environment."
(See, Hazardous Waste Treatment"
Council v. EPA, 886 F.2d 355, 361-64
(D.C. Cir. 1989),cert. denied 111 S.Ct.
139 (1990), page 362; see also (55 FR
6640, 6642, February 26,1990)).
Today's proposed regulations would
modify the land disposal restriction
treatment standards for contaminated
media so that they reflect appropriate
treatment technologies and strategies for
environmental media, and the site-
specific nature of cleanup activities
more accurately. When non-hazardous
contaminated media is still subject to
LDRs (e.g., because hazardous wastes
contaminating the media were land
disposed ("placed") after the effective
date of the applicable LDR prohibition,
or because the media were determined
"The Agency has proposed a rule that would
define hazardous constituent concentrations below
which certain wastes will no longer be listed or
identified as "hazardous" under RCRA Subtitle C.
(60 FR 66344-469 (December 21,1995)). In some
instances, these concentrations may also serve as
risk-based LDR treatment standards. The Agency
can set risk-based LDR treatment standards for
certain as-generated hazardous wastes (and not for
hazardous contaminated environmental media)
because the Agency has significantly more
information on as-generated wastes streams and as-
generated waste streams are typically more
homogeneous that contaminated environmental
media waste streams. , '
to still contain hazardous wastes when
removed from the land), today'sproposal
would establish, as a policy matter, a
presumption for site-specific LDR
treatment variances. This approach is
consistent with the recommendations of
the FACA Committee, which agreed that
the land disposal treatment standards
for "as-generated" wastes are not
generally appropriate for contaminated
environmental media, and that higher-
risk media should be subject to generic
national standards while requirements
for lower-risk media should be
determined on a site-specific basis in
the context of agency-overseen
cleanups.
b. Proposed treatment standards for
contaminated media (1) Applicability.
Hazardous contaminated media are
environmental media that contain
hazardous waste or that exhibit a
hazardous characteristic and have not
been determined, pursuant to § 269.4, to
no longer contain hazardous wastes.
Non-hazardous contaminated media are
environmental media that have been
determined, pursuant to § 269.4, not to
contain hazardous wastes. Media
contaminated by hazardous wastes
placed after the effective date of 'the
applicable land disposal prohibition
must be treated to meet LDR treatment
standards before it is placed into a land
disposal unit. In this case, the land
disposal restrictions attach because
hazardous waste was originally land
disposed—placed—after the effective
date of the applicable land disposal
prohibition and the standards of section
3004(m) were never met. Likewise,
hazardous contaminated media removed
from the land after the effective date of
the applicable land disposal restriction
and placed into a land disposal unit,
must be treated to meet LDR treatment
standards. The land disposal restrictions
attach in this case because, although the
hazardous waste was not restricted from
land disposal when first disposed, it has
subsequently been prohibited from land
disposal and, therefore, if removed from
the land after the effective date of the
applicable prohibition, cannot be placed
into a land disposal unit until it meets
the standards of RCRA section 3004(m).
As discussed earlier in today's
preamble, once the land disposal
restrictions attach, the standards of
section 3004(m) must be met before the
wastes (or environmental media) may be
placed into any land disposal unit other
than a no migration unit, elimination of
the property that cause the waste to be
hazardous (e.g., deciding, pursuant to
§ 269.4, that a given environmental
medium no longer contains hazardous
waste) does not automatically mean the
wastes have complied with RCRA
section 3004(m).20
(2) Today's proposal. In today's
proposed rule, EPA would, (1) establish
generic, technology-based treatment
standards for higher-risk contaminated
media subject to the LDRs (i.e.,
hazardous contaminated media) and, (2)
for lower-risk contaminated media
subject to the LDRs (i.e., non-hazardous
contaminated media), establish, as a
policy matter, a presumption for site-
specific LDR treatment variances. The
treatment standards proposed today
would only apply when media subject
to the LDRs are managed under a RMP.
For hazardous contaminated media
other than soils (e.g., groundwater and
sediments), the proposed rule would
require treatment to meet the LDR
treatment standards applicable to the r
hazardous wastes contained in the
media. (See § 269.30(f)). For example,
ground water contaminated with a
commercial chemical product such as-
acetone (hazardous waste number U002)
would have to be treated to the ,
standards specified in Part 268 for
acetone.
For hazardous contaminated soils, the
proposed rule would establish
alternative soil-specific LDR standards.
Proposed § 269.30(e) would require that,
generally, soils be treated so that the
concentrations of constituents subject to
treatment are"reduced by 90 percent
with treatment capped at 10 times the
Universal Treatment Standard. If
treatment of a given constituent to meet
the 90 percent reduction standard
would result in reducing constituent
concentrations to less than 10 times the
UTS, treatment beyond 10 times the
UTS would not be required. For non-
metal contaminants, total
concentrations of constituents subject to
treatment would have to be reduced by
at least 90 percent from their initial
concentrations (or 10 times the
Universal Treatment Standard,
whichever is higher). For metal
contaminants, the 90 percent standard
would apply either to the total
concentrations of metals (for treatment
technologies that remove metal
contaminants), or to the concentrations
of the metals in leachate as measured
using the TCLP (for solidification-type
treatment technologies). In addition to
20 Of course, if the environmental media is
determined not to contain hazardous wastes before
it is removed from the land, the land disposal
restrictions and duty to comply with RCRA section
3004(m) do no attach, because no placement of
hazardous waste will occur after the effective, date
of the applicable land disposal prohibition. In
addition, if contaminated environmental media are
determined not to contain solid or hazardous waste
(i.e., it's just media) it would not be subject to any
RCRA Subtitle C standard, including LDRs.
-------
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules
18807
treating for constituents subject to
treatment, for soil that is hazardous
because it exhibits the characteristics of
ignitability, corrosivity, or reactivity, the
Agency proposes to require treatment
until the soil no longer exhibits the
characteristic.
(3) Justification for soil-specific LDRs.
EPA believes that it is appropriate to set
soil-specific LDR standards because the
soil matrix often poses distinct
treatment issues. Specifically, the Part
268 Universal Treatment Standards that
would otherwise apply to soil subject to
the LDRs are based, in large part, on
incineration for organics and high
temperature metal recovery (HTMR) for
metals. Although incineration and
HTMR are highly effective technologies,
their selection was based on treatment
of concentrated, as-generated hazardous
wastes, and they are not generally
appropriate for the large volumes of low
and moderately contaminated soil
typically encountered during site
remediation. Thus, the Agency believes
that technology-based standards for
contaminated soil should not rely
exclusively on incineration or HTMR
and that, in many cases, innovative (i.e.,
non-combustion) technologies will be
more appropriate (See 55 PR 8666,
8760-8761, (March 8,1990) and 58 PR
48092, 48125, (September 14,1993)).
While the Agency believes that soil is,
in most cases, most appropriately
treated using non-combustion
technologies, data gathered for the
Phase II Soil proposal do not
demonstrate conclusively that the
Universal Treatment Standards can be
met using technologies other than
combustion; therefore, EPA is proposing
the alternative soil treatment standards
discussed today at levels somewhat
above UTS levels.
(4) Application of soil-specific LDRs
to other media. EPA considered
applying the alternative 90% or 10
times the UTS treatment standard to
hazardous contaminated media other
than soils, but decided not to because
there is little information available to
the Agency to indicate that the LDR
treatment standards that currently apply
to these other media are inappropriate,
or otherwise pose the same type of
technical challenges as they do for soils.
In individual cases where die existing
UTS standards is inappropriate, the
Director would be able to use the
proposed Media Treatment Variance
procedures outlined below to set
alternative LDR treatment standards for
these other media.
(5) Request for comments. EPA
requests comments and data on the LDR
treatment standards that would be
established by today's proposed
regulations. The Agency is especially
interested in comments which
document that the current LDR
treatment standards are appropriate or
inappropriate for hazardous
contaminated media other than soils
(e.g., groundwater, sediments), or are
otherwise compatible or incompatible
with the remediation context. The
Agency is also interested in comments
which document whether the proposed
LDR treatment standards for
contaminated soils are achievable using
technologies appropriate at remediation
sites.
c. Detailed analysis of proposed
treatment standards for hazardous
contaminated soils. EPA first proposed
LDR treatment standards specific to
hazardous contaminated soil in the LDR
Phase II Rule (58 FR 48092, September
14,1993). In the Phase II Rule, EPA
requested comment on three options for
soil treatment standards: Option 1 was
90% treatment provided treatment
achieved concentrations at least equal to
or less than one order of magnitude
above the Universal Treatment Standard
(90% and 10 times UTS); Option 2 was
treatment to one order of magnitude
above the Universal Treatment Standard
(10 times UTS); and Option 3 was 90%
treatment with no ceiling value (90%).
Commenters on the Phase II proposal
strongly supported the 10 times UTS
treatment standard,21 indicating that
they thought it would be easy to
implement, provide for appropriate
levels of protection, and be achievable
using a range of treatment technologies.
Available data supports the
achievability of the 10 times UTS
standard, 91% of the data pairs in EPA's
Soil Treatability Database were treated
to 10 times UTS using non-combustion
technologies such as biological
treatment, thermal desorption, and
dechlorination. Commenters also
supported various combinations of the
90% reduction and 10 times UTS
standards, including the 90% or 10
times UTS approach proposed today.
Ultimately, EPA has chosen to
propose the approach it believes will
provide the most flexibility to
overseeing agencies and facility owner/
operators. Providing for flexibility in the
management requirements for
contaminated media is one of EPA's
goals for the HWIR-media rulemaking.
While EPA agrees with some of the
comments on the Phase II proposal and
believes that many facility owner/
21 Of the 34 comments received, 14 supported 10
times the UTS; 6 supported 90% and 10 times the
UTS; 4 supported 90%; 6 supported other
combinations of 90% and 10 times the UTS,
including the combination proposed today; and 4
supported other options.
operators will be able to achieve the 10
times UTS treatment standard using
non-combustion soil treatment
technologies, the Agency does not have
information to show that 10 times UTS
will be necessary to fulfill the
requirements of RCRA section 3004(m)
at all sites. In addition, the data pairs in
EPA's Soil Treatment Database are
primarily from bench and pilot schedule
studies and may not reflect the
"potentially problematic soil matrices
and varying contaminant levels" likely
to be encountered in the field (58 FR
48092, 48124, September 14, 1993).
Finally, the FACA committee agreed on
a 90% treatment standard for
contaminated media with constituent
concentrations above Bright Line
concentrations. Therefore, the Agency
believes it is appropriate to also allow
for 90% reduction. As discussed below,
the Agency believes compliance with
either standard fulfills the requirements
of RCRA section 3004(m). EPA intends
to use the treatability data it receives
pursuant to the requirements in
proposed § 269.41(c)(9) and § 269.42(b)
to fill in gaps in the data on which the
proposed standards are based, and
intends to amend the standards if
appropriate.
EPA acknowledges that because the
90% reduction standard does not
guarantee any particular final
constituent concentrations, it may
increase the chance, in individual cases,
that soil treatment standards will not be
appropriate to the site or might not meet
the statutory standard. To address this
concern, the Agency has built a "safety
net" into the proposed soil treatment
standards in today's regulations, by
allowing the Director to specify more
stringent soil treatment standards that
are based on site-specific factors when
he/she finds that the 90% or 10 times
the UTS treatment standard does not
"minimize threats" (e.g., where initial
concentrations of hazardous
constituents in the media are
abnormally high). (See § 269.32.)
In developing the LDR treatment
standards proposed today for hazardous
contaminated soils and the standards
discussed in the Phase II proposal, the
Agency did not use its normal approach
to setting technology-based LDR
standards. In setting LDR treatment
standards, the Agency generally
examines available treatment data and
sets a standard based on the "best" of
the demonstrated available technologies
("BOAT"). The Agency typically finds a
technology to be "demonstrated" when
the data show that it can operate at the
required levels, and "available" when,
among other things, it is commercially
available and provides "substantial"
-------
18808 Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules
treatment. The Agency's selection of the
"best" of these technologies is generally
based on a statistical evaluation of the
treatability data. (See 51 FR 40572,
40588^10593 (Nov. 7,1986).) Instead of
this standard approach, the Agency
selected options that could be achieved
by available technologies and that
would result in the "substantia[l]"
reductions mandated by RCRA section
3004(m) to develop the standards
proposed today.
The Agency "believes that RCRA
allows this alternative approach to
implementing section 3004(m).
Specifically, RCRA § 3004(m) does not
require the use of "BDAT" to implement
a technology-based approach. In fact, as
the B.C. Circuit has specifically
recognized, section 3004(m) need not be
read "as mandating the use of the best
demonstrated available technologies
(BDAT) in all situations." Chemical
Waste Management, Inc. v. US EPA, 976
F.2d 2,15 (D.C. Cir. 1992). Instead, any
substantial treatment method that
"minimizes" threats according to the
statutory objectives is permissible. Id.22
In other instances the Agency chose a
BDAT approach because it believed that
applying BDAT standards best served
the Congressional objectives when the
LDR requirements for as-generated
wastes were enacted (55 FR 6640-6643,
February 26,1990).
The policy considerations that argue
for BDAT as the basis for technology-
based standards for as-generated wastes
do not, however, support a BDAT
approach in the remediation context.
EPA has long maintained that setting
BDAT standards for newly generated
wastes best fulfilled the Congressional
goal of reducing the amount of wastes
ultimately disposed on the land (55 FR
6640, 6642, February 26,1990); RCRA
section 1003(6). While this may be true
for newly generated waste not yet
disposed, such standards do not further
this goal in the remediation context. As
discussed in section (II) (A) of this
preamble, current standards can create
disincentives to excavation, and more
protective management of wastes
22 The legislative history of section 3004(m)
supports the reading that the legislative preference
expressed for "BDAT" could be achieved using
something less than only the "best" technologies:
The requisite levels of [sic] methods of treatment
established by the Agency should be the best that
has [sic] been demonstrated to be achievable. This
does not require a BAT-type process as under the
Clean Air or Clean Water Acts which contemplates
technology-forcing standards. The intent here is to
require utilization of available technology in lieu of
continued land disposal without prior treatment. It
is not intended that every waste receive repetitive
or ultimate levels of [sic] methods of treatment
* * *
130 Cong. Rec. S. 9178 (daily ed. July 25,1984)
(statement of Sen. Chaffee) [emphasis added].
already disposed of on the land, because
excavation of contaminated media for
the purposes of treatment may trigger
LDRs. Site decision makers are often
faced with the choice of either capping
or treating the wastes in place (to avoid
LDRs), or excavating and triggering the
costly BDAT treatment standards. This
situation creates an incentive to leave
wastes in place, a result obviously not
contemplated by Congress in enacting
LDRs. For a fuller discussion of this
issue, see 54 FR 41566-41569, (Oct. 10,
1989). EPA has justified BDAT
standards based in part on the fact that
imposing them would create an
incentive to generate less of the affected
waste in the first instance. (See Steel
Manufacturers Association v. EPA, 27
F.3d 642, 649 (D.C. Cir. 1994)
(upholding the LDR standard, in part,
because it minimized the amount of
waste that would be generated)). In the
remediation context the waste is already
in existence, therefore, such "waste
minimization" is not an issue.
Typically, the threats to human health
and the environment that the land
disposal restrictions were intended to
address are better controlled through
excavation and management of remedial
wastes and such action should therefore
be encouraged, not discouraged.
Accordingly, EPA believes that it is
appropriate to set LDR standards for soil
subject to the LDRs based on something
less than the "best" demonstrated
available technologies, so long as those
standards encourage the development of
more permanent remedies and result in
the "substantia[l]" reductions
contemplated by section 3004(m). The
Agency believes that the 90% or 10
times the UTS standard proposed today
will, by providing flexibility to cleanup
decision makers, encourage the
development of more permanent
remedies. The Agency also believes that
the 90% or 10 times the UTS standard
represents a level of treatment that will,
in general, "substantially" diminish the
toxicity of the wastes or substantially
reduce the likelihood of migration of
hazardous constituents from the wastes
so that short- and long-term threats to
human health and the environment are
minimized. Among other things, the
Agency looks to the percentage of
constituents removed, destroyed, or
immobilized when deciding whether
treatment is "substantial" (51 FR 40572,
40589, November 7,1986). On this
basis, the Agency believes that the 90%
component is clearly substantial. Since
EPA has previously determined that the
UTS standards result in "substantial"
treatment, the Agency believes that a
standard one order of magnitude higher
should be considered substantial when
addressing matrices that can be
significantly more difficult to treat.
d. Application of proposed treatment
standards to media which no longer
contain hazardous waste, hi some cases,
contaminated media with constituent
concentrations below the Bright Line
will be determined to no longer contain
hazardous waste, but may remain
subject to the land disposal treatment
requirements. As discussed earlier in
today's preamble, EPA's analysis in this
proposal is based on the logic that once
the land disposal restrictions attach to
hazardous wastes (or environmental
media that contain hazardous wastes)
the standards of section 3004(m) must
be met before the wastes can be land
disposed in any unit other than a no
migration unit. Once attached, the
obligation to meet land disposal
restriction treatment standards
continues even if a waste is no longer :
considered hazardous under RCRA
Subtitle C (e.g., by eliminating a
hazardous characteristic, or, in the case
of an environmental medium, by
making a contained-in decision23).
In these cases, EPA believes that it
will generally be appropriate to use the
additional opportunities for Media
Treatment Variances proposed in
§ 269.31 to establish site-specific LDR
treatment requirements based on risk.
While the Agency is proposing generic
technology-based treatment standards
for higher-risk environmental media
(i.e., hazardous contaminated media);.
EPA continues to believe that LDR
treatment standards for lower-risk
contaminated media (i.e., media
determined not to contain hazardous
wastes) are best addressed on a site-
specific basis. This belief was supported
by the FACA Committee, which said
that lower-risk media should be exempt
from the land disposal restrictions, and
addressed on a site-specific basis in the
context of agency-overseen cleanups.
Media Treatment Variances are
discussed in more detail in section
(V)(C)(7) of today's preamble. Most of
these variances are also available for
higher-risk media, the difference is a
23 Of course, as discussed earlier in today's
preamble, if soils were contaminated by hazardous
waste prior to the effective date of the applicable
land disposal prohibition and a contained-in
decision was made prior to removal of the
contaminated material from the land, the land
disposal restrictions and the duty to treat to LDR
treatment standards would not attach in the first
instance. Since the Agency believes most
environmental media contaminated by hazardous
waste were contaminated prior to the effective date
of the applicable land disposal restrictions, the
Agency believes instances where contaminated
environmental media is determined to no longer
contain hazardous waste but remains subject to the
LDR requirements will be few.
-------
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 /Proposed Rules 18809
matter of assumptions. The Agency
believes that lower-risk media that
remain subject to the LDRs (i.e., media
determined to no longer contain
hazardous waste) should be addressed
on a site-specific basis in the context of
an Agency overseen cleanup and,
because they present less risk, should,
as a policy matter, be afforded
additional flexibility. Therefore,
treatment variances are presumed to be
appropriate and are encouraged for
these media. It is presumed that
hazardous contaminated media will be
treated to meet generic, nationwide
treatment standards, although a variance
may be appropriate in individual
circumstances based on site-specific
conditions.
e. More stringent treatment
standards—Proposed §269.32. As
discussed above, because of the great
diversity among cleanup sites—in terms
of the contaminated media's properties;
the exposure potential; size; topography;
climate, and many other factors—EPA
believes that it is appropriate to provide
for situations where meeting the
proposed treatment standards for
hazardous contaminated media may be
insufficient to meet RCRA section
3004(m)'s requirements that "* * *
threats to human health and the
environment are minimized." For
example, a site might be located in a
particularly sensitive environmental
setting (e.g., over a shallow aquifer used
for drinking water), where large
volumes of contaminated soil
containing high concentrations of
highly-mobile, toxic constituents will be
excavated, treated, and disposed on-site.
In order to minimize the potential for
releases from the on-site landfill over
the long-term, it could be appropriate to
require some type of treatment that is
more stringent than the standards
proposed in § 269.30. While EPA
believes these situations would be rare,
it is sensible to explicitly give
overseeing Agencies the authority to
impose more stringent LDR treatment
requirements when they believe them
necessary in order to meet the intent of
RCRA section 3004(m). Because these
decisions would be made on the record
during the RMP approval process, they
would be subject to notice and
comment. Any final Agency decision to
impose more stringent standards would
be subject to challenge during the RMP
review and approval process.
/. Cross-media transfer. Paragraph (h)
of proposed § 269.30 specifies that the
technologies employed in meeting any
treatment standard for contaminated
media must be designed and operated in
a manner that would control the transfer
of contaminants to other media. This
general standard is intended to
, eliminate from consideration any
technology, such as uncontrolled air
stripping, that would remove
contamination from one medium by
simply contaminating another. For a
discussion of the Agency's tentative
position concerning at what point cross-
media transfers of constituents from
land-based units could result in an
invalidation of that unit as a treatment
unit, see 60 FR 43654, 43656, (August .
22,1995). In addition, in conjunction
with this rulemaking effort, EPA is
developing guidance on controlling
cross-media transfer of contaminants for
a wide range of soil treatment
technologies. The Agency plans to issue
this guidance prior to or in conjunction
with the final HWIR-media rulemaking.
Further information on this guidance
may be obtained from Subijoy Dutta in
the Office of Solid Waste at (703) 308-
8608.
3. Constituents Subject to Treatment
EPA is proposing that hazardous
contaminated media be treated for each
UTS constituent that originated from the
contaminating hazardous waste, and
that is subject to the treatment standard
for such hazardous waste as it was
generated (hereafter "constituents
subject to treatment") (§ 269.30(g)). For
contaminated media other than soil
(e.g., groundwater, sediments),
treatment would be required for each
constituent subject to treatment with
concentrations above the UTS. For
contaminated soil, treatment would be
required for each constituent subject to
treatment with concentrations greater
than 10 times the UTS.
EPA believes it is appropriate to link
LDR treatment requirements to the
contaminating hazardous waste because,
under the contained-in principle,
environmental media only become
subject to hazardous waste management
requirements because they contain
hazardous waste. The duty to treat,
therefore, should only attach to those
constituents for which treatment would
have been required if the wastes were
not contained in environmental media.
EPA is proposing to apply the
definition of constituents subject to
treatment to environmental media
contaminated by both listed and
characteristic wastes. Under the
proposed rule, if environmental media
were contaminated only by listed
hazardous wastes (or mixtures of listed
hazardous wastes and solid wastes)
treatment would be required solely for
Part 268 "regulated hazardous
constituents" in these wastes (identified
in the table entitled "Treatment
Standards for Hazardous Wastes" at 40
CFR 268.40). If environmental media •
exhibit a characteristic, treatment would
be required for the characteristic
constituent (in the case of TC wastes) or
the characteristic property (in the case
of ignitable, reactive, Or corrosive
wastes), and for all constituents listed in
§ 268.48 "Table UTS—Universal
Treatment Standards" present in the
media. As stated above, this approach,
in essence, incorporates the rule for ,
characteristic wastes that requires
treatment of all "underlying hazardous
constituents''; underlying hazardous
constituents are those constituents for
which the Agency has promulgated
Universal Treatment Standards (except
for zinc and vanadium) that can
reasonably be expected to be present in
the wastes, and that are present in '•
concentrations exceeding the UTS levels
(or, for contaminated soil, ten times the
UTS level). (See 40 CFR 268.2(i); 40 CFR
268.40(e); 60 FR 11702, (March 2,1995);
and discussion of underlying hazardous
constituents at (59 FR 47980, 48004,
(September 19,1994)).
The Agency requests comments on
the scope of the constituents that would
be subject to treatment under today's
proposed approach. For example,
should background concentrations of
naturally occurring hazardous
constituents be explicitly evaluated
when identifying constituents that are
subject to treatment? Would it be more
appropriate, as was suggested in the
Phase II proposal (58 FR 48092, 48124,
September 14,1993), for the Agency to
make all constituents present (even in
media containing listed wastes) above
UTS levels (or for contaminated soil, 10
times UTS levels) subject to treatment?
Are there other ways to address the
scope of constituents subject to
treatment?
The Agency notes that "Bright Line
constituents" and "constituents subject
to treatment" are two different sets of
constituents. Under today's proposal, •
the Bright Line does not define the
applicability of LDR treatment
requirements or the constituents subject
to treatment in media subject to the
LDRs. Contaminated environmental
media that contains one or more
hazardous constituents at
concentrations greater than Bright Line
concentrations would be ineligible for a
contained-in decision and would
become subject to the requirements for
hazardous contaminated media,
including LDR treatment requirements.
Once subject to LDR treatment
requirements, contaminated media
would have to be treated to the generic,
technology^based treatment standards
for all constituents subject to treatment,
including those below the Bright-Line.
-------
18810
Federal Register / Vol. 61, No. 83 A Monday, April 29, 1996 / Proposed Rules
EPA requests comments on this
approach. For example, should EPA
allow site-specific minimized threat
Media Treatment Variances (discussed
below) for constituents subject to
treatment that have initial
concentrations below Bright Line
concentrations and require compliance
with the generic treatment standards
only for constituents subject to
treatment that have initial
concentrations above Bright Line
concentrations? How would this affect
overseeing agencies that choose to set
contained-in levels at concentrations
more stringent than the Bright Line?
4. Nonanalyzable Constituents
Some contaminated environmental
media may contain constituents that do
not have analytical methods. For media
containing multiple organic
constituents, some of which are
analyzable and some of which are
nonanalyzable, the Agency believes that
treating the analyzable constituents to
meet treatment standards should
provide adequate treatment of any
nonanalyzable constituents. As a
general principle, the destruction of an
analyzable organic surrogate constituent
is an effective indicator for destruction
of nonanalyzable organic constituents.
The Agency is therefore not proposing
treatment standards for nonanalyzable
organic constituents found in hazardous
contaminated media. The Agency:
requests comment on this approach as
well as data on the degree to which non-
analyzable organic constituents are
treated when environmental media are
treated for other organic contaminants.
If, based on public comments, EPA
should choose to regulate these
constituents, the Agency could require
treatment by specific technologies
known to achieve adequate treatment of
the constituent.
In cases where contaminated
environmental media are contaminated
solely with nonanalyzable constituents,
(i.e, media contaminated only by
nonanalyzable U or P wastes), EPA
proposes requiring treatment by the
methods specified in § 268.42 for those
U or P wastes. For a list of U and P
wastes, see 40 CFR 261.33. The Agency
solicits comments on whether other
technologies should be allowed for
treatment of such media.
5. Review of Treatment Results—
§ 269.33
Once treatment under an approved
RMP has been completed, the proposal
would require the overseeing agency to
review the treatment results and
determine whether the treatment
standard was achieved. If the treatment
standard were not achieved, EPA
proposes that the facility owner/
operator would be required to: submit a
new RMP that includes plans and
procedures designed to re-treat the
material, or submit an application for a
Media Treatment Variance (if a variance
is appropriate). The Director, at his/her
discretion, could require that the owner/
operator continue to treat the materials
until the treatment standard is met, or
grant a Media Treatment Variance.
6. Management of Treatment
Residuals—§269.34
Depending upon the type of treatment
system used, residuals from the
treatment of media under Part 269 could
either be media (hazardous
contaminated or otherwise) or wastes
(hazardous or otherwise) that have been
separated from the media being treated.
Under the proposed rule, waste
residuals would be managed according
to applicable RCRA Subtitle C or
Subtitle D requirements. Media
residuals would remain subject to Part
269. This is consistent with the
Agency's approach to residuals from
treating hazardous debris. (See 57 FR
37194, 37240, (August 18, 1992)). If
media residuals from treatment of
contaminated media meet the treatment
standards, they can be disposed of in a
Subtitle C land disposal facility. If those
media have met their treatment
standards and also no longer contain
hazardous wastes, they are no longer .
subject to Subtitle C requirements and
can be used, re-used, or returned to the
land absent additional Subtitle C
control. Under proposed § 269.33,
media residuals that do not meet the
treatment standards would be re-treated
or, if appropriate, granted a Media
Treatment Variance.
The Agency requests comments on
this approach and on whether
regulatory standards for management of
non-media treatment residuals are
necessary under this Part. For example,
should residuals from treating media
using stabilization technologies (i.e.,
stabilized media) be considered waste
residuals and subject to the applicable
subtitle C or D standard? Should the
Agency address, through regulations or
guidance, the methods used to
determine whether treatment residuals
are media or non-media? For example,
should the Agency use the approach it
promulgated for treatment residuals
from treatment of hazardous debris and
require that media and non-media
treatment residuals be separated using
simple physical or mechanical means?
Some treatment methods may,
distinctly separate hazardous wastes
from contaminated media (e.g., carbon
adsorption for groundwater). In these •
cases, each residual can be measured to
certify compliance with the applicable
land disposal restriction treatment
standards. For other treatment •
technologies that may not as distinctly
separate media from non-media
residuals, it may be more difficult to
determine which LDR treatment
standards should be applied. For
example, some treatment methods (e.g.,
combustion technologies) may result in
destruction of the media treated, leaving
only non-media residuals. In these
cases, should the residuals be subject to
the treatment standards for .
contaminating hazardous wastes (e.g.,
the Universal Treatment Standard) or
the treatment standards for media (e.g.,
the 90% or 10 times the UTS alternative
soil treatment standard proposed today).
7. Media Treatment Variances—§ 269.31
This section provides a mechanism
which the Director can use to establish
alternative treatment standards for
contaminated media subject to the land
disposal restrictions. The Agency is
proposing to allow .variances from
generic treatment standards in three
situations: when the generic standard is
technically impracticable, when the
generic standard is inappropriate, or
when the Director can demonstrate,
based on site-specific circumstances, .
that lower levels of treatment "minimize
threats" in accordance with the
standard of RCRA section 3004(m). Each
situation is discussed in more detail
below.
EPA encourages use of these
procedures to establish site-specific LDR
treatment standards for media that have
been determined to no longer contain
hazardous wastes but remain subject to
LDRs. In addition, although EPA
believes the generic, nationwide
technology-based treatment standards
for hazardous contaminated media
should be appropriate and achievable
for the majority of media managed at
cleanup sites, the Agency acknowledges
that because of the wide range of soils .
and contaminants that may be
encountered in the field, .there may be
situations where such standards would
be inappropriate.
. Paragraphs (a) and (b) of § 269.31
would list the situations under which
the Agency believes a Media Treatment
Variance would be appropriate.
Paragraph (c) of § 269.31 would provide
. the overseeing agency with the authority
to request any information from the
owner/operator that may be necessary to
determine whether a treatment variance
should be approved, and paragraph (d)
provides that an alternative treatment
standard approved according to this
-------
Federal Register / Vol. 61, No. 83 / Monday. April 29, 1996 / Proposed Rules
18811
section may be expressed numerically,
or as a specified technology.
In order to ensure that the Media
Treatment Variance provisions are not
used simply to seek approval of an
inferior technology or a poorly operated
treatment system, § 269.31(e) would
specify that any technology used to
meet an alternative standard would
have to be operated in a manner that
optimizes efficiency, and result in
substantial reductions in the toxicity or
mobility of the media's contaminants.
For the reasons discussed above, any
such technology would be required to
control the cross-media transfer of
constituents.
The Media Treatment Variances in
today's proposed rule are analogous to
the existing site-specific treatment
variances in Part 268. (See § 268.44(h)).
EPA considered using § 268.44(h) for
contaminated media, but decided to
propose media-specific variance
provisions for three reasons. First, for
clarity, EPA has made a conscious effort
to develop the HWIR-media rules to
operate as a complete system and
minimize cross-references to other
portions of the regulations. Second, EPA
believes that including Media Treatment
Variances will make it easier and less
disruptive for states to adopt and
implement the final HWIR-media rules.
Third, EPA believes that it is valuable
to propose regulations clarifying the
circumstances under which media
treatment variances are appropriate,
especially in the case of the variance for
a site-specific minimize threat
determination. The Agency requests
comments on the need for the specific
Media Treatment Variances proposed
today and the relationship of the
proposed Media Treatment Variances to
the existing site-specific variance
procedures in § 268.44(h).
a. The generic technology-based
treatment standard is technically
impractical (§269.31(a)(l)J. In some
cases, an owner/operator may be able to
demonstrate to the overseeing agency
that achieving the generic LDR standard
is technically impracticable. While EPA
believes it will typically be possible to
achieve the general standards using
common remedial technologies (e.g.,
biological treatment, soil washing,
chemical oxidation/precipitation,
activated carbon, air stripping), the
Agency recognizes that, in some cases,
these technologies may not be able to
meet the 90% or 10 times the UTS
standard. For example, comparison of
leachate concentrations from some
metal-bearing wastes before and after
stabilization or solidification may not
indicate a 90% reduction (and may not
be at concentrations below 10 times the
UTS).
b. The generic technology-based
treatment standard is inappropriate
(§269.31(a)(2)). Many site-specific
circumstances could cause the generic
treatment standard to be inappropriate.
In some cases, the media to be treated
may differ significantly from the
material upon which the generic
treatment standard was based. For
example, the Universal Treatment
Standards for water were based on
treatment of industrial wastewater. In
some situations facility owner/operators
could be treating groundwater that
poses unique treatability issues, and
may merit an alternative treatment
standard (e.g., groundwater that is
highly saline or has high concentrations
of other naturally occurring
contaminants such as iron). In another
example, treatment of soils
contaminated by heavy chain
polynuclear aromatics (PNAs) with non-
combustion strategies may not be
sufficient to meet the 10 times the UTS
standard.
In other cases, the generic treatment
standard will be inappropriate because
use of an alternative treatment standard
would result in a net environmental
benefit. For example, use of innovative
treatment technology might result in
substantial reductions in constituent
concentrations in the near-term, while
use of a more traditional treatment
technology might eventually achieve the
generic treatment standard but take
twice as much time. For a discussion of
EPA's position that a treatment standard
may be deemed inappropriate when
imposing it "could result in a net
environmental detriment." (See 59 FR
44684, 44687, (August 30, 1994)).
c. Threats can be minimized with less
treatment than the generic technology-
based standard would require
(§269.31(b)). As discussed earlier, EPA
prefers to base land disposal restriction
treatment requirements on risk. While
information is not available to establish
generic risk-based treatment standards
for contaminated environmental media,
EPA believes that adequate information
may be available to establish site-
specific, risk-based treatment standards.
Using this variance, the Director would
be able to make a site-specific, risk-
based determination of § 3004(m)
treatment requirements. In other words,
the regulations would allow the Director
to determine on a site-specific basis,
"levels or methods of treatment, if any,
which substantially diminish the
toxicity of the waste or substantially
reduce the likelihood of migration of
hazardous constituents from the waste
so that short-term and long-term threats
to human health and the environment
are minimized" (RCRA section
3004(m)).
EPA is proposing this site-specific
approach to ensure appropriate levels of
treatment, and to provide some relief
from the generic LDR treatment
standards where an examination of
actual site circumstances demonstrates
that the requirements of section 3004(m)
may be met with lesser treatment than
that required by the generic, technology-
based standards proposed today. The
Agency has long recognized that section
3004(m) could be implemented on a risk
basis, and that the risk approach often
would require less treatment than the
BOAT approach (51 FR 1602, 1611,
(January 14, 1986); 55 FR 6640, 6642,
(February 26,1990); and Hazardous
Waste Treatment Council v. US EPA,
886 F.2d 355, 361 (D.C. Cir. 1989)
(upholding the Agency's view that
although permissible, risk-based
treatment standards are not compelled
by section 3004(m)).
The Agency believes that a great
number and variety of site-specific
factors would influence minimize threat
determinations; therefore, it is not
proposing generic decision criteria. In
general, however, EPA believes that the
decision factors for contained-in
decisions discussed earlier would be
appropriate. This is similar to the
approach in the LDR Phase II proposal,
in which the Agency expressed the view
that when a regulatory authority
determined that media no longer
contain hazardous waste, the regulatory
authority could also make a site-specific
determination that threats had been
"minimized" (58 FR 48092, 48128,
September 14,1993).
The Agency further believes the site-
specific minimize threat variance would
be particularly appropriate in situations
when the Director would be able to
determine that constituent
concentrations greater than the
proposed soil treatment standards
minimize threats at a site because not
providing such relief would result in a
less protective remedy. Often, when
excavation of environmental media
would trigger the duty to comply with
LDRs, the LDR treatment standards
serve as a disincentive to excavation
and treatment in the remediation
context. In proposing the NCP, EPA
discussed the effect that LDRs can have
on CERCLA decision making:
For wastes potentially subject to the LDRs,
essentially only two options will generally be
available—treatment to BDAT standards, or
containment (including containment of
wastes treated in situ). The range of treatment
technologies between these two extremes that
may be practical and cost-effective, and yield
-------
18812 Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules
highly protective environmental results,
would not be available to decision makers. In
some cases, given only these two remedial
choices, decision makers may be pressured to
select containment remedies that offer less
permanence than treatment options that
might otherwise be selected if the LDRs were
not applicable (54 FR 41566, 41568, (October
10,1989)).
EPA has experienced the same effect in
the RCRA closure program. (See 54 FR
41566, 41568, (October 10,1989)).
"EPA's experience with the RCRA
closure program has shown that owner/
operators, faced with the choice of using
BDAT treatment, or no treatment or in
situ treatment, have a strong incentive
to choose the less costly option * * *
which may actually result in less
effective long-term performance for
many closed units").
While Congress did not address how
to determine when threats are
minimized in the remediation context, it
obviously did not intend LDRs to act as
a barrier to aggressive cleanup when
enacting RCRA section 3004(m).
Therefore, the Agency believes that in
cases presenting the dilemma outlined
above, and where imposing a lesser
standard would encourage more
protective management of the media, it
would be reasonable for the Director to
decide that, because overall risks at the
site would be significantly reduced,
imposition of lesser LDR treatment
requirements would minimize threats at
that site; therefore, as a general rule,
cleanup to health-based standards
through implementation of an approved
remedy in the context of an agency-
overseen cleanup can be presumed to
minimize threats even when the remedy
involves placement (or re-placement) of
contaminated media which does not
meet the generic, technology-based LDR
treatment standards. The Agency notes
that most Federal and State remedy
selection criteria and cleanup
procedures include independent
requirements or preferences for
treatment to ensure that remedies are
protective over the long-term, although
such would not necessarily be to the
generic, technology-based LDR
treatment standards.
Consistent with the recommendations
of the FACA Committee, which agreed
that higher-risk contaminated media
should be subject to generic, nationwide
standards, while lower-risk
contaminated media should be
addressed on a site-specific basis in the
context of agency overseen cleanups,
the Agency is proposing to limit the
availability of the site-specific
minimized threats variance to
hazardous (or formerly hazardous)
contaminated environmental media
with all constituent concentrations
below the Bright Line. For media that
does not have a Bright Line (i.e.,
sediments) program implementors
should consider the Bright Line risk
levels and principles when determining
if a site-specific minimize threat
variance is appropriate. Despite this
limitation, the Agency believes that the
site-specific, minimize threat
determination will provide significant
and appropriate relief since Agency
experience has shown that the dilemma
of choosing between capping and/or
treating media in place or excavating
and triggering inflexible LDR treatment
standards is much more likely to
present itself with less contaminated
media (such as media in which all
constituents are below the Bright Line)
(54 FR 41566, 41567, October 10,1989).
This is because an in situ option is
much more likely to be acceptable
under a remedial authority where
wastes are not highly concentrated.
EPA recognizes that there may be
concerns regarding the ability of the
overseeing agency to grant a treatment
variance based on a site-specific
determination that threats are
minimized. However, it should be noted
that these decisions would go through
the same notice and comment
procedures as other substantive
standards included in RMPs. Any
concerns with risk-based treatment
standards identified in a particular RMP
could be raised during the comment
period, and the overseeing agency
would be required to address them
when finalizing the RMP.
EPA seeks comments on its approach
to site-specific, minimize threat
variances. For example, should EPA
propose more specific standards for
making minimize threat determinations?
Should the Agency allow site-specific
minimize threat variances for any
constituent subject to treatment that has
initial concentrations that are less than
Bright Line concentrations even though
other constituents in the same medium
might have concentrations that are
greater than Bright Line concentrations?
