.V
Monday
November 30, 1998
Part HI
SL - •Bfc. JSm
Environmental
Protection Agency
40 CFR Part 260, et al.
Hazardous Remediation Waste
Management Requirements (HWIR-Media);
Final Rule
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65874 Federal Register/Vol. 63, No. 229/Monday, November 30, 1998/Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 260,261,264, 265,268,
270 and 271,
[FRL-6186-6]
RIN 2050-AE22
Hazardous Remediation Waste
Management Requirements (HWIR-
media)
AGENCY: Environmental Protection
Agency (EPA).
ACTION; Final rule.
SUMMARY: As part of President Clinton's
March 1994 environmental regulatory
reform initiative, the United States
Environmental Protection Agency (EPA)
is issuing new requirements for
Resource Conservation and Recovery
Act (RCRA) hazardous remediation
wastes treated, stored or disposed of
during cleanup'actions. These new
requirements make five major changes:
First, they make permits for treating,
storing and disposing of remediation
wastes faster and easier to obtain;
second, they provide that obtaining
these permits will not subject the owner
and/or operator to facility-wide
corrective action; third, they create a
new kind of unit called a "staging pile"
that allows more flexibility in storing
remediation waste during cleanup;
fourth, they exclude dredged materials
from RCRA Subtitle C if they are
managed under an appropriate permit
under the Marine Protection, Research
and Sanctuaries Act or the Clean Water
Act; and fifth, they make it faster and
easier for States to receive authorization
when they update their RCRA programs
to Incorporate revisions to the Federal
RCRA regulations.
DATES: These final regulations are
effective on June 1, 1999.
ADDRESSES: Supporting materials are
available for viewing in the RCRA
Information Center (RIC), located at
Crystal Gateway I, First Floor, 1235
Jefferson Davis Highway, Arlington, VA.
The Docket Identification Number is F-
98-MHWF-FFFFF. The RIC is open from
9 a.m. to 4 p.m., Monday through
Friday, excluding Federal holidays. To
review docket materials, it is
recommended that the public 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 cost $0.15/
page. The index and some supporting
materials are available electronically.
See the SUPPLEMENTARY INFORMATION
section for information on accessing
them.
FOR FURTHER INFORMATION CONTACT: For
general information, contact the RCRA
Hotline at (800) 424-9346 or TDD (800)
553-7672 (hearing impaired). In the
Washington, DC, metropolitan area, call
(703) 412-9810 or TDD (703) 412-3323.
For more detailed information on
specific aspects of this rulemaking,
contact Michael Fitzpatrick, Office of
Solid Waste 5303W, U.S. Environmental
Protection Agency, 401 M Street, SW,
Washington, DC 20460, (703) 308-8411,
fitzpatrick.mike@epamail.epa.gov.
SUPPLEMENTARY INFORMATION : The index
and supporting materials are available
on the Internet. Follow these
instructions to access the information
electronically:
WWW: http://www.epa.gov/epaoswer/
hazwaste/id/hwirmdia.htm
Outline
The information presented in this
preamble is organized as follows:
I. Overview Information
A. Why do This Rule and Preamble Read
so Differently From Other Regulations?
B. What Law Authorizes This Rule?
II. Background Information
A. What Problems Does Today's Rule
Address?
1. Response-oriented Programs Have
Different Objectives and Incentives Than
Prevention:oriented Programs
2. LDRs, MTRs, and Permitting Raise
Problems When Applied to Remediation
Wastes
B. How has EPA Tried to Solve These
Problems in the Past?
C. How did the Proposed Rule Attempt to
Solve These Problems?
1. The "Bright Line" Approach for
Contaminated Media
2. Other Options Within the "Bright Line"
Approach
3. The "Unitary" Approach—An
Alternative to the "Bright Line'
D. What General Comments did EPA
Receive About the Two Major Proposed
• Options?
E. What did EPA Decide to do After
Considering Those Comments?
IH. Definitions Used in this Rule (§260.10)
A, Corrective Action Management Unit
(CAMU)—Changes to the Existing
Definition, and Changes to the CAMU
and Temporary Unit Regulations at
§§264.552(a) and 264.553(a)
1. Definition of CAMU
2. §§264.552 and 264.553
B. Remediation Waste—Changes to the
Existing Definition
C. Remediation Waste Management Site
and Facility—New Requirements for
Remediation Waste Management Sites
1. EPA Changed the Term From "Media
Remediation Site" in the Proposal to
"Remediation Waste Management Site"
in the Final Rule
2. EPA has Created Different Requirements
for Remediation Waste Management
Sites than for Facilities Managing "As-
generated" Hazardous Wastes
3. Differences Between the Proposed
Definition of Media Remediation Site
and the Final Definition of Remediation
' Waste Management Site
4. Remediation Waste Management Sites
are Not Subject to Facility-wide
Corrective Action
5. Remediation Waste Management Sites
are Excluded From Only the Second Part
of the Definition of Facility
6. Facility
D. Staging Pile—A New Kind of Unit
1. Differences Between the Definition of
Staging Pile and the Existing Definition
of Pile
2. Differences Between the Proposed
Definition of Remediation Pile and the
Final Definition of Staging Pile
E. Miscellaneous Unit—An Edit to the
Existing Definition
IV. Information on Remedial Action Plans
(RAPs) (§§270.2, 270.68 and 270.80-
270.230)
General Information About RAPs
A. What are EPA's Objectives for RAPs?
B. What is a RAP? (§§ 270.68, 270.2 and
270.80)
1. The Differences Between a RAP and a
Traditional RCRA Permit
2. Some Advantages of a RAP Compared to
a Traditional RCRA Permit
3. Differences Between "Remediation
Management Plans" in the Proposal and
"Remedial Action Plans" in the Final
Rule
C. When do I need a RAP? (§270.85)
1. What Activities Require RCRA Permits?
D. Does my RAP Grant me Any Rights or
Relieve me of Any Obligations?
(§270.90)
Applying for a RAP
E. How do I Apply for a RAP? (§270.95)
F. Who Must Obtain a RAP? (§270.100)
G. Who Must Sign an Application for a
RAP? (§270.105)
H. What Must I Include in my Application
for a RAP? (§270.110)
1. Description of the Specific Content
Requirements
2. Comments on the Contents of RAPs
3. Contents of RAPs in the Proposal that
are.Not Required in the Final Rule
I. What if I Want to Keep this Information
Confidential (§270.115)
J. To Whom Must I Submit my RAP
Application? (§270.120)
K. If I Submit my RAP Application as Part
of Another Document, What Must I do?
(§270.125)
1. Provisions From the Proposal that are
Not Included in the Final Rule
Getting a RAP Approved
L. What is the Process for Approving or
Denying my Application for a RAP?
(§270.130)
M. What Must the Director Include in a
Draft RAP? (§270.135)
1. Provisions of the Proposal that are Not
in the Final Rule
N. What Else Must the Director Prepare in
Addition to the Draft RAP or Notice of
Intent to Deny? (§270.140)
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Federal Register/Vol. 63, No. 229/Monday, November 30, 1998/Rules and Regulations 65875
O. What are the Procedures for Public
Comment on the Draft RAP or Notice of
Intent to Deny? '(§ 270.145)
1, A Description of the Requirements
2. Commenters Requested More Flexibility
P. The Importance of Public Involvement
in the RAP Process •' .
Q. How Will the Director Make a Final
Decision on my RAP Application?
, (§270.150) • '
1. A Description of the Requirements
2. Comments on the Proposed
Requirements
R. May the Decision to Approve or Deny
my RAP Application be Administratively
Appealed? (§270.155)
S. When Does my RAP Become Effective?
(§270.160)
T. When May I Begin Physical
Construction of New Units Permitted
Under the RAP? (§ 270.165)
How May my RAP be Modified, Revoked
and Reissued, or Terminated?
U. After my RAP is Issued, How May it be
Modified, Revoked and Reissued, or
Terminated? (§270.170)
V. For What Reasons May the Director
• Choose to Modify my Final RAP?
(§270.175)
W. For What Reasons May the Director
Choose to Revoke and Reissue my Final
RAP? (§270.180)
X. For What Reasons May the Director
Choose to Terminate my Final RAP, or
Deny my Renewal Application?
(§270.185)
Y. May the Decision to Approve or Deny
a Modification, Revocation and
Reissuance, or Termination of my RAP.
be Administratively Appealed?
(§270.190)
Z. When Will my RAP Expire? (§270.195)
AA. How May I Renew my RAP if it is
Expiring? (§270.200) . ,
BB. What Happens if I Have Applied
Correctly for a RAP Renewal But Have
Not Received Approval by the Time my
Old RAP Expires? (§ 270.205)
Operating Under Your RAP
CC. What Records Must I Maintain
"Concerning my RAP? (§ 270.210)
DD. How are the Time Periods in the
Requirements in this Subpart and my
. RAP Computed? (§270.215)
EE. How May I Transfer my RAP to a New
Owner or Operator? (§ 270.220)
FF. What Must the State or EPA Region
Report About Non-compliance with
,RAPs?(§ 270.225)
Obtaining a RAP for an Off-site Location
GG. May I Perform Remediation Waste
Management Activities Under a RAP at
a Location Removed From the Area
Where the Remediation Wastes
Originated? (§270.230)
HH. Comparison of the RAPs Process to
that for Traditional RCRA Permits
V. Requirements Under Part 264 for
Remediation Waste Management Sites
(§264.1(1))
A. Comments on Applying Part 264
Standards to Remediation Waste
Management Sites
B. EPA's Response to These Comments
C. EPA is Providing Relief From Part 264,
-Subparts B, C, and D
VI. Application of RCRA Sections 3004 (u)
and (v), and §264.101 to Remediation
Waste Management Sites (§264.101 (d))
VII. Staging Piles (§§260.10 and 264.554)
A. introduction and Background
B. A Summary of Principal Changes From
the Proposal
1. Changes From the Proposal
2. Consistent With the Proposal
C. What is a Staging Pile? (§264.554(a))
D. How is a Staging Pile Designated?
(§264.554(b))
E. What Information Must I Provide to get
a Staging Pile Designated? (§264,554(c))
F. What Performance Criteria Must the
. Staging Pile Satisfy? (§264.554(d))
1. Performance Standards for Staging Piles
(§264.554(d)(l))
2. Decision Factors for Staging Piles
(§'264.554(d)(2)) '
G. May a Staging Pile Receive Ignitable,
Reactive, or Incompatible Wastes?
(§264.554(e))
H. How do I Handle Incompatible
Remediation Wastes in a Staging Pile?
(§264.554(f))
I. Are Staging Piles Subject to Land
Disposal Restrictions (LDRs) and
Minimum Technological .Requirements
(MTRs)?(§264.554(g))
J. How Long May I Operate a Staging Pile?
(§264.554(h)) .
K. May I Receive an Operating Term ,
Extension for a Staging Pile?
(§264.554(1))
L. What is the Closure Requirement for a
Staging Pile Located in a Previously
Contaminated Area? (§264:554 (j))
M. What is the Closure Requirement for a
Staging Pile Located in an
Uncontaminated Area? (§ 264.-554(k))
N. How May my Existing Permit (for
Example, RAP), Closure Plan, or Order
be Modified to Allow me to Use a
Staging Pile? (§264.554(1))
O. Is Information About the Staging Pile
Available to the Public? (§264.554(m)) „
P. What is the Relationship Between
Staging Piles, Corrective Action*-,
Management Units, and the Area of
Contamination Policy?
Vin. Corrective Action Management Units
(CAMUs)(§ 264.552)
IX. Dredged Material Exclusion (§261.4(g))
A. What is the Dredged Material
Exclusion?
B. Regulation of Dredged Material Under
CWAandMPRSA
C. Dredged Material and RCRA
Applicability
D. Determination of Regulatory Jurisdiction
E. Clarification of Future Practice
F. Comments on the Dredged Material
Exclusion
G. Dredged Material as a Solid Waste
H. Clarification of Terms Related to
Dredged and Fill Material
I. Normal Dredging Operations and the
Exclusion
J. The Exclusion of Nationwide Permits
X. State Authority (§ 271.1 (j))
A. Applicability of Rules in Authorized
States
B. Effect on State Authorization
1. Staging Piles
C. Authorization for Today's Rule
D. Authorization of State Non-RCRA RAP
Authorities ' ,
XI. Abbreviated Authorization Procedures .
(§271.21(h))
A. Existing Authorization Process
B. Summary of Comments oh the August
22, 1995 Proposal
C. Basis and Rationale for Today's New
Procedures
D. Rules Listed in Table 1 to §271.21 to '
Which the Abbreviated Procedure
Applies
E.. Use of Today's Abbreviated Procedure
for the Authorization of Previously
Promulgated Rules
F. Final Abbreviated Authorization
Procedures
G. Authorization Application
Requirements .
H. Procedures for Reviewing and
Approving Applications
I. EPA's Decision to Not Promulgate
Proposed Category 1 and 2 Procedures
J. Improvements to the Existing
Authorization Process
XII. Conforming Changes (§§265.l(b),
268.2(c), 268.5,0(g), 270.1 l(d), and 270.42
Appendix I)
Xni. How Does Today's Rule Relate to Other
EPA Regulations, Initiatives and
Programs?
A. Subpart S Initiative
B. Suspension of the Toxicity
Characteristic for Non-UST Petroleum
Contaminated Media and Debris
C. Deferral of Petroleum Contaminated
Media and Debris from Underground
Storage Tank Corrective Actions
D. Hazardous Waste Identification Rule
(HWIR-waste) (May 20, 1992, and'
December 21, 1995)
E. CERCLA
F. Legislative Reforms
G. Brownfields
H. Land Disposal Restrictions (Part 268)
XTV. When Will the Final HWIR-media Rule
. Become Effective?
XV. Regulatory Requirements
A. Assessment of Potential Costs and
Benefits
1. Executive Order 12866 '
2. Background
3. Need for Regulation
4. Assessment of Potential Regulatory Costs
B. Executive Order 12898: Environmental
Justice
C. Unfunded Mandates Reform Act.
D. Executive Order 12875: Enhancing the
Intergovernmental Partnership
E. Regulatory Flexibility Act
F. Paperwork Reduction Act
G. National Technology Transfer and
Advancement Act
H. Submission to Congress and the General
Accounting Office
I. Executive Order 13045: Protection of
Children from Environmental Health
Risks and Safety Risks
J. Executive Order 13084: Consultation and
Coordination with Indian Tribal
Governments
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65876 Federal Register/Vol. 63, No. 229/Monday, November 30, 1998/Rules and Regulations
I. Overview Information
A. Why do This Rule and Preamble
Read so Differently From Other
Regulations?
Today's regulatory language and
accompanying preamble are written in a
"readable regulations" format. The
authors tried to use active rather than
passive voice, plain language, a
question-and-answer format, the
pronouns "we" for EPA and "you" for
the owner/operator (in the regulatory
text), and other techniques to make it
easier for readers to find and understand
the information in today's rule and
preamble.
This new format is part of the
Agency's ongoing efforts at regulatory
reinvention, and may be unfamiliar to
readers as it looks very different from
the existing regulatory text of the Parts
affected by today's rule. However, the
Agency believes that this new format
will increase readers' abilities to
understand the regulations, which
should then increase compliance, make
enforcement easier, and foster better
relationships between EPA and the
regulated community.
All of the requirements found in
today's final regulations, including
those set forth in table format, constitute
binding, enforceable legal requirements.
The plain language format used in
today's final regulations may appear
different from other rules, but it
establishes binding, enforceable legal
requirements just as those in the
existing regulations.
B. What Law Authorizes This Rule?
These regulations are finalized under
the authority of sections 2002(a), 3001,
3004. 3005, 3006, 3007 and 7004 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,
6927 and 6974.
II. Background Information
A. What Problems Does Today's Rule
Address?
Currently, hazardous wastes managed
during cleanup are generally subject to
the same RCRA Subtitle C requirements
as newly generated hazardous wastes.
Often those Subtitle C requirements are
not appropriate for the cleanup
scenario, as described below.
1. Response-oriented Programs Have
Different Objectives and Incentives
Than Prevention-oriented Programs
Since 1980, EPA has developed a
comprehensive regulatory framework
under Subtitle C of RCRA for
identifying, generating, transporting,
treating, storing and disposing 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. However, in the remediation
programs, EPA wants to develop a
regulatory regime that encourages
people to cleanup contaminated areas
thereby generating potentially large
volumes of hazardous waste.
The RCRA regulations constitute
minimum national standards for
managing hazardous wastes. With
limited exceptions, 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. To
ensure an adequate level of protection
nationally, the RCRA regulations have
been conservatively designed to ensure
proper management of hazardous wastes
over a range of waste types,
environmental conditions, management
scenarios, and operational
contingencies. This causes remediation
activities to be subject to conservative,
and often inappropriate requirements.
For example, all waste piles must have
a leachate collection and removal
system under §264.251 (a)(2). This is
appropriate when highly concentrated
Xvastes will be stored in a pile for an
extended time, but may not be necessary
for less-concentrated wastes, or shorter-
term activities, or cleanup actions when
the level of oversight is high. However,
to account for any activities that may
take place nationally, EPA wrote the
regulations conservatively to require all'
waste piles to comply with these
requirements, even when they will
contain less-concentrated waste for a
short time. Nationally applicable
requirements must be written in this
manner to provide protective
requirements for the highest risk
activities that the regulations allow.
As opposed to requirements designed
for on-going waste management,
remediation activities often involve less-
concentrated wastes, one-time activities,
and shorter-term activities. Remediation
activities are also conducted under close
EPA or State oversight. However, the
current regulations do not allow EPA or
the State to modify the requirements for
piles, or many other Subtitle C
requirements, to make them more
appropriate for the specific
circumstances of the remediation taking
place.
In administering current RCRA
regulations for hazardous waste
generated during cleanup, EPA and
States have recognized fundamental
differences in both incentives and
objectives for prevention- and response-
oriented programs. In prevention-
oriented programs, the regulations
require taking appropriate precautions
against causing contamination before an
activity takes place, such as the
regulations that require liners and
leachate collection systems. Also,
because the regulations provide an
incentive to minimize waste production,
from the beginning, the activity is
planned and managed to carefully
control the appropriate factors such as
amount of waste produced,
concentrations, and handling practices
to prevent unacceptable situations such
as releases. However, in administering
remedial programs such as Superfund
and the RCRA Corrective Action
program, EPA and the States already
face an unacceptable situation
(contaminated sites) that must be
remedied. Response-oriented programs
must address already existing problems.
Response-oriented programs cannot pre-
determine the location of the
contamination, but must respond where
contamination has already occurred,
which may be close to sensitive
ecosystems or populated areas.
Response-oriented programs cannot
control the volumes or concentrations of
remediation wastes, but must manage
what wastes have already been released
into the environment in varying
volumes, concentrations and matrices.
Often the site-specific situations facing
response-oriented programs make waste
management difficult, such as complex
matrices and combinations of /
constituents of concern, or concerns
over on-site treatment or disposal units
to manage the wastes that must be
cleaned up.
In a prevention-oriented system, if the
• community objected to building new
on-site units, the facility could decide
not to engage in business practices that
would generate the waste that would
need to be managed. In the response-
oriented situation, however, the facility
(or the regulatory agency) must deal
with existing contamination, and must
find an acceptable response.
Also, remedial actions generally
receive intensive government oversight,
and remedial decisions are made by a
State or Federal Agency only after they
thoroughly investigate site-specific
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Federal Register/Vol. 63, No. 229/Monday, November 30, 1998/Rules .and Regulations ' B5877
conditions. In contrast, prevention-
oriented hazardous waste regulations
are generally implemented '
independently by facility owner/
operators through complying with
national'regulatory requirements.
2. LDRs, MTRs, and Permitting Raise
Problems When Applied to Remediation
Wastes ,
In the HWIR-media proposed rule,
EPA identified the application of three
RCRA requirements to remediation
wastes as the biggest problems to
address; Land Disposal Restrictions
(LDRs), Minimum Technological
Requirements (MTRs), and permitting.
The LDRs (which appear in 40 CFR
part 268) generally prohibit land
disposal (or "placement" in land-based
units) of hazardous wastes until the
wastes have met the applicable
treatment standards. Often this
placement is appropriate and desirable
when,managing remediation wastes to
excavate them from their current
locations, and temporarily store the
wastes before on-site treatment, or to
excavate the wastes and accumulate
enough Volume to ship off-site cost
effectively. By not allowing temporary
storage and accumulation in land-based
units, the LDRs^can be a strong' ,
disincentive to excavating and
managing remediation waste. The
staging pile provisions of today's final
rule address this issue by allowing
temporary storage and accumulation of '
remediation wastes in a staging pile
without being subject to LDR.
Another example of the problems
with LDRs in the cleanup scenario is
that contaminated media are often
physically quite different from as-
generated process wastes. Contaminated
soils often contain complex mixtures of
multiple contaminants and are highly
variable in their composition, handling,
and treatability characteristics. For this
reason, treating contaminated soils can
be particularly complex, involving one
or sometimes a series of custom-
designed treatment systems. It can be
very difficult to treat contaminated soils
to the LDR treatment levels. The parts
of the HWIR-media proposal that
addressed this issue have been finalized
in the LDR Phase IV rule (63 FR 28556
(May 26, 1998)).
The MTR requirements were designed
as preventative standards for wastes
generated through industrial processes.
They were not designed for the remedial
context. For example, under 40 CFR-
Subpart F, surface impoundments,
waste piles, and land treatment units or
landfills must have specific detection,
compliance monitoring programs, and
corrective action programs for potential
groundwater contamination from the
unit. These are appropriate preventative
requirements for units managing process
wastes. However, many cleanup actions
involve short-term placement of
remediation wastes into a waste pile",
and all of these requirements may not be
necessary. The staging piles provisions
of today's rule address this issue by
allowing the Director to determine
appropriate design criteria for the
staging pile based on the site-specific
circumstances such as the concentration
,of the wastes to be placed in the unit
and the length of time the unit will
operate. EPA also explained in the
preamble to the CAMU rule additional
reasons why LDR and MTR
requirements can be counterproductive
when managing remediation waste as
opposed to as-generated process wastes.
To read about these additional reasons,
see 58 FR 8658 (8659-8661) (February
16, 1993). '
Finally, another area creating
roadblocks is permitting. The time-
consuming process for obtaining a
RCRA permit can delay cleanups,
thereby delaying the environmental and
public health benefits of cleaning up a
contaminated site. For example, the
traditional RCRA permitting process
requires the facility owner/operator to
submit a great deal of information on
activities at the facility to EPA or the
State, and the permit must include
terms and conditions to protect against
any improper waste management
practices over the long-term active life
of an operating facility. Because of the
. large volume of information submitted,
these permits are huge documents and
approval often takes several years.
However,, in the remedial scenario,
cleanup activities are generally a one-
time project; once the cleanup is
completed and the remediation waste is
properly treated and disposed, then the
activities are completed. Also, these
activities are limited to addressing the
contamination at the site, and therefore
are often more limited in scope than the
operating practices of a facility that is
engaged in on-going waste treatment, "-
storage and disposal. To overcome the
limitations discussed above from
traditional RCRA permits, the new
Remedial Action Plans (RAPs)
requirements in today's rule streamline
the process for receiving a permit for
treating, storing and disposing of
remediation wastes, and require the
facility owner/operator to submit
significantly less information than for a
traditional RCRA permit. However, the
information submitted for a RAP
application and RAP terms and
conditions must be sufficient to ensure
proper waste management of the
remediation wastes involved during the
life of the cleanup activities. ,
Furthermore, a facility seeking a
traditional RCRA permit to manage
remediation wastes on-site must
investigate and cleanup their entire , .
facility (facility-wide' corrective action).
This requirement can deter potential
cleanups from happening at all. For
instance, facility owners and operators
may wish to clean up a small portion of
their facility for any number of reasons,
such as to avoid future liability, to free
the property for sale or other uses, or
because they simply wish to restore the
environmental health of their property.
However, they may not be willing to
take on the burden of investigating and
cleaning up their entire facility, when it
is only a small portion they wish to
voluntarily clean up, and they may be
reluctant to conduct the cleanup under
the RCRA corrective action program. .
Therefore, to encourage cleanups, under
today;s,final rule, facilities that need a
RCRA permit only to treat, store, or
dispose of remediation wastes
(remediation-only facilities) are-not
subject to the facility-wide corrective
action requirement. ,
B. How Has EPA Tried to Solve These
Problems in the Past?
EPA has tried to solve these problems
in the past through a series of
regulations and policies; for example;
• The "Area of Contamination"
(AOC) policy;
• The "contained-in" policy; and
• The regulations for Corrective
Action Management Units (CAMUs),
and temporary units.1 .
All of these regulations and policies
help alleviate some of the problems
facing cleanups,* but none have
completely solved these problems. (See
the October 1997 report by the United
States General Accounting Office,
"Remediation Waste Requirements Can
Increase the Time and,Cost of
Cleanups."2) ,
The AOC policy allows important
flexibility for activities done within a *
contiguous contaminated area. For
example, hazardous remediation wastes
may be consolidated or treated in situ
' 61 FR 18780, 18782 (April 29, 1996),
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); 55
FR 8666, 8758-8760 (March 8, 1990): and 58 FR
8658 (February 16, 1993).
. 2Hazardous Waste: Remediation Waste _
Requirements Can Increase the Time and Cost of
Cleanups, U.S. General Accounting Office, GAO/
,RCED-98-4. October-1997.
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65878 Federal Register/Vol. 63, No. 229/Monday, November 30, 1998/Rules and Regulations
within an AOC without triggering the
LDRs or MTRs. However, the AOC
policy does not address the permitting
issues today's rule is addressing, nor
does it address LDR and MTR for wastes
removed from an AOC, or treated ex
situ.
The contained-in policy defines when
some contaminated media can be
considered to no longer "contain"
hazardous waste. When EPA or an
authorized State determines that media
do not "contain" hazardous waste,
RCRA does not generally pose a barrier
to remediation because permitting
requirements, LDRs (generally), and
MTRs do not apply to media that do not
contain hazardous waste. However, the
contained-in policy is limited to media
only, and does not provide any
flexibility for other remediation wastes,
nor does it provide needed flexibility for
highly concentrated media.
The CAMU and temporary unit rules
provide much-needed flexibility for
unit-specific standards at cleanup sites.
CAMUs and temporary units are not
subject to LDRs or MTRs. The
requirements for these units are set on
a site-specific basis, depending on site-
specific factors such as the types of
wastes being managed (for example,
concentrations, volumes, other
characteristics) and the period of time
the unit will operate. However, CAMUs
and temporary units do not address any
of the permitting issues that cause
problems for remediation wastes.
Because each of these regulations or
policies is limited in solving the
problems inherent to managing
hazardous remediation waste under the
RCRA Subtitle C system. EPA felt it was
necessary to propose additional
solutions,
C. How Did the Proposed Rule Attempt
to Solve These Problems?
EPA recognized a continuing need for
further reforms than the regulations and
policies discussed above had provided,
and yet knew that these reforms would
be controversial. In 1993. EPA convened
a committee under the Federal Advisory
Committee Act (FACA) to provide
recommendations to EPA on how to
make these reforms. The FACA
Committee included representatives
from environmental groups, regulated
industry, the waste management
industry, States, and. EPA. The FACA
Committee met numerous times
between January 1993 and September
1994. EPA based the options in the
April 29, 1996 HWIR-media proposal on
the recommendations and discussions
of the FACA Committee.
EPA presented several options for
reforms in the HWIR-media proposal.
EPA presented two comprehensive
options (the Bright Line and the Unitary
Approach), and requested comment on
sub-options and issues within those
comprehensive options.
1. The "Bright Line" Approach for
Contaminated Media
The first comprehensive option,
which formed the basis for the proposed
rule, was the "Bright Line" option. The
Bright Line option would have been
limited to "contaminated media" only.
Contaminated media was defined to
include soils, groundwater, and
sediments, but not debris, nor other
remediation wastes such as sludges. The
Bright Line option got its name from a
"line" dividing more highly
contaminated media from less
contaminated media. That Bright Line
was a set of constituent-specific
concentrations based on the risks from •
those constituents. Media found to
contain constituents above these
concentrations would have remained
subject to Subtitle C management
requirements (however, the proposal
requested comment on some potential
modifications to those requirements),
and media containing constituents
below the concentrations would have
been eligible for a determination that it
no longer "contained" hazardous waste,
thereby generally removing it from
Subtitle C jurisdiction.
The determinations of which media
were and were not subject to Subtitle C
requirements were to be documented in
a Remediation Management Plan (RMP)
approved by EPA or an authorized State.
The RMP would have been an
enforceable document that would also
have included any requirements for
managing media below the Bright Line,
and would have served as a RCRA
Subtitle C permit for treatment, storage
or disposal of media above the Bright
Line. The RMP process would have
been more streamlined than that
required for RCRA permits obtained
under the current regulations, and also,
at remediation-only facilities, would not
have required 3004 (u) and (v) facility-
wide corrective action, as is required for
all RCRA permits before today's rule.
2. Other Options Within the "Bright
Line" Approach
Other requirements that EPA
proposed to modify were LDR treatment
standards for soils that remained subject
to Subtitle C requirements, standards
applicable to on-site storage and/or
treatment of cleanup wastes during the
life of the cleanup, and State
authorization requirements. New
treatment standards would have applied
to soils that remained subject to LDRs
under the Bright Line approach. EPA
also proposed a new unit called a
"remediation pile." Remediation piles
could have been used temporarily
without triggering LDRs and MTRs, for '
the on-site treatment or storage of
remediation wastes subject to Subtitle C.
States picking up any revisions to their
RCRA programs (the proposal was not
limited to the revisions to remediation
waste management programs) could
have followed new streamlined
authorization procedures. Also, EPA
proposed to withdraw the CAMU
regulations if the final HWIR-media rule
would sufficiently replace the flexibility
currently available under the CAMU
rule.
Finally, EPA proposed excluding
dredged materials from Subtitle C if
they were managed under permits
issued under the Clean Water Act
(CWA) or Marine Protection Research
and Sanctuaries Act (MPRSA).
3. The "Unitary" Approach—An
Alternative to the "Bright Line"
As an alternative to the Bright Line
approach, EPA requested comment on
the "Unitary Approach." The Unitary
Approach excluded all remediation
wastes (irrespective of the concentration
of hazardous constituents in the waste
and including non-media remediation
wastes) managed under a Remedial
Action Plan (RAP) (which was very
similar to a RMP) from Subtitle C
management requirements and made
them subject to site-specific
requirements in the RAP.
Again, EPA requested comment on
the two main comprehensive options,
the Bright Line and the Unitary
Approach, and on all the sub-issues,
such as the proposed elimination of
CAMUs, and the new requirements for
remediation piles, LDR, RMPs and
RAPs, dredged materials, and State
authorization.
D. What General Comments did EPA
Receive About the Two Major Proposed
Options?
Some commenters supported the
Bright Line option and thought it was
appropriate to distinguish between
highly contaminated media and media
that were less contaminated, and to
regulate them differently.
However, most commenters on the
Bright Line option believed that the
Bright Line would be too difficult to
implement, and therefore should not be
finalized. There were several elements
of the Bright Line option that
commenters were concerned about
implementing. One concern was
sampling to determine whether media
was above or below the Bright Line.
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Federal Register/Vol. 63. No. 229/Monday. November 30, 1998/Rules and Regulations 65879
Concentrations of contaminants in
environmental media typically are not
heterogeneous, and it is difficult to
make assumptions about the •
concentrations of large areas of
contamination without taking many
samples.
Another concern was how to
differentiate,between media, debris, and
other remediation wastes, such as
sludges. Commenters stated that often
these different types of remediation
waste are all found at the same site and
they will all need to be managed, and
it would be unduly complicated to have
to separate the different types of
remediation wastes and manage them
separately under separate regulatory
requirements.
, Also, commenters were concerned
about the methodology that EPA used to
determine the Bright Line levels
themselves. EPA received many specific
comments on the proposed Bright Line
constituent specific numbers, as well as
the choice of which constituents were
assigned Bright Line numbers.
With regard to the Unitary Approach,
many industry and State commenters ;
supported the Unitary Approach, saying
that the flexibility would greatly
•streamline cleanups and allow more
appropriate decisions for managing
remediation waste. These commenters
emphasized that flexibility was needed
so that States could develop cleanup
programs with oversight and public
participation requirements specific to
the concerns, needs, and resources of
individual States, and felt that the
Unitary Approach most closely
addressed those concerns. However,
some commenters were concerned that
the lack of any national requirements
was too open-ended and would not
guarantee protectiveness. Commenters
were also concerned about the resources
required for States and Regions to make
site-specific determinations of the
appropriate management requirements
for remediation wastes at each different
'site.
Finally, commenters had many
specific comments on the elements of
these options such as RAPs and RMPs,
• remediation piles, LDRs, etc. Major
comments and EPA's responses are
summarized-under those more specific
sections of this preamble, and all
comments are answered specifically in
the "response to comments"'document
'for today's rule.
E. What did EPA Decide to do After
Considering Those Comments?
EPA has decided to promulgate only
selected elements of the HWIR-media
proposal in today's rule, rather than go
forward with a,more comprehensive
approach as proposed. EPA plans to
complement the elements finalized
tpday by leaving the CAMU regulations
in place, rather than withdrawing these
regulations as proposed.
Although EPA conducted a lengthy
outreach process before developing the
HWIR-media proposal and made every
effort to balance the concerns and
interests of various .stakeholder groups,
public comment on the proposal makes
it clear that stakeholders fundamentally
disagree on many remediation waste
management issues. •
EPA agreed with commenters'
concerns that the Bright Line approach
would be too difficult to implement,
and that a Bright Line that would satisfy
commenters who wanted-the Bright
Line levels to consist of very
conservative levels would not
sufficiently reform the system to remove
the existing barriers to efficient,
protective remediation waste
management. EPA has concluded that
pursuing broader regulatory reform
would be a time- and resource-intensive
process that would most likely result in
a rule that would provoke additional
years of litigation and associated
uncertainty. This uncertainty would be
detrimental to the program and have a
negative effect on ongoing and future.
cleanups. Based on these conclusions,
the Agency has decided not to finalize
either the Bright Line or the Unitary
Approach, and recognizes that a purely
regulatory response will not solve all of
the remediation waste management
issues that HWIR-media was designed to
solve.
While EPA believes the elements
finalized today along with the retention
of the CAMU rule, will improve
remediation waste management and
expedite cleanups, the Agency is also
convinced that additional reform is
needed to expedite the cleanup
program, especially to provide greater
flexibility for non-media remediation
wastes like remedial sludges, address
certain statutory permitting provisions,
and more appropriate treatment
requirements for remediation wastes (for
example, treatment that focuses on
"principal threats" rather than all
underlying hazardous constituents).
Therefore, the Agency continues to
support appropriate, targeted legislation
to address application of RCRA Subtitle
C land disposal restrictions, minimum
technological and permitting
requirements to remediation waste and
will continue to participate in
discussions on potential legislation..If
legislation is not forthcoming, the
Agency may reexamine its approach to
remediation waste regulation and may
take additional administrative action.
The elements finalized in today's rule
are:
• Streamlined permitting for treating,
storing and disposing of remediation
wastes generated at cleanup sites that,
among other things, eliminates the
requirement for facility-wide corrective
action at remediation-only facilities;
• A variation on the proposed >
remediation piles, called staging piles,
modified in response to. public
comments;
• A RCRA exclusion for dredged
materials managed under Clean Water •
Act (CWA) or Marine Protection
Research and Sanctuaries Act (MPRSA)
permits; and
• Streamlined procedures for State
authorization.
EPA also finalized, in a separate
document (63 FR 28604 (May 26, 1998)),
the LDR treatment standards specific to
hazardous contaminated soil that were
proposed in the HWIR-media proposal.
EPA is deferring action on the
Treatability Sample Exclusion Rule, that
EPA requested comments on expanding
in the HWIR-media proposal at 61 FR
18817. . . .
EPA will withdraw all other portions'
of the proposal, such as the proposal
under the Bright Line option to
distinguish between lower- and higher-
risk contaminated media and give
regulatory agencies the flexibility to
exempt lower-risk contaminated media
from RCRA requirements, and the
portion of the proposal that proposed to.
withdraw the CAMU rule.
Existing areas of flexibility for
managing remediation waste, such as
the contained-in and AOC policies, and
site-specific land disposal restrictions
treatability variances, continue to be
available.
in. Definitions Used in this Rule
(§260.10)
Some terms defined in today's rule
may be difficult to understand when
discussed out of context of the rest of
the rule; therefore, readers may wish to
read the preamble sections on RAPs and
staging piles before reading this section
on definition's. To discuss related terms
together in this preamble, discussion of
the definitions is not in alphabetical
order (which is how the terms appear in
the rule language). The section
discusses:
• First the revised definition of
"corrective action management unit" or
"CAMU," then
• The definition of "remediation
waste," then
• "Remediation waste management
site" and "facility," then
• "Staging pile," then finally,
• "Miscellaneous unit."
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65880 Federal Register/Vol. 63, No. 229/Monday, November 30, 1998/Rules and Regulations
A. Corrective Action Management Unit
(CAMU)—Changes to the Existing
Definition, and Changes to the CAMU
and Temporary Unit Regulations at
§§264.552(a). and 264.553(a)
1. Definition of CAMU
In today's final rule, the Agency has
revised the definition of CAMU, as well
as the CAMU and temporary unit
regulations themselves. This revision
clarifies the Agency's interpretation of
these provisions and accommodates
EPA's new interpretation, promulgated
today, that remediation-only facilities
are not subject to the facility-wide
corrective action requirement under
RCRA section 3004 (u). (See discussion
under the definition of remediation
waste management site below.)
Specifically, the Agency has added to
both the CAMU definition (§260.10)
and §§264.552 and 264.553 language
providing that CAMUs and temporary
units are not limited to facilities subject
to RCRA sections 3004 (u) or 3008 (h),
but may also be approved at other
cleanup facilities, as well.3
The revised definition in today's rule
reads as follows:
Corrective action management unit
(CAMU) means an area within a facility that
Is used only for managing remediation wastes
for implementing corrective action or
cleanup at the facility.
EPA is amending the definition of
CAMU by deleting the parts of the
definition that referred to corrective
action authorities under §264.101 and
RCRA section 3008(h). This change will
accommodate RAPs and permits for the
management of remediation waste as
defined in today's rule that are not
subject to §264.101 or RCRA section
3008(h). Also, the reference in this
definition (as well as in the definition
of remediation waste) to actions taken
"for the purpose of implementing
corrective action requirements under
§264.101 and RCRA section 3008(h)"
implied that EPA intended to restrict
CAMU to these authorities. In fact, EPA
did not intend to restrict the CAMU (or
the temporary unit) to wastes generated
solely through specific RCRA regulatory
mechanisms, or to cleanup wastes
generated solely at RCRA treatment,
storage or disposal facilities.
For example, EPA anticipated that
CAMUs or temporary units might be
3 When using the term "remediation-only"
facilities. EPA means facilities that require RCRA
permits solely for the purposes of treating, storing
or disposing of remediation wastes due to cleanup
at the facilities. EPA uses this term to distinguish
these facilities from operating treatment, storage
and disposal facilities that manage as-generated
process wastes as part of ongoing facility
operations.
used as applicable or relevant and
appropriate requirements (ARARs) for
the remediation of many CERCLA sites,
especially where CERCLA remediation
involves management of RCRA
hazardous wastes. EPA tied its
definition of CAMUs and remediation
waste to RCRA Federal authorities
applicable to TSD's (that is, 40 CFR
264.101 and RCRA section 3008(h)) .
because the Agency developed the
CAMU and temporary unit rules within
that context—that is, they were
developed as Federal rules to
implement corrective action at facilities
subject to RCRA sections 3004 (u) or
3008(h). Yet, EPA also expected that the
CAMU would be appropriate as ARARs
at Superfund sites; at the Regional
Administrator's discretion for purposes
of remediation under RCRA section
7003 (even if not at a Subtitle C facility);
and under State authorities analogous to
section 7003 or CERCLA (which provide
a waiver from otherwise applicable
State RCRA requirements).4
The revised definition of CAMU
makes it clear that the CAMU is also
available under RAPs and other permits
for remediation-only facilities that
under the new interpretation in today's
rule are not subject to 40 CFR 264.101
or RCRA section 3008(h).
Without this change, the current
definitions of CAMU and remediation
waste might be interpreted to preclude
the use of CAMUs and temporary units
at remediation-only facilities operating
under RAPs. Yet these facilities are
clearly among the type of facilities for
which CAMUs and temporary units
would be beneficial—that is, facilities at
which remediation should be expedited
and encouraged.
For this reason, EPA has removed the
section of the CAMU definition (and
also parallel provisions in the definition
of remediation waste) that appeared to
limit CAMUs (and temporary units) to
facilities subject to §264.101 or section
3008(h). This change should eliminate
any confusion over the scope of CAMUs
and remediation waste, and it is
consistent with the central purpose of
today's rule—expediting cleanup at sites
overseen by Federal and State cleanup
authorities, whether these sites are
within the corrective action universe, or
whether they are "remediation-only" or
"remediation waste management sites"
where RCRA hazardous waste is being
managed.
4 For a discussion of State permit waiver
authorities, see the memorandum from J. Winston
Porter, Assistant Administrator, Office of Solid
Waste and Emergency Response, EPA to Regional
Administrators, Regions I-X, EPA (November 16,
1987), available in the docket to today's rule.
Without this change, the Agency's
new interpretation that remediation
waste management sites are not subject
to section 3004 (u) corrective action
requirements, which is intended to
stimulate cleanups, would have had the
unintended effect of eliminating the
availability of two of the waste
management options, CAMUs and
temporary units, that were designed for
the same purposes.
2, §§264.552 and 264.553
The removal of the language
referencing activities performed under
§ 264.101 or RCRA 3008(h) from the
definition of CAMU does not change the
scope of CAMUs. EPA simply removed
the language discussing authorities from
the definition, and added it to the
regulatory language for CAMUs and
temporary units at §§264.552 and
264.553. EPA also added specific
language clarifying that CAMUs and
temporary units may be approved at
permitted facilities that, under today's
rule, are notsubject to §264.101. EPA
believes these provisions are more
appropriate in the regulatory text of the
CAMU and temporary unit requirements
instead of in the definitions because
they identify the mechanisms by which
CAMUs and temporary units are
approved, rather than define the scope
of the unit itself. By including these
authorities in the text of §§264.552 and
264.553, EPA is clarifying that CAMUs
and temporary units are intended to
implement corrective action consistent
with the requirements in §264.101 and
3008 (h) requirements, as well as
cleanup under today's RAPs, which do
not require compliance with §264.101.
The mechanisms for approval of
CAMUs and temporary units will be the
permit and order procedures, and the
RAP procedures. Of course, Federal and
State authorities with permit waiver
provisions may also use CAMUs, as
discussed above and in the preamble to
the CAMU rule at 58 FR 8658 (p. 8679)
(February 16, 1993).
EPA is also adding language to
§§264.552 and 264.553, and has
included language in the new §264.554
created in today's rule, to specify that
CAMUs, temporary units, and staging
piles may only be used within the ;
contiguous .property under the control
of the owner/operator where the wastes
to be managed in the CAMU originated.
EPA added this language because the
Agency removed that limitation from
the definition of remediation waste, as
discussed below. EPA believes these
restrictions are more appropriate in the
regulatory text of the CAMU, temporary
unit, and staging pile,requirements
instead of in the definitions.
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Federal Register/Vol. 63, No. 229/Monday, November 30,. 1998/Rules and Regulations 65881
EPA is 'retaining the current limitation
that CAMUs and temporary units may
only be used within the contiguous
property under the control of the owner/
operator, and creating the same
limitation for staging piles created
under today's rule. However,'EPA
believes that it may be advantageous in
some cases to use CAMUs, temporary
units, and staging piles at off-site
facilities. Today's rule provides some
relief for off-site management of
remediation wastes, but does not allow ,
off-site CAMUs, temporary units, or
staging piles. EPA may reconsider the
need for and appropriateness of
allowing off-site CAMUs, temporary
units and staging piles in the future.
B. Remediation Waste—Changes to the
Existing Definition
Under current regulations, the term
"remediation waste" defines wastes that
can be managed in a CAMU or
temporary unit. Today's rule amends
•• the definition for the same reason that
EPA made the same change to the
definition of CAMU—to remove the
limitation to wastes managed under
§ 264.101 and RCRA §3008(h). The new
definition retains the term's current use,
and makes the definition conform with
the new RAPs and staging piles
provisions by not limiting remediation
wastes to wastes managed under certain
specific corrective action authorities.
Wastes managed under the provisions of
today's rule will be managed during the
course of a wide range of cleanups
conducted under many different types
of cleanup authorities.
The existing definition of remediation
waste (in §260.10) might be read as
limiting the term to wastes managed
under the RCRA corrective action
cleanup authorities of 40 CFR 264.101
and RCRA section 3008(h). In the .
preamble to the proposed rule (61 FR
18836), EPA requested comment on a
revised definition of remediation waste
that eliminated the limitation to wastes
"managed for the purpose of
implementing corrective action
requirements under §264.101 and
RCRA section 3008(h)," and added that
wastes from a "media remediation site"
could be considered remediation
wastes. Today's definition is based on
this-definition and reads as follows:
Remediation waste means all solid and
hazardous wastes, and all media (including
grbundwater, surface water, soils and
sediments) and debris that contain listed
hazardous wastes or that themselves exhibit
a hazardous characteristic and are managed
for implementing cleanup.
The Agency has made two changes to .
the existing §260:10 definition of
remediation waste originally
promulgated for the CAMU and
temporary unit rules. The first change
removes references to RCRA corrective
action authorities, and the second
change eliminates the restriction that
remediation wastes may originate only
from within the facility boundary. •
The first reference that was.
• eliminated defined remediation waste as
wastes "managed for the purpose of
implementing corrective action
requirements under §264.101 and
RCRA section 3008 (h)." The revised
definition refers to wastes "that are
managed for implementing cleanup,"
without specifying the authority'under
which owner/operators must address
these wastes. As mentioned above, the
Agency specifically suggested this
change in the preamble of the proposed
rule (61 FR 18836) in a discussion of the
Unitary.
No comments were submitted
specifically on the definition of
remediation waste, although several
commenters expressed their views on
the general issue of what materials
should be subject to the proposed rule, •
which is the issue addressed by the
definition of "remediation waste." For
example, one commenter expressed
support for the approach envisioned by .
the proposal, and finalized in today's
clarification to the definition, stating
that "the HWIR-media rule should be
applied to any management of
hazardous contaminated media (and
further, to all remediation waste . . .),
regardless of whether this remediation •
is conducted under RCRA, CERCLA, or
other State or Federal authority."
In view of the statements made by
commenters expressing support for
allowing the use of different State and
Federal authorities, EPA continues to
believe that the purpose behind the
provisions finalized today—to
encourage cleanup by removing
unnecessary regulatory barriers—is best
served by the broad definition finalized
today.5
The second change has removed the
limitation that waste must originate
from "within the facility boundary." '
This allows remediation waste managed
at off-site locations, such as those
permitted under §270.230 to continue
to meet the definition of remediation
5 Many commenters on the proposal addressed
the issue of the types of materials that should be
eligible for the relief offered by the proposed rule—
most notably, whether relief should be provided for
both contaminated media and hazardous wastes
that are managed during cleanup (for example,
sludges that have not commingled with media).
Because this issue was addressed differently under
the various provisions of the proposed rule, these
comments are addressed in the discussion of each
specific provision finalized today.
waste even though they are removed
from the original site;
The" changes made to the definition of
"remediation waste parallel changes in
the definition of CAMU, and changes to
the CAMU and temporary units
regulations at §§264.552 and 264.553.6
Commenters were concerned about
the status of wastes that have migrated
beyond the traditional RCRA "facility"
boundary, and the need to include those
wastes in remediation waste. Some
commenters were concerned that, as
proposed, owners and operators would
be required to obtain a RAP for on-site
activities and an RCRA permit for off-
site locations where wastes had
migrated. Some were concerned that
they would not be able to bring wastes
that had migrated off-site back to the
site for management; still others were
concerned that they would be forced to
manage wastes on-site even if it was not
the most protective option. EPA has
retained the inclusion of wastes that
have migrated beyond the facility
boundary by removing the clause that
limited from where remediation waste
could originate. EPA expects this to
resolve the concerns of these
commenters.
Finally, it is important to stress two
points. First, it should be noted that
remediation waste includes only waste
managed because of cleanup, and does
not include wastes generated from on-
going hazardous waste operations,-
which are commonly referred to as
"newly generated," "as generated," or
"process" wastes. When managed as
part of a legitimate cleanup action, any
(non-"as-generated") hazardous wastes
(for example, media, debris, sludges, or
other wastes) are all remediation waste.
Second, remediation waste includes
both hazardous and non-hazardous
solid wastes managed as a result of
cleanup, including any wastes generated
from treating remediation wastes (for
example, carbon canisters and sludges
generated from groundwater pump-arid-
treat or soil vapor extraction systems).
Third, the changes made to the
definition of remediation waste do not,
in any way, change the scope of the
CAMU and temporary unit regulations.
EPA has replaced the limitation on
contiguous property removed from this
definition with a limitation in the
CAMU and temporary unit regulations
themselves at §§264.552 and 264.553.
That same limitation also applies to
staging piles created in today's rule.
6Today, EPA is also modifying §§ 264.552 and
264.553 to allow implementation of CAMUs and
temporary units under permits (including RAPs) at
facilities that are not subject to § 264.101 and
3008(h) as discussed in today's preamble under the
definition of CAMU.
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65882 Federal Register/Vol. 63, No. 229/Monday, November 30, 1998/Rules and Regulations
C. Remediation Waste Management Site
and Facility—New Requirements for
Remediation Waste Management Sites
The final definition for remediation
waste management site included in
§ 260.10 in today's rule is:
Remediation waste management site
means a facility where an owner or operator
Is or will be treating, storing or disposing of
hazardous remediation wastes. A
remediation waste management site is not a
facility that is subject to corrective action
under §264.101 of this chapter, but is subject
to corrective action requirements if the site
Is located in such a facility.
Traditionally, RCRA has focused on
"facilities" when applying hazardous
waste regulations. These are generally
properties where industrial operations
manage hazardous wastes that they have
generated, or where commercial
operations or entities conduct
hazardous waste treatment, storage,
and/or disposal operations. For
corrective action under §3004(u) and (v)
(implemented through §264.101) and
3008 (h). a facility was defined (see
§260.10) as "all contiguous property.
under the control of the owner or
operator" where hazardous wastes are
managed.
In the proposal, EPA defined "media
remediation site" as a new term that
would apply to a location where certain
remediation waste management
activities were taking place, and might
or might not include all or part of a pre-
existing RCRA "facility." EPA felt that
it was important to differentiate
between existing "facilities" and a new
kind of site that would be eligible for
the streamlined permits (Remedial
Action Plans or RAPs) promulgated in
today's rule, and would be exempt from
§264.101 and certain other Part 264
requirements that are not necessary or
appropriate for areas used solely to
manage cleanup wastes.
1. EPA Changed the Term From "Media
Remediation Site" in the Proposal to
"Remediation Waste Management Site"
In the Final Rule
EPA has replaced the term "media
remediation site" with the more
descriptive term "remediation waste
management site." Commenters
generally supported the concept of a
media remediation site, but the term
"media remediation site" caused
confusion for some, because
"remediation site" implies an area that
Is being cleaned up, not, as is meant in
this case, an area where hazardous
remediation wastes are being managed.
Also, the proposed rule allowed only
contaminated media to be exempted
from Subtitle C requirements, and the
word "media" in the title "media
remediation site" was meant to
emphasize that the exemptions were
only for contaminated media. In today's
final rule, EPA is not exempting any
wastes from Subtitle C, and all
provisions of this final rule apply to all
remediation wastes, so the term
"media" is no longer needed in the
definition of the site.
These are the reasons EPA changed
the term from "media remediation site"
to "remediation waste management
site." Changes to the definition of the
proposed term are discussed later in this
section.
2. EPA has Created Different
Requirements for Remediation Waste
Management Sites Than for Facilities
Managing "As-generated" Hazardous
Wastes
Throughout today's rule and the
proposal, EPA has emphasized that, to
stimulate cleanup, it is important to
regulate remediation waste management
activities differently from as^generated
process waste management where
appropriate. This definition of
remediation waste management site
allows EPA to apply requirements to
remediation waste management
activities that are more appropriate for
the remediation scenario than the
current requirements that, until today's
rule, have applied to both remediation
waste management and as-generated
process waste management.
In today's rule, to facilitate prompt
and protective treatment, storage, and
disposal of hazardous remediation
wastes, EPA has created three new
requirements for remediation waste
management sites that are different from
those for other facilities:
• A new form of an RCRA permit for
treating, storing and disposing of
hazardous remediation wastes (a RAP)
that streamlines the permitting process
for remediation waste management sites
to allow cleanups to take place more
quickly (Part 270, Subpart H);
• Performance standards for
remediation waste management sites
that replace the detailed requirements in
Part 264 Subparts B, C, and D (General
Facility Standards, Preparedness and
Prevention and Contingency Plans and
Emergency Procedures) (§264. l(j)); and
• A provision excluding remediation
waste management sites from RCRA
§ 3004 (u)'s requirement for facility-wide
corrective action(§§264.1(j) and
264.101(d)).
As noted above, EPA believes it is
appropriate to regulate facilities that
manage as-generated process wastes and
those that manage remediation wastes
differently, and the designation of a
remediation waste management site
defines when the new provisions
unique to areas that manage remediation
wastes will apply.
3. Differences Between the Proposed
Definition of Media Remediation Site
and the Final Definition of Remediation
Waste Management Site
The definition of media remediation
site in the proposal which, like today's
definition of remediation waste
management site, was used to define
where reduced permitting requirements
would apply, was:
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 will 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
purposes of implementing corrective action
under 40 CFR 264.101, but may be subject to
such corrective action requirements if the site
is located within such a facility (as defined
in 40 CFR 260.10).
In response to the limitations to
"contaminated areas" and "areas in
close proximity," several commenters
identified specific situations where
those limitations might prevent owners
and operators from conducting
environmentally beneficial activities
under a RAP. These comments are
addressed in today's rule under new
§ 270.230, and the preamble discussion
of that section instead of in today's
definition.
EPA has removed from the proposed
definition the requirement that limits
media remediation sites to areas subject
to cleanup under State or Federal
authority, and wastes managed under ,
State or Federal remediation authorities.
EPA has always intended that today's
rule would promote voluntary initiation
of cleanup activities by people not
already required to conduct cleanup
under other authorities. EPA continues
to hope that this'will be a result of
today's rule.
Therefore, EPA has removed this
limitation to make it clear that people
voluntarily initiating cleanup can have
their properties designated 93
remediation waste management sites.
These activities would still ordinarily
require a RCRA permit (for example, a
RAP) if owner/operators were to treat,
store or dispose of hazardous
remediation wastes, so that the proper
requirements would be applied, and the
public would have the opportunity to
participate in the waste management
decisions.
