Friday
July 27, 1990
Part II
Environmental
Protection Agency
40 CFR Parts 264, 265, 270, and 271
Corrective Action for Solid Waste
Management Units at Hazardous Waste
Management Facilities; Proposed Rule
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Federal Register / VoL 55, No. 145 / Friday, July 27, 1990 / Proposed Rules
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part* 264,265,270, and 271
[FIL-3403-8; EPA/OSW-FR-90-012]
RIN 2050-AB42
Corrective Action for Solid Waste
Management Unite (SWMUs) at
Hazardous Waste Management
Facilities
AGENCY: Environmental Protection
Agency.
ACTION: Proposed rule.
SUMMARY: The Environmental Protection
Agency is today proposing requirements
under the Resource Conservation and
Recovery Act (RCRA) for corrective
action for solid waste management units
(SWMUs} at facilities seeking a permit
under section 3005(c) of RCRA. This
proposal will establish procedures and
technical requirements for implementing
corrective action under section 3004(u)
of RCRA,
Today's proposal would create a new
subpart S in the RCRA part 264 ,
regulations to define requirements for
conducting remedial investigations,
evaluating potential remedies, and
selecting and implementing remedies at
RCRA facilities. It also proposes to
amend the RCRA part 270 permit
requirements, make conforming changes
to part 264 and 265 facility closure
information requirements, and establish
standards for States to become
authorized to administer corrective
action requirements.
DATES: Written comments on this
proposed rule should be submitted on or
before September 25,1990.
Public hearings on this proposed
rulemaking are scheduled as follows:
• October 9,1990 in San Francisco,
CA.
• October 12,1990 in Washington,
DC
ADDRESSES: The public hearings will be
held at the following locations:
• October 9,1990 at the Hyatt
Regency San Francisco in Embarcadero
Center, 5 Embarcadero Center, San
Francisco, CA 94111 (415-788-1234); and
• October 12,1990 at the Omni-
Shoreham Hotel. 2500 Calvert Street
NW., Washington. DC 20008 (202-234-
0700).
Those individuals who wish to
present oral testimony at either of the
public hearings must request an
opportunity to be heard. Requests must
be made in writing to Thea McManus,
Hearings Clerk, Office of Program
Management (OS-305), U.S.
Environmental Protection Agency, 401M
Street SW., Washington, DC 20460. The
request should reference the RCRA
Corrective Action Proposed Rule,
Regulatory Docket No. F-90-CASP-
tlft't'lf. Unless otherwise requested hi
writing, individuals will be scheduled
10-minute time segments to present oral
testimony. Tune segments will be
allotted based on the order in which the
written requests are received. Written
requests must be received by the end of
the written comment period.
Written comments on today's
proposal should be addressed to the
docket clerk at the following address:
U.S. Environmental Protection Agency,
RCRA Docket (OS-305), 401M Street
SW., Washington, DC 20460. One
original and two copies should be sent
and identified by regulatory docket
reference number F-9O-CASP-JTFFF.
The docket is open from 9 a.m. to 4 p.m.,
Monday through Friday, excluding
Federal holidays. Docket materials may
be reviewed by appointment by-calling
(202) 475-9327. Copies of docket
materials may be made at no cost, with
a maximum of 100 pages of material
from any one regulatory docket
Additional copies are $0.15 per page.
FOR FURTHER INFORMATION CONTACT:
General questions about the regulatory
requirements under RCRA should be
directed to the RCRA/Superfund
Hotline, Office of Solid Waste. U.S.
Environmental Protection Agency,
Washington, DC 20460, (800) 424-9346
(toll-free) or (202) 382-3000 (local). For
the hearing unpaired, the number is
(800) 553-7672 (toll-free), or (202) 475-
9652 (local).
Specific questions about the issues
discussed in this proposed rule should
be directed to David M. Pagan, Office of
Solid Waste (OS-341), U.S.
Environmental Protection Agency, 401M
Street SW., Washington, DC 20460, (202)
382-4740.
SUPPLEMENTARY INFORMATION:
Outline
I. Authority
n. Background
HL Purpose of Today's Rule
IV. EPA'i Implementation of the Corrective
Action Program to Date
A. Pre-HSWA RCRA Corrective Action
B. July IS. 1985. Codification Rule (50 FR
28702}
C. December 1.1987. Codification Rule (52
FR 45788}
D. Proposed Rule, Financial Assurance for
Corrective Action (51 FR 37854)
E. National RCRA Corrective Action
Strategy (51 FR 37608) and the RCRA
Corrective Action Outyear Strategy (Fall,
1989)
F. Implementation of the HSWA Corrective
Action Program
V. Approach to Corrective Action in Today's
Rule
A. Priorities and Management Philosophy
for RCRA Corrective Action
B. Cleanup Goals for Corrective Action
C. Major Elements of Today's Proposal
VL Section-by-Section Analysis
A. Purpose/Applicability (5 264.500)
1. Conforming Changes to Previous
Codification of $ 3004(u) and General
Discussion
2. Exceptions to Applicability
a. Permits for Land Treatment
Demonstrations
b. Emergency Permits
c. Pennits-by-Rule for Ocean Disposal
Barges or Vessels
d. Research, Development and
Demonstration Permits
3. Voluntary Corrective Action
B. Definitions (S 264.501)
1. Facility
2. Release
3. Solid Waste Management Unit (SWMU)
4. Hazardous Waste and Hazardous
Constituents
5. Corrective Action Management Units
C. Remedial Investigations (55 264.510-
264.513)
1. General
2. Scope of Remedial Investigations
(S 264.511)
3. Plans for Remedial Investigations
($ 264.512)
4. Reports of Remedial Investigations
(S 264.513)
D. Determination of No Further Action
(S 264.514)
E. Corrective Measure Study (55 264.520-
264.524} . ;
1. Purpose of Corrective Measure Study
(S 264.520)
2. Trigger for Corrective Measure Study
(S 264.521}
a. Use of Action Levels
b. Criteria for Determining Action Levels
c. Action Levels for Ground Water
d. Action Levels for Air
e. Action Levels for Surface Water
f. Action Levels for Soil
g. Action Levels Where Health- and
Environmental-Based Levels Are Not
Available
h. Authority to Require a Corrective
Measure Study Where Action Levels
Have Not Been Exceeded
3. Scope of Corrective Measure Study
(! 264.522) :
4. Plans for Corrective Measure Study
(S 264.523)
5. Reports of Corrective Measure Study
(5 264.524)
F. Selection of Remedy (S 264.525)
1. General (S 264.525)
2. General Standards for Remedies
(8 264.525(a))
3. Remedy Selection Decision Factors
(S 264.525(b))
4. Schedule for Remedy (§ 264.525(c])
5. Media Cleanup Standards (5 264.525(d))
a. General
b. Protectiveness
c. Cleanup Levels and Other Sources of
Contamination
6. Determination that Remediation of
Release to a Media Cleanup Standard is
Not Required
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a. Areas of Broad Contamination
b. Ground Water
c. Technical Impracticability
7. Demonstration of Compliance With
Media Cleanup Standards (5 264.525{e))
a. Points of Compliance
b. Methods _ ,.
c. Timing of Demonstration of Compliance
8. Conditional Remedies (5 284.525(f))
G Permit Modification for Selection of
Remedy (5 284.526) ...-.,„-,
H. Implementation of Remedy (55 264.527-
264.531)
1. Remedy Design (J 264.527)
2. Progress Reports (5 264.528)
3. Review of Remedy Implementation
4. Completion of Remedies (§ 264.530)
5 Determination of Technical
Impracticability (5 264.531)
L Interim Measures (5 264540)
J. Management of Wastes (55 264.550-
294.552)
1. Overview
2. General Performance Standard
(§284.550}
3. Management of Hazardous Wastes
(5 264.551(a))
a. Temporary Units (§ 264.551(b))
b. Corrective Action Management Units
(5 284.551(c); 9 2M.501)
4 Management of Non-Hazardous Solid
Wastes (5 264.552)
K. Required Notices (5 264.560)
1. Notification of Ground-Water
Contamination
2. Notification of Air Contamination
3. Notification of Residual Contamination
L. Permit Requirements (55 270.1(c)-
270.60(c)(3)) •
1. Requirement to Maintain a Permit
2. Schedules of Compliance for Corrective
Action (5 270.34)
3. Conditions Applicable to All Permits
{5 270.30[1)(12)) ffmnnat'
4. Information Repository (5 270.36)
5 Major Permit Modifications
(5 270.41{a)(5Mix)) .
6 Conforming Changes to Requirement* for
' Permits-by-Rule (1270.60(b)(3);
5 270.60(c)(3)fviii))
7 Alternative Dispute Resolution
M. Conforming Changes to Closure
Regulations (55 264.113.265.112 and
265.113)
1. General
2. Clarifications
a. Extension of Closure Deadlines
b. Modification of Closure Plans
3 Closure Plan Information Requirements
N. Conforming Chang* to i 264.1(g)
VH. Relationship to Other Programs
A. Superfund
2. Listing RCRA Sites on the National
Priorities List (NPL)
3. Use of CERCLA to Supplement RCRA
Authorities
R POT Spill Policy under TSCA
C. Other Element, of RCRA Subtitle C
1. Rdatinnship to Subpart F Ground-Water
Corrective Action
2. Land Disposal Restrictions Program
3. Relationship to section 3004(n) Standards
4. Administrative Orders under RCRA
section 3006(h)
5. Financial Assurance for Corrective
Action
a. Timing
b. Cost Estimation
c. Allowable Mechanisms
D. RCRA Subtitle D: Solid Waste Disposal
E. RCRA Subtitle I: Underground Storage
Tanks
F. Federal Facilities
VltL Public Involvement
IX. State Authorization
A. Applicability of Rules in Authorized
States
B. Effect on State Authorizations
1. Schedule and Requirements for
Authorization .
2. States with Existing Corrective Action
Programs
C. Corrective Action and Mixed Waste
Authorization
X. Regulatory Impact Analysis
A. Executive Order No. 12291
1. Background
2. Scope and Analytical Approacn
3. Potential Scope of the Corrective Action
Program
4. Qualitative Analysis
5, Description of Options Analyzed
Quantitatively
6. Results of Quantitative Analysis
7. Economic Impacts
8. Federal Facilities
B. Regulatory Flexibility Act
C. Paperwork Reduction Act
List of Subjects
XL Supplementary Documents
1. Authority
These regulation* are issued under the
authority of sections 1003,1006,2002(a),
3004(u), 3004(v), 3005(c), and 3007 of the
Solid Waste Disposal Act, as amended
by the Resource Conservation and
Recovery Act as amended by the
Hazardous and Solid Waste
Amendments of 1984,42 U.S.C. 6924 (a),
(u), and (v), and 6925(c).
II. Background
Prior to passage of the Hazardous and
Solid Waste Amendments of 1984
(HSWA), statutory authorities and
promulgated regulations for compelling
corrective action at facilities regulated
under subtitle C of the Resource
Conservation and Recovery Act (RCRA)
were limited to the following: (1) Section
7003 of RCRA, which provides EPA
enforcement authority to take action
where solid or hazardous waste may
present an imminent and substantial
endangerment to human health or the
environment; (2) section 3013 of RCRA,
which provides authority for requiring
investigations where the presence of
hazardous waste or releases of
hazardous waste may present a
substantial hazard to human health or
the environment; and (3) 40 CFR part
264, subpartF, which provides a
regulatory program to address releases
of hazardous wastes and hazardous
constituents to ground water from
"regulated units." ("Regulated units" are
defined in 40 CFR 264.90 as surface
impoundments, waste piles, land
treatment units, and landfills which
received hazardous waste after July 26,
1982.) Section 106 of the Comprehensive
Environmental Response,
Compensation, and Liability Act of 1980
(CERCLA), provides a broad authority,
similar to RCRA section 7003, to take
abatement actions to remediate any
actual or potential imminent and
substantial endangerment caused by
actual or threatened releases of
hazardous substances.