Should EPA allow site-specific,
minimize threat variances when
constituent concentrations drop below
Bright Line concentrations even if the
generic, technology-based LDR
treatment standards (i.e., 90% or 10
times the UTS) have not yet been
achieved? Should EPA allow site-
specific, minimize threat variances for
constituents with initial concentrations
that are greater than the Bright Line?
EPA requests that commenters who
support specific standards for minimize
threat determinations suggest standards
for EPA consideration, and address the
application of these standards in the
remediation context. Commenters who
support minimize threat determinations
for contaminated media with
constituent concentrations above the
Bright Line should address the
relationship of these determinations to
contained-in decisions (which, under
today's proposed rule are not allowed
for contaminated media with
constituent concentrations above the
Bright Line).
The Agency also requests comments
on whether it should attempt to provide
explicit opportunities for site-specific
minimize threat determinations outside
of the HWIR-media context (e.g., add
appropriate provisions for non-HWIR-
media contaminated media to the
current treatment variance rules at
§ 268.44(h))? If so, should these
determinations be limited to media with
constituent concentrations below the
Bright Line?
8. Request for Comment on Other
Options
Two of the Agency's stated policy
objectives for the HWIR-media rule are
to develop requirements that are
appropriate for contaminated media and
to remove administrative obstacles to
expeditious cleanups where possible.
EPA has struggled with these objectives
in the context of LDR requirements. The
applicability of land disposal treatment
requirements depends, in part, on
whether contaminated environmental
media are determined to contain
hazardous waste. Under today's
proposed rule, contaminated
environmental media that contain
hazardous waste, are placed after the
effective date of the applicable land
disposal prohibition, and have
concentrations of hazardous
constituents above the Bright Line will
always be subject to the LDRs because
contained-in decisions are not allowed
for contaminated environmental media
with constituent concentrations above
the Bright Line. For such contaminated
environmental media with constituent
concentrations below the Bright Line,
overseeing agencies would have the
discretion to make contained-in
decisions, as discussed in section
(V)(A)(4)(a), above. Accordingly, in
some cases, the LDRs might apply to
contaminated environmental media
with all constituent concentrations
below the Bright Line (e.g., where the
duty to comply with LDRs attached to
the contaminating waste prior to the
initial act of disposal), while in other
cases they might not.
While the Agency believes that
today's proposed LDR requirements are
consistent with the goals and objectives
-------
Federal Register / Vol. 61, No. 83 / Monday. April 29, 1996 / Proposed Rules 18813
of the HWIR-media rulemaking and
would provide significant and
appropriate relief from the LDR
treatment requirements for as-generated
wastes, it requests comments and
suggestions that identify other options
for developing appropriate land
disposal restriction standards for
contaminated media.
The Agency is especially interested in
comments that address environmental
media with all constituent
concentrations below the Bright Line.
For example, the HWIR FACA
Committee expressed the view that it
would be appropriate, as a policy
matter, to exempt contaminated media
with constituent concentrations below
the Bright Line from LDR treatment
requirements when these media were
subject to agency-overseen cleanups.
Comments are therefore invited on how
the Agency could attain this result
consistent with the requirements of
section 3004(m). For example, would it
be appropriate for EPA to define
contaminated soil and/or other
contaminated environmental media
(e.g., groundwater, sediments) as a
separate LDR "treatability group?"
Changes in treatability groups generally
result when the properties of a waste
that affect treatment performance have
changed enough that the waste is no
longer considered similar to those in its
initial group. Each change in a waste's
treatability group constitutes a new
point of generation; if the waste is no
longer considered "hazardous" at the
time of the change (e.g., through a
contained-in decision), LDRs would not
attach even though the initial waste
might have been subject to LDRs prior
to the change in treatability group (55
FR 22520, 22660-22662, June 1,1990).
The Agency notes that the treatability
group approach could be Bright Line
dependent (i.e., available only for
contaminated media with all constituent
concentrations below the Bright Line) or
Bright Line independent (i.e., available
for all contaminated media regardless of
constituent concentrations).
9. LDR Treatment Requirements for
Non-HWIR-media Soils
In some cases, hazardous
contaminated soils would not be subject
to the alternative LDR treatment
requirements in today's proposal. This
will be the case in states that choose not
to adopt the HWIR-media rules and may
also occur at sites where cleanup occurs
without direct agency approval (e.g.,
voluntary cleanup sites). The Phase H
proposal would have modified the LDR
treatment standards for all hazardous
soils regardless of the presence of
agency-oversight; however, under
today's proposal, the alternative LDR
soil treatment standards would only be
available when applied by an overseeing
agency through issuance of a RMP.
Today's proposal would limit
application of the alternative soil
treatment standards proposed today
because they were developed, in part,
using the assumption that they would
only be applied with agency-oversight
and, therefore, could be easily adjusted,
either upward or down, to account for
" site-specific conditions. Nonetheless,
the Agency requests comment on
whether it would be appropriate to
extend the 90%/lOxUTS treatment
standard proposed today to all
hazardous contaminated soils, instead
of limiting them to soils managed under
an approved RMP. This would allow
their use in States that do not seek
authorization for this rule, or by facility
owner/operators who wish to proceed
with remedies ahead of formal agency
approval of a RMP.
Alternatively, should the Agency
adopt soil treatment standards that are
adjusted to account for the lack of State
or Agency oversight over how they are
administered? For example, should the
Agency promulgate a 10 times the UTS
only standard for non-HWIR-media
hazardous soils? This would account for
the fact that the "safety-net" provided
by proposed § 269.32, which would
allow the Director to impose more
stringent treatment standards Director
on a case-by-case basis, would not be
applicable in the non-HWIR-media
situation. Would some other
combination of a greater percent
reduction and lesser UTS multiplier be
more appropriate?
10. Issues Associated With Hazardous
Debris
Earlier in the preamble for today's
proposal, EPA requested comment on
whether the substantive requirements of
today's proposed rules should be
applied to hazardous debris as defined
in 40 CFR 268.2(h). Hazardous debris
are currently subject to a specific set of
LDR treatment standards, promulgated
in the LDR Debris rule (57 FR 37194,
37221, August 18,1992J.24 In individual
cases where the generic, national LDR
treatment standards are not appropriate
or un-achievable for certain hazardous
debris, EPA and authorized states may
grant site-specific treatment variances
using the procedures in 40 CFR
268.44(h).
The LDR treatment standards for
hazardous debris promulgated in the
LDR Debris Rule are generally expressed
as generic, specified technologies, rather
than constituent concentrations. While
EPA believes that the technologies
specified for debris treatment are
generally compatible with most types of
remedial activities, the Agency
recognizes that applying different
regulatory schemes at the same site (one
for media and one for debris) may
unnecessarily complicate cleanups and
raise cleanup costs without a
discernable environmental benefit.25 In
addition, the debris treatment
technologies can be problematic in some
instances, especially when the standard
of 0.6 cm surface removal is applied to
brick, cloth, concrete, paper, pavement,
rock or wood debris treated with high
pressure steam or water sprays.
EPA requests comments on whether
the current LDR treatment standards for
hazardous debris remain appropriate or
whether hazardous debris should,
instead, be subject to treatment
standards similar to the standards in
today's proposed rule for contaminated
media, or whether some combination of
the standards would be most
appropriate. For example, EPA could
allow the Director to impose either the
generic debris treatment technologies
codified in the Hazardous Debris Rule
or, if appropriate, specify site-specific
LDR treatment standards (either as
constituent concentrations or specified
technologies) using the proposed site-
specific, minimize threat Media
Treatment Variance. Since under
today's proposal, site-specific minimize
threat Media Treatment Variances are
only available for contaminated media
with constituent concentrations less
than Bright Line concentrations, EPA
requests that commenters who support
site-specific, minimize threat variances
for debris address application of the
Bright Line to debris. More generally,
EPA requests comments on whether the
variances provided for in 40 CFR
268.44(h) are sufficient to provide for
appropriate management of hazardous
debris or whether the Media Treatment
Variances proposed today would be
more appropriate.
While today's proposed rule does not
include changes to the existing LDR
treatment standards and requirements
for hazardous debris, EPA could include
new LDR treatment standards or
requirements in response to public
comment. Issues associated with
hazardous debris and the possibility of
24 EPA is not now reopening the comment period
on the LDR Debris Rule.
25 BP Exploration Alaska Inc estimated that
managing hazardous debris in compliance with the
existing 40 CFR 268.45 regulations, rather than
including hazardous debris in on-going cleanups on
similarly contaminated media, would cost $3,200-
$6,000 a ton since Debris Rule treatment
technologies are rarely used in remote Alaska areas.
-------
18814 Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules
including debris in the final Part 269
regulations are also discussed in
sections (V)(A)(2) and (V)(A)(4)(b) of
today's preamble.
D. Remediation Management Plans
(RMPs)
1. General Requirements—§ 269.40
Today's proposed rule provides for
considerable site-specific decision
making as to how contaminated media
should be managed as part of remedial
actions. This is particularly so in the
case of media that are determined not to
contain hazardous waste (on the
condition that there is compliance with
a RMP that would address any hazards),
and thus would not be subject to any of
the national, generic Subtitle C
management standards. Today's
proposal would provide a new
administrative mechanism—RMPs—as
the means for documenting, providing
for public review and comment, and
enforcing these site-specific
requirements.
Under the proposal, a RMP would be
required (1) whenever hazardous
contaminated media are managed
according to Part 269, and (2) whenever
a contained-in determination is made
for non-hazardous contaminated media
(i.e., contaminated media are
determined by the Director to not
contain hazardous wastes), and (3)
whenever non-hazardous contaminated
media are managed in accordance with
site-specific management requirements
prescribed by the overseeing Agency.
Thus, any management of contaminated
media that would need a permit
according to § 270.1—if Part 269 did not
apply—would require a RMP.
It should be understood that RMPs
could also be used (if deemed
appropriate by the Director) as the
procedural/administrative vehicle for
imposing management requirements, in
addition to those required under Part
269, for any hazardous cleanup wastes
under Part 264, and as requirements for
management of non-hazardous cleanup
wastes. The following are examples of
the types of management requirements
that could be imposed under a RMP,
and the circumstances under which
those requirements could apply. When
applicable, a RMP must include
requirements for management of:
1. Hazardous contaminated media at
the media cleanup site, imposed
pursuant to Part 269;
2. Hazardous contaminated media at
the media cleanup site, imposed
pursuant to applicable unit-specific
provisions of Part 264 (e.g., standards
for tanks, landfills, etc.);
3. Hazardous contaminated media at a
permitted, off-site hazardous waste
management facility, imposed pursuant
to the Part 269 LDR treatment standards;
4. Other types of hazardous cleanup
wastes (e.g., debris, sludges) that are
managed in compliance with applicable
provisions of this chapter;
5. Non-hazardous contaminated
media (i.e., media that have been
determined by the Director to not
contain hazardous wastes, in
accordance with § 269.4), that are
managed either at a media cleanup site
or elsewhere, in accordance with site-
specific or other management
requirements imposed pursuant to any
applicable State or Federal management
requirements, which do not require the
presence of hazardous waste; and/or
6. Other types of non-hazardous
cleanup wastes that are generated from
a media cleanup site and managed
either at the site or elsewhere, in
accordance with management
requirements imposed pursuant to
applicable State or Federal regulations.
As explained above, RMPs would
always be required whenever Part 269
requirements are implemented, except
when the cleanup is conducted under
circumstances where a permit is not
required, such as in CERCLA responses.
In the case of CERCLA on-site removal
or remedial actions, RMPs would not be
required. Generally, however, a Record
of Decision (ROD), or other CERCLA
decision document, would specify the
requirements for compliance with Part
269, if the remedy involved
management of contaminated media.
As mentioned already, the provisions
of this rule would not waive or replace
otherwise applicable provisions of
Subtitle C. For example, if the cleanup
will be taking place at an operating
RCRA Treatment Storage or Disposal
Facility (TSDF),26 that TSDF would still
need a traditional RCRA permit for its
ongoing operations. If that facility
wanted to conduct cleanup according to
Part 269, the RCRA permit for the site
could serve as the RMP, or the facility
could have both a RMP and a RCRA
permit. In addition, if hazardous waste
management units are to be employed
during the remedial activities, such
units would have to be operated in
26 i.e., hazardous waste management activities
apart from the cleanup activities would require a
RCRA permit. Although the part of the site where
the remediation was taking place could be
considered a "media remediation site," the entire
facility could not be considered a "clean up only"
site, and therefore would be subject to applicable
RCRA requirements, including permitting, and
RCRA §§ 3004(u) and [v) facility, and beyond the
facility boundary, corrective action. (See definition
of media remediation site in 40 CFR 269.3, and
preamble section (V)(A)(3)).
compliance with the appropriate
standards of 40 CFR Part 264 (except
Subparts B and C, for general facility
standards and preparedness and
prevention) for design; operation;
closure and post-closure; handling
procedures; transportation, and
inspection of units or equipment.
The Agency is proposing this
approach because the requirements of
Subparts A and D-DD are appropriate to
ensure safe, protective operation of such
units for hazardous contaminated
media, just as they are appropriate for
new wastes. EPA is proposing not to
require compliance with parts B and C
because those sections were designed
for long-term operating hazardous waste
facilities, and not one-time cleanup
actions. However, EPA recognizes that
other 40 CFR Part 264 standards may
not be appropriate under certain site-
specific circumstances. EPA solicits
comments on what other, if any,
provisions of 40 CFR Part 264 should
not be applicable to management of
hazardous contaminated media at media
cleanup sites.
The proposed requirements
concerning RMPs (Subpart D) are the
only provisions of Part 269 that could be
applied to management of all types of
hazardous cleanup wastes. EPA
considered restricting RMPs to address
only management of media. Under such
an option, however, other types of
cleanup wastes, such as debris and
sludges, would require a permit—a
second authorizing document under the
RCRA permit requirements of Part 270.
The Agency does not propose to limit
RMPs in this way, because RMPs are
intended to expedite permitting and
accelerate cleanups for a wide variety of
sites, and because they can adequately
address public participation concerns.
As explained in section II of this
proposed rule, the requirement to obtain
RCRA permits for cleanups has often
frustrated desirable cleanup activities.
Thus, limiting RMPs to management of
contaminated media would severely
limit the relief that this rule is intended
to provide.
In addition, RMPs would be required
only if cleanup wastes are managed in
such a way that requires a RCRA permit,
or to document contained-in decisions
(that media do not contain hazardous
waste), and the management
requirements for the non-hazardous
contaminated media. In many cases,
hazardous cleanup wastes could be
managed in such a way that does not
trigger the requirement for a RCRA
permit. An example would be a site
where contaminated media are simply
excavated and transported off-site to a
permitted facility for treatment or
-------
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules 18815
disposal. Another example would be
treatment or storage in units that are
exempt from permitting requirements,
such as wastewater treatment units, or
less than 90-day treatment or storage in
tanks or containers. In summary, if
absent proposed Part 269, a cleanup
action did not require a RCRA permit
under § 270.1, and a RMP is not needed
to document a contained-in decision, it
would not need a RMP.
Under proposed § 269.40(e), a RMP
could be a "stand alone" document, or
as might often be the case, a part of a
more comprehensive document
example of a comprehensive document
would be an enforcement order that
explains the overall remedy for a
contaminated site. The order would
specify the requirements for
management of hazardous cleanup
wastes, and other remedial requirements
such as cleanup standards and source
control requirements. The order's media
management requirements would not
necessarily have to be presented as a
separate plan, so long as those
requirements were clearly specified to
enable public review and comment. On
the other hand, an overseeing agency
might prefer to issue a RMP for a
cleanup site, and use the RMP as the
vehicle for specifying other remedial
requirements, in addition to those for
waste management.
Proposed §269.40(c) provides that
RMPs may constitute RCRA permits for
the purpose of satisfying permitting
requirements under RCRA section
3005(c). RMPs are designed to
streamline the implementation of
remedial actions that need RCRA
permits by requiring less extensive
reviexv and comment procedures than
are required for RCRA permits. In
addition, facility-wide corrective action
requirements would not generally apply
to RMPs. (See preamble discussion of
media cleanup sites elsewhere in this
proposed rule).
Proposed §269.40 (f) and (g) specify
that approval of a RMP would not
convey any property rights, or any
exclusive privilege of any sort, and that
approval of a RMP does not authorize
any injury to persons or property, or any
invasion of other private rights, or any
infringement of State or local laws or
regulations. These statements were
taken from RCRA permitting
requirements. (See §270.4 (b) and (c)).
EPA believes that these statements
should apply in the same manner to
RMPs as they do to RCRA permits.
EPA believes it may also be
appropriate to specify that compliance
ivith a RMP during its term would
constitute compliance, for purposes of
enforcement, with Subtitle C of RCRA.
This would be consistent with 40 CFR
270.4(a) for RCRA permits. The Agency
requests comments on this issue.
2. Content of RMPs—§ 269.41
The purpose of a RMP is to document
the requirements for the contaminated
media that are being managed at the
media cleanup site, and to justify these
requirements. This documentation is
necessary because it (1) defines the
enforceable provisions that apply to
contaminated media management
activities; (2) provides information to
the Director that is sufficient to
determine that these actions will be
conducted according to applicable
provisions; and (3) provides sufficient
information and opportunity for public
comment through the public
participation procedures in § 269.43(e).
Although RMPs may be required for
the management of media that result
from investigations and treatability
studies, the Agency believes that the
process and content requirements for
such RMPs should be as streamlined as
possible. In those cases, under the
proposed rule it would only be
necessary to include relevant
information to determine that media
management activities would be in
compliance with the requirements of
this Part, and other applicable
requirements. This would ease the
administrative burden on investigations
and treatability studies, and therefore
facilitate getting these activities
underway at cleanup sites. EPA requests
comments on whether this streamlining
is appropriate, and whether more
should be done to reduce the
administrative burdens associated with
investigations and treatability studies in
regard to today's proposal.
Since several different types of
cleanup wastes may be managed under
approved RMPs, the RMP must define
what types of materials are being
managed according to their
requirements. For media that will be
managed by the requirements of this
Part, the proposed rule provides that
information must demonstrate that the
materials are indeed media, as defined
in proposed § 269.3. For hazardous
contaminated media and other
hazardous cleanup wastes that must be
managed according to the substantive
requirements under Subtitle C,
information would be required to
demonstrate what type of cleanup
wastes would be managed in order to
identify the applicable, substantive
Subtitle C regulations. This information
would be necessary to indicate that the
planned remedial activities involving
those materials would be in compliance
with those substantive requirements.
For non-hazardous contaminated media
which would be managed according to
applicable State/Federal requirements,
the RMP would have to include enough
information to allow the Director to
determine that the media did not
contain hazardous waste. Also, the RMP
would have to show that the media
would be managed in compliance with
any applicable State/Federal
requirements.
it is important to demonstrate that the
contaminated media being managed
would meet the definition in the
proposed § 269.3, and that planned
treatment of those media would meet
the treatment requirements of this Part,
if applicable. The RMP would have to
provide any information on the media
(or waste) characteristics, and the
constituent concentrations that would
affect how the materials should be
treated and/or managed. Particularly,
the RMP would have to provide
information on initial concentrations of
contaminants in the media so that the
overseeing agency could determine
when any applicable required treatment
reductions are met. Also, some
contaminants are treated more or less
successfully with different types of
technologies. Accordingly, this
information could affect how those
contaminants should be treated.
Different management requirements
could be more appropriate for different
sites, depending on the volumes of
hazardous contaminated media to be
managed at the site. Therefore, EPA
proposes that RMPs would be required
to include information on the volumes
of wastes and media to be managed.
The RMP should also specify the
types of treatment and management that
will be used to treat the contaminated
media under the RMP. With this
information the Director could
determine if other Subtitle C
requirements would be applicable to
that treatment, such as the 40 CFR Part
264 standards. The Director also could
determine if the treatment would be
conducted in a way that would be
protective of human health and the
environment.
As discussed in the section
"Treatment Requirements for Hazardous
Contaminated Media" of today's
proposed rule, EPA is concerned about
the potential for remedial technologies
to cause cross-media transfer of
contaminants. For example,
contaminants could be volatilized for
removal from the soil, but releasing
them to the air could then contaminate
the air. Obviously, this would not
accomplish the Agency's goal of actual
cleanup of contaminants. Instead the
-------
18816
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules
Agency proposes to control the potential
of cross-media transfer by requiring that
the RMP would include information on
how the treatment system would be
designed and operated so that the
transfer of pollutants to other
environmental media would be
minimized.
As discussed earlier, EPA is currently
developing a set of guidance documents
called Best Management Practices for
Soils Treatment Technologies. These
documents will provide guidance for
controlling cross-media contamination
from different categories of remedial
technologies. This guidance will be
made available for comment before it is
finalized.
In EPA's experience, accurate waste
analysis is critical in selecting effective
remedial waste management
requirements. Thus, the proposed rule
states that RMPs would include
information on planned or completed
sampling, and analysis procedures
necessary to many aspects of the
remedial actions, including:
characterization, ensuring effective
treatment, and demonstrating
compliance with the treatment standard.
In addition, the RMP would include
quality assurance, and quality control
procedures to validate the results of the
sampling and analysis.
The Agency is currently developing
guidance on how to sample, test, and
analyze contaminated media. This
guidance would be used to characterize
the contaminated media being managed
in a way that EPA would generally
consider adequate for compliance with
this Part. This draft guidance is
available for comment in the docket for
today'sproposal.
EPA has found it necessary to collect
treatability data for contaminated media
so that it can set treatment standards
with reasonable faith that those
standards can be met with available
technologies, and provide information
on which technologies have
accomplished what results on what
kinds of contaminated media to
potential users. Today's proposed rule
would provide tremendous flexibility in
LDR treatment standards because,
among other things, of a lack of data
regarding what treatment levels can
actually be met in practice. One of the
rule's goals is to provide data to ensure
appropriate, future treatment
requirements. In order to collect this
much-needed data, the proposed rule
would require that upon conclusion of
implementation of remedial
technologies (both full-scale as well as
treatability studies), conducted under
approved RMPs, data be submitted to
EPA in the manner specified in
Appendix B to this Part. (See
§§ 269.41(c)(9) and 269.42(b)). The
Agency will make these data available
to the public once they have been
compiled into EPA's NRMRL treatability
database. EPA proposes that data from
treatability studies be submitted as soon
as the treatability study (or studies) has
been completed. Full-scale operating
data would be submitted every three
years, or after the cleanup has been
completed, whichever is first.
Treatability data. The National Risk
Management Research Laboratory
treatability database is available through
the Alternative Treatment Technology
Information Center (ATTIC) system or
on disk at no charge from EPA. The
ATTIC system provides access to several
independent databases as well as a
mechanism for retrieving full-text
documents of key literature. The ATTIC
system can be accessed with a personal
computer and modem 24 hours a day,
and no user fees are charged.
To access the ATTIC system, set your
PC communications software as follows:
Name: ATTIC
Number: (703) 908-2138
Baud Supported: Up to 14,400
Parity: N
Data Bits: 8
Stop Bits: 1
Terminal Emulations: ANSI, VT100
Duplex: Full
For further information on the ATTIC
system, please call the ATTIC Hotline
at: (703) 908-2137, or contact the ATTIC
Program Manager: Daniel Sullivan, U.S.
EPA (MS 106), 2890 Woodbridge
Avenue, Edison, NJ 08837-3679, phone:
(908) 321-6677, fax: (908) 906-6990.
The Agency requests comments on
whether this procedure and format will
meet the goals of providing access to the
public and regulated community about
achievable treatment at cleanup sites,
and whether it will provide adequate
information to the Agency for the
development of future rulemakings.
For many reasons, the Director could
decide that further information in the
RMP is needed to determine compliance
with this Part. If the Director does
request further information (according
to §269.41(c)(10)), the owner/operator
shall revise the proposed RMP to
include that information.
Fostering innovative technologies.
The Agency believes that environmental
regulations and policies should
promote, rather than inhibit, the
innovation and adaptation of new
technologies. By adopting such a
strategy, environmental policy can
promote both the economy and the
environment by creating new industries,
jobs, and a new capability to make
environmental progress. We therefore
are seeking comments on how this
regulation can further innovative
technology as well.
In order to clarify what the Agency
means by innovative technology in this
case, the following is a definition from
the White House "Bridge to a
Sustainable Future" document from
April 1995. "[A] technology that
reduces human and ecological risks,
enhances cost effectiveness, improves
efficiency, and creates products and
processes that are environmentally
beneficial or benign. The word
"technology" is intended to include
hardware, software, systems, and
services. Categories of environmental
technologies include those that avoid
environmental harm, control existing
problems, remedied or restore past
damage, and monitor the state of the
environment."
One example of how this proposed
rule attempts to foster innovative
technologies is by creating a new media
treatment variance. In cases where
innovative technologies will be
protective of human health and the
environment, given site-specific
conditions, a media treatment variance
could set an alternative treatment
standard using an innovative
technology.
The Agency requests comments on
what specific regulatory or policy
changes should be added to the rule to:
(1) Increase incentives for innovative
technologies; and (2) identify and
reduce any existing barriers to
innovative technologies. Specifically,
the Agency requests comments on how
RCRA requirements can be changed, in
a manner acceptable to all concerned
parties, to allow for rapid technology
development.
EPA solicits comments on the
desirability of, and possible approaches
for, tailoring regulatory requirements for
technologies when the risk of a major
system failure is impossible, remote, or
without significant risk from unit
operations commonly called "soft
landing technologies." For such
technologies, particularly those that are
in-situ, a high level of regulatory control
does not appear necessary. Certain ex-
situ technologies such as soil washing
also seem to present a minimal risk.
EPA requests comments and suggestions
specifically on how regulatory
requirements could be tailored to "soft
landing" technologies. For example,
should RMPs for soft landing
technologies have a more streamlined
approval process than other RMPs; or
should they be exempt from permitting
requirements entirely; or should their
requirements be tailored differently?
-------
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules
18817
Iures.
le
3. Treatability Studies—§ 269.42
EPA recognizes that treatability
studies are likely to be an important
component of evaluation, selection, and
application of LDR treatment
technologies, especially for innovative
technologies. Thus, it may be highly
desirable or even necessary to generate
site-specific, pilot-scale treatability
information to support preparation of
Remediation Management Plans (RMPs).
In § 269.42 of today's proposed rule,
EPA proposes that treatability studies
would be conducted subject to the
discretion of the Director, and in
accordance with appropriate provisions
of 40 CFR 269.41 and 269.43. (See
discussion above). If a treatability study
were going to be conducted under a
RMP, the RMP would include
information describing how the study
would be conducted, including relevant
design and operating parameters,
information on waste characteristics,
and sampling and analytical procedu
If applicable, the currently availabl
Treatability Sample Exclusion Rule
could be used for treatability studies;
however, the rule might not cover all
situations where relief for treatability
studies is needed. EPA solicits
comments on whether it would be
preferable to revise the Treatability
Sample Exclusion Rule (40 CFR
261.4(e)-(f)) to allow site-specific
decisions regarding quantities and time
frames for treatability studies that have
been conducted in support of activities
covered by HWIR-media, or other
cleanup projects.
The Agency recently revised the
Treatability Sample Exclusion Rule to
allow up to 10,000 kg of contaminated
media to be used in treatability studies
without permits or manifests. In
promulgating the revision, EPA was
aware, based on comments received on
the proposal, that the quantity limits
were not always sufficient to allow
treatability studies of appropriate scale,
particularly for in-situ treatments.
Because treatability studies in support
of HWIR-media activities have the
objective of improved remedial
decision-making and cleanups, and
would take place under regulatory
oversight, EPA sees merit in facilitating
appropriate scale studies, and requests
comments on whether to allow the
Director to determine, on a site-specific
basis, to exempt waste under treatability
studies when necessary in order to
obtain effective treatability study
results. The Director would be required
to ensure, as always, that exempting the
xvastes would not pose a threat to
human health and the environment. The
Agency requests comments on any other
approaches to effective treatability
studies, and other issues related to this
area.
4. Approval of RMPs—§ 269.43
This section of the proposed rule sets
out procedures for review and approval
of RMPs. If, however, the overseeing
Agency were using an alternative
document as discussed above, and if the
Agency had review and approval
requirements for the document (that
provide equivalent or greater
opportunities for public review and
comment), then those alternative
procedures could be used. Examples of
these procedures would be the RCRA
permit, or the permit modification
procedures in Part 270. If necessary, the
Director could also require further
review and comment procedures.
The proposed rule would require both
the owner and operator to sign the draft
RMP before submitting it to the Director
for review and approval. The owner and
the operator's signatures would certify
their agreement to implement the
provisions of the RMP if the RMP is
approved as submitted. In the context of
cleanups, EPA has found that, on
occasion, either the owner or operator is
unwilling to sign a permit application.
For example, a property owner may be
unwilling to sign, because of fear of
liability, where a lessee is conducting a
cleanup. EPA solicits comments on
whether signatures of both the owner
and operator are needed in every case.
The Director could require
modification or additional information
that might be necessary for
demonstrating compliance with the
requirements of this Part. For example,
to allow EPA and the States flexibility '
in using existing enforceable documents
and procedures to comply with the
requirements for RMPs, the Agency is
not proposing national requirements in
areas such as record keeping and
reporting. EPA believes that the Director
should specify any additional
requirements that he/she determines
necessary, (but that do not have national
requirements specified in Part 269) in
the RMP. The Agency requests
comments on whether EPA should
specify national requirements for record
keeping and reporting, or any other
requirements for RMPs.
Once the Director determines that the
draft RMP adequately demonstrates
compliance with the requirements of
this Part, he/she could add provisions to
the proposed RMP that specify
conditions under which the media must
be managed, in accordance with this
Part and other applicable provisions of
Subtitle C. The Director could also add
contained-in concentrations for media
that would be managed under the RMP.
If media that originally contain
hazardous wastes were to be treated to
a point at or below which they no longer
would contain the wastes, then these
levels would be necessary to define
when the media no longer contain
hazardous wastes.
If the Director had established
applicable State-wide contained-in
concentration levels, or if all media at
the site were to be managed as
hazardous contaminated media, then
such contained-in levels could simply
be referenced in the RMP.
The Director must also document site-,
specific minimize threat determinations
or other treatment variances in the RMP
if such a determination were made for
the site in question. This would provide
the public the opportunity to review
and comment on both containedrin and
minimize threat decisions.
EPA considers public review and
comment procedures to be an extremely
important part of the review and
approval process for remedial activities.
The Agency intends for the procedures
provided in this proposed rule to
balance the need for public involvement
with the need for fast and efficient
approval of remedial activities.
In essence, EPA is proposing to
require the use of the minimum public
participation requirements set out in
RCRA section 7004(b). Thus, the first
step in the proposed public review and
comment procedures is for the Director
to publish in a major local newspaper of
general circulation, and broadcast over
a local radio station his/her intention to
approve the RMP. This notice would
provide the public with the opportunity
to submit written or oral comments, and
would be required to specify the length
of time that the public has to comment.
The proposed rule specifies that the
comment period shall be no shorter than
45 days. At this time, the Director
would also be required to transmit a
written notice of his/her intent to
approve the RMP to each unit of local
government having jurisdiction over the
area in which the site was located, and
to each State agency having any
authority under State law with respect
to any construction or operations at the
site.
The next step is an informal hearing.
The Director could determine on his/her
own initiative that a hearing is
appropriate, or receive a request for a
hearing. In either case the Director
would be required to schedule a hearing
to discuss issues relating to approval of
the RMP. The hearing would provide
the interested public an opportunity to
present written or oral statements. The
Director would be required, whenever
-------
18818
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules
possible, to schedule the hearing at a
location that is convenient to the site's
nearest population center. The Director
would be required to give notice again
in the newspaper and on the radio of the
hearing's date, time, and subject matter.
After the comment period, and after
the hearing (if one is held) the Director
would be required to consider and
respond to all significant written and
oral comments (received by the
deadline) on the proposed RMP. If the
Director determines that it is
appropriate, he/she may modify the
RMP to accommodate the comments
received.
At that point, the Director would be
required to determine if the RMP were
adequate, and if it met the requirements
of this Part. If so, he/she would be
required to notify the owner/operator
and all other commenters in writing that
the RMP had been approved. Once the
RMP had been approved, it would be an
enforceable document, and a final
Agency action (not subject to
administrative appeals in § 124.19 of
this part).
EPA requests comments on whether
these public participation requirements
are appropriate for RMPs. The Agency
also requests comments on public
participation requirements in the State
Authorization section of this proposal.
The Agency is proposing this approach
to public participation for RMPs
because RMPs can serve as RCRA
permits-if necessary, hence, the Agency
is proposing to follow the statutory
requirements for public participation for
RGRA permits. The Agency also
requests comments on whether there
should be different levels of public
participation if the media contain
hazardous wastes, or if the Director
determines that the media do not
contain hazardous wastes. The Agency
requests comments on whether there
should be some flexibility in the public
participation requirements based on the
different types of activities that could be
performed according to RMPs. See
further discussion of this issue below in
the State Authorization section
(V)(E)(6)(b) of the preamble regarding
essential elements for an HWIR-media
program.
Proposed § 269.43(f) specifies that
RMPs that require combustion of
cleanup wastes at a media cleanup site
would have to be approved according to
the more rigorous procedures that are
required for RCRA permits under Part
270. Technologies involving higher
levels of energy input generally achieve
higher levels of contaminant removal/ -
destruction, and may do so with greater
consistency over a range of conditions.
Nevertheless, higher energy systems
potentially may have undesirable side-
effects. As in the case of combustion,
regulatory attention, including
preliminary demonstrations of
performance through trial burns, etc.,
has been found necessary to address
these concerns.
5. Modification of RMPs—§ 269.44
Plans for remedial actions sometimes
need to be modified. Often,
modifications are necessary as new
information becomes available, or when
unforeseen circumstances arise. In order
to retain the most flexibility for
overseeing Agencies that have their own
requirements for modification of
remedial plans, this rule proposes that
the RMP specify procedures for any
necessary modifications. The Agency
believes that if the modifications
include a major change in the
management of hazardous contaminated
media at the site, the modification
procedures should provide
opportunities for public review and
comment.
6. Expiration, Termination, and
Revocation of RMPs—§ 269.45
In a similar manner as modifications
to RMPs, EPA intends for the Director
to specify in the RMP the procedures
under which the RMP will expire,
terminate, or be revoked. RMPs which
constitute permits for land disposal
facilities must be reviewed every, five
years to comply with the statutory
requirements under RCRA section
3005(c)(3), and all RMPs which
constitute RCRA permits must be
renewed at least every 10 years, if they
will remain in effect longer than that, in
order to comply with the statutory
requirements under RCRA section
3005(c)(3).
E. Streamlined Authorization
Procedures for Program Revisions (Part
271)
1. Statutory and Regulatory Authorities
Section 3006(b) of RCRA, 42 U.S.C.
6929(b), instructs EPA, after notice and
opportunity to comment, to'authorize
State programs, unless the Agency finds
that the State program is not equivalent
to the Federal program, nor consistent
with the Federal program, nor adequate
in providing for enforcement. General
standards and requirements for State
authorization are set forth in 40 CFR
Part 271. Following authorization, EPA
retains the enforcement authorities of
RCRA sections 3008, 7003 and 3013,
although the authorized State has
primary enforcement responsibility.
Pursuant to RCRA section 3009, 42
U.S.C. 6929, States may choose to •
implement hazardous waste
management requirements that are
either more stringent or broader in
scope than the Federal requirements.
State requirements that are more
stringent may be included in a State's
authorized program; requirements that
are broader in scope are not part of the
authorized State program.27 (See 40
CFR 271.1U)).
2. Background and Approach to
Streamlined Authorization
EPA has been reviewing State
authorization applications and
authorizing State hazardous waste
programs since the early 1980's.
Currently 49 States and territories have
received final authorization as defined
in 40 CFR 270.2 for the base RCRA
program.28 To varying degrees these
same States and territories are also
authorized to implement provisions
promulgated under the Hazardous and
Solid Waste Amendments of 1984
(HSWA). Many States have more than a
decade of experience promulgating rules
for and implementing authorized
hazardous waste programs.
Once authorized, States are required
to adopt and become authorized for new
and revised Federal requirements that
are more stringent than the authorized
State program. (See 40 CFR 271.21).
Since EPA regularly revises the RCRA
regulations in response to statutory
provisions, court ordered deadlines,
evolving science, and changing Agency
priorities, States continually submit
program revisions to EPA for review and
approval.
Under the current authorization
structure, all revisions to authorized
State hazardous waste programs,
including minor changes, are potentially
subject to the same standards of •
application and receive the same level
of EPA scrutiny. Preparation, review,
and processing of these program
revisions represent a significant
resource commitment on the part of
EPA and the States. Occasionally, States
and EPA Regions can experience delays
in authorization of State program
revisions during which EPA and a State
are jointly implementing many portions
of the RCRA program. For example, in
many States EPA is still implementing
27 More stringent State requirements are typically
those which impose additional requirements on
wastes or facilities that are already addressed by the
Federal program. Broader in scope requirements are
typically those that would address wastes or
facilities not covered by the Federal program. The
authorization status of a State's requirements does
not in any way affect the ability of a State to enforce
such requirements as a matter of State law.
28 In this context, the "base" RCRA program refers
to authorization for all or part of the regulations
promulgated by EPA prior to January 26,1983.
-------
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules
18819
regulations promulgated pursuant to the
1984 HSWA amendments. Any delay in
authorization of State program revisions
concerns EPA and State regulators, and
can confuse the public and the regulated
community \vho often must interact
with both agencies for even routine
inquiries (e.g., the status of a pending
permit application or the compliance of
a given hazardous waste management
facility).
EPA is continuously improving the
administrative processes associated
with authorization of State program
revisions. Over the past years,
improvements have been made through
joint training of State and Federal
authorization staff, increased emphasis
on early EPA involvement in initial
preparation of authorization
applications, and delegation of the
authority to grant authorization for
program revisions to EPA Regional
offices. EPA believes that the quality of
State program revision applications has •
improved and therefore, EPA review
and approval of these submittals has
accelerated.
Over the past two years, many EPA
rulemaking workgroups (including the
HWIR FACA Committee) began to
discuss and/or develop streamlined
authorization procedures specific to
their rulemakings. Based on these
discussions, EPA became concerned
that some of the recently gained
efficiencies in authorization processes
could be lost if every new Federal rule
contained its own specialized
authorization procedures. EPA believes
that promulgating specific authorization
procedures for each new rule could
force State and Regional authorization
personnel to continually revise their
application formats and review
procedures. EPA is especially concerned
since many States do not apply for
authorization of new Federal regulations
one rule at a time, but "cluster" their
authorization applications. Establishing
slightly different authorization
procedures for each new Federal rule
might preclude clustering of program
revisions, and actually slow
authorization by forcing States and EPA
Regions to prepare and process separate
program revision applications for each
new rule.
To address this situation, and to
further improve the authorization
process, EPA developed two generic sets
of streamlined procedures for the
authorization of program revisions. The
first set of streamlined procedures was
proposed in the Phase IV proposal (60
FR 43654, August 22,1995); ™ the
second set is being proposed today. EPA
believes that these procedures would
formalize some efficiencies in the
authorization of State program revisions
piloted by some States and EPA
Regions.
In addition, EPA believes that, by
using these new generic procedures,
States and EPA Regions would continue
to be able to cluster their authorization
applications, and conduct successful
reviews, by including all Category 1
rules in one authorization package, and
all Category 2 rules in another
authorization package. (See preamble
(V)(E)(3) for discussion of Categories 1
and 2). States and EPA Regions could
even choose, to coordinate the submittal
dates for these authorization packages.
For example, the Category 2 application
could be submitted prior to the Category
1 application. This would allow the
EPA Region to include an authorization
decision for both applications in one
Federal Register notice.
Through use of two sets of
authorization procedures, EPA hopes to
tailor the level of effort for preparation,
review, and approval of revision
applications to the significance of the
program revision. Both-new sets of
procedures would significantly
streamline authorization of program
revisions. However, both would also
provide for EPA review of State program
revisions and maintain opportunities for
public review arid comment on EPA's
proposed authorization decisions.