Finally, EPA has kept in the final rule
the part of the proposed definition of
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Federal Register/Vol. 63. No..229/Monday. November 30. 1998/Rules and Regulations 65883
media remediation site that stated that
these were not facilities for
implementing facility-wide corrective
action. As discussed elsewhere in this
preamble, EPA believes that applying
3004 (u) and (v) and 3008 (h)
requirements to facilities hot already
subject to these requirements is such a
disincentive to voluntarily initiated
cleanup actions that people often
- choose options that do not require
permitting, rather than fjace such a
responsibility.
4. Remediation Waste Management Sites
Are Not Subject to Facility-wide
Corrective Action
Today's ^rule, like the proposal,
provides that a remediation waste
management site is not subject to the
requirements in RCRA section 3004 (u)
1 for facility-wide corrective action. EPA
believes, as discussed more fully in the
proposal, that requiring facility-wide
corrective action for facilities that are or
will be engaged in ongoing hazardous
waste management outside the context
of an environmentally beneficial
cleanup activity may properly be seen
as a quid pro quo for the costs of doing
business 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 a
necessary part of performing an act that
is environmentally beneficial (that is,
cleaning up a site). To view
remediation-only sites as traditional
hazardous waste facilities (which would
impose additional cleanup
responsibilities) can have the effect of
penalizing those who wish to clean up
their properties. EPA does not believe
that this result is one that Congress
intended.-(See 61 FR 18792-93).
The large majority of commenters on
this issue supported the interpretation,
because it is widely recognized that the
facility-wide corrective action
requirement often acts as disincentive to
cleanup of wastes subject to Subtitle C.
Some commenters, however, expressed
concern over the Agency's legal theory
supporting the interpretation. This
concern appears to stem from the
commenters' perception that the Agency
is making a purely semantic argument—
that is, that by being renamed "media
remediation sites," these sites are no
longer the "facilities" to which section
3004 (u) applies. ,
The Agency understands the
commenters' confusion on this point.
The corrective action requirement of
section 3004(u) applies to "a treatment,
storage, or disposal facility seeking a
permit." Today EPA clarifies that the
Agency's view is not that remediation-
only facilities do not constitute
"facilities" for RCRA purposes, but
simply that they should riot be
interpreted to be the "facilities seeking
a permit" to which the requirements 'in
section 3004 (u) apply. In the Agency's
opinion, the reference to "a treatment,
storage, or disposal facility seeking a
permit" clearly refers to facilities that
need permits because they are in the
business of hazardous waste
management. Remediation-only
facilities, because they only obtain a
permit to engage in remediation, do not
fit into that category.,EPA believes that
it is a reasonable interpretation of
section 3004 (u) that sites that are or, will
be conducting hazardous waste
management only as part of cleanup
'activities are not the types of facilities
to which Congress intended to apply the
section 3004 (u) facility-wide corrective
action requirements. (See 61 FR 18792-
93).
In addition, in light of the v
disincentive to cleanup created by
applying the facility-wide corrective
action requirement to remediation-only
facilities, to continue to apply the
requirement would appear to be
contrary to one of Congress' clear goals
in enacting section 3004(u)—to ensure
that currently unmanaged remediation
wastes that pose a risk to human health
and the environment are addressed.
Today's rule differs in one significant
respect from the proposal: this '
interpretation is no longer limited to
facilities that obtain RAPs, but also
applies to remediation-only facilities
that obtain traditional RCRA permits.
Thus, any facility that meets the
definition of a "remediation waste
management site" (promulgated today),
regardless of whether its hazardous .
waste management activities are
authorized by a RAP or traditional
RCRA permit, will not be subject to the
facility-wide corrective action
requirement. The Agency agrees with
the one commenter who argued that
there was no reason to limit the relief
from section 3004 (u) to facilities
' addressed under the RAP framework.
After all, because the RAP standards are
less stringent than existing
requirements, States may choose not to
adopt them as part of their authorized ,
programs. There is no reason to prevent
these States; however, from nonetheless
amending their programs to reflect the
section 3004 (u) interpretation finalized
today. Similarly, if a State not
authorized for .corrective action issues a
RCRA permit for remediation-only sites
(remediation waste management sites),
Federal corrective action requirements
will not attach.
Although the above discussion ••
stresses the use of RAPs as the vehicle
for permitting a remediation waste
management site and for applying the
benefits of RAPs, the new requirements
in §264.10),.and the elimination of
§264/101 facility-wide corrective action
through the new §264.101(d) provision
for remediation waste management sites
are not limited to sites permitted under
RAPs. States wishing to use the
traditional RCRA permits process for
activities at remediation waste .
management sites may do so, and the
other benefits of remediation waste
management sites (§264.10), and
264.101 (d)) continue to apply to
remediation waste management sites
under permits, as well as under RAPs.
The preamble discussion explaining the
need and rationale for these other
provisions can be found in the section
of the preamble discussing those
provisions.
5. Remediation Waste Management Sites
Are Excluded From Only the Second
Part of the Definition of Facility
This exclusion from the definition of
facility is strictly limited to the
definition of facility for purposes of
corrective action*- which is found in part
(2) of the definition of facility.
Remediation waste management sites
are not excluded from part (1) of the
definition of facility for other purposes.
6, Facility
EPA is revising the definition of
facility, (to make conforming changes
with the definition of remediation waste -
management site), as follows:
Faculty means ... (3) Notwithstanding
paragraph (2) of-this definition, a
remediation waste management site is
not a facility that is subject to §264.101,
but is subject to § 264.101 corrective
action requirements if the site.is located
within such a facility.
EPA requested comment on this
change to the definition of facility at
§260.10 of the proposal, and did not
receive any comments opposing this
change, and is therefore finalizing this
amendment with only two minor
changes.
First, the proposed rule language
stated that "notwithstanding (1) and
(2)" remediation waste management
sites were not subject to the facility-
wide corrective action requirement, but
on further reflection, it has become clear
that the reference to paragraph (1) was
an oversight. This'is because the
proposed definition clearly stated that
remediation waste management sites are
only not "facilities" "for the purposes of
§264.101." The facility definition in
paragraph (1) is not used for those
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65884 Federal Register/Vol. 63, No. 229/Monday, November 30, 1998/Rules and Regulations
purposes. In addition, because the
facility definition in paragraph (1) is
used in implementing the rest of the
RCRA hazardous waste regulations,
which continue to apply to activities at
remediation waste management sites,
paragraph (1) must remain applicable.
Second, the proposed definitional
change did not include the current
language that states "but may be subject
to such corrective action requirements if
the site is located within such a
facility." EPA has added this clause to
make the language consistent with the
definition of remediation waste
management site, which was included
in this language at proposal.
As the Agency stated in the preamble
to the proposed rule, this language is
meant to provide for the following
situation: "In some cases a media
remediation site could be part of an
operating (or closing) RCRA hazardous
waste management facility that is
already subject to the §3004(u) and (v)
corrective action requirements; in those
cases, identifying an area of the facility
as a media remediation site [today's
remediation waste management site]
would not have any effect on the
corrective action requirements for that
site or the rest of the facility." (61 FR
18793).
D. Staging Pile—A New Kind of Unit
The definition of staging pile states
that "[sjtaging pile means an
accumulation of solid, non-flowing
remediation waste (as defined in 40 CFR
260.10) that is not a containment
building and that is used only during
remedial operations for temporary
storage at a facility. Staging piles must
be designated by the Director according
to the requirements in 40 CFR
§264.554."
1. Differences Between the Definition of
Staging Pile and the Existing Definition
of Pile
This definition uses a slight alteration
of the definition of "pile," as defined in
§260.10 for waste piles (§264.250),
which better fits the purposes of today's
staging pile rule. The definition of pile
differs from the staging pile definition
in three ways; the definition of pile:
• Is limited to non-containerized
waste;
• Addresses the "accumulation of
solid, nonflowing hazardous waste,"
rather than "solid, nonflowing
remediation waste;" and
• Allows for "treatment or storage"
rather than simply temporary storage.
First, EPA believes it may often be
environmentally protective or simply
more convenient to move remediation
wastes in bags or other containers when
placing them into a staging pile.
Because bags may reduce blowing of
wastes in a pile, or volatilization of
hazardous constituents, EPA did not
want to eliminate the option of bagging,
or other protective activities, of wastes
in a staging pile.
Second, oecause today's rule does not
allow "as-generated" hazardous waste
to be stored or treated in a staging pile,
the rationale behind using the term
remediation waste rather than simply
hazardous waste should be clear. EPA
also included the "solid, non-flowing"
portion of the definition of pile to
ensure that liquid wastes will not be
placed in the staging pile. Liquid wastes
are inappropriate for storing in staging
piles because of the possibility of
releases and run-off.
Third, the definition of "piles" allows
both storage and treatment. However, as
discussed below, staging piles allow
only storage.
.2. Differences Between the Proposed
Definition of Remediation Pile and the
Final Definition of Staging Pile
In the proposed rule, the definition of
remediation pile reads that,
"[rjemediation [p]ile means a pile 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 was altered for a
number of reasons. First, the Agency felt
that including the term "pile" in the
staging pile definition would only serve
to confuse staging piles with waste
piles. Furthermore, because staging
piles will accept hazardous remediation
waste, rather than only hazardous
contaminated media for the reasons
previously discussed, this portion of the
definition also had to be changed.
Finally, treatment is not mentioned in
today's staging pile definition, because '
treatment will not be allowed in staging
piles. No commenters provided
comments directly addressing the
definition of remediation pile. For a
fuller discussion of staging piles, and
the comments EPA received, see the
discussion of staging piles in section VII
of this preamble.
E. Miscellaneous Unit—An Edit to the
Existing Definition
EPA is simply adding the unit
"staging pile" to the list of units
excluded from the definition of
miscellaneous unit. The revised
definition is as follows:
Miscellaneous Unit means a hazardous
waste management unit where hazardous
waste is treated, stored, or disposed of and
that is not a container, tank, surface
impoundment, pile, land treatment unit,
landfill, incinerator, boiler, industrial
furnace, underground injection well with
appropriate technical standards under 40
CFR Part 146, containment building,
cbrrective action management unit, unit
eligible for research, development, and
demonstration permit under §270.65, or
staging pile.
Miscellaneous units are meant to
cover units that do not have regulatory
provisions specific to that individual
type of unit. Because EPA is today
adding provisions for staging piles,
staging piles should likewise be
excluded from the definition of
miscellaneous units.
IV. Information on Remedial Action
Plans (RAPs) (§§ 270.2, 270.68 and
270.80—270.230)
General Information About RAPs
A. What Are EPA's Objectives for RAPs?
After considering the public
comments on the proposal, the Agency
crafted the final RAP regulation with the
following six objectives in mind:
One, RAPs should be suited to the
specifics of managing remediation waste
in the context of cleanup, both in
procedure and in substantive
requirements;
Two, RAPs should ensure compliance
with the applicable requirements for
safe hazardous remediation waste
management;
Three, RAPs should provide certainty
and protection to the permitted party, as
appropriate;
Four, the RAP approval process
should provide opportunities for
meaningful public involvement;
Five, because RAPs constitute RCRA
permits, the RAP approval process
must, at the least, follow'the statutory
minimum requirements for obtaining a
permit; and
Six, RAPs, and the RAP approval
process should accomplish the previous
objectives through the most streamlined,
reasonable, and understandable
regulations possible.
In today's rule, EPA believes that it
has reached a reasonable compromise
consistent with these objectives. In
summary, the RAP requirements
promulgated today:
• Significantly reduce procedural
steps in permitting, while retaining the
minimum statutory public participation
requirements and certain basic
permitting steps or conditions (for
example, permit appeal procedures);
• Replacing the detailed requirements
in §§ 270.3—270.66 with broader
performance standards;
• Significantly reducing and focusing
information requirements; and
• Removing the requirement for
facility-wide corrective action.
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Given this flexibility, EPA believes
. that it will be possible for EPA and
authorized States to develop RAPs that
are much more suited to cleanups than
are current RCRA permits—that is, a
RAP will generally fit the model of a
Superfund Record of Decision or an
approval of a cleanup workplan, rather
than that of a RCRA Part B permit. EPA
believes this flexibility is essential for
an effective cleanup program.
At the same time, EPA recognizes that
its approach to RAPs in today's rule
(and more broadly today's rule as a ,
whole) only partially solves the long-
standing problems associated with
remediations involving hazardous waste
regulated under RCRA Subtitle C. For
example, as EPA and others have long
emphasized, the statutory public
participation requirements .(newspaper
notices and radio spots) are highly
prescriptive without, in fact, ensuring
effective public involvement. EPA
. believes a more flexible approach could
better reflect the wide variety of cleanup
actions, while still providing a full
opportunity for public involvement.
EPA a,lso recognizes that it has made
less extensive changes to Subtitle C
permitting requirements as they apply
to remediation waste than some have
recommended. Indeed, EPA believes
that, in the long run, further changes are
appropriate.
For example, EPA has left the
substantive, unit-specific requirements
in 40 CFR part 264 intact (although the
Agency has added new flexibility for
staging piles), even though EPA
recognizes that these requirements do
not always make sense in a remedial
context. (For example, secondary
containment may not always be needed
for tanks within an area of
contamination.) EPA took this approach
in today's rule because it has not yet
aired these issues in detail in previous
proposals. EPA is deferring action here,
however, the issues are continuing to be
discussed more fully in the context of
possible statutory changes to RCRA.
In the meantime, EPA emphasizes .,
that today's rule, in combination with
existing rules and policies, provides
important flexibility in cleanup
scenarios. EPA not only expects that
today's rule, will provide significant
benefits; EPA also intends (and
encourages authorized States) to use
existing flexibility in EPA land disposal
standards for soils, the CAMU rule
(which today's rule is retaining), the
Agency's contained-in policy for
contaminated media, the AOC concept
for contaminated sites, and similar tools
to expedite effective cleanups. The
flexibility provided by today's rule
should be understood within this
broader context.
B. What Is a RAP? (§§270.68, 270.2 and
270.80)
§270.68 '
To make it clear that RAPs are subject
to different, more streamlined
requirements than other RCRA permits,
EPA created a separate Subpart (40 CFR
Part 270, Subpart H) for RAPs. The
provision in today's rule in §270.68 -
simply points readers who may look for
RAPs in the existing Subpart F (Special
Forms of Permits) to the section for ,
RAPs in the new Subpart H. ,
1. The Differences Between a RAP and '
a Traditional RCRA Permit
§§270.2 and 270.80(a)
EPA defines a RAP in §§270.2 and
270.80(a) as a "special form of RCRA
permit that you [a facility owner/
operator] may obtain instead of a permit,
issued under sections 270.3-270.66, to
authorize you to treat, store, or dispose
of hazardous remediation waste (as .
defined in §260.10) at a remediation
waste management site." Often,
remedies selected for cleanup sites
involve treating, storing or re-disposing
. of hazardous remediation waste. RCRA
permits are required whenever you
treat, store or dispose of hazardous
waste (unless a specific permit
exemption or exclusion applies).' Until
now, treating, storing or re-disposing of
hazardous remediation wastes required
the same type of permit as that for as-
generated process waste management.
Traditional RCRA permits, however,
were designed for operating hazardous
waste treatment, storage, and disposal
facilities managing as-generated process
wastes. The permit procedures,
requirements, and contents were
designed specifically for those
situations. Traditional RCRA permits
also require facility-wide corrective
action under RCRA Sections 3004 (u)
and (v). Many,of these requirements are
not well suited to cleanup activities.
, Section 270.80(a) also limits RAPs to
permit activities done in the area of
contamination or areas in close
proximity. This is because EPA
generally wishes to encourage owners,
and operators to conduct remediation
waste management activities on-site.,
EPA does allow RAPs for off-site
locations for limited circumstance
under § 270.230, when managing the
remediation waste off-site will be more
protective than managing it on-site.
2. Some Advantages of a RAP Compared
to a Traditional RCRA Permit
EPA believes that the traditional
RCRA permitting requirements are not
well suited for cleanup activities for
many reasons.
First, flexibility in public
participation for RAPs,' as opposed to
the more specific requirements for
traditional RCRA permits, is necessary
because cleanup activities vary greatly
in volumes of waste to be managed;
amount of time allocated for the project;
types of activities to take place; and
risks posed by the cleanup activities.
Also, EPA and State cleanup programs
generally involve ongoing dialogue with
the surrounding community about
choices of remedies and other
considerations. Many of these programs
have developed creative and successful
public participation strategies which
may vary slightly from specific
procedures that could be set out in a
nationally applicable Federal regulation.
Second, the more streamlined and
flexible requirements for RAPs are better
designed for the cleanup scenario than
requirements for traditional RCRA
permits in 40 CFR Part 270 because the
Part 270 standards are designed'
specifically to mirror and implement the
requirements throughout Subtitle C for
as-generated process wastes. As
discussed earlier, the Subtitle C
requirements are designed for the on-
going management of as-generated
waste, and are designed to be a "cradle-
to-grave" system of regulations that will
prevent new releases from the possible
mismanagement of hazardous wastes.
While this "cradle-to-grave" system has
been successful in preventing new
releases and in providing incentives to
minimize the amount of waste ,
generated, the system is often
cumbersome when applied to
remediation wastes. Remediation wastes
have already escaped into the
environment, and often are found in
unique volumes, matrices, mixtures, etc.
The nationally applicable Subtitle C
requirements do not often have the
flexibility to respond to unique
circumstances encountered at cleanup
sites. Therefore, the permitting
requirements based on the Subtitle C
requirements also do not have the
proper flexibility to respond to unique
circumstances encountered at cleanup
sites.
Third, information requirements for
traditional RCRA permits are generally
based on those nationally applicable
requirements mentioned above, and so
are not necessarily appropriate for all
cleanup sites:
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Fourth and finally, as discussed
below, EPA believes that requiring
facility-wide corrective action for all
new RAPs provides disincentives to
cleanups and to remedies that involve
excavating and treating or moving
wastes. These disincentives are
discussed below.
In implementing, overseeing, and
observing the hazardous waste cleanup
programs under RCRA Corrective
Action and State cleanup programs,
EPA has concluded that the requirement
to obtain a RCRA permit for on-s|te
treatment, storage or disposal of *
hazardous remediation wastes often acts
as a disincentive to cleanup,
particularly in the cases where the site
Is not otherwise subject to RCRA.
Cleanups may be desirable at these sites
for many reasons (for example, a State
or Federal cleanup authority might
determine that the site presents a
hazard; the facility owner/operator may
wish to clean up the property
voluntarily; or a potential future facility
owner may hope to acquire and reuse
the property.) Before today's rule, if
facility owners and operators of these
sites chose to treat, store, or dispose of
hazardous remediation wastes on-site,
they generally would be required to
obtain a RCRA permit, along with all the
requirements (including facility-wide
corrective action) that come with that
permit. Obtaining these permits can be
very time-consuming and expensive,
and facility-wide corrective action
provides a strong disincentive to any
action that would require a permit. This
requirement to obtain a RCRA permit,
especially the requirement for facility-
wide corrective action, was found by
EPA's Permits Improvements Team
(PIT)7 to be a major disincentive to
cleanup. A recent study by the
Government Accounting Office (GAO)
came to a similar conclusion.8 To avoid
having to secure a RCRA permit, many
remedial decision-makers often choose
options for remediation that avoid
application of the permit requirements,
such as capping in'place, which may
not be the best remedial option for the
site.
Under the streamlined approach to
permitting promulgated today, these
sites (which have sometimes been
i EPA's Permits Improvement Team (PIT) was
created in 1934 to Identify specific actions that
could be taken by EPA to increase the efficiency
and effectiveness of environmental permitting
programs. The PIT held numerous stakeholder
meetings throughout the country and prepared a
draft set of recommendations before it finished its
wofk In 1997.
* Hazardous Waste: Remediation Waste
Requirements Can Increase the Time and Cost of
Cleanups, U.S. General Accounting Office. GAO/
RCED-98-4. October 1997.
referred io as "remediation-only sites")
can receive a RAP for remediation waste
management activities that take place at
the site rather than a traditional RCRA
permit. EPA has designed the RAPs
process to be more streamlined than that
for existing permits to reduce
disincentives to cleanups. As opposed
to traditional RCRA permits, RAP
procedures, requirements, and contents
are designed specifically for the cleanup
scenario.
The differences between the processes
for receiving approval of RAPs and for
receiving approval of traditional permits
are described more fully in the sections
that follow, as well as in the section
entitled "Comparison of RAPs Process
to That for Other Permits."
As discussed more fully in the
preamble discussion of the definition of
remediation waste management site,
RAP recipients (other than those who
are already subject to the corrective
action requirements because of
independent RCRA permitting
requirements), are also not required to
perform facility-wide corrective action.
The regulatory language for the
exemption from the requirements in
RCRA sections 3004 (u) and (v) does not
actually appear in the RAPs section of
the regulatory language. Instead,
because the requirements for RCRA
sections 3004 (u) and (v) are
implemented through the regulatory
language at §264.101, the exemption
from these requirements in today's rule
is found in Part 264 at §§264.1 (j) and
264.101 (d), as well as in the definition
of remediation waste management site
and facility in § 260.10, instead of part
270.
RAPs cannot be used to permit
treatment, storage, and disposal of "as-
generated" process wastes. RAPs are
limited to authorizing the treatment,
storage, or disposal of hazardous
remediation wastes. As this preamble
discusses, the definition of remediation
waste is limited to wastes that are
managed to implement cleanup. This
does not include "as-generated" process
waste or wastes from any activities that
are not specifically implemented for the
purposes of cleanup.
3. Differences Between "Remediation
Management Plans" in the Proposal and
"Remedial Action Plans" in the Final
Rule
EPA proposed streamlined permits for
remediation-only sites under the name
Remediation Management Plans, or
RMPs. The RMP concept was proposed
at §§269.40 through 269.45. As in
today's rule, RMPs were proposed as a
special form of a permit for hazardous
remediation wastes; however, RMPs9 -
were also the vehicle by which EPA or
a State could exempt low-level
hazardous contaminated media from
Subtitle C management requirements,
and could impose any necessary site-
specific management requirements on
these wastes. As discussed in section II.
E. of this preamble, the Agency is not
finalizing the aspects of the proposed
rule that exempt hazardous remediation
waste from Subtitle C, but is finalizing
the streamlined permitting process for
treating, storing, and disposing of
hazardous remediation waste (that is,
wastes that would have remained
within Subtitle C jurisdiction under the
proposal). However, in the final rule,
EPA has named these permits Remedial
Action Plans or RAPs.
In today's rule, as in the proposal,
RAPs streamline the permitting process
but, unlike in the proposal, a RAP in
today's rule is not used to document
and enforce alternative management
requirements for remediation wastes
that are exempt from Subtitle C.
Hazardous remediation wastes remain
subject to the applicable requirements
in parts 260-271. Many of the
provisions of the proposed RMPs have
been eliminated or revised to
accommodate this change.
The specific differences between
RMPs, as proposed, and RAPs, as
finalized, are discussed under the
description of each section of the final
regulation. EPA emphasizes that the
contained-in principle, which provided
a legal rationale for the proposed
approach exempting low-level
contaminated media, remains an
existing EPA policy. EPA continues to
encourage States to apply this policy,
where appropriate, to expedite
cleanups.
Section 270.80(b)
In § 270.80(b) EPA states that the
requirements in §§270.3-270.66 do not
apply to RAPs unless those traditional
RCRA permit requirements are
specifically required under §§270.80-
270.230, but that the definitions in
§ 270.2 do apply to RAPs. This is meant
simply to identify those requirements
that apply to RAPs and those that do
not. Where appropriate, the RAPs
requirements in Subpart H include their
own provisions instead of those in
§§270.3-270.66.
Section 270.80 (c)
In addition, new §270.80(c) provides
that, notwithstanding any other
9 EPA has chosen to use the term RAP in the final
rule because it is more commonly understood than
RMP.
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Federal Register/Vol. 63, No. 229/Monday. November 30. 1998/Rules and Regulations 65887
provision of [Part 270] or Part 124, any
document that meets the requirements
in this section constitutes a RCRA
permit under RCRA section 3005 (c).
This is to ensure that, although RAPs
may not be expressly referred to in other
provisions of Parts 270 and 124, they are
indeed RCRA permits. Although today's
rule contains additional language to
enhance the reader's understanding, '
these two new provisions are the same
as proposed at §269.40(c). The Agency
did not receive any negative comments
on this provision, and has therefore
finalized the approach as proposed.
Section 270.80(d)
To facilitate streamlining at cleanup
sites, EPA included the provision at
§ 270.80(d), which states that a RAP
may be either: (1) a stand-alone
document that includes only the
information and conditions required by
this Subpart; or (2) part (or parts) of
another document that includes
information and/or conditions for other
activities at the remediation waste
management site, in addition to the
information and conditions required by
this Subpart.
EPA anticipates that RAPs will often
be granted at the same time that other
decisions, such as remedy selection, are
made at a cleanup site. Under the
cleanup program, the facility owner/
operator or the Director may be
preparing other documents, such as
remedy decision documents, which may
cover much if not all of what a RAP will
cover. EPA has included this provision
to make it clear that the facility owner/
operator and the Director do not have to
duplicate efforts, and can create one
document that serves both purposes.
This approach was proposed at
§ 269.40(e), and again, the Agency did
not receive any negative comment on "
this provision. In this case;—where the
issuing authority is an authorized
State—only the portion of the RAP
imposed under today's rule will be
enforceable as part of the Federal RCRA
program. , -
Section 270.80(e)
Throughout the development of the
HWIR-media rule, there has been much
confusion about the relationship •
between RAPs and cleanup
requirements. Notwithstanding the
confusion, EPA believes this is a very
simple relationship. Cleanup programs
dictate the goals of cleanup (that is,
"how clean is clean" and how to select
remedies, investigate sites, and conduct
other related activities). Frequently, the
remedies selected under these cleanup
programs involve treating, storing, or
disposing of hazardous remediation
wastes in a way that would require a ~
RCRA permit.
RAPs are simply the permitting
mechanism for authorizing (according to
RCRA requirements) this treatment,
storage or disposal. In §270.80(e), EPA
has clarified that," if you are treating,
storing or disposing of hazardous
remediation wastes as part of a cleanup
compelled by Federal or State cleanup
authorities, your RAP does not affect
your cleanup obligations under those
authorities in any way. The RAP does
not affect "how clean is clean" (cleanup
standards), and does not affect, in any
way, existing legal obligations to
perform cleanup -actions. This was
proposed at §269.1(c), and the Agency
did not receive any negative comments,
on this provision, and so it is being
finalized as proposed, except for edits to
make it easier to understand.
Section 270.80(f)
New § 270.80(f) provides that interim
status facilities that treat, store or
dispose of remediation waste under a
RAP will not lose their interim status by
virtue of receiving an approved RAP,
because the RAP applies only to the
remediation waste management
activities that take.place as a result of
the cleanup, and not to any obligations
under other authorities.
Under today's rule RAPs can now be
used to designate CAMUs, temporary
units and staging piles (as well as other
non-combustion remediation waste
management units and operations).
Owner/operators of interim status
facilities who wish to construct CAMUs,
temporary units or staging piles may
now apply for a RAP as the vehicle for
imposing the site-specific requirements,
providing a mechanism for enforcing
those requirements and providing for
public participation. RAPs provide for
all three of these functions, and may be
a desirable alternative to a 3008 (h)
enforcement order.
EPA is concerned that allowing a RAP
at an interim status facility may cause
confusion about the impact on that
facility's interim status, and therefore
has included §270.80(f). Because RAPs
are RCRA permits, and because permit
issuance at an interim status facility
often terminates interim status for that
facility, 'EPA is concerned that some
may think that issuing a RAP at an
interim status facility terminates that
facility's interim status. Existing
§ 270.1 (c) (4) already provides that, if
EPA issues or denies a permit for one
or more units at a facility without
simultaneously issuing or denying a
permit to all units at the facility, this
does not affect the interim status for any
unit for which a permit has not been
issued or denied. Section 270.80(f) in
today's rule serves a similar function by
.providing that RAP issuance does not
terminate interim status for the other
parts of the facility not covered by the
RAP (or for facility-wide corrective
action purposes).
EPA did not specifically propose this
provision, but has included'it in the
final rule to avoid confusion. In the
proposed rule (see for example, 61 FR
18791), EPA stated that these provisions
would be implemented under many
different programs and agencies. In the
proposed rule at 61 FR 18814, EPA gave
, examples of CERCLA sites and
permitted treatment, storage and
disposal facilities (TSDFs), but did not
clarify how these requirements would
apply at interim status TSDFs. This was
an oversight and is corrected by
§ 270.80(f) in today's final rule.
C. When Do I Need a RAP? (§270.85)
Section 270.85(a)
Section 270.85(a) states that
"whenever you treat, store, or dispose of
hazardous remediation waste in a,
manner that requires a RCRA permit
under § 270.1, you must either obtain:
(1) a RCRA permit according to
§§270.3—270.66 of [Part 270]; or (2) a
RAP according to [Part 270 Subpart H]."
1 .What Activities Require RCRA
Permits?
Section 270.1 describes what
activities require RCRA permits. If the
facility owner/operator intends to
perform activities that require permits,
but is managing only hazardous
remediation waste and not as-generated
process wastes, he may take advantage
of the streamlined procedures for RAPs,
or may obtain a traditional RCRA
permit. There are also instances where
treating, storing or disposing of
remediation wastes do not require a
RCRA permit. Today's rule, like the
proposal, will not change, in any way,
when a RCRA permit is required. Thus,
no RAP. is needed where a permit would
not otherwise be required.
One example of when neither RAPs
nor traditional RCRA permits would be
required is CERCLA removal and
remedial actions. CERCLA Section
121(e) grants a RCRA permit waiver for
on-site response actions selected under
CERCLA Section 121. Generally,
however, a Record of Decision, (ROD) or
other CERCLA decision document
would specify the requirements for
complying with the substantive RCRA
Subtitle C requirements for treating,
storing, or disposing of remediation
waste on-site. Another example would
be when State that is authorized to
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65888 Federal Register/Vol. 63, No. 229/Monday, November 30, 1998/Rules and Regulations
implement the RCRA program has a
permit waiver authority that is
analogous to EPA's authority under
CERCLA Section 121 (e) or RCRA
Section 7003. This permit waiver policy
Is described in a memorandum from J.
Winston Porter, Assistant
Administrator, Office of Solid Waste
and Emergency Response, EPA to
Regional Administrators, Regions I—X,
EPA, (November 16, 1987) available in
the docket to today's rule. Today's rule
does not change or affect this policy in
any way.
In addition, facility owner/operators
may manage hazardous remediation
wastes in a way that does not require a
RCRA permit. For example,
contaminated remediation wastes can be
capped in place, or excavated and
transported off-site to a designated,
permitted facility for treatment or
disposal. Another example is that
wastes can be treated or stored on-site
in units that are exempt from permitting
requirements, such as wastewater
treatment units. (See 40 CFR
§§264.l(g)(6), 265.1(c)(10), and
270.1 (c) (2) (v)). Still another example is
that remediation wastes can be treated
or stored on-site for less than 90 days in
tanks, containers, or containment
buildings (see 40 CFR 262.34), which
also does not require a permit.
Sect/on 270.85(b)
In the proposed rule at §269.43(f),
EPA proposed that RMPs involving on-
site combustion of hazardous
remediation wastes would have to
follow the requirements for issuance of
RCRA permits in 40 CFR parts 270 and
124, and would not be eligible to obtain
RMPs. EPA has finalized that
requirement at new §270.85(b).
EPA received one negative comment
on that provision, which stated that the
Agency had not demonstrated how
combustion of hazardous remediation
waste is different from other
management techniques. However, the
Agency continues to believe, as stated in
the preamble to the proposed rule (61
FR 18818). that it is necessary to include
this provision because §§270.16 and
270.62 include requirements for trial
burns and other important procedures
for incinerators that EPA continues to
believe are necessary, even for
combustion units handling hazardous
remediation waste. Also there is a high
level of public interest in hazardous
waste combustion, which EPA believes
merits the extra public participation
steps of the traditional RCRA permitting
process.
Another commenter asked that EPA
clarify the procedures required for
permitting of combustion units under
RAPs. The proposed rule stated that "for
remedial actions involving on-site
combustion of hazardous remediation
wastes, the procedural requirements for
issuance,of RCRA permits .. . shall at
a minimum be followed for review and
approval of RMPs [which are RAPs in
today's final rule]." This language led to
confusion over what requirements are
considered "procedural." Today's final
rule states that " [treatment units that
utilize combustion of hazardous
remediation wastes at a remediation
waste management site are not eligible
for RAPs under this Subpart."
EPA believes that this revised
regulatory language makes it clear that
permitting for combustion units does
not follow any of the RAP requirements,
but instead the traditional RCRA
permitting requirements. (However, 40
CFR 264.101 (d) of today's rule would
exempt a facility receiving a permit for
a combustion unit from facility-wide
corrective action, if that facility were a
remediation-only site (remediation
waste management site).)
§270.85(c)
The proposed rule provided for the
situation where a facility owner/
operator permitted for on-going
hazardous waste operations sought a
RAP for cleanup activities at the facility.
Under the proposed rule, a facility
owner/operator might desire a RAP for
two reasons—the RAP was the vehicle
by which remediation wastes could
become exempt from Subtitle C, and, for
wastes that remained in Subtitle C, the
application and procedural
requirements for RAPs were more
streamlined and better tailored to the
remediation scenario.
To accommodate these situations, the
proposed rule would have allowed i
traditional RCRA permits to serve as
RAPs (§269.40(e)(2)), and also would
have allowed the permitted facility to
obtain a RAP, which would only cover
the remedial operations at a site, in
addition to its RCRA permit, (see 61 FR
18814). Because under the final rule,
RAPs are not a vehicle for obtaining an
exemption from Subtitle C, there is no
need to finalize the proposed rule
provision allowing traditional RCRA
permits to serve as RAPs. On the other
hand, the Agency continues to believe it
is appropriate to allow permitted
facilities to obtain the benefits provided
by the RAP format and has crafted
today's rule accordingly.
Specifically, today's rule (§ 270.85 (c))
states:
You may obtain a RAP for managing
hazardous remediation waste at an already
permitted RCRA facility. You must have
these RAPs approved as a modification to
your existing permit according to the
requirements in §§270.41 or 270.42 instead
of the requirements in this Subpart. When
you submit an application for such a
modification, however, the information
requirements in §270.42(a)(l)(i), (b)(l)(iv),
and (c)(l)(iv) do not apply; instead, you must
submit the information required under
§ 270.110. When your permit is modified, the
RAP becomes part of the RCRA permit.
Therefore when your permit (including the
RAP portion) is modified, revoked and
reissued, terminated, or when it expires, it
will be modified according to the applicable
requirements in §§270.40 through 270.42,
revoked and reissued according to the
applicable requirements in §§270.41 and 43,
terminated according to the applicable
requirements in § 270.43, and expire
according to the applicable requirements in
§§270.50 and 270.51.
This approach differs from the
proposal in that a facility with a permit
covering ongoing hazardous waste
operations would not obtain a RAP as a
separate authorizing document for the
hazardous waste management activities
conducted during the course of cleanup.
The Agency made this change to avoid
potential overlaps, gaps or confusion in
having two authorizing documents at
one facility. Instead, the rule provides
that a RAP at a permitted facility be
integrated into the permit as a permit
modification. Thus, the more
streamlined RAP application content
requirements in § 270.110 apply, but the
procedures for RAP approval in these
cases are the permit modification
procedures § 270.41 or § 270.42.
The Agency chose the permit
modification procedures over the RAP
procedures because it believes that
establishing two different procedures for
permit modifications—depending on
whether you were modifying permits to
include a RAP, or doing any other form
of permit modification under §§270.41
and 270.42—would be unnecessarily
confusing.
Comments were mixed. Two
commenters stated that the proposed
rule was.unclear as to how RAPs would
apply at facilities that already had a
RCRA permit. One commenter said that
EPA should not require both a RAP and
a permit for the same activity. Another
commenter suggested amending permits
to require compliance with RAPs. Two
other commenters disagreed with each
other. One stated that RAPs would be
beneficial because they would avoid the
cumbersome and costly permit
modification process. The other stated
that it was unnecessary and
inappropriate to allow separate and less
rigorous procedures at facilities already
subject to permitting. EPA agrees with
this commenter to the extent that
today's rule requires issuance,
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Federal Register/Vol. 63. No. 229/Monday. November 30. 1998/Rules and Regulations .65889
modification, revocation and reissuance,
and termination of RAPs through
standard permit procedures at permitted
facilities. But, EPA also believes that the
relief provided by the content
requirements for RAPs at §270.100
should be available at permitted
facilities. EPA developed the standards
of today's rule with cleanups
specifically in mind. The Agency
believes that they are generally
appropriate for cleanups taking place at
TSDs, as well as to cleanups taking
place under RAPs elsewhere.
There are three classes of
modifications for traditional permits,
Classes 1, 2, and 3. When modifying a
permit to incorporate a RAP, the
Director and the facility owner/operator
must follow the Class modification
procedure that is appropriate for the
activities being permitted under the
RAP. The last sentence of new
§ 270.85(c) provides that once the RAP
is part of the permit, the applicable
permit procedures must be followed for
• modification, revocation and reissuance,
termination and expiration. However,
the content requirements for RAPs will -
always remain those in § 270.110, EPA
included this provision to avoid
confusion about which requirements
apply when making changes to RAPs
that are part of RCRA permits.
This does not mean that RAPs at
permitted facilities must follow two
procedures, one for approval of the RAP
and one for permit modification. On the
contrary, RAPs at permitted facilities
need only follow one process, the
permit modification procedure, to
receive approval.
D. Does my RAP Grant me Any Rights
or Relieve me of Any Obligations?
(§270.90).
Today's rule at new § 270.90 applies
the § 270.4 provisions to RAPs. Section
270.4(a) is known as "permit as a
shield," and protects the facility owner/
operator in that as long as they comply
with the terms of their RAP, they will
be considered in compliance with RCRA
Subtitle C for enforcement purposes,
except for the four exceptions noted
below. This means that EPA will not
take enforcement actions against facility
owner/operators for activities that are in
compliance with their RAP, unless one
of the four exceptions in §270.4(a)
applies. Although the proposed rule did
not contain this provision, EPA
requested comment on applying it at 61
FR18815 of the proposal.
One commenter expressed concern ,
about EPA granting "permit as a shield"
to RAPs, arguing'that the shield concept
presumes that all RAPs will be properly
drafted, and that this presumption is
inappropriate, given the Agency's own
acknowledgment, embodied in the
proposed rule's requirements for State
HWIR-media program withdrawal, that
improper drafting may occur. Several
other commenters, however, stated that
it is appropriate to specify that
compliance with a RAP constitutes
compliance with RCRA.
The Agency agrees with these latter .
commenters. The Agency believes that
including this provision is necessary to
provide facility owners and operators
with a measure of assurance that
.activities performed under an approved
RAP will be recognized by the Agency
as satisfying Subtitle C requirements for
those activities expressly addressed and
permitted by the RAP. EPA articulated'
the rationale for a "shield" provision in
the May, 19 1980 final rule, which
established this provision for permits
(see 45 FR 33311). Specifically, EPA
stated: ,
EPA believes that this "shield" provision
is one of the central features of EPA's attempt
to provide permittees with maximum . .
certainty during the fixed'terms of permits.
. . . This new provision gives a permittee the
security of knowing that, if it complies with
its permit, it will not be enforced against for
violating some requirement of the
appropriate Act [e.g. , RCRA] which was not
a requirements of the permit. . . EPA agrees
that one of the most useful purposes of "
issuing a permit is to prescribe with
specificity the requirements that a facility
will have to meet, both so that the facility can
plan and operate with knowledge of what
rules apply, and so the permitting authority
can redirect its standard-setting efforts
.elsewhere. If all the 3004 standards were
fully enforceable against a permitted RCRA
facility even though they were not reflected
in the permit (or, perhaps, not consistent ,
with it), facilities would be exposed to
unavoidable uncertainty as to the standing of
their operations under the law. In addition,
such a provision would increase pressure on
EPA and States to keep permit conditions '
applicable to a given facility in a perpetual
state of re-examination. EPA's resources will
at most be barely sufficient to issue and
renew RCRA permits, and review State
permits, at the time of their initial issuance
.and periodic renewal. EPA and States are'
likely to make much better use of their
resources if they restrict examination of
permits between issuance and renewal to
monitoring compliance and taking
enforcement action where necessary...," [The
shield] now places the .burden on permit
writers rather than permittees to search
through the applicable regulations and
correctly apply them to the permittee through
its permit. This means that a permittee may
rely on its . . . permit document to know the
extent of its enforceable duties.
With regards to the commenter who
was concerned about granting "permit
as a shield" to RAPs, EPA believes that
the commenters concerns are alleviated
by the differences between the proposed
and the final rule. RAPs under the •
proposed rule performed a different
function from RAPs under the final rule.
In the proposed rule, RAPs were the
vehicle for excluding remediation
wastes fromtSubtitle C requirements and
instead imposed site-specific
requirements on these wastes. The
commenter who was concerned about
the permit as a shield provision may
have been concerned that a poorly
written RAP might include site-specific
requirements for wastes excluded from
Subtitle C that were not protective of
human health and the environment.
Because today's final rule does not
exclude any wastes from Subtitle C
requirements,.that is no longer a .
concern. / . -
As mentioned above, §270.4(a)
includes four exceptions to the "shield"
provision. Specifically, the permit does
not shield the facility owner/operator
from enforcement for requirements not
included in the permit which:
(1) Become effective by statute;
(2) Are promulgated under Part 268 of
this chapter restricting the placement of
hazardous wastes in or on the land;
(3) Are promulgated under Part 264 of
this chapter regarding leak detection
systems; or
(4) are promulgated under Subparts
AA, BB or CC of Part 265 of this chapter
limiting air emissions. :
With respect to the fourth exception,
under §264.1080(b)(5) the requirements
in Part 264 Subpart CC do not apply to
"a waste management unit that is used
solely for on-site treatment or storage of
hazardous waste that is generated as the
result of implementing remedial
activities required under the corrective
action authorities of RCRA sections
3004 (u), 3004 (v) or 3008(h), CERCLA
authorities, or similar Federal or State
authorities." Therefore, remediation
waste management units permitted by
RAPs will not be subject to Subpart CC
requirements. EPA expects that any of
these four exceptions to the shield,
especially numbers (3) and (4), will
often not be relevant to activities taking
place under RAPs.
Also,, in the same way as for
traditional RCRA permits, the shield
provisions cover only activities that are
authorized by the RAP, not any other
hazardous waste management activities
the facility owner/operator may perform
at the site. For example, if the RAP
covers a treatment unit, then activities
performed in compliance with the RAP
requirements for that treatment unit are
covered by the "shield."'
However, if the operator decides to
build and use a disposal unit on-site
that is not addressed in the RAP, the
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65890 Federal Register/Vol. 63. No. 229/Monday. November 30. 1998/Rules and Regulations
proceeding with his knowledge and
approval, and to put the facility owner
on notice of potential liabilities. Where
it is difficult to get a facility owner to
agree to a RAP, EPA may find that an
enforcement action is more appropriate
than a permit.
As proposed (§269.43(b)), §270:105
in today's rule requires the RAP
application to be signed according to
§ 270.11. The requirements in
§ 270.11 (a) specify the appropriate
person to sign the RAP application in
the case of a corporation, partnership,
sole proprietorship, municipality, State,
Federal, or other public agency. Section
270.11 (b) requires that any reports
required by the RAP be signed by the
person specified in § 270.11 (a) or a duly
authorized representative. Section
270.11 (c) describes what to do if •
authorization under § 270.11 (b) changes.
Section 270.11 (d) requires a person
signing a document under §270.11 (a) ,or
(b) to certify that the documents were
prepared under their direction, that the
information is accurate and complete,
and that they understand the penalties
of submitting false information. EPA has
provided that the facility owner may
choose an alternative certification under
§ 270.11 (d) (2) if the operator certifies
under § 270. ll(d)(l).
After reviewing comments on the
respective role of the operator and the
land owner, EPA concluded that a less
rigorous certification may be
appropriate for the land owner, if the
operator is more familiar with the
cleanup activities than the facility
owner. As explained earlier, EPA
expects that the operator will be
preparing the RAP application and will
be familiar with its details. He will also
be responsible for carrying out the
cleanup. Therefore, it makes sense to
have the operator provide the
certification. At the same time, as a
signatory to the permit, the landowner
remains jointly and severally liable with
the operator, and EPA retains the ability
to enforce the terms of the RAP-against
the landowner where this enforcement
is appropriate in EPA's discretion.
EPA believes that the less rigorous
certification in § 270.11 (d) (2) is
appropriate because it continues to
require the facility owner to make
appropriate inquiries and provide any
information he has about the property
that will be the subject of the RAP.
Other than general comments on who
should submit the permit application,
EPA did not receive comment on these
requirements. Therefore, with this one '
exception, EPA has finalized the
requirements as proposed.
operator must either obtain a
modification to the RAP, or a traditional
RCRA permit for that new activity, or
they will not be shielded from an
enforcement action under RCRA for
operating that unit without a permit. In
no way does this provision be shield a
facility owner or operator from an
enforcement action for a RCRA violation
for any as-generated waste management
requirements (as those activities are
excluded from coverage under RAPs).
Finally, because a RAP is simply a
permitting mechanism for managing
remediation waste, but does not address
cleanup obligations, §270.4 (a) does not
shield a facility owner/operator from
cleanup obligations that apply to
facilities subject to Federal or State
remedial authorities.
Section 270.4 (b) and (c) address
property rights, privileges, and
authorization of injury, invasion of
rights, or infringement of State or local
law or regulations. Because the Agency
received no adverse comments on these
provisions proposed at §269.40(f) and
(g), and because they were the same as
§ 270.4 (b) and (c) for traditional RCRA
permits. EPA is not creating new
provisions specific to RAPs, but is
applying the identical § 270.4 (b) and (c)
provisions to RAPs as proposed.
Applying for a RAP
E, How do I Apply for a RAP? (§270.95)
The first step towards obtaining RAP
approval is to apply for a RAP. This
section simply states that to apply for a
RAP the owner/operator must complete
an application, sign it, and submit it to
the Director accordihg to the
requirements in part 270 Subpart H.
R Who Must Obtain a RAP? (§270.100)
This requirement explains that if the
site is owned by one person, but the
activities are operated by another
person, then it is the operator's duty to
obtain a RAP, except that the facility
owner must also sign the RAP
application. It mirrors the requirement
for other permits in §270.10(b). The
operator is the person responsible for
the activity being permitted by the RAP,
is the most familiar with the proposed
activity, and is therefore, the most
reasonable choice for who should be
responsible for obtaining the RAP. The
proposed rule stated that "the owner/
operator must receive approval by the
Director of a Remediation Management
Plan (RMP)." The proposal did not
distinguish between the facility owner
and operator, but the Agency believes
that this provision of today's rule will
provide additional clarity about who is
responsible for obtaining a RAP.
G. Who Must Sign an Application for a
RAP? (§270.105)
The proposed rule (at §269.43(b)>
(like the final rule today) required both
the facility owner and operator to sign
the application for a RAP according to
§ 270.11. Their signatures are meant to
certify that the information contained in
the RAP application, to the best of the
signatory's knowledge and belief, is
true, accurate, and complete (see
§270.11 (d)).
In response to the Agency's request
for comment on whether signatures of
both the facility owner and operator
should be required (61 FR 18817),
several commenters objected to the
proposed requirement, pointing out that
in many instances one party may take a
completely passive role in the cleanup
process. One commenter pointed out
that the current owner of a site may not
have technical involvement in the
cleanup or may be unwilling to commit
resources to the cleanup.
These commenters felt that it could
obstruct or delay cleanup efforts if both
parties are required to sign the RAP
application, especially if the passive
party was fearful of incurring liability
by signing. Other commenters felt that
both parties should be required to sign
the RAP application (as is required for
traditional RCRA permits) as an
indication that they both agree with the
provisions in it. One of these latter
commenters pointed out that States,still
hold the facility owner responsible for
activities on his property regardless of
whether another party operates the site.
This commenter felt that requiring the
facility owner to sign as well as the
operator would signify that the property
owner is aware of the activities
occurring on his property.
EPA has sympathy with commenters
on this issue who argue that in some
cases owners may take a passive role,
especially with respect to how the
remediation waste is managed. At the
same time, EPA notes that, under the
statute, RCRA permits must be issued to
both the owner and the operator. EPA
also believes that owners, as well as
operators, should ordinarily be
responsible for the conduct of cleanup
activities. Finally, owners may know
about activities on the property that the
operator is not involved in or aware of,
and can provide valuable information
for the permit. To be sure, one of the
prime justifications for requiring the
facility owner's signature on the
permit—that the facility owner is liable
for facility-wide corrective action—does
not apply in this case. Nevertheless, the
facility owner's signature is generally
important to confirm that the cleanup is
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H. What Must I Include in My
Application for a RAP? (§ 270.110)
.1. Description of the Specific Content
Requirements
This subsection lists the specific
pieces of information that the owner/
operator must include in a RAP
application, and also requires the
facility owner/operator to submit any
other information the Director considers
necessary. The information required
under § 270.110(a) through (e) includes
names and addresses, latitude and
. longitude of the site, a map showing-site
location, and scaled drawings of the
remediation waste management site
features and boundaries.
The proposal did not explicitly list in
the "Content of RMPs" section the
information required in the final rule
under §270.110(a) through (e).
However, these details were suggested
by a commenter on the proposal. EPA
expected that this information would
generally have been required under the
proposed rule. Because the information
would be important in identifying the
activities to be authorized by a RAP, the
information generally would either have
been included in the RAP application,
or if not, would have been required by
the Director under the proposed .
§ 269.41 (c) (10) ("other information
determined by the Director to be
necessary").
The Agency, however, agrees with the
commenter that it should be added as an
express requirement, to avoid any
unnecessary delay caused by an
applicant's failure to submit it in the
first instance. In addition, these
information requirements are similar to
the types of information required under
a Part A application in §270.13,
although better tailored to the
remediation scenario.
New § 270.110(f) requires the
application to specify the hazardous
remediation waste to be treated, stored,
or disposed of, to estimate the quantity
of waste to be managed, and to describe
the processes to be used for treating,
storing, and disposing of the waste. This
provision finalizes appropriate aspects
of what was required under proposed
§§269.41 (c)(l) through (6).
Specifically, the proposed rule differs
from the rule promulgated today in that
it required information regarding not
only what under today's rule- constitutes
"hazardous remediation waste," but
also what constitutes "non-hazardous
contaminated media." The Agency has
eliminated references to "non-
hazardous contaminated media"
because, as discussed more fully in
preamble section II. E., EPA has decided
not to finalize any of the approaches
from the proposal that would have
excluded remediation waste from
Subtitle C, and had the'RAP address
non-hazardous media. The Agency has
therefore eliminated requirements that
were proposed to implement that
portion of the proposed rule (proposed
§269.41(c)(l)and(3)).
Section 270.110(g) requires the
facility owner/operator to submit
information to demonstrate that the
remediation wastes will be managed
according to the applicable hazardous
waste management requirements found
in. Parts 264, 266 and 268. This
provision finalizes the proposed
provision of §269.43(c)(2). Although
many commenters would have preferred
all remediation wastes to be exempt
from the Subtitle C requirements,
including Parts 264, 266 and 268, for the
reasons discussed earlier in this .
preamble, the Agency has decided not,
to finalize either the Bright Line or
Unitary approaches which would have
exempted remediation wastes from
Subtitle C, and therefore, all hazardous
remediation wastes remain subject to
these requirements. •
This flexible requirement replaces the
detailed, unit-specific requirements in
40 CFR 270.14 through 270.27 that
apply to traditional RCRA permits, and
which lay out the information, required
in a Part B permit application. EPA has
taken this more flexible approach, both
because of the wide variation in cleanup
activities, and because of the Agency's
interest in streamlining the permit
process for remediation activities. In
implementing current remedial
programs, including CERCLA and EPA's
RCRA enforcement programs, the
regulated community, the regulators,
and interested members of the public
successfully work together to develop
enforceable remediation plans,,and EPA
believes there is no need for the Agency
at this point to mandate detailed <
"information" requirements for RAPs
based on part B requirements. Thus
today's rule simply requires the RAP
applicant to'provide enough
information to demonstrate compliance.
Section 270.110(h) requires the RAP
applicant to submit enough information
for the Director to comply with other
Acts, as required for traditional RCRA
permits.under §270.14(b)(20). In .
approving any form of permit, the
Director must comply with the
requirements in other applicable laws, '
and therefore, may need information
from the RAP applicant to determine the
applicability of these other Acts. This •.
was not specifically discussed in the
proposal, but where applicable, could
have been required under proposed
§ 269.41 (c)(10). The Agency believes
that making this requirement explicit
will eliminate delays that might result
from any potential confusion on this
point.
The wide variation in possible
hazardous remediation waste
management that may take place under
RAPs makes it difficult to anticipate all
of the Director's information needs.
Therefore, §270.110(i) requires the RAP
applicant to submit any other •
information the Director determines to .""
' be necessary for demonstrating
compliance with the provisions of
Subpart H of part 270 or for determining
additional conditions necessary to ^
protect human health and the
environment.
The first part of § 270.110(i) was
proposed at §260.4 l(c) (10); because
EPA received no comment on this -
provision, it is finalized as proposed.
The second part § 270.110(i) about
information for determining additional
conditions necessary to protect human
health and the environment simply
makes express the Director's authority
to request information necessary to
enable him to fulfill his duty under the
"omnibus" authority of RCRA section
3005 (c) to include conditions in permits
necessary to protect human health and
the environment. This statutory
provision is codified in today's rule at
§270.135(b)(4).
All of the information required under
§ 270.110 forms the basis for the
Director's determination of whether or
not to approve the RAP application. The
Agency expects RAPs to be more
streamlined tharf traditional permits and
therefore expects that, as a general
.matter, the information the facility
owner/operator will heed to submit for
a RAP application will be significantly
less than is traditionally required'for a
RCRA Part B permit application under
§§ 270.14 through 270.27. This is
because the specific Part B requirements
for units, which are much more
extensive that what is required by
today's rule, were designed with long-
term operation of a TSDF in mind. This
operation is generally very different
from the activities that take place as part
of a one-time remediation waste
management activity.10
Also, the Agency believes that, due to
the wide range of activities that might
take place under a RAP, it is more
appropriate to provide: flexibility so that
the appropriate amount of information
can be determined by the site-specific
action. RAPs may permit many different
10 It should be noted that EPA is also developing
a proposal to streamline (and in most cases
eliminate)'information requirements for RCRA
permits covering on-site storage or treatment of
hazardous waste in tanks or containers.
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"65892 Federal Register/Vol. 63, No. 229/Monday, November 30, 1998/Rules and Regulations
types of activities, from on-site storage
of investigation-derived waste to
treatment and permanent disposal
under RCRA requirements. EPA has
allowed considerable flexibility in what
information is required to be submitted,
to allow for the variation in the types of
activities being performed under a RAP,
and the anticipated generally shorter
time-frames for remediation waste
management activities.