The 1984 HSWA amendments
substantially expanded corrective
action authorities for both permitted
RCRA facilities and facilities operating
under interim status. Section 3004(u) of
HSWA requires that any permit issued
under section 3005(c) of RCRA to a
treatment, storage, or disposal facility
after November 8,1984, address
corrective action for releases of
hazardous wastes or hazardous
constituents from any solid waste
management unit (SWMU) at the
facility. These permits will contain
schedules of compliance where
corrective action activities cannot be
completed prior to permit issuance. In
addition, facility owners or operators
must demonstrate assurances of
financial responsibility for completing
the required corrective actions. Section
3004(v) authorizes EPA to require
corrective action beyond the facility
boundary where appropriate. Section
3008(h) provides EPA with authority to
issue administrative orders or bring
court action to require corrective action
or other measures, as appropriate, when
there is or has been a release of
hazardous waste or hazardous
constituents from a RCRA facility
operating under interim status.
III. Purpose of Today's Rule
The purpose of today's rule is to
establish a comprehensive regulatory
framework for implementing the
Agency's corrective action program
under RCRA. This rule defines both the
procedural and substantive
requirements associated with sections
3004(u) and 3004(v). While the new
corrective action authorities became
effective on their date of enactment
(November 8,1984). today's proposed
rule is intended to establish a
comprehensive regulatory framework
for these statutory authorities. The
proposal should serve to promote
national consistency in implementing
this important component of the RCRA
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program, and will establish standards to
which States seeking authorization for
section 3004(u) corrective action must
demonstrate equivalence. In addition,
this rulemaking provides a procedural
vehicle for the regulated community and
other interested parties to comment on
the Agency's regulatory intentions for
this program.
The following sections of this
preamble provide a detailed explanation
of the background and specifics of
today's proposed rulemaking. Section IV
discusses implementation of the
corrective action program to date.
Section V provides an overview of the
regulatory program proposed today and
the management philosophy which led
to this proposal. Section VI provides a
section-by-section analysis of the
proposed rule. Section Vn examines the
relationship of today's rule to other
environmental programs. Section VDI
discusses public involvement in the
corrective action program, while section
IX provides information on State
tJiorization for the new progra
au
ram.
IV. EPA's Implementation of the
Corrective Action Program To Date
Since 1982, the RCRA program has
been implementing the subpart F
corrective action requirements for
releases to ground water from regulated
units through permits. Since November
1934, the HSWA corrective action
requirements, which were effective
immediately, have been implemented on
a case-by-case basis in individual
facility permits or section 3008(h)
corrective action orders. To implement
the HSWA corrective action program to
date, EPA has issued several regulations
and guidance documents. This section
describes those rules and guidance
documents, the current status of
corrective action activities in the
permitting and enforcement programs,
and the availability of technical
guidance documents pertaining to
corrective action.
A. Pre-HSWA RCRA Corrective Action
EPA's base permit regulations,
promulgated under prc-HSWA
authority, establish a program for
monitoring and remediating releases to
ground water from regulated hazardous
waste management units (40 CFR part
264, subpart F. discussed below), and
reporting of releases from permitted
units (under 40 CFR part 270). These
regulations were established in 1982
under the general statutory authority in
section 3004(a) of RCRA.
Under current subpart F regulations,
the corrective action requirement
(i 264.100) is the third step of a three-
phase program for detecting.
characterizing, and responding to
releases to the uppermost aquifer from
regulated units. The first phase, called
detection monitoring, requires facility
owners or operators to monitor ground
water at the downgradient edge of the
waste management boundary for
indicator parameters or constituents
that indicate the likelihood of a release.
If a release is detected, the owner/
operator tests for all appendix IX (of 40
CFR part 264) constituents, and a
ground-water protection standard
(GWPS) is established for every
appendix IX constituent detected above
background levels. Under the second, or
compliance monitoring phase of the
program (which is triggered when the
release is confirmed), the owner/
operator is required to perform
additional investigations to characterize
the nature and extent of contamination.
In the third and final stage—corrective
action—the owner/operator is required
to remove or treat in place all
contaminants present in concentrations
above the ground-water protection
standard beyond the compliance point.
The ground-water protection
standards established under subpart F
are set at either the background levels,
maximum contaminant levels (MCLs)
for 14 specific constituents, or alternate
concentration limits (ACLs). MCLs are
contaminant concentration levels which
represent the maximum permissible
level in drinking water supplies as
promulgated by the EPA under the Safe
Drinking Water Act ACLs are
contaminant concentration levels
determined by the Agency to be
protective of human health and the
environment based on site-specific
circumstances. Proposed revisions to the
existing subpart F regulations- to create a
program consistent with today's
proposal for subpart S are expected to
be published shortly in the Federal
Register. A discussion of the
relationship between this proposal and
the proposed amendments to subpart F
is included in section VH.C of this
preamble.
B. July 15,1985, Codification Rule (50 FR
28702)
On July 15,1985, EPA promulgated
regulations that codified the statutory
language of the new section 3004(u)
corrective action authority of HSWA
(see 50 FR 28702,40 CFR 264.90(a)(2} and
284.101). In particular, the July 1985
Codification Rule amended 40 CFR part
264, subpart F by adding new § 264101,
which essentially reiterated the
statutory language of section 3004(u).
In addition, the preamble to the July
1985 Codification Rule denned the
Agency's jurisdiction under the new
authorities by interpreting a number of
key terms in the statutory language.
Specifically, the preamble discussed
EPA's interpretations of the terms
"facility," "solid waste management
unit," and "release," in relation to the •
new corrective action authorities. (EPA
is proposing to codify these definitions,
with some modifications, in today's
rule.) The preamble also provided the
Agency's interpretation of the authority
conferred on it through section 3008(h),
the interim status corrective action
authority. A detailed discussion of the
Agency's interpretation of the section
3008(h) authority was provided in a
December 16,1985, guidance
memorandum entitled "Interpretation of
section 3008(h) of the Solid Waste
Disposal Act." A copy of that
memorandum may be found in the
docket established for this rulemaking.
C. December 1,1987, Codification Rule
(52'FR 45788)
On December 1,1987, EPA issued a
companion to the July 1985 Codification
Rule that further modified the part 264
and part 270 hazardous waste
management regulations to implement
the new statutory provisions of HSWA
(see 52 FR 45788). This Second
Codification Rule addressed issues
arising from the new amendments rather
than codifying requirements imposed
directly by the statute. Three elements
of that rule relate to the new HSWA
corrective action requirements: Permit
application requirements for solid waste
management units (SWMUs), corrective
action beyond the facility boundary, and
corrective action for injection wells with
permits-by-rule.
The Second Codification Rule
amended the existing part B permit
application requirements of S 270.14 by
adding a new provision (§ 270.14(d]) that
requires certain information pertaining
to solid waste management units at the
facility applying for a RCRA permit. The
new provision requires descriptive
information on all solid waste
management units at the facility, and all
available information pertaining to any
past or current releases from these units.
The provision also requires facility
owner/operators to perform sampling
and analysis as required by EPA to
assist in determining whether or not
releases have occurred from solid waste
management units at the facility.
The Second Codification Rule also
amended 55 264.100 and 264.101 of the
RCRA part 264 regulations to codify
section 3004(v) of RCRA. This statutory
provision requires facility owner/
operators to address corrective action
for releases that have migrated beyond
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30601
the facility boundary, unless the owner
or operator demonstrates to EPA that,
despite his or her best efforts, 8/he was
unable to obtain the necessary
permission to undertake the required
actions (see 5§ 264.100(e) and
264.101(c)). This new provision applies
to releases from all solid waste
management units, including releases to
the uppermost aquifer from regulated
units. Moreover, section 3004(v) makes it
clear that the provision applies to
certain interim status units (section
3004(v)(2)), as well as units at permitted
facilities (section 3004(v)(l)). Where
access to off-site property is denied,
EPA may require that certain measures
be taken on site to mitigate the off-site
contamination (e.g., source control
measures). As will be discussed later,
EPA is today proposing changes to these
regulatory provisions.
The Second Codification Rule also
included new provisions governing the
implementation of corrective action
requirements through RCRA permits-by-
rule for Class I hazardous waste
injection wells (see SS 270.60{b)(3),
144.1(h). 144.31fe)). Under 40 CFR 270.60,
the corrective action requirements of
§ 264.101 must be addressed in order to
obtain a permit-by-rule for a hazardous
waste injection well Since today's
proposal will replace ! 264.101, these
facilities will be required to comply with
today's proposed subpart S regulations
in the same manner as other facilities
which receive permits under section
3005(c)ofRCRA.
The Second Codification Rule also
clarified that a Class I hazardous waste
injection well with a UIC permit issued
after November 8,1984, does not have a
RCRA permit-by-rule until the corrective
action requirements are imposed at the
entire facility. Further, the Second
Codification Rule clarified that a Class I
injection well that received a UIC permit
retains interim status under RCRA until
corrective action requirements (if
necessary) are imposed through a RCRA
rider permit
D. Proposed Rule, Financial Assurance
for Corrective Action (51FR 37854)
On October 24,1986, EPA proposed
new amendments to the financial
responsibility standards applicable to
owners and operators of hazardous
waste treatment, storage, and disposal
facilities (hereinafter referred to as
FACA—see 51 FR 37854). This proposed
rule provided a regulatory framework
for implementing the statutory
requirement of section 3004(u) (codified
in SS 264.101 and264.90(a)(2)) for
demonstrating financial assurance for
the costs of corrective actions.
The 1986 FACA proposal set out a
detailed set of procedures implementing
the section 3004(u) financial assurance
requirements. These procedures
addressed: (1) The timing of financial
assurance demonstrations; (2) cost-
estimating procedures, including the
periodic adjustment of cost estimates,
for determining the amounts of required
financial assurance; and (3) permissible
financial assurance mechanisms,
including their required wording and
allowable combinations of mechanisms.
EPA is today proposing specific
language which will clarify when
financial assurance for corrective action
must be demonstrated and when
adjustments to the coverage levels will
be required. With respect to all other
procedural aspects associated with the
FACA requirements {e.g., the set of
acceptable mechanisms or use of a
mechanism for multiple financial
responsibilities), EPA intends to use the
FACA proposal as general guidelines for
examining, on a case-by-case basis, the
adequacy of the financial assurances.
Financial assurance for corrective
action is discussed more fully in section
VII.C.5 of this preamble.
E. National RCRA Corrective Action
Strategy (51 FR 37606} and the RCRA
Corrective Action Outyear Strategy
(Fall, 1989)
In October 1986, EPA issued a draft
"National RCRA Corrective Action
Strategy" to inform the Regions, States,
regulated community, and the public of
the Agency's overall plans for
implementing the HSWA corrective
action authorities. The Strategy
provided an overview of the HSWA
corrective action authorities and the
universe of RCRA faculties subject to
these authorities, and described the
basic process for identifying,
investigating, and remediating releases
at RCRA facilities. It also discussed the
Agency's plans for establishing
priorities for corrective action* the
relationship between permitting and
enforcement authorities, factors
influencing the management of
corrective action, and the relationship
between EPA and the States in
implementing this program.