In developing streamlined
authorization procedures, EPA used
three guiding principles. First, States are
EPA's partners in environmental
protection. Although EPA must
maintain minimum national standards
for hazardous waste management, the
Agency recognizes that many States
have sophisticated, and highly-
developed programs for hazardous
waste management and cleanup
designed to meet their individual
circumstances and priorities. Second,
State programs do not have to be exactly
the same as the Federal program to be
equivalent. EPA review of State
programs must focus on whether State
programs would achieve the same
results. (See S. Rept. 98-248 p. 62).
Third, EPA should continue to promote
the most efficient use of State and
Federal authorization resources and take
advantage of opportunities to streamline
and otherwise encourage State
authorization.
a streamlined set of authorization
procedures that would apply to certain
routine changes to the LDR program,
such as the application of treatment
standards to newly identified wastes.
The streamlined authorization
procedures proposed with Phase IV
have come to be known as Category 1
procedures for authorization of program
revisions, or simply "Category I."
* " ™ "• IEPA
SBEPA Is not now reopening the comment period
on (ho Phnso IV proposal.
3. Streamlined Procedures—§ 271.21
a. Phase IVproposal—Category 1. In
the recent Phase IV Land Disposal
Restrictions (LDR) proposal (60 FR
43654, August 22, 1995), EPA proposed
In the Phase IV proposal! — ^
explained that the proposed streamlined
authorization procedures would also be
used for certain other revisions to the
LDR program and could be considered
for future, non-LDR, rules. EPA
proposed the generic streamlined
authorization procedures for Category 1
in the Phase IV proposal because many
of the changes to the LDR program
proposed in the Phase IV proposal
exemplify the types of program
revisions EPA believes should be
addressed by Category 1. In general,
EPA believes Category 1 authorization
procedures would be appropriate for
rules or parts of rules that do not change
the basic structure of the authorized
State program, or expand the State
program into significant new areas or
jurisdictions. For example, the
application of LDR treatment standards
to newly identified wastes and revisions
to existing LDR treatment standards
discussed in the Phase IV proposal
would be additions of new wastes to an
existing program, changes to numeric
criteria, or improvements in existing
procedures. These would have minimal
effect on the basic scope or
implementation of authorized State LDR
programs.
Since Category 1 authorization
procedures are designed for rules or
parts of rules that do not significantly
change the way a State might implement
its authorized program, EPA believes it
is essential that the State first be
authorized for the appropriate
prerequisite program component. For
example, the Phase IV proposal would
allow use of Category 1 authorization
procedures only in States already
authorized for the LDR Third Third
regulations (55 FR 22520, June 1, 1990)
since the LDR Third Third rule
essentially completed the framework of
the LDR program. Interested individuals
are encouraged to refer to the LDR Phase
IV proposal at (60 FR 43654, August 22,
1995), for more information on Category
1 authorization requirements and
.procedures. Note that in today's
proposed rule, EPA would reserve 40
CFR 271.21(h) for finalization of the
generic Category 1 streamlined
authorization procedures proposed in
40 CFR 271.28 of the LDR Phase IV
proposal.
-------
18820 Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules
b. Today's proposal—Category 2. In
this proposed rule, EPA addresses
authorization of program revisions that
have significant impacts on State
hazardous waste programs. EPA is
proposing generic Category 2
authorization procedures today because
we believe the HWIR-media rule
exemplifies the type of program
revisions which could be addressed
using the Category 2 procedures. In
general, EPA believes that Category 2
authorization procedures would be
appropriate for rules or portions of rules
that address areas not previously
covered by the authorized State
program, or that substantially change
the nature of the program.
For example, implementation of the
HWIR-media regulations proposed
today would involve policy decisions
for management of hazardous
contaminated media. These policy
decisions would likely affect the way
States implement hazardous waste
requirements at cleanup sites, and State
HWIR-media programs would probably
be significantly different from the
States' previously authorized programs.
As with the Category 1 procedures
discussed above, EPA believes it could
be appropriate to require States to be
authorized for certain rules prior to
receiving authorization for certain
Category 2 rules. For instance, a
prerequisite for authorization of today's
HWIR-media regulations would be final
authorization as denned by 40 CFR
270.2 for the "base" RCRA. program (the
base RCRA program is defined in
footnote #28 in (V)(E)(2) of today's
proposed rule).
the Category 2 authorization
procedures proposed today consist of
the following components: (i)
Requirements for Category 2 revision
applications; (ii) criteria to be used by
EPA to determine if Category 2 revision
applications are complete; and (iii)
procedures for EPA review and approval
of Category 2 revision application. Each
of these components is discussed in
detail below.
When developing the authorization
procedures discussed today, EPA sought
to balance its desire to recognize
successful State performance and
experience with the need to ensure
adequate implementation of minimum
Federal requirements. EPA requests
comments on (1) whether the
authorization procedures proposed
today sufficiently recognize the
sophistication of State programs, while
maintaining an appropriate level of EPA
review; (2) whether these provisions are
appropriate for authorization of the
HWIR-media regulations (alternative
approaches to HWIR-media
authorization and HWIR-media
eligibility are discussed in section
(V)(E)(6)(a) of today's proposed rule); (3)
other types of regulations that these
procedures could address; and (4)
whether the development of generic sets
of authorization procedures will
preclude or inhibit clustering of
program revision applications, thereby
potentially slowing their authorization.
EPA also requests comments from State,
tribal, and territorial governments on
the degree to which the authorization
approach proposed today will
streamline and create efficiencies in the
preparation, review, and approval of
revision applications.
i. Requirements for Category 2
revision applications (§ 271.21(i)(l)).
EPA is proposing that Category 2
revision applications include: (1) a
certification by the State attorney
general (or the attorney for State
agencies that have independent legal
counsel) that the laws and regulations of
th'e State provide authority to
implement a program equivalent to the
Federal program; (2) a certification by
the State program director that the State
has the capability to implement an
equivalent program and commits to
implementing an equivalent program;
(3) an update to the State/EPA
Memorandum of Agreement (MOA)
and/or State Program Description (PD) if
necessary; and (4) copies of all
applicable State laws and regulations
showing that such laws and regulations
are fully effective. EPA also proposes to
allow States, at their discretion, to
submit any additional information that
they believe will support their revision
application.
State certifications (§ 271.21(i)(l)(i)).
The State certifications should
specifically address the Category 2 rule
for which a State is seeking
authorization, and include reference to
State authorities and requirements that
provide for a State program equivalent
to the Federal program.
The State attorney general's
certification should include specific
citations to the State laws and
regulations that the State would rely on
to implement an equivalent program. If
appropriate, the attorney general's
certification should include citations to
judicial decisions that demonstrate that
the State's laws and regulations provide
for an equivalent program. All State
laws and regulations cited in the State
attorney general's certification must be
fully effective at the time the
certification is signed. Copies of all
cited laws, regulations, and judicial
decisions must be attached to the State's
certification.
In cases where authorization of a
Category 2 rule is contingent on the
State already being authorized for
certain rules, EPA is proposing that the
State attorney general's certification
include certification that the State is
authorized for the prerequisite
requirements. Although information on
a State's authorization status is, of
course, available to EPA, the Agency
believes that requiring that the State AG
certification address prerequisite
requirements would ensure that the
State adequately considers these
requirements when preparing the
authorization application. In addition,
States should note that existing
regulations at 40 CFR 271.21(a) and (c)
require an authorized State to keep EPA
fully informed of any proposed changes
to its basic statutory or regulatory
authorities, its forms, procedures, or
priorities, and to notify EPA whenever
they propose to transfer all or part of the
authorized program from the approved
State agency to another State agency.
Failure by an authorized State to keep
EPA fully informed of changes to State
statutes and regulations may affect
authorization of that State's program
revision applications.
The State program director's
certification should specifically address
the State's intent and capability to
implement an equivalent program. The
State program director is the "director"
as defined at 40 CFR 270.2. If EPA has
established essential elements for the
rule in question, the State program
director's certification must address
each essential element individually.
Essential elements are discussed in
detail below. It may be helpful for the
State to reference State policies,
procedures, or other documents that
support the State program director's
certification. When referenced, these
documents should be fully effective at
the time of the certification, and copies
must be attached.
Essential elements (§ 271.21(i)(l)(ii).
EPA could choose to promulgate
essential program elements for any
Category 2 rule. Essential elements
summarize critical program components
and/or implementation requirements.
They would be intended to focus State
and EPA resources on a review of
critical program components to
determine whether the State program
will achieve the same results as the
Federal program, rather than on line-by-
line comparisons of State and Federal
regulations. Essential elements could
include regulatory provisions, and •
enforcement or capability
considerations. EPA emphasizes that the
purpose of essential elements is not to
promote detailed or exhaustive re-
-------
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules 18821
evaluations of authorized State
programs. Instead, essential elements
should be used by State and EPA
Regions to ensure that all impacts of
certain Category 2 program revisions
have been identified and adequately
considered. As discussed in section
(V)(E)(3)(b)(iii) of the preamble below,
EPA would give great deference to
States in their certifications of
programmatic intent and capability.
EPA would establish essential
elements as specifically as possible;
however, because of the varying degrees
to which States are authorized for the
RCRA program and HSWA
amendments, some essential elements
could overlap with authorized
requirements in some States. For
example, one of the essential elements
proposed today for the HWIR-media
rule is "authority to address all media
that contain hazardous wastes listed in
Part 261 Subpart D of this chapter, or
that exhibit one or more of the
characteristics of hazardous waste
defined in Part 261, Subpart C of this
chapter." Some States that have already
been authorized for various portions of
the RCRA program, including the
corrective action program, and the land
disposal restrictions for hazardous
debris. These States have already
promulgated—and are using—
appropriate rules for addressing media.
If EPA promulgates essential elements
for a particular rule, EPA proposes that
the Director's certification would
address each essential element
individually. When State program
components corresponding to an
essential element have already been
reviewed by EPA when authorizing a
previous program revision, the Agency
would not re-evaluate the State program
component. In these cases, EPA would
evaluate the essential element portion of
the Director's certification only to verify
that the State did, in fact, consider the
essential element when deciding how it
would implement the program revision
at issue.
EPA is not proposing that essential
elements replace the authorization
checklists currently used by States and
EPA to document authorized State
authorities. However, to ensure that
work is not duplicated, future
authorization checklists would
incorporate any promulgated essential
elements. EPA is proposing essential
elements for the HWIR-media rule; these
elements are discussed in section
(V)(E)(6)(b) of the preamble to today's
proposed rule.
Update to the State/EPA
Memorandum of Agreement and/or
State Program Description
(§ 271.21(iKlHiii)). EPA is proposing
that the Category 2 revision application
would include either updates to the
State/EPA Memorandum of Agreement
and Program Description or certification
by the Director that such updates are not
necessary. EPA believes that these
updates or certifications must be
required because Category 2 rules could
affect the way a State implements its
authorized program.
Consequently, implementation of the
proposed program revision could raise
issues not addressed by the existing
MOA or PD. For example, .a State
hazardous waste agency may choose to
rely on another State agency (e.g., a
State water control board) to implement
some Category 2 rules. In these cases the
State/EPA MOA and Program
Description should be updated to reflect
the various roles and responsibilities of
the two State agencies, and to designate
a lead agency for communications with
EPA. (See 40 CFR 271.6). If an update
to the State/EPA MOA is needed, it
should be finalized and signed by the
State and EPA before final authorization
of the program revision.
EPA does not believe authorization of
Category 2 program revisions would
routinely necessitate updates to State/
EPA Memorandums of Agreement or
Program Descriptions. In cases where
the MOA already addresses issues such
as routine State program monitoring,
sharing of information, and procedures
for State enforcement, Category 2
revisions could simply add additional
requirements to those already
implemented by the State agency, and
updates would not typically be
necessary. Similarly, when the State
Program Description already addresses
the setting of State priorities,
organizational structures, and
implementation strategies, and a
Category 2 program revision only adds
to RCRA requirements already
implemented by the State agency,
updates would not typically be
necessary. In other cases, Category 2
program revisions—even those that
would simply add to the RCRA
requirements already implemented by a
State—could have significant resource
implications that should be addressed
in an update to the State Program
Description.
ii. Completeness check
(§§271.21(i)(2) and 271.21(k)). When
EPA receives a Category 2 revision
application, the Agency would conduct
a completeness check to determine if
the application contains all of the
required components. To be considered
complete, Category 2 revision
applications must include the State
attorney general and Director
certifications, any necessary updates to
the State/EPA MOA and PD, and copies
of all cited laws and regulations, as
discussed above.
The criteria for completeness checks
of Category 2 revision applications
would be essentially the same as those
proposed in the Phase IV proposal for
completeness checks of Category 1
revision applications. Like Category 1
revision applications, Category 2 ,
revision applications would be
considered incomplete if: (1) Copies of
the laws and regulations cited by the
State in their certifications were not
included; (2) the statutes and
regulations cited by the State were not
in effect; (3) the State was not yet
authorized for any prerequisite
regulations; or (4) the State certifications
contain significant errors or omissions.
EPA proposes to allow 30 days for the
completeness check. When the Agency
determines that a Category 2 revision
application is incomplete, it will notify
the State in writing. This written .
notification will specifically identify the
application's deficiencies, and provide
the State an opportunity to revise and
re-submit its application. In cases where
a State application was deemed
incomplete because of minor errors or
omissions, and the State and EPA are in
agreement on correction of such errors,
the Agency could choose to proceed
with the review and approval process
discussed below, emphasizing that final
authorization of the State program
would be contingent on agreed upon
corrections to errors in the State
application. ,
iii. Review and approval
(§271.21(i)(3)). Following determination
that a Category 2 program revision
application is complete, EPA would
review the application as necessary to
confirm that the State revisions are
equivalent to applicable Federal rules.
During this review, EPA could, for
example, examine an update to the
State/EPA Memorandum of Agreement,
if one were submitted, to see if it
addressed implementation roles.
Similarly, EPA could review the State
Director's certification of essential
elements to learn more about how the
State intended to implement the
program revision.
EPA proposes to allow a maximum
period of 60 days, beginning when the
Agency determines that a program
revision application is complete, to
consider the application, and to prepare
a Federal Register notice requesting
public comment on EPA's tentative
authorization decision. Although EPA
and the State may agree to a shorter or
longer review period, EPA believes that
it would be possible to confirm the
revision's equivalence and prepare the
-------
18822
Federal Register /Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules
necessary Federal Register notice
within 60 days.
Through the initial authorization of
the State program, EPA would have
become familiar with the program, and
with the laws and regulations of the
State. In addition, through the existing
procedures for EPA monitoring and
oversight of authorized State programs,
EPA would be familiar with a State's •
program priorities, implementation
strategies, policies; and procedures.
Therefore, authorization of program
revisions should be a straightforward
process, where EPA's role would be to
confirm that the State has adequately
considered implementation of the '
program revision at issue, and has
appropriately certified that the State
laws and regulations provide for a
program equivalent to the Federal
program. EPA emphasizes that the
review of program revision applications
that are provided for in proposed 40
CFR 271.21(i)(3) should be used only to
address the particular program revision
at issue. Concerns EPA might have with
parts of the State program that are
already authorized should be addressed
during EPA's monitoring and oversight
of the State program.
EPA believes that the exact level of
review necessary to confirm that a
State's revisions provide for a program
equivalent to the Federal program
would vary from State to State, and from
rule to rule. For example, in cases where
EPA is very familiar with the State
program (e.g., in the case of HWIR-
media, in a State authorized for
corrective action), the review necessary
for EPA to confirm equivalence would
not be extensive. In other cases, a State
may be proposing to implement a
program revision using a non-hazardous
waste authority, or a combination of
authorities, and the level of review
necessary for EPA to confirm
equivalency could be more intensive.
EPA has developed the Category 2
authorization procedures to allow States
and EPA Regions the flexibility to
establish the level of review necessary
for a determination of equivalence,
rather than presupposing that any given
level of review would be appropriate in
all States for all Category 2 program
revisions.
EPA proposes to use the procedures
for an immediate final rule (see 40 CFR
271.21(b)(3)) to request comments on its
tentative decision to approve or
disapprove a Category 2 program
revision. Immediate final rules, which
are published in the Federal Register,
provide a 30-day public comment
period, and go into effect 60 days after
publication unless significant adverse
comment is received. An example of
significant adverse comment would be
comments demonstrating that the cited
State authorities do not provide for an
equivalent program. EPA believes that
immediate final rules would typically
be the most efficient way to publish and
seek comments on its proposed program
revision authorization decisions;
however, the Agency and a State could
agree to use a proposed/final Federal
Register notice (as provided for under
40 CFR 271.21(b)(4)), if they believed
such notice would be more appropriate
to their circumstances.
EPA's goal is to authorize State
program revisions in a timely way. EPA
is committed to working with State
agencies to address any deficiencies or
areas of confusion in State applications,
and to support States as they develop
their programs. EPA emphasizes that,
when processing program revision
applications, it would give great
deference to the State in: (1)
interpretation of State laws and
regulations and the judgement that such
laws and regulations provide for an
equivalent State program; and (2)
certifications of State intent and
capability. As always, EPA encourages
States to work closely with the Agency
when developing revision applications.
The Agency has found that this "up
front" investment is often the most
effective way to streamline
authorization.
c. Clarification of the meaning of the
term "Equivalent" (§271.21(j)). EPA is
taking this opportunity to clarify that
the term "equivalent" means that the
proposed State program is no less
stringent than the Federal program. EPA
hopes that this clarification allows
States and Regions to efficiently focus
authorization applications and review
on the ability of the proposed State
programs to meet the minimum national
standards, rather than on line-by-line
comparisons of State and Federal
regulations. One of EPA's guiding
principles in developing streamlined
authorization procedures for program
revisions was that State programs do not
have to be exactly the same as the
Federal program to be equivalent, and
that EPA should focus its authorization
review on environmental results.
EPA is considering applying the
definition of "equivalent" discussed
above to all authorization decisions,
including authorization of Category 1
program revisions, authorization of
program revisions using the existing
regulations, and final authorization as
defined in 40 CFR 271.3. If EPA decided
to apply the definition of equivalent to
all authorization decisions, the '
definition would be finalized in 40 CFR
270.2. EPA requests comments on
whether or not the definition of
"equivalent" discussed above should be
applied to all authorization decisions •
and, if commenters believe that the
clarification should be applied to all
authorization decisions, whether or not
the definition should be finalized in 40
CFR 271.21(j) or 40 CFR 270.2.
d. Table of Authorization Categories
(§271.21 Table 1). EPA is proposing to
record rules or parts of rules eligible for
Category 2 authorization procedures and
any prerequisite requirements in Table
1 of 40 CFR 271.21. EPA believes that
tabulating the different Category 2 rules
and their prerequisite requirements is ,
the most effective and efficient way to .
present and maintain this information.
If the procedures for Category 1
proposed in the LDR Phase IV proposal
are finalized, the information proposed
in § 271.28(a) of that proposed rule, and
any future Category 1 rules and
prerequisite requirements, would be
also presented in table form.
e. Relationship of Category 1 and 2
procedures to existing authorization '
procedures for program revision, and
request for comments on the need for a
third Category. EPA believes that all
revisions to authorized State hazardous
waste programs required in the future
could fee appropriately addressed using
either the Category 1 authorization
procedures proposed in the LDR Phase .
IV proposal, or the Category 2
authorization procedures proposed
today. EPA believes that the Category 1
and Category 2 procedures would be
appropriate for all program revisions
since each retains a level of EPA review
appropriate to the program revision at
issue, and incorporates an opportunity
for the public to comment on EPA's
proposed authorization decisions.
Under this scenario, the existing
program revision procedures in 40 CFR
271.21(b)(l) would apply only to
authorization of rules or parts of rules
promulgated prior to finalization of the
Category 1 and 2 authorization
procedures discussed today.
Alternatively, EPA could retain the
existing program revision procedures as
Category 3, and use them to authorize
major revisions to State hazardous waste
programs (e.g., States authorized for the
first time for land disposal restrictions).
EPA requests comments on the need for
a third authorization category and the
types of revisions that might require that
level of review. In addition, EPA is
considering not changing the current .
program revision rules, and instead •
applying the streamlined authorization
procedures discussed today and in the
Phase IV proposal as guidance to
authorization of existing rules. EPA
requests comment on the degree to
-------
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules
18823
which Category 1 and 2 authorization
procedures should be used as guidance
when implementing the current
procedures for authorization of program
revisions.
4. Authorization for Revised Technical
Standards for Hazardous Waste
Combustion Facilities
Recently, EPA proposed Revised
Technical Standards for Hazardous
Waste Combustion Facilities published
in the Federal Register on April 19,
1996 at (61 FR17358). In this document,
EPA requested comment on whether the
streamlined authorization procedures
that were proposed on August 22,1995,
(see 60 FR 43654, 43686) should apply
to States seeking authorization for this
rule. Note that in today's proposed rule,
those procedures are classified as
Category 1.
In requesting comment on the use of
Category 1 procedures in the April 19,
1996 combustion standards proposal,
EPA made a distinction among those
States that would be approved to
implement the final rule pursuant to 40
CFR Part 63, Subpart E (in the Clean Air
Act (CAA) regulations), those States
simply incorporating this rule into their
RCRA regulations, and those States that
would be seeking to implement the rule
for the first time under RCRA authority.
EPA continues to believe that the
Category 1 procedures would be
appropriate for those States that would
be incorporating the combustion
standards rule from an already approved
State air program into the State RCRA
program. However, EPA stated in the
combustion proposal its belief that for
all other States, the slightly more
extensive authorization procedures
developed as part of today's HWIR-
media proposal would be most
appropriate. This preference is based on
the complexity and significance of the
combustion standards rule, which
substantially revises the performance
standards for hazardous waste
combustion facilities. EPA believes that
the Category 2 procedures provide the
benefits of streamlined authorization,
while allowing a slightly longer period
for EPA review.
Because the Category 2 authorization
procedure had not'been proposed before
the combustion standards rule was
developed, EPA was unable to request
comments on whether the proposed
Category 2 procedures should apply to
the authorization of those States that did
not incorporate by reference an
approved State CAA program for the
combustion standards rule. Thus, EPA
is now taking the opportunity in today's
notice to request this comment. EPA
will consider comments made regarding
today's notice when developing the
final combustion standards rule.
5. Request for Comment on Application
of Category 1 Procedures to Portions of
HWIR-waste Proposal
In the recent proposal to establish
self-implementing exit levels for listed
hazardous wastes, waste mixtures, and
derived-from wastes (the HWIR-waste
rule), EPA announced that it was
considering the possibility of using
streamlined authorization procedures
for some portions of the exit rule. (See
60 FR 66344, 66411-12, (December 21,
1995)). EPA has completed its initial
evaluation of this issue, and is
proposing today to apply the Category 1
procedures set forth in the LDR Phase IV
rulemaking to major portions of the exit
proposal.
Specifically, EPA is proposing to
allow States to use Category 1
procedures for all portions of proposed
40 CFR 261.36 (the exit levels,
requirements for qualifying for an
exemption based on these levels, and
the conditions for maintaining an
exemption). However, EPA is proposing
to restrict this option to States that have
already obtained authorization for the
pre-1984 base program, including the
1980 Extraction Procedure Toxicity
Characteristic. (Authorization for the
1990 Toxicity Characteristic that
replaced the EP rule would also be
acceptable). The two toxicity
characteristic rules closely resemble the
exit proposal. All three rules require
waste handlers to determine whether
their wastes contain specified hazardous
constituents in concentrations
exceeding specified threshold levels. All
three schemes also are self-
implementing, requiring the waste
handler to keep records but requiring no
prior approval by Federal or State
authorities. Thus, States that have been
authorized for the base program have
experience in drafting rules similar to
the proposed exit rule. They also have
significant experience in enforcing a
self-implementing waste determination
scheme that covers both organic and
metallic waste constituents. Although
the proposed exit scheme for listed
waste involves many more constituents
than either the EP or TC rule, EPA does
not believe that increasing the number
of constituents that waste handlers must
evaluate would warrant, by itself, a
detailed review of the State program.
Neither the base program nor the 1990
Toxicity Characteristic include any
conditions for maintaining an exit. The
conditions proposed in § 261.36,
however, would be requirements for
retesting, notification, and record
keeping similar to requirements in the
base program and the TC. Moreover,
they would be easy to understand, and
relatively easy to detect, if violated.
Accordingly, EPA believes that the .
Category 1 procedures would be
appropriate for these conditions. EPA
requests comments on its proposal to
allow use of Category 1 procedures for
all portions of § 261.36. The proposed
Category 1 procedures are described in
detail in the preamble to LDR Phase IV
proposal at (60 FR 43654, 43687-88,
August 22,1995). Proposed regulatory
text is set out at (60 FR 43654, 43698-
99, August 22, 1995).
EPA is also proposing to allow States
that have obtained authorization for the
Third Third LDR rule to use Category 1
procedures for the alternative
"minimize threat" treatment standards
in proposed revisions to § 261.40 and
proposed new § 268.49. States that are
already authorized for the basic
framework of the LDR program are
familiar with the type of rule changes
needed, have adopted all or most of the
underlying LDR program, and have
experience in implementing and
enforcing the rules. The minimize threat
levels would merely be different
numerical alternatives to some of the
existing BOAT standards. No change to
any other portion of the LDR program
would be required.
The December 1995 HWIR-waste
proposal also contains an option for
alternative, less restrictive exit levels
based on constraining the type of
management that the wastes will
receive. Under this option, wastes with
higher constituent concentrations would
be exempted from Subtitle C control if
they were not placed in land treatment
units. EPA believes that this option may
present significant new issues not
previously addressed in the base
program or any subsequent program
revision. Consequently, EPA is not
proposing to apply Category 1
procedures to this portion of the waste
exit proposal. Rather, EPA is proposing
to allow States that wish to adopt this
option to use the Category 2 procedures
proposed in today's proposed rule. EPA
requests comments on this proposal,
and the alternative of allowing States to
use Category 1 procedures for this
"management condition" option.
6. HWIR-media Specific Authorization
Considerations—§271.28
During the development of today's
proposed rule, EPA considered a
number of authorization alternatives
before deciding to propose the Category
2 authorization procedures discussed
above. One approach would have based
eligibility for final HWIR-media
authorization on whether a State was
-------
18824
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules
authorized to implement the corrective
action regulations under RCRA section
3004(u). Under this approach, all HWIR-
media authorization applications would
have been prepared, reviewed, and
approved using streamlined
procedures,30 but States that were not
authorized for corrective action would
have been granted HWIR-media
authorization for a two-year provisional
period. During this period, States would
have been required to demonstrate their
ability to implement an equivalent
program.
After careful consideration, EPA
tentatively determined that lack of
corrective action authorization should
not prejudice a State's ability to receive
prompt authorization for the HWIR-
media program. Many States that are not
authorized for corrective action
nonetheless have highly-developed,
sophisticated cleanup programs that
they are using to address RCRA
facilities, sometimes through work-
sharing agreements with EPA Regions.
EPA believes that it would be inefficient
to require States to undergo a two-year
provisional demonstration period, if
EPA is already familiar with the State's
program, and confident in the State's
ability to make appropriate cleanup
decisions. In addition, EPA was
concerned that a provisional period
approach would be cumbersome and
confusing, because it would rely on two
different procedures, and because it
involved, for States authorized under
this approach, a significant resource
commitment. Instead, EPA decided to
propose a single authorization approach
using the streamlined Category 2
process discussed above—not only for
States authorized for corrective action,
but for all States that have received final
authorization for the "base" RCRA
program. (See footnote #28,.(V)(E)(2) of
this preamble for a definition of the base
RCRA program). This would allow
almost all States to be eligible to use the
streamlined Category 2 authorization
procedures to their applications for
HWIR-media authorization. An
alternative approach to HWIR-media
eligibility, where States proposing to
use authorized hazardous waste
authorities to implement an HWIR-
media program would be authorized
using the Category 1 authorization
procedures, and all other States would
be authorized using the Category 2
authorization procedures, is discussed
30 Although considered prior to development of
the streamlined Category 1 and 2 authorization
procedures discussed today, the streamlined
procedures considered for HWIR-media
authorization most closely resembled those
proposed as Category 1 in the LDR Phase IV
proposal.
in section (V)(E)(6)(a) of this preamble
for today's proposed rule.
Although EPA did not decide to
propose that State authorization for
HWIR-media be based, in part, on a
State's corrective action authorization
status, the Category 2 procedures
proposed today would incorporate
many of the streamlined procedures
contemplated by the HWIR FACA
Committee. EPA solicits comments on
whether the alternative discussed above
(predicating authorization for HWIR-
media on corrective action
authorization, and requiring non-
corrective action authorized States to
undergo a two-year provisional period)
would be more appropriate to HWIR-
authorization and therefore should be
finalized in lieu of the approach
proposed today. The Agency also
requests comment on other alternatives
that would differentiate between States
which are authorized for RCRA
corrective action, and those which are
not.
q. Eligibility for HWIR-media
authorization, EPA proposes that
authorization to administer an approved
HWIR-media program would be made
available only to those States that have
received final authorization as defined
in 40 CFR 270.2 to implement the base
RCRA program (the base RCRA program
is defined in footnote #28 in section
(V)(E)(2) of today's preamble). Before
granting a State final authorization, EPA
would determine that the State in
question had legal and administrative
structures in place to implement an
equivalent program, that the State
program was consistent with the Federal
program and other authorized State
programs, and that the State had
adequate enforcement authorities.
EPA believes that final authorization
would be an essential prerequisite to
HWIR-media authorization because
States that have received final
authorization are allowed to decide that
solid wastes met the definition of
hazardous wastes. This authority
includes the authority to make
contained-in decisions that are a central
element of the HWIR-media program.
EPA believes that experience making
hazardous waste decisions would be
essential to a State's ability to make
contained-in decisions for media with
concentrations of hazardous
constituents that are below the Bright
Line. In addition, States that have
received final authorization would have
demonstrated capability in permitting,
ground water protection, oversight, and
enforcement of hazardous waste
management requirements.
States seeking authorization to
implement the new HWIR-media LDR
treatment standards and treatment
variances must first have received final
or interim authorization for the LDR
program through the Third Third LDR
rule (55 FR 22520, June 1,1990). As
discussed in the Phase IV proposal, EPA
believes that the LDR Third Third rule
established the general framework and
infrastructure of the LDR program. Since
the new LDR treatment standards and
treatment variances rely on the existing
infrastructure of the LDR program, EPA '
believes that it would be necessary for
States to be authorized for the LDR
Third Third rule before they could be
authorized to implement those portions
of the HWIR-media program. EPA
requests comments on whether the
Third Third LDR rule would be the
appropriate prerequisite requirement for
authorization of the changes to the LDR
program proposed today. If commenters
believe that the Third Third LDR rule is
not appropriate, EPA requests
suggestions for an alternative
prerequisite (e.g., the LDR Solvents and
Dioxins Rule, (51 FR 40572, November
7,1986)).
States that have not received final
authorization or LDR authorization
could seek HWIR-media authorization
concurrently with, or subsequent to,
those authorizations. Unauthorized
States could work with EPA under
cooperative agreements to implement
the HWIR-media program, if interested.
Alternative proposal for HWIR-media
eligibility. Alternatively, EPA could
allow States that are planning to use
authorized hazardous waste authorities
to implement the HWIR-media program
to use the generic procedures for
Category 1 for HWIR-media
authorization, and reserve the generic
Category 2 procedures for States
proposing to implement the HWIR-
media with non-authorized authorities
(e.g., State Superfund-like authorities).
This approach would allow streamlined
authorization procedures to apply to
almost all States by retaining the
prerequisite of final RCRA base program
authorization (rather than corrective
action authorization), and would
provide States proposing to use
authorities familiar to EPA with the
most streamlined procedures available.
EPA requests comments on this
alternative to HWIR-media
authorization eligibility, and whether or
not this approach should be finalized in
lieu of the eligibility approach
discussed above. EPA also requests
general comments on the feasibility of
determining authorization categories
based on the type of authority a State
proposes to use, rather than on the
impact or significance of the program
revision at issue.
-------
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules
18825
Authorization of tribes. EPA is
currently developing a proposal to
clarify the eligibility of tribes to receive
authorization to administer their own
hazardous waste programs. The
proposal would discuss in detail
existing RCRA authorities that EPA
believes allow tribes to seek full or
partial hazardous waste program
authorization. If this proposal is
finalized, any tribe that wishes to obtain
final base RCRA program authorization
would likewise be eligible for HWIR-
media authorization. Tribes that choose
to receive only partial authorization
would not be eligible to obtain HWIR-
media authorization, since the scope of
such a partial program would be
limited. EPA believes that in order to
adequately implement the HWIR-media
program, a tribe (like a State) should
receive final authorization to implement
the base RCRA program.
b. HWIR-media essential elements
(§ 271.28(a)). EPA may choose to
establish essential elements for any
Category 2 rule. As discussed above (see
preamble section (V)(E)(3)(b)(i)), the
purpose of essential elements is to focus
State and EPA resources on critical
program components.
EPA believes that essential elements
would be especially important when
authorizing States to implement the
HWIR-media program because it
anticipates that many States would seek
authorization for HWIR-media using
existing, non-RCRA, State authorities.
For example, some States could choose
to rely on State Superfund-like
authorities that could address a broader
universe of sites and/or wastes than the
RCRA corrective action or HWIR-media
programs, and provide considerable
flexibility and discretion to State
agencies in specification of cleanup
requirements. Alternatively, some States
could choose to rely, in part, on a
program that is less comprehensive than
the Federal HWIR-media program. For
example, a State could choose to rely on
its pesticide management authorities to
implement the HWIR-media program for
media that were contaminated with
pesticides. EPA believes that the HWIR-
media essential elements would help
State and Federal staff efficiently
determine if these non-RCRA State
authorities provide for equivalent State
programs. EPA believes that the States'
reliance on broad or flexible authority
should not make approval of HWIR-
media revision applications more
difficult, as long as the State clearly
provided for implementation of the
HWIR-media program essential
elements.
EPA has identified the following
essential elements for the HWIR-media
program:
(i) Authority to address all media that
contain hazardous wastes listed in Part
261, Subpart D of this chapter, or that
exhibit one or more of the
characteristics of hazardous waste
defined in Part 261, Subpart C of this
chapter.
(ii) Authority to address the hazards
associated with media that are managed
as part of remedial activities and that
the Director has determined do not
contain hazardous wastes (according to
Part 269), but would otherwise be
subject to Subtitle C regulation. States
that choose to make contained-in
decisions only when concentrations of
hazardous constituents in any given
media are protective of human health
and the environment, absent any
additional management standards (i.e.,
eatable, drinkable concentrations), may
receive HWIR-media authorization
without certifying their ability to
impose management standards on
media that no longer contain hazardous
waste.
(iii) Authority to include, in the
definition of media, materials found in
the natural environment such as soil,
ground water, surface water, and
sediments, or a mixture of such
materials with liquids, sludges, or solids
that are inseparable by simple
mechanical removal processes and
made up primarily of media.
(iv) Authority to exclude debris (as
defined in § 268.2) and non-media
remediation wastes from the
requirements of Part 269 (except those
for Remediation Management Plans).
(v) Authority to use the contained-in
principle (or equivalent principles) to
remove contaminated media from the
definition of hazardous wastes only if
they contain hazardous constituents at
concentrations at or below those
specified in Appendix A.
(vi) Authority to require compliance
with LDR requirements listed in
§ 269.30 through § 269.34.
(vii) Authority to issue, modify and
terminate (as appropriate) permits,
orders, or other enforceable documents
to impose management standards for
media as described in essential elements
1-6 and 8 and 9.
(viii) Requirements for public
involvement in management decisions
for hazardous and non-hazardous media
as described in § 269.43(e).
(ix) Authority to require that data
from treatability studies and full scale
treatment of media that contain
hazardous waste be submitted to EPA
for inclusion in the NRMRL treatability
database.
The essential elements of HWIR-
media programs are proposed in 40 CFR
271.28(a). .
The preceding essential elements
were developed for the proposed
options included in today's proposed
rule. If EPA chooses to finalize the
alternatives discussed in this proposal,
rather than the proposed options, then
the essential elements will be revised to
represent the final version of today's
rule more accurately.
The Agency requests comments on '
the essential elements proposed for
HWIR-media authorization. The Agency
also requests comments on whether
essential elements in general should be
promulgated as rules, or suggested as
guidance only.
Specifically, the Agency requests
comment on the essential element (viii)
for public participation. Many cleanups,
particularly if they were short term, or
involved wastes that would not remain
on site, could warrant less public
participation. For example, if a State
agency were cleaning up spilled
petroleum in soil, which exhibited the
hazardous TC characteristic for benzene,
and the remedy called for digging it up
immediately for off-site treatment or
disposal, should the Agency wait to
clean up the site until it was in
compliance with the public
participation requirements described
above? Should the final rule allow for
different degrees of public participation
depending on the nature of the activities
being performed? Should EPA allow
decisions to be made on a site-specific
or case-specific basis about the level of
public participation necessary?
c. Monitoring of State HWIR-media
programs and program withdrawal
(§271.28(b)). The Agency is not
proposing requirements for monitoring
of State HWIR-media programs;
however, a discussion of how EPA
expects this monitoring should take
place is included below. The procedures
for partial program withdrawal
discussed below were developed by the
HWIR-media workgroup to complement
the streamlined authorization
procedures anticipated for HWIR-media,
A number of changes have occurred
since these procedures, were developed.
First, EPA has chosen to propose
generic, streamlined authorization
procedures rather than establish
authorization procedures specific to the
HWIR-media rule. '(See the above
discussion of Category 1 and 2 program
revision authorization procedures in
section (V)(E)(3)). Second, the
authorization procedures for the HWIR-
media rule, while significantly
streamlined from the existing
procedures for authorization of program
-------
18826 Federal Register / Vol. 61, No.-83 / Monday, April 29. 1996 /Proposed Rules
revisions, include a level of EPA review
not anticipated by the workgroup when
monitoring and partial program
withdrawal procedures were developed.
EPA has also addressed the oversight
and monitoring of authorized State
programs more generally through a
number of Agency workgroups and
initiatives. EPA requests comments on
the degree to which the monitoring
procedures discussed below should be
considered for application beyond the
HWIR-media rule. In addition, EPA
requests comments on whether partial
program withdrawal would be feasible,
and whether such a provision would be
necessary.
i. Monitoring of State HWIR-media
programs. EPA believes that some
monitoring of State programs is
necessary to ensure that the
considerable flexibility provided by
today's proposed rule would be
implemented in a way that is protective
of human health and the environment.
This was a particular concern to
stakeholders during the development of
today's proposed rule because it allows
a more streamlined authorization for
program revisions. For this reason,
stakeholders were concerned that State
programs might not receive sufficient
up-front review prior to authorization to
ensure that the program would be
conducted protectively.
EPA currently conducts routine
monitoring of State programs in order to
identify conflicting EPA and State
priorities, or areas where the State
program seems to be significantly at
variance with Federal rules or guidance.
The purpose of routine monitoring is
not to direct the priorities or site-
specific implementation decisions of
any given State program, but to identify
problematic trends in the program.
Typically, the procedures for routine
State program monitoring are specified
in the State/EPA Memorandum of
Agreement, the annual or biannual
State/EPA Grant Workplan, or other
written State/EPA agreements. Often,
routine State program monitoring will
include mid- and end-of-year State/EPA
meetings, periodic oversight
inspections, and review of State files or
enforcement cases.
EPA believes that most concerns
regarding a State's implementation of its
authorized HWIR-media program could
be resolved through routine State
program monitoring activities. If
concerns regarding a State's HWIR-
media program implementation cannot
be resolved during routine monitoring,
EPA would identify those concerns and
propose options for resolution. i
Depending on the degree of EPA's
concerns, the Agency would increase its
monitoring of the State program
accordingly. When serious concerns are
identified, and when a State's failure to
address these concerns adequately
would cause significant risk to human
health or the environment, EPA would
warn the State, in writing, that the
State's HWIR-media authorization could
be withdrawn.