2. Comments on the Contents of RAPs
Several commenters agreed with
EPA's basic framework for the contents
of RAP applications. Commenters
suggested additional information that
should be included in a RAP
application if it were the vehicle for
determining when hazardous
contaminated media could be exempt
from Subtitle C. but because the RAP is
not serving that function, those
comments no longer apply. One
commenter was concerned that EPA
would require information on
management of wastes off-site, but that
information is not required in today's
rule.
One commenter was concerned that
the requirements to include volumes of
the waste being managed would require
excessive site characterization.
However, the regulatory language in
§270.110(f) reads, "an estimate of the
quantity of these wastes," which is the
same language used for Part A permit
applications in §270.130). The purpose
of this information is simply to provide
an idea of the scope of the operation,
not to require an exhaustive site
characterization effort. EPA understands
that the estimated volume of waste to be
managed may change significantly in
the course of the cleanup.
Another commenter noted that the
different types of wastes regulated
under the proposed "Bright Line"
approach made the contents of RAPs
overly complicated, but EPA is not
finalizing that option in today's rule,
and so has eliminated that
complication.
Several commenters asked that EPA
allow the RAP to be coordinated with
other submlttals of the same
information, so that efforts need not be
duplicated to prepare numerous
submittals. It is for precisely that reason
that EPA has allowed other documents
(or parts of other documents) to serve as
parts or all of the RAP if they contain
the information and conditions
necessary for RAPs, so that the facility
owner/operator does not have to
duplicate efforts. This can be found at
new §270.125.
Finally one commenter suggested that
EPA make it possible for a facility
owner/operator to incorporate
"presumptive remedies" into RAPs
similar to the approach EPA developed
in the CERCLA program. While EPA is
not addressing issues such as proper
cleanup levels or remedies under
today's rule, EPA could develop a set of
"standard" RAP provisions to cover
.commonly encountered situations at
sites managing hazardous remediation
wastes. These generic provisions could
be customized, as necessary, to address
appropriate site-specific considerations.
EPA believes that a "generic RAP
provisions" approach can be
appropriate at RCRA sites, and it agrees
this approach can significantly
streamline the development of new
documents. EPA will consider creating
such a model as guidance for the HWIR-
mediarule. , '
However, in the meantime, EPA
encourages States, or even large
companies with multiple sites, to
develop model RAPs. For example,
commenters have told EPA that there
are multiple, similarly contaminated
areas in Alaska involving petroleum
product spills. EPA believes that this
may be an appropriate situation for
regulated industries, the State of Alaska,
and EPA to work together to develop a
model RAP that would cover the
situations frequently encountered in
Alaska with petroleum and other
contaminants. Such a model RAP could "
be used, with minor modifications to
consider any unique, site-specific
circumstances, and would be faster to
develop and approve if EPA, the State,
and the facility owner/operator had
already agreed on the basic principles in
the model.
3. Contents of RAPs in the Proposal
That Are Not Required in the Final Rule
Several parts of the proposed "RAPs
contents" requirements are not included
in the final rule. First, proposed
§ 269.41 (c)(8) required facility owners
and operators to submit information that
describes planned sampling and
analysis procedures. This requirement is
not necessary because waste analysis is
required under today's rule at
§264. IQ) (2).
Proposed §§269.41(c)(9) and
269.42(b) required facility owners and
operators to submit data from
treatability studies and full scale
implementation of treatment systems to
EPA- The Agency has not included that
requirement in the final rule. EPA
proposed to require the collection of
treatability data so that it could set
treatment standards with reasonable
confidence that those standards could
be met with available technologies, and
to provide information on the
effectiveness of available technologies
in treating different kinds of
contaminated media.
One of the proposed rule's goals was
to provide data to ensure appropriate '
future treatment requirements. To
collect this data, the proposed rule
would have required owners and
operators to submit data to EPA upon
completing remedial treatment (both
full-scale as well as treatability studies).
EPA has decided not to mandate the
collection of treatability data for
contaminated media as originally
proposed. Since the proposal, EPA has
finalized new LDR treatment standards
for contaminated soils. EPA believes •'
that those new standards are supported
by the available data and does not feel
it is necessary to burden the regulated
community with the requirement to
submit treatability data. Treatability
data is discussed more fully in the
preamble to the LDR Phase IV rule (63
FR 28556 (May 26, 1998)), in which
EPA finalized the soil treatment
standards proposed in the HWIR-media
proposal.
Also, in the proposed rule at
§269.42(a), EPA proposed that
treatability studies that would require a
RCRA permit could be conducted under
a RMP instead. The significant benefit of
this requirement was that those wastes
in the treatability study could be
excluded from Subtitle C requirements .
under the RMP. Because RMPs no
longer serve that function, the
remaining benefit would be the more
streamlined process for receiving RAP
approval under the final rule instead of
a traditional permit.
As discussed throughout the RAPs
section of today's rule, any on-site
treatment, storage or disposal of
hazardous remediation waste that .
would have otherwise required a RCRA
permit may be authorized under a RAP,
which would include any treatability
studies. Therefore, a separate provision
allowing treatability studies under a
RAP is not necessary.
EPA recognizes that treatability
studies conducted off-site may still
confront the problem of needing a
traditional RCRA permit, and EPA will
evaluate this and any remaining issues
with regard to treatability studies in the
future.
In the preamble to the proposed rule
at 61 FR 18817, EPA requested comment
on the limits on the existing Treatability
Sample Exclusion Rule (§261.4(e) and
(f)), which exempts the generator of
wastes for treatability studies from 40
CFR Parts 261 through 263, and from
notification under RCRA Section 3010.
The rule also exempts the facility
conducting the study from 40 CFR parts
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Federal Register/Vol. 63-, No. 229/Monday, November 30, 1998/Rules and Regulations 65893
124, 261-266, 268 and 270 and from
notification under RCRA Section 3010.
"This exemption is currently limited to
volumes of no more than 10,000 kg of
media contaminated with non-acute
hazardous waste, 1000 kg of non-acute
hazardous waste other than
contaminated media, 1 kg of acute
hazardous waste, and 2500 kg of media
contaminated with acute hazardous
waste for each process being evaluated
for each generated waste stream.
This exemption remains in effect for
no more than 90 days after the study is
completed or one year (two years for
bioremediation) after the shipment of
the same sample, whichever comes first.
The Regional Administrator may grant
requests case by case for up to an
additional two years for treatability •
studies involving bioremediation. The
Regional Administrator may grant
requests case by case for extensions of
the quantity limits for up to an
additional 5000" kg of media
contaminated with non-acute hazardous
waste, 500 kg of non-acute hazardous
waste, 2500 kg of media contaminated
with acute hazardous waste, and 1 kg of -
acute hazardous waste.
When EPA requested comment on
whether it should amend the rule to
allow EPA to expand those limits on a
site-specific basis; the Agency received
several comments. All comments
favored giving site-specific discretion to '
the Director to determine appropriate
volumes of wastes to be included in the
treatability study, and to determine
appropriate timeframes. Despite the
favorable comment, EPA is not
including this provision in the final.
rule. The Agency is reviewing more
broadly the issue of treatability studies
and may consider more extensive relief
at a future date.
I. What if I Want to Keep This
Information Confidential? (§270.115)
"Some information required under
§ 270.110 may be confidential business
information, such as the design of
treatment units. This provision simply
requires the facility owner/operator to
assert a claim of confidentiality at the
time the information is submitted, and
EPA will treat the information according
to 40 CFR part 2 (Public Information).
EPA has included this provision in
the final rule, which is substantially the
same as § 270.12 (with only minor
changes meant to make the regulation
more readable), to allow the facility
owner/operator to protect this
information. This provision was not
discussed in the proposal, but EPA has <•
added it to allow for confidentiality in
the same way as with other permitting
, requirements, and to protect legitimate
confidential business information of
RAP applicants.
J. To Whom Must I Submit My RAP
Application? (§270.12Q)
This provision simply requires that
the facility owner/operator submit the
RAP application to the Director. This
was proposed at § 269.41 (a). The
"Director" is the EPA or State official
responsible for the RCRA hazardous
waste management program in the
relevant State or Tribal lands, and is
defined in §270.2.
K. If I Submit My RAP Application as
Part of Another Document, What Must
I do? (§270.125)
To avoid duplicative processes,
today's rule (§270.80(d)) allows RAPs to
be a part of another document,-such as
'a State cleanup program's remedy
selection document, or a workplan for a
cleanup. In many cases, the Agency
expects RAPs to be issued at the time
that a site manager is selecting a '
remedy, which will often include a
mandatory process for including the
public in the remedy selection process,
and completion of remedy decision
documents, under a cleanup, program.
Therefore, it would be a waste of time
and resources to require a separate RAP
application. If the facility owner/
operator is preparing the other
documents), then today's rule, at new
§ 270.125, allows the facility owner/
operator to submit the RAP application
as a part(s) of those documents. In this
case, the rule requires that the facility
owner/operator identify the parts of the
document that make up the RAP
application, so that the Director can
develop an appropriate draft RAP, and
so the public can comment on it. Often',
however, it will be the Director who is
preparing the other documents, in
which case, the facility owner/operator
may choose to submit a separate RAP
application, and the Director may
incorporate the elements that make up
the draft RAP into the other
documents) that he is preparing prior to
public comment.
1. Provisions From the Proposal That
Are Not Included in the Final Rule
The proposed rule required that "such
[other] 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." This
statement was confusing as to whether.
those "other" documents would be
considered RAPs.
Any RAP application to receive
approval as a RAP must follow the
authorized RAP procedures of the
authorized State or EPA. However, EPA
expects that different States" will apply
for authorization of different types of
programs and processes to qualify as
RAPs. Therefore, RAPs in different
States may look somewhat different, and
the processes may vary, but all RAPs
must be approved under a program
authorized for this regulation.
Because this is already required under
the State authorization procedures, and
therefore language in the RAPs section
of the regulations is not necessary, EPA
has not included it in the final rule. In
addition, EPA intends it to be clear that
the Director may do more in the way of
public involvement than is required
under today's rule and the facility
owner/operator is certainly encouraged
to do so. However, that is always
possible under RCRA authorized
programs, and again it is not necessary
to include this statement in the RAPs
regulatory language.
As mentioned elsewhere, EPA has
written the process for RAP approval to
be as flexible as possible so that
approval of RAPs, be they stand alone
documents or parts of other documents,
can be integrated as smoothly as
possible into other approval and public
comment procedures taking place at the
site. EPA expects EPA Regional and
State programs implementing the RAP
provisions to merge processes at
'cleanup sites as much as possible to
streamline the approval and public
participation processes. At the same
time, since RAPs will be issued under
a Federally authorized program, and
will be Federally enforceable, it will be
important for States to identify when
requirements are imposed under RAPs,
and when they are imposed under
independent sate authority.
Getting a RAP Approved
L. What Is the Process for Approving or '
Denying My Application for a RAP?
(§270.130)
Section 270.130 specifies the basis
upon which the Director will determine
whether to tentatively decide to either
approve the RAP application and
therefore prepare a draft RAP, or to deny
the RAP application and therefore
" prepare a notice of intent to deny the
RAP application ("notice of intent to
deny''). If the Director finds that the
RAP application includes all of the
information required under §270.110
(correct signatures, names addresses,
maps, drawings, specifications of the
wastes; information to demonstrate
compliance with applicable part 264,
266 and 268 requirements; information
necessary for the Regional
Administrator to carry out his duties
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65894 Federal Register/Vol. 63, No. 229 / Monday, November 30, 1998/Rules and Regulations
under § 270.3: and other information
specified by the Director) and he
determines that the information is in
fact sufficient to show compliance with
the regulatory standards, then he will
make a tentative decision to approve the
RAP application and prepare a draft
RAP. If the Director finds that the RAP
application does not meet these criteria,
and if the facility owner or operator fails
or refuses to correct any deficiencies,
then the Director will make a tentative
decision to deny the RAP application,
and prepare a notice of intent to deny.
The most critical parts of the Director's
determination is whether or not
operation according to the RAP will
ensure compliance with applicable Part
264, 266, and 268 requirements.
As with any permit, the Director may
deny the RAP application either in its
entirety or in part. If the Director
decides to either approve or deny the
RAP application, he will then solicit,
consider, and respond to public
comments before making his final
decision on the RAP application. The
Director's decision is called a
"tentative" decision at this stage until
he has solicited, considered, and
responded to public comments.
Because it is important for the
regulated community, the regulators,
and the public to clearly understand the
basis for the Director's decision to
approve or deny a RAP application, EPA
has added these provisions to provide
clarity.
The proposed rule at § 269.43(e)
simply stated that "Iw]hen the Director
determines that a draft RAP is complete
and adequately demonstrates
compliance with applicable
requirements, the RMP shall be
approved according to the [certain
specified] procedures." Today's final
rule provisions of §270.130 make
express both what was meant by
"complete and adequate," and the
Agency's underlying assumption that,
like the traditional permit process, the
RAP approval process will be one 'of
interaction between the applicant and
the Agency. In addition, the regulations
allow the Director to tentatively deny
the RAP in whole or in part, where
appropriate.
Thus, in a tentative permit decision,
the Director would solicit public
comment both on the parts of the RAP
that are tentatively approved and on the
parts that are tentatively denied.
As stated above, EPA expects the RAP
approval process will be one of
interaction between the RAP applicant
and the Director until the Director is
satisfied that he has enough information
to tentatively approve or deny the RAP
application. Thus, the rule has been
written to make this expectation clear.
Of course, the exact number of
opportunities the Director should
provide to correct deficiencies will
depend on site-specific "circumstances.
The rule does make clear, however, that
some opportunity to correct deficiencies
must be given before a RAP application
is denied.
M. What Must the Director Include in a
Draft RAP? (§270.135)
Sections 270.135(a) and (b) specify
the contents of a draft RAP. In today's
rule, EPA is allowing flexibility in the
format for RAPs. EPA expects that the
RAP application will form the basis of
the draft RAP. EPA does not expect the
regulatory agency to engage in a time-
consuming process of re-creating or re-
formatting all of the information in the
RAP application. Generally, EPA
believes that records of decision,
workplans, and other documents
developed under existing cleanup
programs such as CERCLA and RCRA
will provide good models for RAPs.
Under §270.135(a) and (b) the Director
is required to include in the draft RAP:
(1) The information from the RAP
application discussed above
(§ 270.110(a)-(f)) (for example, name of
the facility, ID number, site boundaries,
etc.); and
(2) Terms and conditions required
under this section.
Section 270.135 (b) specifies that RAPs
must include:
(1) Terms and conditions necessary to
ensure that the operating requirements
specified in the RAP comply with the
applicable provisions of parts 264, 266,
and 268;
(2) Terms and conditions in §270.30;
(3) Terms and conditions for
modifying, revoking and reissuing, and
terminating the RAP; and
(4) any additional terms and
conditions necessary to protect human
health and the environment.
The Agency received no adverse
comment on the proposed requirement
that RAPs include terms and conditions
that ensure compliance with the
applicable provisions of Parts 264, 266,
and 268 (proposed sections 269.40(b)
and 269.4 l(c) (2)), and therefore today is
finalizing this requirement at
§270.135 (b)(i) with minor editorial
changes. To promote streamlining,
however, the final rule also expressly
allows these requirements to be >
specified "expressly or by reference." In
other words, when RAP conditions are
based solely on what is required by the
regulations (that is, there is no need to
establish site-specific conditions), the
RAP may either duplicate the text of the
requirements from the regulations in
describing what is required under the
RAP, or may simply cite the applicable
requirements. Of course,, many Subtitle
C requirements, such as design
requirements for CAMUs, temporary
units, and staging piles in Part 264,
must be derived site-specifically, and
therefore, must be included in each
individual RAP if these units will be
used.
The Agency did not specifically
request comment on requiring the terms
and conditions in §270.30 to apply to
RAPs. However, the Agency believes
these terms and conditions provide legal
clarity on such issues as "duty to
comply," "duty to reapply," and
"inspection and entry," and will ensure
effective implementation of the RAP.
Therefore, EPA has added this
requirement to RAPs at §270.135(b)(2).
Many of the conditions in §270.30 will
not apply to specific actions taken
under a RAP. For example, if all
remediation waste is managed on-site
under the RAP, then there will be no
requirement for manifests, and therefore
the manifest discrepancy report
required under§ 270.30(1) (7) will not
apply to that RAP. Similarly, the
monitoring requirements in §270.30(j)
would apply only to monitoring
associated with units regulated under
the RAP. It would not apply to general
site investigation or monitoring at the
cleanup site. In the future, EPA may
further simplify these requirements and
revise them so they are tailored more
specifically to cleanup, and so that they
provide greater flexibility.
Section 270.135 (b) (3) requires the
Director to include in the draft RAP the
procedures for modifying, revoking and
reissuing, and terminating the RAP, as
is required under §§270.175, 270.180
and 270.185. These procedures are
discussed fully in the preamble sections
discussing the procedures for
modification, revocation and reissuance,
and termination in §§270.175, 270.180
and 270.185.
Finally, the requirement of
§ 270.135 (b) (4) for the Director to
include "any additional terms or
conditions necessary to protect human
health and the environment," is simply
a codification of RCRA section
3005 (c) (3), commonly referred to as
RCRA's "omnibus permit authority
provision." This provision allows the
Director to add terms and conditions
necessary to protect human health and
the environment as concerns the
activities expressly permitted under the
RAP..
However, the Agency has also added
a degree of specificity to this provision
in the final rule. Specifically, today's
rule expressly provides that these
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additional terms or conditions include,
"any additional terms and conditions ...
necessary to respond to spills and leaks
during use of any units permitted under
the RAP." . -
The Agency added this provision to
clarify that, although remediation-only
. facilities are ho longer subject to RCRA
section 3004(u) facility-wide corrective
action, they do not escape cleanup
responsibilities for the units permitted
by the RAP. Because any units
permitted under a RAP will be subject
to the applicable part 264 requirements
and must be approved by the Director in
the RAP, EPA believes that most units
will not experience problems with spills
or leaks, because they will be well
designed and maintained.
Also, most units permitted under
RAPs will be shorter term than most
units at operating TSDF, and so will be
less likely to develop leaks. However, if
unlikely spills or leaks occur, these
units are not exempt from spill response
and cleanup requirements specific to
these units. The omnibus provisions in
§ 270.135 (b) (4) provide an added option
for dealing with these events from
activities permitted underthe RAP.
The RAP is not required to include
information or conditions related to
cleanup levels, site investigation,
remedy selection, or similar
requirements not specifically related to
hazardous remediation waste
management subject to RCRA
permitting.
New § 270.135(c) provides that if the
draft-RAP is part of another document,
as describeci.in §270.80(d)(2), the
Director must clearly identify the
components of that document that
constitute the draft RAP. This is the
same requirement for the Director as the
earlier requirement for the RAP
applicant (in new §270.125), that if the
RAP applicant prepares the RAP
application as part of another document,
he must identify the portions of the .
other document that make up the RAP
application. This simply allows for
consolidation of documents when other
decisions, such as remedy selection, are
occurring at the same time as decisions
on the RAP, and allows the Director to
prepare only one document instead of
several. This approach was proposed at
§ 269.40(e)(2) and EPA did not receive
any negative comments on this - .
procedure.
1. Provisions of the Proposal That Are
Not Included in the Final Rule
The proposed rule also contained
several additional requirements for RAP
terms and conditions that the Agency is
not finalizing today. First, during the
development of the proposal, some of
the FACA Committee members
expressed concerns that certain cleanup
activities may unintentionally cause
additional contamination through cross-
media transfer of contaminants (that is,
transfer of contaminants to clean soil,
air, and surface or ground water).
In response to these concerns, EPA
proposed (at §269.41 (c) (7)) to require
the facility owner/operator to submit
information that demonstrates 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. This aspect of the proposal was
important because the proposal
exempted significant portions of
remediation waste from unit-specific
standards.,
However, in today's final rule all
hazardous remediation wastes remain
subject to Subtitle C requirements,
including those designed to prevent
cross media contamination (for
example, the requirements in §264.175
for tanks, §264.221 forsurface
impoundments, and §264.251 for waste
piles, covering such cross-media
prevention techniques as liners and
covers, arid controls to prevent
migration into groundwater or surface
water). This requirement therefore is no
longer generally necessary and the
Agency did not include it in the final
rule. In addition, the Director may
address any remaining concerns about
cross-media transfer of contaminants
related to the remediation waste
management activities permitted by the
RAP under the Agency's omnibus
permitting authority, addressed above.1 *
1' In addition to the existing regulatory
requirements, since proposal, EPA has developed
the Best Management Practices (BMPs) for Soil
Treatment Technologies (EPA530-R97-007, May
1997) guidance document on how to identify and
minimize the potential for causing cross-media
•contamination during implementation of cleanup
technologies for contaminated soils or solid media.
The guidance outlines the potential cross-media
concerns for specific activities and recommends
approaches for preventing cross-media transfer of
contaminants. Its primary purpose is to prevent the
cross-media transfer of contaminants during
implementation of contaminated soils or solid
media treatment technologies in compliance with
applicable State and/or Federal regulations.
This document does not replace any existing
State or Federal regulations or guidance. It was
developed to support the HWIR-media rule. The
BMPs guidance was not developed for and should .
not be used as a compliance guide for any particular
set of cleanup standards, but instead as a reference
during implementation of those standards.
Similarly, BMPs are not meant as a selection tool
for remedial treatment technologies; they should be '
used during the implementation stage of remedies
once they are selected. The facility owner/operator
and the Director should consider whether this
guidance will provide helpful recommendations for
the remediation waste management taking place
under the RAP. •
In addition, §§269.43(c) and (d) of the
proposal allowed the Director to add
provisions to the RAP specifying the
conditions under which, the owner/
operator would manage media under a
RAP, and concentration levels below
which the Director would no longer
consider the media to contain hazardous
waste, and to add provisions (if
necessary) specifying when the Director
would consider threats to human health
and the environment from the"'media to
be minimized. These provisions were
based on the. proposed rule's provisions
that would allow the Director to exempt
hazardous contaminated media from
Subtitle C if it were below the proposed
Bright Line levels (see proposed §269.4,
and preamble about the Bright Line at
61FR 18794; about the LDR
requirements at 18804; and about
treatability variances at 18810).
In some cases, under the proposal, the
media would have been exempt from .
most of Subtitle C, but remain subject to
LDR treatment standards. In those cases,
the Director might specify minimize
threat levels under a treatability
variance as an alternative LDR level
(instead of requiring treatment to the
levels required in part 268). This
approach was finalized in the recent
Phase IV .Land Disposal Restrictions
Rule (63 FR,28556 (May 26, 1998)).
N. What Else Must the Director Prepare
in Addition to the Draft RAP or Notice
of Intent to Deny? (§270.140)
Once the Director has prepared the
draft RAP or notice of intent to deny,
§ 270.140(a) requires the Director to
prepare a statement of basis supporting
the RAP decision. Section 270.1,4Q(b)
requires the Director to compile an
administrative record and specifies the
contents of the administrative record for
the draft RAP, which are:
(1) The RAP application and any
supporting data;
(2) The draft RAP or notice of intent
to deny;
(3) The statement of basis and all the
documents cited in the statement of
basis; and
(4) Any other documents supporting
the decision to approve or deny the
RAP.
Today's rule also provides that any
documents which are readily available
to the public do not need to be
physically included in the
administrative record as long, as these
documents are specifically referenced.
This eliminates the need to
unnecessarily copy documents such as
regulations and statutes, and other
commonly available documents, and to
crowd each administrative record with
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documents that can be easily found
elsewhere.
The statement of basis and the
administrative record are essential to
explain and document the basis for the
Director's decision to approve or deny
the RAP, and if the RAP is appealed,
they provide the record for review by
the Environmental Appeals Board or
similar State body. The information in
the administrative record allows
members of the public to review the
basis for the Director's decision in order
to participate in a meaningful way
during the comment period. The
requirements for a statement of basis
and administrative record are the same
as the requirements in §§ 124.7 and
124.9 for other RCRA permits, except
that they have to be re-worded to be
more readable.
The proposed rule did not allow for
administrative appeals and did not
expressly require a statement of basis or
compilation of an administrative record.
However, because (in response to public
comments) the final rule does allow for
administrative appeals, as discussed
later, the statement of basis and
administrative record are essential to
successful operation of the appeals
process, and EPA has therefore added
them to the requirements for RAPs in ,
today's final rule.
New §270.140 (c) requires that
information contained in the
administrative record be made available
for public review upon request. This
ensures that the public can review all
relevant documents in preparing their
comments on the draft RAP.
O. What Are the Procedures for Public
Comment on the Draft RAP or Notice of
Intent to Deny? (§270.145)
1. A Description of the Requirements
Today's rule sets out procedures for
reviewing and approving RAPs. EPA
considers public review and comment
procedures an extremely important part
of the review and approval process for
remedial activities. EPA recognizes that
remediation waste management
activities will vary greatly in scope and
risk involved, and the Agency in turn
believes that public participation should
vary depending on the scope and risk
involved with the remediation waste
management taking place. EPA expects
that States that apply for authorization
for today's rule may request
authorization for programs that vary
somewhat from today's requirements,
and EPA wants to allow for flexibility in
this process. EPA expects States and
Regions issuing RAPs to make
appropriate decisions about what levels
of public participation are appropriate
in different situations. However, to
receive authorization for RAPs, States
must at least require the minimum
public participation requirement
mandated by RCRA section 7004 (b) and
must have requirements equivalent to
the other requirements in today's rule.
For further discussion of State
authorization issues, see the State
Authority section of today's preamble.
EPA is finalizing its proposal to
require the use of the statutory public
participation requirements in RCRA
section 7004(b). Thus, if the Director
makes a tentative decision to approve or
deny the RAP application, he must:
• Send notice to the facility owner/
operator of his decision with a copy of
the statement of basis (§270.145(a)(l);
• Publish that decision in a major
local newspaper of general circulation
(§270.145 (a) (2);
• Broadcast his decision over a local
radio station (§270.145 (a) (3);
• Send a notice of his intent to
approve or deny the RAP 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 (§270.145 (a) (4),
This was proposed at §269.43(e)(l)(i)
and (ii).
Section 270.145 (b) requires that this
notice provide the public with the
opportunity to submit written
comments on either the draft RAP or the
notice of intent to deny within no fewer
than 45 days. This was proposed at
§269.43(e)(l)(ii).
Section 270.145(c) specifies the
information requirements for the notice,
which are:
(1) The name and addresses of the
office processing the RAP application;
(2) The name and address of the RAP
applicant and the site or activity;
(3) A description of the activity;
(4) The name, address, and phone
number of a person from whom
interested persons may obtain further
information;
(5) A description of the comment
procedures and other procedures by
which the public may participate;
(6) If a hearing is scheduled, the date,
time, location, and purpose of the
hearing;
(7) If a hearing is not scheduled, a
statement of procedures to request, a
hearing;
(8) The location of the administrative
record and times when it will be open
for public inspection; and
(9) Additional information the
Director considers necessary or proper.
These requirements ensure that the
public will have enough information to
participate in a meaningful way in the
comment process.
The proposed rule required the same
procedures. Proposed §269.43(e)(l)(i)
required notice according to the
procedures of 40 CFR 124.10(d) for the
contents of the notice. In the final rule,
EPA has incorporated applicable
requirements in.S 124.10(d) directly into
the regulations for RAPs (with non-
substantive changes made to incorporate
the requirements into today's readable
format) to avoid potentially confusing
cross-referencing.
Section 270.145(d) requires that if -
within the comment period the Director
receives written notice of opposition to
his decision to approve or deny the RAP
and a request for a hearing, the Director
must hold an informal public hearing. .
The Director may also determine on his
own initiative that a hearing is
appropriate. The hearing must include
an opportunity for any person to present
written or oral comments. Whenever
possible, the Director must:
• Schedule the hearing at a location
convenient to the nearest population
center to the remediation waste
management site;
• Give notice again in the newspaper
and on the radio and to the local
government including the information
described above; and
(1) Reference the date of any previous
public notices relating to the RAP
application;
(2) Include the date, time, and place
of the hearing; and
(3) Provide a brief description of the
nature and purpose of the hearing,
including procedures.
Again, these hearing requirements are
identical to what was proposed at
§269.43(e)(2), but with minor editorial
changes to increase readability. These
requirements are also required under
RCRA section 7004 (b).
2. Commenters Requested More
Flexibility
Several commenters requested
additional flexibility in the public
participation process under today's
§270.145 requirements. Commenters
suggested that RAPs for media that were
excluded from Subtitle C should not
have to follow, the RCRA statutory
public participation requirements.
Today's rule does not exempt any
hazardous remediation waste from
Subtitle C, so RAPs always must serve
as RCRA permits and must follow the
RCRA statutory requirements for
permits. Commenters specifically
mentioned the 45-day comment period,
the requirement to hold a hearing if one
is requested, and the requirement to
send a copy of the RAP to each State
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agency having any authority under State
law with respect to any construction or
operations at the site. Commeriters
generally suggested that EPA should
allow flexibility in how public
participation was performed, depending
on the activities taking place at the site.'
However, under today's rule, RAPs
constitute RCRA permits, and therefore,
the statute mandates certain very
specific public participation activities in
RCRA section 7004(b) including the 45-
day comment period, hearings, and
sending copies of the RAP to State
agencies. EPA has limited any
additional specificity (for example, the
requirements for the contents of a notice
in §270.145(c)) of today's rule to
information or procedures necessary for
smooth implementation of those
statutory requirements, and has not
included other procedural requirements,
such as §§ 124.31-124.33.
The requirements in §270.145 (a) (2), ,
(3), (4), (b) and (d) are direct
requirements from section 7004 of
RCRA. The only requirements that EPA
has added beyond the statutory
requirements are:
• For the Director to send a notice of
his decision to the RAP applicant
(§270.145(a)(l));
• The content requirements for the
public notice of the RAP decision
(§ 270.145 (c)); and
• The .content requirements for the
public notice for any hearings
(§270.145(d)(l)-(3)).
EPA believes that it is important to '
notify the RAP applicant of the
Director's decision, and for public
notices to include sufficient information
about RAP decisions and public
hearings to allow meaningful public
participation. This is why EPA has
added these few requirements to the
statutory minimum procedures, and
these requirements are the same as the
equivalent requirements for traditional
RCRA permits. It is, however, the '.
Agency's policy on public participation
to stress the importance of appropriate
public participation in environmental
"decision-making. ,
EPA has acknowledged repeatedly
that the Agency believes that the RCRA
statute' is overly prescriptive in its
definition of public participation
requirements for RCRA permits
applying to remediation-only sites.
Indeed, cleanups under EPA's own
Superfund program—which provides a
full and extensive opportunity for
public participation—might not meet all
of the RCRA statutory standards.
Ideally, EPA would provide
significantly greater latitude for State
programs in today's rule; however, the
Agency believes it is constrained by the
statute. For this as well as other reasons,
the Administration is supporting
legislative reform of RCRA specific to
remediation waste.
P. The Importance of Public
Involvement in the RAP Process
It is EPA's policy to encourage public
involvement early and often in the
permitting process, in its remediation
programs, as well as in other Agency
actions. EPA intends this rule, and its
implementation, to be consistent with
that policy.
EPA also recognizes that existing
State and Federal authorities provide for
public involvement through widely
varying processes. EPA, in crafting
today's rule, intends to provide enough
procedural flexibility so that States will
not have to either modify their public
involvement policies, or duplicate their
efforts towards public participation in
order to comply with slightly different
requirements under today's rule.
EPA recognizes that meaningful
public participation means that all
potentially affected parties have an
opportunity to participate early in the
process and have ample time to
.participate in the remediation waste
management decisions. Today's rule
establishes the minimum procedures for
public involvement—public notice and
opportunity for comment when the
authorized regulatory agency makes a
preliminary decision to either approve
or deny a draft RAP .'EPA wishes to
encourage involvement of the public
throughout the remediation waste ,
management process. EPA also believes
that particular situations may warrant
more than these minimum
requirements.
In general, the level of public
involvement will depend on the
action—for example, the Agency may
simply provide the minimum required
opportunity for public comment on a
proposed RAP for on-site storage of
waste with low levels of contamination
before it is removed, but may provide
higher levels of involvement when a
RAP includes treatment of a large
•quantity of remediation waste or on-site
waste disposal. For these reasons, EPA
believes that public involvement should
be tailored to the needs at the site, and
has therefore provided necessary
flexibility in this rule.
Some cases may warrant more than
notice and opportunity for comment.
The Director or the facility owner/
operator may choose to voluntarily take
additional steps beyond what is
required in today's regulations when
additional involvement is warranted. In
some cases, meaningful public notice
may include bilingual notifications.
publication of site fact sheets or of legal
notices in city or community
newspapers (or other media, such as
radio, church organizations, and
community newsletters) at key
milestones in the remediation waste
management decision process. Existing'
forums of communication,.such as
regular community meetings and
electronic bulletin boards can be used to
provide regular progress reports on
remediation waste management
activities.
The idea of different levels of public
involvement is not new. EPA has long
recognized that the level of public
involvement should be determined by
the action taking place. As an example
of EPA's recognition that different
activities warrant different levels of
public participation, in a final rule
dated September 28, 1988 (53 FR
37936), EPA promulgated regulations to
govern modification of permits. Those
regulations established different levels
of public involvement depending on the
significance of the permit modification.
Class 1 modifications, which apply to
minor changes to permits, require
minimal public involvement. The
permittee must send a notice of the
permit modification to all persons on
the facility mailing list, and to the
appropriate units of State and local
government. Interested persons may
request review of these permit
modifications. •
Class 2 permit modifications require .
increased public-involvement, and Class
3 modifications, for major modifications
to permits, require far more extensive
involvement of the public—publication
in a local newspaper, a public meeting,
and a public comment period. To assist
facility owners and operators in
implementing the rule, EPA classified
different activities as Class 1, 2, or 3
modifications, based on the significance
of the action in Appendix 1 to §270.42.
These different classes of permits show
that EPA has long agreed that different
levels of public participation are
appropriate for different activities.
EPA has also issued guidance on
public involvement which may, as
appropriate, be used as guidance in
implementing today's rule (see the
RCRA Public Participation Manual,
September, 1996', EPA 530-R-96-007).
This manual provides guidance on
addressing public participation in the
permit process, including permitting
and enforcing corrective action
activities. The manual emphasizes the
importance of cooperation and
communication and highlights the
public's role in providing valuable
input. It stresses the importance of early
and meaningful involvement of the
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public In Agency activities, and of open
access to information.
In addition to the manual, EPA fully
encourages the Director and the RAP
applicant to consider, as appropriate,
The Model Plan for Public Participation,
developed by the Public Participation
and Accountability Subcommittee of the
National Environmental Justice
Advisory Council (a Federal Advisory
Council to the U.S. Environmental
Protection Agency) when taking actions
that would benefit from additional
public involvement beyond what is
required in today's rule. The Model Plan
encourages public participation in all
aspects of environmental decision
making. It emphasizes that
communities, including all types of
stakeholders, and regulatory agencies
should be seen as equal partners in any
dialogue on environmental justice
issues. The model also recognizes the
importance of maintaining honesty and
, integrity in the process by clearly
articulating goals, expectations, and
limitations.
Most recently, the Agency issued the
Enhanced Public Participation Rule (60
FR 63431 (December 11, 1995)), which
amended 40 CFR parts 124 and 270 to
provide for public participation earlier
in the permitting process, and expanded
public access to information throughout
the permitting process and the
operational lives of facilities. It requires
the person associated with the facility,
usually the facility operator, to notify
the public before applying for a permit
under §124.31.
The Agency encourages using this
rule, as appropriate, as guidance for
cleanups that require a RAP, especially
when there is a highly toxic or large
volume of remediation waste. Where a
cleanup involves treating, storing or
disposing of hazardous remediation
waste and a RAP is issued, public
participation on the RAP should
generally be folded into the broader
strategy for encouraging public
involvement in the cleanup. EPA
encourages regulators and facility
owners/operators implementing the
provisions of today's final rule to refer
to these regulations and guidance
documents as guidance in developing
appropriate public participation
activities for individual RAPs.
Q. How Will the Director Make a Final,
Decision on My RAP Application?
(§270.150)
1. A Description of the Requirements
Section 270.150(a) requires the
Director to consider and respond to any
significant comments raised during the
public comment period, or during any
hearing on the draft RAP or notice of
intent to deny. Section 270.150 (b) and
(c) require that, when the Director has
responded to all significant comments
1 and revised the RAP as appropriate and
has determined whether the RAP
includes all the required information
and terms and conditions, he must issue
a final decision on the RAP application,
and notify in writing the RAP applicant
and all commenters on the draft RAP or
the notice of intent to deny. This was
proposed at §269.43(e)(4), on which the
Agency received no adverse comment.
• Section 270.150(d) specifies that if the
Director's final decision is that his
tentative decision to deny the RAP
application was incorrect, he will
withdraw the notice of intent to deny
and proceed to prepare a draft RAP.
This is the same as the approach taken
for traditional RCRA permits (see
§ 124.6(b)), and the Agency sees no
reason to deviate from that approach in
today's rule.
Under new § 270.150(e), when the
Director issues his decision, he must
include reference to the procedures for
appealing the decision. Because appeals
were not provided, for In the proposed
rule, this is a new requirement EPA has
added to the final rule. This is the same
requirement as for permits under
§ 124.15(a), and EPA did not see any
reason to differ from these existing
requirements for permits.
New §270.150(f) requires that, before
issuing the final RAP decision, the
Director compile an administrative
record that includes the information
from the administrative record from the
draft RAP and also:
(1) All comments received;
(2) Tapes or transcripts of hearings;,
(3) Written materials submitted at
hearings;
(4) Responses to comments;
(5) New material placed in the record
since the draft RAP was issued;
(6) Other documents supporting the
RAP; and
(7) The final RAP.
This section again repeats that
material readily available need not be
included. This is the same as for the
administrative record for draft RAPs and
also for traditional RCRA permits.
Section 270.150(g) requires that the
administrative record must be made
available for review by the public upon
request.
As described for the administrative
record for the draft RAP, EPA believes
that express requirements for compiling
administrative records are essential for
successful hearing of appeals, and
because appeals were not permitted in
the proposal, EPA did not include this
requirement in the proposal. However,
an administrative record is now a
necessary part of today's final rule. The
elements of the administrative records
for RAPs are the same as those required
for traditional RCRA permits under
§ 124.18. EPA believes that the same
information that is necessary to
understand the decision-making on a
traditional RCRA permit is also
appropriate for RAPs.
2. Comments on the Proposed
Requirements
The proposed rule requirement for the
Director to consider .and respond to any
significant comments, and to modify the
RAP as appropriate, was at
§269.43(e)(3). (The final rule uses the
word "revised" instead of "modified" to
avoid confusion with §§270.170 and
270.175 pertaining to post-issuance
modifications.) Several commenters
were concerned that the Director would
unilaterally modify RAPs due to public
comments without consulting with the
facility owner or operator. They asked
that EPA require the Director to consult
or negotiate with the facility owner or
.operator before making modifications
due to public comment. One commenter
explained that changes resulting from
public comment may substantially
increase the cost of compliance, or
otherwise significantly affect the
facility's ability to complete remedial
actions, in which case the facility would
have no choice but to comply, or
suspend remedial activities while
seeking judicial review. Commenters
were also concerned that any action that
requires approval from the Agency takes
a very long time to get approved. The
commenter asked for EPA to limit the
Director's review period to 60 days, and
if the Director had not acted on the RAP
within 60 days, the RAP would go into
effect automatically.
EPA considers open communication
with the facility owner/operator .
important to successful implementation
of the RCRA program. EPA encourages
Regional offices and States
implementing today's rule to discuss,
when appropriate, any revisions that '
may be made to the RAP in response to
public comment with the facility owner/
operator before making them. The
Agency has not added this as a
requirement to the approval process,
however. An overriding objective of
today's rule is to eliminate unnecessary
process from the regulations. The
Agency believes that a mandatory
consultation process such as that
suggested by the commenter is
unnecessary because today's rule,
unlike the proposal, provides for appeal
of the Director's final decision to EPA's
Environmental Appeals Board. Facility
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owner/operators who are unhappy with
changes made in, response to public
comment will have ample opportunity,
at that time, to convince the Agency to
change the contested provisions.
EPA has also decided not to limit the
amount of time the Director has to
review and approve RAPs so that if the
Director does not act, the RAP becomes
effective. EPA does not believe that the
Agency would be fulfilling its statutory
obligation to ensure compliance with
RCRA requirements if RAPs could
become effective withbut an affirmative
decision from the Director (see RCRA
section 3005). In addition, this would be
especially problematic because under
new § 270.90, the RAP generally serves
as a shield against enforcement, and
therefore the Director must make an
affirmative decision that the RAP will
ensure compliance with the applicable
Subtitle C requirements before the RAP
can become effective.,
Commenters also asked that the
facility owner or operator be required to
provide copies of all documents he is
required to maintain during the
remedial activity into a local library to
allow for public review. EPA encourages
any steps the Director can take to
facilitate meaningful public
involvement, but again has chosen to
limit actual regulatory requirements in
an effort to maintain a more flexible
process. EPA already requires the .
Director to make the administrative
record available under both
§§270.140(c) and 270.150(g). In
addition, the Director can require the
facility owner/operator to set up an
information repository as a part of the
RAP under the terms and conditions
imposed at §270.135, if the Director
considers a repository appropriate. We
believe these authorities,.allow the full
range of options to assure easy public
access to information so that meaningful
public involvement can occur.
The requirement for the Director to
make a determination at §270.150(b)
and (c) was proposed at §269.43(e)(4),
and stated "When the Director
determines that the RMP adequately
demonstrates, compliance with all
applicable requirements. . . ."The
requirements in §270.150 of today's
final rule clarify what the proposal
meant by "all applicable requirements."
The proposed rule did not expressly
outline the procedures if the Director
decided to deny a RAP. This was an
oversight. To correct that oversight-; EPA
has made denial procedures for RAPs
equivalent to approval procedures for
RAPs.
R. May the Decision To Approve or
Deny My RAP Application Be
Administratively Appealed? (§270.155)
The Agency had originally proposed
to eliminate administrative appeals (that
is, to the EPA Environmental Appeals
Board) because EPA felt that allowing
facility owner/operators to proceed
directly to judicial review (if necessary)
after the Director's decision on the RAP
would streamline the process. However,
numerous commenters did not believe
that this particular part of the proposal
resulted in any beneficial streamlining.
Commenters expressed an interest in
being able to avoid expensive and time-
consuming judicial proceedings by first
requesting an administrative appeal.
Also, one'commenter pointed out that in
instances where the RAP applicant is a
Federal agency, the judicial .review
process is not available because Federal
administrative agencies are unable to
seek judicial review of final actions of
other Federal administrative agencies.
No commenters wrote to support EPA's
proposal to not provide for appeals.
The Agency agrees with these
commenters that allowing for further
review within the Agency will, in many
cases, help avoid time-consuming and
costly litigation. Because, in the
remediation setting, this is time and
money better spent on cleanups, the
Agency has decided in this final rule to
provide for administrative appeals for
RAPs. Thus, the procedure in new
§'270.155 requires facility owner/
operators to follow the procedures of
§ 124.19 for appeals. The only difference
between the process EPA requires for
RAPs, and the traditional § 124.10
requirements is that when the Director
gives public notice of appeals decisions
for RAPs, (under § 124.1 &(c)), he will
follow the RAPs public participation
'procedures in §270.145 instead of those
in § 124.10, which are used to give
public notice of appeals decisions for
traditional RCRA permits.
Sections 270.155(a)(l)-(3) include
requirements for what the public notice
of the appeal must include, which are:
(1) the briefing schedule for the appeal;
(2) a statement that any interested
person may file an amicus brief with the
Environmental Appeals Board; and (3)
the appropriate information from
§ 270.145(c), such as the name and
address of the remediation waste
management site and a description of
the proposed activities.
The requirements under
§270.155(a)(l) and (2) for what to,
include in the public notice already
appear in § 124.19(c), but are repeated
in §270.155 for clarity. Section
124.19(c) also specifies that public
notice of appeals decisions will be given
as provided in § 124.10. However, EPA
has specified in today's rule that public
notice of appeals decisions for RAPs
will follow the procedures of §270.145,
and will contain the information from
§270.145 (c), instead of §124.10.
For clarity, new §270.155(b) repeats
the requirement in § 124.19 that
exhausting the administrative appeals
procedure of § 124.19 is a prerequisite to
judicial review under RCRA section
7006(b). This is the same requirement as
in place for traditional RCRA permits
under § 124.19 (e), and EPA saw no
reason to differ from the current
requirements.
S. When Does My RAP Become
Effective? (§270.160) .
Section 270.160 states that the RAP is
effective 30 days after the Director has
notified the facility owner and operator
and all commenters, that he approves the
RAP. This is the same as the effective
dates for traditional RCRA permits. The
30-day period allows time for parties to
appeal the Director's final decision <
before the RAP is effective. EPA stated .
in.the preamble to May 19, 1980
rulemaking, when these provisions for
permits were promulgated, that the 30
days "is a necessary part of a party's
right to request an evidentiary hearing."
Under § 270.160(a), the Director may
specify a later effective date in the final
RAP decision if he feels that a longer
time is necessary to allow facility
owners and operators more time to
come into compliance with the new
requirements, or knows of other
necessary reasons for a later effective
date.
Section 270.160(b) specifies that if a
RAP has been appealed, and the appeal
is granted, conditions of the RAP will be
stayed according to the provisions of
§ 124.16, pending the outcome of the
appeal. The Director may identify which
conditions of the RAP are severable, and
therefore are not;stayed! However, the
provisions that are appealed and any
provisions that are not severable from
the appealed provisions will be stayed.
Section 270.160(c) specifies that the
RAP may become effective immediately
if no commenters requested a change
from the draft RAP. This is because if no
one requested a change, then no one
would have the right to an appeal. Only
parties who comment on the draft RAP
may request appeal.
The proposed rule did not specify
effective dates for RAPs. This was an
oversight EPA has corrected in today's
final rule. These effective date
requirements are the same as those
currently required for traditional RCRA
permits under § 124.15(b), and EPA saw
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no reason to 'differ from these existing
requirements.
T. When May I Begin Physical
Construction of New Units Permitted
Under the RAP? (§270.165)
Section 270.165 specifies that the
RAP applicant cannot begin physical
construction of new units before
receiving a finally effective RAP. This is
the same as the requirements for
traditional RCRA permits at
§270.10(0(1).
How May My RAP be Modified,
Revoked and Reissued, or Terminated?
U, After My RAP Is Issued, How May It
Be Modified, Revoked and Reissued, or
Terminated? (§270.170)
Plans for remedial actions sometimes
need to be modified, revoked and
reissued, or terminated. Often,
modifications, revocations and
reissuances, or terminations are
necessary as new information becomes
available. To retain reasonable
flexibility in the remedial process-
where it is difficult to predict all
contingencies, and where different State
programs may have different existing
requirements for when plans need to be
modified, revoked and reissued, or
terminated—today's rule (as did the
proposal), does not include specific
procedures for RAP modification,
revocation and reissuance, or
termination but requires the Director to
specify these procedures in the RAP.
This provides authorized State or
Federal programs the ability to allow
modifications, revocations and
reissuances, and terminations when and
how they would fit efficiently into the
State or Federal program. Today's rule
at § 270.170 requires (the same as the
proposal) that the Director include these
procedures in the RAP, and also
requires that these procedures provide
for public review and comment if there
is a "significant" change in the
management of hazardous remediation
waste at the site, or in circumstances
which otherwise merit public review
and comment. This was proposed at
§ 269.44 (a) and is consistent with EPA's
preference for involving the public in
important decisions.
While commenters agreed with this
general approach, two commenters
asked for clarification on what
constitutes a "significant" modification.
EPA expects the Director to consider
examples such as changes in treatment
processes, use of new units, or activities
that would require Class 2 or 3
modifications in Appendix 1 to §270.42
as "significant" modifications (see also
§270.42(d)(2)). EPA expects that
activities that would require Class 2 or
3 modifications would generally be the
same kinds of activities that would be
considered "significant" in this case.
However, because activities that take
place-at cleanup sites are so often
influenced by the site-specific factors
that affect the management of
remediation wastes at each site, EPA has
decided not to put any limits into the
regulatory language defining a
"significant" change. This allows the
Director full discretion to determine
what constitutes "significant" for any
given site.
The proposed regulatory language
explaining which modifications should
include public participation included
modifications that were "major or
significant." EPA considers "major" and
"significant" to mean the same thing in
this instance—and so has eliminated
that redundancy by limiting the final
rule to the term "significant."
Proposed § 269.44 referred only to
modifications and not to revocation and
reissuance, which was an oversight.
Proposed § 269.45 included revocation
with expiration and termination. The
requirements for both proposed sections
were the same, stating that the Director
would specify procedures for these
actions. EPA has decided to move the
requirement to specify procedures for
all these activities into one section
(§270.170) because the same
requirement applies to all of these
activities, that the Director must specify
procedures for modification, revocation
and reissuance, and termination in the
RAP.
Today's final rule also allows the
Director to specify these modification,
revocation and reissuance, or
termination procedures individually or
to incorporate them by reference. EPA
expects that State programs may already
have or may develop standard
modification and revocation and
reissuance procedures. EPA intended
for the proposed rule language, which
simply stated that the "Director shall
specify . . . procedures," to allow
States having existing procedures to
incorporate these procedures by
reference, but the final rule language
makes that explicit. EPA believes that
incorporating already approved
procedures by reference can save time.
and controversy in preparing and
approving RAPs. '
Section 270.170 also specifies that if
your RAP has been incorporated into a
" traditional RCRA permit, then the RAP
will be modified, revoked and reissued,
or terminated according to the
applicable traditional RCRA permit
requirements. Of course, the Director
may, as appropriate, specify in the RAP
additional grounds or procedures, at his
discretion. This is conforming change to
make this requirement consistent with
§ 270.85(c), which allows RAPs to be
incorporated into traditional RCRA
permits.
V. For What Reasons May the Director
Choose To Modify My Final RAP?
(§270.175)
Today's rule specifies at §270.175
that the Director may determine on his
own initiative that a modification is
necessary. New §§270.175(a) (l)-(8)
specify the causes that justify a Director-
initiated modification. The only cause
specified in the proposal for Director
initiated modifications was "new
information which indicates that such
modification may be necessary to e'nsure
the effective implementation of
remedial actions at the site" (see 61 FR
18854). The Agency received no adverse
comment on limiting the Director's
discretion in this area. However, the
Agency has decided to clarify the causes
for Director-initiated modifications in
today's RAPs regulations to include the
same causes for Director-initiated
modifications as for traditional RCRA
permits under §§270.41 and 270.43.
EPA believes this is an outgrowth of the
proposed requirement, and responds to
commenters' concerns that the Director
had too much discretion as to when he
could modify RAPs.
As discussed above, the proposed rule
allowed the Director to make
"unilateral" modifications based on
"new information which indicates that
such modification may be necessary to
ensure the effective implementation of
remedial actions at the site."
Commenters expressed concern about
what they, saw as the Director's too-
broad discretion to make "unilateral"
modifications. In response to these
comments, today's final rule
.requirements for "causes" adds more
specificity to what that "new
information" may be.
Section 270.175 (b) allows the Director
to modify the RAP as necessary to
ensure the facility continues to comply
with the currently applicable
requirements of parts 124, 260-266 and
270 when he reviews a RAP for a land
disposal facility every five years, as is.
required under §270.195. This same
requirement applies to traditional RCRA
permits under § 270.41 (a) (5).
Also to protect the facility owner/
operator, at new § 270.175 (c) the Agency
has included the provision that applies
currently to traditional RCRA permits
which specifies that the Director will
not reevaluate the suitability of the
location of the facility at the time of
RAP modification. This would cause too
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much disruption to facility operations.
The location will be evaluated once
when the RAP is initially approved, but
once approved it will not be reevaluated
unless new information or standards
indicate that a threat to human health or
the environment exists that was
unknown at the time1 of RAP issuance.
W. For What Reasons May the Director
Choose To Revoke and Reissue My Final
RAP? (§270.180)
The Agency has specified in new
§ 270.180(a) causes for when the
Director may modify or revoke and
reissue a RAP. Again, these causes are
the same as those for permits under the
current regulations at §§270.41 and
270.43, and are intended to provide
assurance to the facility owner/operator
security that they can operate in
compliance with their permit without
fear that their permit will be modified
without a good cause.
EPA explained its original reasoning
for promulgating causes for Director-
initiated modifications and revocation
and reissuances of traditional RCRA
permits at 45 FR 33314 (May 19, 1980).
That preamble stated that "EPA has
rewritten the permit modification
section ... to provide greater certainty
to permittees during the period when
they hold permits and thereby make it
easier to make business decisions and
obtain financing . .. Normally, a permit
will not be modified during its term if
the facility is in compliance with the
conditions of the permit. The list of
causes for modifying a permit is narrow;
and absent cause from this list, the
permit cannot be modified." In that
notice, EPA also explains the specific
rationale for each of the causes for
Director-initiated modifications,
revocations and reissuances, which are
the same causes as allowed in today's
rule. EPA included the same protection
for owners and operators when RAPs
are revoked and reissued at §270.180(b)
as is provided for when RAPs are
modified at §270.175 (c). That is that the
Director will riot reevaluate the
suitability of the location of the facility
at the time of RAP revocation and
reissuance. The reasons for this
protection are discussed above at
§270.175(c).
X. For What Reasons May the Director
Choose To Terminate My Final RAP, or
Deny My Renewal Application?
(§270.185) ~~
Unlike in the proposed rule, the
Agency has decided to retain the
requirements in § 270.43 for causes for
permit termination. Thus in new.
§ 270.185, EPA cites the three reasons
from §270.175 why RAPs may be
terminated.. They are that:
(1) The facility owner/operator
violates the RAP;
(2) The facility owner/operator did
not fully disclose or misrepresented
information during the application
process; or
(3) The activity authorized by the RAP
endangers human health or the
environment, and dan only be remedied
by termination.
The Agency believes it is appropriate
to retain these requirements for RAPs
because they specify the basis of what
EPA believes should be potential
grounds for termination, while
providing assurances of certainty to the '
facility owner/operator by limiting the
reasons the Director may terminate the
RAP. The proposed rule did not specify
detailed reasons for why RAPs could be
terminated, but simply left that up to
the Director to specify in the RAP.
Y. May the Decision To Approve or
Deny a Modification, Revocation and
Reissuance, or Termination of My RAP
Be Administratively Appealed?
(§270.190)
Section 270.190(a) states that any
commenter on the modification,
revocation and reissuance or
termination, or any participant in any
hearings on these actions, may appeal
the decision to modify, revoke and
reissue or terminate a RAP to the
Environmental Appeals Board, using the
same procedures as those used for
appealing the original RAP decision in
§ 270.155. Appeals of approvals of
modifications, revocation and
reissuances, and terminations of
traditional RCRA permits follow the
same process as appeals of original
permit decisions. EPA has decided that
it will be easiest to understand if RAPs
follow the same construct as traditional
RCRA permits. Also, modifications of
RAPs could possibly include significant
changes in the remediation Waste •
management activities at the
remediation waste management site,
and so the right to appeal these
decisions is important to the facility
owner/operator and to the community.