The Agency received a number of
comments on the draft strategy, many of
which are reflected in the content of
today's proposed rule. Today's proposal,
which addresses in detail most of the
elements of the draft strategy.
effectively finalizes the strategy.
Although some portions of the draft
strategy, such as the Agency's plans for
prioritizing RCRA facilities for
corrective action, are not fully
addressed in today's proposal, they are
the subjects of recommendations
contained in the RCRA Corrective
Action Outyear Strategy (CAOS),
published in the Fall of 1989. These
recommendations outline a management
approach for the corrective action
program that is realistic and workable in
light of the many challenges that EPA
and the States will face in implementing
this program over the next several
years. While some of the CAOS
recommendations can be directly
implemented, others will be addressed
in detail in forthcoming guidance.
F. Implementation of the HSWA
Corrective Action Program
To implement the corrective action
program to date, EPA has developed a
general process to assure that actions
taken are commensurate with the
problem presented. In this process, each
stage serves as a screen, sending
forward to the next step those facilities
or units at a facility which the Agency
has found to be a potential problem, and
eliminating from further consideration
units and facilities where the Agency
has discovered no current
environmental problem. The Agency
intends to provide sufficient flexibility
in this process to facilitate timely
abatement of environmental problems.
RCRA faculties are generally brought
into the corrective action process at the
time the Agency is considering a permit
application for the facility, or when a
release justifying action under section
3008(h) is identified. The process begins
with an Agency-conducted RCRA
Facility Assessment (RFA), which is
analogous to the Superfund Preliminary
Assessment/Site Investigation (PA/SI).
The RFA includes: (1) A desk top review
of available information on the site; (2) a
visual site inspection to confirm
available information on solid waste
management units at the site and to note
any visual evidence of releases; and (3)
in some cases, a sampling visit to
confirm or disprove suspected releases.
If, after completion of the RFA it
appears likely that a release exists, the
Agency typically develops a schedule of
compliance, to be included hi a facility's
RCRA permit for further studies and
actions the permittee must undertake to
fulfill the responsibilities imposed by
section 3004(u). Alternatively, the
Agency might issue an order pursuant to
section 3008(h) to compel corrective
action!
The second stage of the corrective
action process is the RCRA Facility
Investigation (RFI). The RFI is
undertaken when a potentially
significant release has been identified in
the RFA; its purpose is to characterize
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the nature anf^ extent of contamination
at the facility, and it is analogous to the
Remedial Investigation (RI) process of
the Superfund program. Typically, the
RFI will be focused on specific concerns
identified in the RFA and will be staged
to avoid unnecessary analysis. When
the Agency determines, on the basis of
data generated during the RFI or other
information, that cleanup is likely to be
necessary, the owner/operator will be
required to conduct a Corrective
Measure Study [CMS] to identify a
solution for the problem at the site.
Once the Agency selects the remedy for
the facility, the Agency will either issue
a followup section 3008(h) order (in the
case of an interim status facility), or
modify the permit, and the remedy will
be implemented by the owner/operator
with Agency oversight
In certain situations, the Agency may
require an "interim measure" at the
facility without waiting for the final
results of the RFI or the CMS. Interim
measures are actions required to
address situations which pose a threat
to human health or the environment or
to prevent further environmental
degradation or contaminant migration
pending final decisions on required
remedial activities. Superfund generally
uses the removal authority provided
under section 104 of CERCLA to
accomplish this same objective where
expedited response and/or emergency
actions are needed.
Currently, implementation of the
corrective action program is being
undertaken by EPA, with assistance
from State agencies. Six States have
been authorized to date to implement
the HSWA corrective action program.
The general corrective action process
described above is carried forward in
today's proposal However, today's
proposal win describe the requirements
in greater detail, and will provide the
public an'opportunity to comment on
this approach.
More detailed information about each
of the phases of the corrective action
program as implemented to date can be
found in the guidance documents
referenced below. Additional guidance
will be developed in the future.
1. RCRA Facility Assessment
Guidance (Final, October, 1986). This
document can be obtained through the
National Technical Information Services
(NTIS), 5285 Port Royal RcL. Springfield,
VA—(703) 487-4850. Document Number
PB87-10778a
2. RCRA Facility Investigation
Guidance (Interim Final May, 1989). For
further information, contact: Jon Perry—
(202)382-4663.
3. Corrective Action Plan (Interim
Final May, 1988). For further
information, contact (202) 382-4460.
4. Interim Measures Guidance
(Interim Final, May. 1988). For further
information, contact Tracy Back—(202)
382-3122.
V. Approach to Corrective Action in
Today's Role
Together with the National
Contingency Plan (NCP). which EPA
recently promulgated (March 8,1990,55
FR 8666], today's proposal defines EPA's
overall approach to the cleanup of
environmental contamination resulting
from the mismanagement of hazardous
and solid waste. Today's proposal will
establish a regulatory framework for
corrective action under section 3004(u)
of RCRA and win provide guidelines for
corrective action orders imposed
through administrative orders under
section 3008(h) of RCRA. Substantive
provisions of the rule, when
promulgated, generally will be
applicable to response a<-Hnn» nnrfof
CERCLA involving releases of
hazardous waste (including hazardous
constituents). These provisions may also
be "relevant and appropriate" to other
CERCLA response actions.
This section of the preamble briefly
summarizes EPA's basic approach to
RCRA corrective action, the
fundamental cleanup goals of the
program, and the major elements of
today's rule.
A. Priorities and Management
Philosophy for RCRA Corrective Action
Approximately 5.700 facilities are
currently in the RCRA subtitle C
universe, and therefore are potentially
subject to corrective action
requirements. These faculties are likely,
together, to have as many as 804)00
SWMUs. Many of these faculties. EPA
believes, will require some level of
remedial investigation and corrective
action to address past or current
releases.
The level of investigation and
subsequent corrective action will vary
significantly across facilities. This
regulation would ensure that variation
can be accommodated by recognizing
that tne necessary scope of
investigations and studies may be
different depending upon the situation -
presented. It is the Agency's intention
that State and Regional personnel have
the ability to require investigations
sufficient to fully characterize the
facility and assess necessary actions, m
many cases the problem will pose less
risk or be less complex than a major
Superfund site listed on the National
Priorities List Therefore, the Agency
expects that for the most part, RCRA
cleanups will be less complex and less
expensive than those under CERCLA.
and less detailed study will be required
before remedial action begins. In some
cases, however, the Agency also
recognizes that the situation could be
comparable to that of a major CERCLA
site. In such cases, the Agency will
require more detailed analysis and more
rigorous oversight There will also be
cases where immediate action is
required, while at many other sites,
current exposure will be limited and
action can be safely deferred. Not only
will the nature of cleanup required vary
widely, but so too will the
characteristics of the facility owner/
operators. Some faculties will be sites
controlled by financially viable owner/
operators, while others will be weak
financially; some will be under active
long-term management but at others the
owner/operator will be seeking to leave
the site: some win be simple facilities
with one or two storage tanks, yet
others will be major complexes, such as
large Federal facilities, with thousands
of solid waste management unite.
Because of the wide variety of sites
likely to be subject to corrective action.
EPA believes that a flexible approach.
based on site-specific analyses, is
necessary. No two cleanups will follow
exactly the same course, and therefore
the program has to allow significant
latitude to the decision maker in
structuring the process, selecting the
remedy, and setting cleanup standards
appropriate to the specifics of the
situation. At the same time, a series of
basic operating principles guide EPA's
corrective action program under RCRA.
These principles, which are reflected in
today's proposal are described briefly
below.
In managing the corrective.action
program, the Agency will place its
highest priority on action at the most
environmentally significant facilities
and on the most significant problems at
specific facilities. EPA is committed to
directing its corrective action resources
first to the most environmentally
significant problems. The level of threat
posed by each of the 5^00 facilities now
subject to corrective action varies
widely—some are a major concern and
require prompt attention; others will
require eventual cleanup but do not
currently pose a threat still others have
no significant releases and will not
require corrective action at all At some
of these facilities, EPA will
automatically address corrective action
because of its permitting priorities.
Under HSWA. statutory deadlines were
established for issuance of RCRA
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30803
permits to the various types of
treatment, storage, and disposal
facilities. Each of these permits must to
the extent necessary, require a schedule
of compliance for corrective action.
However, a substantial universe of
facilities that will not receive permits
must also be addressed for corrective
action. EPA. through its Environmental
Priorities Initiative, will review and set
priorities for action among these
facilities, to ensure that it addresses the
most significant first
It will also be important for EPA to set
priorities and focus its efforts within
facilities undergoing corrective action
through the permitting process. Facilities
receiving permits will present the full
range of remedial problems; EPA and
authorized States must carefully manage
their resources at these facilities to
ensure that the program effectively
focuses on the most pressing problems.
The Agency's first priority will be to
require interim measures to address
sites posing an immediate threat to
human health and the environment, and
.to pursue engineering remedies to
control or eliminate further migration of
environmental releases. In addition, the
Agency will expect prompt remediation
of all significant off-site contamination,
regardless of whether human or
environmental exposure to the
contamination is currently occurring. On
the other hand, sites where current
exposure is low and releases have been
effectively controlled will be a lower
priority. This is particularly likely to be
the case where a site is cdntrolled by a
financially viable owner/operator who
can ensure that releases are adequately
contained and exposure eliminated and
who will be capable of undertaking
eventual cleanup.
The Agency may rely on
"conditional" remedies where prompt
remedial action can reduce risk to
levels acceptable for current uses, or
where final cleanup is impracticable. As
a general principle, EPA believes that
cleanups must achieve a level
appropriate for all actual and
reasonably expected uses [The question
of cleanup goals is discussed more fully
in the next section of this preamble.)
RCRA sites subject to corrective action.
however, will typically be facilities
seeking permits to manage hazardous
waste, rather than sites that are widely
open to the public and subject to a
broad range of uses. As long as the
permit is in place and the facility is
under the management of the owner/
operator, exposure to contaminated
media within the facility boundary, such
as contaminated soils, would be
significantly less than it would be in an
area of unrestricted access, where future
uses might include residential or
agricultural development. In such
controlled use situations; EPA believes
that it will often be reasonable to
require prompt cleanup to levels
consistent with current use, but to defer
final cleanup as long as the owner/
operator remains under a RCRA permit.
In other cases, it may be readily
apparent that cleanup of a site to levels
appropriate for unrestricted use will be
impracticable. RCRA will have to
address a number of intractable
problems, such as the cleanup of large,
complex sites like municipal landfills, or
ground-water cleanup where the
bedrock is heavily fractured. In these
cases as well, it may be appropriate to
rely on "conditional" remedies that
control risk during the life of the permit.
and rely on institutional controls to
prevent future exposure.
EPA expects that these conditional
remedies will play a significant role in
the implementation of RCRA corrective
action, and will enable the Agency and
the regulated community to focus their
resources most effectively on the most
pressing problems. Further discussion of
"conditional" remedies is contained in
section VI.F.8 of this preamble.