Decisions to increase the monitoring
of State programs could be made by EPA
based on the Agency's own information,
or based on information submitted by
independent third parties who allege
poor or inadequate performance by the
State HWIR-media program. (See
proposed 40 CFR 271.28(d)). EPA would
consider such allegations when making
decisions about the level of program
monitoring necessary in an HWIR-media
authorized State. Third party allegations
are also discussed in the section of this
preamble that addresses withdrawal of
authorized State HWIR-media programs.
ii. Program withdrawal (§ 271.28(b)).
In the event that EPA and the State
could not resolve their differences
during program monitoring, EPA could
choose to withdraw the State's HWIR-
media program authorization. Program
withdrawal would be for the HWIR-
media portion of the State's
authorization program only.
EPA would not withdraw HWIR-
media authorization without first
providing the State an opportunity to
address EPA's concerns using the
monitoring discussed above. In
addition, EPA would not withdraw
HWIR-media authorization without first
giving the State clear, written warning
that program withdrawal was imminent.
EPA proposes that, in addition to
program withdrawal initiated for cause
by EPA, any person could petition EPA
at any time to withdraw a State's HWIR-
media program authorization based on
allegations that the program fails to
meet the minimum national standards
for an HWIR-media program as set forth
in 40 CFR 271.28(a), and discussed in
today's proposal. Whenever such
petitions are received, EPA would
provide copies of the petition and all
supporting documentation to the State
and allow the State at least 30 days to
respond. Following the State's response
and any independent EPA investigation,
EPA would respond to all third-party
allegations in writing.
When EPA determines that a State's
HWIR-media program authorization
should be withdrawn, EPA will publish
its tentative decision to withdraw the
State's HWIR-media program in the
Federal Register, and provide the •
public, including the State, at least 60
days to review and comment on the
tentative program withdrawal
determination. If requested, EPA would
also hold an informal public hearing. At
the close of the review and comment
period, EPA would publish its final
decision regarding withdrawal of the
State's HWIR-media program in the
Federal Register. EPA's notice of final
decisions would include responses to
any significant comments received
during the public review and comment
period.
Following withdrawal of a State's
HWIR-media program, EPA would
administer the HWIR-media program in
that State using the Federal standards
for HWIR-media, and Federal
enforcement authorities. (See
§ 271.28(c)). EPA believes it is important
for HWIR-media program
implementation to continue even in
States that lose their HWIR-media
program authorization because reverting
to existing RCRA Subtitle C hazardous
waste management requirements would
disrupt and delay the cleanup process.
In addition, since States that receive
HWIR-media authorization would
expect that management standards for
contaminated media would be tailored
to specific cleanup sites through the
HWIR-media process, EPA believes that
it would be appropriate to continue
implementation of the program for new
cleanups even if a State's HWIR-media
program authorization is withdrawn.
Otherwise, management standards
could revert to the existing RCRA
standards for hazardous waste once a
State's authorization for HWIR-media
was withdrawn; then, the State would
no longer be able to approve
Remediation Management Plans (RMPs)
or make contained-in decisions for
contaminated media. Remediation
Management Plans that were approved
by the State prior to the withdrawal of
its HWIR-media program would remain
in effect. However, EPA could use
Federal enforcement authorities to
impose additional management
requirements in these RMPs as
necessary to ensure protection of human
health and the environment.
d. HWIR-media authorization in
States that can be no more stringent
Than the Federal Program. Some States'
statutes prohibit the promulgation of
any rules that are more stringent than
Federal RCRA regulations. EPA does not
believe that such statutes would
prohibit States from adopting and
implementing any portion of Part 269,
including decisions to continue
regulation of media with constituent
concentrations below Bright Line
concentrations as hazardous/As
proposed, this media management
decision would be completely
discretionary with the overseeing
-------
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules 18827
agency. Consequently, it would be
impossible to argue that a State that
chooses to continue regulation of
contaminated media under Subtitle C
would be "more stringent" than the
Federal RCRA program. As proposed,
the Bright Line would not automatically
reclassify media, even under the Federal
RCRA program. Rather, it would act as
a "ceiling" below which an agency
overseeing cleanup of a site would have
the authority and discretion to
determine whether the media should
continue to be managed as hazardous
waste.
States that could be no more stringent
than the Federal program might,
however, be required to adopt
regulations equivalent to the new
regulations for LDR treatment standards
and media treatment variances and
remediation piles. Since these new
requirements would be less stringent
than the existing requirements, a State
that is prohibited from having more
stringent regulations might be required
to provide equivalent flexibility. •
7. Effect in Authorized States
Under section 3006 of RCRA, EPA
may authorize qualified States to
administer and enforce the RCRA
program within the State. Following
authorization, EPA retains enforcement
authority under section 3008,3013, and
7003 of RCRA, although authorized
States have primary enforcement
responsibility.
Prior to the Hazardous and Solid
Waste Amendments of 1984 (HSWA), a
State with final RCRA authorization
administered the State hazardous waste
program, in lieu of EPA administering
the Federal program in that State. When
new, more stringent, Federal
requirements were promulgated or
enacted, authorized States were
required to update their hazardous
waste programs within specified time
frames to remain equivalent to the
Federal program, as revised. States were
not required to update their hazardous
\vaste programs to conform to new
Federal requirements that were less
stringent than the authorized State
program. New Federal requirements did
not take effect in authorized States until
the State adopted the requirements as
State law and received authorization to
implement the new requirements (in
lieu of the Federal program).
In the HSWA amendments of 1984,
Congress specified that the new
requirements enacted in the
amendments and all implementing
regulations promulgated by EPA would
take effect immediately in authorized
and non-authorized States. (See RCRA
section 3006(g); 42 U.S.C. 6926(g)).
While States are still required to update
their authorized hazardous waste
programs to remain equivalent to the
Federal program, EPA is directed to
carry out HSWA requirements in
authorized States until the State
modifies its program, and receives final
or interim authorization.
Since EPA modifies portions of the
Federal hazardous waste program
enacted prior to the HSWA amendments
and portions of the Federal program
enacted by the HSWA amendments,
there are different time frames by which
revisions to the Federal RCRA program
become effective in authorized States.
New, more stringent, Federal
regulations that are promulgated
pursuant to the pre-HSWA program do
not take effect in authorized States until
the State modifies and updates its
hazardous waste program. New, more
stringent, Federal regulations
promulgated pursuant to the HSWA
amendments take effect immediately in
authorized and non-authorized States,
and are implemented by EPA until the
State adopts the new requirements and
revises its authorized program. New
Federal regulations (HSWA and pre-
HSWA program) that are considered less
stringent than the existing Federal or
authorized State programs are optional
for States to adopt and do not go into
effect unless and until States adopt
them, and are authorized to implement
the provisions in lieu of EPA (except for
less stringent HSWA requirements that
are in effect and implemented by EPA
in unauthorized States, such as Alaska).
To ensure that authorized State
programs accurately reflect the Federal
program, States are required to update
their authorized hazardous waste
programs to incorporate all more
stringent Federal regulations within the
time frames specified in 40 CFR
271.21(e).
Today's proposal is promulgated in
part pursuant to pre-HSWA authority,
and in part pursuant to HSWA. The
following sections of this proposed rule
are proposed pursuant to pre-HSWA
authority: (1) Codification of the
contained-in policy for constituents
lacking Bright Line concentrations; (2)
Bright Line concentrations and
decisions that media no longer contain
hazardous waste; and (3) RMP issuance
for management of remediation wastes
that contain hazardous wastes. The
following elements of today's proposal
are proposed pursuant to HSWA and
would be modifications to the existing
HSWA program that would cause the
Federal program to become less
stringent: (1) LDR treatment
requirements for hazardous
contaminated soil addressed under new
Part 269; (2) new regulations for
remediation piles; (3) media treatment
variances; and (4) interpretations that
RCRA section 3004 (u) and (v) do not
apply to cleanup-only facilities. In
today's proposal, revocation of the
CAMU regulations would be more
stringent than existing HSWA
regulations.
In general, today's proposal is less
stringent than the existing Federal
hazardous waste program and, therefore,
optional for States to adopt. The sole
exception is the proposed revocation of
the CAMU regulations, which would be
considered more stringent, and would
thus require adoption by States within
the time frames set forth in 40 CFR
271.21(e). These time frames would
provide that State modifications be
made within one year of the date of the
Federal program change, or within two
ye'ars if State statutory amendments are
necessary.
Since the bulk of the HWIR-media
program proposed today is less stringent
than the existing Federal RCRA
program, it would not be effective in
authorized States unless and until the
State chose to adopt it and become
authorized. EPA believes that the relief
provided by the HWIR-media program
would significantly increase the speed
and efficiency of cleanups. Therefore,
States seeking authorization for a HWIR-
media program would be encouraged to
use their existing State enforcement
authorities to provide for HWIR-media
style relief while their authorization
applications were being reviewed.
a. Pre-HSWA requirements. The pre-
HSWA requirements proposed today
would be less stringent than the existing
RCRA requirements. Because they
would be less stringent, they would be
optional for States to adopt, and would
not take effect in authorized States
unless and until the State adopted and
became authorized for them. States with
final authorization (or States seeking
final authorization concurrently with
this rule), that choose to obtain
authorization for today's HWIR-media
rule, would have to adopt requirements
that were no less stringent than the
requirements specified in Part 269.
States that seek final program
authorization after finalization of HWIR-
media regulations could choose to apply
for final program authorization without
the HWIR-media program.
b. HSWA Requirements. The HSWA
requirements proposed today (with the
exception of CAMU revocation) would
relate to the Land Disposal Restriction
(LDR) program, and would be less
stringent than existing LDR
requirements. They would be, therefore,
optional in HSWA authorized States
-------
18828 Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules
and would not go into effect unless and
until a State adopted and became
authorized for them. Normally, less
stringent HSWA requirements
automatically take effect in non-HSWA
authorized States. However, the Part 269
LDR treatment requirements would not
take effect because they apply only to
cleanup wastes addressed under a Part
269 program. Thus, they would become
effective in non-HSWA authorized
States only when such States obtain
authorization to run a Part 269 program.
States authorized for the LDR program
that choose to obtain HWIR-media
authorization, would have to adopt
requirements that would be at least as
stringent as the LDR requirements
specified in Part 269. States that seek
LDR authorization after promulgation of
final HWIR-media regulations would
have to adopt requirements no less
stringent than the existing (non-Part
269) Federal LDR program, if they chose
not to seek authorization for today's
HWIR-media requirements.
Media treatment variances. Under
current regulations at 40 CFR 268.44,
EPA may grant waste- or site-specific
variances from treatment standards in
cases where it can be demonstrated that
the treatment standard is inappropriate
for the waste, or that the waste cannot
be treated to specified levels, or treated
by specified methods. Today's proposed
rule would retain the availability of
treatment variances in the
implementation of the HWIR-media
program, and establish HWIR-media
specific treatment variance procedures
for media managed under Part 269. The
Agency is clarifying today that States
could seek authorization for both the
site-specific treatment variance
procedures in 40 CFR 268.44, and the
HWIR-media specific treatment variance
procedures proposed in Part 269. EPA is
aware that some States, especially States
that chose to adopt the Federal LDR
program by reference, could have
already received authorization to issue
site-specific LDR treatment variances
under 40 CFR 268.44. Because there has
been some confusion about this issue,
and because EPA's current proposal
would encourage States to become
authorized for treatment variances, EPA
requests the States to note in their
HWIR-media program revision
application, or other authorization
application, or in official
correspondence, whether or not they
believe that they have been authorized
for site-specific LDR treatment variances
under 40 CFR 268.44. EPA would then
evaluate that aspect of a State submittal
to confirm the State's authorization for
treatment variances. EPA requests
comments on this proposal, especially
from States that believe they are already
authorized to approve LDR treatment
variances.
CAMU revocation. EPA is proposing
today to revoke the CAMU regulations
at 40 CFR 264.552 and to "grandfather"
CAMUs approved prior to the
publication date of the final HWIR-
media rule. Since revocation of the
CAMU regulations would remove that
option at the Federal level, even States
that have adopted CAMU regulations as
a matter of State law and/or become
authorized for CAMUs would be
blocked from approving new CAMUs by
this date, when these more stringent
Federal rules would go into effect. Of
course, States could still use their
CAMU regulations for non-hazardous
wastes at their discretion, or for media
that do not contain hazardous wastes
(and that are not subject to LDRs).
In order to ensure that requirements
for "grandfathered" CAMUs remain
enforceable, States that have already
been authorized for the CAMU
regulations, and that choose to
grandfather CAMUs, should retain their
CAMU regulations (for those
grandfathered CAMUs) until those
CAMUs have expired or are terminated.
States would be required, however, to
make clear that existing State CAMU
regulations would not be used to grant
any new CAMUs for management of
Federally hazardous waste after the date
of publication of the final HWIR-media
rule.
c. Examples. The following examples
illustrate the effect of today's proposed
rule in authorized States.
Example One: The State has received final
base program authorization but has not yet
been authorized for the land disposal
restriction program.
Because the State has received final base
program authorization, and the pre-HSWA
HWIR-media regulations proposed today are
less stringent than the existing program, the
pre-HSWA HWIR-media regulations would
not be effective in the State unless and until
the State adopted and became authorized for
them.
Since EPA would still be implementing the
LDR program in the State, the Part 269 LDR
treatment requirements for hazardous
contaminated media and treatment variances
for contaminated media would be effective
immediately upon approval of the State's
HWIR-media program, and would be
implemented by EPA until the State received
the necessary LDR program authorization. On
the other hand, the new remediation pile
provisions would become effective
immediately in non-HSWA authorized
States, because they are HSWA requirements
that are not specific to the Part 269 program.
Example Two: The State has received final
base program authorization, and is also
authorized for the land disposal restriction
program through the Third Third LDR rule.
Since the State has received final
authorization and the pre-HSWA HWIR-
media regulations proposed today are less
stringent than the existing program, the pre-
HSWA HWIR-media regulations would not
be effective unless and until the State
adopted and became authorized for them, as
discussed in example one. Similarly, since
the State would be authorized for the land
disposal restriction program, and the
remediation pile provisions (which are
considered HSWA provisions because they
affect LDRs) proposed today are considered
less stringent than the existing LDR program,
the remediation pile provisions proposed
today would not be effective in the State
unless and until the State adopted and
became authorized for them.
For the less stringent Part 269 treatment
standards, as explained in example one,
these would not become effective in the State
until the State chose to adopt a Part 269
program. Because the State would already be
authorized for a sufficient LDR program, the
State could also be authorized to run the LDR
program of the HWIR-media program.
Example Three: The State is authorized for
the corrective action management unit rule.
The CAMU revocation provision proposed
today is the only provision that is more
stringent than the existing Federal RCRA
program and, therefore, mandatory for States
to adopt. In addition, because revocation of
the CAMU regulations would remove that
option at the Federal level, even States that
have adopted CAMU regulations as a matter
of State law would be blocked from
implementing those regulations when more
stringent Federal rules take effect (date of
publication of final HWIR-media rule).
8. Request for Comment on EPA's
Approach to Authorization
EPA requests general comments on
the approach to authorization outlined
in today's proposal. In addition, as
discussed above, EPA specifically
requests comments that address the
following issues and areas:
a. The use of differential authorization
procedures for State program revisions,
and whether the Category 2
authorization procedures discussed
today would sufficiently recognize the
sophistication of State programs while
maintaining an appropriate level of EPA
review. EPA is specifically interested in
the ability of these procedures to
adequately address evaluation of a
State's capability to implement any
given program revision;
b. The effect of differential
authorization procedures, if any, on
State's and EPA's ability to cluster
authorization applications (i.e., the
ability to prepare and review program
revision applications that address more
than one rule at the same time);
c. Whether the Category 2 procedures
discussed today would be appropriate
for authorization of the HWIR-media
regulations, and other types of
-------
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 /Proposed Rules
18829
regulations which these procedures
should address;
d. The degree to which the
authorization approach proposed today
\vould, in practice, streamline and make
preparation, review, and approval of
State program revision applications
more efficient;
e. The use of essential elements to
target authorization applications and
review and whether essential elements
should be specified in regulations or
discussed in preambles as guidance;
f. The need for a third authorization
Category to address major revisions to
State programs, the types of program
revisions a third Category might
address, and the potential requirements
and procedures for a third Category;
g. The degree to which the Category
1 and 2 authorization procedures
discussed today should be applied as
guidance when authorizing existing
rules using the current program revision
procedures;
h. The clarification of the definition of
equivalent, and whether the proposed
definition should be used for all
authorization decisions, or only for the
Category 2 authorization decisions
discussed in today's proposal;
i. The use of Category 2 authorization
procedures for authorization of those
States not incorporating an approved
State CAA program for the combustion
standards rule by reference (as
discussed in section (V)(E)(4) of today's
preamble);
j. The alternative approach to HWIR-
media authorization discussed in
section (V)(E)(6)(a);
k. Whether final base-program
authorization is the appropriate
prerequisite requirement for
authorization of the general HWIR-
media program;
1. Whether authorization for the LDR
Third Third rule is the appropriate
prerequisite requirement for
authorization of the LDR portion of the
HWIR-media rule;
m. The alternative approach to HWIR-
media eligibility that would allow States
proposing to use. previously authorized
authorities to implement an HWIR-
media program to use the Category 1
authorization procedures, discussed in
section (V)(E)(6)(a);
n. The approach to authorization of
LDR treatment variances discussed in
section (V)(E)(7)(b);
o. The degree to which the monitoring
procedures discussed today would
conform to the program monitoring
procedures currently in place;
p. Whether the monitoring procedures
discussed today are necessary, whether
they should be codified for the HWIR-
media rule, and whether they should be
considered for application beyond the
HWIR-media rule;
q. The feasibility of partial program
withdrawal and the necessity for such a
provision;
r. The proposed and alternative
approaches to HWIR-media
implementation following program
withdrawal;
s. The effect today's proposed
approach to authorization might have
on a State's desire to seek authorization
for a State HWIR-media program; and
t. Other suggestions for improvements
to the authorization process.
F. Corrective Action Management
Units—§264.552
Today's proposed rule, at § 264.552,
would withdraw the existing regulations
for Corrective Action Management Units
(CAMUs), which were promulgated on
February 16,1993 (58 FR 8658). Today's
proposal for Part 269 would replace
much of the flexibility under the current
CAMU regulations as they apply to
contaminated media. EPA does not
intend to withdraw the CAMU
regulations without, at the same time,
substituting one of today's options in its
stead.
States with existing CAMU
regulations would need to come in for
program revisions, to make their
programs as stringent as the Federal
program. Today's proposal would also
grandfather CAMUs that have already
been approved by EPA and the States,
by the publication date of the final
HWIR-media rule. The original CAMU
rulemaking also included provisions for
temporary units to be used for
management of cleanup wastes. These
provisions would not be affected under
today's proposal, thus the Agency is not
reopening these requirements for
comment at this time.
The CAMU rule was the Agency's
initial attempt to resolve many of the
problems that have been encountered by
EPA and State cleanup programs in
applying the prevention-oriented
Subtitle C regulations (specifically, the
land disposal restrictions (LDRs) and
minimum technology requirements
(MTRs)) to the management of cleanup
wastes. The rule has allowed regulators
to designate an area at a facility as a
CAMU, and has specified that
placement of cleanup wastes into a
CAMU does not trigger LDR or MTR
requirements that would otherwise
apply. Because the rule was designed to
provide flexibility to regulators for
prescribing site-specific management
requirements for cleanup wastes, the
regulations do not prescribe specific
standards for design or operation of
CAMUs, or generic national treatment
standards for cleanup wastes that are
managed in CAMUs. Since its
promulgation, the final CAMU rule has
been used by EPA's Superfund program,
the RCRA corrective action program,
and other State cleanup programs.
However, the actual number of CAMUs
that have been approved to date is
relatively small. EPA is aware of fewer
than twenty CAMUs that have been
approved.
Some parties have argued that the
CAMU rule allows regulators too much
discretion in determining appropriate,
site-specific management requirements
for cleanup wastes. Those parties
support the idea of having some type of
minimum national LDR treatment
standards for cleanup wastes (especially
for sludges and-other non-media
wastes), rather than allowing regulators
to specify treatment requirements on a
case-by-case basis.
When the HWIR-FACA Committee
was initiated, EPA, and most of the
State participants on the committee,
agreed to consider whether the CAMU
regulations should be modified or
replaced with a different regulatory
approach.
The Agency is proposing to replace
the existing CAMU regulations with
today's proposed rule, except that it
would retain existing CAMUs approved
prior to publication of the final HWIR-
media rule. The Agency believes that
much of the site-specific flexibility
provided in the CAMU rule has been
preserved in this proposal, especially
for less-contaminated media. Further,
the proposal would modify the •
minimum LDR treatment standards
specified in the Part 269 regulations
specifically to be more compatible with
the realities of treating contaminated
media. Today's proposal should also'
minimize potential disruptions to site
cleanups that are planned or underway,
since existing CAMUs approved prior to
the publication date of a final HWIR-
media rule could continue to operate
until their cleanup activities are
complete. (See discussion below.)
At the same time, the Agency believes
that the CAMU rule has been used
successfully to expedite cleanups, and
that it has provided much needed
flexibility for remedial actions at RCRA
corrective action and Superfund.
Furthermore, replacing the CAMU
regulations with today's HWIR-media
rules could have a significant impact in
some situations, particularly in
remedies involving sludges and other
non-media wastes. The proposal would
cover only contaminated media,
whereas all types of cleanup wastes can
be managed in CAMUs. Actually, a
number of the CAMUs that have already
-------
1.8830
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules
i approved will be managing sludges
i cleanups. Thus, the flexibility
been
provided under the proposed HWIR-
media rule would apply to a more
limited spectrum of cleanup wastes.
Sludges and other non-media cleanup
wastes would be subject to the
traditional hazardous waste regulations,
including LDRs and MTRs. (See
discussion in section (V)(A)(2) of this
preamble.)
Therefore, the Agency requests
comments on what benefits might
accrue if the CAMU rule were retained.
(See letter from M. L. Mullins, Vice
President-Regulatory Affairs, Chemical
Manufacturers Association, to Michael
Shapiro, Director, Office of Solid Waste,
EPA (August 22,1995).) Specifically,
the Agency requests comments on what
the ramifications may be of failing to
provide the degree of relief that the
CAMU rule has provided. The Agency
is also interested in ways that the
CAMU might be modified to target the
CAMU provisions on wastes that pose
lower risks. For example, the Agency
could incorporate a Bright Line
approach in CAMU.
Today's proposed rule would
grandfather CAMUs that were approved
before the publication date of this rule.
Thus, an owner/operator who was
conducting a cleanup that involved an
approved CAMU would be able to
continue using the unit until the
cleanup is complete,'under the terms of
the permit or order. EPA believes that
this provision is reasonable and would
help avoid delays and disruptions to
ongoing cleanup actions. In addition,
EPA believes that not providing this
type of grandfathering would raise
important questions of fairness because
they were approved according to the
regulations in effect at the time, and
because EPA has encouraged the use of
CAMUs when the flexibility they
provide is necessary to selecting and
implementing sensible, protective
remedies.
EPA considered various
grandfathering options for CAMUs, such
as establishing a certain time limit (e.g.,
one year) for operating existing CAMUs
after the Part 269 rules were
promulgated. EPA does not believe that
such a limitation would be necessary or
desirable. Some remedies require
several years to fully implement, and
could be adversely affected if an
existing CAMU had to cease operations.
For example, risks of exposure to highly
contaminated sites could continue for
several more years while the regulators,
owners, and operators negotiate a new
site remedy, instead of implementing
the CAMU remedy they had already
agreed upon and determined would be
protective. The CAMUs that have been
approved to date have been a key factor
in accelerating the cleanup process and
allowing protective remedies to be
implemented at considerable cost
savings.
If today's rule is finalized as
proposed, States that have adopted the
CAMU regulations would be required to
revise these regulations after the
publication of final HWIR-media
regulations in order to remain as
stringent as the Federal program.
(Except when the State CAMU rules are
as stringent as the current Federal
program, for example, in requiring
wastes to be treated to LDRs before
being placed hi a CAMU.) Of course,
States would still be allowed to use the
Area of Contamination (AOC) concept,
which would not be changed by today's
proposal (55 FR 8666, 8758-8760,
March 8,1990; and also the
memorandum from Michael Shapiro,
Director, Office of Solid Waste, Stephen
D. Luftig, Director, Office of Emergency
and Remedial Response, and Jerry
Clifford, Director, Office of Site
Remediation Enforcement, EPA to
RCRA Branch Chiefs and CERCLA
Regional Managers, (March 13,1996)).
More discussion on State authorization
for these HWIR-media rules is presented
in section (V)(E) of this preamble.
G. Remediation Piles—§§260.10 and
264.554
Today's rulemaking proposal would
establish a new type of unit—
remediation piles—that would preserve
needed flexibility for conducting certain
types of cleanup activities. Proposed
§ 260.10 specifies the following
definition:
Remediation Pile means a pile that is used
only for the temporary treatment or storage
of remediation wastes, including hazardous
contaminated media (as defined in § 269.3),
during remedial operations.
This definition would appear in
§ 260.10, where most of the RCRA
hazardous waste regulatory definitions
are codified, rather than in § 269.3,
which defines terms specific to the Part
269 regulations. This is because
remediation piles would be able to
accept all types of remediation wastes,
rather than only hazardous
contaminated media. As a result,
remediation piles could be approved for
remedial actions that are not regulated
by Part 269.
The primary reason for creating this
new type of unit is that under current
regulations, waste piles are considered
land disposal units, and all hazardous
wastes must be treated to LDR standards
before being placed into the pile.
Remediation piles, however, would not
be considered land disposal units under
this proposed rule; they are not listed in
section 3004(k), (see discussion below);
and these regulations clearly specify
that they may be used only for
temporary treatment or storage of
cleanup wastes. For reasons noted
below, the Agency believes that this
type of unit, which would not trigger
LDRs, would provide necessary
flexibility in situations where
application of the LDRs would create
obstacles to common sense remedies.
One of the principal goals of this
proposed rule is to achieve a net
environmental benefit by facilitating the
cleanup of as many contaminated sites
as possible. The Agency also believes
that remediation piles would be
necessary to facilitate the cleanup of
many previously contaminated sites.
The physical, economic, and technical
limitations on the operation of a
cleanup program could dictate that
remediation wastes be temporarily
stored and/or concentrated in a
centralized location onsite prior to
completion of the remedial activity.
Similarly, once the wastes had been
placed in a remediation pile it could be
advantageous to begin some form of
treatment or pretreatment to reduce the
level of threat posed by the wastes prior
to its ultimate disposal.
Because of the potentially large
volumes of contaminated media
encountered during remedial action, ,
prohibiting such wastes from being
temporarily treated or stored in onsite
piles (unless it met LDR standards)
would be counterproductive since it
would be a disincentive to the cleanup
activities. The Agency believes that the
temporary existence of a controlled
activity using a remediation pile would
be preferable to the continuing,
unmanaged presence of contaminated
media, and the resulting threat against,
human health and the environment, for
an indefinite period of time. In
endorsing the idea of remediation piles,
the Agency is in no way authorizing the
indefinite operation of the piles, or the
use of them for permanent disposal. The
obligatory, temporary nature of
remediation piles is the primary
difference between the piles and the
previously used CAMUs.
The design and operating
requirements for remediation piles are
specified in proposed § 264.554.
Although these provisions are being
proposed in § 264.554, remediation
piles could also be approved under
orders, and at interim status facilities.
As explained above, placement of
remediation wastes into a remediation
pile would not trigger RCRA land
-------
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules
18831
disposal restrictions, because such
placement would not constitute "land
disposal" according to RCRA § 3004(k)'s
definition of land disposal. For a further
discussion of the Agency's position that
would be reasonable to interpret
§ 3004(k) to exclude placement of
remediation wastes into units used
solely for cleanup purposes. (See 58 FR
8658,8662, (February 16,1993)). The
unit would also not be subject to
minimum technology requirements
(MTRs) Tinder section 3004(o), since the
pile would not be considered a land
disposal unit subject to those
requirements.
Other types of piles (e.g., piles not
used for cleanup purposes) would
remain subject to the Subpart L
requirements of Parts 264 and 265, and
wastes placed into such piles would be
subject to LDRs. Additionally, the use of
a remediation pile does not allow
remediation wastes to be entirely
exempt from the LDR requirements.
Since remediation piles are temporary
and not intended for disposal, all wastes
being held in remediation piles must
eventually meet LDRs at the time of
their ultimate disposal.
EPA's objective in proposing the
concept of remediation piles in Part 264
rather than in Part 269 with the rest of
the HWIR-media provisions is that the
Agency wishes to encourage remedial
action of contaminated sites by making
the use of these units more widely
available for those cleanups that are not
mandated by RMPs under Part 269, or
include remediation wastes other than
contaminated media.
Remediation piles are intended to
preserve flexibility for decision makers
in situations where site cleanup
involves the temporary storage or
treatment of remediation wastes prior to
disposal. Unlike CAMUs, remediation
piles could not be used for disposal of
wastes; remediation piles would be
required to close by removal of wastes
(i.e., "clean close"), as do tanks,
containers, and other types of hazardous
waste storage and treatment units. As
with the existing CAMU regulations,
remediation piles would have to be
located at the cleanup site, and could
not be used to manage any wastes other
than remediation wastes.
The flexibility that would be provided
by the proposal for remediation piles is
currently available through use of the
CAMU concept; such units would
currently be considered CAMUs for
regulatory purposes, and would be
subject to the requirements of § 264.552.
The net effect of this proposal for
remediation piles would thus be to
preserve the existing flexibility and
regulatory relief from LDRs and MTRs
in situations involving the temporary
placement of remediation wastes in
piles. Although today's Part 269
proposal would provide some relief for
these types of situations (particularly for
below the Bright Line wastes), EPA
believes that remediation piles would be
useful in facilitating cleanups at a large
number of sites.
Because wastes and media volumes,
and the expected duration of cleanup
activities at cleanup sites all vary, EPA
believes that the Director is best able to
determine the site-specific conditions
for the safe and effective operation of a
remediation pile on a site-specific basis.
Therefore, today's proposal for
remediation piles does not prescribe any
specific design or operating standards;
the Director would establish such
requirements on a case-by-case basis,
using the decision factors specified for
Temporary Units. (See §264.553(c)).
EPA considered a more prescriptive
approach that would have established
certain minimum standards for
remediation piles. For example,
standards for liners could be specified
in the regulation, as could standards for
covers or other methods for controlling
air emissions, and wind and water
dispersal, or other design and operating
standards. Comments are requested as to
whether more national uniformity is
necessary in the design and operation of
remediation piles, or whether such
decisions are more appropriately made
on a site-specific basis. Comments are
also requested as to the types of
minimum standards that should be
applied to remediation piles (assuming
such national standards are necessary),
whether certain time limits or
renewable time limits should be set for
operating such units, and whether
creating this new type of unit would be
necessary at all.
H. Dredged Material Exclusion—§ 261.4
In addition to the media management
requirements discussed above, today's
proposed rule contains a provision to
clarify the relationship of RCRA Subtitle
C to dredged material. Specifically, EPA
today proposes to establish that dredged
material disposed in waters of the
United States in accordance with a
permit issued under section 404 of the
Clean Water Act (CWA) or in ocean
waters in accordance with a permit
issued under section 103 of the Marine
Protection, Research, and Sanctuaries
Act (MPRSA),31 would not be subject to
Subtitle C of the Resource Conservation
31 "Permit" also includes the administrative
equivalent, a finding of compliance with the
substantive requirements of the CWA or MPRSA,
for U. S. Army Corps of Engineers' civil works
projects authorized by Congress.
and Recovery Act (RCRA)(§ 261.4(h)).
This approach is authorized under
RCRA section 1006, which calls for the
Agency, in implementing RCRA, to
avoid duplication with other Federal
statutes.
At present, if dredged material
proposed for disposal in the aquatic
environment is contaminated or
suspected of being contaminated, the
potential application of both RCRA
Subtitle C regulations, and dredged
material regulations under CWA or
MPRSA, complicates efficient
assessment and management of
potential environmental impacts.
Today's proposal would eliminate the
potential overlap of RCRA Subtitle C
with the CWA and MPRSA programs by
establishing an integrated regulatory
scheme for dredged material disposal
that ensures an accurate and
environmentally sound evaluation of
any potential impacts to the aquatic
environment. .
Dredged Material Regulation Under
CWA and MPRSA
Section 404 of the CWA establishes a
permit program to regulate the discharge
of dredged or fill material into waters of
the United States that is jointly
administered by the U. S. Army Corps
of Engineers (Corps) and EPA. Proposed
discharges must comply with the
environmental criteria provided in 40
CFR Part 230 in order to be authorized.
The EPA and Corps regulations under
section 404 define dredged material as
"material that is excavated or dredged
from waters of the United States."
Dredged material can be mechanically
or hydraulically dredged, and disposed
of by barges or pipelines into river
channels, lakes, and estuaries. Today's
proposal does not address "fill
material," such as that discharged to
replace portions of the waters of the
United States with dry land.
In addition to such discharges as open
water disposal from a barge, the section
404 regulations specifically identify the
runoff or return flow from a contained
land or water disposal area into waters
of the United States as a discharge of
dredged material. In most cases, this
type of discharge occurs from a weir and
outfall pipe to drain water from a
confined disposal facility (CDF),
including the water entrained with the
solid portion of the dredged material
discharged at the site and from
rainwater runoff. Impacts to uplands, as
well as groundwater, air, and other
endpoints, can be addressed within the
section 404 permitting process as
potential impacts of a discharge of
dredged material into waters of the U.S.
However, in those cases where upland-
-------
18832 Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules
disposed dredged material has no return
flow to waters of the United States, as
defined by section 404, the dredged
material is not regulated under the
CWA, and therefore may be subject to
RCRA Subtitle C, even under today's
proposed regulatory revision.
The MPRSA regulates the
transportation of material, including
dredged material, that will be dumped
into ocean waters. Section 102 of the
MPRSA requires that EPA, in
consultation with the Corps, develop
environmental criteria for reviewing and
evaluating applications for ocean
dumping permits. Section 103 of the
MPRSA assigns to the Corps the
responsibility for authorizing the ocean
dumping of dredged material, subject to
EPA review and concurrence. In
evaluating proposed ocean dumping
activities, the Corps is required to
determine whether such proposals
comply with EPA's ocean dumping
criteria (40 CFR Parts 220-228).
Dredged Material Regulation Under
RCRA
RCRA (42 U.S.C. 6901 et seq.)
regulates the assessment, cleanup, and
disposal of solid and hazardous wastes
under Subtitles D and C, respectively. A
solid waste is considered hazardous for
regulatory purposes if it is listed as
hazardous in RCRA regulations or
exhibits any of four hazardous waste
characteristics: ignitability, corrosivity,
reactivity, or toxicity. Dredged material
could trigger RCRA's Subtitle C
requirements by exhibiting any of the
four characteristics or by containing a
listed hazardous waste.
EPA regulations at 40 CFR Parts 270
and 124 set forth application
requirements and procedures for issuing
RCRA hazardous waste permits under
RCRA Subtitle C. In developing a
permit, the permitting authority
considers the potential pathways of
human and ecological exposures to
hazardous wastes resulting from
releases at the unit, and the potential
magnitude and nature of those
exposures. Permit conditions are
established as necessary to achieve
compliance with the standards and
restrictions set forth in Parts 264 and
266 through 268 (and proposed 269) (or
the authorized State program). In
addition, RCRA section 3005(c)(3)
authorizes the permit writer, on a site-
specific basis, to add conditions to a
permit that go beyond the applicable
regulations where such additional
requirements are necessary to protect
human health and the environment (42
U.S.C. § 6925(c)(3)).
The specific requirements of RCRA
Subtitle C that would otherwise apply to
the disposal of dredged materials in the
aquatic environment would differ
depending on whether these activities
were considered to be acts of "land
disposal" as defined in RCRA § 3004(k).
If considered to be "land disposal," a
more extensive set of requirements
under RCRA Subtitle C would apply,
including land disposal restrictions
treatment standards (§ 3004(m)) and
minimum technology requirements
(§3004(o)).
Clarification of Regulatory Jurisdiction
EPA proposes to revise the RCRA
regulations to provide that the discharge
of dredged material to waters of the
United States pursuant to a permit
under section 404 of the CWA or to
ocean waters pursuant to a permit under
section 103 of the MPRSA would not be
subject to RCRA Subtitle C
requirements. Specifically, 40 CFR
261.4, which lists exclusions from the
hazardous waste provisions of RCRA,
would be amended by adding dredged
material discharges covered by CWA or
MPRSA permits (or authorized
administratively in the case of Corps
civil works projects) to the list of
exclusions.
This proposal would exclude dredged
material disposal only from the
requirements of Subtitle C, and would
not exclude it from the requirements of
Subtitle D. This exclusion would not
diminish the authority of the
Administrator to take action under
section 7003 of RCRA to address
situations of imminent hazard to human
health or the environment. As noted
above, upland disposal of dredged
material with no return flow to waters
of the United States (i.e., not regulated
under section 404 of CWA) would not
be subject to the exclusion, and
therefore would still be subject to the
requirements of RCRA Subtitle C as
appropriate. Finally, management of
dredged material not disposed of in
waters of the United States in
accordance with a permit issued under
section 404 of the Clean Water Act
(CWA), or not disposed of in ocean
waters in accordance with a permit
issued under section 103 of the Marine
Protection, Research, and Sanctuaries
Act (MPRSA), (e.g., dredged material
managed for purposes of cleanup under
RCRA corrective action or CERCLA),
would not be eligible for this exclusion,
and therefore, could be subject to RCRA
Subtitle C requirements.
Today's proposed rule would
establish an integrated approach to the
regulation of dredged material disposal
that would avoid duplicative regulatory
processes, while ensuring an accurate,
appropriate, and environmentally sound
evaluation of potential impacts to the
aquatic environment. This approach is
authorized under section 1006(b) of
RCRA, which states that "the
Administrator * * * shall avoid
duplication, to the maximum extent
practicable, with the appropriate
provisions of * * * the Federal Water
Pollution Control Act (CWA), * * * the
Marine Protection, Research and
Sanctuaries Act, * * *, and such other
Acts of Congress as grant regulatory
authority to the Administrator." Section
1006(b) of RCRA calls for the provisions
of RCRA to be integrated with other
statutes, including the CWA and the
MPRSA, to avoid duplication when
such integration "can be done in a
manner consistent with the goals and
policies expressed" in RCRA and the
other Acts.
The Agency believes that the CWA
and MPRSA programs described above
fully protect human health and the
environment from the consequences of
dredged materials disposal. These
programs incorporate appropriate
biological and chemical assessments to
evaluate potential impacts on water
column and benthic organisms, and the
potential for human health impacts
caused by food chain transfer of
contaminants. They also make available
appropriate control measures for
addressing contamination in each of the
relevant pathways. These programs are
more fully described in support
documents that are included in the
record for this proposal and are
available in the docket for today's
proposed rule.
The Agency believes that RCRA
Subtitle C coverage of dredged materials
disposal in the aquatic environment,
whether or not this disposal is
considered to be "land disposal" under
RCRA, is duplicative and unnecessary
when considered alongside the CWA
and MPRSA coverage of these activities.
The overriding goal of each of the three
statutory programs is to protect human
health and the environment, and the
CWA and MPRSA programs fully
achieve this goal by addressing the
proposed aquatic disposal of dredged
material.
Moreover, applying the RCRA Subtitle
C program together with the CWA and
MPRSA permitting programs might be
unduly burdensome and cause
unnecessary procedural difficulties—
e.g., by requiring duplicate permit
applications and procedures. It is also
possible that the duplicative nature of
the programs could in fact increase
environmental risks by causing delays
in proper disposal. The Agency believes
that today's proposal, which would
divide coverage, would therefore be
-------
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules 18833
appropriate and consistent with the
goals and policies in each of these
statutes. Accordingly, under RCRA
§ 1006(b), today's regulatory proposal
would be an appropriate way to
integrate the CWA and MPRSA
permitting schemes with the RCRA
Subtitle C program.