Section 270.190(b) specifies that
denials of requests for RAP
modification, revocation and reissuance
or termination may be informally
appealed, and §270.190(c) sets out the -
procedures for informal appeals which
are that: (1) The person appealing the
decision must send a letter to the
Environmental Appeals Board; (2) the
Board has 60 days to act; and (3) if the .
Board does not take action within 60
days, the appeal will be considered
denied: '
In the May 19, 1980 final rule which
created the § 124.5 requirements for
informal appeals, EPA explained the
Agency's rationale in this way: "EPA
rejected comments urging that
modification denials be appealable
through the same agency procedures as
permit issuance or denial. Departures ,
from the cycle of permit issuance and
periodic examination should not be
encouraged in such a manner. If
encouraged, they could keep many
permits in a state of perpetual
reexamination thus impeding the
control program being implemented."
EPA has chosen to apply the same
process for RAP modification,
revocation and reissuance and
termination denials as applies to the
same decisions for traditional RCRA
permits. This process for informal
appeals is the same as the process for
informal-appeals of denials of requests
for permit modification, revocation and
reissuance and termination in '
§ 124.5(b), except that it has been re-
written to be more readable. EPA sees
no reason why the processes should
differ.
Section 270.190(d) states that this . ,
appeal is a prerequisite to judicial
review of these actions. This same
requirement applies to traditional RCRA
permits under §§ 124.19(e) and 124.5(b).
Of course, -because the proposal did
not allow for appeal of RAPs, it also did
not allow for appeal of RAP
modification, revocation and reissuance,
or termination. However, the Agency
has provided these provisions in
response to commenters' requests, as
more fully discussed in the preamble
section for §270.155 entitled "May the
decision to approve or deny my RAP
application be administratively
appealed?"
Z. When Will My RAP Expire? .
(§270,195)
As with all RCRA permits, §270.195
requires (as proposed at §269.45) that
RAPs have a maximum life of 10 years,
and that RAPs that permit land disposal
units be reviewed every five years. This
requirement is a statutory requirement '
under RCRA section 3005 (c) (3). Of
course, in many cases, remedies will be
short-term; in those cases, the RAP
would specify a shorter term than the
10-year maximum. The Agency did not
receive any adverse comment on this
requirement.
AA. How May I Renew my RAP if It Is
Expiring? (§270.200)
Like the rule for traditional RCRA
permits (see §270.10(a)), today's rule
provides that the procedures for-
renewing RAPs (new § 270.200) are the
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same as the procedures for issuing
RAPs. The proposed rule's silence on
this issue was an oversight.
BB. What Happens if I Have Applied
Correctly for a RAP Renewal, But Have
Not Received Approval by the Time My
Old RAP Expires? (§270.205)
The same as §270.51 provides for
traditional RCRA permits, new
§ 270.92 (e) provides assurances to the
facility owner/operator by stating that
an expiring RAP remains in effect until
a new RAP is effective, as long as a
timely application has been submitted
and, through no fault of the facility
owner/operator, the Director has not
issued an effective RAP before the
previous RAP expires. This will ensure
that remediation waste management
will not be interrupted because the
Director was unable to renew the RAP
before the previous RAP expired. Again,
EP.A did not specify requirements in the
proposed rule for this situation, but is
expressly including these requirements
in today s rule to ensure effective
implementation.
Operating Under Your RAP
CC. What Records Must I Maintain
Concerning My RAP? (§270.210)
As discussed above, the
administrative record for RAPs must be
kept by the Director under §§270.140
and 270.150. Under new §270.210,
however, the facility owner or operator
is required to keep records of all data
used to complete the RAP application
and any supplemental information that
is submitted for at least 3 years from the
date the application is signed, and any
operating and/or other records the
Director requires the facility owner/
operator to maintain as a condition of
the RAP.
This language is included to remind
the facility owner/operator that
recordkeeping and reporting
requirements may be imposed under the
Director's authority to impose "terms
and conditions necessary to ensure that
the operating requirements specified in
your RAP comply" with applicable
requirements (§270.135). Although the
Agency proposed that all recordkeeping
and reporting requirements would be set
on a site-specific basis (see 61 FR
18817), the Agency is including these
requirements in today's rule to avoid
unnecessary disputes each time a RAP
is issued. In addition, the facility
owner/operator must comply with
recordkeeping requirements from the
applicable Part 264 requirements.
The requirements in new §270.210
are the same as those for traditional
RCRA permits required under
§ 270.10(i), except that they have been
reworded to be more readable. In the
May 19, 1980 notice where EPA first
promulgated the § 270.10(i)
requirements, EPA justified the
requirement saying that "[t]he
recordkeeping requirements are
necessary to support-any subsequent
EPA enforcement action for false
reporting" (45 FR 33300 (May 19,-
1980)).
Several commenters supported EPA's
proposal to allow the Director to set all
recordkeeping and reporting
requirements site-specifically in the
RAP. However, two commenters
requested that EPA require the owner/
operator to maintain certain records in
all cases. One requested that EPA
require the facility owner/operator to
maintain records about waste that is
shipped off-site for management to
provide EPA the ability to track the
waste if a non-hazardous determination
was found to be inappropriate. Another
commenter suggested requiring the
facility owner/operator to maintain a
copy of the RAP, testing results, and
manifests and/or bills-of-lading for
wastes moved off-site.
All of these comments were based on
the premise that EPA was allowing
some contaminated media to be
exempted from Subtitle C requirements.
However, in today's rule, all hazardous
remediation wastes remain subject to
Subtitle C, including the requirements
for manifests, which should alleviate
the concerns of the two commenters
who recommended requiring manifests.
Also, all hazardous remediation wastes
remain subject td the applicable
requirements in Part 264, some of which
require the facility owner/operator to
maintain certain records.'
In addition to those requirements,
EPA decided it was appropriate to
require the same recordkeeping
requirements for RAPs as are required
for traditional RCRA permits under
§270.10(i). These provisions require the
facility owner/operator to maintain
records of data used to prepare the RAP
application and supporting documents.
EPA believes that these requirements
sufficiently respond to the concerns
raised by the two commenters.
DD. How Are the Time Periods in the
Requirements of This Subpart and My
RAP Computed? (§270.215)
Although the proposal did not discuss
this issue, to avoid unnecessary
disputes over the computation of time,
EPA has decided to add new §270.215,
which keeps the provision at § 124.20
clarifying how time periods specified in
the permitting rules will be computed.
Specifically, §270.215 (a) specifies that
any time period scheduled to begin on
the occurrence of an act or event must
begin on the day after the act or event.
Section 270.215(b) specifies that any
time period scheduled to begin before
the occurrence of an act or event must
be computed so that the period ends on
the day before the act or event. Section
270.215 (c) specifies that if the final day
of any time period falls on a weekend
or legal holiday, the time period shall be
extended to the next working day.
Finally, §270.215(d) specifies that
whenever a party or interested person
has the right or is required to act within
a prescribed period after the service of
notice or other paper upon him or her
by mail, 3 days must be added to the
prescribed term. The regulatory
language includes examples to make
these requirements easier to understand.
EE. How May I Transfer My RAP to a
New Owner or Operator? (§270.220)
The Agency has decided to apply the
same requirements to RAPs (under new
§ 270.220) that §270.40 requires for
traditional RCRA permits. This requires
that if the ownership or operational
control of the facility changes, the RAP
must be modified or revoked and
reissued to reflect this change. Again,
although this was not proposed, the
Agency added it to ensure that the
appropriate person is responsible for
activities permitted under the RAP.
Note, however, that a change in
facility ownership or operational control
should not be considered a "significant"
change; the regulations for traditional
RCRA permits in §270.40 allow a
change in facility ownership to be made
as a Class 1 modification to a permit,
which is not a significant change.
Like,§270.40, new §270.220 requires
the new facility owner or operator to
submit a revised RAP application no
later than 90 days before the scheduled
change, and requires a written
agreement for the date for transfer of
RAP responsibility, and includes
requirements for Part 264, Subpart H,
Financial requirements. The
requirement to submit the revised RAP
application to the Director 90 days
before the change allows adequate time
to revise the' RAP before the change
occurs, makes clear when facility
ownership or operational control is
transferred, and ensures that a
responsible person will be fulfilling the
Part 264, Subpart H, financial
responsibility requirements for the
facility at all times. These requirements
in new § 270.220 are identical to the
requirements in §270.40, except that
they have been rewritten to be more
readable and to use the words "RAP"
and "remediation waste management
site" instead of "permit" and "facility."
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FF. What Must the State or EPA Region
Report About Non-compliance With
RAPs?.(§ 270.225)
Section 270.225 requires the State or
EPA Region implementing RAPs to
report to the EPA Regional
Administrator or to EPA headquarters,
respectively, on noncompliance with
RAPs according to §270.5. The
proposed rule did not explicitly include
this permitting requirement, which is
currently imposed for traditional RCRA
permits. However, without soliciting
comment on this issue more explicitly,
EPA is reluctant to eliminate this
requirement for RAPs.
Obtaining a RAP for an Off-site
Location
GG. May I Perform Remediation Waste
Management Activities Under a RAP at
a Location Removed From the Area
Where the Remediation Wastes
Originated? (§270.230)
. , New § 270.80(a) states that a RAP may
only be issued for the area of
contamination where the remediation
wastes to be managed under the RAP
originated and areas in close proximity
to the contaminated area, except as
allowed in limited circumstances under
this section. This limitation was
originally included in the definition of
remediation waste management site in
the proposal for today's rule. Many
commenters addressed this limitation in
their comments. One commenter argued
that managing remediation waste away
from the area of contamination might be
the most environmentally protective
option in some cases. For example,
permafrost in many areas in Alaska
means that surface water is abundant
and floodplains are extensive, so if the
area of contamination were in these
areas, it would be more environmentally
protective to treat, store, or dispose the
remediation waste at a more suitable,
possibly remote, location. Other
commenters suggested that it would be
environmentally beneficial to locate
remediation waste management sites •
away from the area of contamination if
the contaminated area were located in a
potable well field or over a sole-source
aquifer.
One commenter raised the point that
"pipelines and other industries that
operate facilities on extensive linear
rights-of-way frequently must deal with
historical contamination of soils at
multiple, noncontiguous locations,
many of which may be extremely
remote. In these instances, it is most
cost-effective to establish a centralized
remediation site, rather than to carry out
remedial treatment at each site of
original deposition. This allows the
remedial treatment to be carried out at
a location selected for characteristics to
minimize exposure to sensitive
environments and to resident human
populations."
Other commenters pointed out that
some large facilities may limit public
access, and that plant services and
equipment, such as waste water
treatment plants and paved areas for
staging may be far away from the
contaminated areas. These commenters
suggested expanding the definition to
include, if necessary, the entire facility
boundary (that is,' areas under common
ownership) to allow the use of an area
that may be several miles away, but
better suited or safer for remedial
functions, yet contained within the
perimeter of the facility's security fence.
Another commenter raised the point
that contaminated areas are often
located in areas of a site remote from
utilities such as electricity, steam,
roadways, etc., and that it would be
reasonable to allow these remediation
wastes to be managed in other areas of
the site where these utilities were
available. Finally, the Department of
Energy (DOE) commented that there are
locations where space is limited, and
the remediation site needs to be '
expanded to a location that is removed
from general employee access, and that
at large sites with multiple areas of
contamination, it might be most
efficient to consolidate those wastes into
one centralized management area within
the boundaries of the facility.
The Agency proposed to limit media
remediation sites to the "area of
contamination" and "areas in close
proximity" to ensure adequate oversight,
of the waste management activities, to
ensure that the process was streamlined,
and to reduce administrative
complications. Many commenters,
considered EPA's concerns and also
added additional potential concerns that
locations away from the area of
contamination might become
contaminated in the course of waste
management, that surrounding
communities might be affected by this
. waste management, and that these might
be long-term actions which might not be
desirable to the surrounding
community.
However, commenters also suggested
solutions. Commenters suggested that
the Agency set up a preference for'
locating remediation waste management
sites in the area of contamination or
areas in close proximity, unless good
justification could be made why other
locations would be. preferable. In light of
concerns about control over the
boundaries of a remediation waste
management site, and community
involvement, commenters suggested
that the RAP approval process would
provide the Director the opportunity to
approve or deny the designation of the
boundaries of the remediation waste
management site, would allow the
surrounding community to participate
in the decisions for activities that might
affect them, and would provide the
oversight to ensure proper waste
management.
EPA agrees that in some cases, such
as the commenters have raised, it may
be preferable to designate alternative
locations for remediation waste
management, and has added the special
requirements under § 270.230 for
performing remediation waste
management activities at a location
removed from the area where the
remediation wastes originated, to
respond to these comments. Section
270.230(a) and (b) allow the facility
owner/operator to request and the
Director approve a RAP for an
alternative location if performing the
remediation waste management
activities at such a location will be more
protective than managing the
remediation in the area of
contamination or areas in close
proximity. Section 270.230(c) specifies
that a RAP for an alternative location
will be approved or denied according to
the procedures and requirements for
RAPs in this Subpart.
EPA expressed concern about the
possibility of contaminated areas being
located in floodplains in the proposal,
and was persuaded by the other
examples provided by commenters such
as permafrost areas, potable well fields,
and sole source aquifers. EPA agrees
that it would not be environmentally
desirable to designate remediation
wastes management sites in these
locations. EPA agrees that centralized
treatment, in the types of situations
described by the commenters, may be •
environmentally beneficial. The Agency
does not want to inhibit the remediation
of contaminated properties.
The Agency has set specific
requirements in §270.230(d) for RAPs at
alternative locations. First, EPA has
specified in §270.230(d)(l) that the RAP
for the alternative location must be
issued to the person responsible for the
cleanup from which the remediation
wastes originated. EPA wants to
encourage environmentally beneficial
cleanups, but does not want to allow a
commercial remediation waste
management facility to open as an
"alternative location" which is owned
and operated exclusively by someone
who is not involved in the cleanup
activities, and then be exempt from
facility-wide corrective action
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65904 Federal Register/Vol. 63, No. 229/Monday, November 30, 1998/Rules and Regulations
requirements. Therefore this limitation
ensures that the facility owner or
operator performing the cleanup
activities be a permittee at the remote
location, as either the operator or the
owner, or both. Of course, others can
also be permittees (for example, the land
owner, if not the same as the person
performing the cleanup). For example,
in the situation discussed above where
it may be more protective to remove
remediation wastes for management
outside of a floodplain in Alaska, the
remote location may be owned by
someone other than the person
responsible for the cleanup, such as the
Federal government. In that case, the
person responsible for the cleanup and
the Federal agency responsible for the
land would be the permittees for the
remote location.
Sections 270.230(d)(2) and (3) require
that RAPs for alternative locations are
subject to the expanded public
participation requirements in §§ 124.31,
124.32, and 124:33, and the public
notice requirements in § 124.10(c). EPA
has required this additional public
participation for these alternative
locations to give the community
surrounding the alternative location
ample opportunity to participate in the
decisions about managing remediation
waste in their community.
Remediation waste management sites
located in contaminated areas will
presumably be subject to extensive
public participation as part of the
remedy selection process, and also the
community will be receiving the benefit
that a contaminated area in their
community will be cleaned up. In
alternative locations, the community
would not be involved in the process of
selecting the remedy for the
contaminated area, nor would they be
receiving the benefit of their community
being cleaned up. Therefore, EPA felt it
was important to require this additional
public participation.
Section 270.230(d)(4) requires these
alternative locations to comply with the
location standards of §264.18.
Remediation waste management sites
located in areas of contamination cannot
choose their location. The area of
contamination is already established,
and therefore it does not make sense to
require these remediation waste
management sites to comply with the
seismic location standard. However,
owners and operators of these
alternative locations can choose the
location and so should comply with this
standard.
Finally, §270.230(e) specifies that
these alternative locations are
remediation waste management sites,
and retain the benefits of remediation
waste management sites, that is, the
exclusion from facility-wide corrective
action, and the application of the
performance standards in §264.1(j)
instead of Part 264, Subparts B, C, and
D. EPA believes that the disincentives to
cleanup would remain if EPA required
facility-wide corrective action for these
alternative locations, and so is keeping
this exclusion the same as it applies to
other remediation waste management
sites to eliminate disincentives to
cleanup. Also, the same reasons why the
§ 264.1 (j) performance standards are
more appropriate for remediation waste
management sites than Part 264,
Subparts B, C, and D, also apply to why
§ 264.1 (j) is.more appropriate for these
alternative locations than Part 264,
Subparts B, C, and D.
EPA believes that the requirements for
the Director to approve the designation
of the remediation waste management
site in the RAP or other permit will
assure that the location will be decided
for the best environmental reasons.
Also, the RAP or other permit approval
process for designating the remediation
waste management site will ensure that
the public has the opportunity to
comment on the decisions of where to
locate the remediation waste
management site.
Finally, the Agency wishes to make it
clear that if an owner/operator manages
hazardous remediation wastes as part of
cleanup on their facility, and ships that
waste off-site, then, of course, they
become a generator. Therefore, when
they ship the waste off their facility,
including shipping it to a facility under
an off-site RAP under §270.230, they
must comply with the applicable
requirements for generators, such as
manifesting and transportation
requirements. ,.
If an owner/operator will be treating,
storing, or disposing both on-site and
off-site (in a way that triggers the
requirement for a permit in §270.1), the
owner/operator must get a separate RAP
(or a traditional RCRA permit) for both
the on-site and the off-site activities.
Only the off-site RAP, however, is
subject to §270.230.
HH. Comparison of the RAPs Process to
That for Traditional RCRA Permits
The procedures for approving RAPs in
today's rule are more streamlined than
the requirements for traditional RCRA
permits. EPA expects that RAPs will .
most often be developed concurrently
with the cleanup's remedy selection
process. Most cleanup programs contain
a remedy selection process requiring the
Director's approval and public
participation. (As discussed in the State
authorization section of this preamble, a
program without the required RAP
public participation provisions will not
be authorized to implement today's
rule.)
As described elsewhere in today's
preamble, EPA has intentionally
constructed the RAP requirements to
allow enough flexibility to integrate
them with remedy selection
requirements. EPA expects remedy
selection and RAP approval will most
often occur together, and therefore has
designed the RAPs process to allow this.
EPA expects joint issuance of RAPs and
remedy selection documents that will be
significantly more streamlined than
separate permitting and remedy
selection processes and will still
maintain meaningful public
involvement.
In addition to general streamlining,
there are eight specific steps in the
traditional permitting process that EPA
has eliminated for RAPs.
• First, and perhaps most
significantly, in an effort to better tailor
the RAPs requirements to the cleanup
setting, the content requirements for
RAP applications (from §270.110) are
significantly less than those required in
a RCRA Part B permit application.
• Second, § 124.3(c) requires a
"completeness check" for traditional
permits, which EPA does not require for
RAPs. Instead, for RAPs, new §270.130
describes the finding that the Director
will make to determine whether to
tentatively approve or deny a RAP
application. Obviously, if the Director
feels that a RAP application is
incomplete, the Director will
communicate with the RAP applicant to
fill in any gaps, but it is not a specific
additional step in the process.
• Third, EPA has removed the facility
mailing list (§ 124.10(c)(l)(ix))
requirements; and
• Fourth, has reduced the Director's
public notice requirements under
§ 124.10(c)(l). (For RAPs, the Director
must send notices to local and State
agencies as required under RCRA
7004 (b), and to the RAP applicant.)
• Fifth, EPA is not requiring a pre-
application public meeting and notices
(§124.31); nor
• Sixth, public notice at the
application stage (§124.32); nor
• Seventh, the requirements for an
information repository (§ 124.33) at
remediation waste management sites,
but encourages the Director and the RAP
applicant to conduct these activities
where appropriate.
• Eighth and finally, the procedural
requirements for modification and
termination, revocation and reissuance
are much more flexible for RAPs than
for traditional RCRA permits. Today's
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rule allows the Director to specify these
requirements .site-specifically in the
RAP, instead of the EPA-promulgated ,
requirements such as in §§270.41,
270.42,'and 270.43. EPA expects.that
many States will have established
procedures in their remedial programs
for modifying, terminating and revoking
and reissuing RAPs. EPA is allowing for
any of these State requirements as long .
as they meet the threshold requirements
• of including an' opportunity for public
participation whenever significant
modifications are made (see
§270.170).i2
V. Requirements Under Part 264 for
Remediation Waste Management Sites
(§264.10))
In the proposed rule at §269.40(b),
EPA proposed that media remediation
sites (finalized in today's rule as
remediation waste management sites)
would be subject to the applicable
provisions of part 264 except Subparts
B-(General Facility Standards) and C
(Preparedness and Prevention). Subparts
A and D-DD would continue to apply
unchanged, at least for,wastes above the
Bright Line. EPA proposed this
approach,'as one option, because the
unit specific standards of part 264
provided ready-made standards to
ensure protection of human health and
the environment. However, EPA
recognized that part 264 standards other
than those in Subparts B and C also may
not be appropriate and solicited
comment on which, if any, other
provisions of part 264 should not apply
to media remediation sites (61 FR
18814). EPA also requested comment on
the "Unitary Approach" that would
remove all part 264 standards for
remediation wastes. ' .
After examining public comments on
this part of the proposal, EPA has
decided to finalize a somewhat different
approach from what was proposed.
Specifically, today's rule at § 264. l(j)
provides that remediation waste
management sites must comply with all
parts of part 264 except Subparts B, C, -
D (Contingency Plan and Emergency
Procedures), and §264.101.13 In place of
the requirements in Subparts B, C, and
D, however, EPA is finalizing
12 Note that by complying with the public
participation requirements for RAPs, a facility
owner/operator may not have automatically
fulfilled all applicable public participation
requirements for corrective action, closure/post-
closure, or any other cleanup-related activities that
require public participation and the facility owner/
operator needs to remain cognizant of these
separate public participation requirements.
'3Note that § 264.1080(b)(5)'already includes an
exemption from Subpart CC for certain wastes that
are generated as the result of implementing
remedial activities.
performance standards based on the
general requirement goals in these
sections.14 These new standards
eliminate the specific requirements of
Subparts B, C, and D, which for two
reasons can be inappropriate for
remediation-only sites. Either the
requirements were not specifically
designed for the treatment, storage, and
disposal activities during cleanups, or
they are likely to duplicate or conflict
with requirements imposed under the
remedial authority compelling cleanup.
Thus, the provisions finalized today
ensure that the concerns addressed by
these provisions will be addressed by
the. Director in the permit or RAP,
without requiring specific conditions
that may be inappropriate. At the same
time, EPA has chosen not to amend the
unit-specific standards of Part 264 for
remediation waste, although the Agency'
continues to believe a more extensive
revision of these requirements is
appropriate. The applicability of
§ 264.101 is discussed in section VII. of
this preamble.
A, Comments on, Applying Part 264
Standards to Remediation Waste .
Management Sites
Many commenters, arguing for the
Unitary Approach; suggested that Part
264 standards should not apply to
remediation waste management, and
that regulatory Agencies overseeing
cleanup should have broad flexibility in
imposing conditions on specific units.
Other commenters suggested more
narrowly that several of the specific Part
264 management provisions included in
the HWIR-media proposal are
unnecessary for managing remediation
wastes under a RAP: The earlier
commenters argued that these
requirements were clearly intended for
the long-term management of hazardous
waste at facilities which manage these -
materials on an on-going basis, whereas
many cleanups are short-term and do
not lend themselves to these restrictive
provisions. These commenters argued
that more flexibility is necessary to
allow cleanups to take place quickly
and to proceed unencumbered by
regulatory provisions more appropriate
for the risks posed by managing
hazardous "as-generated" process,
wastes. '
Specifically, several commenters
suggested that the Agency should allow
the Director to waive specific
requirements from Part 264 .or make
site-specific adjustments under
appropriate site-specific circumstances.
14 Of course, facilities other than remediation-
only facilities must comply with Subparts B, C,
andD. > -
Part 264, Subpart E
Commenters specifically mentioned
Part 264, Subpart E, requirements for
manifesting, and commented .that these
requirements should not apply to wastes
managed on-site. One commenter stated
that manifesting requirements were not
appropriate for all corrective action
activities and that specific manifesting
requirements should be set out in the
RAP for that site. EPA disagrees; the
Agency believes that manifesting is no
less important when hazardous wastes
are being transported off-site in the
remedial context than in the as-
generated waste context, and so these
requirements continue to apply to
hazardous remediation wastes.
However, manifests are not required
when wastes are managed on-site.
Part 264, Subpart F
Another commenter stated that
Subpart F §§264.90-264.100
groundwater monitoring and corrective
action requirements should not apply to
remediation waste units, because that
would lead to a perpetual cycle of waste
'management activities. This commenter,
in EPA's view, has raised a complex and
important issue. EPA believes that,
where a new land'based unit is created
as part of corrective action, it should be
handled as a landfill—subject to
Subpart F groundwater requirements
(including Subpart F § 264.100
corrective action)—or as a CAMU, under
which EPA establishes alternative site-
specific conditions to protect
groundwater.
On the other hand, where an old
regulated unit has released, hazardous
constituents into the environment, and
releases from the unit are being
addressed as part of a cleanup, EPA
believes that Subpart F requirements do
not make sense (since these • ...
requirements were designed primarily
as preventive standards for units that
had not yet had releases into the
environment); instead, remedial . .
authorities like CERCLA or RCRA
3004 (u) are better suited for defining
groundwater monitoring and cleanup
requirements at these units.
EPA's post-closure rule, which was
promulgated on October 22, 1998 (63 FR
56710), is designed to allow integration
of cleanup requirements at closing
regulated units into broader cleanup
requirements at specific sites, and may .
address the commenters' concerns.
Areas of contamination, which are not
typically "regulated units" subject to
Subpart F or unit-specific RCRA
requirements would be handled in a
similar fashion. The regulatory agency
facing an area of contamination would
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base specific decisions on groundwater
monitoring, cleanup levels, and cover
requirements on the remedial
authorities being invoked, rather than
on RCRA Subpart F or other unit-
specific requirements.
In summary, where a new land-based
unit is created, EPA disagrees with the
commenter; in this case, current Part
264 standards (including the CAMU)
should continue to apply. But where an
old or existing unit is being addressed
as part of a cleanup, EPA shares the
commenter's concerns. EPA believes
that considerable flexibility already
exists in the RCRA regulations to
address this situation, but the Agency
also acknowledges that further
evaluation (including possible statutory
changes) is appropriate.
Part 264, Subpart G
Another commenter stated that
Subpart G closure requirements could
be incorporated into the RAP, and
therefore a separate closure plan or
permit would be redundant. EPA agrees
with this commenter, and throughout
the RAPs section of today's preamble
stresses the importance of integrating
processes and documents whenever
possible and helpful. EPA agrees that, if
closure requirements can be integrated
Into the RAP, then two separate
documents will not be necessary.
At the same time, today's rule does
not alter the way that Subpart G or unit
specific closure requirements apply to
cleanup sites. Subpart G and unit
specific closure requirements apply to
new units permitted under a RAP, but
not to areas of contamination, or to old
units not already subject to Subtitle C
(for example, units where non-
hazardous wastes that subsequently
became hazardous were disposed). This
is how closure requirements apply at
any other regulated facility. Thus, if a
new landfill were created under a RAP
in the course of a remediation, it would
be subject to Subpart G closure
standards. Or, the Director might
approve a CAMU, which would provide
greater flexibility than the landfill
closure standards.
Subpart G or unit-specific closure
standards will not apply in areas of
contamination where new "placement"
of hazardous wastes has not occurred.15
Closure, and monitoring, at these units
or areas will be a remedial issue, to be
addressed under the remedial authority
i*For a description of what constitutes
"placement" In an area of contamination, see the
March 13, 1996 memorandum from Michael
Shapiro. Director. Office of Solid Waste. Stephen D.
Luftlg. Director, Office of Emergency and Remedial
Response, and Jerry Clifford, Director, Office of Site
Remediation Enforcement, regarding "Use of the
Area of Contamination (AOC) Concept During
RCRA Cleanups."
under which the cleanup is being
performed.
Part 264, Subpart H
Several commenters focused on Part
264, Subpart H, financial assurance.
They suggested that financial assurance
for corrective action has a very different
purpose from the propose it has for
operating facilities. Also, they suggested
that sites should be allowed to set up
site-specific plans for financial
assurance, depending on the specifics of
the site and the activities taking place.
Today's rule, however, does not
address financial assurance for
corrective action requirements, such as
the ability to finance a cleanup and
meet remedy goals. It does not impose
any additional requirements for
financial assurance for corrective action,
beyond what a facility may already be
subject to under other authorities. Thus,
at a remediation-only site, today's rule
would impose no financial assurance for
corrective action. However, if the site is
located at a facility subject to corrective
action, then the financial assurance
requirements for the corrective action
activities will still apply to the full
extent provided by this Subpart (that is,
on a facility-wide basis). That is,
designation as a remediation waste
management site does not eliminate
otherwise applicable financial-assurance
requirements.
At the same time, however, EPA has
chosen to retain the unit-specific
financial assurance requirements for
third-party liability and closure. EPA
recognizes that the very detailed nature
of the Agency's current requirements in
these areas may constrain some State
programs, and that in some cases it may
be better for the environment if marginal
facility owners are allowed (or required)
to proceed with cleanup, even if they
cannot secure financial assurance
mechanisms. (In this case, an
enforcement mechanism may be
preferable to a permit mechanism.) EPA,
however, did not solicit, or receive,
sufficient comment in this'area to
change the current requirements. Thus,
remediation units permitted under a
RAP will remain subject to the unit-
specific RCRA financial assurance,,
requirements for third-party liability
and closure.
Part 264, Subparts I, J, K, L, M, N, and
O
One commenter suggested that the
requirements in 40 CFR part 264,
Subparts I, J, K, L, M, N, and O, be
specifically incorporated into RAPs only
as necessary. The commenter suggests
that they might not be necessary for
managing low-risk media. However,
EPA is not finalizing the Bright Line
which would have distinguished
between high- and low-risk media. EPA
agrees that these requirements only
need to be incorporated into the RAP if
they apply to units being permitted
under the RAP.
Part 264, Subpart BB
Finally, one commenter suggested
dividing Subpart BB into three tiers:
(1) Subpart BB would not apply to
actions that would take place for a
shorter time than one year;
(2) The Director would apply Subpart
BB, as appropriate, to actions that
would take between one and three
years; and
(3) Subpart BB would apply in its
entirety for actions taking longer than
three years. Again, EPA has chosen not
to amend the unit specific standards of
part 264 for remediation waste, although
the Agency continues to believe a more
extensive revision of these requirements
is appropriate.
EPA believes that it will be extremely
rare for the Part 264, Subpart BB,
requirements to apply to units managing
remediation waste. The Subpart BB
requirements only apply to units
managing wastes with organic
concentrations of at least 10 percent by
weight. EPA believes that
concentrations at that high a level are.
rarely found in remediation wastes.
Also, if the Director determines that the
Subpart BB requirements do apply, but
are not appropriate for a particular
cleanup site, the Director can designate
the unit as a temporary unit. That
allows the Director to modify the unit-
specific standards as appropriate in
cleanup situations. However, temporary
units may only be used for a limited
period of time.
B. EPA's Response to These Comments
The Agency agrees with the many
commenters who pointed out that more
flexibility is desirable for many
cleanups, but does not believe at this
point that a blanket exemption from Part
264 is appropriate. In the first place, •
certain requirements (for example,
MTRs for landfills) are imposed by
statute, and EPA does not believe the
Agency has the authority to eliminate
them in today's rule. In addition, EPA
does not believe the Agency has fully
aired the issues for public comment. For
example, EPA is not .convinced that
secondary containment is needed for
tanks in all remedial situations.
However, EPA did not solicit comment
specifically on this issue, and the
Agency is not prepared today to finalize
amendments to the current regulations.
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At the same time, EPA believes that
the current regulations already provide
significant flexibility in remedial
contexts. Secondary containment, for
example, is not necessarily required for
tanks or other units used in remediation
if they were approved as temporary
units under §264.553. Innovative
technologies can often be permitted
under the flexible standards of Subpart
X. As discussed earlier, the CAMU
regulations provide flexibility for land-
based units, as dp staging piles, which
are promulgated in today's rule and
discussed elsewhere in this preamble.
On the question of air emissions,
raised specifically by one commenter,
EPA notes that the temporary unit
standards allow the Director to develop
alternative operating standards for
, temporary tanks and containers
managing remediation waste (which
would include alternative standards- to
Subpart BB; if they applied). And
furthermore, EPA has explicitly
exempted on-site remedial activities
under EPA or State cleanup .authorities,
from Subpart CC standards. Thus, while
EPA believes that further review and
tailoring of the current technical
permitting standards for remediation
waste is appropriate, the Agency also
concludes that considerable flexibility
already exists.
C. EPA Is Providing Relief From Part
264, Subparts B, C, and D
On the other hand, in today's rule,
EPA is amending the general facility
standards of Subparts B, C, and D to
provide greater flexibility for owner/
operators of remediation waste sites.
Instead of the current, detailed •
requirements in these Subparts, persons
"managing remediation waste sites will
be able to meet general performance
standards. These performance standards
define the facility requirement, such as
"inspect the facility ... often enough to
identify problems in time to correct
them," but allow considerable flexibility
to the regulator in determining how an
owner/operator will meet those
standards. The Agency believes that the
basic goals of Subparts B, C, and D
continue to be important, but also EPA
believes that the protection desired
under Subparts B, C, and D can be
achieved at remediation waste
management sites by applying the
performance standards of today's rule.
Flexibility in applying many of these
substantive requirements is important
because of the wide variety of
remediation waste management
activities that may be permitted under a
RAP, everything from managing small
volumes of Investigation-derived
wastes, to remediating large volumes of
contaminated soils, or treating highly
concentrated remediation wastes: Also,
some activities permitted under RAPs
may be very short-term actions, and yet
some may involve multi-year treatment
of remediation wastes, at a large
remediation waste management site.
The following paragraphs describe the
flexibility EPA is providing for general
RCRA facility standards in §264.1Q).
The opening sentences of §264.1 (j)
provide for applicability of these
provisions instead of § 264.10.
Section 264.l(j)(l)
Instead of § 264.11, new § 264.1 (j) (1)
requires the facility owner/operator to
obtain an EPA identification number.
These identification numbers are
important to allow EPA and States to
track activities at facilities that generate
hazardous wastes, whether as a result of
ongoing processes or during cleanup. '
This is a simple procedure and can be
done quickly. This standard is only
different from § 264.11 entitled
"identification number," because of
editorial changes to enhance readability.
The requirements in §264.12 do not
apply to remediation waste management
sites because they are requirements for
receiving wastes from foreign
(§264.1'2(a)) and off-site (§264.12(b))
sources, which will not occur at
remediation waste management sites.
(Owner/operators are exempt from the
§ 264.12 (b) requirements when they are
also the generator. The only way an
owner/operator can have a RAP at an
off-site location is if they are both the
generator and the owner/operator of the
off-site location. Therefore, this
requirement will never apply to RAPs.)
Section 264.1(1) (2)
Instead of "general waste analysis"
(§ 264.13), today's rule requires a
chemical and physical analysis of the
hazardous remediation waste under new
§ 264.1 (j) (2) , which at a minimum must
contain all the information needed to
treat, store, or dispose of the waste
according to this part and part 268. The
waste analysis must be accurate and up .
to date.
This requirement mirrors the existing
requirement in §264.13(a)(1), which
sets out the general goal of the waste
analysis requirement. However, this
standard eliminates requirements that:
(1) Were written with facilities '
engaged in the business of hazardous
waste operations in mind (for example,
§264.13 (a) (3), which addresses analysis
of wastes from unfamiliar off-site
sources); or .
(2) Are likely to duplicate or conflict
with requirements imposed by the
remedial authority at the site (for
example, 264.13(b) to develop an
analysis plan that may duplicate testing
done for site-characterization and
remedy selection).
EPA expects that waste analysis plans
developed under a reliable cleanup
program, such as^EPA's RGRA corrective
action program or its CERCLA program,
will provide enough data to meet this
requirement. EPA emphasizes that
waste analysis should be tailored to
provide information needed to manage
cleanup wastes successfully. EPA does
'not encourage analysis for analysis'
sake. - • . ''
Section 264. l(j) (3)
Instead of the "security" provision
(§ 264.14), EPA has promulgated a
performance standard at § 264.1 (j) (3) to
warn potential intruders and to
minimize the unauthorized entry of
persons or livestock onto the active
portion of the remediation waste *,
management site. EPA allows an
exemption from this requirement if the
facility owner or operator can show that
this entry will not injure these persons
or livestock or cause^violations of the
requirements in part 264.
For traditional RCRA permits, this
requirement and the exemption are at
§264.14(a). However, §264.14(b) and (c)
are very detailed in exactly how to
provide that security. EPA has
determined that, for remediation waste
management sites, the performance
standard reasonably provides that the
site will be secure, but allows flexibility
in achieving that goal. This takes into
account the different types of activities "
that may be taking place at remediation
. waste management sites. -..
Section 264. l(j) (4)
Instead of the "general inspection
requirements" (;§264.15), EPA has
promulgated a performance standard at
§ 264.1 (j) (4) requiring facility owner/
. operators to inspect the facility often
enough to identify problems in time to
correct them before a problem leads to
a human health or environmental
hazard. This performance standard,
which is the same as the current
permitting requirement, also: .
• Requires the facility owner/operator
to take action immediately if a hazard is
imminent or has already occurred;
• Is drawn from the language in
§ 264,15(a) and (c);
• Ensures that the facility owner/
operator will make appropriate
inspections; but •
• Allows for flexibility in how these
inspections will be done.
EPA is not requiring the other parts of
§ 264.15(b) and (d) regarding a written
schedule and log, but instead, new
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,65908 Federal Register/Vol. 63, No. 229/Monday, November 30, 1998/Rules and Regulations
§264.1(j)(12) and (13) require the
facility owner/operator to have a plan
and records. EPA expects this approach
will be more streamlined than requiring
a separate plan and record for each
activity under 264.1Q).
Section 264.1(1) (5)
Instead of the "personnel training"
requirements at §264.16, EPA has
promulgated §264.10) (5) requiring the
facility owner/operator to train
personnel to perform their duties in a
way that ensures the facility's
compliance with the requirements in
this part, and to respond effectively to
emergencies. This performance standard
is derived from the requirements in
§264.16(a)(l)and(3).
Training is important when personnel
are dealing with hazardous substances,
not only to ensure proper precaution
during normal operations, but also to
ensure that well-trained personnel are
available and can respond effectively in
emergencies. This performance standard
requires training, but is flexible enough
to cover a wide range of reasonable
programs. For example, -where a site is
subject to Occupational Safety and
Health Administration (OSHA) or
similar training standards for hazardous
waste site workers, additional standards
probably will not be necessary. EPA
does not want to create duplicative
requirements where training is already
adequate.
EPA is not specifying all of the details
of how to provide and keep records of
training as is required under
§264.16(a)(2), (b), (c). (d), and (e). EPA
believes that each site will be very
different and require different
intensities of training. Also,
§ 264.1 (j)(13) will ensure proper records
are maintained.
Section 264.10) (6)
Instead of the §264.17 "general
requirements for ignitable. reactive, or
incompatible wastes," EPA has
promulgated the performance standard
at§264.1(j)(6). This standard requires
facility owners and operators to take .
precautions when managing ignitable,
reactive and incompatible wastes. This
performance standard is similar to the
§264.17(a) and (b) requirements.
Because ignitable and reactive wastes
can be highly dangerous materials, and
because different properties of different
hazardous wastes can cause explosions,
toxic fumes, or other hazards if they
react with other incompatible materials,
it is important to take appropriate
precautions when dealing with these
wastes. EPA did not include the
specifics of how to separate wastes from
potential sources of ignition or reaction
or what kinds of reactions to avoid or
how to document compliance. EPA
believes that, due to the level of
oversight at cleanup sites, these
precautions will be adequately
addressed, and recordkeeping will be
addressed under new § 264.1 (j) (13).
Section 264.18(a) does not make sense
for remediation waste management
sites, as contaminated areas are already
located in a certain location, and if the
remediation waste management site
must be located in the area of
contamination or areas in close
proximity, there is not much choice
about where to locate the remediation
waste management site. Therefore, EPA
has not included a performance
standard for remediation waste
management sites instead of §264.18(a).
However, EPA expects facility owners
and operators to do their best to locate
units a safe distance from faults
whenever possible. EPA has required
compliance with this standard under
§270.230(d)(4) when alternative
locations are approved for remediation
waste management.
Section 264.1(j) (7)
Section 264.1 (j) (7) is the same
requirement as the provisions of
§ 264.18 (b) for floodplains, but re-
written to enhance readability. Section
264.18(b) already provides some
flexibility for locating within a
floodplain (provided certain mitigating
design or operating criteria are met).
Today's performance standard allows
the same flexibility.
Section 264. l(j) (8)
Section 264.1(j)(8) is the same
requirement as §264.18(c) for salt dome
formations, salt bed formations,
underground mines, and caves. This is
also a RCRA statutory requirement at
RCRA § 3004(b), and is the same as that
in § 264.18(c), but is re-written to
enhance readability. EPA believes that it
is unlikely that the, situation
contemplated in this provision would.
arise during a remediation, but—;
because the requirement is statutory—
EPA included it in today's rule.
Section 264.10) (9)
Section 264.1(j)(9) requires the facility
owner/operator to have a construction
quality assurance (CQA) program for all
new surface impoundments, waste piles
(except staging piles), and landfill units
at the remediation waste management
site according to the requirements in
§264.19. While this requirement is
included under "General Facility
Standards," EPA views the requirement
as more akin to the unit-specific,
technical standards that appear later in
Part 264. Because EPA did not .
specifically solicit comment on the
technical need for these requirements in
a remedial context, or the possibility of
more flexible alternatives, the Agency is
not prepared at this point to revisit
them. Therefore, EPA (consistent with
the Agency's decision to leave Part 264
unit-specific requirements intact) has
simply required compliance with the
existing requirements in §264.19. EPA
notes, however, that these requirements
do not apply to CAMUs or to already
existing areas of contamination where
waste is left in place.
Section 264.10) (10)
Section 264. l(j) (10) requires that,
instead of Subpart C—Preparedness and
Prevention (§§264.30 through 264.37)
and Subpart D—Contingency Plan and
Emergency Procedures (§§264.50
through 264.56), the facility owner/
operator must have accident
preparedness and prevention
procedures and a contingency and
emergency plan. These plans must: (1) '
ensure that the hazardous waste units at
remediation waste management sites are
designed, constructed, maintained, and
operated to minimize the possibility of
an emergency; and (2) minimize hazards
to human health or the environment
from any emergencies from treating,
storing, and disposing of the hazardous
remediation waste.
The performance standard embodies
the requirements in §264.31 and
§ 264.51. However, the Part 264,
Subparts C and D, requirements include
considerable detail about preparing for
and responding to emergencies. In the
cleanup scenario, this detail can become
a problem because of the wide variety
of activities taking place. Detailed
requirements may be redundant with
other cleanup requirements or simply
unnecessary in many cases. For
example, the cleanup program
overseeing the remediation-may already
have procedures for notifying police,
fire departments, and emergency
personnel. In this case, the specific
requirements in Part 264, Subparts C
and D, would be redundant. Because of
the wide variety of activities that may be
taking place at a remediation waste
management site, and the fact that these '
activities may often be short-term, EPA
is allowing considerable flexibility in
these preparedness requirements.
Section 264.10) (11)
New 264.1 (j) (11) requires the facility
owner/operator to designate one or more
employees as an emergency coordinator.
This is the same requirement as under
§ 264.55. This requirement makes it
possible to implement the emergency
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Federal Register / Vol. 63, No. '229 / Monday, November 30, 1998 / Rules and Regulations 65909
procedures'in the contingency and
emergency plan quickly and efficiently.
In any circumstance involving treating,
storing, or disposing of hazardous
wastes, including hazardous
remediation wastes, an emergency
coordinator facilitates an effective
response.
Sections 264.1(j)(12) and (13)
New § 264.1 (j) (12) requires the facility
owner/operator to have and implement
a plan or plans to meet the requirements
in subparagraphs (j) (2) through (j) (6) and
(j) (9) through (j) (11). Thus, the facility
owner/operator must have a plan to
address waste analysis, security,
inspection, training, waste
compatibility, construction quality
assurance, and accident preparedness.
Also, new §264.1(j)(13) requires the
facility owner/operator to maintain
records documenting compliance with
subparagraphs (j)(l) through (j)(12).
In the existing Subparts B, C, and D,
each of the individual sections has
requirements to have plans and keep
records. New §§264;i(j)(12) and (13)
streamline those requirements by
requiring only one plan and one set of
records to cover the requirements
instead of several plans and sets of
records. Note, however, that the owner/
operator is not limited to one plan; more
than one plan would be perfectly
acceptable if that is more appropriate for
the particula'r site. These plans and
records are necessary so that the Agency
or the public can inspect the facility's
compliance with these requirements.
EPA believes that any well-managed
remediation project" will have plans and
records of this type, and the Agency '
does not anticipate that sites with
acceptable plans as part of their
remedial activities will have to reformat
or rewrite these plans solely to meet the
performance standards of today's rule.
It is important to note that, in the
same way as the current Part 264
standards apply to facilities, these new
standards under § 264.1 (j) apply at
remediation waste management sites
only to hazardous remediation waste
management units, not to units that are
not otherwise subject-to Part 264
requirements, such as solid waste
management units, or exempt hazardous
waste units.16
In the proposed rule, the requirements
in Subparts B and C were waived for
media remediation sites (which in the
•final rule are remediation waste
management sites) under RAPs. There
was no mention that there could
possibly be a media remediation site
that was not permitted by a RAP. Under
the final rule, EPA acknowledges that
there may be remediation waste
management sites that are permitted
under a traditional RCRA permit, and so
has not specified that the new part 264
requirements for remediation waste
management sites are limited to those
permitted under RAPs, but are available
for all remediation waste management-
sites.
The arguments for alternative
standards still apply, even without the
limitation to RAPs. Remediation waste
management sites will vary greatly
between the different types of
remediation wastes and activities taking
place. They will ;be subject to cleanup
requirements under the programs
requiring cleanup at these sites, and '
often cleanup requirements and the
traditional part 264 standards may be
duplicative. Therefore, today's rule
makes these new part 264 performance
standards available for all remediation
waste management sites.
VI. Application of RCRA Sections
3004(u) and (v), and §264.101 to
Remediation Waste Management Sites
(§264.101(d))
EPA proposed that the 3004 (u) and (v)
facility-wide corrective action
requirement, (which is implemented
through §264.101) would generally not
apply to facilities that obtain RMPs (see
proposed §269.40(d)). EPA has
included in the final rule in §264.1 (j)
that § 264.101 does not apply to
remediation waste management sites.
However, some remediation waste
management sites may be part of a
facility that is subject to a traditional
RCRA permit because that facility also
treats, stores, or disposes of hazardous
wastes that are not remediation wastes.
The rule does clarify that in these cases,
Subparts B, C, and D, and §264.101 do
apply to the facility subject to the
traditional RCRA permit. EPA also
amended §264.101 to add a paragraph
(d) as follows: "(d) This section does not
apply to remediation waste management
sites unless they are part of a facility
subject to a permit for treating, storing
or disposing of hazardous wastes that ,
are not remediation wastes." Subpart F
§264.101 facility-wide corrective action
does not apply to remediation waste
management sites.17 This issue is more
16 Of course, solid waste management units are
subject to § 264.101 corrective action requirements
at facilities subject to corrective action.
17 The exclusion of remediation waste
management sites from the definition of facility in
today's rule is strictly limited to the definition of
facilityfor purposes of corrective action, which is
found in part (2) of the definition of facility.
Remediation waste management sites are not
excluded from part (1) of the definition of facility
for other purposes.
fully discussed in today's preamble
section on the definition of remediation
waste management site.
VII. Staging Piles (§§260.10 and
264.554)
A. Introduction and Background
Today's rulemaking establishes a new
type of unit-— the staging pile— which
will provide needed regulatory
flexibility for the facilitation of certain
cleanup activities, while ensuring
environmentally protective results. A
staging pile is an accumulation of solid,
non-flowing remediation waste (as
defined today in 40 CFR 260.10) that is
not a containment building and is used
only during remedial operations for
temporary storage at a facility. Today's
regulations provide the Director with
the authority to designate and approve
staging piles for the purpose of storing
remediation waste. In today's staging
pile provisions, EPA has modified the
remediation pile concept proposed in
the HWIR-media proposal on April 29,
1996 in response to comments and also
to correspond with other changes that
have been made to the rule since its
proposal. .
A goal repeated throughout today's
final rule is the achievement of
environmental progress by facilitating
the cleanup of as many contaminated
sites as possible. The physical,
economic, and technical limitations on
the operation of a cleanup program
often dictate that remediation wastes be
temporarily stored on-site prior to
completion of the remedial activity. The
regulations establishing staging piles are
designed to provide greater flexibility
for decision-makers to implement
protective, reliable, and cost-effective
remedies. Staging piles will allow short-
term storage to occur under
circumstances that are protective of
human health and the environment,
without the extensive set of prescriptive
standards that may be required for units
in long-term use.
EPA believes that the additional
flexibility provided by staging piles will
improve the ability of program
implementors and facility owner/
operators to implement the most
effective remedy for any given facility.
For example, the use of staging piles
will facilitate short-term storage of
remediation wastes so that sufficient
volumes can be accumulated for
shipment to an off-site treatment
facility, or for efficient on-site treatment.
The'Agency also anticipates, for
example, that staging piles will facilitate
treatment technologies such as chemical
extraction by allowing on-site
accumulation of sufficient treatment
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65910 Federal Register/Vol. 63, No. 229/Monday, November 30, 1998/Rules and Regulations
volumes. In'addition, staging piles
should be useful since they will allow
storage of wastes during the conduct of
interim measures at a facility, while
decisions on .the final remedy are being
formulated. Longer-term and more
complex activities such as land-based
treatment and permanent disposal will
not be allowed in staging piles. As
discussed more fully below, the Agency
believes that these activities are more
properly conducted in CAMUs
(§264.552, promulgated on February 16,
1993; 58 FR 8658).
To facilitate the cleanup of sites
contaminated with hazardous waste, the
Agency believes that it must remove
some of the obstacles to cleanup that
exist in the RCRA Subtitle C program.
These obstacles stem from the Subtitle
C program's structure as primarily a
"prevention oriented" program, with
requirements that can act as a
disincentive to protective remedies in
"response-oriented" programs and can
limit the flexibility of decision-makers
to choose the most appropriate remedy
at a site. Although LDRs and MTRs,
established in RCRA Section 3004 (m)
and (o) respectively, are appropriate to
ensure proper ongoing management or
permanent disposal of hazardous
industrial waste, these sections of the
statute often become a barrier to cleanup
and overall environmental protection
when applied to remediation waste.
Under current regulations, waste piles
are considered land disposal units, and
all hazardous wastes must therefore be
treated to LDR standards before being
placed into a waste pile. Large volumes
of waste and contaminated media are
often encountered during remedial
actions and, because LDR and MTR
often create a disincentive to exhuming
hazardous remediation waste, EPA
believes that allowing these wastes to be
temporarily stored in on-site piles
without meeting LDR and MTR
standards will significantly further
prompt remediation. Accommodating
the need for temporary storage in piles
without imposing LDRs and MTRs was
also generally supported by the
Committee authorized by the Federal
Advisory Committee Act (FACA),
representing the interests of industry,
government and environmental groups, •
whose recommendations formed the
basis for the proposed rule. In addition,
the overwhelming majority of
commenters that addressed the
proposed remediation piles expressed
support for a new type of unit that
would allow for temporary storage in
piles. A number of commenters
emphasized that, even if EPA decided to
retain the CAMU regulation, piles
would be useful as a reasonable option
for storage of materials awaiting
transport or on-site treatment. Although
many of the commenters also supported
treatment in piles (which is not allowed
under today's rule), the consensus of
commenters was that the ability to
operate some kind of temporary pile
that would not trigger LDRs or MTRs
would be beneficial to the remedial
process by promoting efficient cleanups.
Not one of the commenters disputed
that LDRs and MTRs can be a barrier to
increasing the rate and quality of
cleanups. It was with the backing of this
consensus that today's staging pile
regulation was formulated.
Applying LDRs to temporary
placement of remediation waste often
makes it impractical to store hazardous
remediation wastes in a pile pending Its
ultimate disposition, since this land
placement generally may not occur prior
to treatment to LDR standards. This
essentially presents the remedial
decision maker with three options:
• Leaving remediation waste in place;
• Storing it in a tank or container (or
temporary unit, when available) prior to
further management;
• Or seeking a CAMU.
Leaving waste in place is often an
unsatisfactory solution due to the
potential for future risks to public
health, an outcome that EPA strives to
discourage. Temporary unit or tank and
container storage, although sometimes
preferable in cases where the volume of
waste is not particularly large, may
cause delay and add complexity for sites
with a large volume of waste, while
providing little, if any, additional
benefit to human health and the
environment. CAMUs are also an
option, but they have proved to be
administratively complex for relatively
short-term storage. The Agency
therefore believes that the temporary
storage in staging piles, subject to
regulatory imposition of site-specific
requirements and oversight, is
preferable to the present regime, which
encourages the continuing, unmanaged
presence of remediation waste for an
indefinite period of time.
Staging piles do not replace existing
mechanisms that allow remediation
waste managers to tailor RCRA
requirements to accommodate site-
specific circumstances. These include
CAMUs, temporary units (§264.553),
treatability variances (§268.44), and the
Area of Contamination (AOC) policy.18
Rather, staging piles provide an
additional mechanism which may be
used for short-term storage when, for
example, the AOC policy does not apply
and tank, container, or temporary unit
storage is not feasible. Below is a
comparison chart of the units most
applicable to today's rulemaking:
Type of unit
Staging Pile §264554
GAMU §264 552
Temporary Unit
§264.553.
ation.
Unit structure
Pile
Designated Area or
Unit within a Facility.
Tank or Container
Storage Area.
Contamination.
Kind of waste
Remediation Waste ....
Remediation Waste ....
Remediation Waste ....
Remediation Wast©
Time limit
2 years plus one 1 80-
day extension pe-
riod.
None
1 year plus a 1 year
extension period.
None
Management activities
Storage.
Treatment, Storage, and/or Disposal.
Treatment and/or Storage.
Storage, In-Situ Treatment, Disposal.
B, A Summary of Principal Changes
From the Proposal
I. Changes From the Proposal
The staging pile regulation
promulgated today is based on the
'» Memorandum from Michael Shapiro, Director,
Office of Solid Waste, Stephen D. Luftig, Director,
remediation pile regulation proposed on
April 29, 1996 in the HWIR-media
proposal. Today's regulation differs
from the remediation pile proposal in
five main ways;
Office of Emergency and Remedial Response, and
Jerry Clifford. Director, Office of Site Remediation
• The name is changed;
• Treatment in the pile is not
allowed;
• "Temporary" is defined;
• A more specific performance
standard is added; and
Enforcement, EPA to RCRA Branch Chiefs and
CERCLA Regional Managers (March 13, 1996').