The Agency intends to remove
regulatory disincentives to independent
action by facility owner/operators and
will encourage voluntary cleanups. EPA
recognizes that it is important to allow
willing and responsible owner/
operators to begin corrective action
promptly without unnecessary
procedural delays. In many cases, the
Agency believes that owner/operators
will wish to take source control
measures, begin ground-water pumping,
or take other measures to reduce or
eliminate a problem. EPA encourages
these activities, and in many cases may
find it appropriate to incorporate
owner/operator, initiated corrective
action into permits as interim measures.
In addition, the Agency has taken steps
to simplify RCRA permit modification
procedures for corrective action in its
final rule on RCRA permit modifications
(53 FR 37912, September 28,1988). The
issue of voluntary corrective action is
discussed more fully in section VLA of
this preamble.
Facility investigations and other
analyses will be streamlined to focus on
plausible concerns and likely remedies,
and to expedite cleanup decisions.
While remedial investigations must be
thorough enough to identify any serious
problems, EPA recognizes that its own
resources and those of the regulated
industry are finite, and therefore that
these investigations must be focused on
plausible concerns and conducted in a
step-wise fashion, with early screens to
determine whether further investigation
is necessary. Similarly, although it will
be necessary in some cases—
particularly at facilities with large and
complex cleanup problems—for the
owner/operator to analyze a wide range
of cleanup alternatives, at most RCRA
facilities a more limited analysis will be -
appropriate. For example, when the
appropriate remedy is self-evident (e.g.,
drum removal and treatment to best
demonstrated available technology
(BDAT)), it may be unnecessary to
evaluate alternatives that would not be
adopted. Similarly, where an owner/
operator proposes a remedy that is
effective and protective, it may be
appropriate to approve the remedy and
avoid continued studies that would
serve only to delay cleanup. In either
case, the permit would establish
performance standards in the form of
cleanup levels. If the remedy failed to
achieve these standards, it would have
to be modified accordingly. Section
V1.H.5 of the preamble discusses in
further detail the issue of the technical
impracticability of achieving a remedial
requirement given a specified remedy.
In managing the corrective action
program, the Agency will emphasize
early actions and expeditious remedy
decisions. One of the Agency's
overriding goals in managing the
corrective action program will be to
expedite cleanup results by requiring
sensible early actions to control
environmental problems on an interim
basis, and using flexible and pragmatic
approaches in making final remedy
decisions. EPA believes that in many
cases it will be possible to identify early
in the corrective action process actions
which can and should be taken to
control exposure to contamination, or to
stop further environmental degradation
from occurring. Such interim measures
may be relatively straightforward, such
as erecting a fence or removing small
numbers of drums, or may involve more
elaborate measures such as installing a
pump and treat system to prevent
further migration of a ground-water
contaminant plume. La another example,
where it is obvious that the eventual
remedy will require excavation and
treatment or removal of contaminated
"hotspots," such action should be
initiated as an interim measure, rather
than deferring it until after final remedy
selection.
Final remedy decisions must be based
on careful judgments and sound
technical information. However, today's
proposed rule provides for considerable
flexibility in structuring studies and
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Fedeial Register / VoL 55, No. 145 / Friday, July 27, 1990 / Proposed Rules
selecting remedies. It is EPA's intention
to use that flexibility to streamline the -
remedy development/decision process
whenever feasible. Corrective Measure
Studies should focus on plausible
remedial options, and should be scaled
to fit the complexity of the remedial
situation. Obvious remedial solutions
should not be impeded by unnecessary
studies. Voluntary cleanup initiatives by
owner/operators that are consistent
with EPA's cleanup goals will be
encouraged as a means of expediting the
remedial process.
B. Cleanup Goals for Corrective Action
EPA'a goal in RCRA corrective action
is, to the extent practicable, to eliminate
significant releases from solid waste
management units that pose threats to
human health and the environment, and
to clean up contaminated media to a
level consistent with reasonably
expected, as well as current, uses. The
timing for reaching this goal will depend
on a variety of factors, such as the
complexity of the action, the immediacy
of the threat, the facility's priority for
corrective action, and the financial
viability of the owner/operator.
However, the final goal of cleanup
would remain the same.
It should be recognized that EPA's
emphasis in today's rule on minimizing
further releases means that corrective
action will frequently require source
removal, source control, and waste
treatment In this respect, today's rule
reflects a shift in emphasis from current
RCRA corrective action requirements
for ground-water releases from
regulated units. These requirements
currently focus on cleanup of the ground
water, but not on control of the source.
However. EPA believes that it will
frequently be impossible to control
releases and ensure the long-term
effectiveness of remedies without
significant source control For example,
a response action that focuses entirely
on remediation of the contaminated
medium may meet acceptable cleanup*
standards in the short term, but
continued leaking could lead to
unacceptable releases in the future as
the source continues to leak. Therefore.
today's rule explicitly provide* EPA
authority to require source control.
One of the more controversial issues
related to corrective action is the
cleanup goals for contaminated media.
or "how clean is clean." EPA hau nit
attempted in this rule or elsewhere to
establish specific cleanup levels for
different hazardous constituents in each
medium. Instead, EPA believes that
different cleanup levels win be
appropriate in different situations, and
that the levels are best established as
part of the remedy selection process.
Generally, however, the cleanup must
achieve protective levels for future as
well as current uses. This is the
approach taken in today's proposal
To be "protective" of human health,
EPA believes that cleanup levels for
carcinogens must be equal to or below
an upperbound excess lifetime cancer
risk level of 1 in 10,000 (1XIO"*). As
proposed today, cleanup levels would
be selected within the upper bound
1X10"*' to lxlO~*risk range during the
selection of remedy process; however,
remedies at the more protective end of
the range would ordinarily be preferred.
For non-carcinogens, cleanup levels
would be set at a level at which adverse
effects would not be expected to occur.
The application of this approach to
specific media is described below.
Ground water. Potentially drinkable
ground water would be cleaned up to
levels safe for drinking throughout the
contaminated plume, regardless of
whether the water was in fact being
consumed. Where maximum
contaminant levels (MCLs) established
under the Safe Drinking Water Act are
available for specific contaminants,
these limits generally will be used;
otherwise, the levels would be set
within the protective range. Alternative
levels protective of the environment and
safe for other uses could be established
for ground water that is not an actual or
reasonably expected source of drinking
water.
Soil. Contaminated soil would be
remediated to levels consistent with
plausible future patterns of use. For
example, where access to an area would
be unrestricted, cleanup would generally
be required to levels appropriate for
residential development. At industrial
sites or sites dedicated to long-term
hazardous waste management, cleanup
to less stringent levels might be
appropriate, although institutional
controls could be necessary to ensure
that the use pattern did not change.
Surface water. Releases to surface
water should be remediated to levels
consistent with potential uses. For
example, where surface water is
designated for drinking water or is a
potential drinking water source, cleanup
to drinkable levels w6uld be required. La
the case of surface water, environmental
effects are likely to be particularly
important, because levels protective for
humans may often be insufficient for
protection of aquatic organisms.
Air. Like soil, air releases from solid
waste management units would be of
concern where they posed a threat to
humans or the environment under
plausible current or future use patterns.
Typically, corrective action involving air
concerns would involve source control
to minimise further releases.
C. Major Elements of Today's Proposal
The principles described above will
shape EPA's general approach to
corrective action, and they serve as
operating assumptions behind today's
notice. Today's proposal will establish
the basic framework for the corrective
action program, both for EPA and
authorized States. More specifically, it
codifies the procedures for identifying
problems and selecting remedies at
RCRA facilities; the standards for
cleanup, including the establishment of
cleanup levels; and the standards for
managing cleanups and the wastes
generated by cleanups. The major
elements of the proposal are
summarized below.
Permitting procedures and permit
schedules of compliance. Today's
proposal, which implements section
3004(u), addresses corrective action at
facilities seeking RCRA permits.
Corrective action requirements will be
imposed on these facilities directly
through the permitting process and will
be incorporated into permits through
schedules of compliance. Typically,
before a permit is issued, EPA or an
authorized State would conduct an RFA
at the facility to determine whether a
potential problem existed Where a
likely release was found, the permit
would contain a schedule of compliance,
as specified in proposed S 264.510,
requiring a remedial investigation
focusing on the specifics of the likely
release. This schedule of compliance
would be a part of the permit, and
would be successively modified, as
necessary, as studies and corrective
actions at the faculty proceeded.
Trigger or "action levels. "Where
contamination is identified during the
facility investigation, EPA or an
authorized State will have to make a
decision on whether further analysis,
including analysis of potential remedies,
is appropriate, or whether the
contamination is at an insignificant
level For this reason, the rule
incorporates the concept of "action
levels"—levels that, if found in the
environment, will typically trigger a
Corrective Measure Study. Under
today's proposal, action levels would be
established in the initial permit, or. in
some cases, through a permit
modification after a release has been
identified.
Section 254.521 of the proposal
establishes the general principles by
which action levels would be
established for each medium. To provide
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30805
Federal Register / Vol
guidance for RCRA permit writers,
industry, and the public, today's
proposal includes in Appendix A of this
preamble values that the Agency
believes may be appropriate as action
levels for a number of hazardous
constituents in different environmental
media. These levels would be
incorporated individually into permits
through the permitting process.
If environmental levels were found to
be below the action levels, no further
action would ordinarily be required.
However, even if an action level has
been exceeded, the proposal in i 264.514
would allow the owner/operator to
demonstrate that no action was
necessary. For example, if ground water
were not a potential source of drinking
water because of high levels of natural
contamination, an owner/operator might
successfully argue that cleanup was
unnecessary. In this way. action levels
would constitute rebuttable
presumptions. This issue is discussed in
more detail in section VLK2 of this
preamble.
Corrective Measure Study and
remedy selection. Typically, if an action
level has been exceeded, die facility
owner/operator would be reqafred
under the proposal to conduct a
Corrective Measure Study (CMS). The
purpose of the CMS is to identify and
evaluate potential remedies. EPA
anticipates that in a few cases, owner/
operators of larger sites with complex
environmental problems may need to
evaluate several alternative remedial
approaches in determining the most
appropriate remedy for the facility. For
most RCRA facilities, however, it will be
possible to abbreviate the analysis, and
frequently it may be appropriate for the
owner/operator to propose a single
alternative, which EPA would approve
or disapprove. The proposed regulation
hi 9 264.522 gives the Agency the
necessary flexibility to vary the scope of
the Corrective Measure Study,
depending on the specifics of the
situation.
EPA would approve or select the _^
remedy under the standards and criteria
proposed in 5264^25. Proposed
§ 264.525(a) would require me remedy to
be protective of human health and the
environment, to achieve media cleanup
standards, to minimize further releases,
and to comply with subtitle C and other
waste management standards. In
selecting the remedy, the Agency would
be required to consider * wide range of
factors, such as the remedy's short-and
long-term effectiveness and its
practicability. These factors are
generally comparable to fee factors
considered by the Agency in selecting
Superfund remedies under i 300.430 of
the NCP. (See 55 FR 8866, March 8.
1990.)
Remedies selected under § 284.525
would require formal permit
modifications, with opportunity for
public comment and rights of appeal
After public comment, the proposed
permit schedule of compliance would be
amended, (if necessary) and approved,
to require that the owner/operator
develop a specific remedial design and,
after approval of the design, cany out
the remedy.