VI. Alternative Approaches to HWIR-
media Regulations
EPA believes that the specific
regulatory proposal that is presented in
today's proposed rule is consistent with
the objectives that EPA and the States
had in mind for the HWIR-media rule.
Those objectives are discussed in
section 10 of this preamble. However,
alternative approaches may offer
significant advantages as well as
disadvantages compared to today's
proposed rule; some might be quite
different from the proposal. EPA will
continue to examine such alternatives,
and invites commenters to address these
fundamental issues in addition to
providing comments on the specifics of
the rule as proposed.
As explained previously in this
preamble, today's proposed rule was
created expressly to reflect the concepts
and directions identified in the
"Harmonized Approach" developed by
the FAGA Committee. Thus, although a
number of alternatives were identified
and considered by EPA and other
parties throughout the process of
developing this proposal, adhering to
the Harmonized Approach in many
cases precluded certain alternative
concepts from being included. In
addition, not all controversial issues
were resolved by the FACA Committee.
In fact, some issues central to the
framexvork of today's proposed rule
provoked strong disagreement. The
Agency specifically requests comments
on alternatives in the areas where
agreement was not reached.
In EPA's view, a critical element both
ivithin the proposal and in the other
alternatives identified in the preamble
(e.g., the Unitary Approach) is the
rationale used for exempting wastes
from Subtitle C. Under today's proposed
rule, implementing agencies would be
able to allow lower-risk contaminated
media to generally exit the Subtitle C
system based on {he contained-in
principle (i.e., Subtitle C doesn't apply
if EPA or a State determines that a
medium doesn't contain wastes that
present a hazard (hazardous wastes)
based on site-specific circumstances or
controls in a RMP). The legal theory
supporting "conditional exclusions" is
broader than the contained-in theory,
and need not be limited to contaminated
media. The "conditional exclusion"
theory is based upon EPA's
understanding that RCRA provides EPA
and the States the discretion to
determine that a waste need not be
defined as "hazardous" where
restrictions are placed on management
such that no improper management
could occur that might threaten human
health or the environment. (See
definition of hazardous waste at RCRA
section 1004(5)(B)). The HWIR-waste
proposal included a full discussion of
the legal basis for this position (60 FR
66344-469, Dec. 21,1995). This theory
is also discussed in section (V)(A)(4)(a).
For the sake of clarity, it is repeated
below.
EPA's original approach to
determining whether a waste should be
listed as hazardous focused on the
inherent chemical composition of the
waste and assumed that
mismanagement would occur causing
people or organisms to come into
contact with the waste's constituents.
(See 45 FR 33113, (May 19,1980)).
Based on more than a decade of
experience with waste management,
EPA believes that it is inappropriate to
assume that worst-case mismanagement
will occur. Moreover, EPA does not
believe that worst-case assumptions are
compelled by statute.
In recent hazardous waste listing
decisions, EPA identified some likely
"mismanagement" scenarios that are
reasonable for almost all wastewaters or
non-wastewaters, and looked hard at
available data to determine if any of
these are unlikely for the specific wastes
being considered, or if other scenarios
are likely, given available information
about current waste management
practices. (See the Carbamates Listing
Determination (60 FR 7824, (February 9,
1995)) and the Dyes and Pigments
Proposed Listing Determination (59 FR
66072, (December 22,1994)). Further
extending this logic, EPA believes that
when a mismanagement scenario is not
likely, or has been adequately addressed
by other programs, the Agency need not
consider the risk from that scenario in
deciding whether to classify the waste
as hazardous.
EPA believes that the definition of
"hazardous waste" in RCRA section
1004(5) permits this approach to
hazardous waste classification. Section
1004(5)(B) defines as "hazardous" any
waste that may present a substantial
present or potential hazard to human
health or the environment "when
improperly* * * managed." EPA reads
this provision to allow it to determine
the circumstances under which a waste
may present a hazard and to regulate the
waste only when those conditions
occur. Support for this reading can be
found by contrasting section 1004(5)(B)
with section 1004(5)(A), which defines
certain inherently dangerous wastes as
"hazardous" no matter how they are
managed. The legislative history of
Subtitle C of RCRA also appears to
support this interpretation, stating that
"the basic thrust of this hazardous waste
title is to identify what wastes are
hazardous in what quantities, qualities,
and concentrations, and the methods of
disposal which may make such wastes
hazardous." H.Rep. No. 94-1491, 94th
Cong., 2d Sess. 6 (1976), reprinted in "A
Legislative History of the Solid Waste
Disposal Act, as Amended,"
Congressional Research Service, Vol 1
567 (1991) (emphasis added).
EPA also believes that section 3001
gives it flexibility in order to consider
the need to regulate as hazardous those
wastes that are not managed in an
unsafe manner (section 3001 requires
that EPA decide, in determining
whether to list or otherwise identify a
waste as hazardous waste, whether a
waste "should" be subject to the
requirements of Subtitle C.) EPA's
existing regulatory standards for listing
hazardous wastes reflect that flexibility
by allowing specific consideration of a
waste's potential for mismanagement.
(See § 261.11(a)(3) (incorporating the
language of RCRA section 1004(5)(B))
and § 261.11(c)(3)(vii) (requiring EPA to
consider plausible types of
mismanagement)). Where
mismanagement of a waste is
implausible, the listing regulations do
not require EPA to classify a waste as
hazardous, based on that
mismanagement scenario.
The Agency believes, therefore, that it
may be appropriate for EPA and the
States to consider site-specific
management controls when making
decisions that media and remediation
wastes, managed pursuant to a RMP or
RAP under the various alternatives to
today's proposed rule, are exempt from
Subtitle C. EPA believes that this
approach may be especially appropriate
in the Part 269 context, because of the
significant level of oversight generally
given to cleanup actions. State or EPA
oversight of cleanup activities, and the
requirements set out in the RMP for
management controls that are tailored to
site-specific circumstances, could
ensure that the site-specific
management controls that the Director
used as a basis for the "conditional
exclusion" decision would continue to
be implemented. EPA or States could
specify that media exempted under
"conditional exclusions" would only be
considered nonhazardous so long as
they were managed in the manner
specified by the Director in the RAP or
-------
18834
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules
RMP. Deviations (any, or specific ones)
would result in a reversion to Subtitle
C regulation.
Using this legal theory could have
several advantages in the context of an
HWIR-media rule. For one, allowing all
contaminated media or remediation
wastes to exit from Subtitle C could
avoid many of the complexities that
come with regulation within the
hazardous waste regulatory system.
Overseeing agencies would have much
more flexibility to prescribe inclusive,
site-wide solutions for contaminated
media, rather than a limited series of
separate approaches. In particular, more
types of cleanup wastes, such as old
sludges, could be covered under the
HWIR-media system. This would
provide significantly greater relief,
because many corrective actions address
old wastes as well as contaminated
media.
Under the proposed rule, it would be
entirely possible that cleanup wastes at
the same site could be subject to as
many as three different sets of
regulatory requirements (for example,
"base" Subtitle C regulations for non-
media, modified Subtitle C regulations
for media above the Bright Line, and
site-specific requirements for media
below the Bright Line). Using a
conditional exclusion theory without
dividing remediation wastes and media,
and without dividing media above and
below the bright line, could allow all
cleanup wastes at a site to be covered
under a single regulatory regime that
would be more straightforward to
implement, and easier to comply with
and understand.
A specific alternative, introduced
earlier in this proposal, called the
Unitary Approach, would take a
different approach on a number of key
elements from the proposed approach.
The following sections present detailed
discussions of (1) the Unitary Approach
(2) a hybrid conditional exclusion
approach which would combine
elements of both the Unitary Approach
and the proposed approach and, (3)
some of the key elements of these
several alternatives that deserve careful
consideration.
A. The Unitary Approach
1. Overview of Unitary Approach
Under the Unitary Approach
suggested by Industry (see letter from
James R. Roewer, USWAG Program
Manager, Utilities Solid Waste
Activities Group, to Michael Shapiro,
Director, Office of Solid Waste, EPA
(September 15,1995) in the docket to
today's proposal) and discussed
previously in section IV of this
preamble, management of remediation
wastes would proceed according to
requirements set forth in an enforceable
remedial action plan (RAP) approved by
EPA or an authorized State. The RAP
could be part of another document, for
example, a CERCLA ROD, corrective
action RFI workplan, etc. The non-RAP
portions of the document might deal
with other aspects of the investigation
and cleanup not addressed in this
proposed rule, such as the cleanup goals
to be achieved, the extent of materials
to be excavated during the cleanup, or
the scope of the pre-cleanup
investigation. This would be intended to
avoid duplication and overlap with
existing cleanup program requirements,
while assuring that the RAP adequately
described how remediation wastes will
be managed protectively. In that
manner, the RAP would be similar to
the RMP in today's proposed rule.
More than one RAP might be used
during the course of a remediation. For
example, one document might govern
management of wastes from the
investigation or pilot study phase, while
another might be employed for the
remediation phase. A RAP might also be
prepared and submitted for approval to
allow subsequent management as
remediation wastes, of materials that
were originally produced as "hazardous
wastes" during remediation and that
had previously been staged as such, for
example, drill cuttings or produced
ground water.
Remediation wastes that would
otherwise be hazardous wastes would
not be subject to regulation as hazardous
wastes when managed in accordance
with an approved RAP. All hazardous
remediation wastes managed during the
cleanup, including during the
investigation phases, would be eligible
for management under a RAP. This is
consistent with today's proposed
approach for RMPs.
Management standards for the
remediation wastes would be set forth
in the approved RAP. The management
standards would be tailored to be
protective of human health and the
environment, as determined by the
overseeing Agency. EPA or the
authorized State could employ such
standards as it deemed appropriate for
the specific remediation wastes
involved, the location where the
remediation wastes would be managed,
and the site-specific risk posed by the
contemplated management approach.
For example, the substantive standards
of the RCRA containment building
regulations might be suitable in a given
situation, or local ground water
considerations might make it advisable
for particular treatment tanks to have
secondary containment, hi setting the
standards for a given RAP, the
overseeing agency could turn to existing
State or federal standards or
remediation waste management practice
or experience appropriate for the wastes
as managed during the remedial
activities contemplated by the RAP.
The RAP would have to describe how
the wastes to be managed under it
would be aggregated and stored, both
on-site, and if applicable, off-site. The
nature and effectiveness of any
treatment methodologies to be used
would need to be described as well. The
specific method and location for
disposal of any wastes or treatment
residuals that would otherwise be
required to be managed as hazardous
waste would also be addressed. Of
course, the option of simply managing
a particular remediation waste as a
hazardous waste would remain
available and, in such an instance, that
aspect of remediation waste
management would not be addressed in
the RAP subject to review and approval
pursuant to this Part.
In the Unitary Approach proposed by
industry, RCRA treatment requirements
and the land disposal restrictions would
not apply to remediation wastes, and
there would be no Bright Line concept
ensuring that higher-concern wastes
were managed under Subtitle C-like
standards. EPA and overseeing States
would have the authority to prescribe in
RAPs whatever management and
treatment standards they deemed
appropriate; the only specific regulatory
standard would be that remedies be
protective of human health and the
environment. EPA recognizes that this
approach would give program
implementers much needed flexibility
in overseeing cleanups. In its economic
analysis supporting today's rulemaking
(discussed later in this preamble), EPA
assumed that the costs of waste
treatment would be comparable under
both the proposed and the Unitary
approaches, because the overseeing
agencies in both cases would generally
require some level of treatment where a
remedy involved management of highly
contaminated waste. EPA acknowledges
that the specific language of the Unitary
Approach, as proposed by industry,
does not provide guidance on when
treatment might be needed. EPA solicits
comments on whether the Unitary
Approach (if adopted) should include
specific direction in this area, and what
language might be appropriate. One
approach would be to include a Bright
Line with a presumption for treatment
of wastes above the Bright Line. This
approach, however, would raise the
implementation difficulties discussed
-------
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules 18835
elsewhere. Another approach would be
to capture the same intent through more
general and flexible regulatory language.
For example, the rule might specify that
the overseeing agency consider, and as
appropriate require, waste treatment
before land disposal, where lie
remediation waste might present a
substantial risk, either because of high
concentrations of hazardous
constituents or because it could not be
contained reliably over time. This
language would not prescribe a specific
approach in any given situation, but it
would ensure that treatment was
seriously considered where wastes
presented significant risks and effective
treatment was available.
2. Legal Authority for the Unitary
Approach
As discussed above (introduction to
section VI), EPA believes that RCRA
provides the Agency with the discretion
to determine that wastes should not be
defined as "hazardous" when
mismanagement of the waste is not
likely.
If EPA were to finalize a rule similar
to the one suggested in the Unitary
Approach, which is based upon a
"conditional exclusion" or "conditional
exemption" theory, the Agency would
base the finding that mismanagement of
the covered wastes and media is
unlikely on the Agency's belief that
States that are authorized for the HWIR-
media program will set appropriate
management standards, and provide an
appropriate level of oversight of
remedial actions, so as to ensure that
such wastes are managed protectively.
Specifically, EPA's conclusion that
mismanagement is not likely would be
based primarily on the rule's provisions
for prior State program approval, public
notice and comment on all RAPs, and
"streamlined" State program
withdrawal where a State is found not
to be operating its HWIR-media program
in a protective manner.
The Agency requests comment on
whether this conclusion would be
appropriate.
3. LDRs Under the Unitary Approach
Earlier in today's proposal, EPA
discussed the applicability of the land
disposal restrictions (LDRs) to
contaminated media and requested
comments on alternatives to the
approach to the LDRs taken today.
Under the Unitary Approach,
remediation wastes (including
contaminated media) addressed in a
RAP would, as a general matter, be
excluded from all RCRA Subtitle C
requirements, including LDRs. The
proponents of the Unitary Approach
have not put forth a legal rationale to
explain why LDRs would not continue
to apply to hazardous wastes that are
determined not to be hazardous after
their point of generation. As was
discussed in section (V)(A)(4) of this
preamble, following the logic of the
court in Chemical Waste Management v
EPA, 976 F.2d 2 (D.C. Cir. 1992),
elimination of a waste's "hazard"
designation does not necessarily
eliminate LDR obligations. Thus, for
wastes that have entered the Subtitle C
system, and for which LDRs have
attached, a finding that such wastes are
conditionally exempt from RCRA may
not eliminate LDR obligations.
If EPA were to promulgate a program
modeled after the Unitary Approach, the
Agency would likely address the
residual LDR issue by applying the
"new treatability group" approach to
LDRs [instead of the approach proposed
today]. As discussed earlier, changes in
treatability group can result when the
properties of a waste that affect
treatment performance change enough
so that the waste is no longer considered
similar to the wastes EPA evaluated
when it established the applicable LDR
treatment standards. Each change in
treatability group is a new point of
generation for purposes of determining
whether a waste is hazardous under
RCRA Subtitle C. Therefore, if
contaminated media were, by definition,
considered a new treatability group
under the LDR program, and, as
discussed in the Unitary Approach,
media addressed in a RAP is, by
definition, not considered hazardous
waste, media addressed in a RAP would
not be subject to the LDR treatment
standards. This would typically remove
contaminated media addressed in a RAP
from the duty to comply with the LDR
requirements.32
For remediation wastes other than
media, as long as the wastes were not
prohibited from land disposal when first
placed (i.e., when first land disposed),
the land disposal restrictions do not
attach unless these wastes are still
considered hazardous when they are
removed from the land. Therefore, if,
due to issuance of a RAP, such wastes
were determined to be non-hazardous
before they were removed from the land,
the land disposal restrictions would not
apply. This approach would remove
most non-media remediation wastes
32 The exception would be media that are still
considered hazardous (e.g., because a RAP has not
been issued) when removed from the land. In this
case, the applicable LDRs would attach and the
media would have to attain compliance with the
standards of RCRA section 3004(m) even if it were
later made subject to a RAP and therefore
determined to no longer be hazardous.
addressed in a RAP from the duty to
comply with LDR requirements.33
As discussed above, EPA has
struggled with the application of LDR
requirements in developing today's
proposal. The Agency requests
comments on alternative approaches to
the LDR requirements which would
support a program modeled after the
Unitary Approach consistent with the
requirements of RCRA section 3004(m).
For example, since a program modeled
after the Unitary Approach would not
automatically release all remediation
wastes from the duty to comply with the
LDRs, should the Agency concurrently
promulgate the other approaches to the
LDRs proposed today?
4. The RAP Process Under the Unitary
Approach
To initiate the RAP process, the
owner or operator of a facility at which
the remediation would be conducted,
would submit the proposed RAP to the
Director. Upon receipt of the RAP, the
Director would give public notice via
local newspapers of the availability of
the RAP and the opening of a minimum
thirty-day comment period. If
significant written opposition that also
requested a hearing on the RAP were
received during the comment period, an
informal hearing might be held at a
location in the vicinity of the facility at
which the remediation would be
conducted. Fifteen days advance notice
of the hearing would have to be given.
Not later than thirty days after the close
of the public comment period or the
conclusion of any informal hearing,
whichever were later, the Director
would have to inform the applicant in
writing of whether the RAP satisfied the
appropriate criteria. In the case of a
denial, the Director must include a
written statement of the reasons for
denial. The Director's decision would be
final Agency action for purposes of
judicial review.
Major modifications and terminations
of RAPs would follow the same
procedures. The Director could
terminate the RAP for cause at any time.
A "for cause" event could include
noncompliance with RAP provisions,
failure of a remediation waste treatment
methodology to perform as expected, or
some unexpected negative impact of a
treatment technology, for example.
33 The exception would be non-media hazardous
remediation wastes (e.g., sludges, hazardous debris)
which were first land-disposed (placed) after the
effective date of the applicable land disposal
prohibition.
-------
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules
5. State Authorization for the Unitary
Approach
The Unitary Approach presented a
proposal for State Authorization which
was based on self-certification by States.
EPA is not soliciting comment on this
aspect of the Unitary Approach as
proposed by Industry, because the
Agency believes that there are statutory
limitations to authorizing States by self-
certification. If the Agency were to .
finalize the Unitary Approach, EPA
would likely authorize States according
to the process described in section
(V)(E) of this proposal. EPA would
adjust the essential elements described
in that section in order to reflect the
essential elements of the Unitary
Approach, as opposed to today's
proposed approach.
6. Enfordement Authorities Under the
Unitary Approach
As with the proposed approach, EPA
would retain its remedial and
enforcement authorities with respect to
solid wastes and hazardous substances
that are not hazardous wastes (e.g.,
section 7003 of RCRA and sections 104
and 106 of CERCLA). Furthermore, EPA
would have authority to revoke a State's
authorization for this program without
revoking any other Subtitle C program
authorization held by the State, in
which case EPA would then oversee
completion of any ongoing activities
under RAPs previously approved by the
State in question. In any instance where
a remediation waste was not managed in
accordance with the approved RAP an
appropriate enforcement response could
be initiated by the authorized State, or
if the State was dilatory in that respect,
by EPA. (As in the proposed approach,
remediation wastes that were managed
out of compliance with the RAP could
lose their exemption from Subtitle C.)
7. State Jurisdiction Under the Unitary
Approach
Once a State has obtained
authorization for this program, it would
have authority to issue and oversee the
contents and implementation of RAPs.
Of course, that authority would extend
only to management of remediation
wastes within the authorized State. A
State's authority with regard to RAP
approval, however, would not run to
wastes that would be managed in full
accord with otherwise applicable
hazardous waste management
requirements. In other words, in the
same way as in the proposed approach,
if the owner or operator elected to
manage hazardous wastes produced
during remediation in full accord with
otherwise applicable hazardous waste
management requirements, there would
simply be no need to seek redundant
approval for such activities by means of
RAP submission.
Of course, a State's authority would
not extend beyond its borders.
Accordingly, if an entity managing
remediation wastes wished to manage
remediation wastes in a RAP in a State
other than that in which the
remediation would be conducted, it
would be required to get approval from
the other State for that portion of the
RAP addressing management in that
other State. If the entity managing the
remediation wastes wished to manage
them in accordance with the otherwise
applicable hazardous waste
management requirements of the other
State, no RAP approval would be
necessary from that State for those
activities. (In this respect, the Unitary
Approach is similar to today's proposed
approach).
As described above, all remediation
wastes (including contaminated media,
debris and non-media wastes) would be
eligible for management under a RAP.
Remediation waste might be defined,
consistent with § 260.10, as "all solid
and hazardous wastes, and all media,
(including groundwater, surface water,
soils and sediments) and debris, which
contain listed hazardous wastes or
which themselves exhibit a hazardous
characteristic, that are managed for the
purpose of implementing cleanup. For a
given facility or media remediation site,
remediation wastes may originate only
from within the facility or site
boundary, but may include waste •
managed in implementing RCRA
sections 3004(v) or 3008(h) for releases
beyond the facility boundary." This
Unitary Approach would not have a
Bright Line. Nor would this approach
use a contained-in theory, but rather a
conditional exclusion theory for
excluding remediation wastes from the
definition of hazardous wastes under
Subtitle C.
The Agency requests comments on
the approach outlined above, hi
particular, the Agency requests
comments on whether the Unitary
Approach should be adopted as
described, or whether some
combination of the several approaches
discussed in today's preamble would be
more appropriate.
B. Hybrid Approach
The Unitary Approach (discussed
above) as an alternative to today's
proposed rule would use a conditional
exclusion theory to exempt all
remediation wastes from Subtitle C .
regulation (except, in some cases,
LDRs).
A more limited use of a conditional
exemption for the HWIR-media rule
would be compatible with (i.e., would
not preclude) most of today's proposed
rule. There are, in fact, a variety of ways
in which one might combine important
features of today's proposed rule with
the Unitary Approach. For example, the
rule could retain a Bright Line provision
to distinguish between higher-risk and
lower-risk media and wastes. Under this
kind of an alternative, wastes above
Bright Line concentrations could remain
subject to modified Subtitle C
requirements, similar to the approach
proposed today. Another option would
be to have all above and below the
Bright Line wastes and media exempt
from Subtitle C, but subject to different
alternative management requirements.
Either way, the rule could prescribe
alternative management standards that
might be very similar to "base" Subtitle
C standards, or to the modified LDR
standards specified in the proposal for
above the Bright Line media.
The Agency also notes that a
conditional exclusion approach could
be implemented either on a national or
site-specific basis. Specifically, as is
urged by industry supporting the
Unitary Approach, the Agency could
make a generic determination that any
remediation wastes managed according
to a RAP that is issued by an approved
program (subject to appropriate public
participation requirements) would not
be considered a hazardous waste under
the RCRA program. Alternatively, the
rule could leave that decision up to the
overseeing agency on a site-specific
basis, thus requiring the regulator
explicitly to make the determination
that, because of the management
conditions imposed, all or some part of
the media and wastes at the site do not
present a "hazard" and thus should not
be considered "hazardous" wastes. The
Agency requests comment on which
approach would be appropriate for
implementing an HWIR-media rule
based on a conditional exclusion theory.
For purposes of illustration, one such
approach could use a conditional
exclusion to exempt all remediation
wastes below a Bright Line from Subtitle
C. (This approach is presented as the
hybrid contingent management option
in Table 1.) Under this approach, the
rule would define a Bright Line, either
as constituent concentrations, or
qualitatively. Then, the rule could
specify that if EPA or an authorized
State determined that remediation
wastes were below a Bright Line at a
specific site, and site-specific
management requirements were written
into a RAP or RMP, then those
remediation wastes would be exempt
-------
Federal Register / Vol. 61, No. 83 / Monday, April .29, 1996 / Proposed Rules
18837
from Subtitle C so long as they were
managed in accordance with the
provisions of the RAP/RMP. In this type
of a HWIR-media program, LDRs would
be required for remediation wastes
where LDR attached. (See (V)(Q). Also,
a RMP for remediation wastes that were
above the Bright Line would have to be
the equivalent of a RCRA permit,
because those remediation wastes
would be subject to Subtitle C.
This hybrid option could have several
advantages over the approach proposed
today. This option would not set
requirements for contaminated media
that are different than those for other
remediation wastes, which could
simplify remedy decisions at cleanup
sites. Also this option would eliminate
the uncertainty of whether remediation
wastes below the Bright Line would be
subject to Subtitle C. The proposed
approach allows the overseeing Agency
to determine whether contaminated
media below the Bright Line should be
exempted from Subtitle C or not. Under
this alternative option, remediation
wastes below the Bright Line would be
exempt from Subtitle C as long as they
were managed in accordance with the ,
RAP or RMP. Also, RAPs for wastes
below the Bright Line could be simpler
because they would not have to meet all
the procedural requirements for RCRA
permits.
The Agency requests comments on
this alternative approach, and on other
alternatives that could be adopted to
exempt remediation wastes, as
appropriate, from Subtitle C regulation.
TABLE 1
In doing so, the Agency is particularly
interested in comments on the key
elements of an HWIR-media rule
discussed in the following section.
C. Key Elements of an HWIR-media Rule
EPA believes that many of the key
elements of the different options and
alternatives presented in this proposal
could be combined in different ways to
construct an effective HWIR-media
program. The following is a discussion
of those key elements, and a table
illustrating three different combinations
of the key elements. This table is
intended to facilitate comparison of
options. EPA requests comments on the
combinations of key elements as
presented, or on other combinations.
Key elements
Proposed option
Hybrid contingent management option
Unitary approach
Legal Theory
Contained-in
Scope
Bright Line
Hazardous vs. Non-
hazardous.
LDRs
Permitting
Media only
Bright Line—10-3 anc| Hazard index of
10.
All media above Bright Line are sub-
ject to Subtitle C; below is site-spe-
cific decision.
LDRs required for media where LDRs
attaches**.
RMP serves as RCRA permit for
media that remain subject to Subtitle
C.
Conditional Exclusion for below the
Bright Line.
All remediation wastes
Bright Line (a) (for media) same as
proposal, or (b) qualitative Bright
Line*.
All remediation wastes above Bright
Line are subject to Subtitle C; below
(when managed according to RAP
or RMP) are not hazardous.
LDRs required for wastes where LDRs
attaches**.
RMP serves as RCRA permit for
wastes that are above the Bright
Line; for wastes below the Bright
Line, RMP does not have to serve
as RCRA permit.
Conditional Exclusion.
All remediation wastes.
No Bright Line.
All remediation wastes managed ac-
cording to RAP or RMP are not haz-
ardous.
LDRs required for wastes where LDRs
attaches***.
No requirement that RAP/RMP serve
as RCRA permit, since wastes are
not subject to Subtitle C.
•See discussion of qualitative Bright Line below.
"See discussion of applicability of LDRs in section (V)(C)
"'See discussion of alternative option for LDR applicability in section (VI)(A)(3)
1. Scope of the Rule (Regarding Non-
media Remediation Wastes)
The proposed rule would apply only
to contaminated media. Therefore, as
discussed in section (V)(A)(2) of this
preamble, hazardous cleanup wastes
that are not media (such as sludges or
other wastes that have not been mixed
with soils or ground water), would only
be eligible under the proposal for the
limited regulatory relief provided by the
provisions allowing management in
remediation piles and through
remediation management plans.
Otherwise, these remediation wastes
would be subject to existing Subtitle C
requirements.
EPA recognizes that at many sites,
cleanups involve excavating and
managing large volumes of these non-
media remediation waste materials.
Therefore, the HWIR-media proposal is
only a partial solution to the overall
problem of regulating cleanups under
RCRA Subtitle C. The Agency
recognizes that excluding non-media
from the HWIR-media rule coverage
would leave in place many of the
Subtitle C problems that arise in the
course of cleanup. This issue was the
subject of much discussion during the
HWIRFACA process. As discussed
above, today's proposed approach for
resolution of this issue is linked to the
contained-in theory that is used for
exempting wastes from Subtitle C
jurisdiction. Since the contained-in
theory only applies to media that
"contain" or do not "contain"
hazardous wastes, the theory cannot, by
definition, be extended to non-media
wastes. These wastes are regulated
under Subtitle C not because they
"contain" hazardous wastes, but
because they are hazardous wastes.
A conditional exclusion approach,
like the Unitary Approach discussed
above, would not make a distinction
between media and non-media
remediation wastes. All remediation
wastes would be eligible for relief.
Because "pure" remediation wastes
(i.e., those that have not been mixed
with environmental media) are often
similar—if not identical to—the "as
generated" wastes for which.the land
disposal restrictions and other Subtitle
C requirements were originally created,
it has been argued that existing LDR and
other requirements are more appropriate
for management of these wastes than the
HWIR-media requirements. To address
this concern for the more concentrated ,
wastes, the Agency could retain the
concept of the Bright Line, for example,
but determine that all remediation
wastes above the Bright Line would be
subject to the current national Subtitle
C LDR standards, and all remediation
wastes below the Bright Line would be
eligible for a "conditional exclusion"
-------
18838
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules
from Subtitle C requirements under a •
site-specific RAP or RMP. This
alternative would be identical to today's
proposed approach, except that it would
include non-media remediation wastes,
arid rely on a conditional exclusion
theory (see discussion below) to exclude
wastes below the Bright Line from
Subtitle C as opposed to the contaihed-
in theory. The Agency requests
comments on this and any other
alternative approaches for the scope of
today's proposed rule.
' Commenters should also review
section (V)(A)(2) of today's preamble
and § 269.2 of today's proposed rule for
a further discussion of the scope of the
proposal, including a discussion of
whether and how contaminated debris
should be included in the rule.
2. The Bright Line
The Bright Line concept originated as
a compromise between those on the
FACA Committee who favored setting
uniform national standards for most, if
not all, contaminated media, and those
who favored a large degree of site-
specific flexibility in the rule. In
essence, the Bright Line serves to
provide certainty that higher-risk media
(if they are land disposed) would be
treated to established national
standards, while overseeing agencies
would have considerable discretion in
prescribing management standards for
lower-risk media. This is conceptually
similar to the "principal threat" concept
that has been used in the Superfund
program for several years ("A Guide to
Principal Threat and Low Level Threat
Wastes" EPA/Superfund Publication:
9380.3-06FS (November 1991) and 40
CFR 300.430(a)).
In any case, distinguishing between
higher- and lower-risk remediation
wastes, and ensuring that the higher-risk
wastes are handled according to certain
minimum standards, has a number of
positive aspects that are consistent with
established Agency policies. However,
reaching consensus on exactly how to
calculate Bright Line concentrations is a
considerable challenge. The Bright Line
concept has something of a
"philosophical lightning rod" among
the various stakeholders.
The Agency has proposed one method
of calculating the Bright Line, but has
analyzed three alternative methods for
calculating the Bright Line in the
"Economic Assessment." The Agency
used the Soil Screening Levels (SSLs)
from Superfund as the basis for
calculating the proposed Bright Line.
The SSLs are set using a residential
exposure scenario. The Agency has
already received comments from
stakeholders that the residential
exposure setting is not an appropriate
basis for calculating the Bright Line at
many remediation sites. The Agency
acknowledges that, by using certain
exposure assumptions in determining
the Bright Line, especially residential
exposure assumptions, the actual risks
posed by remediation wastes at the site
could be, in some circumstances,
significantly lower than the 10~3
implied by the Bright Line. However, as
discussed in section (V)(A)(4) the Bright
Line is not intended to be an indication
of actual risk, but is intended to reflect
relative risks. Nonetheless, it is possible
that setting the Bright Line in this way
could lead to confusion, for example, in
communicating to the public the actual
risks posed by the site, and other similar
problems. The 10-3 level is used to
determine which wastes would
typically receive stringent oversight,
including treatment according to
national treatment standards, but it does
not reflect actual risks at actual sites. An
alternative approach would be to use
industrial land use assumptions in
setting Bright Line levels. At this time,
however, EPA does not believe that
there is enough consensus, around a
methodology for non-residential
exposure scenarios (e.g., industrial
exposure scenarios) that could be used
as the basis for a national rulemaking.
The Agency requests suggestions of
widely accepted methodologies for
determining non-residential exposure
scenarios (e.g., industrial exposure
scenarios). The Agency also requests
comments on whether the Bright Line
should be based on different exposure
scenarios (e.g., industrial). If so, how
should the appropriate scenarios for a
site be determined? How should the
methodology for assessing alternative
exposure scenarios be developed or
used? Finally, the Agency has received
comments from stakeholders that 10~3
may be too high of a risk for the Bright
Line. The Agency requests comments on
using alternative risk levels (such as
10-4) to set the Bright Line.
The Agency also requests comment.on
the alternative of setting a qualitative
Bright Line. The rule could describe
qualitatively what should constitute
"above the Bright Line" wastes and
"below the Bright Line wastes." The
overseeing agency approving the RMP
or RAP could determine for each
specific site whether wastes were above
or below the Bright Line, and specify
that in the RMP or RAP. For example,
the rule could define "above the Bright
Line wastes" as wastes that have
unusually high concentrations .
compared to the rest of the remediation
waste at the site, or wastes that are
highly mobile, or highly toxic. If the
overseeing agency evaluated those
criteria and determined that
remediation wastes at that site met those
criteria, then those wastes would be
required to be managed as "above the
Bright Line wastes." The Agency
requests comments on the merits of
promulgating a qualitative Bright Line.
The combination of the Bright Line
with the contained-in principle was of
particular concern to the States.
Although the Bright Line (as originally
designed by the HWIR FACA
Committee) was supposed to be a
"bright," clear distinction between
media regulated under national
standards and media subject to site-
specific requirements, the Agency (at
the request of the States), decided to
propose the Bright Line not as an
automatic contained-in concentration,
but as an upper limit (or "ceiling") for
contained-in determinations.
The Agency requests comments on
whether the Bright Line concept should
be retained, or whether all contaminated
media (or all remediation wastes)
should be subject to the same set of
standards.
3. RAPs, RMPs, and RCRA Permits ,
The final key element of an HWIR-
media program is whether the RAP or
RMP must serve as a RCRA permit.
Substantively, RAPs (discussed under
the Unitary Approach) and RMPs.
(discussed under the proposed
approach) serve the same purpose, but
they differ in certain procedural
respects. Under the proposed approach,
some contaminated media and
remediation wastes managed under
RMPs would remain subject to Subtitle
C. In those cases, RMPs must serve as
RCRA permits for those wastes and
media. Because all remediation wastes
managed under RAPs under the Unitary
Approach would be exempt from
Subtitle C, RAPs need not serve as
RCRA permits. Therefore, RMPs are
proposed as meeting the minimum
statutory requirements for public
participation for RCRA permits, while
RAPs are discussed as requiring even
more simplified public participation
requirements. Although neither the
proposed approach nor the Unitary
Approach propose to require it, it is
EPA's expectation that in cases of
extensive cleanups or significant on-site
treatment, public participation
procedures under either option would
be more extensive than the statutory
minimum. At the same time, the RAP
approach would allow simplified
procedures for routine responses (for
example, removals) involving low
concentration wastes.
-------
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules
18839
4. Request for Comments
EPA requests comments on all of •
these key elements of an HWIR-media
rule. EPA also requests comments on
different combinations of these
elements, including, but not limited to,
the combinations discussed in this
proposal as the proposed approach, the
Unitary approach and the hybrid option.
VH. Effective Date of Final HWIR-
Media Rule
Regulations promulgated pursuant to
RCRA Subtitle C generally become
effective six months after promulgation.
RCRA section 3010 provides, however,
for an earlier, or immediate, effective
date in three circumstances: (1) Where
the industry regulated by the rule at
issue does not need six months to come
into compliance; (2) the regulation is in
response to an emergency situation; or
(3) for other good cause.
Most of the rule proposed today
would become effective within six
months after promulgation. EPA is
proposing, however, to make the CAMU
rule withdrawal and "grandfathering"
provisions, discussed in section (V)(F)
above, effective upon publication. The
basis for this decision is that the Agency
does not believe that the regulated
community requires six months to come
into compliance with the CAMU
withdrawal. Since all CAMUs approved
at the time of publication of the final
rule are "grandfathered," withdrawal of
the rule would not require any action on
the part of those with approved CAMUs.
The Agency requests comments on
whether it would be appropriate to
make the CAMU withdrawal
immediately effective.
VIII. Regulatory Requirements
A. Assessment of Potential Costs and
Benefits
1. Executive Order 12866
Under Executive Order 12866 (58 FR
51735, October 4,1993), the Agency
must determine whether this regulatory
action is "significant." Significant
regulatory actions must be assessed in
detail and are subject to full OMB
review under Executive Order 12866
requirements. The order defines
"significant regulatory action" as one
that is likely to result in a rule that may:
(a) Have an annual effect on the
economy of $100 million or more, or
adversely affect in a material way the
economy, a sector of the economy,
productivity, competition, jobs, tie
environment, public health or safety, or
State, local, or tribal governments or
communities;
(b) Create a serious inconsistency or
otherwise interfere with an action taken
or planned by another Agency;
(c) Materially alter the budgetary
impact of entitlements, grants, user fees,
or loan programs, or the rights and
obligations of recipients thereof; or
(d) Raise novel legal or policy issues
arising out of legal mandates, the
President's priorities, or the principles
set forth in the Executive Order.
The Agency has determined that
today's proposed rule is a "significant
regulatory action" under part (a) and
possibly part (d) above. These parts are
discussed fully in Executive Order
12866. This proposed rulemaking action
is subject to full OMB review under the
requirements of the Executive Order.
The Agency has prepared an "Economic
Assessment of the Proposed Hazardous
Waste Identification Rule for
Contaminated Media," in support of
today's action. A summary of this
assessment is presented under section 4
below.
2. Background
As discussed in section (V)(A)(4)(a) of
this preamble, the Agency has
determined that media which "contain"
hazardous waste must be managed as
hazardous waste until they no longer
contain such waste. Under this
approach, EPA Regions and authorized
States determine, on a case-by-case
basis, what media "contain" hazardous
waste, and therefore must be managed
as hazardous waste.
RCRA Subtitle C regulatory
requirements may be applied to
contaminated media generated during
several different types of site cleanups,
including CERCLA remedial actions,
State Superfund actions, RCRA
corrective actions, RCRA closures, and
voluntary cleanups. If contaminated
media containing hazardous wastes are
excavated in the process of site cleanup,
they are required to be managed
according to RCRA Subtitle C standards.
These stringent requirements for
excavated media, which often contain
low levels of hazardous waste, have
resulted in site cleanup decisions that
effectively leave in place large volumes
of contaminated media. As discussed in
section (II)(A), EPA and the States have
recognized that there are fundamental
differences in the incentives and
objectives for prevention-orientated
versus cleanup-orientated waste
management programs. Today's
proposal seeks to alleviate many of the
disincentives currently associated with
the application of traditional RCRA
Subtitle C requirements to cleanup
programs.
3. Need for Regulation
Traditional RCRA Subtitle C
management requirements for all
excavated media containing any level of
hazardous waste have resulted in less
than optimal resource allocation. From
a social perspective, too many resources
are required to be devoted to the
management of very low-risk media.
This misallocation restricts availability
of limited resources for use in other
investments, including effective
management of high-risk media and
wastes. In addition, this disconnect
between risk and management
requirements creates disincentives for
cleanup, impedes ongoing cleanup
processes, and restricts the protective
cleanup options available for
consideration by the stakeholders.
These unanticipated market distortions
resulting from traditional RCRA Subtitle
C management requirements for all
excavated media containing any level of
hazardous waste has convinced the
Agency that reform is necessary.
Through many discussions with
stakeholders, particularly State and
Federal cleanup programs, the Agency
has determined that such reforms
should provide meaningful regulatory
structure and guidance designed to
ensure safe management while, at the
same time, providing site-specific
flexibility that will help facilitate
accelerated cleanups around the
country. Particularly, as this proposal
was designed specifically for the
cleanup scenario, EPA believes that it
will be better suited to the situations
encountered at typical cleanup sites
than some of the current regulations
which are more appropriate for as-
generated wastes. Specifically, EPA
believes that reforms presented in
today's proposal will facilitate more
timely and less costly cleanups while
maintaining protection of human health
and the environment.
4. Assessment of Potential Costs and
Benefits
The Agency has prepared an
"Economic Assessment" to accompany
today's proposed rulemaking. This
"Economic Assessment" has been
submitted to the Office of Management
and Budget in accordance with
Executive Order 12866.
a. Description of the HWIR-media
proposal. HWIR-media will address an
important limitation of the current
RCRA Subtitle C program. The Subtitle
C regulatory framework was designed
primarily to ensure the safe cradle-to-
grave management of currently
generated hazardous wastes.