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Federal Register/Vol.'63, No. 229/Monday, November 30, 19987 Rules and Regulations 65911
• The closure requirements are
defined.
These changes, as well as other issues
and responses to major comments, are
discussed below.
First, EPA changed the name from
"remediation piles" to "staging piles" to
make it clear that these piles are to be
used only for the temporary storage of
remediation wastes, and not for other
remediation activities such as treatment;
Second, the primary difference
between the staging pile regulation
finalized today and the proposed
remediation pile regulations is that
today's rule does not allow for treatment
in the pile. The Agency recognizes the
effectiveness of many treatment
approaches relying on engineered piles,
and does not wish to discourage their
use, where appropriate. At the same
time, one commenter vigorously
opposed treatment in remediation piles. •
The Agency acknowledges that some
forms of. "treatment," (for example, air
stripping, or in some cases, biological
treatment) may raise concerns with
regard to air emissions. Therefore, for
today's rule, EPA has restricted
treatment to units other than staging
piles, such as CAMUs. The CAMU
decision criteria, as applied through the
overseeing agency designation process,
provide a way to ensure that the
activities that occur in a CAMU have
more protective design and operating
controls than what is called for in the.
case of the short term, generally lower
,risk activities, allowed to take place in
staging piles. The CAMU regulation
includes, for example, a specific ground
water monitoring requirement and ah
associated performance standard (40
CFR 264.552(e)(3)). Furthermore, the
designation of a CAMU through a
permit modification requires the more
extensive Class 3 procedures while
today's staging pile regulation requires
Class 2.
In. addition, the temporary unit
regulation (§264.553, promulgated on
February 16,1993; 58 FR 8658) allows
for treatment, as well as storage, of
hazardous remediation waste in tanks or
containers.19 Like the CAMU rule, the
regulations governing temporary units
are designed to address the risks posed
by treatment in the remedial setting.
First, temporary units are containerized,
rather than land-based, and therefore
generally pose less risk of releases or
cross-media transfer than do the land-
based staging piles. In addition,
temporary units may only operate for
19 Using th'e temporary unit regulation, the
Director imposes alternative requirements, based on
site-specific conditions, for temporary tank or
container units used for the treatment or storage of
remediation waste during a remedial action.
one year unless they receive an
extension. The temporary unit
extension, which can be granted once
for one year, can only be provided after
a site-specific determination is made by
the Director that continued operation of
the unit will not pose a threat to human
health and the environment and is
necessary to ensure timely and efficient
implementation of remedial actions at
the facility (§264.553(e)). The
temporary unit time limitation is more
stringent than the time limit provided in
today's staging pile regulation. In
general, the relatively short amount of
time allowed for treatment in a
temporary unit addresses the greater
risk to human health and the
environment that may arise through
treatment activities.
Third, unlike the proposal, the final
rule defines the temporary nature of
staging piles as a two-year lifetime for
the pile. At the end of the operating
term for the staging pile (which can be
designated by the 'Director as any
amount of time up to two years), all
hazardous remediation waste and
residues in the pile must be removed
unless an operating term extension (of
'up to 180 days) is granted by the
Director. .
Fourth, the Agency believes that the
process and analysis necessary for the
designation of a staging pile should be
more straightforward than that needed
for a CAMU due to the lower level of
potential risks presented from the
nature of activities that can take place •
in a staging pile, and EPA has designed
today's regulation accordingly. Because
staging piles are intended for the
temporary storage of remediation waste,
they will complement CAMUs and
temporary units by providing program
implementors and facility owners/
operators with an intermediate option to
•use in a number of circumstances, such '
as when temporary units do not have
the capacity for the chosen remedial
strategy, but a CAMU is not necessary.
A modest difference between the
proposed remediation piles and the
staging piles promulgated today is that
the Director will have more than the
temporary unit decision factors (as
proposed) to guide the establishment of
design and operating criteria for a
staging pile. In response to commenters'
requests, today's rule includes a more
specific performance standard, set out
in §264.554(d)(l), which expands upon
the temporary unit decision factors to
assist the Director in determining
appropriate staging pile design and
operating standards based on conditions
at a particular site. This performance
standard will be discussed in detail in
the s'ection of this preamble dealing
with the staging pile performance
criteria. The Agency's goal in providing
this performance standard is to ensure
that the design criteria used for a staging
pile correspond to site- and waste-
specific characteristics. The proposed
regulation for remediation piles
included only a reference to the
decision factors for temporary units as
a guide to the Director in setting case-
by-case standards for remediation piles.
Today's staging pile regulatory text
includes language similar to the
/temporary unit decision factors, as well
as a performance standard, both of
which are incorporated directly into the
regulation to add more predictability
and assurance of protectiveness into the
process of designating a staging pile.
Clear expectations for performance
should provide a beneficial focus for
both the program implementor and the
facility owner/operator.
, Fifth, at the end of the staging pile's
operating term or extension period, the
staging pile is subject to one of two sets'
of closure requirements based on
whether the staging pile has been
located on either a previously
contaminated or a previously
uncontaminated area of the facility. If~
the pile has been located in an
uncontaminated area of the site, any
remaining contamination (containment
system components, subsoils, etc.) must
be decontaminated according to the-
clean closure standard for waste piles in
§264.258(a) and the closure
performance standard of § 264. 111. (For
interim status facilities, the standards to
be used are located In §265.258(a) and
§ 265. 111.) On the other hand, if the pile
has been located on a previously
contaminated area of the site, all
remediation waste, contaminated
containment system components; .and
structures and equipment contaminated
with waste and leachate must be
removed or decontaminated within 180
days after the expiration of the operating
term of the staging pile. Also, the
facility owner/operator must
decontaminate contaminated subsoils in
a manner and pursuant to a schedule
that the Director determines will protect
human health and the environment.
These closure requirements were added
to the final rule in response to
comments pointing out that despite
mentioning that "clean closure" was a
requirement in the proposed rule
preamble, the Agency had not included
this language in the rule text. „ .
2. Consistent With the Proposal
In keeping with the proposal, staging
piles will be able to accept all types of
solid, non-flowing remediation waste,
rather than only hazardous
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65912 Federal Register/Vol. 63, No. 229/Monday, November 30, 1998/Rules and Regulations
contaminated media. Like CAMUs and
temporary units, staging piles cannot be
used to manage hazardous waste from
ongoing industrial processes, commonly
referred to as,"as-generated" hazardous
waste. In addition, as proposed, a
staging pile may be used only for the
storage of "solid, non-flowing"
hazardous remediation waste. Flowing
wastes are inappropriate for staging
piles because of the possibility of
releases and run-off of these wastes.
Also unchanged from the proposal is
the provision that staging piles will not
be considered land disposal units and
therefore placement of remediation
waste into a staging pile will not trigger
LDRs or applicable MTRs (RCRA section
3004(o). However, assuming the waste is
subsequently managed in a way that
triggers these requirements, LDRs and
MTRs will ultimately apply to the
remediation waste.
C. What Js a Staging Pile? (§264.554(a))
Section 264.554(a) states that "a
staging pile is ah accumulation of solid,
non-flowing remediation waste (as
defined in 40 CFR 260.10) that is not a
containment building and is used only
during remedial operations for
temporary storage at a facility. A staging
pile must be located within the
contiguous property under the control
of the owner/operator where the wastes
to be managed in the staging pile
originated. Staging piles must be
designated by the Director according to
the requirements in this section." This
provision includes the definition of
staging pile from §260.10 which is
discussed in the definitions section of
this preamble. This provision also limits
where the owner/operator may locate a
staging pile to within the contiguous
property under the control or the
owner/operator. This limitation was
originally in the definition of
remediation waste, however, as
discussed in the definitions section of
this preamble, EPA believed this limit
was more appropriate in the regulatory
text rather than in definitions. Finally,
this provision specifies that staging
piles must be designated by the Director
according to this section. Without
designation as a staging pile, a pile will
be considered a "waste pile" under
§ 264.250, and therefore subject to the
requirements in that section (including
LDRs and applicable MTRs). Since
today's staging pile regulation is not
self-implementing, the Director must
incorporate the provisions for a staging
pile into a permit (either traditional
permit or RAP), closure plan, or order
in which it is designated.
In keeping with the proposal, staging
piles will be able to accept all types of
solid, non-flowing remediation waste,
rather than only hazardous
contaminated media. Despite criticism
from one commenter who stated that
only media should be allowed to be
managed in a remediation pile, not
other forms of remediation waste, the
Agency has retained this approach
because non-media wastes can be
generated in very high volumes creating
remedial obstacles similar to those
created by large volumes of hazardous
contaminated media. In support of the
proposed approach, another commenter
argued that because contaminated
media is often "found in the same
shovel", as sludges and debris it would
be both difficult and inefficient to
attempt to regulate these differently. At
sites where this occurs, staging piles
would likely not facilitate ah
appropriate remedy if limited to
accepting only media.
One commenter suggested that the
Agency should encourage the
management of sludges and other non-
media remediation wastes in tanks and
containers instead of piles. EPA believes
that the Agency has at least partially
addressed the commenter's concern by
limiting the use of staging piles to non-
flowing wastes. This restriction serves
to eliminate some sludges as well as
other problematic wastes. EPA also
emphasizes that tanks and containers
can provide important protection in •
certain circumstances (for example, to
address run-off concerns), and the
Agency recommends the use of these
units where appropriate. At the same
time, EPA disagrees with the
commenter's premise that a waste's
status as "media" or "non-media" is
particularly relevant to the kind of unit
that waste should be stored in. The
concentration of hazardous constituents,
their teachability, and their volatility are
far greater concerns. More generally,
EPA believes that the decision on which
specific remediation unit is most
appropriate at a given cleanup depends
on numerous site-specific factors, and
that this decision should be made
through the site-specific permit process.
EPA has issued extensive guidance on
the management of remediation waste,
both under RCRA and CERCLA
(including the Best Management
Practices Guidance developed in
conjunction with this rule), which site
managers and regulators can use in
making their decision. EPA, however,
has concluded that more specific
direction on this issue is not appropriate
or necessary in today's rule.
Finally, as mentioned above, the final
rule provides that staging piles may be
used only for storage of remediation
wastes. "Treatment" will not be
permitted primarily for the reasons
outlined in the "A Summary of Changes
from the Proposal" section of this
preamble. To summarize, treatment was
a particularly sensitive issue for one
commenter and EPA acknowledges that
treatment, in some cases—such as air
stripping—may involve higher levels of
risks than typical storage. Furthermore,
treatment, .especially biological
treatment, is often a long-term activity.
Since staging piles are to be temporary,
they will not necessarily require fixed
controls such as leachate collection and
removal systems, which are more
appropriate for long-term use. Instead,
staging piles should be relatively easy to
create and dismantle given their
temporary nature and to expedite
remedial activities by providing the
opportunity for short-term storage.
Given these considerations, EPA has
decided that treatment should occur in
units that provide more specific
safeguards; that is, treatment units
meeting 40 CFR Part 264 requirements,
including those units specifically
designed for treatment in the cleanup
context (for example, CAMUs and
temporary units).
Although many commenters
supported both treatment and storage in
temporary piles, no commenter
suggested that, without including the
possibility of treatment, the piles would
not facilitate the remedial process.
Rather, a number of commenters
directly supported the need for
temporary storage of remediation waste
in piles, without LDR or MTR
applicability, before subsequent
management. One commenter
specifically stated that EPA should limit
these piles to storage only, citing the
increased potential for emissions to the
air and other pathways if treatment were
allowed. The Agency believes that
today's staging pile regulation
adequately addresses the commenters'
concerns.
D. How Is a Staging Pile Designated?
(§264.554(b))
Staging piles are subject to a few key
limitations. First, today's rule specifies
that the facility owner/operator may use
a staging pile to store hazardous
remediation waste (or remediation
waste otherwise subject to LDRs)20 only
if you follow the standards and design
criteria the Director has designated for
that staging pile. This language is an
outgrowth of the language proposed in
§264.554(a), which provided that a
20 For a discussion of situations where
remediation wastes that are no longer "hazardous"
may nonetheless remain subject to LDRs see 63 FR
28617-28620 (May 26. 1998). '
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'Federal Register/Vol. 63. No. 229/Monday. November 30, 1998/Rules and Regulations , 65913
remediation pile would only be used for
' the storage of remediation waste based
on design and operating standards the
Director had designated on a case-by-
case basis. Both versions of this
language make it clear that remediation
piles would not be self-implementing
and would have standards that must be
designated by the Director. The Agency
'received no adverse comments on this
aspect of the proposal, and so has only
re-worded this requirement for
readability in the final rule.
Second, the final rule states that the
Director must designate the staging pile
in either a permit or, at an interim status
facility, in a closure plan or order
(consistent with §§270.72(a)(5) and
(b)(5)). Consequently, staging piles can
also be approved under a RAP as
finalized by today's rule in Part 270
(because a RAP is a form of a permit).
The proposed rule would have required
remediation piles to be designated in a
"permit or order" (proposed
§ 264.554(a)). Corrimenters did not •
question this approach; however,
today's rule includes one clarifying
change to the proposed regulatory
languages* as well as an additional ,'
mechanism for designating a staging
pile.
The Agency adds a clarifying change
to today's final rule language which
specifies that staging piles may be
designated in orders at interim status
facilities only. In the proposal, the
Agency did not spe'cify when orders
could be used to designate a staging
pile. EPA intended that the same
mechanisms be used under today's rule
to designate staging piles as can be used
under the current regulations to
designate other types of units. At most
facilities, it is necessary to receive a
permit to implement hazardous waste
management units. However, at interim
Status facilities, units can be
implemented according to
§§270.72(a)(5) and (b)"(5) when required
under an order. EPA, therefore, has
included the language in the final
staging pile rule clarifying that orders
may be used to designate a staging piles
at interim status facilities to be
consistent with how other types of units
can currently be designated.
In today's rule EPA has included an
additional- mechanism—the closure
plan—for the designation of staging
piles at interim status facilities, since
the Agency believes that staging piles
will be useful to facility owner/
operators where remediation is
conducted during the closure of waste
management units. EPA believes it is
appropriate to allow staging piles to be
designated through closure plans since
final closure plans are enforceable and
because the closure plan approval
process, both at permitted and interim
status facilities, incorporates sufficient
public participation. In addition, EPA
believes it is also appropriate to make
closure plans available for the approval
of staging piles at interim status
facilities because an order may not
always be suitable. For example, the
owner/operator of an interim status
facility may wish to conduct cleanup at
a regulated unit and achieve closure by
removal even when he is not required
to do so under an order. As part of the1 .
closure, the facility owner/operator may
find it-most practical to stage the
removed waste in a pile, before it is
moved to an on or off-site treatment
unit. In this case, the facility owner/
operator can include staging piles, if
necessary for voluntary cleanup, into
his closure plan.
At a permitted facility, a closure plan
is a part of the original permit, and so
is approved following the traditional
permit approval process. Modifications
to closure plans are incorporated into
permits as permit modifications and
follow the appropriate permit
modification procedures found in
§ 270.42. Because staging piles require a
Class 2 permit modification,.as
discussed in the "How may my existing
permit (for example, RAP), closure plan,
or order be modified to allow the use of
a staging pile?" section of'today's
preamble, a staging pile incorporated
into a closure plan modification would
also require at least Class 2 procedures.
Because staging piles can be approved
through permits, it follows that a staging
pile can be designated in a closure plan
at a permitted facility. Nonetheless, EPA
wanted to make this clear, and therefore
has explicitly stated that staging piles
can be designated in closure plans.
At interim status facilities, the process
used to gain approval of a closure plan ,
also requires an opportunity for public
notice and comment. Specifically, these
Closure plans are approved according to
the requirements in § 265.112 (d). These
requirements include the opportunity, -
available through a newspaper notice,
for the facility owner/operator and the
public to submit written comments on
the closure plan and request
modifications to the plan within 30 days
of the date of the notice. In addition, the
Director can hold a public hearing to
clarify any issues regarding the closure
plan. Therefore, approved closure plans
can be used to designate staging piles
under today's rule.
The regulations regarding staging
piles are expected to be applicable or
relevant and appropriate requirements
(ARARs) for the remediation of RCRA
hazardous wastes at CERCLA sites. In
these cases, staging pile requirements
would be incorporated into CERCLA
decision documents rather than permits,
closure plans, or orders. This section of
the rule also includes language to make
it clear that a staging pile only "need be
designated in a permit (for example/a
RAP), closure plan, or order when
hazardous remediation waste (or
remediation waste otherwise subject to
LDRs) is being stored. Non-hazardous
remediation waste or remediation waste
that is no longer subject to LDRs can, of
course, be stored in a pile without being
designated as a "staging pile."
The third provision of new
§264.554(b) is the prqvision that the
Director must establish conditions in
the permit, closure plan, or order that
comply with paragraphs (d)-(k) of the
staging pile regulation. This portiop of
the regulation simply serves to affirm
that the provisions of the staging pile
regulation will be incorporated by the
Director into the designating mech'anism
for the pile.
E. What Information Must I Provide To
Get a Staging Pile Designated?
(§264.554(c))
Section 264.554(c)(l) sets out the
requirement that the facility owner/
operator must provide information to
the Director that will enable him to
designate a staging pile according to the
regulatory requirements in today's rule.
The Agency does not believe that the
evaluation of these performance criteria
will generally involve detailed
quantitative analyses; the level of detail
needed by the Director to make
decisions on appropriate design and
operating criteria will vary case-by-case
depending on site-specific factors, such
as proximity to points of exposure,
physical and chemical characteristics of
the waste, and hydrogeological
conditions at the. site. The Agency
anticipates that the information
contained in the RCRA Facility
Investigation or an analogous document
will contain most of the information
necessary to designate a protective "
staging pile. The Agency's intention
with this portion of the regulation is not
to create a burdensome reporting
requirement, but rather to authorize the
Director to require sufficient
information to enable him to designate
a staging pile.
Today's'rule also requires a
certification by an independent,
qualified, registered professional
engineer for technical data, such as
design drawings and specifications, and
engineering studies, unless the Director
determines, based on information
provided by the facility owner/operator,
that this certification is not necessary to
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65914 Federal Register/Vol. 63, No. 229/Monday, November 30, 1998/Rules and Regulations
ensure a staging pile that is protective
of human health and the environment
(§264.554(c)(2)). This certification
should be incorporated into any
documentation necessary for the permit,
closure plan, or order in which the
staging pile is designated. The Agency's
intention is not to create an obstacle for
the facility owner/operator, but rather to
provide assurance that the technical
information is accurate, has been
prepared by technically competent
personnel, and can be relied upon by
the Director. If the Director believes that
this certification is unnecessary, such as
in a case where the staging pile design
is to be very simple due to a short term
of storage or relatively low constituent
concentrations, the Director may waive
the need for the professional engineer
certification. Finally. RCRA
§ 264.554(c) (3) enables the Director to
request any additional information that
he determines is necessary to protect
human health and the environment.
EPA expects that this provision will be
used infrequently, but considers it
important to ensure that all pertinent
information is available to the Director
when making a decision on designating
a staging pile or staging pile extension.
Because this is not intended to be a
burdensome provision, the Director
should restrict any information request
to that which is necessary to protect
human health and the environment. The
Agency intends this portion of the
regulation to reinforce the Director's
ability to request additional information
to ensure that, for example, staging piles
are designed so as to prevent or
minimize releases of hazardous wastes
and hazardous constituents into the
environment (§ 264.554 (d)(l)(ii)).
Although an information requirement
was not included explicitly in the
proposed remediation pile regulation,
EPA believes that the Director's need for
information to designate a protective
staging pile was a principle embedded
in the proposal. The proposed
remediation pile regulation was
centered around providing, both the
regulatory agency and the facility, site-
specific flexibility with the goal of
matching the risk-based regulatory
requirements with the conditions at a
particular site. This flexibility can only
be granted when there is an exchange of
accurate and sufficient information
between the facility and the regulatory
agency. Moreover, under the proposal,
the Director could, of course, have
denied a request to designate a
remediation pile if he did not have
sufficient information to make a sound
protectiveness judgement, so his ability
to obtain additional information was
implicit. Therefore, to clarify this
expectation, today's §264.554(c)
explicitly defines what kind of
information must be provided to the
Director to enable him to make the
findings mandated by the regulations.
F. What Performance Criteria Must the
Staging Pile Satisfy? (§264.554(d)) ,
1. Performance Standards for Staging
Piles (§264.554(d)(l))
Many commenters requested that the
Agency avoid prescriptive national
standards that would not take into
account site-specific considerations and
therefore would be likely to over or
under estimate the exact design and
operating requirements needed at any
given facility. There were, however,
persuasive comments suggesting that a
performance standard for staging pile
design and operation is necessary, in
addition to the decision factors, to better
guide the program implementor and
facility owner/operator in setting site-
specific design and operating criteria
that will protect human health and the
environment. Consequently, today's rule
finalizes a performance standard that, in
combination with a specific time limit
for the piles, will ensure that staging
piles are protective without sacrificing
the flexibility that helps make staging
piles an implementable option at
facilities.
The Agency proposed a standard for
remediation piles that reads "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
response to comments suggesting a more
specific performance standard for
staging piles, the Agency has
promulgated today's performance
standard for staging piles. The staging
pile performance standard is based on
the principles underlying the staging ,
piles provisions, as well as provisions
that were already included in the
proposed remediation pile regulation. In
designating the performance standard
the Agency looked to the standard in the
CAMU rule as guidance (§264.552(c)).
The performance standard finalized in
today's rule (§264.552(d)(l))
supplements the decision factors for
temporary units as proposed. The
Agency believes that finalizing more
than the decision factors provides the
designating authority with more
complete guidance for the establishment
of protective design and operating
criteria. Under the rule, the decision
factors are elements that must be
considered when establishing standards
for the staging pile. The performance
standard is the Agency's overall
requirement for the-construction and
engineering of the unit. There were
some commenters that suggested the
Agency promulgate specific technical
requirements for the staging piles. These
comments appear to be based on the
concern that the proposed remediation
piles, which allowed treatment and
longer term storage, did not have
baseline standards. EPA believes that
today's staging pile regulation, which
allows short-term storage only, would
not be improved by prescriptive
standards due to the relatively low risk
posed by the piles and the requirement
that the Director take into account site-
specific conditions in setting standards.
The performance standard for staging
piles has three parts. First, "the staging
pile must facilitate a reliable, effective
and protective remedy."
(§264.552(d)(l)(i)) Second, "the staging
pile must be designed so as to prevent
or minimize releases of hazardous
wastes and hazardous constituents into
the environment, and minimize or
adequately control cross-media transfer,
as necessary to protect human health
and the environment (for example,
through the use of liners, covers, run-
off/run-on controls, as appropriate),"
(§264.552(d)(l)(ii)). Finally, "the
staging pile must not operate for more
than two years, except when the
Director grants an operating term
extension under paragraph (i) (entitled
"May I Receive an Operating Extension
for a Staging Pile?") of this section. You
must measure the two-year limit, or
other operating term specified by the
Director in the permit, closure plan, or
order, from the first time you place
remediation waste into a staging pile.
You must maintain a record of the date
when you first placed remediation
waste into the staging pile for the life of
the permit, closure plan, or order, or
three years, whichever is longer,"
(§264.552(d)(l)(iii)).
Therefore, in designating a staging
pile, the first consideration of the
Director will be whether the pile will
facilitate the implementation of a
reliable, effective, and protective
remedy (§264.554(d)(l)(i)). This
criterion is designed to require a site-
specific showing that the premise
behind allowing for these piles (see 61
FR 18831) is satisfied at each site where
they are used. By including this
criterion, the Agency is emphasizing
that the goal of today's staging pile
regulation is not to undercut the
protectiveness of the existing Subtitle C
regime, but rather to assist in the
execution of reliable, effective, and
protective remedies.
The second criterion requires that
activities associated with the design and
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Federal Register/Vol. 63, No.' 229 / Monday, November 30, 1998 /Rules and Regulations 65915
operation of the staging pile must
prevent or minimize releases of
hazardous wastes and hazardous
constituents into the environment, and
minimize or adequately control cross-
media transfer, as necessary to protect
human health and the environment
(§ 264.554(d)(l)(ii)). This portion of the
performance standard is an outgrowth of
the proposed remediation pile
regulation, because it simply adds
specificity to the proposed rule's
requirement that the standards must be
"protective of human health and the
environment" (proposed §264.554(a))
and that the "Director shall specify in
the permit or order . . . any
requirements-for control of cross-media
contaminant transfer" (proposed
§264.554(d)). Section 264.554(d)(l)(ii)
also builds upon the fourth and sixth
decision factors mentioned later in this
section of the preamble
(§ 26'4.554(d)(2)(iv) and (vi) which
require the Director to consider the
potential for releases from the unit and
the potential for human and
environmental exposure when
establishing standards for the staging
pile). A similarly worded performance
standard was suggested by one of the
commenters on the proposal. The
Agency agrees with the commenter that
it is advantageous to include a provision
directly in the performance standard for
staging piles, as is finalized in today's
rule. The Agency emphasizes that
minimizing or adequately controlling
cross-media transfer (for example,
transfer to air through volatilization or
particulate matter) is vital to the
protectiveness of a staging pile?1
This second criterion is also included
to ensure that there will be no
unacceptable risks created by the
storage of hazardous remediation waste
in a staging pile either during the
remedial activities or afterwards. Liners,
covers, and run-off/run-on controls are
all examples of design stipulations that
might be appropriate in specific
circumstances, and these examples have
been included directly in the regulation
to assist the Director. These examples,
however, are in no way a definitive list
of possible design stipulations that
'could be included in the permit, closure
plan, or order, nor would they always be
necessary. Depending on site-specific
21 Consulting the Agency's Best Management
Practices (BMPsj for Soil Treatment Technologies
(EPA530-R97-007, May 1997) guidance document,
which was developed to provide guidance on how
to identify and minimize the potential for causing
cross-media contamination during implementation
of cleanup technologies for contaminated soils or
solid media, is recommended to assist in ensuring
that this portion of the performance standard is
achieved.
circumstances, ground water and air
monitoring equipment may also be
appropriate to ensure adequate attention
to cross-media transfer from a staging
pile. However, the Agency anticipates
that this monitoring equipment will
often be installed as part of the overall
cleanup at the site rather than for the
staging pile itself. In addition to the type
of substantive standards and design
criteria described above, the rule also
allows the Director to specify operating
requirements for the staging pile by
providing that the Director must include
"standards." Examples of these
operating requirements include _
appropriate inspection schedules and
recordkeeping.
The Agency believes that the Director
will be able to make a determination of
what design and operating requirements
are necessary to prevent or minimize
rele'ases from the staging pile based on
information from the facility owner/
operator, site assessments, past
overseeing agency experience, and
standard-good engineering practices. If
the facility owner/operator does not
provide the information necessary for an
informed decision to be made regarding
what requirements are protective, the
staging pile should not be designated by
the Director.
One commenter suggested a "no
significant migration" standard be
included in the rule. The Agency agrees
that a staging pile should be' designed to
prevent any significant additional
migration of hazardous waste and
hazardous constituents. However, EPA
did not include this precise language in
the final rule because EPA believes that
the requirement that a staging pile be
designed so as to prevent or minimize
releases of hazardous waste and
hazardous constituents into the
environment and minimize or
adequately control cross-media transfer
will have an equivalent effect.
The final performance criterion
(§ 264.554(d) (1)(iii)) limits the use of
staging piles to two years, unless a 180-
day extension is provided, and
establishes a recordkeeping
requirement. Refer to the discussion
later, in this section on time limits for
details of this provision.
2. Decision Factors for Staging Piles
(§264.554(d)(2)
In the proposal, EPA requested
comment on whether to prescribe any
specific design or operating standards
for remediation piles or to allow the
Director to establish requirements on a
case-by-case basis using the decision
factors specified for temporary units.
The Agency's intent to use the slightly
modified temporary unit decision
factors, as expressed in the proposal,
received no negative comments and
consequently they are finalized in
today's rule. The Agency continues to
believe that these decision factors are
reasonable and will result in sound
decisions for staging pile design.
Specifically, the rule requires the
Director to consider the following
factors in establishing the standards and
design criteria for the staging pile:
(1) Length of time the pile will be in
operation;
(2) Volumes of wastes to be stored;
(3) Physical and chemical
characteristics of the wastes to be stored
in the unit;
(4) Potential for releases from the unit;
(5) Hydrogeological and other relevant
environmental conditions at the facility
which may influence the migration of,
any potential releases; and
(6) Potential for human and
environmental exposure to potential
releases from the unit.
EPA believes that these ••
considerations will help ensure that the
staging pile will be designed to protect
human .health and the environment.
G. May a Staging Pile Receive Ignitable,
Reactive, or Incompatible Remediation
Wastes? (§264.554(e))
The final rule contains a new
provision, §264.554(e), that addresses
the handling of ignitable or reactive
remediation wastes in a staging pile.
This new provision is a modification of
§ 264.256, the special requirements for
ignitable and reactive wastes in a waste
pile. Section 264.554(e) prohibits
placement of ignitable or reactive
remediation waste into a staging pile
unless the waste is made non-ignitable
or non-reactive as these characteristics.
are defined in §261.21 and §261.23,
while also complying with §264.17(b)
(which lists reactions that precautions
must be taken to prevent) or the waste
is managed in such a way that it is
protected from materials or conditions
which may cause it to ignite or react.
EPA expects that non-flowing wastes
encountered during cleanup will rarely
be ignitable or reactive.
When they are, however, they clearly
require continuing protection from
conditions which may cause them to
ignite or react. An important factor to
note is that mixing of wastes in a staging
pile is relatively common when storing
large volumes of waste. Unless these
wastes are rendered non-ignitable or
non-reactive, the facility owner/operator
may find it difficult to protectively
manage these wastes in a staging pile.
Reactive, wastes may be particularly
difficult to manage since a staging pile
can be directly exposed to the
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65916 Federal Register/Vol. 63, No. 229/Monday, November 30, 1998/Rules and Regulations
environment. The Agency will allow the
management of ignitable or reactive
wastes in a staging pile, as long as the
wastes are protected from the material
or conditions, which may cause them to
ignite or react. The modification to
§ 264,256 makes the provision
applicable to remediation waste in
staging piles rather than hazardous
waste in waste piles and enhances its
readability. Also, the language modified
from that of §264.256 does not allow
waste to be treated, rendered, or mixed
immediately after placement in a staging
pile, although this language is included
in the waste pile regulation
(§264.256(a)).
Since treatment is not permitted in a
staging pile, this portion of the waste
pile regulation was considered by the
Agency to be inappropriate and
therefore was not included in today's
rule,
H. How Do I Handle Incompatible
Remediation Wastes in a Staging Pile?
(§264.554(0)
The final rule also contains a new
provision. (§264.554 (f)), that deals with
the handling of incompatible wastes in
a staging pile. This provision is a
modification of §264.257, the special
requirement for incompatible wastes in
waste piles. The modification makes the
provision applicable to remediation
waste in staging piles rather than
hazardous waste in waste piles and
enhances its readability. The potential
dangers from the mixing of
incompatible wastes include, but are not
limited to, extreme heat, fire, explosion,
and violent reaction. Clearly, the
potential impacts on human health and
the environment which could result
from these conditions must be avoided.
To this end, the regulation includes a
provision that staging piles should "not
contain incompatible wastes unless
precautions are taken to avoid the
reactions listed in §264.17(b). The
regulation also states that if remediation
waste in a staging pile is stored near
incompatible wastes, precautions must
be taken to ensure that these materials
are protected or separated from one
another. Finally, for the same reasons as
those provided above, today's regulation
states that remediation waste must not
be piled on the same base where
incompatible wastes or materials were
previously piled, unless the base has
been decontaminated sufficiently to
ensure compliance with §264.17(b).
Although these provisions were not
included in the proposed rule, EPA
believes that it is reasonable to include
them in today's final rule because the
provisions do not create an additional
regulatory burden for either the Director
or facility owner/operator. The Director
would normally examine the possibility
of risk from ignitable, reactive, or
incompatible wastes being placed in a
pile before designating a pile, so these
provisions simply serve to ensure that
this caution wilt be exercised in every
case.
/. Are Staging Piles Subject to Land
Disposal Restrictions (LDR) and
Minimum Technological Requirements
(MTR)?(§264.554(g))
Like placement of remediation waste
into CAMUs, placement of remediation
wastes into staging piles will not trigger
RCRA LDRs. Because staging piles are
generally a subset of units that, absent
today's rule, would be CAMUs, this
provision is based on the Agency's
view, fully explained in the preamble to
the CAMU rule, that placement into
these units does not constitute "land
disposal" under RCRA section 3004 (k)
(See 58 FR 8658, 8662 (February 16, .
1993)). As stated in that preamble, EPA
believes this interpretation is reasonable
"since remedial areas are not a listed
regulatory unit under 3004(k), because
Congress recognized that the application
of LDRs to remediation wastes might
require a different framework than that
developed for the application to as-
generated wastes, and, . . . because the
direct application of preventive
standards to remediation wastes is often
inappropriate and counterproductive."
(See 58 FR 8662). Also, as explained in
the preamble to the CAMU rule, staging
piles would not be subject to the MTRs
under section 3004 (o), because the pile
is not a land disposal unit subject to
those requirements.
/. How Long May I Operate a Staging
Pile? (§264.554(h))
The remediation pile provisions, as
proposed, did not set limits on the
amount of time that remediation waste
could be in the pile, other than to say
that these piles would be "temporary"
and only available for use during
remedial operations. The proposal
requested comment on whether time
limits and renewals that prescribe the
lifetime of remediation piles should be
set at the national level.
Only one commenter agreed with the
proposal that EPA should not set a
specific limit, but instead allow the
staging pile to operate indefinitely.
All other commenters on this issue
recommended that EPA set a specific
time limit for operation of staging piles.
Suggestions ranged from six months to
three years, however, the majority of
commenters recommended two years.
Several commenters also suggested that
EPA allow a limited extension of the
time limit when necessary. Suggestions
for extensions ranged from six months
to three years.
EPA has decided to impose a two-year
time limit on staging piles, with the
opportunity to obtain a six month
extension, when necessary. EPA agrees
with commenters who feel that there is
a need to define "temporary" in the
context of staging piles. The Agency
also agrees with commenters who
argued that a two-year time limit is
reasonable for the staging piles and
therefore has promulgated this limit in
today's rule. The Agency does not
believe that staging piles should exist
indefinitely or with an undefined
"temporary" lifetime because these
units might not be designed in a manner
protective enough for the "de facto"
disposal that might occur. In other
words, if "temporary" was left as the
only standard, the storage in staging
piles could take place for such a long
period of time that the risks to human
health and the environment would be
essentially equivalent to a disposal
scenario, which the staging piles
standards in today's rule are not
designed to address. The Agency does
not believe it is necessary to create
standards in today's rule to
accommodate a long-term storage
scenario because long-term storage and
disposal can be conducted in CAMUs
and, as discussed below, the operations
the Agency intends to accommodate in
this rule—staging—can generally be
conducted during the 2-year time
period.
EPA believes that a time limit that
generally corresponds to the length of
time needed for staging or storage
activities at a site is appropriate. EPA
consulted with program implementers
at the Regional and State level who
agreed that 2 years was an appropriate
limit for staging piles.
In response to commenters'
suggestions, EPA has decided to allow
a 6-month extension for staging pile
operation when necessary (see the
preamble discussion for §264.554(1)).
EPA again consulted with Regional and
State program implementers who agreed
that six months was an appropriate
amount of time to allow for an
extension. As discussed below in
section K, EPA believes that six months
provides an adequate balancing of
interests in providing flexibility while
ensuring that staging piles are indeed
temporary.
In practice, a facility owner/operator
could request, or the Director could
designate on his own initiative, a
shorter lifetime for a staging pile and
consequently the Director could set
design and operating requirements that
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would take into account this shorter
period of storage. The Director is
encouraged to establish a duration
shorter than two years, when
appropriate. .
Longer-term use of a staging pile,
however, is much more similar to
"disposal" activities which provide a
greater opportunity for releases. As
stated in the "Summary of Principal
Changes from the Proposal" section
above, the Agency has concluded, for
the purposes of today's rule, that land-
based treatment activities, long-term
storage, and permanent disposal are
more appropriately addressed using the
CAMU provisions in §264.552.
One commenter suggested that a two-
year time limit on staging piles is also
consistent with the limits on the storage
of prohibited wastes under § 268.50,
EPA's regulations implementing RCRA
section 3004 (j) ,22 In response to this
comment, which highlighted the
relationship between the staging pile
provisions and §268.50, the Agency
today is also amending §268.50 to
> expressly provide that storage of
hazardous wastes in approved staging
piles is not subject to the prohibition
contained in that section (§268.50(g)).
Section 268.50 provides that
hazardous wastes prohibited from land
disposal may not be stored unless
certain conditions are met. For r
treatment, storage, or disposal facilities,
those conditions are that this storage
takes place in tanks, containers or
containment buildings and is "solely for'
the purpose of accumulation of such
quantities of hazardous waste as
necessary to facilitate proper recovery,
treatment, or disposal." In addition,
dates of accumulation generally must be
clearly marked and.recorded.
EPA believes an express exemption
from these requirements (as opposed to
amending them to add staging piles to
the list of units in which storage may
conditionally take place) will eliminate
the need for regulatory agencies and site
owner/operators to engage in '
unnecessarily duplicative factual
findings, because the concerns
underlying the requirements in §268.50
(that is, that storage of prohibited wastes
only occur "as necessary to facilitate
proper recovery, treatment, or
disposal") will necessarily be satisfied
during approval of the staging pile.
Specifically, as discussed above, by
imposing a 'two-year time limit on
staging pile operation, today's rule is
consistent with the time limits in
22 RCRA section 3004 (j) provides that wastes,
prohibited from land disposal may be stored "solely
for the purpose of the accumulation of such
quantities of hazardous waste as are necessary to
facilitate proper recovery, treatment or disposal."
§ 268.50 (and, by way of analogy, the
two-year cap on. case-by-case capacity
variances under RCRA section
3004(h)(3)). In addition, staging piles
will only be used during remediation, a
process that is specifically designed to
"facilitate proper" recovery, treatment or
disposal" of wastes. The final staging
pile rule promulgated today will further
ensure this result, since it specifically
requires that staging piles only be
approved where they will "facilitate the
implementation of a reliable, effective
and protective remedy."
The final rule also makes clear that
the operating term limit (§264.554(h)) is
to be measured from the initial
placement of remediation waste in a -
staging pile. The closure process must
begin at the end of the operating term
o.r extension term (if approved by the
Director) for the staging pile. EPA
believes that, to make this requirement
implementable, a record must be kept
which defines the date of initial
placement of waste into the staging pile.
Therefore, EPA has included a provision
in the staging pile performance standard
(§264.554(d)(2)(iii)) that requires that a
record of initial placement date be kept
by the facility owner/operator for the
life of the permit, closure plan, or order
or for three years, whichever is longer.
This will aid in the enforcement of
staging pile time limits by providing a
.specific date by which to measure how
long remediation waste has been stored .
in the pile. The three-year period used
in today's rule as the minimum period
of record retention, is in keeping with
the recordkeeping requirement of "at
least three years" found in §270.30(j)
(which outlines the monitoring and
recordkeeping regulations applicable to
. all permits) and a number of other
recordkeeping requirements in RCRA
regulations (for example, §262.40).
K. May I Receive an Operating Term
Extension for a Staging Pile?
(§264.554(i))
In the proposal, the Agency requested
comment on whether any time limits
placed on remediation piles should be '
renewable. In response, an operating
term extension period was suggested by
a number of commenters.
Recommendations for the length of this
extension period varied from six months
to three years. The Agency agrees with
these commenters in that it can be
difficult to judge in advance the amount
of time that will be necessary to store
remediation wastes in furtherance of a
remedy. EPA recognizes that in some
cases unforeseen circumstances may
dictate that a staging pile remain in
service beyond the limit originally set in
the permit, closure plan, or order. For
example, unexpectedly large volumes of
waste may need to be handled to
complete the remedy, .or the remedial
process may be slowed by forces beyond
the control of the facility owner/
operator or Director. An extension
would be appropriate, for example,
when wastes being stored in a staging
pile are to be taken to an off-site facility,
but that facility no longer has the
capacity, or is unwilling, to accept the
wastes. Consequently, today's rule
includes a provision, §264.554(i), that
states the Director may provide one
extension of up to 180 days as a
modification of the original permit,
closure plan, or order.
To justify to the Director the need for
an operating term extension, the facility
owner/operator must provide sufficient „
information to enable the Director to
make a determination that continued
operation of the unit:
• Will not pose a threat to human
health and the environment; and
• Is necessary to ensure timely and
efficient implementation of remedial
actions at the facility. In addition, the
regulation states that the Director may,
as a condition of the extension, specify
further standards and design criteria in
the permit, closure plan, or order, as
necessary to ensure protection of human
health and the environment. This
language is based, in large part, on the
time limit extension language for
temporary units, which provides a one-
year extension beyond a one-year
operational limit (§264.553(e)). EPA
believes that this language is both
appropriate and reasonable for staging
piles. The Agency believes that the
language addresses the concerns of
commenters who suggested, among
other things, that the extension should
be consistent with the extension in
§264.553, especially since the
temporary unit extension provision can
only be approved after a showing that a,
time extension will not threaten
increased environmental risk. The
Agency agrees with these comments, as
well as. with other commenters who saw
the need for an extension period to
ensure that unexpected circumstances
will be accommodated by the staging
pile regulations. The Agency believes
that the criteria that, must be met before
the Director grants an extension of the
operating term for a staging pile are
appropriate as they correspond to the
overall goals of the staging pile
regulation. .
The initial criterion, ensuring that
continued operation of the unit will not
pose a threat to human health and the
environment, is a reasonable test to
maintain the protective nature of the
staging pile despite the increased
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65918 Federal Register/Vol. 63, No. 229/Monday, November 30, 1998/Rules and Regulations
storage time. The second criterion
allows the Director to specify further
standards or design criteria for the
staging pile if the increased storage time
requires more protective or different
specifications. EPA believes that it is
unlikely that additional standards will
be necessary for only a 180 day
extension; however, this criterion will
allow the Director to impose these
standards in unusual circumstances.
One commenter stated that the
temporary unit extension provision
of§264.553(e) was too prescriptive to be
appropriate for remediation piles. This
commenter felt that any extension
should be approved or rejected based
solely on site-specific considerations.
However, EPA believes that the criteria
finalized today leave the Director with
ample discretion to consider site-
specific factors in making decisions on
extensions, and yet place appropriate
limits on that discretion. The Agency
also believes that limiting the number of
extensions'to one of up to 180 days will
reduce the potential administrative
burden that could be created by facility
owner/operators seeking multiple
extensions for staging pile operations, as
well as ensuring that staging piles are
indeed "temporary."
Furthermore.'if the facility owner/
operator Or Director can anticipate,
before designating the staging pile, that
additional time will be necessary for
staging activities, EPA recommends the
use of a CAMU instead of a staging pile.
If the facility owner/operator and
Director are not able to anticipate that
a CAMU will be preferable to a staging
pile, the option remains to designate an
existing staging pile as a CAMU through
the CAMU approval process. This might
require modifications to the design of
the staging pile to address the risk posed
by longer-term storage. Modifications
necessary to designate a CAMU from
what was previously a staging pile
might include leak detection systems,
run-off controls, air emissions controls,
ground water monitoring systems, and
leachate collection systems. However,
the specific modifications will depend
on the nature of the unit and the future
plans for it.
L. What Is the Closure Requirement for
a Staging Pile Located in a Previously
Contaminated Area? (§264.554(j))
The preamble to the proposal stated
that "remediation piles w'ould be
required to close by removal of all
wastes (i.e. 'clean close')." This
requirement, however, was not
explicitly stated in the proposed
regulation. This created confusion with
some commenters, who requested that
"clean closure" be defined and stated
clearly in the final rule. In response to
these comments, explicit closure
requirements are included in today's
rule. EPA foresees two scenarios
applicable to closure in which a staging
pile might be designated: (1) in an area
of previous contamination, with
remediation waste consolidated from
non-contiguous areas of contamination
(designation of a staging pile is not
necessary if all the wastes are
consolidated from within one area of
contamination, see discussion below);
and (2) in an uncontaminated area of the
site. Consequently, the closure
requirement is divided into two parts:
§ 264.554 (j), which applies to staging
piles designated at contaminated areas
of the site; and §264.554(k), which
applies to staging piles designated at
uncontaminated areas of the site. .
At closure of staging piles located in
previously contaminated areas, the final
rule requires the facility owner/operator
to "remove or decontaminate all
remediation waste, contaminated
containment system components, and
structures and equipment contaminated
with waste and leachate within 180
days after the expiration of the operating
term of the staging pile." The Agency
included this provision, which contains
typical "clean closure" language (see
§264.258(a)), to ensure that closure of
staging piles at facilities is completed in
a safe and protective manner, as well as
within a reasonable time frame. The
180-day time limit for removal and
decontamination is an outgrowth of
comments made requesting that the
Agency ensure that temporary piles will
indeed be temporary and of the
intention expressed in the preamble to
the proposal to require clean closure, a
process under the Agency's regulations
that must be complete within 180 days
(§ 265.113). The Agency believes that a
180-day period is reasonable, as well as
comparable to existing closure
requirements in Parts 264 and 265.
The closure standard for staging piles
designated in previously contaminated
areas differs from the typical clean
closure standard in the way that any
contaminated subsoils created by the
staging pile will be addressed.23
23 Of course, EPA expects (and today's rule
requires) that staging piles located in previously
contaminated areas will be designed and operated
in a manner that prevents or minimizes the release
of additional contaminants to the degree technically
practicable. A prime objective of remedial waste
management is preventing further releases that will
require cleanup. Consequently, EPA fully expects
that at the majority of facilities that use staging
piles, no decontamination of subsoils will be
necessary due to the protective structure of the site-
specific staging pile design and operating standards.
However, as with other units regulated under
Subtitle C. the Agency acknowledges the possibility
Today's standard, instead of simply
requiring "removal or
decontamination," specifies that the
facility owner/operator, "must also
decontaminate contaminated subsoils in
a manner, and pursuant to a schedule,
that the Director determines will protect
human health and the environment."
This change was made in response to a
commenter who identified the utility of
considering the closure of a pile as part
of the ongoing remedial process at a site.
The Agency was persuaded by this
comment to design a standard that
recognizes that staging piles will only be
used in the cleanup context, where the
staging piles will likely be an
intermediate step towards the cleanup
of a site. In addition, since the portion
of the facility where the staging pile will
be located will have been previously
contaminated, it may be very difficult to
distinguish this previous contamination
from residues that may have been left by
the staging pile. Therefore, in designing
today's standard, the Agency felt it was
appropriate to include a standard that
would allow any cleanup of soils
contaminated by the staging pile to be
coordinated with the site remedy, rather
than addressed under a distinct set of
resource-intensive requirements.
Because the final remedy at the site
may not occur within 180 days after the
operating term of the staging pile
expires,, the closure requirement does
not include a time Jimit for this
decontamination of contaminated
subsoils. It is the Agency's expectation
that the decontamination of any
contaminated subsoils will be consistent
with the overall remedy at the site. The
Agency expects that the Director will
often incorporate the schedule and ,
cleanup levels for the chosen remedy at
the site as the closure standards for the
staging pile in the authorizing vehicle
(for example, the RAP). By providing
that contaminated subsoils must be
decontaminated "in a manner, and
pursuant to a schedule, that the Director
determines is necessary to protect
human health and the environment,"
the Agency believes it is providing
essential flexibility, while at the same
time ensuring that the use of a staging
pile does not increase contamination
where it was located. The Agency
believes that this design fulfills the goal
of protection of human health and the
environment in these unique
circumstances.
that residues can remain after all remediation waste
is removed from the pile and containment system
components are decontaminated.
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M. What Is the Closure Requirement for
a Staging Pile Located in an
Uncontaminated Area? (§264'.554(k))
Under today's rule (§264.554(k)), •
staging piles located in previously
uncontaminated areas of the site must
be closed according to the closure
requirement-for waste piles in
§ 264.258(a) as well as the closure
performance standard of ;§ 264.111 (or
the requirements in §265.258(a) and
§ 265.111) within 180 days after the
expiration of the operating term of the
staging pile (Part 265 is applicable to
staging piles designated at interim status
facilities). The Agency, does not prefer
the siting of staging piles in previously
uncontaminated areas of the facility, yet
acknowledges that site conditions may
dictate such a siting (for example, to site
the staging pile outside of a floodplain
or lagoon area). As stated above, the
180-day time limit for removal and
decontamination is, in part-in response
to comments made requesting the
Agency to ensure that staging piles
would indeed be temporary. It should
be noted that the reference to "post-
closure escape of hazardous wastes" in
the §264.111 and §265.111 does not
eliminate the need for clean closure of
staging piles. As stated in §264.258(a)
and §265.258(a), all waste residues,
contaminated containment, system
components, contaminated subsoils,
and structures and equipment
contaminated with waste and leachate
must be removed or decontaminated.
The closure requirements that a staging
pile located in a previously
uncontaminated area of the site must
fulfill should be included, according to
currently applicable procedures,
directly into the permit, closure plan or
order in which the staging pile is
designated to ensure a clear and
enforceable outcome.
N. How May My Existing Permit (for
Example, RAP), Closure Plan, or Order
Be Modified To Allow Me To Use a
Staging Pile? (§264.554(1))
The proposal did not specifically
address the process for designating a
staging pile at an already permitted
facility. EPA anticipates that staging
piles will most often be designated as
part of the approval of remedy selection
at a site; and therefore, like selection of
the remedy, staging piles will generally
be approved using the Agency's permit
modification procedures. To add
certainty to this process, today's rule
specifically requires that incorporation
of a staging pile, or staging pile
extension, into an existing permit be
conducted according to the Agency-
initiated permit modification
procedures (§270.41) or the Class 2
permit modification procedures under
§ 270.42. The Agency believes that a
Class 2 designation is generally
appropriate as it corresponds to the
Class 2 permit modification necessary
for the approval of temporary units, a
close analogue to staging piles. If the
Agency did not specify permit
modification procedures in today's rule,
the procedure outlined in §270.42(d)
would have been necessary, requiring a
Class 3 modification unless the
modification requestor could have
provided information sufficient to
support the requested classification.
EPA believes that it is preferable to
explicitly state that Class 2 procedures
should be used to designate a staging
pile or staging pile operating term
extension, rather than default to
§270.42(d) procedures. Furthermore, ,
the Class 3 modification procedures that
would be required under §270.42(d) are
inappropriate for staging piles. Class 3
permit modification procedures are •
designed for changes that substantially
alter the facility or its operations
(§ 270.42(d) (2) (iii)). EPA believes the
additional requirements in the Class 3
procedures would unnecessarily delay
the process of designating a staging pile,
diminishing the ability of staging piles
to facilitate the remedial process. The"
subject of what permit modification •
procedure'to use when designating a
staging pile did not surface in the
comments on the proposal.
Other than through a traditional
permit modification, a staging pile or
staging pile operating term extension
can also be designated through
modification of a RAP,-closure plan, or
order. As finalized by today's rule, RAPs
are a new type of permit in which
staging piles can be approved. Because
traditional permit modification
procedures are available when
incorporating a staging pile or. staging
pile operating term extension into a
traditional RCRA permit, EPA also
believes it is reasonable to allow staging
piles and staging pile operating term
extensions, designated through a RAP,
to be modified through RAP
modification procedures. Therefore, as
stated in the staging pile regulations at
§264.554(1)(2), "[t]o modify a RAP to
incorporate a staging pile or staging pile
operating term extension, you must
comply with the RAP modification
requirements under §§270.170 and
270.175." Although this language was
not used in the proposed remediation
pile regulation, it is an outgrowth of the
RAP section of the proposal to use the
RAP modification procedures to
incorporate staging piles or staging pile
operating term extensions, similar to the
way traditional permit modification
procedures would be used.
In addition, modification of a closure
plan to incorporate a staging pile or
staging pile operating term extension
should proceed according to the
requirements in § 264.112(c) at -
.permitted facilities or the requirements
in § 265.112(c) at interim status
facilities. As discussed in the "How is
a Staging Pile Designated?" section of
today's preamble, the closure plan is an
additional mechanism by which a
staging pile can be designated. In
keeping with the use of closure plans,
the Agency believes that the use of the
established closure plan modification
procedures cited above is reasonable.
Finally, modification of an order to
incorporate a staging" pile or staging pile'
operating term extension must occur
according to the terms of the order and
the applicable provisions of §270.72
(a) (5) or (b) (5). Any inclusion will be
governed by the standards promulgated
today and, as noted below, the Agency's
policy on public participation and
corrective action orders should be
followed.
The Agency received no comments on
the proposal regarding the use of these,
or any other, modification procedures to
designate a staging pile or staging pile
operating term extension.
O. Is Information About the Staging Pile
Available to the Public? (§264.554(m))
• Section 264.554(m) requires the
Director to document the rationale for
designating a staging pile or operating
term extension for a staging pile and to
explain the basis for the designation.
The rationale for these decisions should
be incorporated as part of the Statement
of Basis in a permit, closure plan or
order modification. Documentation of
staging pile decisions is analogous to
the documentation the Agency currently
makes to support the selection of a
remedy. Therefore, if a staging pile is
incorporated as part of a final remedy,
this explanation would be incorporated
into the Statement of Basis for the
remedy under a permit modification,
closure plan or under an order. The
staging pile rationale, as determined by
the Director, will be available to the
public through the appropriate public
participation process. This requirement
was not included in the proposal, but is
intended simply to clarify and
emphasize that staging pile decisions
must be documented and explained as
part of the existing notice and comment *
procedures for orders, permits, and
closure plans. EPA believes that
documenting the designation rationale
is necessary to ensure that the public
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65920 Federal Register/Vol. 63, No. 229/Monday, November 30, 1998/Rules and Regulations
has access to information relevant to the
designation of a staging pile which is
both substantial and clear. The Agency
believes that including regulatory
language to this effect is in keeping with
EPA policy with regard to the
importance of meaningful public
participation.24
Public participation during the
staging pile designation process, when
Implemented through the traditional
(non-RAP) permit process, will proceed
as prescribed in the Class 2, or Agency
initiated, permit modification
procedures. If the staging pile is
designated in an order, it is the
Agency's current policy that the order
provide a level of public participation
and comment comparable to that
provided for in a permit modification
(see RCRA Public Participation Manual.
Chapter 4; and "Corrective Action for
Releases from Solid Waste Management
Units at Hazardous Waste Management
Facilities: Proposed Rule," 61 FR 19432;
(19453-19454) (May 1. 1996)). Since a
staging pile has been designated as a
Class 2 permit modification, these
procedures should be used for public
participation under an order.
Documentation should be made
available to the public through the order
approval or order modification process.
P. What Is the Relationship Between
Staging Piles, Corrective Action
Management Units, and the Area of
Contamination Policy?