Cleanup levels. The Agency's goal is
that remedies clean up to levels
determined to be protective of human
health and the environment EPA's
general cleanup goals are described in -
section B above and hi section VLF.5 of
this preamble. Specific levels for each
facility, consistent with these goals,
would be established during the remedy
selection process and would be
incorporated into the permit and made
available for public comment
Where protective levels could not be
attained, or where wastes were left on
site in disposal units, long-term
management would be required through
the permit
Standards for management of
corrective action waste. Proposed
§5 264.550-284.552 would establish
standards for conducting corrective
action and handling wastes generated
during corrective action. If corrective
action waste meets the RCRA regulatory
definition of hazardous it would have to
be handled under the proposal as
hazardous waste. With some limited
exceptions, new units built to treat,
store, or dispose of this waste on-site
would have to comply with 40 CFR part
264 performance standards for
hazardous waste units. Similarly.
hazardous waste shipped off site would
have to be sent to RCRA subtitle C
facilities.
The rule would also establish more
flexible standards for temporary
treatment and storage units developed
during the course of corrective action.
Completion of remedy. Proposed
§ 26t530 would establish requirements
for remedy completion. Similar to RCRA
closures, an independent engineer or
other qualified professional would have
to certify completion of the remedy, and.
in addition, public notice and comment
would be required before the Agency
made a final decision on whether the
remedy had been completed.
In some cases, it might become ctemr
in the course of a remedy Oat it was not
technically practicable to reach the
cleanup levels specified in the permit In
this case, proposed f 26C531 would
allow termination of the remedial action
and waiver of the cleanup standard;
However, if environmental
contamination remained at unprotective
levels, long-term institutional or other
controls would be required to prevent
human and environmental exposure.
These requirements and alternatives
that the Agency considered are
discussed in more detail in the following
sections.
VL Section-by-Section Analysis
A. Purpose/Applicability (Section
264.500)
1. Conforming Changes to Previous
Codification of§3004(u) and General
Discussion. In today's proposal, EPA is
establishing a new subpart S to 40 CFR
part 264. This section of the proposed
rule sets form the general applicability
of the proposed subpart S regulations.
The procedures and technical
requirements of subpart S apply to any
facility seeking a permit under section
3005(c)ofRCRA.
The language of S 264.500{a) through
S 264.500(d) reiterates the statutory
language of section 3004(u) and section
3004(v). Proposed §5 264.500 (b), (c), and
(d) have already taken effect as a final
rule following public notice and
comment and are codified at 40 CFR
264.101 (on July 15.1985. 50 FR 28702;
and December 1.1987.52 FR 45788). It is
not the Agency's intention to reopen for
public comment the substance of these
pre-existing provisions. The Agency
seeks comment only on the minor
language changes reflected in S 264.500
(e.g., compare the first sentence of
§ 264.101(b) with the first sentence of
§ 264.5OO(c)), and its proposal to move
these provisions from § 264.101 to
§264.500.
Proposed S 264£00(a) clarifies mat
subpart S applies to corrective action for
all SWMUs, including regulated units
(denned hi S 264JO(a)(2) as any landfill,
surface impoundment waste pile, or
land treatment unit that received
hazardous waste after July 26,1982).
Corrective action for releases to ground
water from regulated units is currently
governed by S 264.100. Subpart S will
apply to the investigation of releases to
ground water from other SWMUs.
Releases to other media (air. soil and
surface waters) from both regulated
units and other SWMUs will also be
governed by subpart S.
The Agency intends to modify the
S 264.100 standards to be consistent
with the applicable sections of subpart
S. Thus, regulated units and other
SWMUs would be subject to tb* same
standards for identifying and
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Federal Register / Vol. 55, No. 145 / Friday, July 27. 1990 / Proposed Rules
implementing necessary remedial
action. However, regulated unite will
continue to be subject to slightly
different standards for identifying and
confirming unacceptable releases to
ground water. EPA believes-that this
distinction between regulated units and .
the larger universe of SWMUs is
justified by the slightly different
function of investigating procedures in
the context of regulated units; the
purpose of the ground-water detection
and compliance monitoring programs in
eubpart F is primarily preventive, rather
than essentially responsive like the
subpart 8 program.
The statutory language of section
3004(u), repeated in 55 264.500 (b) and
(c), allows EPA to issue a RCRA permit
with a schedule of compliance for •
investigating and correcting releases,
rather than delay issuance of the permit
until cleanup has been completed. This
will allow more prompt permitting both
of interim status facilities, bringing them
under the more stringent 40 CFR part 264
standards sooner, and of new facilities,
allowing more rapid expansion of
treatment, storage, and disposal
capacity.
Schedules of compliance, which are
enforceable components of the permit,
will thus be the primary vehicle by
which EPA will specify the procedural
and technical requirements that owner/
operators must follow to achieve
compliance with their subpart S
responsibilities. EPA is proposing
specific procedural requirements for
corrective action schedules of
compliance, including requirements
associated with modifications to the
schedules, in today's rule as
amendments to the existing 40 CFR part
270 permit regulations.
As specified in proposed § 264.500(b],
subpart S regulations will apply to all
facilities seeking permits under subtitle
C of RCRA (with the exception of the
specific permits identified in proposed
§ 284.500(fJ). Permits subject to subpart
8 include post-closure permits, as well
as permits issued to operating
hazardous waste management facilities.
Further discussion of the applicability of
post-closure permit requirements and
their relationship to section 3004(u)
corrective action is discussed in the
preamble to the Second Codification
Rule (December 1,1987.52 PR 45788).
2. Exceptions to Applicability.
Today's proposed S 284.500(f) lists four
types of RCRA "permits" to which the
subpart S regulations would not apply.
Each U discussed below.
«. Permits for Land Treatment
Demonstrations. Current RCRA
regulations for hazardous waste land
treatment units (see 9 270.63(a) and
S 284.272) provide for a two-phased
permit process in certain circumstances.
A "permit" can be issued to a facility
with permit conditions which cover only
the activities needed to demonstrate
that the hazardous waste constituents
can be completely degraded,
transformed, or immobilized in the
treatment zone. Such a permit does not
address the full RCRA standards (e.g.,
financial assurance, general facility
standards) that apply to land treatment
faculties. In the absence of permit
conditions addressing full RCRA facility
standards, this first-phase
demonstration permit is not considered
a full RCRA permit issued under the
authority of section 3005. Once the
demonstration is successfully completed
and the actual operating permit (i.e.,
second part of the two-phased permit)
for the land treatment unit is issued, the
subpart S corrective action requirements
will apply.
b. Emergency Permits. Section 270.61
of the RCRA regulations provides for
issuance of emergency permits, not to
exceed 90 days in duration, where .
immediate actions that involve
treatment storage, or disposal of
hazardous waste are necessary to
protect human health and the
environment The emergency permit
provision was included in the RCRA
regulations as a way to provide a
mechanism for responses by an owner/
operator in true emergency situations
which could not be delayed until a full
RCRA permit could be issued. In some
cases, emergency permits can be issued
orally when followed by a written
permit within a specified time frame.
EPA does not believe it is appropriate to
apply subpart S requirements to
emergency permits, since such a
requirement would render this permit
mechanism unworkable for the quick-
response situations it was designed to
address. If a facility is required to
continue to operate under a RCRA
permit beyond the allowable time limit
for emergency permits, a full operating
permit would be required and the
facility would be subject to subpart S
requirements.
c. Pemits-by-Rule for Ocean Disposal
Barges or Vessels. Ocean disposal
barges and vessels are regulated
primarily under the Marine Protection,
Research and Sanctuaries Act (MPRSA)
The applicable RCRA regulations (40
CFR 270.60(a)) provide that operation of
vessels accepting hazardous waste for
ocean dumping are deemed to have a
RCRA permit if they have obtained and
comply with an ocean dumping permit
issued under the MPRSA, and comply
with certain RCRA administrative
requirements. The RCRA permit-by-rule
functions primarily to ensure that
certain administrative requirements of
the RCRA system—in particular, waste
manifest requirements—apply to owner/
operators of such vessels. Furthermore,
as of November 1988, the Ocean
Dumping Ban Act has in effect banned
the ocean dumping of industrial waste.
While corrective action requirements
under subpart S do apply to '
underground injection control (UIC)
facilities and publicly-owned treatment
works (POTWs) with National Pollutant
Discharge Elimination System (NPDES)
permits subject to RCRA permits-by-rule
under 40 CFR 270.60, such requirements
are necessary to ensure that corrective
action requirements apply to releases
from all solid waste management units
at these facilities not regulated under
other laws. MPRSA permits, however,
cover all portions of ocean-dumping
vessels. (Any onshore storage or •
treatment facility that may be
associated with the ocean disposal
operation is required to obtain a
separate RCRA permit.) Thus there are
no unregulated units within an ocean
dumping barge "facility." Furthermore,
unauthorized releases from such vessels
are subject to regulation under the
MPRSA. EPA does not believe it is
appropriate to apply subpart S to these
vessels because the substantive
requirements of section 3004(u) of RCRA
are already effectively satisfied by
MPRSA requirements.
* d. Research, Development and
Demonstration Permits. EPA does not
believe that RCRA requires the
application of section 3004(u)
requirements to facilities seeking a
research and development
demonstration permit under section
3005(g) of RCRA. The conference report
on section 3004(u) expressly states that
the provision is intended to apply to
facilities seeking a permit under section
3005(c) of RCRA. Accordingly, facilities
seeking a permit under section 3005(g)
would not automatically be
encompassed by section 3004(u).
Moreover, the reading of section 3004(u)
suggested by the conference report is •
supported by the statutory language of
section 3005(g). Section 3005(g)(l)
provides that the Regional
Administrator shall include such terms
and conditions in research' and
development demonstration permits as
a/he deems necessary to protect human
health and the environment including
provisions related to monitoring,
financial responsibility and remedial
action. Section 3005(g)(l) further
provides that these provisions may be
established case-specifically in each
permit without the establishment of
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separate regulations. Accordingly, the
plain language of section 3005{g)(l), and
the legislative history of section 3004{u)
both suggest that research and
development demonstration permits can
be subject to case-specific remedial
conditions in the permit as determined
to be necessary, and need not be subject
to the general corrective action
regulations developed under section
3004(u).
3. Voluntary Corrective Action.
Today's proposal for corrective action
under the authority of RCRA section
3004(u) applies to RCRA facilities which
are seeking permits under RCRA subtitle
C. Certain facilities where RCRA
hazardous wastes are present, and
where corrective action may be needed,
are not required to obtain subtitle C
permits, and, therefore, are not subject
to today's rule. For example, facilities
which generate hazardous wastes and
accumulate and store the wastes on site
for less than 90 days prior to shipment to
another facility are not subject to
permits or to today's proposed rule.
In a number of cases, owner/
operators not subject to a RCRA permit
have expressed an interest in
proceeding with corrective action in an
attempt either to reduce their liability or
to preclude subsequent Agency or State
actions. Some activities conducted
during voluntary corrective action may
require a permit if hazardous waste is
involved (e.g., excavated waste is
placed into a disposal unit or stored on
site for more than 90 days).