Furthermore, the Subtitle C program
-------
1884O
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules
seeks to prevent releases, minimize
generation, and maximize the legitimate
reuse and recycling of hazardous waste.
Subtitle C regulations contain detailed
procedural and substantive management
requirements that, when applied to the
cleanup of contaminated media, often
create incentives to leave this material
in place or to select remedies that,
otherwise minimize the applicability of
RCRA regulations. In addition, the level
of regulation is not always
commensurate with the risks posed by
contaminated media. For example,
media having very low levels of
contamination are often regulated as
hazardous waste under RCRA Subtitle C
as a result of the contained-in policy.
The proposed rule would revise
existing RCRA Subtitle C regulations by
creating a new decision process for
identifying and managing contaminated
media. Under this framework, a set of
hazardous constituent concentration
levels would constitute a "Bright Line"
for separating higher and lower levels of
contaminated media. One Bright Line is
proposed for soil and a second Bright
Line for ground water and surface water.
The proposed rule does not include a
Bright Line for sediments; instead, site-
specific decisions alone would
determine whether sediment contains
hazardous waste. Media that contain
levels of contamination above the Bright
Line would be managed as "hazardous
contaminated media" under revised
Subtitle C standards. Contaminated
media with all constituent
concentrations below the Bright Line
would be eligible for a determination by
the EPA, or authorized State agency
overseeing the cleanup, that the media
do not contain hazardous waste.
Today's proposal would also replace
and withdraw the requirements for
Corrective Action Management Units
(CAMUs), simplify the state
authorization procedures for RCRA
program revisions, and streamline the
permitting requirements for
management of all types of remediation
waste. Furthermore, the proposal would
exempt from RCRA Subtitle C, dredged
material permitted under the Clean
Water Act or the Marine Protection,
Research and Sanctuaries Act (MPRSA).
b. HWIR-media options analyzed.
Executive Order 12866 requires and
assessment of reasonably feasible
alternatives to the proposed regulatory
option. The Agency analyzed several,
options for this "Economic
Assessment." These options vary in two
dimensions:
(i) types of remediation waste eligible
for exclusion from Subtitle C.34The
options include either:
—Contaminated media only (soils, non-
navigational sediments, ground water,
surface water), or
—All remediation waste (the above
contaminated media plus old waste
and debris); and
(ii) partial or complete exclusion of
such wastes from Subtitle C. The
options include potential exclusion
from Subtitle C regulation of either:
—Media with all constituent
concentrations below a proposed
Bright Line, or
—All media, regardless of the extent of
contamination.
The primary options analyzed are
identified in Exhibit A below.
EXHIBIT A.—PRIMARY OPTIONS ANALYZED
Remediation wastes eligible for
exclusion
Levels of contamination potentially excluded from subtitle C regulation
Lower risk
(bright line)*
Proposed Bright Line Option (Proposed
Rule).
Expanded Bright Line Option
Lower and higher risk
(No bright line)
Conditional Exemption Option.
Expanded Conditional Exemption
Option** (Uriitary Approach). ;
* Three other Bright Line options were examined applying alternative Bright Line concentrations. These findings are present in the Appendix to
the full Economic Assessment, located in the RCRA Docket materials for this Action.
N^rlf °KoVo^ *»P«*> determination is proposed for the cleanup of contami-
nated sediments.
The Bright Line for contaminated soil
under the proposed and expanded
Bright Line options is defined for
approximately one hundred hazardous
constituents for which EPA has
calculated Soil Screening Levels (SSLs).
These SSLs are based on potential
human health risk and were developed
using risk equations and exposure
assumptions specified in EPA's "Risk
Assessment Guidance for Superfund
(RAGS)." A lifetime cancer risk of 10~6
for carcinogens and a hazard quotient of
one for non-carcinogens was applied to
determine the Soil Screening Levels
(SSLs). The HWIR-media soil Bright
Line levels were derived from the
inhalation and ingestion pathways of
the SSLs, and correspond to an excess
lifetime cancer risk of 10~3 for
carcinogens and a hazard quotient of 10.
The levels from the inhalation and
ingestion pathways from the Superfund
SSLs are multiplied by 10 if the
constituent is a non-carcinogen, and by
1,000 if the constituent is a carcinogen
to achieve the target risk levels (referred
to as the "risk adjustment"). The Bright
Line concentration is the lower of the
risk-adjusted inhalation or soil
ingestion-based levels. All Bright Line
levels are capped at 10,000 ppm and the
lead Bright Line is set at 4,000 ppm. The
Conditional Exemption Options (base
and expanded) do not rely on Bright
Line constituent contamination levels.
All contaminated media or all
remediation waste would be exempt
from RCRA Subtitle C under these
options. Rather than using the Bright
Line to determine management regimes,
site-specific Remediation Management
Plans would specify the management
standards.
The Agency examined three
alternative Bright Lines for the
"Economic Assessment." The findings
are presented in Appendix C to the full
34 Although, throughout this analysis, the Agency
characterizes media determined to no longer
contain, or wastes no longer considered hazardous,
to be excluded or otherwise not subject to RCRA ,
Subtitle C, As discussed in section (V)(C) of this
Preamble, those wastes may nevertheless continue
to be subject to LDRs.
-------
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules
18841
"Economic Assessment," which is
located in the docket for this action. The
Bright Line for Alternative One (1)
matches the proposed Bright Line but
includes ground water leachate as an
additional exposure pathway. The
Alternative Two (2) Bright Line is based
upon a compilation of the most
stringent levels combining numbers .
from the Multipathway Analysis,
constituent-specific ground water levels,
and Exemption Quantitation Criteria
(EQCs) for constituents without
adequate analytical methods, or for
which exit levels are below detection.
The Alternative Three (3) Bright Line
multiplies Soil Screening Levels for
both carcinogens and non-carcinogens
by 1,000, corresponding to a 10~3
cancer risk and a hazard quotient of
1,000, respectively. Appendix A of the
full "Economic Assessment" provides
the Bright Line levels for each
constituent for the proposed Bright Line
and the three alternative Bright Lines.
Appendix C of the "Economic
Assessment" discusses the findings for
Alternatives 1,2, and 3.
c. Data sources and methodology. The
"Economic Assessment" of this
proposed action analyzes the impact of
HWIR-media options on the following
types of remediation wastes: soils,
sediments, ground water, old waste, and
debris. Soils, sediments, and ground
water are analyzed under the
contaminated media only options (see
Exhibit A), while old waste and debris
are included under the all remediation
waste options. Sludges at remediation
sites frequently are found to be mixed
with soil and sediment. These sludges
are generally inseparable and
occasionally indistinguishable from
their host media. Such mixtures are
included in the soil volumes analyzed
under all options. Sludges were also
found to be occasionally classified as
old waste. Sludges identified in this
manner are included in the old waste
volumes examined under the all
remediation waste options. The vast
majority of media-like sludges, however,
are believed to be generated from
operating Subtitle C and Subtitle D
surface impoundments'and managed as
hazardous waste. A sensitivity analysis
presented in the Economic Assessment
examines potential cost savings of
applying the proposed Bright Line to
sludges from these facilities. Data and
analytical limitations have prevented an
analysis of surface water impacts under
the HWIR-media options.
The "Economic Assessment" projects
a full range of potential cost savings
from HWIR-media options; it does not
attempt to estimate the actual cost
savings. EPA used this approach
because of the substantial uncertainties
affecting the implementation of HWIR-
media, including (1) the extent of State
adoption of the rule; (2) the impact of
the existing corrective action
management unit (CAMU) rule, which
has been disrupted by litigation; and (3)
the extent of voluntary use of the HWIR-
media flexibility by remediation
decision-makers. To simplify the
analysis, the Economic Assessment first
estimates high-end potential cost
savings by assuming that (1) all States
quickly adopt HWIR-media; (2) the
CAMU rule is ineffective; and (3) less
expensive management methods are
chosen when available under HWIR-
media. Sensitivity analyses are then
developed that address the impacts of
these assumptions, resulting in a broad
range of potential economic impacts.
The Agency recognizes that HWIR-
media may stimulate a certain degree of
accelerated cleanup activity and
corresponding cost impacts immediately
following promulgation but has not
developed a sensitivity analysis for this
potential scenario.
For soil and sediment, EPA's analysis
of potential cost savings of HWIR-media
was conducted in six steps: (1) Develop
an HWIR-media database of a sample of
CERCLA remedial action and RCRA
corrective action contaminated soil and
sediment sites, detailing the amount of
contaminated soil and sediment at each
site and the maximum concentration of
each hazardous constituent in each
volume; (2) develop a basis for
predicting the management technologies
and costs for each site in the database
under both the baseline and the HWIR-
media options; (3) project the methods
and costs of managing contaminated soil
and sediment under the baseline of
current Subtitle C requirements for the
sample of sites in the HWIR-media
database; (4) project the methods and
costs of managing soil and sediment
under ,the HWIR-media options for the
sites in the database; (5) estimate the
annual volume of soil and sediment to
be remediated at all CERCLA remedial
action, RCRA corrective action, RCRA •
closure, State superfund, and voluntary
cleanup sites; and (6) estimate potential
high-end aggregate cost savings by
multiplying the changes in weighted
average management costs under Steps
3 and 4 by the annual volumes from
Step 5.
The Agency compiled a soil and
sediment database using available data
reported in CERCLA Records of
Decision (RODs) signed in Federal fiscal
years 1989 through 1993, the Corrective
Action Regulatory Impact Analysis, and
supporting research. Management
methods were assigned to particular
volumes of contaminated soil and
sediment in the HWIR-media database •
based on the type of hazardous
constituents in the contaminated media,
the concentration of these hazardous
constituents, and the volume to be
remediated. The baseline and HWIR-
media contaminated soil and sediment
volumes reflect the amount of
contaminated media planned to be
managed at cleanup sites under current
regulations. This analysis assumes'a
baseline site characterization cost that
remains unchanged under HWIR-media.
Beyond this, the HWIR-media analysis,
assumes that the unit or general area of
contamination initially identified as
containing constituents above the Bright
Line will incur the cost of additional
sampling and analysis costs. This is
necessary to refine estimates of "hot
spot" volumes and to distinguish
between volumes above and below the
Bright Line at specific sites. These
incremental sampling and analysis costs
are estimated at two dollars per ton for
all soils and sediments. Volumes below
the Bright Line will not incur these new
costs. The Agency has not estimated the
difference in implementation costs
between the Bright Line and Expanded
Bright Line options. The Expanded,
Bright Line option may result in lower,
incremental implementation costs
because it avoids the need to separately
characterize and manage contaminated
media and other remedial wastes that
are mixed together. Additional sampling
and analysis costs are not incurred for
volume partitioning under the no Bright
Line option.
The media volume and cost estimates
developed in Steps 1 through 4 above
apply to a sample of RCRA and CERCLA
facilities included in the HWIR-media
database. The HWIR-media proposal, as
written, will affect additional soil and
sediment volumes from other actions,
including RCRA closures, State
Superfund sites, and voluntary
cleanups. The baseline rate of
contaminated soil and sediment
generation for all potentially affected
actions is estimated at 8.1 million tons
annually for the period from 1996
through 2000. The results of the HWIR-
media database analysis for the sample
of sites were used to determine the
fraction of annual contaminated soil and
sediment volumes above and below the
Bright Line and corresponding net cost
impacts.
The methodology used to estimate
ground water volumes, costs, and cost
savings differs from the methodology for
contaminated soil and sediment because
of the lack of site-specific data on
volumes of contaminated ground water.
The ground water analysis used data on
-------
18842 Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules
the hazardous constituents present at
actual CERCLA ground water cleanup
sites (contained in the HWIR-media
database) combined with randomly
generated ground water volume
estimates that reflect the national
distribution of contaminated ground
water plume volumes. Cleanup cost data
were based on an analysis using a
modified version of EPA's Cost of
Remedial Action (CORA) Model. For
estimating potential ground water
cleanup cost savings under HWIR-
media, EPA developed a methodology
consisting of two major components: (1)
A Monte Carlo simulation that generates
hypothetical sites and estimates cleanup
volumes associated with different target
contaminant concentrations; and (2) a
costing component based on EPA's
CORA Model.
For the analyses conducted under the
"expanded" options, old waste is
defined as waste generated prior to the
enactment of RCRA. The nationwide
baseline volume generation of old waste
under both RCRA and CERCLA is
estimated at 1.8 million tons annually.
This volume was estimated based on a
comparison of the results of RCRA
Corrective Action RIA analysis, HWIR-
database results for RCRA soil, and
database results for old waste at RCRA
sites. Experts indicate that management
methods for old wastes are typically
similar to those for contaminated soil.
Cost savings from HWIR-media,
therefore, are estimated by applying the
approach used for contaminated soils.
Only the expanded options, which
incorporate all remediation wastes into
the HWIR-media analysis, address old
waste.
The expanded options, which
incorporate all remediation waste, also
address hazardous debris. EPA gathered
information on the current and
projected management of hazardous
debris from past regulatory and cost
impact analyses, supplemented by
expert opinion and best professional
judgment. Total baseline contaminated
debris generation is estimated at 0.36
million tons annually. The cost and
economic impact analysis prepared for
the Phase I Land Disposal Restrictions
(LDR) rule for hazardous debris
provided information on the amount of
debris generated from cleanup activities,
technologies used to manage the debris,
and the projected average cost of
treating debris under the baseline. EPA
contacted several industry experts to
discuss potential management practices
under HWIR-media. The Agency also
used the Corrective Action RIA for costs
of Subtitle C and on-site disposal units,
while the Subtitle D cost was derived
from published sources.
d. Findings. This section presents the
key findings of the "Economic
Assessment." The volumes of
remediation wastes affected and
associated net cost savings for,the
proposed option are presented. Findings
for the primary alternatives are also
presented. In addition, this section
briefly summarizes key sensitivity
analyses, non-monetary effects (both
positive and negative), and industry
impacts.
L Volume Impacts and Cost Savings
Proposed and Expanded Bright Line
Options. Exhibit B identifies the portion
of remediation waste that is estimated to
be above and below the Proposed Bright
Line Option (Proposed Rule) and the'
Expanded Bright Line Option. Ground
water is excluded from this summary
because the volume of ground water
treated under the baseline and under
HWIR-media is a function of the
treatment duration required to achieve
target constituent concentrations.
Therefore, the total volume of
contaminated ground water cannot be
simply divided into volumes above and
below the HWIR-media Bright Line. The
Agency, however, estimates that only
about 5 percent of CERCLA ground
water sites contaminated with HWIR-
media constituents have constituent
concentrations that are all below the
Bright Line.
EXHIBIT B.—REMEDIATION WASTES ABOVE AND BELOW THE PROPOSED AND EXPANDED BRIGHT LINE OPTIONS
[Million tons per year] " ,
Media type
Soil RCRA -
-------
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules 18843
estimated at $1.2 billion, annually. This
estimate is derived from an annual
baseline management cost estimate of
S2.4 billion, covering soil, sediment,
and groundwater. Most of the savings
under the proposed option, $1.1 billion,
result from reduced RCRA and CERCLA
soil management costs. The Expanded
Bright Line Option has a baseline
management cost estimate of $3.2
billion, annually. The management costs
under this HWIR-media option are
reduced to $1.6 billion, resulting in net
cost savings of approximately $1.6
billion per year. All estimated cost
savings are net of implementation costs
for the affected volumes, as discussed
under section (4)(c) above. Actual
nationwide cost savings may be
significantly less than high-end
estimates presented here. As noted
earlier, several factors may contribute to
reduced savings, including: the extent of
State adoption, the impact of existing
CAMU rule, and the extent to which
remediation decision-makers adopt the
less expensive media management
technologies available under HWIR-
media.
EXHIBIT C.—ESTIMATED HIGH-END COST SAVINGS UNDER THE PROPOSED AND EXPANDED BRIGHT LINE OPTIONS
Media type
Soil— CERCLA, State, and Voluntary
Soil— RCRA
Sediment— CERCLA
Sediment— RCRA
Ground Water— CERCLA
Ground Water— RCRA Corrective Action
Proposed Bright Line Option
Old Waste— CERCLA
Old Waste— RCRA
Debris
Expanded Bright Line Option
Annual t
. Baseline
1 1^9
K7Cl
A~f
CO
oo1OC
-ICC
OQO
3,174
otal cost
HWIR-media
options
Million Dollars
1,633
savings
41 a (boyo)
£.0 (boyo)
o4 (^4%)
1,229 (51%)
oU (4yyo)
141 (49%)
91 (31%)
35 1,541 (49%)
33 Inclusion of sludges increases this total to $1,732 million annually.
Conditional Exemption and
Expanded Conditional Exemption (no
Bright Line) Options. Volume impacts
and potential net cost savings under the
Conditional Exemption Options are
difficult to estimate because these
options do not establish specific Bright
Line levels for contaminant
concentrations, or any minimum
treatment standards. Instead, the
management of contaminated media
(Conditional Exemption) or
contaminated media and other
remediation wastes (Expanded
Conditional Exemption) would be
determined by individual States or
oversight agencies based on site-specific
cleanup plans. Because of the lack of
cleanup management standards or
detailed guidance, States or oversight
authorities may continue to follow
current standards and cleanup decisions
may be delayed or continue to be
delayed. Thus, the conditional
exemption options, despite increased
flexibility, may actually achieve fewer
cost savings than the Proposed Bright
Line Option in the near term.
Over time, however, States are likely
to develop their own explicit standards
and guidelines for cleanup decisions
that may be roughly equivalent to the
Bright Line scenario. Conversations
with various State officials have
indicated that contaminated media
containing concentrations close to the
proposed Bright Line levels would
likely be managed as if it were above the
Bright Line. Eventually, therefore, State
standards may likely be set similar to
the proposed Bright Line levels. This
would result in similar cost savings for
the Conditional Exemption Options,
over the longer term. The Conditional
Exemption Options do, however, allow
more management flexibility than the
Bright Line Options. The Agency is not
able to predict how various factors will
affect State selection of cleanup
remedies under the Conditional
Exemption Options. EPA, therefore, has
no basis to believe that, over the long
term, cost savings under the Conditional
Exemption Options are likely to be
significantly different compared to the
Bright Line Options.
ii. Sensitivity analyses. The
"Economic Assessment" contains
several sensitivity analyses, including
analyses of three major analytical
assumptions used to develop the
baseline:
—all States quickly adopt and
implement the HWIR-media Proposal;
—corrective action management units
(CAMUs) and temporary units (TUs)
are not used at any cleanup sites; and
—cleanup waste containing only a
hazardous characteristic, in addition
to media contaminated with listed
hazardous wastes, are affected by
HWIR-media.
The Agency has also developed a
table designed to illustrate the
distinctions between the baseline and
corresponding management costs and
cost savings under alternative policy
options and implementation scenarios.
This table is presented under "Other
Sensitivity Analyses" at the end of this
section.
State adoption. The options analyses
presented above assume all States
adopt, receive EPA authorization, and
implement HWIR-media upon
promulgation of the Final Rule. This
scenario may not be completely
realistic. Some States may not develop
HWIR-media programs. Furthermore,
programs that are developed are not
likely to become effective immediately
after the final rule is promulgated.
These State programs will likely receive
EPA authorization over a few years. In
addition, States that do not adopt
HWIR-media may influence program
development and cleanup decisions in
other States because of such factors as
industry pressures, local or regional
environmental issues, or public
concerns and perceptions.
California, Illinois, New Jersey, New
York, and Pennsylvania are the major
generators of contaminated media in the
United States. These States, combined,
generate roughly 35 percent of the total
annual volume of contaminated media
managed ex-situ in the nation. These
-------
18844
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules
States may be more likely to develop
HWIR-media programs than other States
for several reasons. For example,
generators located in these States may
be large potential beneficiaries from the
rule. In addition, these States are likely
to have larger and better developed
cleanup programs and resources,
allowing for protective site-specific
cleanup decisions, and oversight. If only
these States adopt HWIR-media, total
annual cost savings may be reduced by
approximately 60 to 70 percent. This
assumes the remediation waste types
and contaminants in these States are
representative of the national total.
Another method for estimating the
potential impacts of State adoption is a
phased-in approach. Previous Agency-
State interaction experience under
RCRA indicates roughly 33 percent of
the impacts of HWIR-media may begin
accruing within one year after
promulgation, 67 percent after two
years, and 100 percent after three years.
Total cost savings under HWIR-media
may correspond to such a phased-in
scenario.
Corrective Action Management Units
(CAMUs). On February 16,1993, the
Agency published final regulations for
corrective action management units
(CAMUs) and temporary units (TUs).
Under this action, placement of
remediation wastes in an approved
CAMU would not trigger land disposal
restriction (LDR) requirements or
minimum technology requirements
(MTRs). Critics of this action brought
suit against the Agency, challenging
both the legal and policy basis for the
CAMU Rule. The Agency has agreed to
reexamine the CAMU regulations in the
context of HWIR-media. Because of the
litigation, the resulting limited use of
CAMUs and the likely CAMU phase-
out, the HWIR-media analysis assumed
that CAMUs do not, and have never
existed. Some CAMUs, however,
currently exist and are grandfathered
into the HWIR-media proposal. The
Agency has conducted a sensitivity
analysis, assuming the final "expanded"
CAMU is effective in the baseline, in an
effort to analyze the potential maximum
impact of the CAMU provision.
There are some differences in the
types of benefits achieved by CAMU
and HWIR-media rules. This analysis
assumes that the two rules achieve
similar benefits for contaminated soils
and sediments. The Agency's analysis in
support of the final expanded CAMU
Rule ("Regulatory Impact Analysis of
the Final Rulemaking on Corrective
Action Management Units and
Temporary Units," Office of Solid
Waste, U.S. EPA, January 11,1993)
estimated that the rule would reduce the
volume of contaminated soil and
sediment subject to LDR standards by 57
percent for CERCLA volumes and 72
percent for RCRA volumes. Based on
these percentages, the Agency estimates
that potential soil and sediment cost
savings HWIR-media would decline by
approximately $640 million or 52
percent if the final "expanded" CAMU
rule was fully effective.
Listed versus characteristic
contaminated media. The proposed rule
does not distinguish between media
contaminated with listed hazardous
wastes, and media that must be
managed as hazardous waste because it
exhibits a characteristic. In both cases,
the concentration levels of individual
hazardous constituents in the media
determine how the media will be
regulated under HWIR-media. Early
HWIR-media discussions focused only
on media contaminated with listed
hazardous waste. A sensitivity analysis
was conducted for CERCLA and RCRA
contaminated soil volumes. This
analysis indicates the potential net
savings from the Proposed. Bright Line
Option may be reduced by up to 10
percent if characteristic only media
volumes were removed from HWIR-
media consideration.
Other sensitivity analyses. Previous
sensitivity analyses independently
examined potential impacts on cost
savings associated with limited state
adoption, fully effective expanded
CAMU, and characteristic contaminated
media. This discussion compares the
effects of limited state adoption, CAMU
impacts under alternative
implementation scenarios, and extends
the analysis to the expanded Bright Line
and no Bright Line (Unitary Approach)
option. The purpose of this discussion
is to present a direct comparison of
impacts potentially associated with
alternative policy options and
implementation scenarios relevant to
CAMU and HWIR-media.
The HWIR-media analysis is difficult
to compare to the CAMU cost savings
analysis. There is wide variation in
assumptions related to baseline
treatments, affected facilities,
remediation waste types and volumes,
and the projected remediation time
frame for each analysis. The
relationship between CAMU and
alternative HWIR-media options
presented in this section should be
considered for general comparative
purposes only.
Limited implementation of HWIR-
media, as defined in this analysis,
assumes HWIR-media adoption by the
five states listed above. Limited
implementation of CAMUs implies that
only grand fathered CAMUs will
operate. Aggressive implementation
assumes 100 percent state adoption of
HWIR-media and the final "expanded"
CAMU rule. Total annual baseline
management costs for HWIR-media
affected remediation wastes, assuming
full LDR compliance, are estimated at
$3.52 billion (Exhibit D). This estimate
covers RCRA and CERCLA soils and
sediments, groundwater, old waste,
debris, and sludges. Aggressive
implementation of the expanded CAMU
rule, covering all remediated waste
except groundwater, would reduce this
estimate to $2.67 billion, resulting in
annual cost savings of approximately
$0.84 billion. These savings were
estimated to range from $1.20 to $2.00
billion in the January 11,1993
Regulatory Impact Analysis for CAMU.
A significant reduction in the level of^
incineration applied in the baseline
accounts for the majority of this
difference. Furthermore, CAMU
assumed accelerated clean-up
(remediation) levels in the years
immediately following rule
promulgation. Data available to the
Agency since completion of the CAMU
analysis in 1993 have proven both of
these factors to be significantly
overestimated. Cost savings attributable
to only the current in-place (grand
fathered) CAMUs are estimated at $0.04
billion annually.
The HWIR-media proposal and
options reflect annual aggregate cost
savings above and beyond the revised
estimate for expanded CAMU.
Aggressive implementation of the
HWIR-media proposal, without CAMU
consideration, is estimated to result in
high-end cost savings of $1.23 billion
beyond the baseline for soils, sediments,
and groundwater. These savings are
reduced to approximately $0.43 billion
under the limited implementation
scenario. Annual cost savings with the
inclusion of old waste, debris, and
sludges under the Expanded Bright Line
and Unitary options may range
anywhere from $0.61 to $2.07 billion,
depending upon the option and extent
of state adoption.
The Agency also examined the
potential aggregate cost savings
assuming both promulgation of HWIR-
media, and retaining the expanded
CAMU rule. Annual cost savings
assuming full state adoption increase by
approximately $0.59 billion beyond the
HWIR-media proposal without CAMU.
These incremental savings are derived
from the inclusion of additional
facilities previously unaffected by
CAMU, plus an expanded media scope
covering soils, sediments, and
groundwater. With limited state
adoption of HWIR-media, savings
-------
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules
18»45
increase by about $0.04 billion
annually, derived only from
groundwater. While not presented in
Exhibit D, full implementation of the
HVVIR-media Unitary Approach option
was found to provide no incremental
savings beyond the expanded CAMU
rule. The extent of implementation of
both CAMU and HWIR-media has a
significant impact on incremental and
aggregate cost savings. Aggressive
implementation of the HWIR-media
proposal, combined with the final
"expanded" CAMU, results in aggregate
annual cost savings of $1.44 billion, or
approximately 17 percent beyond the
HWIR-media only scenario. Aggregate
savings, while significantly lower
overall, increase from $0.43 to $0.88
billion when the HWIR-media limited
implementation scenario is combined
with the final "expanded" CAMU.
EXHIBIT D.—ESTIMATED REMEDIATION WASTE MANAGEMENT COSTS UNDER ALTERNATIVE POLICY OPTIONS AND
IMPLEMENTATION SCENARIOS .
Remediation waste baseline and policy option
Baseline'6 management costs: (no CAMU, no HWIR-media, all remediation waste) ....
Policy option and impact from baseline: Corrective Action Management Units (CAMU)
HWIR-media bright-line Proposal: (no CAMU consideration)
Aggregate Cost Savings: HWIR-Media Bright-Line proposal with expanded CAMU
HWIR-media expanded bright-line option: (no CAMU consideration)
HWIR-media expanded no bright-line option (unitary approach): (no CAMU consider-
ation)
Implementation Scenario
Aggressive Implementation
Remedi-
ation waste
manage-
ment costs
Cost
savings
Limited Implementation
Remedi-
ation waste
manage-
ment costs
Cost
savings •
Billion Dollars Per Year
3.52
2.67
2.29
2.08
1.79
1.45
"0.84
1.23
1.44
1.73
2.07
3.52
3.48
3.09
2.63
2.91
2.79
0.04
0.43
0.88
' 0.61
0.73
r .baseline includes CERCLA cleanup volumes managed under the Area of Contamination (AOC) concept. Current AOC management of
RCRA volumes is believed to be negligible and is not included in this baseline. ' aiiayciiiciii 01
37 Updated data leading to significant revisions in baseline treatment methods, costs, volumes affected, and remediation schedule have led the
Agency to adjust this figure from earlier estimates.
iii. Nonmonetary positive and
negative effects. Currently, cleanup
activities generating contaminated
media containing a listed hazardous
waste or exhibiting a hazardous
characteristic are subject to the LDRs
and MTRs when they involve placement
of waste upon the land. When LDRs are
triggered, contaminated media are
subject to stringent and often costly
treatment standards. Cleanup decision-
makers, therefore, often prefer remedies
that leave contaminated media in place
in an effort to avoid triggering the LDRs.
When MTRs are triggered by the
creation, expansion, or replacement of
landfills and surface impoundments
managing hazardous waste,
contaminated media are subject to
technical standards for liner, cover, and
leachate collection systems. Thus,
cleanup decision-makers have, in the
past, avoided consolidating or otherwise
moving contaminated media during
cleanup to bypass the MTRs.
When the costs resulting from LDRs
and MTR are incorporated into a
cleanup decision many cleanups
become economically infeasible. The
Agency believes, however, that with the
increased flexibility and corresponding
cost savings under the HWIR-media
Proposed Rule, facility and site
managers will conduct more cleanups
than are currently being performed.
Several factors would provide
incentives to perform cleanups if
excessive LDR and MTR costs were not
incurred. For example, cleaning up a
site reduces future potential liability, •
increases the salability of the land, and
may generate public good will. Exhibit'
E summarizes the anticipated changes
in management methods under HWIR7 :
media.
EXHIBIT E.—ANTICIPATED INCENTIVES CREATED BY HWIR-MEDIA
Baseline management plans
HWIR-media
incentives for
non-hazardous media
Reason for change or no change
No excavation or treatment (e.g.,
containment).
Manage in-situ or ex-situ
Manage in-situ.,
Manage ex-situ.
Manage ex-situ
None; would still choose ex-situ
treatment.
LDRs either would not apply or would be more flexible and therefore
a less costly ex-situ method may be chosen. Could also encourage
. in-situ or on-site ex-situ management because HWIR-media lets a
facility operate under a Remediation Management Plan instead of a
more costly Part B permit for in-situ or ex-situ treatment.
LDRs either would not apply or would be more flexible and therefore
a less costly (non-LDR) ex-situ method may be chosen.
Previously preferred ex-situ to in-situ or no treatment; ability to select
a less costly ex-situ method under HWIR-media will not cause shift
from ex-situ management. May, however, choose a less expensive
ex-situ method.
-------
18846 Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules
Although HWIR-media will reduce
the stringency of regulation for some
media currently managed as hazardous
waste, EPA does not expect any of the
options to significantly increase risks to
human health and the environment for
two reasons. First, there is a built-in
process to minimize these risks under
the HWIR-media proposal, namely State
or EPA oversight of cleanups through
Remediation Management Plan review,
approval, and oversight. Second, under
all of the options considered, active
management of contaminated media is
likely to eliminate possible exposure
pathways. Thus, the Agency believes
that the potential for negative benefits,
that is, potential increases in risk, is
negligible. Thus, EPA's selection of a
regulatory option is driven primarily by
balancing option protectiveness,
improved long-term effectiveness of
cleanups, implementation issues, and
overall cost savings.
iV. Industry impacts. The economic
impacts of HWIR-media will be
distributed across industries that
generate contaminated media and other
remediation waste, as well as the
environmental services industry which
helps manage such contamination. All
regulatory options will result in cost
savings for generating industries and
revenue losses, to some extent, for the
commercial environmental services
industry.
Petroleum and coal products (SIC 29),
chemicals and allied products (SIC 28),
and fabricated metals products (SIC 34),
are the major industries generating
contaminated media that will be
affected'by HWIR-media. Firms in these
industries will be the main beneficiaries
of cost savings from changes in cleanup
practices. Total potential cost savings by
industry, however, are estimated to
represent less than 0.1 percent of each
industry's aggregate annual revenues.
Firm level impacts within affected
industries are likely to be more diverse,
depending upon the nature and extent
of individual facility/firm cleanup
responsibilities. Potential remedial
action cost savings for an affected
"typical firm" in the chemicals or
fabricated metals industry are estimated
to represent less than 2.0 percent of
annual revenues.
The initial HWIR-media cost savings
associated with a particular cleanup or
set of cleanups could range from a one-
time event (for firms with a single unit),
to a continuous stream over the next 15
to 20 years for firms with multiple
units/sites. These cost savings may help
stimulate productive efficiencies, both
on a micro- and macroeconomic level,
depending upon how the cost savings
are managed. Investment of the savings
in the form of increased capital reserves,
new capital purchases, or increased
research and development may have
long-term positive economic impacts on
affected firms, and the general economy.
Furthermore, much of the cost of most
cleanup activities often falls on
insurance companies. A reduction in
projected remedial action costs as a
result of HWIR-media may stimulate
competitive insurance companies to
lower premiums in an effort to expand
market share.
Unlike in the case of generators, the
effect of any cost savings associated
with this rule will be to reduce the
revenue stream to firms in the
commercial environmental services
industry. These firms work for a variety
of generators who schedule cleanups at
different times in the future. HWIR-
media will not, however, have a
uniform impact on the entire industry.
Instead, the impacts will vary across
three distinct industry segments: (1) the
solid waste management industry
segment, which provides transportation
and disposal services for non-hazardous
waste and contaminated media, (2) the
hazardous waste management industry •
segment, which provides transportation
and disposal services for hazardous
waste and contaminated media, and, (3)
the cleanup services industry segment,
which provides engineering and
technical advice for management of
hazardous wastes.
The demand for the services of the
solid waste management industry
segment will increase under HWIR-
media as more remediation wastes are
disposed of in Subtitle D landfills. In
contrast, the hazardous waste :
management industry segment could
face a reduction in their revenue
streams as smaller volume's are likely to
be managed at commercial Subtitle C
facilities. In addition, volumes that
continue to be managed at such
facilities may require less extensive
treatment. The cleanup services
industry segment is likely to incur
reductions in their revenue streams
under HWIR-media because over 95
percent of hazardous wastes and media
are managed on-site. This implies that a
large portion of projected cost savings to
generators may translate into reduced
revenues for this industry.
These industry segments are not
mutually exclusive. Many of the larger
firms in the environmental services
industry operate in more than one
segment of the industry. In addition, the
analysis does not consider the impact of
HWIR-media in increasing the speed of
cleanup and stimulating new cleanups,
which will offset revenue losses.
A decrease in demand for the services
of the environmental services industry
under HWIR-media will lower prices in
the short-run as firms compete for the,
lower demand. At a lower price,
however, services may be,offered at a
loss. Consequently* environmental
services firms may exit the industry, ;
consolidate, or decrease in size, and the
supply of services may decline, until a
new long-run equilibrium is reached.
5. Regulatory Issues
Regulatory issues most pertinent to
this proposed action include
environmental justice and Federal
unfunded mandates. Both of these
issues are discussed below.
a. Environmental Justice. Under
Executive Order 12898, "Federal
Actions to Address Environmental
Justice in Minority Populations and
Low-Income Populations," as well as
through EPA's April 1995,
"Environmental Justice Strategy,
OSWER Environmental Justice Task
Force Action Agenda Report," and
National Environmental Justice
Advisory Council, EPA has undertaken
to incorporate environmental justice
into its policies and programs. To
.address this goal, EPA examined the
impacts of HWIR-media on low-income
populations and minority populations.
EPA concluded that HWIR-media will
advance environmental justice, as
follows:
—By encouraging the use of innovative
treatment techniques, HWIR-media
will reduce the number of hazardous
waste incinerators that need to be
located throughout the nation. This,
in turn, will reduce the likelihood of
an incinerator being sited in a low-
income or minority community, •
thereby avoiding the negative public
perceptions associated with
incinerators.
—HWIR-media will assist in expediting
site cleanups across the nation, by
reducing the need for time-consuming
permitting of on-site cleanup
activities, increasing the flexibility of
decision-makers to respond to site-
specific conditions, and lessening
administrative and regulatory
complications and delays. This may
free Superfund and other remediation
resources to address additional sites.
By encouraging excavation of
contaminated media, the HWIR-media
proposal will expedite the restoration
of sites and lead to their beneficial
use, which may result in new jobs and
increased economic activity in low^
income or minority communities.
This economic activity could take the
form of increased employment of
local community members at the
-------
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules
18847
cleanup sites; the sale and
redevelopment of sites for new
economic activities; and new
beneficial uses for remediated
properties, such as parks,
transportation facilities, and even
hospitals.
—HWIR-media's public participation
provisions will enable local residents
and other members of the public to
participate in the development and
approval of Remediation Management
Plans.
The Agency believes that the
oversight restrictions required under the
HWIR-media proposal will ensure that
increased human health risks to local
communities are highly unlikely.
b. Unfunded mandates. The Agency
also evaluated the proposed HWIR-
media rule for compliance with the
Unfunded Mandates Reform Act of
1995. Title II of the Unfunded Mandates
Reform Act of 1995 (UMRA), P.L. 104-
4, establishes requirements for Federal
agencies to assess the effects of their
regulatory actions on State, local, and
tribal governments and the private
sector. Under section 202 of the UMRA,
EPA generally must prepare a written
statement, including a cost-benefit
analysis, for proposed and final rules
with "Federal Mandates" that may
result in expenditures to State, local,
and tribal governments, in the aggregate
or to the private sector, of $100 million
or more in one year. Before
promulgating a rule for which a written
statement is needed, section 205 of the
UMRA generally requires EPA to
identify and consider a reasonable
number of regulatory alternatives and
adopt the least costly, most cost-
effective or least burdensome alternative
that achieves the objectives of the rule.
The provisions of section 205 do not
apply when they are inconsistent with
applicable law. Moreover, section 205
allows EPA to adopt an alternative other
than the least costly, most cost-effective
or least burdensome alternative if the
Administrator publishes with the final
rule an explanation why that alternative
was not adopted. Before EPA establishes'
any regulatory requirements that may
significantly or uniquely affect small
governments, including tribal
governments, it must have developed
under section 203 of the UMRA a small
government agency plan. The plan must
provide for notifying potentially
affected small governments, enabling
officials of affected small governments
to have meaningful and timely input in
the development of EPA regulatory
proposals with significant Federal
intergovernmental mandates, and
informing, educating, and advising
small governments on compliance with
the regulatory requirements.
Today's rule contains no Federal
mandates (under the regulatory
provisions of Title II of the UMRA) for
State, local, or tribal governments or the
private sector because the UMRA
generally excludes from the definition
of "Federal intergovernmental mandate"
duties that arise from participation in a
voluntary Federal program. Rather, State
and tribal organizations are under no
obligation to participate in the Part 269
¥ program. In addition, promulgation of
the HWIR-media rule, because it is
considered generally less stringent than
current requirements, is not expected to
result in mandated costs estimated at
$100 million or more to any State, local,
or tribal governments, in any one year.
Thus, today's proposal is not subject to
the requirements of sections 202 and
205 of the UMRA. Finally, EPA has
determined that the proposed HWIR-
media rule contains no regulatory
requirements that might significantly or
uniquely affect small governments.
Specifically, the program is generally
less stringent than the existing program
and makes no distinctions between
small governments and any potentially
regulated party.
B. Regulatory Flexibility Analysis
The Regulatory Flexibility Act of 1980
requires Federal agencies to assess
whether proposed regulations will have
a significant economic impact on a
substantial number of small entities.
EPA's "Guidelines for Implementing the
Regulatory Flexibility Act" (May 1992),
have determined that a Regulatory
Flexibility Analysis (RFA) is required
for all rulemakings, unless no impact is
expected on any small entity. These
guidelines further require the Agency to
develop and consider alternatives that
mitigate the impact of the rule on small
entities. Furthermore, the Agency
reserves the flexibility to tailor the level
of effort devoted to an RFA based on the
severity of a rule's anticipated impacts
on small entities.
The Agency has determined that
today's proposed rule will not have a
significant adverse economic impact on
a substantial number of small entities.
HWIR-media confers remediation waste
management cost savings on the
regulated community while imposing
implementation costs in cases where
firms voluntarily seek cost savings.