The CAMU rule provides flexibility to
EPA and implementing States to specify
site-specific design, operating, and
closure/post closure requirements for
units used for land-based storage, or for
treatment of wastes that are generated
during cleanup at a RCRA facility. The
CAMU regulations also specify
requirements for units that are used as
long-term repositories for cleanup
wastes. The proposed remediation piles
were intended to replace, to some
extent, the flexibility that would be lost
if the CAMU rule was withdrawn and
the use of CAMUs was no longer
available. However, as discussed more
fully above, the Agency believes that,
although CAMUs are retained in today's
rule, staging piles will be a useful part
of a remedial strategy in cases where
waste is temporarily staged during
remediation.
The staging piles provisions in today's
rule will not affect current
implementation of the AOC policy. The
, AOC policy is an interpretation of the
statutory RCRA term, "land disposal"
(section 3004 (k)). The AOC policy, first
elucidated in the March 8, 1990
"National Oil and Hazardous
Substances Pollution Contingency Plan
(NCP, 55 FR 8758-8760)," equates
dispersed areas of contamination with
RCRA landfills, and clarifies that
hazardous wastes may be moved -within
the AOC without triggering LDRs.25 The
Agency anticipates that staging piles
will aid in situations in which the AOC
policy does not apply. For example, a
staging pile will be a valuable option in
cases where a site has non-contiguous
areas of contaminated soil, and where
waste is being staged in a pile within
one of the areas prior to further
management. A staging pile will allow
for consolidation of remediation waste
into the pile without triggering RCRA
LDRs. In cases where a facility owner/ •
operator would like to consolidate
remediation waste within one area of
contamination, this can be
accomplished under the AOC policy,
and therefore a staging pile would not
be necessary.
VIII. Corrective Action Management
Units (CAMUs) (§264.552)
This final rule retains the regulations
for Corrective Action Management Units
(CAMUs) promulgated on February 16,
1993 at §264.552 (see 58 FR 8658).
The CAMU regulations allow EPA to
impose site-specific standards for on-
site units used to manage remediation
wastes. As discussed in the preamble of
that final rule, the CAMU regulations
were adopted by EPA to provide
remedial decision-makers with
flexibility to expedite and improve
remedial decisions by removing barriers
to cleanup created by RCRA hazardous
waste requirements—specifically, the
LDRs in Part 268 and the MTRs in Parts
264 and 265 applicable to land-based
units . As is discussed in the preamble
to the CAMU rule, the Agency believed
(and still believes) that these Subtitle C
requirements, when applied to
remediation wastes, can act as a
disincentive to more protective
remedies, and can limit the flexibility of
a regulatory decision maker in choosing
the most practicable remedy at a
specific site (see 58 FR 8658 at 8660).
Under the final CAMU regulations,
LDRs do not apply to CAMUs because
placement of remediation wastes into or
34 For more Information see the September 1996
RCRA Public Participation Manual. Chapter 4.
EPA530-R-96-007.
"For more information consult the March 13,
1996 Memorandum: "Use of the Area of
Contamination (AOC) Concept During RCRA
Cleanups," 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 to RCRA Branch Chiefs and CERCLA
Regional Managers.
within a CAMU does not constitute land
disposal of hazardous waste, and MTRs
do not apply because consolidation or
placement of remediation wastes into or
within a CAMU does not constitute
creation of a unit subject to MTRs (see
58 FR 8658 at 8661). The purpose of the
CAMU regulations is to provide for
more and improved cleanup of wastes,
thus, providing increased protection of
human health and the environment (see
58 FR 8658 at 8659).
While the CAMU regulations
provided some flexibility to address the
problems described above, the April 29,
1996 HWIR-media proposal was
intended to be a more comprehensive
response to the problems faced when
applying traditional RCRA Subtitle C
standards to the management of
remediation wastes. In developing the
HWIR-media proposal, EPA evaluated
the CAMU regulations in the context of
the proposed provisions and recognized
that the proposed revisions to Part 269
in the HWIR-media rule, if promulgated,
would provide flexibility similar to that
provided by the CAMU regulations. EPA
considered that the CAMU regulations
might not be necessary if the HWIR-
media proposal was promulgated, and
thus the Agency proposed to withdraw
the CAMU regulations if the proposed
revisions to Part 269 were promulgated.
The Agency noted in that preamble,
however, that it did not intend to
withdraw the CAMU regulations
without, at the same time, substituting
one of the two major options proposed
in the HWIR-media proposal'in its
stead. The preamble of the proposed
HWIR-media rule made clear that the
Agency believed the CAMU regulations
provided needed flexibility to
remediation sites, and that the Agency
intended to withdraw the CAMU .
regulations only if the site-specific
flexibility provided in the CAMU rule
would be preserved by the final HWIR-
media rule (see 61 FR 18780 at 18829).
When EPA promulgated the CAMU
final regulations in 1993, the Agency
explained that, in implementing
CAMUs, the Agency would have a
preference for "treatment-based
remedies" and that "long-term •
reliability and protectiveness of
remedial activities is directly tied to
effective treatment of wastes that pose
future release threats" (see 58 FR 8658
at 8670). In retaining the CAMU
regulations, EPA does not alter that
long-standing position and further notes
that it is consistent with EPA's
coordination and "principle of parity"
between RCRA and CERCLA cleanup
activities (see Memorandum from
Steven A. Herman and Elliott P. Laws to
RCRA/CERCLA Policy Managers,
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Federal Register/Vol. 63, No. 229/Monday, November 30, 1998/Rules and Regulations 65921
September 24, 1996, entitled
"Coordination Between RCRA
Corrective Action and Closure, and
CERCLA Site Activities"). EPA
considers the CAMU requirements, and
in particular § 264.552(c) (6), as the
functional equivalents of CERCLA's
expectation that treatment should be
used, whenever practicable, to address
principal threats posed by a site (see 40
CFR 300.430(a) (1)(iii) (A)). EPA
continues to believe that the
' implementation of the CAMU '
regulations, as described above,
enhances protection of human health
and the environment.
While EPA recognized that the
proposed HWIR-media rule, would have
provided flexibility similar to that
provided by the CAMU regulations, EPA
also recognized that the proposed rule
applied to a more limited spectrum of
waste—the proposed rule covered only
contaminated media, whereas the
CAMU regulations allowed all types of
cleanup wastes to be managed. Thus,
when it p'roposed to withdraw the
CAMU regulations, the Agency also ,
requested comment on what benefits
might accrue if the CAMU rule were
retained, and on what the.ramifications
might be if the final rule failed to
provide the degree of relief that the
CAMU rule has provided.
A majority of commenters favored the
retention of the CAMU regulations. In
many cases, commenters favored the
retention of the CAMU regulations, even
if EPA promulgated extensive regulatory
reforms in this final rule.. (Two
commenters voiced their support for
withdrawal of the CAMU rules, but did
not explain their specific objections).
Many commenters argued that EPA had
failed, to articulate a persuasive rationale
for removing the CAMU regulations.
Many commenters on the proposal to
withdraw the CAMU regulations
believed that the CAMU regulations are
important and should be retained - -
because the proposed HWIR-media rule
would have been limited to
contaminated media. Commenters
pointed out that contaminated debris,
remediation sludges, and other waste
generated as part of corrective action
activities would not qualify for any site-
specific flexibility that might be
provided by the final HWIR-media rule.
Without the CAMU regulations,
commenters believed, the site decision
makers Would lose a large amount of
flexibility (that is, LDR/MTR relief). One
commenter pointed out that, because
the HWIR-media proposal would only
have applied to contaminated media,
withdrawing the CAMU regulations.
would create a disincentive to
remediation of non-media wastes. EPA
agrees with these commenters.
This final rule does not include the
extent of additional flexibility for
remediation wastes that EPA anticipated
when it proposed to withdraw the
CAMU provisions. As is discussed, in
section II of this preamble, either the
Bright Line or the Unitary approach of
the proposed rule would have exempted
certain remediation wastes from Subtitle
C requirements (such as LDRs and
MTRs), and subjected them, instead, to
site-specific requirements. Neither of
those options is promulgated in this
final rule; thus, this type of flexibility is
currently available only to remediation
wastes managed in CAMUs. EPA
believes this flexibility is vital to
remove impediments to cleanup
imposed by certain Subtitle C
requirements, For these reasons, EPA is
retaining the CAMU regulations in this
final rule.
Since the promulgation of the CAMU
regulations, just more than 30 CAMUs
have been approved by the Agency.
Though this small number might, on its
face, appear to indicate that CAMUs
have not proved useful to the regulated
community, EPA believes, and
commenters on the proposed HWIR-
media rule verified, that this number is
misleadingly low. EPA believes, and
again commenters verified, that
litigation on the CAMU regulations26
has resulted in uncertainty about the
future of CAMUs and, consequently,
provides a disincentive to their use.
Thus, despite the low number of
CAMUs approved to date, EPA
continues to believe that CAMUs
provide a valuable tool to promote more'
and better cleanup of remediation
wastes.27 In fact, EPA expects that the
use of CAMUs will increase as more
corrective action sites move to the
remedy selection phase, and the Agency
strongly encourages States who are the
major implementers of the corrective
action program, to adopt and take •
26On May 14, 1993, a petition for review of the
final CAMU rule was filed with the U.S. Court of
Appeals for the District of Columbia Circuit (see
Environmental Defense Fund v. EPA No. 93-1316
P.C. Cir.)). Petitioners challenged both the legal
and policy basis for the final CAMU regulations. On
October 27, 1994, the litigation was stayed pending
EPA's publication of a final HWIR-media rule, to
allow parties to determine whether the final rule
would resolve issues raised in the petition for
review.
« The October 27. 1994 stay of the CAMU
litigation provided that within 91 days after the
final HWIR-media rule is published in the Federal
Register, the parties will inform the court whether
they intend to dismiss the petitions for review,
enter into settlement discussions, or proceed with
the litigation. Thus, the litigation should be
resolved in the near future, thereby removing the '
uncertainty surrounding implementation of the
CAMU regulations.
advantage of this mechanism for
cleanup.
IX. Dredged Material Exclusion
(§261.4(g))
A. What Is the Dredged Material
Exclusion? . .
Today's final rule contains an
exclusion from the definition of
hazardous waste for dredged material
subject to a permit that has been issued
under section 404 of the Federal Water
Pollution Control Act Amendments of
1972 as amended by the Clean Water
Act of 1977 (CWA) or under section 103
of the Marine Protection, Research,, and
Sanctuaries Act (MPRSA, also known as
the Ocean Dumping Act).28 EPA
proposed this change to reduce
potential overlaps between the CWA or
MPRSA and RCRA regulation of
dredged material disposal. At present, if
dredged material proposed for disposal
in the aquatic environment is
contaminated or suspected of being
contaminated with hazardous waste, the
potential application of both :RCRA
Subtitle C regulations and dredged
material regulations under CWA or
MPRSA complicates efficient
assessment and management of dredged
material. Today's rule eliminates the
overlap of RCRA Subtitle C with the
CWA and MPRSA programs by
excluding dredged material managed
under .a CWA or MPRSA permit from
RCRA Subtitle C, while ensuring an
accurate and environmentally sound
evaluation of any potential impacts to
the aquatic environment. This exclusion
will not alter existing practice
significantly, but it clarifies regulatory
roles within EPA in an effort to avoid
duplication of administrative efforts and
is authorized under RCRA section 1006.
The U.S. Army Corps of Engineers
("Corps") and other entities must
dredge large volumes of sediment and
other materials to maintain navigable
waterways, ports and marinas. Dredged
material can be mechanically or
hydraulically dredged, and disposed of
by barges or pipelines into river
channels, lakes, and estuaries. Of the
total amount of dredged material
excavated, approximately one-fifth is
disposed of in the ocean at designated
sites in accordance with section 103 of
the MPRSA. Most of the remaining
dredged material is discharged into
waters of the United States, either in
open water, at confined disposal
facilities (CDFs), or for beneficial uses,
which are all regulated under the CWA.
Any discharge of dredged material that
28 "Permit" also includes the administrative
equivalent of a CWA or MPRSA permit for U.S.
Army Corps of Engineers' civil works projects.
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65922 Federal Register/ Vol. 63, No. 229/Monday, November 30, 1998/Rules and Regulations
occurs In upland areas and has return
flow to waters of the United States is
regulated under the CWA. However, if
upland-disposed dredged material were
to have no return flow to waters of the
United States, as defined by CWA
section 404, that dredged material
would not be regulated under the
MPRSA or CWA, and is not, therefore,
subject to the exclusion under today's
rule.29
B. Regulation of Dredged Material
Under CWA and MPRSA
Section 404 of the CWA establishes a
permit program to regulate the discharge
of dredged material into waters of the
United States that is administered by
the Corps and EPA. Proposed discharges
must comply with the environmental
criteria provided in 40 CFR part 230 to
be authorized by a CWA 404 permit.
The EPA and Corps regulations under
section 404 define dredged material as
"material that is excavated or dredged
from waters of the United States." 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, including the
water entrained with the solid portion
of the dredged material discharged at
the site and from rainwater runoff.
The MPRSA regulates the
management 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 these proposals
comply with EPA's ocean dumping
criteria (40 CFR parts 220-228).
C. Dredged Material and RCRA
Applicability
RCRA regulates the management of
hazardous wastes at treatment, storage,
and disposal facilities (TSDFs).
Hazardous wastes are a subset of solid
wastes. A solid waste is considered
"Ground water flow Is not considered return
flow under CWA section 404 unless there is a
"direct hydrogeologlcal connection" to a surface
water body.
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. Environmental
media (such .as the sediments which
make up dredged material) is not itself
waste, but is sometimes contaminated
with hazardous waste and must be
managed as a hazardous waste when it
exhibits a characteristic or "contains" a
listed waste. These media would be
subject to the RCRA requirements
applicable to the contaminated waste.
As a practical matter, naturally
occurring sediments will not normally
be associated with any specific
industrial waste stream, so as to
"contain" listed waste. Consequently,
the most likely means by which dredged
sediments could become subject to
RCRA Subtitle C regulation is by failing
one of the tests for characteristic
hazardous wasted Given the nature of
sediments, they would be most likely to
become subject to RCRA Subtitle C if
they fail toxicity testing (that is,
Toxicity Characteristic Leaching
Procedure, or TCLP). In fact, dredged
sediments from navigational dredging
projects very rarely, if ever, fail TCLP
tests. In all but a very small number of
cases, RCRA has not been applied in
practice to proposed discharges of
dredged material. Nevertheless, as
asserted by the commenters, the
potential applicability of RCRA Subtitle
C requirements has been a concern at
many dredging operations.
The Agency is confident that today's
exclusion will promote efficient
handling of dredged material since
future use of the TCLP will not be
necessary for dredged material subject
to a permit issued under CWA Section
404 or MPRSA Section 103.
Specifically, today's rule will eliminate
the unnecessary expense and effort,
currently borne by the Corps and other
entities, of applying the TCLP to large
volumes of dredged material. The Corps
and other entities typically apply testing
procedures under'CWA and MPRSA
that are better suited to the chemical
and biological evaluation of dredged
material disposed of in the aquatic .
environment, where the vast majority of
dredged material is managed. These
tests are specifically designed to
evaluate effects such as the potential
contaminant-related impacts associated
with the discharge of dredged material
into oceans and waterways of the
United States. Thus it is appropriate to
assess and manage dredged material
under the aquatic testing and
management protocols developed by the
Corps and EPA under the MPRSA and
CWA.
D. Determination of Regulatory
Jurisdiction
Today's rule establishes an integrated
approach to the regulation of dredged
material disposal that will avoid
duplicative regulatory processes while
ensuring an accurate, appropriate, and
environmentally sound evaluation of
potential impacts to the 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 the
integration "can be done in a manner
consistent with the goals and policies
expressed" in RCRA and the other Acts.
Applying the RCRA Subtitle C program
together with the CWA and MPRSA
permitting programs can be redundant
and unduly burdensome, and may cause
unnecessary procedural difficulties (for
example, 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 rule is appropriate and
consistent with the goals and policies in
each of these statutes.
The Agency believes that the CWA
and MPRSA permit programs protect
human health and the environment
from the consequences of dredged
material disposal to an extent that is at
least as protective as the RCRA Subtitle
C program. 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. As improved
assessment methods are developed, they
can be incorporated into these
procedures. The programs also make
available appropriate control measures
. (for example, 40 CFR 230.72)'for
addressing contamination in each of the
relevant pathways.
.The Agency believes that RCRA
Subtitle C coverage of dredged material
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Federal Register/Vol. 63, No. 229/Monday, November 30, 1998/Rules and Regulations 65923
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 achieve this
goal appropriately by addressing the -
proposed aquatic disposal of dredged
material.
The exclusion also applies in the case
of a Corps civil works project which
receives the administrative equivalent of
a CWA or MPRSA permit, as provided
for in Corps regulations. This regulatory
language refers to the fact that the Corps
does not process and issue permits for *
its own activities, but authorizes its own
discharges of dredged or fill material by
applying the same applicable
substantive legal requirements,
including public notice, opportunity for
public hearing, arid application of the
section 404(b)(l) guidelines or MPRSA.
criteria. EPA has the authority to
develop environmental guidelines and
the authority to prohibit or conduct
further review of a proposed discharge
by the Corps, in the same manner as it
can with a private permit applicant.
Thus, the exclusion in today's rule
includes CWA and MPRSA permits, as
well as their administrative equivalents
in the case of Corps civil works projects.
E. Clarification of Future Practice
With the promulgation of today's rule,
the regulation of dredged material will
generally proceed in one of the
following two ways, with the vast
majority of activities expected to fall
under the first example:
1. If the dredged material is subject to
a permit that has been issued under
CWA section 404 or MPRSA section
103, RCRA Subtitle C requirements do
not apply. .
2. If the dredged material disposal is
not subject to a CWA section 404 or
MPRSA section 103, permit, RCRA
Subtitle C requirements may apply. (For
example, if dredged material were to be
disposed in upland facilities with no
runoff or return flow to waters of the
United States, this material would not
be under the jurisdiction of the CWA or
MPRSA and therefore would be subject
to RCRA Subtitle C if it meets the
definition of an RCRA hazardous waste.)
For dredged material covered by a
CWA or MPRSA permit, the
combination of statute, Federal
regulations, and Regional guidance,
along with the testing and management
protocols that have been developed
jointly by EPA and the Corps, will be
adequate to address potential
contaminant-related impacts in both
ocean and inland waters. Examples of
the existing testing and management
protocols include: Evaluation of
Dredged Material Proposed for
Discharge in Waters of the U.S.^-Testing
Manual (EPA-823-B-98-004) and
Evaluation, of Dredged Material -
Proposed for Ocean Dumping—Testing
Manual (EPA-503-B-91-001),, which
contain current procedures on
implementing the dredged material
testing requirements under the CWA
and MPRSA respectively. The manuals
contain tiered evaluation systems that
include, as appropriate: physical
analysis of sediment; chemical analysis
of sediment, water, and tissue; bioassay
tests;, and bioaccumulation tests of
contaminant impacts. EPA believes that
CWA and MPRSA permits coupled with
these testing manuals and relevant
Regional guidance will ensure the
protective management and discharge of
.dredged material.
F. Comments on the Dredged Material
Exclusion
Comments from 18 sources mentioned
the dredged material exclusion. These
sources included various industries and
trade groups, as well as federal and state
agencies. These comments are included
in the record and are available for
review in the RCRA docket.
Commenters generally supported the
exclusion of dredged material from
RCRA Subtitle C regulation when the
discharge is covered by a permit issued
under the CWA or MPRSA. There was '
also general concurrence among
commenters that this exclusion would
avoid current unnecessary and
duplicative regulation under RCRA. The
proposed dredged material exclusion
received only one comment that could
be considered adverse. The comment
was from a state environmental agency
and addressed only a portion of the
exclusion! The commenter stated that
dredged material disposed upland
should not be excluded from RCRA
Subtitle C requirements. EPA agrees
with this concern when there would be
no return flow to waters of the United
States since, under these circumstances,
CWA section 404 or MPRSA 103
permits would not be issued. However,
for the, reasons provided in today's rule,
EPA does not agree with the commenter'
in cases where there is return flow to
waters of the United States, and the
dredged material is subject to a permit
under CWA section 404 or MPRSA
section 103. Moreover, the commenter '
provides no rationale as to why dredged
material disposed upland under a CWA
section 404 or MPRSA section 103
permit should not be excluded from the
definition of hazardous waste.
Therefore, EPA has finalized the rule as
proposed. In addition to this comment,
several commenters raised further issues
that are outlined and discussed below.
G. Dredged Material as a Solid Waste
The Agency proposed that the
dredged material exclusion apply only
to the hazardous waste requirements of
RCRA Subtitle C and not to the solid
"waste requirements of RCRA Subtitle D.
Today's final rule adopts this approach
as proposed. .
Some commenters noted that the
context and wording of the proposed
dredged material exclusion implied that
all dredged material is solid waste. They
were concerned that excluding dredged
material from the. definition of
hazardous waste could be interpreted to
mean that all dredged material is
inherently a hazardous waste, and
consequently, also a solid waste. They
believe that is not the case, and asked
EPA to clarify this matter in the final
rule.
EPA agrees with these comments.
Nothing in the proposal or in today's
final rule is meant to imply that dredged
material is always a solid waste.
Dredged material, which is media, may
or may not contain a RCRA solid or
hazardous waste. Dredged material
should 'not be assumed, a priori, to
contain a solid waste and today's rule
does not expand the scope of dredged
material regulation under RCRA.
In cases where dredged material may
be both 'a solid and a hazardous waste,
today's rule excludes these materials
from the hazardous waste requirements
only. Two commenters requested that
the dredged material exclusion extend
to all aspects of RCRA (that is, that
dredged material be excluded not only
from hazardous waste requirements, but
also from solid waste requirements).
EPA has not adopted this suggestion.
While EPA believes that excluding
dredged sediments from Subtitle C
regulation is appropriate, the Agency is
not persuaded that these sediments
should be excluded from all RCRA
jurisdiction. It would be inappropriate
to extend the. exclusion to Subtitle D
because, in certain circumstances, this
exclusion would remove the ability of
states to exercise authority over dredged
material under their RCRA Subtitle D
programs. (For example,.in some States,
State authorities preclude State .:.
regulations from being more stringent
than Federal regulations.) Also, because
there is no federal permit program for
Subtitle D, state and local authorities
have well-established regulatory
discretion in the non-hazardous waste
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65924 Federal Register/Vol. 63, No. 229/Monday. November 30, 1998/Rules and Regulations
arena, which the Agency does not wish
to alter at this time. Consequently,
today's rule does not alter the existing
abilities of States and local authorities
to regulate dredged material as a solid
waste under RCRA.
Furthermore, although certain
dredged materials will no longer be
considered hazardous wastes under
today's rule, this exclusion does not
affect whether dredged materials are
considered solid wastes for the purposes
of RCRA section 7003. As advanced in
the proposal. EPA may take action
under RCRA section 7003 to address the
past or present handling, storage,
treatment, transportation or disposal of
any solid waste or hazardous waste that
may present an imminent and
substantial endangerment to human
health or the environment. This
authority remains intact, regardless of
the Agency's decision to exclude
dredged materials from RCRA's
hazardous waste provisions. Thus, this
rule does not diminish in any way the
Administrator's authority to take action
under section 7003 in connection with
dredged material. EPA believes this
authority provides an important
backstop to the regulatory authorities of
the CWA and MPRSA. Emergency
powers under these other two statutes
are different from and not co-extensive
with RCRA section 7003 authority.
Furthermore, many States have
comparable authorities over non-
hazardous waste, which EPA does not
wish to undercut.
In sum. the status of dredged material
as potentially a solid waste under RCRA
is unchanged by today's rule. Where
dredged material is (or contains) both a
solid and a hazardous waste and is
subject to a permit that has been issued
under CWA section 404 or MPRSA
section 103. today's rule excludes it
from RCRA's hazardous waste
requirements, but not from solid waste
requirements.
H, Clarification of Terms Related to
Dredged and Fill Material
Two commenters stated that
transferring the term "discharge of
dredged material" from CWA section
404 regulations into the dredged
material exclusion regulation, as was
done in the proposal, would complicate
the exclusion unnecessarily. EPA agrees
with these comments. The term
"discharge of dredged material," which
was incorporated into the proposed
exclusion, is defined in 40 CFR 232.2
(and the Corps' 33 CFR 323.2) and
includes descriptions of the scope of
these discharges. The definition also
describes discharges that do not require
a section 404 permit. Confusion could
have resulted, for example, over
whether dredged sediments should be.
removed from RCRA regulation when
they are within the scope of a section
404 permit exclusion. The references to
this term and its definition have been
removed from the rule to avoid
confusion and misinterpretation, and
only the term "dredged material"
(which is defined in 40 CFR 232.2 as
"material that is excavated or dredged
from the waters of the United States")
is used in the final rule.
Similarly, EPA stated that the
exclusion did not address "fill
material". The Agency's goal is to
ensure that upland-derived fill material
is not eligible for the exclusion, but the
language in the proposal did not
distinguish between dredged material
used as fill and fill material not
excavated from waters of the U.S. The
"fill material" that is not included in
the exclusion is any material that does
not meet the definition of dredged
material. For example, dredged material
can be used as fill under a CWA 404
permit for beneficial purposes, such as
the creation of an underwater berm for
erosion control. EPA sees no reason to
differentiate between dredged material
that is discharged for disposal and
dredged material that is used as fill, as
long as both are subject to the CWA or
MPRSA dredged material permitting
requirements.
As a result, as in the case of the term
"discharge of dredged material,"
"discharge of fill material" and "fill ,
material" are not terms pertinent to the
dredged material exclusion and
therefore are not included in today's
regulatory language.
I. Normal Dredging Operations and the
Exclusion
Two commenters recommended
extending the exclusion to normal
dredging operations for navigation or
flood control that are subject to some
form of federal regulation other than
CWA or MPRSA permitting, in
particular when the dredged material
would be disposed in upland facilities
with no return flow. EPA was asked to
interpret RCRA section 1006 (b) (
expansively to avoid regulatory
duplication with the Rivers and Harbors
Act of 1899 (RHA, 33 U.S.C. 403) which
regulates normal dredging operations.
However, section 1006(b) of RCRA
requires EPA to avoid duplication with
Acts of Congress that grant regulatory
authority to the Administrator, and RHA
does not grant regulatory authority to
the Administrator. Furthermore, the
proposed rule's exclusion for dredged
material was premised only on the
applicability of CWA or MPRSA
permitting, and the proposal did not
request comments on expanding the
exclusion from RCRA Subtitle C for
dredged material that is not subject to
CWA or MPRSA permits. Therefore, the
Agency will limit the scope of the
exclusion to dredged material subject to
a permit that has been issued under
CWA section 404 or MPRSA section ,
103, as proposed.
J. The Exclusion and Nationwide
Permits
One commenter asked whether the
proposed exclusion would not only
apply to project-specific individual
permits issued by the Corps, but also to
general permits.30 The proposed rule
and the preamble implied to this
commenter that the scope of the
exclusion includes only individually-
issued permits. Although under today's
rule the exclusion applies to any
dredged material subject to a section
404 permit and, therefore, would
technically extend to Corps general
permits (those which allow for certain
dredging activities without requiring an
individual application), it is important
to note that it is very unlikely that any
dredged material suspected of being
contaminated would be authorized
under a general permit. General permits
may not authorize discharges where
contaminant-related impacts are-
expected to be more than minimal,
evaluated separately, as well as
cumulatively. However, in the unlikely
event that these discharges are
authorized under a general permit, both
the Corps and the appropriate state
regulatory agency retain the authority to
impose individual permit requirements
or deny a permit to avoid impacts of
concern. Therefore, EPA believes that it
is appropriate, and in keeping with the
logic of the proposal, to retain dredged
material managed under CWA section
404 general permits within the
exclusion from RCRA Subtitle C.
X. State Authority (§ 271.1 (j))
A. Applicability of Rules in Authorized
States
Under section 3006 of RCRA, EPA
may authorize qualified States to
administer and enforce the RCRA
Subtitle C program within the State.
Following authorization, EPA retains
independent enforcement authority
under sections 3008, 3013, and 7003 of
RCRA to initiate an action, although
authorized States have primary
enforcement responsibility. The
30 The Agency notes that there are no nationwide
permits under MPRSA that are applicable to
dredged material, so the following discussion is in
the context of CWA section 404.
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Federal Register/VoL 63, No. 229/Monday, November 30, 1998/Rules and Regulations 65925
standards and requirements for '
authorization are found in 40 CFR part
271.
Prior to the Hazardous and Solid
Waste Amendments of 1984 (HSWA), a
State With final authorization
administered its hazardous waste
program instead'of EPA administering
the Federal program in that State. The
Federal requirements no Iqnger applied
in the authorized State, and EPA could
not issue permits for any facilities that
the State was authorized to permit.
When new, more stringent Federal
requirements were promulgated or
enacted, the State was obliged to enact
equivalent authority within specified
time frames. New Federal requirements
did not take effect in an authorized State
until the State adopted the requirements
as State law.
In contrast, under RCRA section
3006(g), (42 U.S.C. 6926(g)), new
requirements and prohibitions imposed
by HSWA take effect in authorized
States at the same time that they take
effect in unauthorized States. Although
the States are still required to update
their hazardous waste programs to
remain equivalent to the Federal
program, EPA is directed to carry out
HSWA requirements and prohibitions in
authorized States, including the
issuance of permits implementing those
requirements, until the State is granted
authorization to do so."
Authorized States are required to.
modify their programs only when EPA
promulgates Federal requirements that
are more stringent or broader in scope
than existing Federal requirements.
RCRA section 3009 allows the States to
impose standards more stringent than ,
those in the Federal program. See also,
40 CFR 271.1(1). Therefore, authorized
States can, but are not required to, adopt
Federal regulations, both HSWA and
non-HSWA, that are considered less
stringent. Less stringent regulations,
both HSWA and non-HSWA, do not go
into effect in authorized States until
those States adopt them and are
authorized to implement them.
B. Effect on State Authorization
Today's rule is promulgated, in part,
pursuant to non-HSWA authority and,
in part, pursuant to HSWA.
Requirements applicable to Remedial
Action Plans (RAPs) and the dredged
material exclusion are promulgated
pursuant to non-HSWA authority.
Therefore, these requirements are
effective on the effective date of this
rule only in those States without final
authorization..They will become
effective in States with final
authorization once the State has •
amended its regulations and the
amended regulations are authorized by
EPA.
The requirements for staging piles are
promulgated pursuant to HSWA.
Specifically, as discussed in the HWIR-
media proposal (see 61 FR 18830-
18831), the requirements relating to '
staging piles are based on an .
interpretation of RCRA sections 3004 (k)
and (o). (See below for details regarding
implementation in authorized States.)
Also, the provisions exempting
remediation waste only management
sites from the requirements in RCRA
section 3004(u), namely §§264.1(j) and
264.101(d), are promulgated under
HSWA authority. The Agency is adding
these requirements to Table 1 in
§271.1(j), which identifies rulemakings
that are promulgated pursuant to
HSWA. . •
As noted above, authorized States-are
only required to modify their program
when EPA promulgates Federal
standards that are more stringent or
broader in scope than the existing-
Federal standards. The standards
promulgated today (including those
promulgated under HSWA authority)
are less stringent than the existing
Federal standards. Therefore, States are
not required to modify their programs to
adopt today's rulemaking. However,
EPA strongly encourages States to adopt
the provisions promulgated today, as
the Agency believes that they will
increase the pace and efficiency of
hazardous waste cleanups. The swift
authorization of States that have
adopted provisions equivalent to those
promulgated today is a high priority for
EPA.
1. Staging Piles
The implementation of the provisions
regarding staging piles will vary,
depending on the authorization status of
a particular State.'Although these
provisions are promulgated under ;.
HSWA authority, they are less stringent
than the existing Federal provisions,
namely the Land Disposal Restrictions
(LDR) and Minimum Technology
Requirements (MTR) that apply to waste
„ piles. Thus, if a State is authorized for
the LDR and MTR provisions, EPA will
not implement the provisions regarding
staging piles in that State, even where
, it is conducting a corrective action'. In
some cases, however, a State that has
LDR and MTR authorization and has
adopted the staging pile provision, but
is not yet authorized for staging piles
may be able to implement its staging
pile provisions if, under State law, it has
a waiver authority comparable to the
Federal authorities under RCRA section
7003 and CERCLA section 121 (e). (A
State's waiver authority is discussed
further below.) If, prior to authorization
for staging piles, the State exercises this
authority in a way that is consistent
with today's provisions regarding
staging piles, EPA would not consider
the State's program to be less stringent
than the Federal program. These
approaches should be used only to
cover the transition period during
which the State amends its regulations
and obtains formal authorization for the
staging pile provisions.
In those States that do not have
authorization for the LDR and MTR
rules, EPA is responsible for
implementing the provisions regarding
staging piles, because they are part of
the Federal RCRA program operating in
these States. EPA will use the Federal
procedures for the implementation of
the staging pile. For example, if the
facility at which the staging pile is to be
located holds a RCRA permit, EPA will
modify the HSWA portion of the permit
using the "Federal permit modification
procedures. However, EPA will not
implement the staging pile provisions if
this-implementation is in conflict with
a State's hazardous waste program. In
some cases, States may have adopted
the LDR or MTR provisions in their
regulations, but may not have received
authorization from EPA. Thus, these
provisions may be effective under State
law, preventing the implementation of •
the staging pile provisions. To address
this situation, to the extent permitted by
EPA regulations, EPA may modify its
action so it is consistent with State law,
or structure its action to mirror existing
State requirements which allow waiver
of the authorized State LDR and MTR
provisions. Alternately, the State may
use an, authority under its own laws to
provide a waiver.
C. Authorization for Today's Rule
In today's rule (as described later in
the preamble), EPA establishes
streamlined procedures for authorizing
States for routine or minor program
revisions of RCRA requirements.
Streamlined authorization procedures
were a major feature of the HWIR-media
proposal, as well as several other recent
regulatory proposals, and they are a key
feature of EPA's program to reinvent the
RCRA State authorization process.
The specific substantive provisions of
today's rule, however, are not eligible
for these streamlined procedures. This
is because EPA considers today's rule to
be fairly complex; and not part of a
series of routine rulemakings. For these
reasons EPA disagrees with the several
commenters who wanted the
abbreviated authorization procedures
promulgated today to apply to the
authorization of the HWIR-media rule.
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65926 Federal Register/Vol. 63, No. 229 / Monday. November 30, 1998/Rules and Regulations
At the same time, EPA is placing a high
priority on authorization of States who
seek to implement today's rule. The
success of the regulatory reforms in
today's rule depends on its rapid
adoption by the program implementers,
that is, the States. Furthermore, EPA
intends to use its existing discretion
under 40 CFR 271.21 (b). to follow the
streamlined procedure for the
authorization of States which only
adopt §264.101 (d) of today's rule. This
provision eliminates §264.101 facility-
wide requirements from RCRA permits
or RAPs issued to facilities not
otherwise subject to facility-wide
corrective action. The streamlined
authorization procedure and EPA's
existing discretion are discussed below.
Although today's HWIR-media rule is
not eligible for the streamlined
authorization procedures, EPA believes
that in most cases, the authorization of
States for this rule should be
straightforward. Today's rule, for the
most part, does not change the current
regulatory standards for waste
management, but merely streamlines
procedures for a particular category of
waste (that is, remediation waste). Any
State currently authorized to implement"
RCRA hazardous waste regulations,
particularly those States authorized for
the LDR program and for corrective
action, should have little difficulty
becoming authorized for today's rule, as
long as the State adopts a program that
meets the minimum standards in
today's rule.
EPA particularly emphasizes that, in
authorizing States for the RAP part of
today's rule, it will not be judging the
adequacy, the stringency, or the
resources of State clean-up programs.
This is because today's rule does not
modify or alter in any way clean-up
requirements, but simply streamlines
the permitting process for management
of hazardous remediation wastes.
EPA will be reviewing the State's-
regulations and program for managing
hazardous remediation waste to
determine whether they are equivalent
to the standards promulgated in today's
rule. If a State program is already
authorized to regulate hazardous waste
under the base RCRA program, there is
every reason to presume it can
adequately regulate that same waste
under a RAP or in a staging pile. The
main task for EPA will be to ensure that
States, in providing relief for
remediation waste, meet the national
minimum standards. EPA anticipates
that, in most cases, this will be a clear
arid simple standard for States to meet.
and authorization will be
correspondingly expedited.
EPA also emphasizes that State
programs seeking authorization must be
equivalent to and no less stringent than
the program EPA will be administering
under today's rule, State programs,
however, do not need to be identical to
the federal program. EPA included
considerable detail on procedural
requirements in today's rule, because it
will be implementing the rule in
unauthorized States. Thus, the Agency,
needed to spell out permitting
procedures, information requirements,
and similar provisions explicitly and in
detail. Although some States may
choose to adopt these requirements
verbatim or by reference, EPA expects
that other States will prefer to establish
different procedures (e.g., for RAP
issuance or revisions, appeal -rights,
computation of time periods, and
similar requirements), analogous to the
situation regarding 40 CFR part 124
requirements such as administrative
permit appeals that States are not
required to adopt for authorization (see
§§ 270.155, 270.190, and 270.215). EPA
stresses that State programs will be
eligible for authorization, as long as they
comply with the statutory minimum in
areas like public participation, their
requirements apply equivalent (or more
rigorous) procedures, they provide for
adequate enforcement, and they meet
the substantive standards of the federal
regulations.
D. Authorization of State Non-RCRA
RAP Authorities
In some instances, States may want to
use as RAPs, enforceable documents
issued by a State program other than the
State's authorized RCRA program (see
section IV of today's preamble for
further discussion). Enforceable
documents containing hazardous
remediation waste management
requirements that are not specifically
issued through EPA's or an authorized
State's RCRA program are not
considered to be RAPs (this is, RCRA
permits). Where a State wishes to use
enforceable documents issued under
authorities other than State RCRA
authorities to implement hazardous
waste remediation requirements, this
will require specific authorization
review to determine whether the State
has the requisite implementation and
enforcement authority and whether the
provisions are consistent and equivalent
to those promulgated today. In order to
provide EPA with a basis for its
authorization determination, during the
authorization process for this rule, the
State should specifically identify the
enforceable documents it intends to use
as RAPs, as well as the State authorities
under which they are issued. If EPA
approves the authorization, then the
enforceable documents become a part of
the RCRA program and the State will
have the discretion to use such
documents as RAPs. As part of RCRA,
the RAP portion (i.e., hazardous
remediation waste requirements and
conditions) of the enforceable document
is enforceable pursuant to the State
RCRA enforcement authorities and by
EPA pursuant to its independent RCRA
enforcement authority.31
Elsewhere in this preamble, EPA
discusses the appropriate level of public
involvement in site cleanups, given the
need for flexibility to do what makes
sense in a given situation. Thus, States
need to ensure in particular, that any
enforceable documents to be used as
RAPs will be developed through
procedures that meet the public
participation requirements in §270.145;
otherwise they will not meet the
standards for authorization. Further, the
authorities used to issue these
documents must also ensure that
hazardous waste is managed under the
appropriate standards of the hazardous
waste program.
As noted earlier, nothing in today's
rule limits or expands the authorities
States may already have to waive RCRA
permit requirements, consistent with
EPA's authority in section 7003 of
RCRA or section 121 (e) of CERCLA.
RCRA section 7003 allows EPA to order
response actions in the case of
imminent and substantial endangerment
to health or the environment,
"notwithstanding any other provision in
this Act." An authorized State may use
a comparable authority to authorize
activities consistent with today's rule.
Similarly, where comparable authority
exists under a State Superfund program,
the State may use that authority. As
explained in EPA guidance, the two
preconditions to allowing the use of this
authority are that: "(1) the State has the
authority under its own statutes or
regulations to grant permit waivers; and
(2) the State waiver authority is used in
no less stringent a manner than allowed "
' under Federal permit waiver authority,
for example, section 7003 of RCRA or
section 121 (e) of CERCLA." (Seethe
Memorandum, "RCRA Permit
Requirements for State Superfund
Actions", from J. Winston Porter to
Regional Administrators, Region I-X
(Nov. 16, 1987) (OSWERDir. No.
9522.00-2).) A State cannot, however,
waive applicable Federal requirements.
Thus, if a State is not authorized to
31 Nothing in either the State's authorized
"enforceable document" or in the State's law can
restrict EPA's independent authority to enforce the
authorized RCRA program.
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Federal Register/Vol. 63, No. 229/Monday, November 30, 1998/Rules and Regulations 65927
implement a portion of the RCRA
program in that State, the exercise of the
State's waiver authority does not waive
the Federal portion of the RCRA
requirements. Also, EPA recognizes that
many States have enforcement
authorities allowing them to compel
corrective action at interim status
facilities comparable to EPA's section
3008(h) authority. States with
appropriate regulatory and enforcement
authority would be able to use these
authorities in>the same way EPA uses its
section 3008 (h) authority, for example,
to approve the use of a staging pile
outside the context of a RAP. As long as
the authorized State acted in a way that
was consistent with Federal
requirements, its program would be
considered to be as stringent as the
Federal program.
XI. Abbreviated Authorization
Procedures (§271.21(h))
EPA and States have recognized the
need to improve the RCRA State
authorization procedures for mariy
years. For example, in the 1990 RCRA
Implementation Study, the
authorization process was identified as
being too slow and cumbersome: In
response to these longstanding
concerns, the practices used by EPA and
States have evolved over the years. The
purpose of these attempts has been to
make the authorization process operate
more smoothly. Further, because
Federal regulatory revisions
promulgated under non-HSWA
statutory authority do not go into effect
until States have adopted them and
received authorization, a more speedy
authorization process will enhance
environmental protection.
In several notices published during
the past three years, EPA has proposed
abbreviated authorization procedures
intended to expedite the review and
approval of revisions to authorized State
programs. In the August 22, 1995, Land
Disposal Restrictions (LDR) Phase IV
proposal, EPA proposed a procedure
(subsequently called Category 1) for
authorizing minor or routine rules (see
60 FR 43654). This abbreviated
procedure would require an application
that was reduced in scope and
composed of a statement from the State
that its laws provide authority that is
equivalent to and no less stringent than
EPA's regulations, and a copy of those
State statutes and regulations. After a
complete application was submitted,
EPA would then conduct a speedy
review, and within 60 days after
receiving an acceptable application,
finish its action by publishing a Federal
Register notice. With this notice and the
associated public comment period, EPA
would provide notice to the public of
authorization decisions in the same
fashion as is currently done. This
procedure was proposed to apply to
certain' minor amendments to the LDR
program that had become a routine part
of the LDR program. EPA also requested
comment on the future applicability of
this procedure.
EPA modified this proposal in the
January 25, 1996, LDR Phase IV
supplemental proposal (see 61 FR 2338).
EPA also proposed streamlined
procedures for the authorization of more
significant rules in the April 29, 1996,
HWIR-media proposal (see 61 FR
18818). This proposed procedure was
known as Category 2.
However, after carefully evaluating
the comments received on these
proposals, as well as the Agency's goal
of speeding up the State authorization
process, EPA has decided to promulgate
abbreviated authorization procedures ,
based on the procedures proposed in the
August 22, 1995, LDR Phase IV notice.
Thusi EPA is not promulgating the more
extensive proposed Category 2
procedures from the HWIR-media
proposal and the modifications to the
proposed Category 1 procedures
outlined in the January 25, 1996 LDR
supplemental proposal. This preamble
explains the details of today's
abbreviated procedures, and discusses
EPA's overall approach towards
streamlining and improving the
authorization process for all State
authorization revisions.
A. Existing Authorization Process
During the past 15 years, EPA has
frequently amended the Federal RCRA
program by promulgating rulemakings
to reflect statutory mandates, court
decisions, and technical and scientific
progress. EPA Regions and States have
worked together to incorporate these
regulatory amendments into revised
State hazardous waste programs. This
has been accomplished through the
State adoption of rules equivalent to the
Federal rulemakings, and the
subsequent authorization of States. The
existing regulations regarding the
revision of a State's authorized program
are located in 40 CFR 271.21.
Authorization revision applications
generally consist of a copy of the State
regulations, a revised Attorney General's
(AG) statement, a revised Program
Description (PD), a revised
• Memorandum of Agreement (MO A), or
other documents EPA determines to be
necessary (see 40 CFR 271.21(b)(l)).
This provision does provide EPA with
flexibility regarding the content of
authorization applications. However, all
of these components are generally
submitted to EPA because .the State
applications often cover Federal
rulemakings promulgated during a
period of one to several years and
therefore address significant Federal
rulemakings. This practice is based on
provisions located in 40 CFR 271,21(e).
These provisions set forth the concept of
"clustering" rules, and established
deadlines for State submission of
applications. Because State applications
address Federal rulemakings
promulgated during a set period of time,
it is common that these applications
contain analogous State rules that are
both very minor and quite significant.
Although the regulations in §271.21 '
contain only general provisions
regarding the EPA review and approval
process, over time EPA Regions and
States have developed practices for the
development and review of State
applications that vary according to the
content of the application, method of
State adoption, and the individual
approaches of State and EPA staff. Of
course, all of these practices are based
on the standards for review set forth in
the RCRA statute, along with other
sections of 40 CFR part 271, and the
content and nature of the individual
applications. Typically, the State
provides a draft of its application,
including draft or proposed State
regulations, to the EPA Region for
review and comment. After the Region
submits comments back to the State, the
State addresses the comments, and
prepares and sends a final application to
the EPA Region for review, comment if
necessary, and in mo'st cases, approval
through notice in the Federal Register
as an immediate final rule, also known
as a direct final rule (see 40 CFR
271.21(b)(3)).
The authorization revision process as
implemented does not incorporate
formal deadlines or time lines. Many
factors have contributed to the duration
of the entire process, which EPA and
States have often characterized as being
too lengthy. One factor is the size and
complexity of many revision
applications. Another factor is the time
necessary for a State to conduct
rulemakings to revise its regulations,
and to put together a complete
application. Allowing EPA review of
draft or proposed State regulations may
also lengthen the process, even though
it is particularly recommended in cases
where States find it difficult to amend
regulations after they are first
promulgated. ,
B. Summary of Comments on the
August 22, 1995 Proposal
EPA did not receive any adverse
comments regarding the abbreviated
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65928 Federal Register/Vol. 63, No. 229/Monday, November 30, 1998/Rules and Regulations
authorization procedures that were
proposed in the August 22, 1995 notice.
Some of these commenters wanted these
procedures to apply to the authorization
of States for all Federal RCRA
rulemaklngs, and not just to rules that
are minor in nature. Other commenters
thought that the procedures were
appropriate for the authorization of
minor rules that would be promulgated
in the future, or were already
promulgated by EPA. One commenter
maintained that the procedures should
not be applied to authorizations
involving rules that are significant,
since the necessary EPA review may
involve State enforcement and technical
capability.
C. Basis and Rationale for Today's New
Procedures
EPA has determined that, while the
authorization processes that are
currently employed may be appropriate
for the authorization of significant
changes to the RCRA program, a process
that does not include all the possible
components of the application, and that
provides deadlines for certain actions is
better suited for routine or minor
changes. As discussed in the August 22,
1995 proposal, routine or minor
rulemakings are those EPA rulemakings
that do not change the basic structure of
the RCRA hazardous waste program, or
expand the program into significant new
areas or jurisdictions. For example, a
new waste listing which amends 40 CFR
part 261, a technical correction to a
previously promulgated rulemaking, or
a rulemaking that is part of a series of
rulemakings where the basic regulatory
authority has already been established
(and remains largely the same), could be
considered a minor or routine
rulemaking and appropriate for the
abbreviated authorization process.
As already discussed, these rules
would have a limited impact on the
implementation and scope of the RCRA
program and therefore, the minor or
routine rulemakings do not significantly
expand or change the nature of existing
State authorized regulatory authority.
Further, such rules have a negligible
effect on the resources necessary to
implement the RCRA program, and do
not have an effect on the
intergovernmental relationship between
EPA and States. Thus, it is appropriate
to have an abbreviated authorization
process for minor or routine rules to be
used by States that have already
received authorization for the
significant parts of the RCRA -program
that are being revised, since those States
have demonstrated capability in both
the administration and implementation
of those aspects of the program.
Additionally, an abbreviated
authorization process is appropriate
since certain components of the
normally submitted authorization
application (such as the MOA and PD)
are affected only rarely by minor or
routine revisions. Rather, revisions to
these components are usually required
in the authorization revision application
for a set of rules because of the presence
of significant rulemakings, not the
minor or routine rules. Likewise, much
of the time and effort expended on
reviewing and revising authorization
applications is due to the extensive
changes to the RCRA regulations caused
by significant rulemakings.
Further, revisions to the PD or MOA
should not be necessary because, as
already mentioned above, the minor or
routine rules to which today's new,
abbreviated procedures apply do not
have any significant impact on the
States' capability to implement the
RCRA program, and do not present any
new issues for EPA-State coordination.
Also, due to the nature of these minor
or routine rules, they should not have
an effect on State program consistency
and the adequacy of a State's
enforcement program. Thus, EPA
believes that today's procedure will
expedite the implementation of many
minor or routine rulemakings, and will
enable EPA Regions and States,
including the State Attorney General's
Office, to devote their resources towards
efficient authorization of more
significant rules.
EPA has always had the discretion to
implement authorization procedures
similar to those promulgated today
without promulgating regulations. For
example, §271.21(b)(l) allows EPA to
determine what documents are
necessary in a revision application,
according to the circumstances
presented by each particular rule.
Nonetheless, EPA believes that this
codification of procedures is useful fpr
,two reasons. First, a codification will .
provide a consistent procedure for
States and EPA to use when processing
an application for minor or routine
rules. Second, since these procedures
will be included in the CFR, all parties
involved in the authorization process,
including States and the general public,
will be aware of this alternative
procedure.
Section 3006 (b) of RCRA establishes
the legal standard for State program
approval. As detailed below, the
application required in today's
procedure includes a statement that the
State's regulations for which the State is
seeking authorization are equivalent to
the Federal regulations. EPA has
concluded that this statement, coupled
with the review EPA conducts on these
minor or routine rules as part of the
authorization process, will provide an
adequate basis for EPA to make its
required findings and grant approval of
a program revision under 40 CFR part
271.
D. Rule Listed in Table 1 to,§271.21 to
Which the Abbreviated Procedure
Applies
In new Table 1 to 40 CFR 271.21, EPA
has listed the first rule for which the
new abbreviated procedure may be
used. This rule is the Universal
Treatment Standards (UTS) in §§268.40
and 268.48 that were promulgated in the
Phase II LDR rule (see 59 FR 47982,
September 19, 1994). Note that States
are not required to use the new
procedures in 40 CFR 271.21(h) when
they seek authorization for this rule and
other rules that may be placed in Table
1 in the future.
Note that the August 22, 1995, notice
proposed to use the abbreviated
procedures for the authorization of other
LDR rules. These rules were portions of
the proposed Phase III LDR rule, and the
Phase IV LDR rule (which was split up
into two final rules). These LDR
proposals have since been finalized (see
61 FR 15660, April 8, 1996, for the
Phase III LDR rule; 62 FR 26040, May
12, 1997 for the LDR rule) on wood
preserving wastes (part of the Phase IV;
and 63 FR, 28556, May 26, 1998 for the
Phase IV LDR rule). EPA has decided
not to use today's abbreviated
procedures in 40 CFR 271.21(h) for the
authorization of these final rules. This is
because these rules, in addition to the
routine modifications and additions to
the LDR treatment standards, made
changes to the definition of solid waste
and other aspects of the RCRA program
which affected its scope in a more
significant manner.
Today's HWIR-media final rule is also
not listed in Table 1 and therefore, as
explained earlier, the abbreviated
authorization process will not be used
for its authorization. EPA considers
today's HWIR-media rule to be a
significant rule because, for example, it
provides for a new type of permit
mechanism and a new type of waste
management unit. Although EPA
believes that today's rule will have
many environmentally beneficial
effects, it involves several complex
regulatory concepts, and thus EPA
believes the abbreviated procedures are
not appropriate for its authorization.
In the future, as EPA proposes
rulemakings under RCRA, EPA will also
propose to list additional minor or
routine rules in Table 1 to 40 CFR
271.21, to ensure that today's procedure
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Federal Register/Vol. 63; No, 229/Monday, November 30, 1998/Rules and Regulations 65929
can be used for their authorization.
These future proposed additions to
Table 1 will generally be in the same
notice as the proposed minor or routine
rule. This action was supported by
commenters to the August 22, 1995
proposal. Once public comment is
received on the proposed .listing in
Table 1, EPA will promulgate it as
appropriate.
In the August 22, 1995 proposed rule,
EPA discussed and requested comment
on the rules a State must be authorized
for to use the abbreviated process. In
particular, EPA suggested that States
should be authorized for the LDR Third
Third rule (see 55 FR 22520, June 1,
1990) to use the new procedure for the
.LDR Phase II,' III and IV rules, or the
designated parts of them. Based on the
comments, EPA has concluded that the
proposed approach was reasonable.
However,- the prerequisite has been
modified so that it is more generally
applicable, and easier to understand and
implement. Therefore, today's rule
simply requires that States be
authorized for the part of the program
that the routine rule is amending. One
example is a revision to an existing rule.
Another example is a new waste listing,
which amends the list of hazardous
wastes in 40 CFR part 261. This
prerequisite requirement is located in
§271.21(h)(5).
E. Use of Today's Abbreviated
Procedure for the Authorization of
Previously Promulgated Rules
In today's rule, EPA explicitly
identifies a portion of the Phase II LDR
rule as subject to the abbreviated
authorization procedures. However,
EPA considers the development and
review of an authorization application
that contains only this rule to be
inefficient, and not justified by the
administrative resources that EPA and
States would expend to develop and
review such a small application. This
situation would render today's new
procedures largely ineffective in
accomplishing the goal of making the
authorization process more efficient,
considering that authorization ,
applications generally cover a large
number of Federal rulemakings, ranging
in size from about 20 to 100 rules.
Further, EPA does not believe that it
should treat the authorization of minor
or routine rules in a different manner
based solely on when the rule was
promulgated.
Section 271.21(b)(l) provides the
Agency with the flexibility to tailor the
contents of a State's application to
revise its authorization. Thus, under
this provision, EPA could require the
same information that is required to be
in the State application under the new
requirements in §271. 21(h)(l). EPA
also has the discretion to review
authorization applications in the same
manner as promulgated in today's
abbreviated procedures. EPA has always
had the ability to cqmmit to an
expedited review of State applications.
For example, EPA has committed to
conducting a speedy review of State
applications for several recent rules.