Current regulations, however, provide
significant flexibility for non-permitted
facilities to undertake corrective action
without a RCRA permit For example, 40
CFR 28Z34 allows generators to
accumulate hazardous waste on site in
tanks or containers for up to 90 days
without a permit or interim status, as
long as certain conditiono—most
importantly compliance with tank and
container standards of 40 CFR part
265—are met In addition, this authority
allows generators to treat hazardous
waste in tanks during the accumulation
period. Under RCRA regulations, a
facility owner/operator conducting
voluntary corrective action involving
hazardous waste could often be
considered a generator. One approach to
achieving cleanup without triggering the
need to obtain a subtitle C permit would
be to store or treat such generated
wastes in tanks within the accumulation
period, so long as the wastes remained
on site for less than 90 days, and other
conditions of § 2S&34 were met
In addition, voluntary corrective
action could take place under a concent
decree issued under section 7003 of
RCRA. This authority allows EPA (or an
authorized State with comparable
authority) to require remedial action in
the case of an imminent and substantial
threat to human health or the
environment "notwithstanding any
other provisions of this Act" Thus,
under this authority, EPA could order a
facility to take corrective action, while
at the same time waiving permit
requirements. Any facility interested in
taking corrective action under this
authority should consult with the
appropriate Region or authorized State
to explore the possibility of a section
7003 consent order.
The concept of "voluntary" corrective
action may also apply to owner/
operators who have been issued permits
with corrective action schedules of
compliance. Some facilities, such as
those with small or low-risk
contamination problems, will be of
relatively low priority for expending the
substantial resources required to
oversee investigations and studies and
make remedy decisions. For those
facilities, EPA's oversight attention
could be deferred for several years
while the program focuses on high
priority facilities with major
environmental problems. However,
owner/operators of lower priority
facilities may wish, for various reasons,
to expeditiously initiate cleanup actions.
rather than wait for EPA to begin
actively pursuing corrective action for
the facility. EPA strongly encourages
owner/operator cleanup initiatives at
permitted facilities, and intends to
facilitate such actions by minimizing
any administrative obstacles which may
impede cleanup.
Owner/ operators may take a wide
range of remedial-type activities at
RCRA permitted facilities without
triggering the need for formal approval
by the Agency or modification of the
permit Such activities include, for
example, treatment, storage, or disposal
of any non-hazardous solid wastes;
excavation of hazardous wastes for
disposal off site; less-than-90-day
storage or treatment of hazardous
wastes in tanks; and treatment of
contaminated ground water in an
exempt wastewater treatment unit
However, some activities which may be
necessary to achieve corrective action
goals at the facility would require a
permit modification. Such activities
might include creation of a new
hazardous waste land disposal unit,
consolidation and/or movement of
hazardous wastes between SWMUs at
the facility, or construction (or
movement on site) of a new hazardous
waste incinerator to manage corrective
action wastes.
The Agency intends to pursue an
approach to this type of "voluntary"
corrective action which will provide
sufficient Agency oversight over cleanup
activities to prevent possible adverse
effects of cleanup actions without
creating disincentives to owner/
operators who wish to take a proactive
position vis-a-vis their corrective action
responsibilities. This approach would
encourage the owner/operator to notify
EPA and the State of any remedial-type
activities being undertaken at the
facility, even though the activities are
not subject to formal Agency approval.
For proposed cleanup activities that are
subject to permit modification
requirements, the owner/operator would
be required to submit a request for a
Class I, n or in permit modification, or a
request for temporary authorization for
the activities. (See the final permit
modification regulations at 53 FR 37912,
September 28,1988.) In the request for a
permit modification (or temporary
authorization), the owner/operator
would be expected to include: (1) A
description of the remediation initiative,
including details of the unit or activity
that is subject to permit requirements;
and (2) an explanation of how the
proposed action is consistent with
overall corrective action objectives and
requirements outlined in today's
proposed regulation. EPA expects that
the corrective action regulations
proposed today will offer owner/
operators dear guidance in fashioning
acceptable remedies and making such
showings of consistency.
EPA's review of the application would
focus on the units or actions subject to
the permit modification requirements; it
would not, however, focus on whether
the proposed cleanup action as a whole
satisfies the subpart S requirements.
Rather, EPA will screen the cleanup
proposal to ensure that it would not
pose unacceptable risks to human health
and the environment (e.g^ by producing
undesirable cross-media impacts) or
interfere with attainment of the final
remedy at the site (e.g., by creating a
new unit over an area of soil
contamination which may later need to
be treated or removed to health-based
levels). Following this review, the •
Agency would approve or disallow the
application.
Where a permit modification is
approved under these circumstances,
the modification will make clear that the
voluntary activities initiated for
corrective action purposes may not be
the final remedy, and that those
activities, when completed, will not
necessarily absolve the owner/operator
from further cleanup responsibilities at a
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later date. This will also hold for
cleanup actions reviewed by the Agency
that are not subject to permit
modifications. It is not possible for the
Agency to delegate to owner/operators
the ultimate responsibility for ensuring
that remedial activities fully satisfy
RCRA's statutory requirement for
protection of human health and the
environment
The Agency solicits comments on the
approach to voluntary corrective action
described above.
B, Definitions (Section 264.501)
EPA is today proposing to define five
key terms which apply specifically to
this subpart.
1. Facility. In the July IS, 1985,
Codification Rule, EPA interpreted the
term "facility" in the context of section
3004{u) to mean all contiguous property
under the control of the owner/operator
of a facility seeking a permit under
subtitle C, This interpretation was
upheld in a decision of the U.S. District
Court of Appeals (United Technologies
Corporation vs. U.S. EPA, 821 F2d. 714
(DC Cir. 1987)). Thus, by proposing this
interpretation as the definition of facility
in today's rule, EPA is not modifying its
basic interpretation as previously
elaborated for the purpose of
implementing section 3004(u). There are,
however, several aspects of this
definition which merit further
clarification.
The definition of facility in today's
proposal at 5 264.501 is not intended to
alter or subsume the existing—and
narrower—definition of "facility" that is
given in 40 CFR 260.10. That definition
describes the facility as "• * * all
contiguous land and structures • • *
used for treating, storing or disposing of
hazardous waste * * *" EPA intends to
retain this definition for the purposes of
implementing RCRA subtitle C
requirements, with the exception of
subpart S corrective action (including
those provisions governing corrective
action for regulated units). At the same
time, however, the Agency is reviewing
its uses of the term "facility" in other
parts of the subtitle C regulations to
ensure consistent usage.
Today's proposed definition refers to
"contiguous property" under the control
of the owner/operator. Several
questions have been raised as to the
Agency's interpretation of "contiguous
property" in the context of defining the
areal limits of the facility. Clearly,
property that i* owned by the owner/
operator that is located apart from the
facility (/.ft, is separated by land owned
by others) is not part of the "facility."
EPA does intend, however, to consider
property that is separated only by a
public right-of-way (such as a roadway
or a power transmission right-of-way) to
be contiguous property. The term
"contiguous property" also has
significant additional meaning when
applied to a facility where the owner is
a different entity from the operator. For
example, if a 100-acre parcel of land
were owned by a company that leases
five acres of it to another company that,
in turn, engages in hazardous waste
management on the five acres leased,
the "facility" for the purposes of
corrective action would be the entire
100-acre parcel. Likewise, if (in the same
example) the operator also owned 20
acres of land located contiguous to the
100-acre parcel, but not contiguous to
the five-acre parcel the facility would
.be the combined 120 acres. EPA invites
comment on these interpretations of
contiguous property.
In some cases, adjacent properties
may be separately owned by two
different subsidiaries of a parent
company, where only one of the
subsidiaries' operations involves
management of hazardous wastes. In
such cases, EPA intends to consider the
ownership to be held by the parent
corporation. Thus, in the example
provided, the facility would include both
properties.
EPA acknowledges that, in some
situations, "ownership" of property can
involve a complex legal determination.
EPA solicits comment and information
on the interpretation offered in general,
and specifically on the issue of how
ownership or "control" of property
should be determined in the context of
subsidiary-parent companies.
2. Release. Today's proposal includes
the definition of "release" articulated in
the preamble to the July 15,1985,
Codification Rule. This definition
essentially repeats the CERCLA
definition of release. Today's proposed
definition also includes language from
SARA which extended the concept of
"release" to include abandoned or
discarded barrels, containers, and other
closed receptacles containing hazardous
wastes or hazardous constituents.
Although this definition of release is
quite broad, section 3004(u) is limited to
addressing releases from-solid waste
management units. Thus, there may be
releases at a facility that are not
associated with solid waste
management units, and that are
therefore not subject to corrective action.
under this authority. (See discussion
below which defines solid waste
management unit)
Many facilities have releases from
solid waste management units that are
issued permits under other
environmental laws. For example, stack
emissions from a solid waste refuse
incinerator at a RCRA facility are likely
to be authorized under a State-issued air
permit. Another example would be
NPDES (National Pollutant Discharge
Elimination System, under the Clean
Water Act), or State-equivalent, permits
for discharges to surface water from an
industrial wastewater treatment system.
EPA does not intend to utilize the
section 3004(u] corrective action
authority to supersede or routinely
reevaluate such permitted releases.
However, in the course of investigating
RCRA facilities for corrective action
purposes, EPA may find situations
where permitted releases from SWMUs
have created threats to human health
and the environment In such a case,
EPA would refer the information to the
relevant permitting authority or program
office for action. If the permitting
authority is unable to compel corrective
action for the release, EPA will take
necessary action under section 3004(u)
(for faculties with RCRA permits) or
section 3008(h) (for interim status
facilities), as appropriate, and to the
extent not inconsistent with certain
applicable laws (see section 1006(a) of
RCRA).
3. Solid Waste Management Unit
(SWMU). Today's rule proposes the
following definition of solid waste
management unit:
Any discernible unit at which solid wastes
have been placed at any time, irrespective of
whether the unit was intended for the
management of solid or hazardous waste.
Such units include any area at a facility at
which solid wastes have been routinely and
systematically released.
This definition is also derived from
the Agency interpretation discussed in
the July 15,1985, Codification Rule. A
discernible unit in this context includes
the types of units typically identified
with the RCRA regulatory program,
including landfills, surface
impoundments, land treatment units,
waste piles, tanks, container storage
areas incinerators, injection wells,
wastewater treatment units, waste
recycling units, and other physical,
chemical or biological treatment units.
The proposed definition also includes
as a type of solid waste management
unit those areas of a facility at which
solid wastes have been released hi a
routine and systematic manner. One
example of such a unit would be a wood
preservative "kickback drippage" area,
where pressure treated wood is stored
in a manner which allows preservative
fluids routinely to drip onto the soil,
eventually creating an area of highly
contaminated soils. Another example
might be a loading/unloading area at a
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30809
facility, where coupling and decoupling
operations; or other practices result in a
relatively small but steady amount of
spillage or drippage, that, over time,
results in highly contaminated soils.
Similarly, if an outdoor area of a facility
were used for solvent washing of large
parts, with amounts of solvent
continually dripping onto the soils, that
area could also be considered a solid
waste management unit.
For clarification purposes it may also
be useful to identify certain types of
releases that the Agency does not
propose to consider solid waste
management units using the "routine
and systematic" criterion. A one-time
spill of hazardous wastes (such as from
a vehicle travelling across the facility)
would not be considered a solid waste
management unit. If the spill were not
cleaned up, however, such a spill would
be illegal disposal, and therefore subject
to enforcement action under section
3008(a) or section 7003 of RCRA.
Similarly, leakage from a chemical
product storage tank would generally
not constitute a solid waste
management unit; such "passive"
leakage would not constitute a routine
and systematic release since it is not the
result of a systematic human activity.