Therefore, in cases where remediation
wastes are managed in the same manner
under any option as under the baseline,
no additional costs will be incurred
under HWIR-media. If a different
management method is used, a
generator may have to incur additional
implementation costs to obtain
management cost savings. An
economically rational generator,
however, will change the management
method and incur these additional
implementation costs only if it is
confident of obtaining net benefits, such
as savings on remediation waste
management.
In summary, the rule will confer net
benefits in situations where the
generator changes the management
method under HWIR-media or impose
zero net costs in situations where the
generator uses baseline management
methods. Because HWIR-media is not:
expected to impose net costs on any
small entities, the Agency has not
considered options to mitigate the
impacts of the proposed rule on such
entities. A full discussion of HWIR-
media in the context of small entities is
presented in Chapter 6 of the
"Economic Assessment."
C. Paperwork Reduction Act
The information collection
requirements in this proposed rule have
been submitted for approval to the
Office of Management and Budget
(OMB) under the Paperwork Reduction
Act, 44 U.S.C. 3501 et seq. An
Information Collection Request (ICR)
document has been prepared by EPA
(ICR No. 1775.01) and a copy may be
obtained from Sandy Fanner, OPPE
Regulatory Information Division; U.S.
• Environmental Protection Agency
(2137); 401 M Street, S.W., Washington,
D.C. 20460 or by calling (202) 260-2740.
This Information Collection Request is
titled "Hazardous Waste Identification
Rule for Contaminated Media" (or
"HWIR-media").
The Agency has estimated the burden
associated with complying with the
requirements of this proposed rule.
Included in that burden are estimates
for industry respondents for complying
with the specific requirements for:
reading the regulations; media treatment
variances; review of treatment results;
content of RMPs; treatability studies;
approval of RMPs; and expiration,
termination and revocation of RMPs.
For State respondents, the burden was
estimated for interstate movement of
contaminated media; and procedures for
authorization of State hazardous waste
programs.
The Agency has determined that this
collection of information is necessary to
determine compliance with the
requirements of this proposal. In
addition, the Agency will use the data
collected to determine if Federal
treatment standards are appropriate and
whether they should be revised in the
future. Responses to the collection of
-------
18848 Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules
information will be required to obtain or
retain a benefit. For industry
respondents, that benefit would be the
more flexible requirements for
management of hazardous contaminated
media proposed in this proposal,
instead of having to comply with the
current Subtitle C standards. For State
respondents, adoption of this regulation
is optional, and the benefit would be for
receiving authorization for this
regulation. Section 3007(b) of RCRA and
40 CFR Part 2, Subpart B, which define
EPA'sgeneral policy on the public
disclosure of information, contain
provisions for confidentiality. EPA has
tried to minimize the burden of this
collection of information on , '
respondents.
The universe of respondents is
expected to be sites conducting cleanup
under: RCRA corrective action and
closure; State and Federal CERCL A (or
CERCLA-like) removal and remedial
actions; and State voluntary cleanup
programs which involve approval of
RMPs. EPA estimates that the industry
sites most likely to be affected by these
requirements will be associated with the
following SIC codes: 28 (Chemical and
Allied Products); 2911 (Petroleum
Refining); 34 (Fabricated Metal
Products); and 3568 (Power
Transmission Equipment).
EPA estimates that the annual
. respondent burden hours •will be: for
industry 259,165; for States 3,058; for a
total of 262,223. The annual costs will
be: for industry $63,661,186; for States
$88,387; for a total of $63,749,573. The
average per response for industry
respondents would be 121.2 hours, and
the average per response for state
respondents would be 174.3 hours. The
frequency of response would be once.
The number of industry respondents
would be 2,139 per year, and State
respondents would be 16 per year.
EPA estimates total capital and start-
up annualized over expected useful life
to be: for industry $0.00; for states
$0.00; total operation and maintenance
to be: for industry $8.00; for States
$8.00; and purchases of services to be:
for industry $61,497; for States $0.00.
Burden means the total time, effort, or
financial resources expended by persons
to generate, maintain, retain, or disclose
or provide information to or for a
Federal agency. This includes the time
needed to review instructions; develop,
acquire, install, and utilize technology
and systems for the purposes of
collecting, validating, and verifying
information, processing and
maintaining information, and disclosing
and providing information; adjust the
existing ways to comply with any
previously applicable instructions and
requirements; train personnel to be able
to respond to a collection of
information; search data sources;
complete and review the collection of
information; and transmit or otherwise
disclose the information.
An Agency may not conduct or
sponsor, and a person is not required to
respond to a collection of information
unless it displays a currently valid OMB
control number. The OMB control
numbers for EPA's regulations are listed
in 40 CFR Part 9 and 48 CFR Chapter
15.
Comments are requested on the
Agency's need for this information, the
accuracy of the provided burden
estimates, and any suggested methods
for minimizing respondent burden,
including through the use of automated
collection techniques. Send comments
on the "ICR for HWIR-media" to the
Director, OPPE Regulatory Information
Division; U.S. Environmental Protection
Agency (2137); 401 M St., S.W.,
Washington, D.C. 20460; and to the
Office of Information and Regulatory
Affairs; Office of Management and
Budget; 725 17th Street, N.W.,
Washington, D.C. 20503; marked
"Attention: Desk Officer for EPA."
Include the ICR No. 1775.01 in any
correspondence.
Since OMB is required to make a
decision concerning the ICR between 30
and 60 days after April 29, 1996, a
comment to OMB is best assured of
having its Ml effect if OMB receives it
by May 29,1996. The final rule will
respond to any OMB or public
comments on the information collection
requirements contained in this proposal.
List of Subjects
40 CFR Part 260
Hazardous Waste.
40 CFR Part 261
Hazardous Waste.
40 CFR Part 264
Hazardous Waste.
40 CFR Part 269
Administrative practice and
procedures, Hazardous Waste, reporting
and record keeping requirements.
40 CFR Part 271
Administrative practice and
procedure and Intergovernmental
relations.
Authority: These regulations are proposed
under the authority of sections 2002(a), 3001,
3004, 3005, 3006, and 3007 of the Solid '
Waste Disposal Act of 1970, as amended by
the Resource Conservation and Recovery Act
of 1976 [RCRA], as amended by the
Hazardous and Solid Waste Amendments of
1984 [HSWA], 42 U.S.C. 6912(a), 6921, 6924,
6926, and 6927.
Dated: April 12,1996.
Carol M. Browner,
Administrator.
For the reasons set out in the
preamble, 40 CFR Parts 260, 261, 262,
264, 268, 270 and 271 are proposed to
be amended, and Part 269 is proposed
to be added as follows:
PART 260—HAZARDOUS WASTE
MANAGEMENT SYSTEM: GENERAL
Subpart A—General
1. The authority citation for part 260
continue to read as follows:
Authority: 42 U.S.C. 6905, 69l2(a), 6921-
6927,6930,6934,6935,6937,6937,6938,
6939, and 6974.
la. Section 260.1 is amended by
revising paragraphs (a), (b) introductory
text, (b)(l), (b)(2), (b)(3) and (b)(4) to
read as follows:
§ 260.1 Purpose, scope, and applicability.
(a) This part provides definitions of
terms, general standards, and overview
information applicable to Parts 260
through 269 of this, chapter.
(b) hi this part:
(1) Section 260.2 sets forth the rules
that EPA will use in making information
it receives available to the public and
sets forth the requirements that
generators, transporters, or owners or
operators of treatment, storage, or
disposal facilities must follow to assert
claims of business confidentiality with
respect to information that is submitted
to EPA under Parts 260 through 269 of
this chapter.
(2) Section 260.3 establishes rules of
grammatical construction for Parts 260
through 269 of this chapter.
(3) Section 260.10 defines the terms ,
which are used in Parts 260 through 269
of this chapter.
(4) Section 260.20 establishes
procedures for petitioning EPA to
amend, modify, or revoke any provision
of parts 260 through 269 of this chapter
and establishes procedures governing
EPA's action on such petitions.
* * * * *
2. Section 260.2 is amended by
revising paragraph (a) and the first
sentence of paragraph (b) to read as
follows:
§ 260.2 Availability of information;
confidentiality of information.
(a) Any information provided to EPA
under Parts 260 through 269 of this
chapter will be made available to the
public to the extent and in the manner
authorized by the Freedom of
-------
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules
18849
Information Act, 5 U.S.C. section 552,
section 3007(b) of RCRA and EPA
regulations implementing the Freedom
of Information Act and section 3007(b),
part 2 of this chapter, as applicable.
(b) Any person who submits
information to EPA in accordance with
parts 260 through 269 of this chapter
may assert a claim of business
confidentiality covering part or all of
that information by following the
procedures set forth in § 2.203(b) of this
chapter. * * *
3. Section 260.3 is amended by
revising the introductory text to read as
follows:
§ 260.3 Use of number and gender.
As used in parts 260 through 269 of
this chapter:
Subpart B—Definitions
4. Section 260.10 is amended by
revising the first sentence, by removing
the second sentence, and by adding
paragraph (3) to the definition for
"facility" and adding the definition for
"remediation pile" to read as follows:
§260.10 Definitions.
When used in Parts 260 through 273
of this chapter, the following terms have
the meanings given below:
*****
Facility * * *
*****
(3) Notwithstanding paragraphs (1)
and (2) of this definition, a media
remediation site, as defined in § 269.3,
does not constitute a facility for the
purposes of §264.101.
*****
Remediation Pile means a pile that is
used only for the temporary treatment or
storage of remediation wastes, including
hazardous contaminated media (as
defined in 40 CFR 269.3), during
remedial operations.
Subpart C—Rulemaking Petitions
5. Section 260.20(a) is amended by
revising the first sentence to read as
follows:
§260.20 General.
(a) Any person may petition the
Administrator to modify or revoke any
provisions in Parts 260 through 273 of
this chapter.
PART 261—IDENTIFICATION AND
LISTING OF HAZARDOUS WASTE
Subpart A—General
6. The authority citation for part 261
continues to read as follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921,
6922, and 6933. 6a. Section 261.1(a)(l) is
revised to read as follows:
§ 261.1 Purpose and scope.
(a) * * *
(1) Subpart A defines the terms "solid
waste" and "hazardous waste,"
identifies those wastes which are
excluded from regulation under Parts
262 through 270 of this chapter and
establishes special management,
requirements for hazardous waste
produced by conditionally exempt small
quantity generators and hazardous -
waste which is recycled.
*****
7. Section 261.4 is amended by
adding paragraphs (g) and (h) to read as
follows:
§261.4 Exclusions.
*****
(g) Non-hazardous contaminated
media. Media that are managed as part
of remedial activities and that the
Director has determined do not contain
hazardous wastes (according to 269.4),
but would otherwise be hazardous
contaminated media, are not hazardous
wastes.
(h) Dredged material discharged in
accordance with a permit issued under
section 404 of the Federal Water
Pollution Control Act [33 U.S.C. § 1344]
or in accordance with a permit issued
for the purpose of transporting material
for ocean dumping under section 103 of
the Marine Protection, Research, and
Sanctuaries Act of 1972 [33 U.S.C. 1413]
is not a hazardous waste. For purposes
of this subsection, the following
definitions apply:
(1) The term "dredged material" has
the same meaning as defined in 40 CFR
232.2.
(2) The term "dredged material
discharged" has the same meaning as
discharge of "dredged material" as
defined in 40 CFR 232.2.
(3) The terms "ocean" and
"dumping" have the same meaning as
defined in 40 CFR 220.2.
(4) The term "permit" means a permit
issued by the U.S. Army Corps of
Engineers (Corps) or approved State
under section 404 of the Federal Water
Pollution Control Act [33 U.S.C. § 1344];
and/or a permit issued or by the Corps
under section 103 of the Marine
Protection, Research, and Sanctuaries •
Act of 1972 [33 U.S.C. 1413]; or in the
case of a Corps'civil-works project, the '
administrative equivalent of a permit,, as
provided for in Corps regulations (e.g.,
see33CFR336.1(b),33CFR336.2(d), '
and 33 CFR 337.6). ,
Subpart C—Characteristics of
Hazardous Wastes '
8. Section 261.20(b) is revised to read
as follows:
§261.20 General.
(b) A hazardous waste which is
identified by a characteristic in this .
subpart is assigned every EPA
Hazardous Waste Number that is
applicable as set forth in this subpart.
This number must be used in complying
with the notification requirements of
section 3010 of the Act and all
applicable record-keeping and reporting
requirements under parts 262 through
265 and parts 268 through 270 of this
chapter.
Subpart D—Lists of Hazardous Wastes
9. Section 261.30(c) is revised to read
as follows:
§261.30 General.
(c) Each hazardous Waste listed in this
subpart is assigned an EPA Hazardous
Waste Number which precedes the
name of the waste. This number must be
used in complying with the notification
requirements of section 3010 of the Act
and certain record-keeping and
reporting requirements under parts 262
through 265 and parts 268 through 270
of this chapter.
PART 262—STANDARDS APPLICABLE
TO GENERATORS OF HAZARDOUS
WASTE
10. The authority citation for part 262
continues to read as follows:
Authority: 42 U.S.C. 6906, 6912, 6922,
6923, 6925, 6937, and 6938.
10a. Section 262.11(d) is revised to
read as follows:
§ 262.11 Hazardous waste determination.'
(d) If the waste is determined to be
hazardous, the generator must refer to
parts 261, 264 through 269 and part 273
of this chapter for possible exclusions or
restrictions pertaining to management of
the specific waste.
-------
18850
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules
PART 264—STANDARDS FOR
OWNERS AND OPERATORS OF
HAZARDOUS WASTE TREATMENT,
STORAGE, AND DISPOSAL
FACILITIES
11. The authority citation for part 264
continues to read as follows:
Authority: 42 U.S.C. 6905, 6912(a), 6924,
and 6925.
lla. Section 264.552 is amended by
redesignating paragraphs (a) through (h)
as paragraphs (c) through (j); and by
adding new paragraphs (a) and (b) to
read as follows:
§264.552 Corrective Action Management
Units (CAMU).
(a) Corrective Action Management
Units may not be approved under this
subpart after (date of publication of final
rule).
(b) A Corrective Action Management
Unit that was approved according to the
provisions of the subpart prior to (date
of publication of final HWIR-media rule)
remains subject to the requirements of
this part.
*****
12. Part 264 is amended by adding
new § 264.554 to subpart S to read as
follows:
§264.554 Remediation piles.
(a) For piles that are used only for the
temporary treatment or storage of
remediation waste (including hazardous
contaminated media as defined in 40
CFR 269.3) during remedial operations
that are conducted in accordance with
an approved permit or order, the
Director may prescribe on a case-by-case
basis design and operating standards for
such units that are protective of human
health and the environment. In
establishing case-by-case standards for
remediation piles, the Director shall
consider the decision factors for
temporary units, as specified in
§264.553.
(b) Placement of remediation waste
(including hazardous contaminated
media) into a remediation pile
designated in an approved permit or
order shall not constitute placement in
a land disposal unit for the purposes of
section 3004(k) of RCRA.
(c) Any remediation pile to which
site-specific requirements are applied in
accordance with paragraph (a) of this
section shall be: • -
(1) Located within the boundary of
the facility or media remediation site (as
defined in 40 CFR 269.3); and
(2) Used only for the temporary
treatment or storage of remediation
wastes (as defined in 40 CFR 260.10).
(d) The Director shall specify in the
permit or order the design, operating, •
and closure requirements for any
remediation pile, the length of time the
remediation pile will be allowed to
operate, and any requirements for
control of cross-media contaminant
transfer. Remediation piles shall not be
permitted to operate beyond the time
that remedial operations are completed.
PART 268—LAND DISPOSAL
RESTRICTIONS
13. The authority citation for part 268
continues to read as follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921,
and 6924.
Subpart A—General
13a. Section 268.l(b) is revised to
read as follows:
§ 268.1 Purpose, scope and applicability.
*****
(b) Except as specifically provided
otherwise in this part, Part 261 of this
chapter, or in cases where hazardous
contaminated media are subject to
treatment standards under Part 269 in
this chapter, the requirements of this
part apply to persons who generate or
transport hazardous waste and owners
and operators of hazardous waste
treatment, storage, and disposal
facilities.
*****
14. 40 CFR is amended by adding part
269 to read as follows:
PART 269—REQUIREMENTS FOR
MANAGEMENT OF HAZARDOUS
CONTAMINATED MEDIA
Subpart A—General Provisions
Sec.
269.1 Scope.
269.2 Purpose and applicability.
269.3 Definitions.
269.4 Identification of media not subject to
regulation as hazardous wastes.
Subpart B—Other Requirements Applicable
to Management of Hazardous Contaminated
Media
269.10 Applicability of other requirements.
269.11 Intentional contamination of media
prohibited.
269.12 Interstate movement of
contaminated media.
Subpart C—Treatment Requirements
269.30 Minimum LDR treatment
requirements for media.
269.31 Media treatment variances.
269.32 More stringent treatment standards.
269.33 Review of treatment results. .
269.34 Management of treatment residuals.
Subpart D—Remediation Management
Plans (RMPs)
269.40 General requirements. •
269.41 Content of RMPs. ,
> 269.42 Treatability studies.
269.43 Approval of RMPs.
269.44 Modification .of RMPs.
269.45 Expiration, termination, and
revocation of RMPs.
Appendix A to Part 269—HWIR-Media Bright
Line Numbers
Appendix A-l to Part 269—Bright Line
Numbers
Appendix A-2 to Part 269—Bright Line
Numbers for Ground Water
Appendix B to Part 269—Submittal of
Treatability Data
Authority: 42 U.S.C. 6912(a), 6921, 6924,
6925, and 6926.
Subpart A—General Provisions
§269.1 Scope.
(a) The provisions of this part apply
only to contaminated media that would
otherwise be subject to regulation as
hazardous wastes under RCRA Subtitle
C regulations. The only exception is
Subpart D of this part, which applies to
all remediation wastes, including
contaminated media.
(b) The provisions of this part modify
and replace only certain specific
Subtitle C regulations as they apply to
the management of hazardous
contaminated media. Other Subtitle C
regulations that are not specifically
addressed under this part will continue
to apply to the management of
hazardous contaminated media. ,
(c) The provisions of this part apply
only to the treatment, storage,
transportation and disposal of
hazardous contaminated media that is
conducted pursuant to site remediation
activities. This part is not intended to
affect remedy selection decisions. This
part is intended to affect only decisions
regarding the management of hazardous
contaminated media as part of cleanup
activities.
(d) The constituent concentration
levels specified in Appendix A to this
part are not cleanup levels, and the
Environmental Protection Agency does
not support their use as cleanup levels
under Federal or State cleanup
programs.
(e) The provisions of this part are not
self-implementing. They may be applied
to specific remedial actions only as
approved by EPA, or a State authorized
for this part.
§269.2 Purpose and applicability.
(a) The purpose of this part is to
establish standards for management of
hazardous contaminated media that are
generated as part of remedial activities.
(b) The provisions of this part apply
to treatment, storage and disposal of
hazardous contaminated media which is
conducted in accordance with a
Remediation Management Plan (RMP)
approved by EPA or a State program
authorized for this part.
-------
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules 18851
(c) The provisions of this part do not
apply to non-media hazardous
remediation wastes (except Subpart D)
or to hazardous contaminated media
that are pot managed in a way that
would otherwise subject the media to
the requirements of this chapter.
§269.3 Definitions.
For the purposes of this part, the
following definitions apply:
Bright Line constituent means any
constituent found in media that is listed
in Appendix A of this part, and that is:
(1) The basis for listing of a hazardous
waste (as specified in Appendix VH of
40 CFR Part 261) found in that media;
or
(2) A constituent that causes the
media to exhibit a hazardous
characteristic.
Hazardous contaminated media
means media that contain hazardous
wastes listed in Part 261 Subpart D of
this chapter, or that exhibit one or more
of the characteristics of hazardous waste
defined in Part 261 Subpart C of this
chapter, except media which the
Director has determined do not contain
hazardous wastes pursuant to § 269.4 of
this part (non-hazardous contaminated
media).
Media means materials found in the
natural environment such as soil,
ground water, surface water, and
sediments, or a mixture of such
materials with liquids, sludges, or solids
which is inseparable by simple
mechanical removal processes and is
made up primarily of media. This
definition does not include debris (as
defined in 40 CFR 268.2).
Media remediation site means an area
contaminated with hazardous waste that
is subject to cleanup under State or
Federal authority, and areas in close
proximity to the contaminated area at
which remediation wastes are being or
\vill be managed pursuant to State or
Federal remediation authorities (such as
RCRA corrective action or CERCLA). A
media remediation site is not a facility
for the purpose of implementing
corrective action under 40 CFR 264.101,
but may be subject to such corrective
action requirements if the site is located
\vithin such a facility (as defined in 40
CFR 260.10).
Non-hazardous contaminated media
means media that are managed as part
of remedial activities and that the
Director has determined do not contain
hazardous wastes (according to § 269.4),
but would otherwise be subject to
Subtitle C regulation.
Remediation Management Plan means
the plan that describes specifically how
hazardous contaminated media will be
managed in accordance with this part.
Such a plan may also include, where
appropriate, requirements for other
remediation wastes and any other (non-
Part 269) requirements applicable to
hazardous contaminated media.
Sediment is the mixture of assorted
material that settles to the bottom of a
water body. It includes the shells and
coverings of mollusks and other
animals, transported soil particles from
surface erosion, organic matter from
dead and rotting vegetation and
animals, sewage, industrial wastes,
other organic and inorganic materials
and chemicals.
Soil means unconsolidated earth
material composing the superficial
geologic strata (material overlying
bedrock), consisting of clay, silt, sand,
or gravel size particles (sizes as
classified by the U.S. Soil Conservation
Service), or a mixture of such materials
with liquids, sludges, or solids which is
inseparable by simple mechanical
removal processes and is made up
primarily of soil.
§ 269.4 Identification of media not subject
to regulation as hazardous wastes.
(a) The Director may, as appropriate,
determine that media which are
generated and managed as part of
remedial activities, and which would
otherwise be subject to regulation under
this chapter, do not contain hazardous
wastes, provided that:
(1) There are no Bright Line
constituents (as defined in § 269.3) in
the media in concentrations equal to or
greater than those specified in
Appendix A of this part;
(2) The basis for the decision that the
media do not contain hazardous wastes
is documented in a Remediation
Management Plan (RMP) approved in
accordance with Subpart D of this part;
and
(3) Appropriate requirements for the
management of the media are specified
in such RMP. Such materials will be
considered non-hazardous
contaminated media (as defined in
§269.3).
(b) [Reserved]
Subpart B—Other Requirements
Applicable to Management of
Hazardous Contaminated Media
§ 269.10 Applicability of other
requirements.
(a) Except where expressly indicated,
for hazardous contaminated media that
are regulated under this part, the
applicable requirements of 40 CFR Parts
262-2.67 and 270 continue to apply to
the treatment, storage, and disposal of
hazardous contaminated media.
(b) For-hazardous contaminated
media and non-hazardous contaminated
media that remain subject to LDRs, the
provisions of 40 CFR Part 268 do not
apply, except for the following: 40 CFR
268.2 through 268.7 (definitions,
dilution prohibition, surface
impoundment treatment variance, case-
by-case extensions, no migration
petitions, and waste analysis and
recordkeeping), and 40 CFR 268.50
(prohibition on storage prior to land
disposal). Compliance with these
provisions of Part 268, and with the
provisions of Subpart C of this part,
shall constitute compliance with the
provisions of section 3004(m) of RCRA..
§ 269.11 Intentional contamination of
media prohibited.
No generator, transporter, or owner or
operator of a treatment, storage, or
disposal facility shall in any way
deliberately combine media and
hazardous waste so as to become subject
to the provisions of this part.
§ 269.12 Interstate movement of
contaminated media.
(a) Hazardous contaminated media
and non-hazardous contaminated media
that are transported out of the State in
which they are generated are subject to
the requirements of 40 CFR parts 262-
268 and 270 outside of the originating '
State, unless:
(1) The receiving State and any State
through which the waste will be
transported has been authorized to
implement this part (or EPA is
implementing this part in that State);
and
(2) The generating State notifies the
authority implementing Part 269 in the
receiving State and any State through
which the material will be transported
of the plans to transport such media into
or through that State and provides an
opportunity to comment on the draft
RMP setting out the basis for the
classification of such media.
(b) If a receiving State or a State
through which such media are
transported is authorized for this part
269, that State may determine that
media originating in other States:
(1) Contains hazardous waste and
must be managed under Parts 261-268
and 270 when in that State; or
(2) Contains hazardous waste and •
must be managed under this part when
in that State; or
(3) Contains solid waste and must be
managed under that State's solid waste
or other applicable authorities; or
(4) Contains no waste.
-------
18852 Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules
Subpart C—Treatment Requirements
§ 269.30 Minimum LDR treatment
requirements for media.
(a) The requirements of this subpart
apply to the following materials when
they are removed from the land, except
as identified in paragraph (b) of this
section:
(1) Media subject to the requirements
of this part as identified by § 269.1(a),
(including media that have been
determined, pursuant to § 269.4, to no
longer contain hazardous wastes) when
the waste contaminating the media was
prohibited from land disposal at the
time it was placed.
(2) Media subject to the requirements
of this part as identified by § 269.1(a),
(including media that have been
determined, pursuant to § 269.4, to no
longer contain hazardous wastes) when
the waste contaminating the media is
prohibited from land disposal at the
time the media is removed from the
land. To identify the effective date of
applicable land disposal prohibitions,
see 40 CFR part 268, Appendix VII.
(b) The requirements of this subpart
do not apply to media identified by
paragraph (a) (2) of this section when
they are determined, pursuant to
§ 269.4, not to contain hazardous wastes
before they are removed from the land.
(c) Media treatment standards must be
specified in each RMP for all media
identified by paragraph (a) of this
section.
(d) Prior to land disposal, media
identified in paragraph (a) of this
section must be treated according to the
applicable treatment requirements
specified in paragraphs (e) and (f) of this
section unless a variance is given
according to § 269.31 (Media Treatment
Variances), or the Director requires more
stringent treatment standards according
to §269.32.
(e) (1) For soils, treatment must
achieve the following standards for all
constituents subject to treatment that are
present in the soils at concentrations
greater than 10 times the Universal
Treatment Standard for the
constituent(s):
(i) For non-metals, 90 percent
reduction in total constituent
concentrations, except as provided by
paragraph (e)(2) of this section.
(ii) For metals, 90 percent reduction
in constituent concentrations as
measured in leachate from the treated
media (tested according to the TCLP) or
90 percent reduction in total constituent
concentrations, except as provided by
paragraph (e)(2) of this section.
(2) When treatment of any constituent
subject to treatment to a 90 percent
reduction standard would result in a
concentration less than 10 times the
Universal Treatment Standard for that
constituent, 10 times the Universal
Treatment Standard shall be the
treatment standard. Universal Treatment
Standards are identified in 40 CFR
268.48 Table UTS.
(3) In addition to the treatment
required by paragraph (e)(l) of this
section, soils that exhibit the
characteristic of ignitability, corrosivity,
or reactivity must be treated by
deactivation technologies which
eliminate these characteristics.
(4) In addition to the treatment
requirements of paragraphs (e)(l) and
(3) of this section, the following
treatment is required for soils that
contain nonanalyzable constituents:
(i) Where the soil also contains
analyzable constituents, treatment of
those analyzable constituents to the
levels specified in paragraph (e)(l) of
this section; and
(ii) For soils containing only
nonanalyzable constituents, treatment
by the method specified in § 268.42 for
the waste contained in the media.
(f) For media other than soils, such as
ground water and sediments, treatment
must achieve the applicable part 268
treatment standard(s) for each
constituent subject to treatment.
(g) Constituents subject to treatment
are:
(1) For media identified by paragraph
(a) of this section because they contain
or contained wastes listed under part
261, subpart D of this chapter, the
constituents identified as regulated
hazardous constituents in the table
"Treatment Standards for Hazardous
Wastes" in § 268.40 of this chapter for
such waste; and
(2) For media identified by paragraph
(a) of this section because it exhibits a
characteristic of hazardous wastes as
defined by part 261, subpart C of this
chapter, any constituent listed in 40
CFR 268.48, Table UTS—Universal
Treatment Standards that is present in
the media, except zinc and vanadium.
(h) Treatment technologies employed
in meeting these treatment standards
must be designed and operated in a
manner that controls the transfer of
contaminants to other media.
§ 269.31 Media treatment variances.
(a) The Director may approve a
variance from a treatment standard(s)
specified in § 269.30, if the owner/
operator demonstrates to the satisfaction
of the Director that:
(1) Compliance with the standard(s) is
technically impracticable; or
(2) Compliance with the standard(s)
would require the use of a technology
which is inappropriate for the media to
be treated because the physical or
chemical properties of media differ
significantly from the media EPA
examined in establishing the standard,
or the standard is otherwise
inappropriate for the hazardous
contaminated media; or
(b) For media containing all
constituents at levels below those
specified in Appendix A of this part, the
Director may approve a variance from a
treatment standard specified in § 269.30 .
by specifying a level or method of
treatment, if any, which substantially
diminishes the toxicity of the waste or
substantially reduces likelihood of
migration of hazardous constituents
from the waste so that short- and long-
term threats to human health and the
environment are minimized based on
site-specific considerations.
(c) The Director may request any
additional information, including
additional sampling and analysis, if
necessary to evaluate a media treatment
variance demonstration.
(d) The Director may specify a media
treatment variance as a numerical
standard or as a specified treatment
method or technology.
(e) Technologies used to comply with
media treatment variances must
optimize efficiency, result in substantial
reductions in toxicity or mobility of
constituents, and control cross media
transfer.
(f) Proposed media treatment
variances must be identified in RMPs
and shall, at a minimum, be subject to
the public participation requirements
for RMPs specified in § 269.43.
§ 269.32 More stringent treatment
standards.
For soil, the Director may require that
constituents subject to treatment be
treated to achieve standards more
stringent than the standards specified in
§ 269.30, if s/he determines that the
treatment required under § 269.30(e)
and (f) would not substantially diminish
the toxicity of the waste or substantially
reduce the likelihood of migration of
hazardous constituents from the waste
so that short-term and long-term threats
to human health and the environment
are minimized, based on site-specific
circumstances.
§ 269.33 Review of treatment results.
If data indicate that the treatment
standards specified in a RMP have not
been met, the owner/operator shall:
(a) Submit a new or modified RMP
containing procedures for treating the
media subject to treatment to
compliance with the specified treatment
standard; or
-------
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules 18853
(b) Submit an application for a media
treatment variance under § 269.3l(a) (1)
or (2); or
(c) If appropriate, request that .the
Director specify a level or method of
treatment, if any, that would meet the
requirement of § 269.31(b).
§ 269.34 Management of treatment
residuals.
(a) Treatment residuals from treating
media identified by § 269.30(a) shall be
managed as follows:
(1) Media residuals shall be subject to
the standards of this part;
(2) Non-media residuals shall be
subject to the RCRA Subtitle C or D
standards applicable to the waste
contaminating the media before
treatment.
Subpart D—Remediation Management
Plans (RMPs)
§269.40 General requirements.
(a) Before hazardous contaminated
media may be managed according to the
provisions of this part, the owner/
operator must receive approval by the
Director of a Remediation Management
Plan (RMP), in accordance with the
procedures in § 269.43.
(b) A RMP must be an enforceable
document, and shall specify
requirements for management of
hazardous and non-hazardous
contaminated media at a media
remediation site, according to the
provisions of this part and according to
other applicable requirements of
Subtitle C, including 40 CFR part 264-
(except subparts B and C). A RMP may
also incorporate requirements for the
management of other remediation
wastes at a media remediation site, in
compliance with applicable provisions
of part 264 of this chapter.
(c) For remedial activities involving
treatment, storage or disposal of
remediation wastes that would require a
RCRA permit under 40 CFR 270.1, a
RMP approved by the Director, and
containing the necessary 40 CFR part
264 substantive requirements, shall
constitute a RCRA permit for those
activities, for the purposes-of section
3005(c) of RCRA.
(d) The corrective action requirements
of sections 3004 (u) and (v) of RCRA do
not apply to persons engaging in
treatment, storage, or disposal of
hazardous wastes solely as part of a
cleanup action pursuant to a RMP.
(e) A RMP may be:
(l) A stand-alone document that
addresses only the requirements of this
part, and does not address other
remedial activities or units; or
(2) Included as part of a more
comprehensive document that specifies
requirements for compliance with this
part, in addition to requirements for
other remedial activities for the site.
Such documents must be approved by
the Director according to procedures
that allow equivalent or greater
opportunities for public involvement
than those prescribed in § 269.43.
Examples of such documents may
include enforcement orders (that meet
the minimum notice requirements of
§ 269.43), RCRA permits or permit
modifications issued to hazardous waste
management facilities, or other similar
remedial documents approved by the
Director. '
(f) Approval of a RMP does not
convey any property rights of any sort,
or any exclusive privilege.
(g) Approval of a RMP does not
authorize any injury to persons or
property or invasion of other private
rights, or any infringement of State or
local law or regulations.
§ 269.41 Content of RMPs.
(a) A draft RMP submitted to the
Director for approval must contain
sufficient information to demonstrate to
the Director that the proposed
management activities for contaminated
media at the site will cqmply with the
requirements of this part. If a draft RMP
is submitted as part of a more •
comprehensive document(s) (in
accordance with § 269.40(e)(2)), it may
simply reference or otherwise identify
where the information pertaining to part
269 requirements can be found in such
document(s).
(b) If a RMP will be used only for the
management of investigation derived
wastes or for treatability studies, the
RMP need only include the relevant
information necessary to determine that
the investigation or treatability study
will be conducted in accordance with
applicable requirements. It may not be
necessary to include all the information
specified in paragraph (c) of this
section.
(c) The following information must be
included in any RMP (except as
specified in paragraph (b) of this
section):
(1) Information demonstrating that the
materials to be managed in accordance
with this part are media, as defined in
§269.3.
(2) If applicable, information
identifying hazardous remediation
wastes (other than hazardous
contaminated media) which will be ,.
managed according to the RMP but not
under the requirements of 40 CFR part
269, and specifying that management of
those wastes will comply with the
applicable requirements of 40 CFR parts
260 through 268.
(3) If applicable, information
identifying non-hazardous
contaminated media, and specifying
how; such media will be managed.
(4) Description of the remediation
wastes to be'managed in accordance
with the RMP, including information on
constituent concentrations, and other •.
properties of media and wastes that may
affect how such materials should be
treated and/or otherwise managed.
(5) Estimates of volumes of the
hazardous contaminated media to be
managed according to the provisions of
this part;
(6) Plans or proposals specifying the
technology(s), handling systems, design
and operating parameters to be used in
treating remediation wastes prior to
dispos'al, in accordance with applicable
LDR standards of §§ 269.30 through
269.34, or 40 CFR part 268, as
applicable.
(7) Information which demonstrates to
the Director that any proposed treatment
system will be designed and operated in
a manner that will adequately control
the transfer of pollutants to other
environmental media.
(8) Information which describes
planned sampling and analysis
procedures necessary to characterize the
wastes or media to be managed, to
ensure effective treatment of the
materials has occurred, and to
demonstrate compliance with the
treatment standard, including quality
assurance and quality control
procedures.
(9) Agreement to submit data as
specified in Appendix B of this part
regarding treatment information from
both treatability studies and full scale
implementation of treatment systems
conducted for the remedial activities
under this RMP. Data from treatability
studies shall be submitted as soon as the
treatability study (or studies) has been
completed. Full.scale implementation
data shall be submitted every three
years, or after cleanup has been
completed, whichever is first.
(10) Other information determined by
the Director to be necessary for
demonstrating compliance with the
provisions of this part.
§269.42 Treatability studies.
(a) If the Director determines that a,
treatability study is necessary to
determine the efficacy of a proposed
treatment technology, and if conduct of
the study requires a RCRA permit, the
study may be approved under a RMP. In
addition to the other requirements of
this part, such RMPs shall specify how
the study(s) willxbe conducted,
including relevant data on system
design and operating parameters, waste
-------
18854
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules
characteristics, sampling, and,
analytical procedures.
(b) Upon conclusion of a treatability
study conducted according to an
approved RMP, data shall be submitted
to (EPA Headquarters) in the manner
• specified in appendix B of this part.
§269.43 Approval Of RMPs.
(a) Draft RMPs shall be reviewed and
approved according to the procedure's
specified in paragraphs (b) through (f) of
this section. Alternative procedures
which provide the same or greater
opportunities for public review and
comment may also be used, including
the RCRA permit procedures of 40 GFR
part 270, or the permit modification
procedures of 40 CFR 270.41.
(b) A proposed RMP shall be signed
in accordance with 40 CFR 270.11.
(c) The Director may, if necessary, add
provisions to a draft RMP specifying the
conditions under which media will be
managed pursuant to the RMP, and
concentration levels below which media
will be determined not to contain
hazardous waste. Such provisions may
not be necessary when:
(1) The Director has established
applicable State-wide contained-in
concentration levels; or
(2) All media to be managed at the site
will be managed as hazardous
contaminated media, therefore making
contained-in levels unnecessary.
(d) The Director may, if necessary,
add provisions to a draft RMP
specifying when threats to human
health and the environment will be
considered to have been minimized.
(e) When the Director determines that
a draft RMP is complete and adequately
demonstrates compliance with
applicable requirements, the RMP shall
be approved according to the following
minimum procedures. If appropriate,
the Director may require additional
review and comment procedures.
(1) A notice of the Director's intention
to approve the RMP shall be:
(i) Published in a major local
newspaper of general circulation and
broadcast over a local radio station,
according to the procedures of 40 CFR
124.10(d); and
(ii) Sent to each unit of local
government having jurisdiction over the
area in which the site is located, and to
each State agency having any authority
under State law with respect to any
construction or operations at the site.
The notice shall provide an opportunity
for the public to submit written
comments on the RMP within no fewer
than 45 days.
(2) If within the comment period the
Director receives written notice of
opposition to the Director's intention to
approve the RMP and a request for a
hearing, the .Director shall hold an
informal hearing (including an
opportunity for presentation of written
and oral views) to discuss issues
relating-to the approval of the RMP. The
Director may also determine
.independently that an informal hearing
on the RMP is appropriate. Whenever
possible, the Director shall schedule
such hearing at a location convenient to
the nearest population center to the site
and give notice in accordance with
paragraph (i)(l) of this section, of the
date, time and subject matter of such
hearing.
(3) The Director shall consider and
respond to any significant written or
oral comments received by the comment
deadline on the proposed RMP, and
may modify the RMP based on those
comments as appropriate.
(4) When the Director determines that
the RMP adequately demonstrates
compliance with all applicable
requirements, s/he shall notify the
owner/operator, and all other
commehters on the proposed RMP, in
writing, that the RMP has been
approved. The Director's approval of a
RMP shall constitute final Agency
action (not subject to the administrative
appeals in 40 CFR 124.19).
(f) For remedial actions involving on-
site combustion of hazardous
remediation wastes, the procedural
requirements for issuance of RCRA
permits (specified in 40 CFR Parts 124
and 270 shall at a minimum be followed
for review'and approval of RMPs.
§269.44 Modification of RMPs.
(a) The Director shall specify in the
RMP procedures for modifying the RMP.
Such procedures must provide adequate
opportunities for public review and
comment on any modification that
would result in a major or significant
change in the management of
contaminated media at the site, or
which otherwise merits public review
and comment.
(b) The Director may unilaterally
modify an approved RMP, through
appropriate procedures for public
review and comment, based on new
information which indicates that such
modification may be necessary to ensure
the effective implementation of
remedial actions at the site.
§ 269.45 Expiration, termination, and
revocation of RMPs.
The Director shall specify in an
approved RMP the procedures under
which the RMP will expire, be
terminated or revoked. RMPs that
pursuant to § 269.40 (c) constitute RCRA
permits for the purposes of section
3005(c), shall be for a fixed term, not to
exceed 10 years, although they may be
renewed. In addition, any such RMP for
a hazardous waste land disposal facility
shall be reviewed five years after date of
issuance or reissuance and shall be
modified as necessary to assure that the
facility continues to comply with
currently applicable requirements of
RCRA sections 3004 and 3005. All
RMPs which constitute RCRA permits
must be renewed at least every 10 years
(if they will remain in effect longer than
that).