Since today's procedure continues to
meet the review requirements set forth
in the RCRA statute and existing
regulations, and EPA has discretion
under 40 CFR 271.21 (b) (1) to -
appropriately tailor the authorization
application requirements and review
schedules, EPA intends to use the
timetables and application requirements
in today's procedure for previously
promulgated rules, as long as those rules
are minor or routine in nature and
scope. EPA is developing guidance to
enable States and Regions to make
speedy and proper decisions regarding
which previously promulgated rules
should be included in an authorization
application that uses the abbreviated
procedures. This guidance will identify
those previous rulemakings which EPA
considers to be minor or routine in
nature. It will also identify those rules
that are not minor or routine, and for
which the abbreviated procedures will
not be used. One example of such a rule
i's the Boilers and Industrial Furnace
rule, which establishes authority over a
new and complex area. This guidance
will take into account the criteria EPA
will use to propose to list a new rule in
Table 1, the considerations discussed in
the section-regarding basis and rationale
in today's preamble, and EPA's previous
experience in authorizing these existing
rules. This guidance will also consider
how EPA's checklist guidance that is
contained in the annual State Program
Advisories treats these rules, since the
guidance is widely used in those States
that do not incorporate the Federal ,
regulations by reference. Copies of the
checklist guidance for all existing rules
as well as other authorization related
guidance are located on the Internet (at:
http://www.epa .go v/epaoswer/
hazwaste/state/index.htm). For
example, many technical corrections to
significant rules, which on their own
would be considered minor, are
included on the same checklist as the
original major rule. EPA does not think
that States which use the checklist
guidance would separate out these
technical corrections into a second
application because doing so would be
difficult, and inefficient. Thus, these
corrections would not be listed as minor
in the guidance. (However, if a State had
already been authorized for the major
rule, and would prefer to seek an
abbreviated process for the subsequent
technical corrections, EPA has the
discretion to process it accordingly.)
EPA encourages States to discuss and
coordinate upcoming authorization
applications with EPA Regions to
determine the most efficient approach to
take regarding the submission of
revision applicatidns in light of today's
rulemaking.
It is important to note that this
abbreviated process for the
authorization of minor or routine rules
only addresses the procedures for
processing certain State authorization
applications. Today's procedure does
not affect the continued responsibility
of States to inform EPA of changes to its
. basic statutory or regulatory authority
under 40 CFR 271.21 (a).'Likewise,
today's rule does not, affect EPA's ability
under 40 CFR 271.21 (d) to request a
supplemental Attorney General's
statement, program .description, or other
documents or information as necessary.
Occasionally, EPA requests additional
information from a State under 40. CFR
271.21 (d). A prime example is when a
State uses non-RCRA authorities to
.implement rule requirements. If a State
were to use alternative authorities to
. seek authorization for a rule that is
considered to.be minor or routine, EPA
would probably request additional
information from the State Attorney
General. Further, where a rulemaking
would have a significant impact on the
size of a State's universe of regulated
facilities, EPA may ask for a revised
Program Description and/or,a revised
MOA. Although EPA does not believe.
that situations such as this will be
common. States should be aware of
these and work with the EPA Region
before an application is submitted, so
that issues regarding the contents-and
review requirements for an application
may be resolved.
F. Final Abbreviated Authorization . •
Procedures
Today's rule amends 40 CFR 271.21 to
create a new authorization procedure in
paragraph (h) of §271.21 that consists of
an abbreviated application and an
expedited process. Note that this
procedure was originally proposed in a
new §271.28, but then paragraph (h) of
§271.21 was reserved for this procedure
in the April 29, 1996, HWIR-media
proposal. Likewise, in the proposal, the
rules for which this authorization
procedure would be used were listed in
40 CFR 271,28(a), but are now listed in
new Table 1 to §271.21. EPA believes
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65930 Federal Register/Vol. 63, No. 229/Monday. November 30, 1998/Rules and Regulations
that this table format is easier to read
than the proposed listing.
G. Authorization Application
Requirements
The requirements for a State's
abbreviated application are located at 40
CFR 271.21 (h) (1). These application
requirements are essentially unchanged
from the August 22, 1995 proposal. This
abbreviated application does not require
a revised Program Description,
Memorandum of Agreement, or
Attorney General's Statement. Instead,
the application must include a
statement from the State that the laws
and regulations of the State provide
authorities that are equivalent to, and no
less stringent than the Federal
authorities for which the State is
seeking authorization. The certification
must include appropriate citations to
the specific statutes, administrative
regulations and where appropriate,
judicial decisions. It must also include
a copy of the applicable State laws and
regulations. The cited State statutes and
regulations must be lawfully adopted at
the time the certification is signed and
fully effective by the time the program
revisions are approved. This statement
may be signed by the signatory of the
State application. Although the
Attorney General may sign this
statement, the signature of the Attorney
General is not necessary for the
authorization of the minor rules subject
to today's procedures. These minor or
routine rules do not affect the
previously authorized legal authority of
the State to carry out its hazardous
waste program. This requirement is
consistent with the provisions of the
proposed rule, which did not require
the Attorney General to sign the
statement. EPA did not receive any
negative comments on this aspect of the
proposed rule.
H, Procedures for Reviewing and
Approving Applications
EPA expects that a concerted effort
from both the EPA Regions and States
will be essential to meet the deadlines
specified in new §271.21 (h). Thus, the
Agencies should coordinate their efforts
before and after the State application is
submitted. EPA encourages States to
submit applications in draft form where
feasible. This will make it easier for the
State to incorporate any changes to its
application, and will reduce the
frequency of errors in the final
application. States should note that high
level signatures, such as from the State
Director, are not required for a draft
application. Further, to make the
Regional review more efficient. States
should provide clear explanations
regarding changes they have made to the
Federal regulations and provide a
crosswalk between State and Federal
regulations.
Once the State submits an application
to EPA, the Agency will conduct an
expedited review of the State's
regulations. This review will consist
primarily of a check for completeness
and errors within the State regulations,
such as LDR treatment levels that are
above the Federal levels (and thus are
less stringent). EPA anticipates that
these errors will be rare because the
rulemakings eligible for this abbreviated
procedure are not complex, and are
easily adopted by the State. This review
will constitute the finding of
equivalency required by section 3006 of
RCRA. Note that this procedure does not
affect in any way a State's ability to '
promulgate regulations more stringent
than the Federal regulations under
section 3009 of RCRA.
Under § 271.21 (h) (2), EPA is required
to notify the State within 30 days of
receipt of the application if EPA
determines 'that the application,
including the statement, is not complete
or contains errors. The reasons why EPA
can determine that an application is not
complete are specified in §271.21(h)(3).
These reasons are: (1). Copies of
applicable statutes or regulations are not
included; (2) the statutes or regulations
relied on by the State to implement the
program revisions are not lawfully
adopted or effective by the time the
program revisions are approved; (3) in
the statement, the citations to the
specific statutes, administrative
regulations and where appropriate,
judicial decisions are not included or
incomplete; and (4) the State is not
authorized to implement the
prerequisite RCRA rules as specified in
§ 271.21 (h) (5). If EPA does find that an
application is incomplete or contains
errors, EPA will summarize the
deficiencies in the completeness notice
sent to the State under §271.21(h)(2).
After the State submits an application
to the Region (either in draft or final
form), the EPA Region should discuss
any questions and concerns with State
staff. One purpose of these discussions
is to seek clarification regarding the
State's application, and to attempt to
resolve these questions and concerns.
Thus, if EPA's questions and concerns
are resolved through these discussions,
a completeness notice may not be
necessary since there would be no
outstanding issues. EPA Regions also
should commit to conduct additional
reviews only on application
components that are new or have
changed since the previous submission.
EPA Regions will prioritize any
comments submitted to the States
regarding a draft or final application,
and will make distinctions between
those errors that cause a State's
regulations to be less stringent and need
to be changed before the application can
be approved, and those that may be
made at a State's discretion, such as
typographical errors. After addressing
EPA comments, if any, the State will
then resubmit the application to EPA as
a final application. Of course, EPA
encourages the States to seek
clarification regarding any of the
Regional comments so they can be
properly resolved before resubmitting
an application.
Under §271.21 (h)(4), EPA will
publish an immediate final rule in
accordance with the requirements in
§ 271.21 (b) (3), within 60 days of
receiving a complete final application
under paragraph (h)(2). Thus, if EPA
does not find any deficiencies in a
State's final application, this notice will
be published within 30 days after EPA
completes its check. Likewise, if EPA
finds deficiencies in a State's
application, this notice will be
published within 60 days after receipt of
a new corrected application. This
immediate final rule is the same
promulgation procedure used for other
revision authorization decisions, which
provides the public the ability to
comment on tentative EPA
authorization decisions before they
become effective. The notice would
provide for a 30-day public comment
period, and would normally go into
effect 60 days after publication unless
an adverse comment is received by EPA.
I. EPA's Decision To Not Promulgate
Proposed Category 1 and 2 Procedures
In comments on the proposed
Category 2 procedures, most
commenters supported the concept of
improving the authorization procedures.
However, many commenters did not
support the specific procedural changes
that would apply to the authorization of
significant rules..These commenters
maintained that the proposed Category
2 procedures were too complex and
cumbersome, and did not address the
underlying interactions between EPA
and States within the process. In
addition, the proposed procedures
would not have affected the
authorization process for the dozens of
previously promulgated rules for which
States are not authorized. Other
commenters believed that the proposed
Category 2 procedures would amend the
EPA review process and standard of
review in a way that was not consistent
with the RCRA statutory requirements.
As a result of these comments, EPA has
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further evaluated the existing barriers to
accomplishing the goals of the
proposals. EPA has concluded that
many of the barriers to the authorization
of significant rules involve the'process
of communication and coordination
between EPA and States that is more
appropriately addressed through
, guidance and other non-regulatory
means. Therefore, EPA is not finalizing
the Category 2 procedures proposed in
the HWIR-media proposal. EPA is also
not finalizing the modifications to the
proposed Category 1 procedures that
were proposed in the January 25, 1996
notice (see 61 FR 2338).'These
modifications were opposed by
commenters.
J. Improvements to the Existing
Authorization Process
EPA believes that the abbreviated
procedures promulgated today will help
make the State authorization program
. more efficient. However, most of the
authorization work that confronts EPA
and States will continue to involve rules
that are considered to be significant
rules, which are not affected by today's
procedure. Examples of these rules
include the Boiler and Industrial
Furnace rule, the Used Oil rule, and
today's HWIR-media rule. EPA believes
that many of the coordination and
communication activities recommended
for today's abbreviated process should
be applied to the development and
review of all other authorization
applications. One' example is the
prioritization of Regional comments that
may .be submitted to the State. Further,
EPA recommends that EPA Regions and
States hold discussions throughout the '
authorization process to foster closer
coordination between the agencies. For
example, before a State develops an
application, the agencies should discuss
what revisions to the MQA and PD may
be necessary, and any major changes-to
the regulations planned by the State.
These discussions can be used to
produce an authorization process time
line that satisfies the needs of both
agencies. This time line should contain
commitments by both the Region and
State to provide expeditious turn-
around of comments on applications,
revisions to applications', and other ,
.correspondence. To meet these
commitments, Regions should set
internal deadlines for review based on
the size of the application and the
method a State uses to adopt the Federal
regulations. Finally, to avoid numerous
submissions of the same document,
Regions should help the State develop
acceptable language when appropriate
or desired by the State.
XII. Conforming Changes (§§265.1(b),
268.2(c), 268.50(g), 270.11(d), and
270.42 Appendix I)
Section 265.1 (b), which discusses the
applicability of part 265 and other
standards at interim status facilities, is
amended in today's rule to incorporate
40 CFR 264.554 (staging piles
requirements) into the list of standards
that apply to'interim status facilities.
Because today's rule for staging piles
includes part 264 requirements for
staging piles, but not part 265
requirements, EPA wanted to make this
conforming change to make it clear that
staging piles can be used at interim
status facilities. The same .conforming
change was made in the February 16,
1993 CAMU rule to incorporate CAMUs
and temporary units into the same
provision for the same reason. The
CAMU rule stated, "heretofore,
technical requirements for interim
status facilities were specified only
under, part 265. Therefore conforming
changes are necessary * * *". The
CAMU, temporary unit and staging pile
provisions are the only .part 264
standards that apply to interim status
facilities. The CAMU rule also made a
similar conforming change to §264.3;
however that change used the phrase
"40 CFR part 264 Subpart S," which
includes the provisions for staging piles,
so no additional conforming changes to
§ 264.3 are necessary.
The conforming change to §268.2(c)
is a change to the definition of land
disposal. Because placement in a staging
pile does not constitute land disposal, it
is necessary to make that clear in the
definition of land disposal. EPA made
the same change for CAMUs in the
February 16, 1993 CAMU rule. The new
language changes the definition to read
that "land disposal means placement in
or on the land, except in a corrective
action management unit or staging
pile." For further discussion of the
applicability of land disposal
restrictions to staging piles, see the
staging piles of today's preamble.
The conforming change to §268.50(gj
makes it clear that storage in a staging
pile is not prohibited under the part 268
Subpart E prohibitions on storage. A full
discussion of this change can be found
in the staging piles of today's preamble.
The changes to §270.11 (d) in today's
rule offer an alternative certification for
land owners applying for a RAP at a
remediation waste management site. A
full discussion of this change can ,be
found in the preamble discussion of
§ 270.82 (a) in today's preamble.
The changes to Appendix-I of §270.42
specify which type (Class 1, 2, or 3) of
permit modification is necessary for
using staging piles at closing facilities.'
and for approval of staging piles or
operating term extensions at corrective
action facilities. Both of these activities
require a Class 2 permit modification.
This decision is discussed further in the
staging pile of today's preamble.
XIII. How Does Today's Rule Relate to
Other EPA Regulations, Initiatives and
Programs?
A. Subpart S Initiative
EPA expects today's rule to
complement activities being done under
the Subpart S Initiative. The Subpart S
initiative is an effort to identify and
implement broad-based improvements
to the corrective action program,
drawing upon more than ten years of
experience in program implementation.
The Subpart S Initiative addresses such
.issues as corrective action program
priorities,, use of administrative
flexibility in implementing corrective
action, and development of guidance
and regulations for setting site-specific
conditions in permits and orders for
investigating and remediating releases.
The May 1, 1996 Advance Notice of
Proposed Rulemaking (61 FR 19432)
describes the Subpart S Initiative in
detail. Because the HWIR-media
regulations specifically address the
'management of remediation waste
during site clean up, they complement
the broader Subpart S Initiative.
B. Suspension of the Toxicity
Characteristic for Non- UST Petroleum
Contaminated Media and Debris
EPA had hoped that the more
comprehensive reforms proposed in the
HWIR-media proposal would
sufficiently address the issues raised in
the "Suspension of the Toxicity
Characteristic for Non-UST Petroleum
Contaminated Media and Debris"
proposal. This proposal, generally
referred to as the "Non-UST TC
Suspension," was published on
December 24, 1992 (57 FR 61542). EPA
never finalized the Non-UST ; • "
Suspension, but stated in the HWIR-
media proposal that finalization would
not likely be necessary because a final
HWIR-media rule would solve the
problems that the Non-UST TC
Suspensioawas intended to address.
However, especially in light of the more
limited changes included in today's
final rule, EPA recognizes that
additional reform may be needed for the
cleanup of non-UST petroleum
contaminated media and debris.
States have developed petroleum
response- programs to respond to
petroleum contamination including
contaminated media and debris.
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65932 Federal Register/Vol. 63, No. 229/Monday, November 30, 1998/Rules and Regulations
However, as stated by many States with
these programs, if the wastes must be
managed as RCRA hazardous because
they fail the TCLP test for benzene (as
is sometimes the case), then the
applicable Subtitle C requirements such
as LDR, MTR and permitting delay the
response actions, significantly increase
costs, and in some cases may act as a
disincentive to full cleanup. If
remediation wastes, including
petroleum contaminated media and
debris, had been excluded under either
the Bright Line or Unitary Approaches
proposed in the HWIR-media proposal,
then those State programs may have
been able to conduct responses as they
had planned, and the Non-UST TC '
Suspension may have no longer been
needed. However, today's HWIR-media
rule does not exclude any wastes from
Subtitle C requirements, and although
EPA is streamlining the permitting
process, it is still time consuming in
comparison to the fast response times
needed by these State petroleum
response programs. EPA will continue
to review the issues addressed in the
Non-UST TC Suspension proposal (and
subsequently raised in comments
received on the proposed HWIR-media
rule); however, the Agency is not taking
final action today on that proposal.
C. Deferral of Petroleum-Contaminated
Media and Debris from Underground
Storage Tank Corrective Actions
Today's rule does not affect the
temporary deferral from certain portions
of EPA's hazardous waste regulations of
petroleum-contaminated media and
debris that are generated from
underground storage tank corrective
actions that are subject to Subtitle I of
RCRA. This UST deferral was published
on March 29, 1990 (55 FR 11862), and
amended later on June 29. 1990 (55 FR
26986). The deferral appears at 40 CFR
part 261.4 (b) (10).
D. Hazardous Waste Identification Rule
(HWIR-waste) (May 20, 1992, and
December 21, 1995)
Although today's rule and the HWIR-.
waste rule are often discussed together,
they are two separate rulemaking efforts
on separate schedules. Today's rule
does not address, in any way, the key
issue of the HWIR-waste rule, which is
at what point wastes and media should
exit the Subtitle C regulatory system.
EPA will sign a new proposal for HWIR-
waste by October 31, 1999 and a final
rule by April 30, 2001.
E. CERCLA
EPA expects that the provisions in
today's rule applicable to staging'piles
will provide the CERCLA program with
more flexibility at CERCLA sites where
these provisions are ARARs. EPA does
•not expect the new RAP provisions to
have any effect on CERCLA sites,
because CERCLA sites do not require
permits for on-site management of
remediation wastes. Likewise, because
the dredged sediments exclusion will
not alter current practice significantly,
EPA does not expect significant impact
from the new dredged material
provisions on the CERCLA program.
Finally, today's streamlined State
authorization procedures will have no
effect on the CERCLA program. In
summary, EPA anticipates some
positive effect on the CERCLA programs
from staging piles, but little or no effect
on the CERCLA program from the other
provisions of HWIR-media.
F. Legislative Reforms
While EPA believes today's rule will
improve remediation waste management
and expedite cleanups, the Agency also
recognizes that additional reform is
needed, especially for management of
non-media remediation wastes, such as
remedial sludges, and to provide for
more tailored land disposal
requirements, minimum technological
requirements, and address certain
statutory permitting requirements. The
Agency considers today's rule to be a
partial step, rather than a full solution
to the problems raised by the
application of RCRA Subtitle C.
requirements to remediation wastes.
The Agency will continue to participate
in discussions on potential legislation to
promote this additional needed reform.
If legislation is not forthcoming, the
Agency may reexamine its approach to
remediation waste management and
may take additional administrative
action.
G. Brownfields
Today's rule complements EPA's
continuing efforts to address
Brownfields properties. The Agency
defines Brownfields as abandoned,
idled, or under-used industrial and
commercial facilities where expansion
or redevelopment is complicated by real
or perceived environmental
contamination. In February 1995, EPA
announced its Brownfields Action
Agenda, launching the first Federal
effort of its kind designed to empower
States, tribes, communities, and other
parties to safely clean up, reuse, and
return Brownfields to productive use. In
1997, to broaden the mandate of the
original agenda, EPA initiated the
Brownfields National Partnership
Agenda, involving nearly 20 other
Federal agencies in Brownfields cleanup
and reuse. Since the 1995
announcement, EPA has funded
Brownfield pilots and reduced barriers
to cleanup and redevelopment by
clarifying environmental liability issues,
developing partnerships with interested
stakeholders, and stressing the
importance of environmental workforce
training.
As the Agency's Brownfield activities
have increased, EPA and stakeholders
have recognized that the statutory and
regulatory hazardous waste management
and permitting requirements under
RCRA can render the cleanup and reuse
of Brownfields properties cost and time
prohibitive. In particular, certain RCRA
requirements, written with "end of
pipe" wastes in mind, may be
unnecessarily burdensome when
applied to Brownfield cleanups. By
streamlining the permitting process and
removing the requirement for facility-
wide corrective action at remediation-
only facilities, today's rule should
facilitate cleanup activities. Reducing
RCRA impediments to cleanup activities
not only addresses existing Brownfield
sites by facilitating cleanups at these
sites, but also helps prevent the creation
of future Brownfields by encouraging
proactive responses to site
contamination during the productive
life of a facility.
H. Land Disposal Restrictions (Part 268)
EPA proposed revisions to the
treatment standards for hazardous
contaminated soils first in the Phase II
LDR rule, "Land Disposal Restrictions
for Newly Identified and Listed
Hazardous Wastes and Hazardous
Soils," 58 FR 48092, and again in the
April 29, 1996 HWIR-media proposal,
61 FR 18780. EPA finalized the soil
treatment standards in the final LDR
Phase IV rule (63 FR 28556 (May 26,
1998).
XIV. When Will the Final HWIR-media
Rule Become Effective?
Today's rule will become effective
June 1, 1999.
XV. 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 any proposed
or final regulatory action is "significant"
and therefore, subject to Office of
Management and Budget (OMB) review
and the requirements in the Executive
Order. The order defines "significant
regulatory action" as one that is likely
to result in a rule that may:
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Federal Register/Vol.'63, No. 229/Monday, November 30, 1998/Rules and Regulations' 65933
(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, the
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 final rule is a "significant
regulatory action" because it raises
"novel legal or policy issues" as
specified in (d) above. OP A has
. submitted this action to OMB for
review. Changes made in response to
OMB suggestions or recommendations
are documented in the public record for
this rulemaking (see Docket # F-98-
MHWF-FFFFF). The Agency has
prepared an economic assessment ,
background document in support of
today's final rule which provides much
greater detail than this preamble
discussion on the analysis of today's
standards ("Economic Assessment of
the Final Hazardous Waste
Identification Rule for Contaminated
Media"). A copy of that document can
be found in the docket for today's rule;
a summary of this assessment is
presented below. ^
2. Background
, Today's rule addresses three main
issues: dredged material exclusion,
staging piles, and remedial action plans
(RAPs). Although still believing there is
a need for comprehensive regulatory
reform of remediation waste,
management requirements, the Agency
has decided not to go forward with the
comprehensive regulatory changes •
which were proposed in the April 29,
1996 HWIR-media Proposed Rule (61 FR
18780). (Please see section II.E. for a full
discussion of the basis for the Agency's
decision.) The economic assessment
prepared in support of today's rule
addresses only the three main issues
covered in the rule, none of which were
analyzed in the proposed rule economic
assessment due to their relatively small
scale impacts compared with the other
proposed rule provisions. The response
to comments document for today's rule
responds to comments received on the
proposed rule economic assessment.
and is available in the docket for today's
rule.
3. Need for Regulation
Today's rule provides relief from
existing regulatory requirements in
three specific cases dealing with
remediation and management of wastes.
The dredged material exclusion
excludes from RCRA requirements a
portion of dredged material handled
under CWA and MPRSA permits, and
thus provides clarity of regulatory
jurisdiction and removes the potential
for duplicative effort. The staging pile
provision allows for temporary storage
of remediation wastes in preparation for
future management. This temporary
relief from the traditional requirements
for land placement provides potential
cost savings and encourages
remediation of wastes. Additionally, the
RAP provision allows for remedial
activities to occur under an expedited
vehicle instead of the customary RCRA
permit requirements. Furthermore, use
of this vehicle does not invoke RCRA
3004 (u) facility-wide corrective action
obligations; those facilities already
under facility-wide corrective action
requirements which employ a RAP
remain under these requirements. Thus,
today's rule represents a modest reform
of the remediation waste requirements,
while maintaining protection of human
health and the environment.
4. Assessment of Potential Regulatory
Costs
The economic assessment examines
the cost impacts of the provisions of
today's rule. Benefits of the rule, in the
form of human health and
environmental risk impacts, are not
examined in this assessment. The
Agency believes, however, that these
provisions will tend toward greater
protection of human health and the
environment by promoting more
cleanups. Economic impacts to
industries affected by today's rule have
not been estimated, as the rule provides
an overall cost savings.
a. Methodology and Results for
Estimating Regulatory Costs
i. Dredged Material Exclusion
The Agency did not assess impacts
from the dredged material exclusion in
the proposed rule economic assessment,
and provided a qualitative assessment of
the cost savings for this provision in the
final rule.
The Agency believes that this
exclusion will result in minor
reductions of compliance costs with x
respect to current practices of dredged
material management. The Agency did
not collect volume data on dredged
material management under RCRA.
Therefore, no estimate of the cost
savings has been developed, although it
is not expected to be significant. In
addition to the minor cost savings
associated with this provision, the
exclusion may also decrease the
potential for procedural delays (caused
by multiple permit applications) that
delay timely waste disposal.
ii. Staging Piles
The Agency did not assess the
impacts of remediation piles (the
predecessor of staging piles in the
proposed rule) in the proposed rule
economic assessment, and has not
quantified the impacts from this
provision in today's final rule economic
impact assessment. Because of the
narrow scope of the staging pile
provisions and their significant overlap
with existing CAMU, temporary unit,
and AOC provisions, the Agency
believes that this portion of the rule will
likely have only minor cost savings and
economic impacts. As discussed earlier,
in some cases, staging piles may
facilitate the short-term accumulation of
remediation wastes until a sufficient
volume can be shipped to a treatment or
disposal facility or accumulated to
implement cost-effective on-site
management. In these situations, the
new provisions will result in cost
savings. The Agency, however, does not
expect that the use of staging piles will
provide significant quantifiable cost
savings, and any savings realized must
be evaluated in light of the costs
associated with obtaining staging pile
approval (either through an RCRA
permit or a RAP). The staging pile
provisions will, however, not result in
any increase in cost because their use is
voluntary.
One alternative which the Agency has
determined not to adopt in today's final
rule is to allow treatment in staging
piles. Allowing treatment would
potentially increase the use of staging
piles, making them more beneficial in
certain cases where a CAMU is not
necessary for disposal and a temporary
unit does not provide enough
management flexibility. However, the
Agency believes that these cases would
be relatively few, and that treatment is
more appropriate in a CAMU, which has
design and operating standards to fit the
requirements surrounding treatment in a
unit.
iii. Remediation Action, Plans (RAPs)
This section of the preamble
summarizes the methodology and
results for the cost assessment
performed on the RAP provisions in
today's final rule. The Agency estimates
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65934 Federal Register/Vol. 63, No. 229/Monday, November 30, 1998/Rules and Regulations
a total cost savings of between $5
million and S35 million per year for the
RAP provision. The Agency did not
assess the impacts of RAPs in the
proposed rule economic assessment.
To evaluate this new provision, the
Agency performed a quantitative
analysis focusing on the cost saving
opportunities provided by RAPs to
unpermitted facilities which excavate
contaminated media and send it off-site
for treatment. An additional savings is
estimated to occur at unpermitted
facilities which are not currently
undertaking remediation due to
requirements Involved in RCRA
permitting; however, this savings has
not been quantified.
Facilities permitted under RCRA, as
well as interim status facilities, are
already under facility-wide corrective
action obligations, and would therefore
be much less likely to shift to use of
RAPs given the relatively minor
incremental savings of using a RAP over
obtaining a permit modification.
Therefore, unpermitted facilities,
mainly from State and voluntary
cleanups, were examined for a cost
savings impact from the RAP
provisions. To calculate this savings, the
Agency: (1) Estimated the total number
of unpermitted facilities currently
sending remediation waste off site in the
baseline; (2) determined the number of
facilities in this group which will shift
current practices to take advantage of
the RAP provision (that is, will shift to
on-site treatment); (3) projected an
incremental cost savings for this shift;
and (4) applied it to the number of
facilities determined to shift to estimate
the total cost savings for that group. The
cost savings was quantified as the
reduction in transportation costs for
facilities which are estimated to no
longer ship waste off-site for treatment,
and the reduction in treatment costs for
those facilities projected to shift from
off-site ex-situ treatment in the baseline
to on-site in-situ treatment in the post-
regulatory case. The Agency estimated
the number of States which already'
have permit-waiver authority, and thus
where the RAP provision is less likely
t6 have a significant impact; this figure
was employed in determining the
number of facilities likely to be
impacted.
The total number of facilities
estimated to shift to use of RAPs is
between seven and 66 facilities, all of
which currently (in the baseline) treat
excavated contaminated media off-site.
The total cost savings estimated for this
group is between $5 million and $35
million per year.
B. Executive Order 12898:
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
incorporation of environmental justice
into its policies and programs. EPA is
committed to addressing environmental
justice concerns and is assuming a
leadership role in environmental justice
initiatives to enhance environmental
quality for all residents of the United
States. The Agency's goals are to ensure
that no segment of the population,
regardless of race, color, national origin,
or income bears disproportionately high
and adverse human health and
environmental effects as a result of
EPA's policies, programs, and activities,
and all people live in clean and
sustainable communities. To address
this goal, EPA considered the impacts of
the HWIR-media final rule on low-
income populations and minority
populations.
- EPA has concluded that today's final
rule will potentially advance
environmental justice causes. The
HWIR-media final rule will potentially
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
remediation resources to address
additional sites. By encouraging
excavation of contaminated media, the
HWIR-media final rule 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 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.
C. Unfunded Mandates Reform Act
The Agency also evaluated the final
HWIR-media rule for compliance with
the Unfunded Mandates Reform Act of
1995. Title II of the Unfunded Mandates
Reform Act of 1995 (UMRA), Public
Law 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. HWIR-
media is a voluntary program as it
applies to State, Local, and Tribal
governments. In addition, promulgation
of the HWIR-media rule, because it is
considered 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 in sections 202 and
205 of the UMRA. Finally, EPA has
determined that the proposed HWIR-
media rule contains no regulatory
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requirements that might significantly or
uniquely affect small governments, -and
thus is not subject to the requirements
in section 203 of the UMRA.
Specifically, the program is generally
less stringent than the existing program
and makes no distinctions between
small governments and any potentially
regulated party.
D. Executive Order 12875: Enhancing
the Intergovernmental Partnership
Under Executive Order 12875, EPA '
may not issue a regulation that is not
. required by statute and that creates a
mandate upon a State, local or tribal
government, unless the Federal
government provides the funds
necessary to pay the direct compliance
costs incurred by those governments. If
EPA complies by consulting. Executive
, Order 12875 requires EPA to provide to
the Office of Management and Budget a
description of the extent of EPA's prior
consultation with representatives of
affected State, local and tribal
governments, the nature of their ,
concerns, copies of any written
communications from the governments,
and a statement supporting the need to
issue the regulation. In addition.
Executive Order 12875 requires EPA to
develop an effective process permitting
elected officials and other
representatives of State, local and tribal
governments "to provide meaningful
and timely input in the development of
regulatory proposals containing
significant unfunded mandates."
This rule does not create a mandate
on State, local or tribal governments.
The rule does not impose any
enforceable duties on these entities. It
provides more flexibility for States to
implement already-existing
requirements.
E. Regulatory Flexibility Act
Pursuant to the Regulatory Flexibility
Act (5 U.S.C. 601 etseq., as amended by
the Small Business Regulatory
Enforcement Fairness Act (SBREFA) of
1996) at the time the. Agency publishes
a proposed or final rule, it must prepare
and make available for public comment
a Regulatory Flexibility Analysis that
describes the effect of the rule on small
entities. However, no regulatory
flexibility analysis is required if the
Administrator certifies the rule will not
have a significant adverse impact on a
substantial .number of small entities.
The following discussion explains
EPA's determination.
The Agency has determined that
today's final rule will not have a
significant adverse economic impact on
a substantial number of small entities,
because the rule is estimated to provide
regulatory relief, and will not impose
any costs on the regulated community.
(For the analysis of impacts showing the
relief nature of today's rule, see the
above economic assessment.) Therefore,
no RFA has been prepared. Based on the
foregoing discussion, I hereby certify
that this rule will not have a significant
adverse economic impact on a
substantial number of small entities.
F. Paperwork Reduction Act
The information collection
.requirements in this rule will be ,
submitted for approval to the Office of
Management and Budget (OMB) under
the Paperwork Reduction Act, 44 U.S.C.
3501 etseq. An Information Collection
Request (ICR) document has been
prepared by EPA (ICR No. 1775.02) and
a copy may be obtained from Sandy
Farmer by mail at OPPE Regulatory
Information Division; U.S.
Environmental Protection Agency
(2137); 401 M St., SW.; Washington, DC.
20460, by e-mail at
farmer.sandy@epamail.epa.gov, or by
calling (2'02) 260-2740. A copy may also
be downloaded off the Internet at http:/
Avww.epa.gov/icr. The information
requirements are not effective until
OMB approves them. :
The Agency has estimated the burden
associated with complying with the
requirements in this' proposed rule.
Included in the ICR are the burden
estimates for the following requirements
for industry respondents: reading the
regulations; for staging piles, applying,
keeping records, requesting extensions,
closing, and incorporating into permits;
for general facility standards for
, remediation waste management sites,
obtaining ah EPA identification number,
performing waste analysis,
demonstrations for locating units in
floodplains, and contingency and
emergency plans; for RAPs at permitted
facilities, the permit modification
procedures; and finally, for RAP ,
applicants, the data in the RAP
application, transfer of facility
ownership, and recordkeeping. Included
also are the burden estimates for State
respondents for applying for abbreviated
State authorization.
The Agency has determined that all of
this information is necessary to ensure
compliance with today's rule.
Specifically, the information for staging
piles is required to ensure that the
design and operating of staging piles
will comply with all applicable
regulations and will be protective of
human health and the environment, to
ensure that staging piles are operated • '
within the two year limit, to ensure that
any requested extensions are necessary
and will not threaten human health and
the environment, to ensure that staging
piles are closed according to the
applicable regulations, and finally, to
ensure that permits are modified
appropriately. The information for
general facility standards is necessary to
ensure consistent and coordinated
identification of the site, to have
adequate knowledge of the waste being
managed to ensure the appropriate
waste management requirements are
complied with, and to be adequately
prepared for contingencies and
emergencies. The information for RAPs
is necessary to determine whether the
remediation waste management
activities will comply with the
applicable regulatory requirements, to
ensure smooth transfer of facility
ownership, and to ensure that facility
owners and operators have access to all
relevant information regarding their
RAP application. The information for
State resppndents seeking authorization
is necessary to verify legal authorities
and confirm that the State requirements
are no less stringent than Federal law.
, All of the information required under
today's rule is required only when the
respondent Wishes to obtain a benefit
such as a staging pile, a RAP, or State
authorization. Provisions already exist,
such as other units in part 264, and
traditional RCRA permits whereby
respondents could perform the same
functions allowed in staging piles and
RAPs, except that staging piles and
RAPs may be more desirable because
they are more flexible and more
appropriate for the cleanup scenario, so
respondents may voluntarily choose to
obtain staging piles and RAPs instead of
other options, but they are not required
to. Also, because today's rule is less
stringent than the existing RCRA
regulations, it is optional for States to
adopt and seek authorization for this
rule. Therefore, States could choose not
to adopt today's rule.
Section 3007(b) of RCRA and 40 CFR
part 2, Subpart B, which define EPA's
general policy on the public disclosure
of information, contain provisions for
confidentiality and apply to today's
rulemaking.
EPA has tried to minimize the burden
of this collection of information in
respondents. The universe of
respondents is expected to be sites
conducting cleanup under State and
Federal cleanup programs. EPA expects
that the industries most likely to be
affected by these requirements will.be
-. associated with the following SIC codes:
SIC Code Industry
2491 Wood preserving
2812 Alkalies and chlorine
2819, 2869 Industrial organic chemicals
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65936 Federal Register/Vol. 63, No. 229/Monday, November 30, 1998/Rules and Regulations
2821 Plastics materials and resins
2879 Agricultural chemicals
2899 Chemical preparations
2911 Petroleum refining
3000 Rubber and miscellaneous plastics
products
3089 Plastics products
3229 Pressed and blown glass
3316 Cold finishing of steel shapes
3339 Primary nonferrous metals
3341 Secondary nonferrous metals
3470 Metal services
3480, 3489 Ordnance and accessories
3482 Small arms ammunition
3568 General industrial machinery
3662 Communications equipment
3674 Semiconductors and related devices
3691 Storage batteries
3728 Aircraft parts and equipment
3764 Space propulsion units and parts
3792 Travel trailers and campers
3820 Measuring and controlling devices
3840 Medical instruments and supplies
4230 Trucking terminal facilities
4581 Airports, flying fields, and services
4953 Refuse systems
7210 Laundry, cleaning, and garment
services
8221 Colleges and universities
9711 National security
EPA estimates the projected annual
hour burden for industry respondents
will be 33.733 hours, and cost of
$1,967,699. Total estimates over three
years are 101.199 hours and $5,903,097.
EPA estimates that State agency
respondent will incur a total annual
burden of 886 hours and $22,410, which
over three years would be 2,658 hours
and S67.230. EPA estimates that the
annual Agency burden will be 5,726
hours and $176,899, which over three
years would be 17,178 hours and
$530,697. As subsets of the above total
costs, EPA estimates no annual capital
costs, and annual operation and
maintenance costs for staging piles and
RAPs of $49,902, and for State
authorization of $54. As a subset of
operation and maintenance, EPA
estimates $750 each time a responder
purchases services for waste analysis,
for a total of $65.472. This is the only
area where EPA expects purchase of
services.
For complying with the requirements
in the HWIR-media rule, industry
respondents are expected to spend an
average of 13.7 hours per year on
recordkeeping requirements and 5.0
hours per year on reporting
requirements. State agency respondents
are expected to spend no time on
recordkeeping, as there are no
recordkeeping requirements for the
States, and 16.4 hours per year on
reporting requirements.
EPA estimates that 1,805 sites are
eligible for RAPs and staging piles, and
are assumed by EPA to be the universe
of potential responders. These 1.805
potential responders are expected to
read the regulations.-EPA estimates that
90 responders per year will use staging
piles, arid 66 responders per year will
use RAPs._EPA_estimates that 18 States
per year will apply for authorization.
Responders will only need to respond
once for each activity for staging piles,
RAPs, or State authorization. '
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.
Send comments 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 to the Director, OPPE
Regulatory Information Division; U.S.
Environmental Protection Agency
(2137); 401 M St., SW.; Washington, DC
20460; and to the Office of Information
and Regulatory Affairs, Office of
Management and Budget, 725 17th St.,
NW.. Washington, DC 20503, marked
"Attention: Desk Officer for EPA."
Comments are requested by December
30, 1998. Include the ICR number in any
correspondence.
G. National Technology Transfer and
Advancement Act
, Under section 12 (d) of the National
Technology Transfer and Advancement
Act, the Agency is directed to use
voluntary consensus standards in its
regulatory activities unless to do so
would be inconsistent with applicable
law or otherwise impractical. Voluntary
consensus standards are technical
standards (for example, materials
specifications, test methods, sampling
procedures, business practices, etc.) that
are developed or adopted by voluntary
consensus standard bodies. Where
available and potentially applicable
voluntary consensus standards are not
used by EPA, the Act requires the
Agency to provide Congress, through
the Office of Management and Budget,
an explanation of the reasons for not
using these standards.
EPA is not proposing any new test
methods or other technical standards as
part of today's final rule. Thus, the
Agency has no need to consider the use
of voluntary consensus standards in
developing this proposed rule.
H. Submission to Congress and the
General Accounting Office
The Congressional Review Act, 5
U.S.C. 801 etseq., as added by the Small
Business Regulatory Enforcement
Fairness Act of 1996, generally provides
that before a rule may take effect, the
agency promulgating the rule must
submit a rule report, which includes a
copy of the rule, to each House of the
Congress and to the Comptroller General
of the United States, EPA will submit a
report containing this rule and other
required information to the U.S. Senate,
the U.S. House of Representatives, and
the Comptroller General of the United
States prior to publication of the rule in
the Federal Register. A Major rule
cannot take effect until 60 days after it
is published in the Federal Register.
This action is not a "major rule" as
defined by 5 U.S.C. 804(2).
I. Executive Order 13045: Protection of
Children from Environmental Health
Risks and Safety Risks
Executive Order 13045, entitled
"Protection of Children from
Environmental Health Risks and Safety
Risks" (see 62 FR 19885, April 23, 1997)
applies to any rule that EPA determines:
(1) is "economically significant" as
defined under Executive Order 12866,
and (2) the environmental health or
safety risk addressed by the rule has a
disproportionate effect on children. If
the regulatory action meets both criteria,,
the Agency must evaluate the
environmental health or safety effects of
the planned rule on children, and
explain why the planned regulation is
preferable to other potentially effective
and reasonably feasible alternatives
considered by the Agency.
This final rule is not subject to E.O.
13045 because this is not an
"economically significant" regulatory
action as defined by E.O. 12866.
J. Executive Order 13084: Consultation
and Coordination with Indian Tribal
Governments
Under Executive Order 13084, EPA
may not issue a regulation that is not
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Federal Register/Vol. 63, ,No. 229/Monday, November 30, 1998/Rules and Regulations 65937
required by statute, that significantly or
uniquely affects the communities of
Indian tribal governments, and that
imposes substantial direct compliance
costs on those communities, unless the
Federal government provides the funds
necessary to pay the direct compliance
costs incurred by the tribal
governments, or EPA consults with
those governments. If EPA complies by
consulting, Executive Order 13084
requires EPA to provide to the Office of
Management and Budget, in a separately
identified of the preamble to the rule, a
description of the extent of EPA's prior
consultation with representatives of
affected tribal governments, a summary
of the nature of their concerns, and a
statement supporting the need to issue
the regulation. In addition, Executive
Order 13084 requires EPA to develop an
effective process permitting elected and
other representatives of Indian tribal
governments "to provide meaningful
and timely input in the-development of
regulatory policies on matters that
significantly or uniquely affect their
communities."
Today's rule does not significantly or
uniquely affect the communities of
Indian tribal governments. In addition,
this rule imposes no new requirements
on pwners and operators, but rather,
allow flexibility to regulators to
implement requirements already in
place. Accordingly, the requirements in
3(b) of Executive Order 13084 do not
apply to this rule.
List of Subjects
40 CFR Part 260
Environmental protection,
Administrative practice and procedure,
Confidential business information,
Hazardous waste, Reporting and
recordkeeping requirements.
40 CFR Part 261 ,
Hazardous waste, Recycling,
Reporting and recordkeeping" •
requirements.
40 CFR Parts 264 and 265
Air pollution control, Hazardous
waste, Insurance, Packaging and -
containers, Reporting and recordkeeping
requirements. Security measures, Surety
bonds. •
40 CFR Part 268 ,
Hazardous waste, Reporting and
recordkeeping requirements.
40 CFR Part 270
Administrative practice and
procedure, Confidential business
information, Hazardous materials
transportation, Hazardous waste,
Reporting and recordkeeping
requirements, Water pollution control,
Water supply.
40CFRPart271
Administrative practice and
procedure. Confidential business
administration, Hazardous materials
transportation, Hazardous waste,
Indians-lands, Intergovernmental
relations, Penalties, Reporting and
recordkeeping requirements, Water
pollution control. Water supply.
'Authority: 42 U.S.C. 6912(a), 6921, 6924,
6926, and 6927.
Dated: November 2, 1998.
Carol M. Browner,
Administrator.
For the reasons set out in the
preamble, title 40, chapter I of the Code
of Federal Regulations is amended as
follows: .
PART 260—HAZARDOUS WASTE
MANAGEMENT SYSTEM: GENERAL
1. The authority citation for part 260
continues to read as follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921-
6927, 6930, 6934, 6935, 6937, 6938, 6939,
and 6974.
2. Section 260.10 is amended by
revising the introductory text; by
removing the definition for "Corrective
action management unit or CAMU'; by
revising the definitions for
"Miscellaneous unit" and "Remediation
waste"; by adding paragraph (3) to the
definition of "Facility"; and by adding
definitions in alphabetical order for
"Corrective action management unit
(CAMU)," "Remediation waste
management site" and "Staging 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:
*****
Corrective action management unit
(CAMU) means an area within a facility
that.is used only for managing
remediation wastes for implementing
corrective action or cleanup at the
facility.
* •* * * *
' Facility * * *
(3) Notwithstanding paragraph (2) of
this definition, a remediation .waste
management site is not a facility that is
subject to 40 CFR 264.101, but is subject
to corrective action requirements if the
site is located within such a facility.
*****
Miscellaneous unit means a
hazardous waste management unit
where hazardous waste is treated,
.stored, or disposed of and that is not a
container, tank, surface impoundment,
pile, land treatment unit, landfill,
incinerator, boiler, industrial furnace,
underground injection well with
appropriate technical standards under
part 146 of this chapter, containment
building, corrective action management
unit, unit eligible for a research,
development, and demonstration permit
under 40 CFR 270.65, or staging pile.
* * * * , *
Remediation waste means all solid
and hazardous wastes, and all media
(including grpundwater, surface water,
soils, and sediments) and debris that
'Contain listed hazardous wastes or that
themselves exhibit a hazardous
characteristic and are managed for
implementing cleanup.
Remediation waste management site
means a facility where an owner or
operator is or will be treating, storing or
disposing of hazardous remediation
wastes. A remediation waste
' management site is not a facility that is
subject to corrective action under 40
,CFR 264.101, but is subject to corrective
action requirements if the site is located
in such a facility. .
*****
Staging pile means an accumulation
of solid, non-flowing remediation waste
(as defined in this section) that is not a
containment building and that is used
only during remedial operations for
temporary storage at a facility. Staging
piles must be designated by the Director
according to the requirements of 40 CFR
264.554.
PART 261—IDENTIFICATION AND
LISTING OF HAZARDOUS WASTE
3. The authority citation for part 261
continues to read as follows:
Authqrity: 42 U.S.C. 6905, 6912(a), 6921,
6922, 6924(y) and 6938.
4. Section 261.4 is amended by
adding paragraph (g) to read as follows:
§261.4 Exclusions.
*****
(g) Dredged material that is not a
hazardous waste. Dredged material that
is subject to the requirements of a
permit that has been issued under 404
6f the Federal Water Pollution Control
Act (33 U.S.C. 1344) or section 103 of the
Marine Protection, Research, and
Sanctuaries Act of 1972 (33 U.S.C. 1413)
is not a hazardous waste. For this
paragraph (g), the following definitions
apply: ,
'(1) The term dredged material has the
same meaning as defined in 40 CFR
232.2;
(2) The term permit means:
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65938 Federal Register/Vol. 63, No. 229/Monday, November 30, 1998/Rules and Regulations
(i) A permit Issued by the U.S. Army
Corps of Engineers (Corps) or an
approved State under section 404 of the
Federal Water Pollution Control Act (33
U.S.C. 1344);,
(ii) A permit issued by the Corps
under section 103 of the Marine
Protection, Research, and Sanctuaries
Act of 1972 (33 U.S.C. 1413); or
(HI) In the case of Corps civil works
projects, the administrative equivalent
of the permits referred to in paragraphs
(g)(2)(i) and (ii) of this section, as
provided for in Corps regulations (for
example, see 33 CFR 336.1, 336.2. and
337.6).
PART 264—STANDARDS FOR
OWNERS AND OPERATORS OF
HAZARDOUS WASTE TREATMENT,
STORAGE, AND DISPOSAL
FACILITIES
5. The authority citation for part 264
continues to read as follows:
Authority: 42 U.S.C. 6905. 6912(a). 6924,
and 6925.
6. Section 264.1 is amended by
adding new paragraph (j) to read as .
follows:
§264.1 Purpose, scope and applicability.
*****
(j) The requirements of subparts B, C,
and D of this part and §264.101 do not
apply to remediation waste management
sites, (However, some remediation
waste management sites may be a part
of a facility that is subject to a
traditional RCRA permit because the
facility is also treating, storing or
disposing of hazardous wastes that are
not remediation wastes. In these cases,
Subparts B, C, and D of this part, and
§ 264.101 do apply to the facility subject
to the traditional RCRA permit.) Instead
of the requirements of subparts B, C,
and D of this part, owners or operators
of remediation waste management sites
must:
(1) Obtain an EPA identification
number by applying to the
Administrator using EPA Form 8700-
12;
(2) Obtain a detailed chemical and
physical analysis of a representative
sample of the hazardous remediation
wastes to be managed at the site. At a
minimum, the analysis must contain all
of the information which must be
known to treat, store or dispose of the
waste according to this part and part
268 of this chapter, and must be kept
accurate and up to date;
(3) Prevent people who are unaware
of the danger from entering, and
minimize the possibility for
unauthorized people or livestock to
enter onto the active portion of the
remediation waste management site,
unless the owner or operator can
demonstrate to the Director that:
(i) Physical contact with the waste,
structures, or equipment within the
active portion of the remediation waste
management site will not injure people
or livestock who may enter the active
•portion of the remediation waste
management site; and
(ii) Disturbance of the waste or
equipment by people or livestock who
enter onto the active portion of the
remediation waste management site,
will not cause a violation of the
requirements of this part;
, (4) Inspect the remediation waste
management site for malfunctions,
deterioration, operator errors, and
discharges that may be causing, or may
lead to, a release of hazardous waste
constituents to the environment, or a
threat to human health. The owner or
operator must conduct these inspections
often enough to identify problems in
time to correct them before they harm
human health or the environment, and
must remedy the problem before it leads
to a human health or environmental
hazard. Where a hazard is imminent or
has already occurred, the owner/
operator must take remedial action
immediately;
(5) Provide personnel with classroom
or on-the-job training on how to perform
their duties in a way that ensures the
remediation waste management site
complies with the requirements of this
part, and on how to respond effectively
to emergencies;
(6) Take precautio'ns to prevent
accidental ignition or reaction of
ignitable or reactive waste, and prevent
threats to human health and the
environment from ignitable, reactive
and incompatible waste;
(7) For remediation waste
management sites subject to regulation
under subparts I through O and subpart
X of this part, the owner/operator must
design, construct, operate, and maintain
a unit within a 100-year floodplain to
prevent washout of any hazardous waste
by a 100-year flood, unless the owner/
operator can meet the demonstration of
§264.18(b);
(8) Not place any non-containerized
or bulk liquid hazardous waste in any '
salt dome formation, salt bed formation,
underground mine or cave;
(9) Develop and maintain a
construction quality assurance program
for all surface impoundments, waste
piles and landfill units that are required
to comply with §§ 264.22 l(c) and (d),
264.251(c) and (d), and 264.301(c) and
(d) at the remediation waste
management site, according to the
requirements of §264.19;
(10) Develop and maintain procedures
to prevent accidents and a contingency
and emergency plan to control accidents
that occur. These propedures must
address proper design, construction,
maintenance, and operation of
remediation waste management units at
the site. The goal of the plan must be to
minimize the possibility of, and the
hazards from a fire, explosion, or any
unplanned sudden or non-sudden
release of hazardous waste or, hazardous
waste constituents to air, soil, or surface
water that could threaten human health
or the environment. The plan must
explain specifically how to treat, store
and dispose of the hazardous
remediation waste in question, and
must be implemented immediately
whenever a fire, explosion, or release of
hazardous waste or hazardous waste
constituents which could threaten
human health or the environment;
(11) Designate at least one employee,
either on the facility premises or on call
(that is, available to respond to an
emergency by reaching the facility
quickly); to coordinate all emergency
response measures. This emergency
coordinator must be thoroughly familiar
with all aspects of the facility's
contingency plan, all operations and
activities at the facility, the location and
characteristics of waste handled, the
location of all records within the
facility, and the facility layout. In
addition, this person must have the
authority to commit the resources
needed to carry out the contingency
plan; ,
(12) Develop, maintain and
implement a plan to meet the
requirements in paragraphs (j) (2)
through 0)(6) and (j)(9) through (j)(10) of
this section; and
(13) Maintain records documenting
compliance with paragraphs (j)(l)
through (j)(12) of this section.
7. Section 264.73 is amended by
adding paragraph (b)(17) to read as
follows:
§264.73 Operating record.
* * * * *
(b)***
(17) Any records required under
§264.1(j) (13).
8. Section 264.101 is amended by
adding paragraph (d) to read as follows:
§ 264.101 Corrective action for solid waste
management units.
* * . * * *
(d) This does not apply to remediation
waste management sites unless they are
part of a facility subject to a permit for
treating, storing or disposing of
hazardous wastes that are not
remediation wastes.
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Federal Register/Vol. 63, No. 229/Monday, November 30, 1998 7 Rules and Regulations 65939
9. Section 264.552 is amended by
revising paragraph (a) to read as follows:
§ 264.552 Corrective Action Management
Units (CAMU).
(a) To implement remedies under
§264.101 or RCRA.3008(h), or to
implement remedies at a permitted
facility that is not subject to §264.101, .
the Regional Administrator may
designate an area at the facility as a
corrective action management unit, as
defined in § 260.10, under the
requirements in this section. A CAMU
must be located within the contiguous
property under the control of the owner/
operator where the wastes to be
managed in the CAMU originated. One
or more CAMUs may be designated at a
facility. .
(1) Placement of remediation wastes
into or within a CAMU does not
constitute land disposal of hazardous
wastes.
(2) Consolidation or placement of
remediation wastes into or within a
CAMU does not constitute creation of a
unit subject to minimum technology
requirements.
*****
10. Section 264.553 is amended by
revising paragraph (a) to read as follows:
§264.553 Temporary Units (TU).
(a) For temporary tanks and container
storage areas used to treat or store
hazardous remediation wastes during
remedial activities required under
§ 264.101 or RCRA 3008 (h), or at a
permitted facility that is not subject to
§264.101, the Regional Administrator
may designate a unit at the facility, as
a temporary unit. A temporary unit
.must be located within the contiguous
property under the control of the owner/
operator where the wastes to be
managed in the temporary unit
originated. For temporary units, the
Regional Administrator may replace the
design, operating, or closure standard
applicable to these units under this part
264 or part 265 of this chapter with
alternative requirements which protect
human health and the environment,
*****
11. New §264.554 is added to subpart
S to read as follows:
§264.554 Staging piles.
This section is written in a special
format to make it easier to understand
the regulatory requirements. Like other
Environmental Protection Agency (EPA)
regulations, this establishes enforceable
legal requirements. For this "I" and
"you" refer to the owner/operator.
(a) What is a staging pile? A staging
pile is an accumulation of solid, non-
flowing remediation waste (as defined
in § 260.10 of this chapter) that is not a
containment building and is used only
during remedial operations for
temporary storage at a facility.'A staging
pile must be located within the-
contiguous property under the control
of the owner/operator where the wastes
to be managed in the staging pile
originated. Staging piles must be
designated by the Director in according
to the requirements in this section.
. (b) When may I use a staging pile?
You may use a staging pile to store
hazardous remediation waste (or
remediation waste otherwise subject to
land disposal restrictions) only if you
follow the standards and design criteria
the Director has designated for that
_ staging pile. The Director must
designate the staging pile in a permit or,
at an interim status facility, in a closure
plan or order (consistent with
§ 270.72 (a) (5) and (b) (5) of this chapter).
The Director must establish conditions
in the permit, closure plan, or order that
comply with paragraphs (d) through (k)
of this section.
(c) What information must I provide
to get a staging pile designated?When
seeking a staging pile designation, you
must provide:
(1) Sufficient and accurate
information to enable the Director to
impose standards and design criteria for
your staging pile according to
paragraphs (d) through (k) of this
section;
(2) Certification by an independent,
qualified, registered professional
engineer for technical data, such as
design drawings and specifications, and
engineering studies, unless the Director
determines, based on information that
you provide, that this certification is not
necessary to ensure that a staging pile
will protect human health and the
environment; and
(3) Any additional information the
Director determines is necessary to
protect human health and the
environment.
(d) What performance criteria must a
staging pile satisfyPThe Director must
establish the standards and design
criteria for the staging pile in the permit,
closure plan, or order.