Likewise, releases from production
processes, and contamination resulting
from such releases, will generally not be
considered solid waste management
units, unless the Agency finds that the
releases have been routine and
systematic in nature. (Such releases
could, however, be addressed as illegal
disposal under section 3008(a) or section
7003.) EPA solicits comment on these
interpretations, and on the overall
definition of solid waste management
unit
EPA recognizes that these
interpretations have the effect of
precluding section 3004(u) from
addressing some environmental
problems at RCRA facilities. However,
EPA intends to exercise its authority, as
necessary, under the RCRA "omnibus"
provision (section 3005(c)(2)), or other
authorities provided in RCRA (e.g.,
section 3008(a) and section 7003) or
CERCLA (e.g., CERCLA section 104 or
section 106), or States, under State
authorities, to correct such problems
and to protect human health and the
environment
The RCRA program has identified
certain specific units and waste
management practices at facilities about
which questions have been raised
concerning applicability of the definition
of a solid waste management unit One
such question relates to military firing
ranges and impact areas. Such areas are
often potentially hazardous, due to the
presence of unexploded ordnance. EPA
has decided that such areas should not
be considered solid waste management
units. There is a strong argument that
unexploded ordnance fired during target
practice is not discarded material which
falls within the regulatory definition of
"solid waste." Ordnance that does not
explode, as well as fragments of
exploded ordinance, would be expected
to land on the ground. Hence, the
"ordinary use" of ordnance includes
placement on land. Moreover, it is
possible that the user has not
abandoned or discarded the ordnance,
but rather intends to reuse or recycle
them at some time in the future. In
addition, a U.S. District Court decision
(Barcello vs. Brown, 478 F. Supp. 646,
668-689 (D. Puerto Rico 1979)), has
suggested that materials resulting from
uniquely military activities engaged hi
by no other parties fall outside the
definition of solid waste, and thus
would not be subject to section 3004(u)
corrective action.
Another issue which raises questions
regarding the definition of "solid waste
management unit" relates to industrial
process collection sewers. Process
collection sewers are typically designed
and operated as a system of piping into
which wastes are introduced, and which
usually discharge into a wastewater
treatment system. The Agency believes
that there are sound reasons for
considering process collection sewers to
be solid waste management units. Such
sewers typically handle large volumes of
waste on a more or less continuous
basis, and are an integral component of
many facilities' overall waste
management system. Program
experience has further indicated that
many of these systems, especially those
at older faculties, have significant
leakage, and can be a principal source
of soil and ground-water contamination
at the facility. Although process
collection sewers are physically
somewhat unique in the context of the
types of units which have traditionally
been regulated under RCRA, EPA
believes that including them as solid
waste management units for purposes of
corrective action is well within the
discretion provided under the statute for
EPA to determine what "units" should
be subject to RCRA standards.
EPA recognizes that there may be
technical problems associated with
investigating releases from process
collection sewers, and with correcting
leakage. Information and comment are
specifically solicited on EPA's tentative
decision to treat process collection
sewers as solid waste management
units, and on technical approaches and
limitations to investigating and
correcting releases from such systems.
For essentially the same reasons as
described above for process sewers,
EPA also proposes to include open (or
closed) ditches that are used to convey
solid wastes as solid waste management
units; comment is also solicited on this
interpretation.
4. Hazardous Waste and Hazardous
Constituents. Section 3004(u) requires
corrective action for releases of
"hazardous wastes or constituents." The
Agency believes that use of the term
"hazardous waste" denotes "hazardous
waste" as defined in section 1004(5) of
RCRA. Accordingly, today's proposed
rule repeats the statutory definition of
"hazardous waste" found in that
section. The term "hazardous waste" is
distinguished from the phrase
"hazardous waste listed and identified,"
which is used elsewhere in the statute to
denote that subset of hazardous wastes
specifically listed and identified by the
Agency pursuant to section 3001 of
RCRA. Thus, the remedial authority
under section 3004(u) is not limited to
releases of wastes specifically listed in
40 CFR part 261 or identified pursuant to
the characteristic tests found in that
section. Rather, it extends potentially to
any substance meeting the statutory
definition. However, EPA believes that
use of the phrase "hazardous wastes or
constituents" (emphasis added)
indicates that Congress was particularly
concerned that the Agency use the
section 3004(u) authority to address a
specific subset of this broad category,
that is, hazardous constituents.
The term "hazardous constituent"
used in section 3004(u) means those
constituents found in appendix VIII to 40
CFR part 261. See H. Rep. No. 98-198,
98th Cong., 1st Seas. 60-61, May 17,1983.
In addition, the Agency proposes to
include within the definition those
constituents identified in appendix IX to
40 CFR part 264. Appendix IX generally
constitutes a subset of appendix Vin
constituents particularly suitable for
ground-water analyses. However, it also
includes additional constituents not
found on appendix Vm, but commonly
addressed in ground-water analysis
conducted as a part of Superfund
cleanups.
It is EPA's intention that
investigations of releases under sujpart
S focus on the subset of hazardous
waste (including hazardous
constituents) that is likely to have been
released at a particular site, based on
the available information. Only where
very little is known of waste
characteristics, and where there is a
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potential for a wide spectrum of wastes
to have been released, would the
owner/operator be required to perform
extensive or routine analysis for a
broader spectrum of wastes.
5. Corrective Action Management
Unit (CAMU). The definition-of CAMU
is provided in section VLJ 3.b of today's
preamble. This section also provides a
thorough discussion of the CAMU
concept and of how the Agency intends
to define CAMUs in the context of
implementing remedies.
C. Remedial Investigations (Sections
264.510-264.513}
1. General. The RCRA Facility
Investigation (RFI) is the second phase
of the RCRA corrective action process,
and will typically be preceded by a
RCRA Faculty Assessment (RFA),
conducted by EPA or the State prior to
issuance of the permit or section 3008(h)
order. The RFA is the first step in the
RCRA corrective action process, and is
analogous to the Preliminary
Assessment/Site Investigation (PA/SI)
stage of the Superfund program. The
RFA serves as a screen, eliminating
solid waste management units
(SWMUs), environmental media, or
entire facilities from further
consideration where the Agency
determines that there is no evidence of a
release or likelihood of a release that
poses a threat to human health and the
environment. The RFA also serves to
focus the scope of the follow-on
remedial investigations by identifying
those releases or areas that are of the
most environmental concern at the
facility. The RCRA RFI is comparable to
the Remedial Investigation in the
Superfund program. Because of the
similarity of the two processes and
because of their common goals, the RFI
is referred to in this section and in the
rule by the more generic term, remedial
investigation.
As described above, EPA would
require a remedial investigation under
proposed i 264.510 if the RFA indicated
that a release from a SWMU was likely
to have occurred or to be occurring, or,
in certain limited circumstances, likely
to occur in the future. Requirements for
the remedial investigation would be
specified by the Agency in a schedule of
compliance in the facility's permit The
schedule would typically identify the
SWMUs and environmental media that
required more detailed investigation as
well as the types of investigations
required; it would also typically require
the owner/operator to develop • plan
for conducting these investigations. The
permit would also include "action
levels" for specific constituents in
specific media under investigation. If
subsequent investigation indicated that
these action levels had been exceeded, a
Corrective Measure Study could be
required by the Agency.
EPA has recently issued a guidance
document entitled RCRA Facility
Investigation Guidance, which describes
a menu of technical investigations that
may be appropriate to conducting
remedial-type investigations at RCRA
facilities. EPA wishes to emphasize that
the nature and scope of remedial
investigations for RCRA facilities under
proposed 5 264.510 will be tailored to
the specific conditions and
circumstances at the faculty.
Investigations will be focused on the
specific units, releases, and exposure
pathways that have been identified by
EPA to be of concern. In some cases, the
scope of a remedial investigation could
be limited to taking several soil samples
of a particular area of discolored sous.
Likewise, for inactive units that do not
contain substantial volumes of volatile
organic compounds, remedial
investigations will rarely need to
address air releases. In defining the
nature and scope of remedial
investigations at RCRA facilities, EPA
will endeavor to minimize unnecessary
and unproductive investigations, and to
focus resources on characterizing actual
environmental problems at facilities.
Today's rule, in §§ 264.511 through
264.513, proposes a regulatory
framework (both procedural and
substantive) for conducting remedial
investigations. For more information on
technical approaches to these
investigations, readers should refer to
the RFI Guidance, which has been
included in the public record of this
rulemaking.
EPA also anticipates that remedial
investigations will typically be phased,
to avoid unnecessary investigations
where a concem.can be quickly
eliminated. Because of the importance of
accurate data, and the likely need to
extend or modify the analysis as data
are developed, the remedial
investigation will often, in addition,
require a high level of interaction
between the permittee'and the Agency.
The specific contents and scope of the
investigations are described below.
2. Scope of Remedial Investigations
(§264.511). Proposed 1284.511 defines in
general terms the scope of remedial
investigations which may be required
under 5 284U510. Proposed § 284.511(a)
states the general performance objective
that remedial investigations
characterize the nature, extent,
direction, rate, movement, and
concentration of releases, as required by
the Agency. The scope and complexity
of remedial investigations will depend
on the nature and extent of the
contamination, whether the releases
have migrated beyond the facility
boundary, the amount of existing
information on the site, the likely risk at
the site, and other pertinent factors. The
proposed general performance standard
gives considerable flexibility to the
Agency in denning the specific scope,
level of detail, and data requirements
for each remedial investigation. The
specific investigation requirements
deemed to be 'appropriate at a given
facility will be included in the permit as
part of the schedule of compliance.
Proposed §9 264.511(a)(lH7) provide
a menu of more specific types of
information that may be required in
remedial investigations: (1)
Characterization of the environmental
setting; (2) characterization of solid
waste management units; (3) description
of the humans and environmental
systems which are, have been, or may
potentially be exposed to the release; (4)
information that will assist the Agency
in assessing the risk posed to humans
and environmental systems by the
release; (5) extrapolations of future
contaminant movement; (6) laboratory,
bench-scale, or pilot-scale tests or
studies to determine the feasibility or
effectiveness of treatment or other
technologies which may be appropriate
in implementing remedies at the facility;
and (7) statistical analyses to aid in the
interpretation of data required in the
investigation.
The RFI Guidance describes in detail
technical approaches to characterizing
the releases and environmental settings
in remedial investigations. In addition,
the RCRA Ground-Water Monitoring
Technical Enforcement Guidance
Document (September 1988) provides
specific guidelines for characterizing
ground-water releases. Therefore, this
preamble will not describe in detail
these technical procedures.
Section 264.511(a)(lKiHv) describes
five types of information that may be
required in a characterization of the
environmental setting: Hydrogeologic
conditions; climatological conditions;
soil characteristics; surface water
characteristics including sediment
quality; and air quality and
meteorological conditions. This
information would be required as
appropriate to address the concerns
identified in the RFA. Specific
requirements for the faculty will be
included in the permit schedule of
compliance.
Section 284.511 (aX2) would allow EPA
to require a characterization of any
SWMU from which releases may be ,
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30811
occurring or may have occurred. This
characterization, which could include
chemical and physical analyses, will
often be important in making decisions
as to potential source control measures
that may be needed. Characterization ot
wastes contained in SWMUs may
involve generation of chemical and
physical data about the wastes, their
constituent breakdown, volumes,
concentrations, and other relevant data.