Appendix A to Part 269—HWIR-Media
Bright Line Numbers
Appendix A-l presents the Bright Lines
for soil for the 107 HWIR-media constituents
with Soil Screening Levels (SSLs). Appendix
A-2 presents the Bright Lines for
groundwater ingestion for 211 HWIR-media
constituents.' The Bright Lines for both soil
and groundwater exposures are calculated
using a target risk of 10 - 3 for carcinogens
and RfD x 10 for non-carcinogens. For
constituents that have both carcinogenic and
non-carcinogenic health effects, the lower of
the two Bright Lines is reported*
Appendix A-l to Part 269—Bright Line
Numbers for Soil
The Bright Lines for soil in Appendix A-
1 are based upon SSLs presented in the
Superfund Soil Screening Guidance, which is
available in the docket for this proposed rule.
SSLs have been developed for 107 HWIR-
media constituents and are calculated using
risk equations presented in EPA's "Risk
Assessment Guidance for Superfund
(RAGS)." SSLs are either based on exposure
by direct soil ingestion or by inhalation of
volatiles from soil. The SSLs for these two
exposure pathways are calculated using
different risk equations. In addition, since
carcinogens and non-carcinogens pose
different kinds of health effects, there are two
separate equations for each exposure
pathway, depending upon the
carcmogenicity of the constituent. These
equations for each pathway are presented
below:
Inhalation of Soil Contaminants
For cancer health effects:
1 EPA was unable to develop ground water Bright
Lines for nine constituents that Jacked both an oral
reference dose and an oral slope factor. ,
-------
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules
18355
SSL = -
TRxATx365days/yr
URFxlOOOug/mgxEFxEDx — + - l
LVF PEF
For non-cancer health effects:
THQ x AT x 365 days/yr
SSL
EFxEDx
1
RfC IvF PEF
The exposure assumptions used in the
above risk equations for inhalation of soil
contaminants are presented in Exhibit 1.
Ingestion of Soil Contaminants
For cancer health effects:
TRx AT x 365 days/yr
SFxlO^kg/mgxEFxIF
For non-cancer health effects:
_ THQ x BWx AT x 365 days/yr
-
I —- JxKT6 kg/mgxEFxEDxIR
The exposure assumptions used in the above
risk equations for ingestion of soil
contaminants are presented in Exhibit 2.
The calculated soil screening values for
both the inhalation and ingestion pathways
correspond to a cancer risk level of 10 - 6 for
carcinogens and a non-cancer hazard
quotient of one for non-carcinogens. The
SSLs for cancerous and non-cancerous
constituents are, therefore, multiplied by
1,000 and 10 respectively, so that the
reported Bright Lines correspond to a target
risk of 10~3 for carcinogens and RfD x 10 for
non-carcinogens. All Bright Lines for soil are
capped at 10,000 parts per million (ppm).
The soil saturation limit (Csat) for a
constituent is reported as the inhalation
pathway SSL if the Csat is lower than the
calculated SSL. Csats are not risk-adjusted
(i.e., they are not multiplied by a factor of 10
or 1,000) when calculating Bright Lines.
When the Csat is lower than the risk-adjuisted
SSL for the soil ingestion pathway, the Bright
Line is set at the Csat. The soil Bright Lines
for 17 constituents are set at their Csat.
Exhibit 1.—EXPOSURE ASSUMPTIONS USED To CALCULATE SOIL INHALATION
[Soil Screening Levels]
SSl«soil screening level
TFUtarget excess lifetime cancer
THQ-risk
AT-larget hazard quotient
URF»averaging time
RfC-tnhalation unit risk factor
EF-Inhalation reference
ED.concentration
VF«exposure frequency ,
PEF»exposure duration
soiMc-alr volatilization
factor
paniculate emission factor
Corresponding HWIR-media as-
sumptions
Cancer
i\ in/m3\ - 1
m3/kg
6.79x1 0s
m3/kg
Non-cancer
calculated.
(mg/kg).
1.
30 years.
constituent
specific.
(mg/m3).
350 days/yr.
30 years.
constituent
specific.
m3/kg.
6.79x1 0s.
m3/kg.
EXHIBIT 2.—EXPOSURE ASSUMPTIONS USED To CALCULATE SOIL INGESTION
[Soil Screening Levels]
•
SSL - soil screening level
TR - target excess lifetime cancer
THQ - risk
AT • target hazard quotient
BW - averaging time
SF- body weight
RfD • oral slope factor
IF - oral reference dose
IR •• age-adjusted soil ingestion
EF - factor
ED - soil ingestion rate
exposure frequency
exposure duration .
Corresponding HWIR-media
assumptions
Cancer
m-6
n
.
114 mg-yr/kg-day ...
350 days
Non-Cancer
calculated.
(mg/kg).
1.
6 years.
15kg.
constituent.
specific.
(mg/kg/day).
200 mg/day.
350 days/yr.
6 years.
-------
18856
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules
APPENDIX A-1— BRIGHT LINE NUMBERS FOR SOIL
CAS No.
630-20-6
76 13-1
96-18-4
95_94_3
120— o/£— 1
96-12-8
122-66-7
542-75-6
gg_65_0
123-91-1
99999-04-0
58-90-2
93-76-5
94-75-7
105-67-9
51—28—5
121-14-2
95-80-7
823-40-5
57117-31-4
99999-03-0
99999-06-0
99999-02-0
99999-05-0
99999-01-0
1746-01-6
51207-31-9
126-99-8
1-10-80-5
91-59-8
79-46-9
88-85-7
119 90-4
119 93-7
107-05-1
56-49-5
57 97-6
oo— 6£- »
75-05-8
98-86-2
107-02-8
79_06_1
107-13-1
62-53-3
140-57-8
92-87-5
98-07-7
100-51-6
Constituent
,1 ,1 ,2-Tetrachloroethane
,1 ,2-Trichloro-1 ,2,2-trifluordethane
,2,3-Trichloropropane
,2,4,5-Tetrachlorobenzene
,2-Dibromo-3-chloropropane
,2-Diphenylhydrazine
,3-Dinitrobenzene
1,4-Dioxane
12378 PeCDFuran
2,3,4,6-Tetrachlorophenol
2X5-Trichlorophenoxyacetic acid
2i4-Dichlorophenoxyacetic acid (2,4-D)
2,4-Dimethylphenol
?,4-Dinitrotoluene "•
2,4-ToIuenediamine
2,6-Toluenediamine
23478 PeCDFuran
2378 HpCDDioxins
2378 HpCDFurans
2378 HxCDDioxins
2378 HxCDFurans
2378 PeCDDioxins
2378 TCDDioxin
2378 TCDFuran
2-Chloro-1 ,3-butadiene
2-Ethoxyethanol
2-Naphthylamine
2-Nitropropane
2-sec-Butyl-4,6-dinitrophenol (Dinoseb)
3,3'-Dirriethoxybenzidine
3,3'-Dimethylbenzidine
3-Chioropropene
3-MethyIcholanthrene
7,12-Dimethylbenz(a)anthracene
Acetonitrile (methyl cyanide)
Acetophenone
Acrolein
Acrylamide
Acrylonitrile
Aldrin .
alnha-HHH
Aniline (benzeneamine)
Aramite
Bepzidine
Benzotrichloride
Benzyl alcohol
Bright Line
for soil
(ppm)
980
400
800
9800
40
2400
300
110
100
10000
10000
2400
10000
1600
1600
780
.
390C
100C
1000(
10000
4(
100
31
40
1000
50
9
90
Path
lhal
nhal
nhal .:
ihal
nhal
ihal
ihal
ngest
nhal ....
3ap
3ap
ngest .......
Cap
ngest
ngest
ngest
Ingest
Ingest
Cap
Cap
Ingest
Ingest
Ingest
Ingest
Cap
Inhal
Ingest
Ingest
Basis
Csat.
Cancer.
Cancer.
Non-Cancer.
Cancer.
vlon-Cancer.
r
Cancer.
Cancer;
Cancer.
slon-Cancer.
Cancer.
Non-Cancer.
^on-Cancer.
Non-Cancer.
Non-Cancer.
Non-Cancer.
, . •
Non-Cancer.
Cancer.
Non-Cancer.
Non-Cancer.
Cancer.
Cancer.
Non-Cancer.
Cancer.
Non-Cancer.
Cancer..
Cancer.
Cancer.
-------
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules
18857
APPENDIX A-1 .—BRIGHT LINE NUMBERS FOR SOIL—Continued
CAS No.
1CKM4-7
56-55-3
7440-41-7
319-85-7
111-44-4
39638-32-9
117-81-7
75-27-4
74-S3-9
71-36-3
85-68-7
7440-43-9
75-15-0
56-23-5
57-74-9
108-90-7
510-15-6
124-48-1
67-6§-3
74-87-3
7440-47-3
218-01-9
156-59-2
10061-01-5
7440-50-8
1319-77-3
98-82-8
57-12-5
72-54-8
72-55-9
50-29-3
2303-16-4
53-70-3
74-95-3
75-71-8
75-09-2
60-57-1
84-66-2
56-53-1
60-51-5
131-11-3
122-39-4
298-04-4
84-74-2
117-84-0
115-29-7
72-20-8
106-89-8
141-78-6
60-29-7
97-63-2
62-50-0 ,.
100-41-4
106-93-4
96-45-7
52-85-7
206-44-0
86-73-7
50-00-0
64-18-6
110-00-9
58-89-9
76-44-8
1024-57-3
118-74-1
608-73-1
77-47-4
67-72-1
70-30-4
87-68-3
Constituent
Benzyl chloride
Benz[a]anthracene
Beryllium (and compounds N.O.S.)
beta-HCH
Bis(2-chloroethyl) ether
Bis{2-chloroisopropyl) ether
Bis(2-ethylhexyl) phthalate
Bromodichloromethane
Bromomethane
Butanol
Butyl benzyl phthalate
Cadmium (and compounds N.O.S.)
Carbon disulfide
Carbon tetrachloride
Chlordane
Chlorobenzene
Chlorobenzilate
Chlorodibromomethane
Chloroform
Chloromethane
Chromium (and compounds N.O.S.)
Chrysene
cis-1 ,2-Dichloroethene
Cis-1 3-Dichloropropene • "
Coooer
Cresols
Cumene
Cyanide (amenable)
ODD
DDE
DDT
Diallate
Dibenz(a,h)anthracene
Dibromomethane (methylene bromide)
Dichlorodifluoromethane
Dichloromethane (Methylene Chloride)
Dieldrin "
Diethyl phthalate
Diethylstibestrol
Dimethoate
Dimethyl phthalate
Diphenylamine
Disulfoton
Di-n-butyl phthalate
Di-n-octyl phthalate .'
Endosulfan
Endrin
Ethyl acetate
Ethyl ether
Ethyl methacrylate
Ethyl methanesulfonate
Ethylbenzene ; '
Ethylene dibromide
Ethylenethiourea
Famphur
Fluoranthene
:luorene
"ormaldehyde
Formic acid
Furan
gamma-HCH (Lindane)
Heptachlor
Heptachlor epoxide (a,b,g isomers) .
Hexachlorobenzene
Hexachlorocyclohexane
Hexachlorocyclopentadiene
fexachforoethane
texachlorophene
Hexachloro-1 ,3-bufadiene
Bright Line
for soil
(ppm)
mn
300
01 n
iftnn
OA
Qynn
con
OQfl
1 m
onn
cr»n
Q4f)
ionn
onn
^Qnn
mnnn
•jcnn
.
mnnn
Qnnn
onnn
on
7000
40
520
1 1 nn
mnnn
ocn
mnnn
1 1 nhnn
ftfin
inn
/inn
on
mnnn
1000
Path
,
Inhni
Inhal
Inhal
Inhal
Inhfll
Inhal
Inhal
|nha|
Inhal
Ingest
Inhal
r*ar»
Cap
nhal
Basis
, -;•
Cancer.
Cancer.
r*oat
Cancer.
Csat.
Csat.
Non-Cancer.
Non-Cancer.
Non-Cancer.
Non-Cancer.
Non-Cancer.
Cancer.
Cancer.
Cancer.
-------
18858
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules
APPENDIX A-1 .—BRIGHT LINE NUMBERS FOR SOIL—Continued
CAS No.
78-83-1
7QCQ H
143-50-0
108-31-6
126-98-7
67-56-1
78-93-3
108-10-1
80-62-6
298-00-0
7439-98-7
108-39-4
91 20-3
7440-02-0
QQ— QC— Q
62-75-9
86-30-6
621-64-7
10595-95-6
100-75-4
930-55-2
55-18-5
924-16-3
3268-87-9
gggg9_07_0
152-16-9
95-48-7
95-50-1
95-53-4
55_38_2
608-93-5
82-68-8
•mo_^QC— O
25265-76-3
298-02-2
85-44-9
23950-58-5
110-86-1
•\f\fi_A~7 _Q
106-44-5
10b— 46— /
106-49-0
94_59_7
//a*.— 4»— £
93-72-1
57-24-9
99-35-4
127-18-4
3689-24-5
7440-28-0
too— bu— o
10061-02-6
75_£9_4
126-72-7
1330-20-7
Constituent
sobutyl alcohol
J-Nitrosopiperidine
sl-Nitrosopyrrolidine
N-Nitroso-diethylamine
N-Nitrbso-di-n-butylamine
OCDD
Octachlorodibenzofuran (OCDF)
Octamethyl pyrophosphoramide
o-Cresol . '•' •
o-D,ichlorobenzene . '
o-Toluidine
Parathion
Pentachlorobenzene
Pentachloronitrobenzene (PCNB)
Phenylenediamine
Phorate
Phthalic anhydride
Pronamide
Pyridine
p-Cresol
p-ToIuidine
Safrole
Silvex (2,4,5-TP)
Strychnine and salts
sym-Trinitrobenzene
Tetraethyl dithiopyrophosphate
Thallium
Trans-1 ,3-Dichloropropene
Trichlorofluoromethane
Tris(2,3-dibromopropyl)phosphate
Xylenes ' * '
Bright Line
for soil
(ppm)
900
3400
4000
70
3900
10000
390
10000
90
10000
300
3000
10000
1000
10000
3100
10000
3900
3900
1400
10000
520
600
360
1000
300
550
32
Path
ngest
nhal
ixed.
nhal
ngest
Cap
ngest
Cap
ngest
Cap ....
nhal
Ingest
Cap
Ingest
Cap
Ingest
Cap
Ingest
Ingest .......
Inhal
Cap
Inhal
Ingest
Inhal
Cap
Inhal
Ingest ,
Inhal
Inhal
Basis
Cancer.
Csat
Non-Cancer.
Non-Cancer.
Non-Cancer.
Non-Cancer.
Cancer.
Cancer.
Non-Cancer.
Csat.
Cancer. •
Non-Cancer.
Cancer.
Non-Cancer.
Non-Cancer.
Cancer.
Non-Cancer.
Non-Cancer.
Csat.
Cancer.
Csat.
Cancer.
Csat.
Cancer.
Cancer.
Non-Cancer.
Cancer.
Csat.
-------
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules
18859
APPENDIX A-1 .—BRIGHT LINE NUMBERS FOR SOIL—Continued
CAS No.
7440-66-6
Constituent
Zinc (and compounds N.O.S.)
Bright Line
for soil
(ppm)
10000
Path
Cap
Basis
Non-Cancer.
Appendix A-2 to Part 269—Bright Line
Numbers for Ground Water
The Bright Lines for ground water in
Appendix A-2 were calculated directly from
risk equations in RAGS. Since carcinogens
and non-carcinogens pose different kinds of
health effects, two sets of risk equations and
exposure assumptions are used to calculate
Bright Lines for groundwater: For cancer
health effects:
TRxATxBWx365 days
SFxIRxEFxED
For non-cancer health effects:
RfDxlOxBWxATxx365 days
IRxEFxED
The exposure assumptions used in the
above risk equations are presented in Exhibit
3. These exposure assumptions are consistent
with those used to develop the SSLs. For
constituents with calculated Bright Lines for
ground water less than the detection limit,
the groundwater Bright Line is set at the
detection limit, as defined by the Exemption
Quantitation Criteria (EQC). The ground
water Bright Lines for 15 constituents are set
at their EQC's.
EXHIBIT 3.—EXPOSURE ASSUMPTIONS USED TO CALCULATE GROUND WATER BRIGHT LINES
Corresponding HWIR-media assumptions
Cancer
Non-Cancer
c
TR
AT
BW
SF
RIO
IR
EF
ED
Constituent concentration in groundwater
Target excess lifetime cancer risk
Averaging time
Body weight
Oral cancer slope factor
Oral reference dose
Groundwater ingestion rate
Exposure frequency
Exposure duration
Calculated (mg/l)
70 kg
2 liters/day
350 day's, 30 years
7D trn
350 days, 30 years.
TABLE TO APPENDIX A-2.—BRIGHT LINES FOR GROUNDWATER
CAS No.
630-20-6
71-55-6
79-34-5
79-00-5
76-13-1
75-34-3
75-35-4
96-18-4
95-94-3
120-82-1
96-12-8
107-06-2
78-87-5
122-66-7
542-75-6
99-65-0
123-91-1
99999-04-0
58-90-2
95-95-4
93-76-5
88-06-2
120-83-2
94-75-7
105-67-9
51-28-5
121-14-2
95-80-7
606-20-2
823-40-5
57117-31-4
99999-03-0
99999-06-0
Constituent
1,1,1,2-Tetrachloroethane
1,1,1-Trichloroethane
1 ,1,2,2-Tetrachloroethane
1,1,2-Trichloroethane
1,1,2-Trichloro-1,2,2-trifluoroethane
1 ,1-Dichloroethane
1,1-Dichloroethylene
1 ,2,3-Trichloropropane
1 ,2,4,5-Tetrachlorobenzene
1 ,2,4-Trichlorobenzene
1 ,2-Dibromo-3-chloropropane ;....
1 ,2-Dichloroethane
1 ,2-Dichloropropane
1 ,2-Diphenylhydrazine
1 ,3-Dichloropropene
1 ,3-Dinitrobenzene
1 ,4-Dioxane
12378 PeCDFuran
2,3,4,6-Tetrachlorophenol
2,4,5-Trichlorophenol
2,4,5-Trichlorophenoxyaceticacid
2,4,6-Trichlorophenol
2,4-Dichlorophenol
2,4-Dichlorophenoxyacetic acid (2,4-D)
2,4-Dimethylphenol
2,4-Dinitrophenol
2,4-Dinitrotoluene
2,4-Toluenediamine
2,6-Dinitrotoluene
2,6-Toluenediamine
23478 PeCDFuran
2378 HpCDDioxins
2378 HpCDFurans
Groundwater
Bright Line
(mg/l)
/1\
\ )
n A
n Q
O-i
01
n Q
01
01
Af\
A
A
-7
n 7
01
n rw
01
7(1
r\ nnnnni
0.00005
Basis
Non-Cancer.
Non-Cancer.
Cancer
-------
18860 Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules
TABLE TO APPENDIX A-2.—BRIGHT LINES FOR GROUNDWATER—Continued
CAS No.
Qccy o
1 1 n_An_ t\
7Q_Afi_Q
1 1O CIO 4
11 Q Q<*_7
1 n7— n*^— 1
CGAQ C
QO_QO Q
R7_ f\A 1
Qft__P.fi_9
1 fi7_ rf> ft
7Q_nft_1
'ifiQ—nn— 9
01Q_0>1_C
CO KQ_*5
7AAr\-J^G—f^
7H_/io_O
qo_fj7 7
cnoo P.
oncU-QQ O
Hnn_ci_c
KR RR_**
o -) Q_QC_7
111 —44-^d
117_ 01 7
7C_O7_yt
7A_QQ_Q
OC_CQ_7
7^1 c_n
CC OQ_C
C7 74 Q
1 nft— Qfl— 7
1 9 A— 4ft— 1
74— P.7 ^
O1Q_r\1 Q
1 t;ft_^Q o
HOHQ 77 0
QQQO Q
C-7 HO C
79 C^4— ft
c;n_oQ *i
53-70-3
Constituent
070 HynnFiirsn^
2378 TCDFuran
2-Chlorophenol
2-sec-Butyl-4 6-dinitrophenol (Dinoseb)
3 3'-Di methyl be nzidine • •
3-Ghloropropene •••
Acetophenone
Aidiin
alpha-HCH .
Benzo(b)fluoranthene
beta-HCH •
Bis(2-chloro ethyl) ether • •
Bis(2-ethylhexyl) phthalate *
cis-1 2-DichIoroethene
DDD
nnF
OPT • -
Dibenz(a,h)anthracene
Groundwater
Bright Line
(mg/l)
0.000005
0.000005
0.000001
0.0000005
0.000005
2
C)
100
0.1
C)
0.4
0.2
6
0.01
C)
0.01
0.01
20
40
2
40
7
0.1
0.2
0.005
0.01
10
0.1
3
0.05
30
3
0.03
0.007
0.01
0.1
100
0.5
0.2
0.02
0.05
0.08
1
6
0.7
0.5
40
70
0.2
40
0.3
0.02
7
0.3
1
4
(1)
2
1
4
0.1
10
20
10
7
0.4
0.3
0.2
1
0.002
Basis
Cancer.
Cancer.
Cancer.
Cancer.
Cancer.
Non-Cancer.
Non-Cancer.
Cancer.
vJon-Cancer.
Cancer.
Cancer.
iQC Floor.
=QC Floor.
-QC Floor.
Non-Cancer.
vlon-Cancer.
Non-Cancer.
Non-Cancer.
Mon-Cancer.
EQC Floor.
Cancer.
Cancer.
Cancer.
Cancer.
Non-Cancer.
Cancer.
Cancer.
Non-Cancer.
Cancer.
EQC Floor.
Cancer.
Cancer.
Cancer.
Non-Cancer.
Cancer.
Cancer.
Cancer.
Cancer.
Cancer.
Cancer.
Cancer.
Cancer.
Non-Cancer.
Non-Cancer.
Non-Cancer.
Non-Cancer.
Non-Cancer.
Non-Cancer.
Non-Cancer.
Non-Cancer.
Cancer.
Cancer.
Non-Cancer.
Non-Cancer.
Cancer.
Non-Cancer.
Non-Cancer.
Non-Cancer.
Non-Cancer.
Non-Cancer.
Non-Cancer.
Cancer.
Cancer.
Non-Cancer.
Cancer.
Cancer.
-------
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules
1:8861
TABLE TO APPENDIX A-2.—BRIGHT LINES FOR GROUNDWATER—Continued
CAS No.
74-95-3
75-71-8
75-09-2
60-57-1
84-66-2
56-53-1
60-51-5
131-11-3
122-39-4
298-04-4
84-74-2
117-84-0
115-29-7
72-20-8
106-89-8
141-78-6
60-29-7
97-63-2
62-50-0
100-41-4
106-93-4
96-45-7 ,
52-85-7
206-44-0
86-73-7
50-00-0
64-18-6
110-00-9
58-89-9
76-44-8
1024-57-3
118-74-1
608-73-1
77-47-4
67-72-1
70-30-4
87-68-3
193-39-5
78-83-1
78-59-1
143-50-0
7439-92-1
108-31-6
7439-97-6
126-98-7
67-56-1
72-43-5
78-93-3
108-10-1
80-62-6
298-00-0
7439-98-7
108-39-4
91-20-3
7440-02-0
98-95-3
62-75-9
86-30-6
621-64-7
10595-95-6
100-75-4
930-55-2
55-18-5
924-16-3
3268-87-9
99999-07-0
152-16-9
95-48-7
95-50-1
95-53-4
Constituent
Dibromomethane (methylene bromide) ,
Dichlorodifluoromethane ,., , , .. ,
Dichloromethane (Methylene Chloride) ....,...„„.. .
Dieldrin ,
Diethyl phthalate
Diethylstibestrol ,.,
Dimethoate , ,
Dimethyl phthalate ,
Diphenylamine , ,
Disulfoton ,,,.,
Di-n-butyl phthalate ,. .
Di-n-octyl phthalate t , , .
Endosulfan , ,.„„.. .
Endrin ,
Epichlorohydrin , ,.
Ethyl acetate ,
Ethyl ether
Ethyl methacrylate ,
Ethyl methanesulfonate ,
Ethylbenzene ,
Ethylene dibromide .
Ethylenethiourea : ,.,. ..
Famphur „ „.. .
Fluoranthene ,
Fluorene •
Formaldehyde ,
Formic acid , ;....
Furan ..,....,..
gamma-HCH (Lindane) ,
Heptachlor , ,
Heptachlor epoxide (alpha, beta, gamma) ,
Hexachlorobenzene '. , ,. ' v
Hexachlorocyclohexane „....,..,.,.,. .,
Hexachlorocyclopentadiene ,.. , .
Hexachloroethane ,.,.,.., ,...,.„ ,
Hexachlorophene ,
Hexachloro-1 ,3-butadiene
lndeno(1 ,2,3-cd)pyrene , ,......„..„..,.. .
Isobutyl alcohol
Isophorone T ,.,.., ( .
Kepone
Lead (and compounds N.O.S.)
Maleic anhydride , ,
Mercury (and compounds N.O.S.) ,..., ,
Methacrylonitrile
Methanol ,
Methoxychlor
Methyl ethyl ketone
Methyl isobutyl ketone
Methyl methacrylate
Methyl parathion ,
Molybdenum ,
m-Cresol ,
Naphthalene
Nickel (and compounds N.O.S.)
Nitrobenzene
N-Nitrosodimethylamine
N-Nitrosodiphenylamine ,..,.„
N-Nitrosodi-n-propylamine , ,
N-Nitrosomethylethylamine ,.
N-Nitrosopiperidine
N-Nitrosopyrrolidine
N-Nitroso-diethylamine ,..,
N-Nitroso-di-n-butylamine ,.
OCDD
Octachlorodibenzofuran (OCDF) ,..., , . .
Octamethyl pyrophosphoramide ., ;
o-Cresol ,.,.
o-Dichlorobenzene .r. '
o-Toluidine
Groundwater
Bright Line
(mg/l)
4
70
10
0 005
300
n DP
0 07
4000
g
0 01
40
7
0 02
01
0 7
300
70
30
002
4n
n nm
0 03
n n?
in
m
7fl
700
n A
0 07
n n>
0 005
0 05 '
n n^
•i
0 4
01
1
0 1
inn
70
n n?
/1\
40
0 1
n 04
onn
onn
on
^n
o OQ
i>n
10
7
n o
n m
?n
n 01
o ni
0 02
0 04
0 O9
n no
0 000^
n onnR
O 7
90
on
0.4
Basis
POP Flnnr
EQC Floor
FDP Flnnr
FOP1 Ffr»r»r
FOP Flr\rtr
FOP Flnnr
FHr* Flr»r*r
PHP Flnnr
FOP Flnr»r
Cancer.
-------
18862 Federal Register / Vol. 61, No. 83 7 Monday, April 29, 1996 / Proposed Rules
TABLE TO-APPENDIX A-2.—BRIGHT LINES FOR GROUNDWATER—Continued
CAS No.
nc QO^-O
ChR—Q'*— R
Q7_OC_C
•j no:±QC__ o
OCOCC_7f5_0
oofi ..H9. O
oc,ri./t/i. q
1 ^fi—^fi— 3
O^QRh—^ft— ^
1 OQ— nn n
mft_/i7 a
mfi— /i<4. ^
1flfi_Afi_7
infi— d.Q_n
QA RQ 7
7709/10 o
7A/in_OO_A
QQ_7O 1
c-7 f)A Q
1flfV-A9 R
on *^R 4
197 1 fl— /I
OCQO O4_K
744 H— 9 ft— 0
1fiO_QQ_Q
p.nm <*R_9
-(cc_en_c
mnfii— n9— fi
7K_OC_O
7Q_ni_ ft
1 OR—79 7
7/l/in RO o
7tv.ni -4
7440-66-6
Constituent
Phenylenediamine •
Phorate ' ' • •*• •••
Phthalic anhydride • -
Polychlorinated biphenyls
Selenium (and compounds N O S.)
Silvex (2 4 5— TP)
Tetrachloroethylene • « •
Thallium • •
Tribromomethane (Bromoform)
Tris(2 3-dibromopropyl) phosphate ••••• •
Vinyl chloride (Chloroethene) • •
Zinc (and compounds N.O.S.)
Groundwater
Bright Line
(mg/l)
2
0.3
0.3
0.7
200
'2
0.07
700
0.01
30
10
0.4
-• 1
(1).
4
0.4
0.5
,2
2
3
O.f
70
' 0.02
., '.' 4
0.2
(')
70
0.08
7
0.1
7
(')
100
0.2
3
,0.04
700
100
Basis
Non-Cancer.
Non-Cancer.
Cancer.
Cancer.
Non-Cancer.
Non-Cancer.
Non-Cancer.
Non-Cancer.
Cancer.
Non-Cancer.
Non-Cancel'.
Non-Cancer.
Non-Cancer.
Cancer.
Cancer.
Cancer.
Non-Cancer.
Non-Cancer.
Non-Cancer.
Non-Cancer.
Non-Cancer.
Non-Cancer.
Non-Cancer.
Non-Cancer.
Non-Cancer.
Cancer.
Non-Cancer.
Non-Cancer.
Non-Cancer.
Non-Cancer.
EDO Floor.
Non-Cancer.
Cancer.
Non-Cancer.
Non-Cancer.
1 No" Data.
Appendix B to Part 269—Submittal of
Treatability Data
Both treatability data and full-scale
operating data shall be submitted to EPA for
entry into the National Risk Management
Research Laboratory (NRMRL) treatability
database system. Data from treatability
studies shall be submitted as soon as the
treatability study (or studies) has been
completed. Full-scale operating data shall be
submitted every three years, or after the
cleanup has been completed, whichever is
first.
Data shall be submitted to: Chief, Site
Management Support Branch.National Risk
Management Research Laboratory,26 West
Martin Luther King Drive.Cincinnati, Ohio
45268.
A copy of the entire treatability/
performance study should be submitted if
possible. No particular format is required for
presentation of the data; however, the
following information must be included:
—Site/laboratory name and address
—Point of contact
—Technology (or technologies) used
—Chemicals of contamination
—Size of study (i.e., bench top, pilot plant,
full scale) ;
—Volumes treated
—Description of study/abstract
—Beginning and ending concentrations
—Percent removal
—Analytical method
—Source matrix
—Any important operational parameters
—Any other information that the site feels is
important
Sites should be aware that any data
submitted will be available to the general
public through the NRMRL treatability
database. Sites should not submit
confidential business information (CBI)
material.
PART 270—EPA ADMINISTERED
PERMIT PROGRAMS: THE
HAZARDOUS WASTE PERMIT
PROGRAM
Subpart A—General Information *
15. The authority citation for part 270
continues to read as follows:
Authority: 42 U.S.C. 6905, 6912, 6924,
6925, 6927, 6939, and 6974.
15a. Section 270.1 (a)(l) is revised to
read as follows:
§ 270.1 Purpose and scope of these
regulations.
' (a) Coverage. (1) These permit
regulations establish provisions for the
Hazardous Waste Permit Program under
Subtitle C of the Solid Waste Disposal
Act, as amended by the Resource
Conservation and Recovery Act of 1976,
as amended (RCRA), (Pub. L. 94-590, as
amended by Pub. L. 95-609 and by Pub.
L. 96-482; 42 U.S.C. 6091 et seq.). They
apply to EPA and to approved States to
' the extent provided in part 271 of this
chapter. Other requirements can be
found'in Part' 269 of this chapter., ' .
-------
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules 13863
PART 271—REQUIREMENTS FOR
AUTHORIZATION OF STATE
HAZARDOUS WASTE PROGRAMS
16. The authority citation for part 271
continues to read as follows:
Authority: 42 U.S.C. 6905,6912(a) and
6926.
16a. Section 271.21 is amended by
revising paragraph (b) introductory text,
(b)(l), (b)(2) and (e)(2) introductory text;
by reserving paragraph (h) and by
adding paragraphs (i), (j) and (k) and by
adding a table to the end of the section
taread as follows:
§ 271.21 Procedures for revision of State
programs.
*****
(b) Revision of a State program shall
- be accomplished as follows:
(1) The State shall submit a modified
program description, Attorney General's
Statement, Memorandum of Agreement,
or such other documents as EPA
determines to be necessary under the
circumstances. Submittals to support
Category 1 and Category 2 program
revisions (as listed in Table 1) shall be
in accordance with .paragraph (i) of this
section.
(2) The Administrator shall approve
or disapprove program revisions based
on the requirements of this part and of
the Act. In approving or disapproving
program revisions, the Administrator
shall follow the procedures of paragraph
(b) (3) or (4) of this section. Procedures
for review and approval of Category 1
and Category 2 program revisions (as
listed in Table 1) shall be in accordance
with paragraph (i) of this section.
*****
(e) * * *
(2) Federal program changes are
defined for purposes of this section as
promulgated amendments to 40 CFR
parts 124,270,260-269 and any self-
implementing statutory provisions (i.e.,
those taking effect without prior
implementing regulations) which are
listed as State program requirements in
this subpart. States must modify their
programs to reflect Federal program
changes and must subsequently submit
the modifications to EPA for approval.
*****
(h) (Reserved).
(i) Category 2 program revisions.
Category 2 program revisions and
prerequisite requirements are identified
in Table 1 of this section. The
procedures for authorization of Category
2 program revisions are as follows:
(1) The State shall submit an
application for authorization of Category
2 program revision(s). The State
application shall include:
(i) A certification by the State
Attorney General (or the attorney for the
State agency(ies) which have
independent legal counsel) that the laws
and regulations of the State provide
adequate authority to implement a State
program equivalent to the Federal
program as listed, in Table 1;
(ii) A certification by the Director (as
"Director" is defined in 40 CFR 270.2)
that the State intends to and has the
capability to implement a State program
equivalent to the Federal program. EPA
may establish essential program
elements for any Category 2 rule. When
established, the Director's certification
shall address each essential element
individually.
(iii) An update to the State/EPA
Memorandum of Agreement ,(MOA)
provided in § 271.8 or a certification by
the Director stating that the current
MOA provides for adequate
implementation of the program
revision(s).
(iv) An update to the Program
Description provided in § 271.6 or a
certification by the Director stating that
the current Program Description
adequately addresses implementation of
the program revision(s).
(v) Copies of all cited State laws and
regulations showing that the cited State
laws and regulations are lawfully
TABLE 1 to §271.21
adopted and fully effective at the time
the certifications are signed.
(vi) At .the State's discretion, any
additional information which the State
believes will support the application.
(2) Within 30 days of receipt of a
Category 2 program revision
application, EPA will review the
application to determine if it is
complete. If EPA determines that the
application is not complete, EPA will
provide the State a concise written
Statement of the deficiencies of the
application.
(3) Within 60 days of determining a
Category 2 application is complete, EPA
will review the application to determine
whether the application describes a
State program equivalent to the Federal
program and follow the procedures of
paragraph (b)(3) of this section for an
immediate final rule to publish its
decision to authorize or deny
authorization of the program revision.
The State and EPA may agree to a longer
or shorter review period. The State and
EPA may agree to use the procedures of
paragraph (b)(4) of this section for a
proposed/final rule.
(j) For purposes of Category 2 program
revisions, State programs will be
considered equivalent to the Federal
program if the laws and regulations
cited by the State provide for a program
no less stringent than the analogous
Federal program.
(k) For purposes of Category 2
program revisions, State certifications
will be considered incomplete when:
(1) Copies of cited statutes or
regulations were not included;
(2) The statutes or regulations cited by
the State are not in effect;
(3) The State is not yet authorized for
certain RCRA rules specified as
necessary before seeking authorization
of the program revision at issue, as
identified in Table 1;
(4) The certification contains
significant errors or omissions.
Program revision
Prerequisite regulations
Category
HWIR-media rule 40 CFR Part 269 (except 40 CFR 269.30-26934)
LDR treatment requirements for media 40 CFR 269.30-26934
Site-specific LDR treatment variances 40 CFR 268.44
HWIR-waste rule (60 FR 66344-663469, December 21, 1995)
Revised Technical Standards for Hazardous Waste Combustion Facilities April 19
1996.
Final authorization as defined in §270.2
LDR Third Third Rule, 55 FR 22520 Jun.
1, 1990.
LDR Third Third, 55 FR 22520 Jun. 1,
1990.
Final authorization as defined in §270.2
Final authorization as defined in § 270.2
-------
18864 Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules
17. Add a new § 271.28 to subpart A
to read as follows:
§ 271.28 Specific authorization provisions
for an HWIR-media program.
(a) The essential elements of an
HWIR-media program are:
(1) Authority to address all media that
contain hazardous wastes listed in Part
261, Subpart D of this chapter, or that
exhibit one or more of the
characteristics of hazardous waste
defined in part 261, subpart C of this
chapter.
(2) Authority to address the hazards
associated with media that are managed
as part of remedial activities and that
the Director has determined do not
contain hazardous wastes (according to
40 CFR 269.4), but would otherwise be
subject to Subtitle C regulation. States
that choose to make contained-in
decisions only when the concentrations
of hazardous constituents in any given
media are protective of human health
and the environment, absent any
additional management standards (i.e.,
eatable, drinkable concentrations), may
receive HWIR-media authorization
without certifying their ability to
impose management standards on
media that no longer contain hazardous
waste.
(3) Authority to include, in the
definition of media, materials found in
the natural environment such as soil,
ground water, surface water, and
sediments, or a mixture of such
materials with liquids, sludges, or solids
that are inseparable by simple
mechanical removal processes and
made up primarily of media.
(4) Authority to exclude debris (as
defined in 40 CFR 268.2) and non-media
cleanup wastes from the requirements of
40 CFR part 269 (except the
requirements for Remediation
Management Plans).
(5) Authority to use the contained-in
principle (or equivalent principles) to
remove contaminated media from the
definition of hazardous waste only if
they contain hazardous constituents at
concentrations at or below those
specified in appendix A of part 269 of
this chapter.
(6) Authority to require compliance
with LDR requirements listed in 40 CFR
269.30 through 269.34.
(7) Authority to issue, modify and
terminate (as appropriate) permits,
orders, or other enforceable documents
to impose management standards for
media as described in essential elements
1-6 and 8 and 9.
(8) Requirements for public,
involvement in management decisions
for hazardous and nonrhazardous media
as described in 40 CFR 269.43(e).
(9) Authority to require that data from
treatability studies and full scale
treatment of media that contain
hazardous waste be submitted to EPA
for inclusion in the National Risk
Management Research Laboratory
treatability database.
(b) EPA may withdraw authorization
of a State HWIR-media program
whenever:
(1) The State has failed to adequately
address EPA concerns; or
(2) The State's HWIR-media program
does not provide authority for all of the
HWIR-media program essential
elements as set forth in this section; or
(3) The State's HWIR-media program
meets any one of the criteria for general
program withdrawal as set forth in
§ 271.22. When withdrawing a State's
HWIR-media program authorization, ,
EPA will use the procedures of '
§ 271.21(b)(4) for a proposed/final rule
to provide notice of the proposed
authorization decision.
(c) Following withdrawal of a State's
HWIR-media program, the State is
barred from making contained-in
decisions or from approving RMPs and
EPA will implement the Federal HWIR-
media program in the State. RMPs
issued by a State pursuant to its HWIR-
media program prior to program
withdrawal will remain in effect;
however, EPA may use its enforcement
authorities to impose additional
requirements on media managed
pursuant to such RMPs, as necessary to
protect human health and the
environment.
(d) Any person may, at any time,
submit written information to EPA
alleging inadequate State performance
of an authorized HWIR-media program
and EPA will consider such information
when making decisions about the
appropriate phase of monitoring fora
State HWIR-media program. EPA will
provide copies of all such written
information to the Director and give the
State at least 30 days to respond.
Following receipt of the State's ,
response, EPA will respond to all such'
information in writing. EPA and the
State may agree to waive the
opportunity for State response.
[FR Doc. 96-10096 Filed 4-26-96; 8:45 am]
BILLING CODE 6560-50-P
-------
------- |