(1) The standards and design criteria
must comply with the following:
(i) The staging pile must facilitate a
reliable, effective and protective
remedy;
(ii) The staging pile must be designed
so as to prevent or minimize releases of
hazardous wastes and hazardous
constituents into the environment, and
minimize or adequately control cross-
media transfer, as necessary to protect
human health and the environment (for
example, through the use of liners,,
covers, run-off/run-on controls, as
appropriate); and
(iii) The staging pile must not operate
for more than two years, except when
the Director grants an operating term
extension under paragraph (i) of this .'
section (entitled "May I receive an
operating extension for a staging pile?").
You must measure the two-year limit, or
other operating term specified by the
Director in the permit, closure plan, or
order, from the first time you place
remediation waste into a staging pile.
You must maintain a record of the date
when you first placed remediation
waste into the staging pile for the life of
the permit, closure plan, or order; or for
three years, whichever is longer.
(2) In setting the standards and design
criteria, the Director must consider the
following factors:
(i) Length of time the pile will be in
operation;
(ii) Volumes of wastes you intend to
store in the pile;
(iii) Physical and chemical
characteristics of the wastes to be'stored
In the unit;
(iv) Potential for releases from the
unit;
(v) Hydrogeological and other relevant
environmental conditions at the facility
that may influence the migration of any
potential releases; and
(vi) Potential for human and
environmental exposure to potential
releases from the unit;
(e) May a staging pile receive ignitable
or reactive remediation waste?You
must not place ignitable or reactive
remediation waste in a staging pile
unless:
(1) You have treated, rendered or
mixed the remediation waste before you
placed it in the staging pile so that:
(i) The remediation waste no longer
meets the definition of ignitable or
reactive under §261.21 or §261.23 of
this chapter; and
(ii) You have complied with
§264.17(b);or
(2) You manage the remediation waste
to protect it from exposure to any
material or condition that may cause it
to ignite or react.
(f) How do I handle incompatible
remediation wastes in a staging pile?
The term "incompatible waste" is
defined in §260.10 of this chapter. You
must comply with the following
requirements for incompatible wastes in
staging piles:
(1) You must not place incompatible
remediation wastes in the same staging
pile unless you have complied with
§264.17(b);
(2) If remediation waste in a staging
pile is incompatible with any waste or
material stored nearby in containers.
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65940 Federal Register/Vol. 63, No.' 229 / Monday, November 30. 1998/Rules and Regulations
other piles, open tanks or land disposal
units (for example, surface
impoundments), you must separate the
incompatible materials, or protect them
from one another by using a dike, berm,
wall or other device; and
(3) You must not pile remediation
waste on the same base where
incompatible wastes or materials were
previously piled, unless the base has
been decontaminated sufficiently to
comply with § 264.17(b).
(g) Are staging piles subject to Land
Disposal Restrictions (LDR) and
Minimum Technological Requirements
(MTR)?No. Placing hazardous
remediation wastes into a staging pile
does not constitute land disposal of
hazardous wastes or create a unit that is
subject to the minimum technological
requirements of RCRA 3004 (o).
(h) How long may I operate a staging
p//e?The Director may allow a staging
pile to operate for up to two years after
hazardous remediation waste is first
placed into the pile. You must use a
staging pile no longer than the length of
time designated by the Director in the
permit, closure plan, or order (the
"operating term"), except as provided in
paragraph (i) of this section.
(1) May I receive an operating
extension for a staging pile? (I) The
Director may grant one operating term
extension of up to 180 days beyond the
operating term limit contained in the
permit, closure plan, or order (see
paragraph (1) of this section for
modification procedures). To justify to
the Director the need for an extension,
you must provide sufficient and
accurate information to enable the
Director to determine that continued
operation of the staging pile:
(5) Will not pose a threat to human
health and the environment; and
(ii) Is necessary to ensure timely and
efficient implementation of remedial
actions at the facility.
(2) The Director may, as a condition
of the extension, specify further
standards and design criteria in the
permit, closure plan, or order, as
necessary, to ensure protection of
human health and the environment.
(j) What is the closure requirement for
a staging pile located in a previously
contaminated area? (1) Within 180 days
after the operating term of the staging
pile expires, you must close a staging
pile located in a previously
contaminated area of the site by
removing or decontaminating all:
(i) Remediation waste;
(ii) Contaminated containment system
components; and
(Hi) Structures and equipment
contaminated with waste and leachate.
(2) You must also decontaminate
contaminated subsoils in a manner and
according to a schedule that the Director
determines will protect human health
and the environment.
(3) The Director must include the
above requirements in the permit,
closure plan, or order in which the
staging pile" is designated.
(k) What is the closure requirement
for a staging pile located in an
uncontaminatedarea?(l) Within 180
days after the operating term of the
staging pile expires, you must close a
staging pile located in an
uncontaminated area of the site
according to §§264.258(a) and 264.111;
or according to §§265.258(a) and
265.111 of this chapter.
(2) The Director must include the
above requirement in the permit,
closure plan, or order in which the
staging pile is designated.
(1) How may my existing permit (for
example, RAP), closure plan, or order be
modified to allow me to use a staging
pile? (1) To modify a permit, other than
a RAP, to incorporate a staging pile or
staging pile operating term extension,
either:
(i) The Director must approve the
modification under the procedures for
Agency-initiated permit modifications
in § 270.41 of this chapter; or
(ii) You must request a Class 2
modification under §270.42 of this
chapter.
(2) To modify a RAP to incorporate a
staging pile or staging pile operating
term extension, you must comply with
the RAP modification requirements
under §§270.170 and 270.175 of this
chapter.
(3) To modify a closure plan to
incorporate a staging pile or staging pile
operating term extension, you must
follow the applicable requirements
under § 264.112(c) or §265.112(c) of this
chapter.
(4) To modify an order to incorporate
a staging pile or staging pile operating
term extension, you must follow the
terms of the order and the applicable
provisions of §270.72(a)(5) or (b)(5) of
this chapter.
(m) Is information about the staging
pile available to the public?The
Director must document the rationale
for designating a staging pile or staging
pile operating term extension and make
this documentation available to the
public.
PART 265—INTERIM STATUS
STANDARDS FOR OWNERS AND
OPERATORS OF HAZARDOUS WASTE
TREATMENT, STORAGE, AND
DISPOSAL FACILITIES
12. The authority citation for part 265
continues to read as follows:
- Authority: 42 U.S.C. 6905, 6906, 6912,
6922, 6923, 6924, 6925, 6935, 6936 and 6937,
unless otherwise noted. <
§265.1 [Amended]
13. Section 265. l(b) is amended in the
first sentence by revising ", and of 40
CFR 264.552 and 40 CFR 264.553," to
read ", and of 40 CFR 264.552, 264.553,
and 264.554,".
PART 268—LAND DISPOSAL
RESTRICTIONS
14. The authority citation for part 268
continues to read as follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921,
and 6924.
15. Section 268.2 is amended by
revising paragraph (c) to read as follows:
§ 268.2 Definitions applicable in this part.
*****
(c) Land disposal means placement in
or on the land, except in a corrective •
action management unit or staging pile,
and includes, but is not limited to,
placement in a landfill, surface
impoundment, waste pile, injection
well, land treatment facility, salt dome
formation, salt bed formation,
underground mine or cave, or
placement in a concrete vault, or bunker
intended for disposal purposes.
* * • * * *
16. Section 268.50 is amended by
adding new paragraph (g) to read as
follows:
§ 268.50 Prohibitions on storage of
restricted wastes.
*****
(g) The prohibition and requirements
in this do not apply to hazardous
remediation wastes stored in a staging
pile approved pursuant to §264.554 of
this chapter.
PART 270—EPA ADMINISTERED
PERMIT PROGRAMS: THE
HAZARDOUS WASTE PERMIT
PROGRAM
17. The authority citation for part 270
continues to read as follows:
Authority: 42 U.S.C. 6905, 6912, 6924,
6925, 6927, 6939, and 6974.
Subpart A—General Information
18. Section 270.2 is amended by
adding a definition for "Remedial
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Action Plan (RAP)" in alphabetical
order to read as follows:
§270.2 Definitions.
*****
Remedial Action Plan (RAP) means a
special form of RCRA permit that a
facility owner or operator may obtain
instead of a permit issued under
§§ 270.3 through 270.66, to authorize
the treatment, storage or disposal of
hazardous remediation waste (as
defined in §260.10 of this chapter) at a
remediation waste management site.
Subpart B—Permit Application
19. Section 270.11 is amended by
revising paragraph (d) to read as
follows:
§ 270.11 Signatories to permit applications
and reports.
(d) (1) Any person signing a document
under paragraph (a) or (b) of this must
make the following certification:
I certify under penalty of law that this
document and all attachments were prepared
under my direction or supervision according
to a system designed to assure that qualified
personnel properly gather and evaluate the
information submitted. Based on "my inquiry
of the person or persons who manage the
system, or those persons directly responsible
for gathering the information, the information
submitted is, to the best of my knowledge
' and belief, true, accurate, and complete. I am
aware that there are significant penalties for
submitting false information, including the
possibility of fine and imprisonment for
knowing violations.
(2) For remedial action plans (RAPs)
under subpart H of this part, if the
operator certifies according to paragraph
(d) (1) of this section, then the owner
may choose to make the following
certification instead of the certification
in paragraph (d)(l) of this section:
Based on my knowledge of the conditions
of the property described in the RAP and my
inquiry of the person or persons who manage
the system referenced in the operator's
certification, or those persons directly
responsible for gathering the information, the
information submitted is, upon information
and belief, true, accurate, and complete. I am
aware that there are significant penalties for
submitting false information, including the
possibility of fine and imprisonment'for
knowing violations.
Subpart D—Changes to Permits
20. Appendix I to § 270.42 is amended
by adding new modification D.S.g. and
new modification N.3. to read as
follows:
§ 270.42 Permit modification at the request
of the permittee.
Modifications
Class
D. Closure
3. Addition of the following new units
to be used temporarily for closure
activities:
g. Staging piles ....
* ' -*
N. Corrective Action:
3. Approval of a staging pile or
staging pile' operating term ex-
tension pursuant to § 264.554 2
Subpart F—Special Forms of Permits
21. A new § 270.68 is added to
subpart F to read as follows:
§ 270.68 Remedial Action Plans (RAPs).
Remedial Action Plans (RAPs) are
special forms of permits that are
regulated under subpart H of this part.
Subpart G—Interim Status
22. Section 270,73 is amended by "
revising paragraph (a) to read as follows:
§270.73 Termination of interim status.
* .' * * * *
(a) Final administrative disposition of
a^permit application, except an
application for a remedial action plan
(RAP) under subpart H of this part, is
made.
*****
23-24. A new Subpart H is added to
Part 270 to read as follows:
Subpart H—Remedial Action Plans (RAPs)
Sec.
270.79 Why is this subpart written in a
special format?
General Information
270.80 What is a RAP?
270.85 When do I need a RAP?
270.90 Does my RAP grant me any rights or
relieve me of any obligations?
Applying for a RAP .
270.95 How do I apply for a RAP?
270.100 Who must obtain a RAP?
270.105 Who must sign the application and
any required reports for a RAP?
270:110 What must I include in my
application for a RAP?
270.115 What if I want to keep this
information confidential?
270:120. To whom must I submit my RAP
application?
270.125 If Isubmit my RAP application as _
part of another document, what must I
do? ' .
Getting a RAP Approved .
270.130 What is the process for approving
or denying my application for a RAP?
270.135 What must the Director include in
a draft RAP?
270.140 What else must the Director
prepare in addition to the draft RAP or
notice of intent to deny?
0270.145 What are the procedures for
public comment on the draft RAP or
notice of intent to deny?
270.150 How will the Director make a final
decision on my RAP application?
270.155 May the decision to approve or
deny my RAP application be
administratively appealed?
270.160 When does my RAP become
effective?
270.165 When mayj begin physical
construction of new units permitted
under the RAP?
How May My RAP be Modified, Revoked
and Reissued, or Terminated?
270.170 After my-RAP is issued, how may
it be modified, revoked and reissued, or
terminated?
270.175 For what reasons may the Director
choose.to modify my final RAP?
270.180 For what reasons may the Director
choose to revoke and reissue my final
RAP?
270.185 For what reasons may the Director
choose to terminate my final RAP, or
deny my renewal application?
270.190 May the decision to approve or
deny a modification, revocation and
reissuance, or termination of my RAP be
administratively appealed?
270.195 When will my RAP expire?
270.200 How may I renew my RAP if it is
expiring?
270.205 What happens if I have applied
correctly for a RAP renewal but have not
received approval by the time my old
RAP expires?
Operating Under Your RAP
270.210 What records must I maintain
concerning my RAP?
270.215 How are time periods in the
requirements in this Subpart and my
RAP computed?
270.220 How may I transfer my RAP to a
new owner or operator?
270.225 What must the State or EPA Region
• report about noncompliance with RAPs?
Obtaining a RAP for an Off-site Location
270.230 May I perform remediation waste
management activities under a RAP at a
location removed from the area where
the remediation wastes originated?'
Subpart H—Remedial Action Plans
(RAPs)
§ 270.79 Why is this subpart written in a
special format?
This subpart is written in a special
format to make it easier to understand
the regulatory requirements. Like other
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65942 Federal Register/Vol. 63, No. 229/Monday, November 30, 1998/Rules and Regulations
Environmental Protection Agency (EPA)
regulations, this establishes enforceable
legal requirements. For this Subpart, "I"
and "you" refer to the owner/operator.
General Information
§270.80 What Is a RAP?
(a) A RAP is a special form of RCRA
permit that you, as an owner or
operator, may obtain, instead of a permit
issued under §§270.3 through 270.66, to
authorize you to treat, store, or dispose
of hazardous remediation waste (as
defined in §260.10 of this chapter) at a
remediation waste management site. A
RAP may only be issued for the area of '
contamination where the remediation
wastes to be managed under the RAP
originated, or areas in close proximity to
the contaminated area, except as
allowed in limited circumstances under
§270.230.
(b) The requirements in §§270.3
through 270.66 do not apply to RAPs .
unless, those requirements for traditional
RCRA permits are specifically required
under §§270.80 through 270.230. The
definitions in §270.2 apply to RAPs.
(c) Notwithstanding any other
provision of this part or part 124 of this
chapter, any document that meets the
requirements in this section constitutes
a RCRA permit under RCRA section
3005(c).
(d) A RAP may be:
(lj A stand-alone document that
includes only the information and
conditions required by this subpart; or
(2) Part (or parts) of another document
that includes information and/or
conditions for other activities at the
remediation waste management site, in
addition to the information and
conditions required by this subpart.
(e) If you are treating, storing, or
disposing of hazardous remediation
wastes as part of a cleanup compelled
by Federal or State cleanup authorities,
your RAP does not affect your
obligations under those authorities in
any way.
(f) If you receive a RAP at a facility
operating under interim status, the RAP
does not terminate your interim status.
§ 270.85 When do 1 need a RAP?
(a) Whenever you treat, store, or
dispose of hazardous remediation
* wastes in a manner that requires a
RCRA permit under §270.1, you must
either obtain:
(1) A RCRA permit according to
§§270.3 through 270.66; or
(2) A RAP according to this subpart.
(b) Treatment units that use
combustion of hazardous remediation
wastes at a remediation waste
management site are not eligible for
RAPs under this Subpart.
(c) You may obtain a RAP for
managing hazardous remediation waste
at an already permitted RCRA facility.
You must have these RAPs approved as
a modification to your existing permit
according to the requirements of
§ 270.41 or § 270.42 instead of the "
requirements in this Subpart. When you
submit an application for such a
modification, however, the information
requirements in §270.42(a)(l)(i),
(b)(l)(iv), and (c)(l)(iv) do not apply;
instead, you must submit the
information required under §270.110.
When your permit is modified the RAP
becomes part of the RCRA permit.
Therefore when your permit (including
the RAP portion) is modified, revoked
and reissued, terminated or when it
expires, it will be modified according to
the applicable requirements in §§270.40
through 270.42, revoked and reissued
according to the applicable
requirements in §§270.41 and 270.43,
terminated according to the applicable
requirements in §270.43, and expire
according to the applicable
requirements in §§270.50 and 270.51.
§ 270.90 Does my RAP grant me any rights
or relieve me of any obligations? .
The provisions of § 270.4 apply to
RAPs. (NOTE: The provisions of
§ 270.4 (a) provide you assurance that, as
long as you comply with your RAP, EPA
will consider you in compliance with
Subtitle C of RCRA, and will not take
enforcement actions against you.
However, you should be aware of four
exceptions to this provision that are
listed in §270.4.)
Applying for a RAP
§270.95 How do I apply for a RAP?
To apply for a RAP, you must
complete an application, sign it, and
submit it to the Director according to the
requirements in this subpart.
§ 270.100 Who must obtain a RAP?
When a facility or remediation waste
management site is owned by one
person, but the treatment, storage or
disposal activities are operated by
another person, it is the operator's duty
to obtain a RAP, except that the owner
must also sign the RAP application.
§ 270.105 Who must sign the application
and any required reports for a RAP?
Both the owner and the operator must
sign the RAP application and any
required reports according to
§ 270.11 (a), (b)~, and (c). In the
application, both the owner and the
operator must also make the
certification required under
§ 270.11 (d) (1). However, the owner may
choose the alternative certification
under § 270.11 (d) (2) if the operator
certifies under §270.11 (d)(l).
§ 270.110 What must I include in my
application for a RAP? "
You must include the following
information in your application for a
RAP:
(a) The name, address, and EPA
identification number of the
remediation waste management site;
(b) The name, address, and telephone
number of,the owner and operator;
(c) The latitude and longitude of the
site;
(d) The United States Geological
Survey (USGS) or county map showing
the location of the remediation waste
management site;
(e) A scaled drawing of the
remediation waste management site
showing:
(1) The remediation waste
management site boundaries;
(2) Any significant physical
structures; and
(3) The boundary of all areas on-site
where remediation waste is to be
treated, stored or disposed;
(f) A specification of the hazardous
remediation waste to be treated, stored
or disposed of at the facility or
remediation waste management site.
This must include information on:
(1) Constituent concentrations and
other properties of the hazardous
remediation wastes that may affect how
such materials should be treated and/or
otherwise managed;
(2) An estimate of the quantity of
these wastes; and
(3) A description of the processes you
will use to treat, store, or dispose of this
waste including technologies, handling
systems,,design and operating ,
parameters you will use to treat
hazardous remediation wastes before
disposing of them according to the LDR
standards of part 268 of this chapter, as
applicable;
(g) Enough information to
demonstrate that operations that follow
. the provisions in your RAP application
will ensure compliance with applicable
requirements of parts 264, 266, and 268
of this chapter;
(h) Such information as may be
necessary to enable the Regional
Administrator to carry out his duties ,
under other Federal laws as is required
for traditional RCRA permits under
§270.14(b)(20);
(i) Any other information the Director
decides is necessary for demonstrating
compliance with this subpart or for
determining any additional RAP
conditions that are necessary to protect
human health and the environment.
•• • ' • f
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§ 270.115 What if I want to keep this
information confidential?
Part 2 (Public Information) of this
chapter allows you to claim as
confidential any or all of the
information you, submit to EPA under
this subpart. You must assert any such
claim at the time that you submit your
RAP application or other submissions
by stamping the words ''confidential
business information" on each page
containing such information. If you do
assert a claim at the time you submit the
information, EPA will treat the
information according to the procedures
in part 2 of this chapter. If you do not
assert a claim at the time you submit the
information, EPA may make the
information available to the public
without further notice to you. EPA will
deny any requests for confidentiality of
your name and/or address. ,
§270.120 To whom must I submit my RAP
application?
You must submit your application for
,a RAP to the Director for approval..
§270.125 If I submit my RAP application
as part of another document, what must I
do?
If you submit your application for a
RAP as a part of another document, you
must clearly identify the components of
that document that constitute your RAP
application.
Getting a RAP Approved
§ 270.130 What is the process for
approving or denying my application for a
RAP?
(a) If the Director tentatively finds that
your RAP application includes all of the
information required by §270.110 and
that your proposed remediation waste
management activities meet the
regulatory standards, the.Director will
make a tentative decision to approve '
your RAP application. The Director will
then prepare a draft RAP and provide an
opportunity for public comment before
making a final decision on your RAP
application, according to this subpart.
(b) If the Director tentatively finds
that your RAP application does not
include all of the information required
by § 270.110 or that your proposed
. remediation waste management
activities do not meet the regulatory,
standards, the Director may request
additional information from you or ask
you to correct deficiencies in your
application. If you fail or refuse to
provide 'any additional information the
Director requests, or to correct any
deficiencies in your RAP application,
the Director may make a tentative
decision to deny your RAP application.
After making this tentative decision, the
Director will prepare a notice of intent
to deny your RAP application ("notice
of intent to deny") and provide an
opportunity for public comment before
making a final decision on your RAP
application, according to the
requirements in this Subpart. The
Director may deny the RAP application
either in its entirety or in part.
§270.135 What must the Director include
in a draft RAP?
If the Director prepares a draft RAP,
it must include the:
- (a) Information required under
§ 270.110(a) through (f); ,
(b) The following terms and
conditions: ," .
(1) Terms and conditions necessary to
ensure that the operating requirements
specified in your RAP comply with
applicable requirements of parts 264,
266, and 268 of this chapter (including
any recordkeeping and reporting
requirements). In satisfying this
provision, the Director may incorporate,
expressly or by reference; applicable
requirements of parts 264, 266, and 268
of this chapter into the RAP or establish
site-specific conditions as required or '
allowed by parts 264, 266, and 268 of
this chapter;
(2) Terms/and conditions in §270,'30;
(3) Terms and conditions for
modifying, revoking and reissuing, and
terminating your RAP, as provided in
§270.170; and
. (4) Any additional terms or conditions
that the Director, determines are
necessary to protect human health and
the environment, including any terms '
and conditions necessary to respond to
spills and leaks during use of any units
permitted under the RAP; and
(c) If the draft RAP is part of another
document, as described in
§ 270.80(d)(2), the Director must clearly
identify the components of that
document that constitute the draft RAP.
§ 270.140 What else must the Director
prepare in addition to the draft RAP or
notice of intent to deny?
Once the Director has prepared the
draft RAP or notice of intent"to deny, he
must then:
(a) Prepare a statement of basis that
briefly describes the derivation of the
conditions of the draft RAP and the
reasons for them, or the rationale for the
notice of intent to deny;
(b) Compile an administrative record,
including:
(1) The RAP application, and any
supporting data furnished by the
applicant;
(2) The draft RAP or notice of intent
to deny;
(3) The statement of basis and all
documents cited therein (material
readily available at the issuing Regional
office or published material that is
generally available need not be
physically included with the rest of the
record, as long as it is-specifically
referred to in the statement of basis);
and
(4) Any other documents that support
the decision to approve or deny the
RAP; and
(c) Make information contained in the
administrative record available for
review by the public upon request.
§ 270.145 What are the procedures for
public comment on the draft RAP or notice
of intent to deny?
(a) The Director must:'
(l) Send notice to you of his intention
to approve or deny your RAP
application, and send you a copy of the
statement of basis;
(2) Publish a notice of his intention to
approve or deny your RAP application
in a major local newspaper of general
circulation;
(3) Broadcast his intention to approve
or deny your RAP application over a
local radio station; and
(4) Send a notice of his intention to
approve or deny your RAP application .
to each unit of local government having
jurisdiction over the area in which your
site is located, and to each State agency
having any authority under State law
with respect to any construction or .
operations at the site.
(b) The notice required by paragraph
(a) of this section must provide an
opportunity for the public to submit
written comments on the draft RAP or
notice of intent to deny within at least
45 days.
(c) The notice required by paragraph
(a) of this section must include:
(1) The name and address of the office
processing the RAP application;
(2) The name and address of the RAP
applicant, and if different, the .
remediation waste management site or
activity the RAP will regulate;
(3) A brief description of the activity
the RAP will regulate;
(4) The name, address and telephone
number of a person from whom.
interested persons may obtain further
inforrnation, including copies of the
draft RAP or notice of intent to deny,
statement of basis, and the RAP
application;
(5) A brief description of the comment
procedures in this section, and any
'other procedures by which the public
may participate in the RAP decision;
(6) If a hearing is scheduled, the date,
time, location and purpose of the
hearing;
(7) Ifa hearing is not scheduled, a
statement of procedures to request a
hearing; ,
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65944 Federal Register/Vol. 63, No. 229/Monday, November 30, 1998/Rules and Regulations
(8) The location of the administrative
record, and times when it will be open
for public inspection; and
(9) Any additional information the
Director considers necessary or proper.
(d) If, within the comment period, the
Director receives written notice of
opposition to his intention to approve or
deny your RAP application and a
request for a hearing, the Director must
hold an informal public hearing to
discuss issues relating to the approval or
denial of your RAP application. The
Director may also determine on his own
initiative that an informal hearing is
appropriate. The hearing must include
an opportunity for any person to present
written or oral comments. Whenever
possible, the Director must schedule
this hearing at a location convenient to
the nearest population center to the
remediation waste management site and
give notice according to the
requirements in paragraph (a) of this
section. This notice must, at a
minimum, include the information
required by paragraph (c) of this section
and:
(1) Reference to the date of any
previous public notices relating to the
RAP application;
(2) The date, time and place of the
hearing; and
(3) A brief description of the nature
and purpose of the hearing, including
the applicable rules and procedures.
§270.150 How will the Director make a
final decision on my RAP application?
(a) The Director must consider and
respond to any significant comments
raised during the public comment
period, or during any hearing on the
draft RAP or notice of intent to deny,
and revise your draft RAP based on
those comments, as appropriate.
(b) If the Director determines that
your RAP Includes the information and
terms and conditions required in
§ 270.135, then he will issue a final
decision approving your RAP and, in
writing, notify you and all commenters
on your draft RAP that your RAP
application has been approved.
(c) If the Director determines that your
RAP does not include the information
required in §270.135, then he will issue
a final decision denying your RAP and,
in writing, notify you and all
commenters on your draft RAP that your
RAP application has been denied.
(d) If the Director's final decision is
that the tentative decision to deny the
RAP application was incorrect, he will
withdraw the notice of intent to deny
and proceed to prepare a draft RAP,
according to the requirements in this
subpart.
(e) When the Director issues his final
RAP decision, he must refer to the
procedures for appealing the decision
under §270.155.
(f) Before issuing the final RAP
decision, the Director must compile an
administrative record. Material readily
available at the issuing Regional office
or published materials which are
generally available and which are
included in the administrative record
need not be physically included with
the rest of the record as long as it is
specifically referred to in the statement
of basis or the response to comments.
The administrative record for the final
RAP must include information in the
administrative record for the draft RAP
(see§270.140(b))and:
(1) All comments received during the
public comment period;
(2) Tapes or transcripts of any
hearings;
(3) Any written materials submitted at
these hearings;
. (4) The responses to comments;
(5) Any new material placed in the
record since the draft RAP was issued;
(6) Any other documents supporting
the RAP; and (7) A copy of the final
RAP.
(g) The Director must make
information contained in the
administrative record available fdr
review by the public upon request.
§ 270.155 May the decision to approve or
deny my RAP application be
administratively appealed?
(a) Any commenter on the draft RAP
or notice of intent to deny, or any
participant in any public hearing(s) on
the draft RAP, may appeal the Director's
decision to approve or deny your RAP
application to EPA's Environmental
Appeals Board under § 124.19 of this
chapter. Any person who did not file
comments, or did not participate in any
public hearing(s) on the draft RAP, may
petition for administrative review only
to the extent of the changes from the
draft to the final RAP decision. Appeals
of RAPs may be made to the same extent
as for final permit decisions under
§ 124.15 of this chapter (or a decision
under § 270.29 to deny a permit for the
active life of a RCRA hazardous waste
management facility or unit). Instead of
the notice required under §§ 124.19(c)
and 124.10 of this chapter, the Director
will give public notice of any grant of
review of RAPs by the Environmental
Appeals Board through the same means
used to provide notice under §270.145.
The notice will include:
(1) The briefing schedule for the
appeal as provided by the Board;
(2) A statement that any interested
person may file an amicus brief with the
Board; and
(3) The information specified in
§270.145(c), as appropriate.
(b) This appeal is a prerequisite to
seeking judicial review of these EPA
actions.
§ 270.160 When does my RAP become
effective?
Your RAP becomes effective 30 days
after the Director notifies you and all
commenters that your RAP is approved
unless:
(a) The Director specifies a later
effective date in his decision;
(b) You or another person has
appealed your RAP under §270.155 (if
your RAP is appealed, and the request
for review is granted under §270.155,
conditions of your RAP are stayed
according to § 124.16 of this chapter); or
(c) No commenters requested a change
in the draft RAP, in which case the RAP
becomes effective immediately when it
is issued.
§270.165 When may I begin physical
construction of new units permitted under
the RAP?
You must not begin physical
construction of new units permitted
under the RAP for treating, storing or
disposing of hazardous remediation
waste before receiving a finally effective
RAP.
How May my RAP be Modified,
Revoked and Reissued, or Terminated?
§270.170 After my RAP is issued, how
may it be modified, revoked and reissued,
or terminated?
In your RAP, the Director must
specify, either directly or by reference,
procedures for future modifications,
revocations and reissuance, or
terminations of your RAP. These
procedures must provide adequate
opportunities for public review and
comment on any modification,
revocation and reissuance, or
termination that would Significantly
change your management of your
remediation waste, or that otherwise
merits public review and comment. If
your RAP has been incorporated into a
traditional RCRA permit, as allowed
under § 270.85(c), then the RAP will be
modified according to the applicable
requirements in §§ 270.40 through
270.42, revoked and reissued according
to the applicable requirements in
§§270.41 and 270.43, or terminated
according to the applicable
requirements of § 270.43.
§ 270.175 For what reasons may the
Director choose to modify my final RAP?
(a) The Director may modify your
final RAP on his own initiative only if
one or more of the following reasons
listed in this section exist(s). If one or
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Federal Register/Vol. 63, No. 229/Monday, November 30, 1998/Rules and Regulations 65945
more of these reasons do not exist, then
the Director will not modify your final
RAP, except at your request. Reasons for
modification are:
(1) You made material and substantial
alterations or additions to the activity
that justify applying different
conditions;
(2) The Director finds new
information that was not available at the
time of RAP issuance and would have
justified applying different RAP
conditions at the time of issuance;
(3) The standards or regulations on
.which the RAP was based have changed
because of new or amended statutes,
standards or regulations, or by judicial ,
decision after the RAP was issued;
(4) If your RAP includes any
schedules of compliance, the Director
may find reasons to modify your
compliance schedule, such as an act of
God, strike, flood, or materials shortage
or other events over which you as the
, owner/operator have little or no control
and for which there is no reasonably
available remedy;
(5) You are not in compliance with
conditions of your RAP;
(6) You failed in the application or
during the RAP issuance process to
disclose fully all relevant facts, or you
misrepresented any relevant facts at the
time;
(7) The Director has determined that
the activity authorized by your RAP
endangers human health or the.
environment and can only be remedied
by modifying; or
(8) You have notified the Director (as
required in the RAP under
§270.30(1) (3)) of a proposed transfer of
a RAP.
(b) Notwithstanding any other
provision in this section, when the
Director reviews a RAP for a land
disposal facility under §270.195, he
may modify the permit as necessary to
assure that the facility continues to
comply with the currently applicable
requirements in parts 124, 260 through
266 and 270 of this chapter.
(c) The Director will not reevaluate •
the suitability of the facility location at
the time "of RAP modification unless
new information or standards indicate
that a threat to human health or the
environment exists that was unknown
when the RAP was issued.
§ 270.180 For what reasons may the
Director choose to revoke and reissue my •
final RAP?
(a) The Director may revoke and
reissue your final RAP on his own
initiative only if one or more reasons for
revocation and reissuance exist(s). If one
or more reasons do not exist, then the
Director will not modify or revoke and
reissue your final RAP, except at your
request. Reasons for modification or
revocation and reissuance are the same
as the reasons listed for RAP
modifications in §270.175 (a) (5) through
(8) if the Director determines that
revocation and reissuance of your RAP
is appropriate.
(b) The Director will not reevaluate .
the suitability of the facility location at
the time of RAP revocation and
reissuance, unless new information or
standards indicate that a threat to
human health or the environment exists
that was unknown when the RAP was
issued.
§ 270.185 For what reasons may the
Director choose to terminate my final RAP,
or deny my renewal application?
The Director may terminate your final
RAP on his own initiative, or deny your
renewal application for the same
reasons as those listed for RAP
modifications in §270.175 (a) (5) through
(7) if the Director determines that
termination of your RAP or denial of
your RAP renewal application is
appropriate.
§ 270.190 May the decision to approve or
deny a modification, revocation and
reissuance, or termination of my RAP be
administratively appealed?
(a) Any commenter on the
modification, revocation and reissuance
or termination, or any person who
participated in any hearing(s) on these
actions, may appeal the Director's
decision to approve a modification,
revocation and reissuance, or
termination of your RAP, according to
§ 270.155. Any person who did not file
comments or did not participate in any
public hearing(s) on the modification,
revocation and reissuance or
termination, may petition for
administrative review only of'the
changes from the draft to the final RAP
decision.
(b) Any commenter on the
modification, revocation and reissuance
or termination, or any person who
participated in any hearing (s) on these
actions, may informally appeal the
Director's decision 4o deny a request for
modification, revocation and reissuance,
or termination to EPA's Environmental
Appeals Board. Any person who did not
file comments, or did not participate in
any public hearing (s) on the
modification, revocation and reissuance
or termination may petition for
administrative review only of the
changes from the draft to the final RAP
decision. \ .
(c) The process for informal appeals of
RAPs is as follows:
(1) The person appealing the decision
must send a letter to the Environmental
Appeals Board. The letter must briefly
set forth the relevant facts.
(2) The Environmental Appeals Board
has 60 days after receiving the letter to
act on it.
(3) If the Environmental Appeals
Board does not take action on the letter
within 60 days after receiving it, the
appeal shall be considered denied.
(d) This informal appeal is a
prerequisite to seeking judicial review
of these EPA actions,
§ 270.195 When will my RAP expire?
RAPs must be issued for a fixed term,
not to exceed 10 years, although they
may be renewed upon approval by the
Director in fixed increments of no more
than ten years. In addition, the Director
must review any RAP, for hazardous
waste land disposal five years after the
date of issuance of reissuance and you
or the Director must follow the
requirements for modifying your RAP as
necessary to assure that you cpntinue to
comply with currently applicable
requirements in RCRA sections 3004
and 3005.
§ 270.200 How may I renew my RAP if it is
expiring?
If you wish to renew your expiring
RAP, you must follow the process for
application for and issuance of RAPs in
this subpart.
§270.205 What happens if I have applied
correctly for a RAP renewal but have not
received approval by the time my old RAP
expires?
If you have submitted a timely and
complete application for a RAP renewal,
but the Director, through no fault of
yours, has not issued a new RAP with
an effective date on or before the
expiration date of your previous RAP,
your previous RAP conditions continue
in force until the effective date of your
new RAP or RAP denial.
Operating Under Your RAP
/
§ 270.210 What records must I maintain
concerning my RAP?
You are required to keep records of:
(a) All data used to complete RAP
applications and any supplemental
information that you submit for a period
of at least 3 years from the date the
application is signed; and
(b) Any operating and/or other
records the Director requires you to
maintain as a condition of your RAP.
§270.215 How are time periods in the
requirements in this subpart and my RAP
computed?
(a) Any time period scheduled to
begin on the occurrence of an act or
event must begin on the day after the act
or event. (For example, if your RAP
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65946 Federal Register/Vol. 63, No. 229/Monday. November 30. 1998/Rules and Regulations
specifies that you must close a staging
pile within 180 days after the operating
term for that staging pile expires, and
the operating term expires on 'June 1,
then June 2 counts as day one of your
180 days, and you would have to
complete closure by November 28.)
(b) Any time period scheduled to
begin before the occurrence of an act or
event must be computed so that the
period ends on the day before the act or
event. (For example, if you are
transferring ownership or operational
control of your site, and wish to transfer
your RAP, the new owner or operator
must submit a revised RAP application
no later than 90 days before the
scheduled change. Therefore, if you
plan to change ownership on January 1,
the new owner/operator must submit
the revised RAP application no later
than October 3, so that the 90th day
would be December 31.)
(c) If the final day of any time period
falls on a weekend or legal holiday, the
time period must be extended to the
next working day. (For example, if you
wish to appeal the Director's decision to
modify your RAP, then you must
petition the Environmental Appeals
Board within 30 days after the Director
has issued the final RAP decision. If the
30th day falls on Sunday, then you may
submit your appeal by the Monday after.
If the 30th day falls on July 4th. then
you may submit your appeal by July
5th.)
(d) Whenever a parly or interested
person has the right to or is required to
act within a prescribed period after the
service of notice or other paper upon
him by mall, 3 days must be added to
the prescribed term. (For example, if
you wish to appeal the Director's
decision to modify your RAP, then you
must petition the Environmental
Appeals Board within 30 days after the
Director has issued the final RAP
decision. However, if the Director
notifies you of his decision by mail,
then you may have 33 days to petition
the Environmental Appeals Board.)
§ 270.220 How may I transfer my RAP to a
new owner or operator?
(a) If you wish to transfer your RAP
to a new owner or operator, you must
follow the requirements specified in
your RAP for RAP modification to
identify the new owner or operator, and
incorporate any other necessary
requirements. These modifications do
not constitute "significant"
modifications for purposes of §270.170.
The new owner/operator must submit a
revised RAP application no later than 90
days before the scheduled change along
with a written agreement containing a
specific date for transfer of RAP
responsibility between you and the new
permittees.
(b) When a transfer of ownership or
operational control occurs, you as the
old owner or operator must comply with
the applicable requirements in part 264,
subpart H (Financial Requirements), of
this chapter until the new owner or
operator has demonstrated that he is
complying with the requirements in that
subpart. The new owner or operator
must demonstrate compliance with part
264, subpart H, of this chapter within
six months of the date of the change in
ownership or operational control of the
facility or remediation waste
management site. When the new owner/
operator demonstrates compliance with
part 264, subpart H, of this chapter to
the Director, the Director will notify you
that you no longer need to comply with
part 264, subpart H, of this chapter as
of the date of demonstration.
§ 270.225 What must the State or EPA
Region report about noncompliance with
RAPs?
The State or EPA Region must report
noncompliance with RAPs according to
the provisions of § 270.5.
Obtaining a RAP for an Off-Site
Location
§ 270.230 May I perform remediation waste
management activities under a RAP at a
location removed from the area where the
remediation wastes originated?
(a) You may request a RAP for
remediation waste management
activities at a location removed from the
area where the remediation wastes
originated if you believe such a location
would be more protective than the
contaminated area or areas in close
proximity.
(b) If the Director determines that an
alternative location, removed from the
area where the remediation waste .
originated, is more protective than
managing remediation waste at the area
of contamination or areas in close
proximity, then the Director may
approve a RAP for this alternative
location.
(c) You must request the RAP, 'and the
Director will approve or deny the RAP,
according to the procedures and
requirements in this subpart.
• (d) A RAP for an alternative location
must also meet the following
requirements, which the Director must
include in the RAP for such locations:
(1) The RAP for the alternative
location must be issued to the person
responsible for the cleanup from which
the remediation wastes originated;
(2) The RAP is subject to the
expanded public participation
requirements in §§ 124.31, 124.32, and
124.33 of this chapter;
(3) The RAP is subject to the public
notice requirements in § 124. 10 (c) of
this chapter;
(4) The site permitted in the RAP may
not be located within 61 meters or 200
feet of a fault which has had
displacement in the Holocene time (you
must demonstrate compliance with this
standard through the requirements in
§270.14(b)(ll)) (See definitions of terms
in §264. 18 (a) of this chapter);
Note to paragraph (d)(4): Sites located in
political jurisdictions other than those listed
in Appendix VI of Part 264 of this chapter,
are assumed to be in compliance with this
requirement.
(e) These alternative locations are
remediation waste management sites,
and retain the following benefits of
remediation waste management sites:
(1) Exclusion from facility-wide
corrective action under §264.101 of this
chapter; and
(2) Application of §264.10) of this
chapter in lieu of part 264, subparts B,
C, and D, of this chapter.
PART 271— REQUIREMENTS FOR
AUTHORIZATION OF STATE
HAZARDOUS WASTE PROGRAMS
25. The authority citation for Part 271
continues to read as follows:
Authority: 42 U.S.C. 6905, 6912(a), and
6926.
26. Section 271.10) is amended by
adding the following entry to Table 1 in
chronological order by date of
publication in the Federal Register, to
read as follows:
§ 271 .1 Purpose and scope.
0)
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Federal Register/Vol. 63. No. 229/Monday, November 30, 19987 Rules and Regulations 65947
TABLE 1 .—REGULATIONS IMPLEMENTING THE HAZARDOUS AND SOLID WASTE AMENDMENTS OF 1984 -
Promulgation date
Title of regulation
Federal Register reference
Effective date
November 30, 1998
Hazardous Remediation Waste Manage-
ment Requirements5.
[Insert FR page numbers]
.June.1, 1999.
5These regulations implement HSWA only to the extent that they apply to the standards for staging piles and to § 264.10) and 264.101(d) of
this chapter. • . ' •
27. Section 271.21 is amended by
adding paragraph (h) and table 1 to the
end of the section to read as follows:
§ 271.21 Procedures for revision of State
programs!
* * •* * ' * ,
(h) Abbreviated authorization
revisions.-This abbreviated procedure
applies to State Program revisions for
the Federal rulemakings listed in Table ,
1 of this section. The abbreviated
procedures are as follows:
(1) An .application for a revision of a
State's program for the rulemakings
.listed in Table 1 of this section shall
consist of:
(i) A statement from the State that its
laws and regulations provide authority
that is equivalent to, and no less
stringent than, the designated minor
rules or parts of rules specified in Table
1 of this section, and which includes
references to the specific statutes,
administrative regulations and where
appropriate, judicial decisions. State
statutes and regulations cited in the
statement shall be lawfully adopted at
the time the statement is signed and
fully effective by the time the program
revisions are approved; and
(ii) Copies of all applicable State
statutes and regulations.
(2) Within 30 days of receipt by EPA
of a State's application for final;
«authorization to implement a rule
specified in Table 1 of this section, if
the Administrator determines that the
application is not complete or contains
errors, the Administrator shall notify the
. State. This notice will include a concise
statement of the deficiencies which
form the basis for this determination.
The State will address all deficiencies
and resubmit the application to EPA for
review.
(3) For purposes of this section an
application is considered incomplete
when:
(i) Copies of applicable statutes or
regulations were not included;
(ii) The statutes or regulations relied
on by the State to implement the .
program revisions are not lawfully
adopted at the time the statement is .
signed or fully effective by the time the
program revisions are approved;
(iii) In the statement, the citations to
the specific statutes, administrative
regulations and where appropriate,
judicial decisions are not included or
incomplete; or
(iv) The State is not authorized to
implement the prerequisite RCRA rules
as specified in paragraph (h) (5) of this
section.
(4) .Within 60 days after receipt of a
complete final application from a State
for final authorization to implement a
rule or rules specified in Table 1 of this
section, the Administrator shall publish
a notice of the decision to grant final
authorization in accordance with the
procedures for immediate final
publication in paragraph (b) (3) of this
section.
(5) To be eligible to use the procedure
in this paragraph (h), a State must be
authorized for the provisions which the
rule listed in Table 1 to this section
amends.
TABLE 1 TO §271.21
Title of regu-
lation
Land Dis-
posal Re-
strictions
Phase li-
the Univer-
sal Treat-
ment
Standards
in
§§268.40
and 268.48
of this
chapter
only.
Promulgation
date.
September
. 19, 1994.
Federal Reg-
ister ref-
erence
59 FR 47982
[FR Doc. 98-30269 Filed 11-27-98; 8:45 am]
BILLING CODE 6560-50-P
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Federal Register/Vol. 63. No. 230/Tuesday. December 1, 1998/Proposed Rules
66101
TABLE 2 TO SUBPART VVV.-tAppLiCABiLiTY OF 40 CFR PART 63 GENERAL PROVISIONS TO SUBPART VVV—Continued
General provisions
reference
Applicable to
subpart VVV
_ Comment
§63.8(e)
§63.8(f) .
§63.8(g)
§63.9'
§63.9(a)
§63.9(b)
§63.9(0)
§63.9(d)
§63.9(e)
§63.9(f)
§63.9(g)
§63.9(h)
§63.9(i)
§63.9G)
§63.10
§63.10(a)
§63.10(b)
§63.10(c)
§63.10(d)
§63.10(6)
§63.10(f) ..........
§63.11
§63.1i(a)&(b)
§63.12
§63.13
§63.14
§63.15 ,
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
No
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
New sources may be required to conduct a performance evaluation of CMS.
New sources may use an alternative monitoring method.
Requirements for reduction of monitoring data.
NOTIFICATION REQUIREMENTS.
Applicability of notification requirements. .
Initial .notification requirements.
Request for extension of compliance with subpart VW. ,
Notification that source is subject to special compliance requirements as specified in §63.6(b)(3) and
(4). " • • .
Notification of performance test.
POTW treatment plants do not typically have visible emissions.
Additional notification requirements for sources with continuous emission monitoring systems.
Notification of compliance status when the source becomes subject to subpart VVV.
Adjustments to time periods or postmark deadlines or submittal and review of required communications
Change of information already provided to the Administrator.
RECORDKEEPING AND REPORTING REQUIREMENTS.
Applicability of notification and reporting requirements. . • .
General recordkeeping requirements.
Additional recordkeeping requirements for sources with continuous monitoring systems.
General reporting requirements.
Additional reporting requirements for sources with continuous monitoring systems.
Waiver of recordkeeping and reporting requirements.
FLARES AS A CONTROL DEVICE.
If a>new source uses flares to comply with the requirements of subpart VVV/the requirements of §63.11
apply.
STATE AUTHORITY AND DESIGNATION.
ADDRESSES OF STATE AIR POLLUTION CONTROL AGENCIES AND EPA REGIONAL OFFICES
INCORPORATION BY REFERENCE.
AVAILABILITY OF INFORMATION AND CONFIDENTIALITY.
[FR Doc. 98-31399 Filed 11-30-98; 8:45 am]
BILLING CODE 6560-50-P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 260, 261, 262, 264, 268,
269 and 271
[FRL-6195-4]
RIN 2050-AE22
Requirements for Management of
Hazardous Contaminated Media
(HWIR-media)
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Partial withdrawal of proposed
rule.
SUMMARY: For the reasons set out in the
HWIR-media final rule, officially titled
"Hazardous Remediation Waste
Management Requirements (HWIR-
media)" published in the Federal . '.
Register of November 30, 1998, and the
Phase IV LDR final rule, official titled
"Land Disposal Restrictions Phase IV:
Final Rule Promulgating Treatment
Standards for Metal Wastes and Mineral
Processing Wastes; Mineral Processing
Secondary Materials and Bevill
Exclusion Issues; Treatment Standards
for Hazardous Soils, and Exclusion of.
Recycled Wood Preserving Wastewaters;
Final Rule" (63 FR 28556 (May 26,
1998)) this document withdraws all
portions of the HWIR-media proposed
rule (61 FR 18780 (April 29, 1996))
except those that were finalized in the
above two final rules, or on which
action was expressly deferred (i.e., the
Treatability Sample Exclusion Rule, that
EPA requested comments on expanding
in the HWIR-media proposal at 61 FR
18817), in those documents.
ADDRESSES: Supporting materials are
available for viewing in the RCRA
Information Center (RIC), located at ,
Crystal Gateway I, First Floor, 1235
Jefferson Davis Highway, Arlington, VA.
The Docket Identification Number is F-
98-MHWF-FFFFF. The RIC is open
from 9 a.m. to 4 p.m., Monday through
Friday, excluding Federal holidays. To
review docket materials, it is
recommended that the public 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 cost $0.157
page. The index and some supporting
materials are available electronically.
See the SUPPLEMENTARY INFORMATION
section for information on accessing
them.
FOR FURTHER INFORMATION CONTACT: For
general information, contact the RCRA
Hotline at (800) 424-9346 or TDD (800)
553-7672 (hearing impaired). In the
Washington, DC,- metropolitan area, call
(703) 412-9810 or TDD (703) 412-3323.
For more detailed information on
specific aspects of this rulemaking,
contact Michael Fitzpatrick, Office of
Solid Waste 5303W, U.S. Environmental
Protection Agency, 401 M Street, SW,
Washington, DC 20460, (703) 308-8411,
fitzpatrick.mike@epamail.epa.gov.
SUPPLEMENTARY INFORMATION: The index
and supporting materials are available
on the Internet. Follow these
instructions to access the information
electronically:
WWW:http://www.epa.gov/epaoswer/
hazwaste/id/hwirmdia. htm
As discussed in the HWIR-media final
rule, officially titled "Hazardous
Remediation Waste Management
Requirements (HWIR-media)" published
in the Federal Register of November 30,
1998, EPA decided to promulgate only
selected elements of the HWIR-media
proposal, rather than go forward with a
more comprehensive approach as
proposed.
Although EPA conducted a lengthy
outreach process before developing the
HWIR-media proposal and made every
effort to balance the concerns and
interests of various stakeholder groups,
public comment on the proposal made
it clear that stakeholders fundamentally
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66102
Federal Register/Vol. 63, No. 230/Tuesday, December 1, 1998/Proposed Rules
disagree on many remediation waste
management Issues.
EPA agreed with commenters'
concerns that the Bright Line approach
would be too difficult to implement,
and that a Bright Line that would satisfy
commenters who wanted the Bright
Line levels to consist of very
conservative levels would not
sufficiently reform the system to remove
the existing barriers to efficient,
protective remediation waste
management. EPA has concluded that
pursuing broader regulatory reform
would be a tlme-and resource-intensive
process that would most likely result in
a rule that would provoke additional
years of litigation and associated
uncertainty. This uncertainty would be
detrimental to the program and have a
negative effect on ongoing and future
cleanups. Based on these conclusions,
the Agency has decided not to finalize
either the Bright Line or the Unitary
Approach, and recognizes that a purely
regulatory response will not solve all of
the remediation waste management
issues that HWIR-media was designed to
solve.
While EPA believes the elements
finalized in the final HWIR-media rule
published in the Federal Register of
November 30, 1998 along with the
retention of the CAMU rule, will
Improve remediation waste management
and expedite cleanups, the Agency is
also convinced that additional reform is
needed to expedite the cleanup
program, especially to provide greater
flexibility for non-media remediation
wastes like remedial sludges, address
certain statutory permitting provisions,
and more appropriate treatment
requirements for remediation wastes (for
example, treatment that focuses on
"principal threats" rather than all
underlying hazardous constituents).
Therefore, the Agency continues to
support appropriate, targeted legislation
to address application of RCRA Subtitle
C land disposal restrictions, minimum
technological and permitting
requirements to remediation waste and
will continue to participate in
discussions on potential legislation. If
legislation is not forthcoming, the
Agency may reexamine its approach to
remediation waste regulation and may
take additional administrative action.
The elements finalized in the final
HWIR-media rule published in the
Federal Register of November 30, 1998
are:
1. streamlined permitting for treating,
storing and disposing of remediation
wastes generated at cleanup sites and
the elimination of the requirement for
facility-wide corrective action at
remediation-only facilities;
2. a variation on the proposed
remediation piles, called staging piles,
modified in response to public
comments;
3. a RCRA exclusion for dredged
materials managed under Clean Water
Act (CWA) or Marine Protection -
Research and Sanctuaries Act (MPRSA)
permits; and
4. streamlined procedures for State
authorization.
EPA also finalized, in a separate
document (63 FR 28604 (May 26, 1998)),
the LDR treatment standards specific to
hazardous contaminated soil that were
proposed in the HWIR-media proposal.
EPA is deferring action on the
Treatability Sample Exclusion Rule, that
EPA requested comments on expanding
in the HWIR-media proposal at 61 FR
18817. '
EPA is withdrawing all other portions of
the proposal, such as:
1. the proposal under the "Bright
Line" option to distinguish between
lower- and higher-risk contaminated
media and give regulatory agencies the
flexibility to exempt lower-risk
contaminated media from RCRA
requirements, and all other
comprehensive options discussed in the
preamble to the proposed rule (such as
the "Unitary Approach");
2. the "Category 2" proposal for
streamlined authorization, and;
3. the portion of the proposal that
would have withdrawn the Corrective
Action Management Unit or "CAMU"
rule.
Existing areas of flexibility for
managing remediation waste, such as
the contained-in and AOC policies, and
site-specific land disposal restrictions
treatability variances, continue to be
available.
Authority: 42 U.S.C. 6912(a), 6921, 6924,
6926, and 6927.
Dated: November 23, 1998.
Timothy Fields, Jr.,
Acting Assistant Administrator, Office of
Solid Waste and Emergency Response.
[FR Doc. 98-32000 Filed 11-30-98; 8:45 am]
BILLING CODE 6560-50-P
GENERAL SERVICES
ADMINISTRATION
41 CFR Part 101-35
BIN 3090-AG79
User Fees; Network Registration
Services
AGENCY: Office of Governmentwide
Policy, GSA.
ACTION: Proposed rule.
SUMMARY: This proposed rule
establishes fees for registration services
provided by GSA to Government
agencies and commercial organizations
in order to provide and maintain unique
global names and network addresses for
X.400 Private Management Domains
(PMRD) and the X.500 Organizational
Units (OU), Administrative Authority
Identifiers (AAI) and Internet .GOV
Domain names.
DATES: Comments must be submitted
February 1, 1999 to be considered in the
formulation of the final rule.
ADDRESSES: Written comments should
be sent to Mr. Jack L. Fihley, Director,
Center for Electronic Messaging
Technologies (TOT), General Services
Administration, 1800 F Street, NW,
Suite G-222, Washington DC 20405. E-
, mail comments may be sent to
jack.finley@fed.gov.
FOR FURTHER INFORMATION CONTACT: Mr.
Jack L. Finley, 202-501-3932.
SUPPLEMENTARY INFORMATION :
A. Background
The Open Systems Interconnection
(OSI) Reference Model uses naming
hierarchies in order to provide global
unambiguous identities. The
International Organization for
Standardization (ISO) defines two major
naming hierarchies or "trees." The ISO
3166 Codes for the Representation of
Names of Countries assigns the United
States with an alpha-2 code of US and
a numeric code of 840. The American
National Standards Institute (ANSI) has
assigned the Federal Government with
the alpha code of "GOV" and the
numeric code of 101.
Another ISO naming structure is ISO
6523, Structure for the Identification of
Organizations. The British Standards
Institute (under ISO authority) has
issued an International Code Designator
(ICD) of 0005 to the National Institute of
Standards and Technology (NIST). The '
NIST has delegated the responsibility of
managing and administering the ICD of
0005 to the GSA. The NIST has also
delegated to GSA the authority for the
namespace "U.S. Government" as an
organization domain subordinate to
country level of "US" for the purposes
of Governmentwide Directories (X.500/
LDAP).
X.400 PRMD
The GOSIP standard is based on the
Open Systems Interconnection (OSI)
profile, which incorporate several series
of international protocol standards. The
X.400 series define a protocol for
electronic Messaging Handling Systems
(MHS). Top level Management Domains
are assigned and delegated into
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