In some cases, unit characteristics such
as materials of construction, age, or type
and thickness of liners may be relevant
to remedy decisions.
Section 264.511(a)(3) proposes that the
Agency may require a full "* * *
description of human and environmental
systems which are or may be exposed to
release(s)." The proximity and
distribution of exposed populations may
indicate the need for interim measures
as proposed under 8 264.540 of today's
rule. Useful exposure information will
generally be available at facilities with
landfills or surface impoundments, in
the form of Exposure Information
Reports required under section 3019 of
RCRA. The RFA report may also
provide useful information on human
and environmental systems which may
potentially be exposed. Where
information available prior to permit
issuance does not adequately identify
potentially exposed populations, EPA
will require, this information, as
appropriate, to be generated as part of
the remedial investigation.
The Agency is also concerned with
the potential exposure of sensitive
environmental species or systems to
releases from SWMUs. As in the
Superf und program, the Agency intends
to carefully evaluate effects on sensitive
environmental systems, including
wetlands, estuaries, and habitats of
endangered or threatened species.
Section 264.511(a)(4) would provide
the Agency with the authority to require
information that will assist the Regional
Administrator in the assessment of risks
to human health and the environment
from releases from solid waste
management units. Information
collected under § 264.511(a)(3) also
would be used in the assessment of risk.
The risk assessment would integrate
information on exposed human and
environmental systems and information
on contaminant concentrations to assess
the magnitude of threats to exposed
populations. The Agency may perform a
risk assessment to determine whether
interim measures are appropriate prior
to selecting the final remedy or to
evaluate whether a determination is
warranted so that no further action is
necessary (under proposed § 264.514).
The permittee should refer to chapter
Vm of the RFI Guidance for information
regarding the Agency's expectations for
data that may be needed to conduct a
risk assessment.
Section 264.511(a)(5) would provide
the authority for the Agency to require a
permittee to submit information that
extrapolates future contaminant
movement. Such information could be
important in determining whether
interim measures will be required to
prevent further migration of
contamination and what measures are
likely to be effective in doing so. In
addition, extrapolated contaminant
movement will be important in
assessing the adequacy of proposed
schedules of implementation of the
remedy.
Section 264.511(a}(6) would provide
the Agency with the authority to require
..... . laboratory, bench-scale, or pilot-
scale tests or studies to determine the
feasibility or effectiveness of treatment
technologies * * * that may be
appropriate in implementing remedies at
the facility." It is often difficult, and
sometimes impossible, to predict the
effectiveness of treatment technologies
accurately without data from bench- or
pilot-scale studies. Experience in the
Superfund program has shown that
bench-scale and pilot-scale studies can
be useful both in developing potential
remedies and in predicting the
effectiveness of alternative approaches.
Typically, such studies would be
performed during the Corrective
Measure Study (CMS) (which may be
required after a contaminant
concentration level specified in the
permit as an "action level" is exceeded).
However, in some cases such studies
may need to be initiated during the
remedial investigation to prevent delays
hi cleanups, and the Agency should
have the regulatory authority to require
this. For example, at SWMUs at
facilities where confirmed releases have
occurred over a long period of time and
where wastes placed in those SWMUs
were highly toxic or mobile, it should
not be necessary to wait for the CMS
phase of the corrective action process to
begin to evaluate, on a small scale, the
effectiveness of various treatment
technologies in achieving protective
concentration levels in the contaminated
medium.
Section 264.511(a)(7) would provide
the authority for the Agency to require a
permittee to perform statistical analyses
to aid in the interpretation of data
collected through remedial
investigations required under i 264.510.
For example, such statistical analyses-
may be needed to determine whether
measured concentrations of
contaminants exceed action levels.
Section 264.511(b) would authorize the
Regional Administrator to specify the
constituents and parameters for which
samples collected during remedial
investigations would be analyzed.
Generally, analyses required will be
limited to certain hazardous wastes or
hazardous constituents listed in
appendix Vm of 40 CFR part 261 or
appendix IX of 40 CFR part 264 that are
known or suspected to have been
released from the unit However, in
some cases, where the wastes disposed
in the unit are unknown to the owner/
operator, or the unit is known to contain
a hazardous substance(s) not included
on either appendix Vm or IX, referenced
above, additional analyses may be
required. In the first case, it may be
necessary to have an initial analysis
which is designed to scan, for example,
for all appendix IX constituents. Further
analyses may then be limited to
constituents which are found to be
present in the initial sample. In addition,
EPA may stipulate a requirement to
analyze for substances not on either
appendix Vin or IX (see preamble
discussion on the definition of
"hazardous waste"). Authority to
specify the analyses to be performed,
and for which constituents, will be
important in ensuring that quality data
are developed to accurately characterize
releases, and to support no further
action decisions that may be
appropriate.
3. Plans for Remedial Investigations
(§264.512). Under today's proposed
8 264.512, permittees may be required to
submit a plan for conducting the
remedial investigation if an
investigation is determined to be
necessary. The Agency considered, but
is not proposing, making submittal of
such plans an absolute requirement; that
is, expressing it as a "shall" rather than
a "may". In some cases the Region or
State may have extensive knowledge of
the facility prior to permit issuance, and
may be able to specify, in detail, how
the investigations should be conducted.
In this situation, it would not be
necessary to require the owner/operator
to submit a workplan for approval.
Likewise, in some other cases the
permittee may have begun remedial
investigations under an interim status
corrective action order, under CERCLA,
or on a voluntary basis. Where the
workplan developed for investigations
prior to permit issuance is determined
by the Regional Administrator to be
adequate, it will not be necessary to
require submission and approval of the
current plan—that plan would simply be
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incorporated into the permit In the great
majority of cases, however, the Agency
believes that plans for remedial
investigations will need to be submitted
by the permittee. The permit would
specify a schedule for submission of the
plan, as well as the elements the plan
must include. These requirements will
generally reflect the complexity of the
situation to be addressed. The Agency
considered a requirement that would
impose a definite deadline for every
owner/operator required to submit an
RFI plan (e.g., 90 days after permit
issuance). Typically 80 days would be
sufficient time for an owner/operator to
develop and submit a plan for the
investigation. However, the
circumstances at some facilities may be
highly complex {e,gn location above a
Karst formation) and may mean that
more than 90 days would be required to
develop an adequate plan. Further,
where the Agency must set priorities to
manage a heavy work load, facilities
suspected of having serious
contamination may be required to
submit plans more quickly. Therefore,
EPA has not proposed a specific time
period within which the plan must be
submitted, but the Agency is soliciting
comment on whether such an approach
is preferable to the more flexible
approach in today's proposal
Flans for conducting remedial
investigations would be subject to
review and approval or modification by
the Regional Administrator. When a
workplan submitted for the Regional
Administrator's approval does not
adequately address all elements of the
investigation, the Regional
Administrator may either disapprove
the plan and return it to the permittee
for revision, or make modifications to
the plan and return the modified plan to
the owner/operator as the approved
plan. The latter approach is analogous
to the discretion provided the Regional
Administrator to modify closure plans
submitted by an owner/operator
pursuant to S 285.112 during interim
status, or through a Notice of Deficiency
during the permitting process. An
approved plan will establish both
requirements applicable to the conduct
of the investigation and a schedule for
its implementation. Section 264-512{b)
would provide regulatory authority for
enforcing compliance with the approved
plan, which becomes an enforceable
part of the permit schedule of
compliance. In most cases, it is expected
that the initial permit will specify that
the plan becomes an enforceable
component of the permit upon approval
Alternatively, the permit may be
modified to incorporate the provisions of
. the approved plan.
Proposed § 264.512(a) lists items that
the Regional Administrator may require
in the work plan. Such plans should
generally call for focused, staged
investigations, the scope and emphasis
of which will be refined as releases are
: verified and/or found not to have .
occurred. The work plans would
generally include: A description of
overall approach; technical and
analytical approaches and methods;
quality assurance procedures; and data
management procedures and formats to
document and track the results of
investigations. In addition, the Regional
Administrator may impose other
elements, as necessary, to assure that
work undertaken will be of an adequate
quality (and an appropriate level of
detail) to serve as the primary basis for
decisions on further stages of the
corrective action process that may be
necessary at the faculty.
The description of the overall
approach, which could be required
under proposed S 264.512(a){l), would
generally include a description of the
objectives of the investigation, its
schedule, and the qualifications of the
persons conducting the investigation.
The schedule is particularly important
because, when approved, it will become
enforceable as part of the schedule of
compliance.
A requirement to specify the technical
and analytical approaches to be
employed (under proposed
S 294.512(a)(2)} might include
specifications for the location,
construction, and frequency of sampling
of ground-water monitoring wells. This
would be analogous to the types of
specifications for wells that are typically
in permits for land disposal units.
Submissions of proposed quality
assurance procedures under
§ 264.512(a)(3) would be evaluated to
ensure that data generated during the
investigation are accurate, and that they
can be used with confidence to support
the next steps of the corrective action
process. Guidance on appropriate
quality assurance procedures may be
found in the RCRA Facility Investigation
Guidance.
Data management procedures and
formats for documenting results of the
investigation are included in proposed
S 264.512(a)(4) to ensure that RFI data
and summary results are presented in a
clear and logical manner. Studies such
as the RFI typically produce large
amounts of data, such as laboratory
analyses of numerous waste
constituents from numerdus samples.
Effective data management and
presentation will be necessary to ensure
that the data can be properly
interpreted.
4. Reports of Remedial Investigations
(§264.513). Proposed § 264.513 would
establish the Regional Administrator's
authority to require periodic reports that
summarize results of remedial
investigations. Timing of the reports, as
well as specific content requirements,
would be detailed in the permit schedule
of compliance. The report format may be
specified by the Regional Administrator
where necessary to ensure presentation
of data in an orderly and easily
comprehensible fashion.
The Agency considered, but is not
requiring in today's proposal, specifying
intervals for reports (e.g., such as every.
180 days). The Agency believes that
there should be flexibility in the timing
of submission of reports to reflect the
nature of the investigations which may
be required at specific facilities. For
example, where extensive monitoring-
well construction and sampling are
necessary, months may pass before
significant results are gathered. On the
other hand, where limited soil sampling
of a few SWMUs is required to confirm
or disprove suspected contamination,
meaningful results may be achieved
more quickly.
Where data generated during the
investigation (or which are newly
available from other sources] indicate
that the investigation should be
modified, the Regional Administrator
may require such modifications either
by negotiation with the facility owner/
operator, or through a modification to
the schedule of compliance.
Modifications could occur, for example,
if the investigation revealed that
contamination had migrated, or would
soon migrate, off site. In such a case,
additional activities may be imposed as
interim measures to contain the
contamination until active, longer term
remediation could begin. Further, new
information may indicate the need for
additional investigations, or the
Regional Administrator may need to
modify the investigation requirements
based on preliminary analytical results.
Proposed §§ 2S4£13(b) and 264.513(c)
would require the permittee to submit a
final report of the investigation to the
Regional Administrator for approval,
and would allow the Agency to require
the permittee to add to or otherwise
revise the report if it did not fully and
accurately «iiinmariw> the results of the
remedial investigation. This authority to
require revisions should ensure that
adequate information (both in quality
and level of detail) is presented to
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30813
support further corrective action
decisions for the facility.
In addition to the final report, the
permittee would be required to submit a
summary of the report under proposed
§ 284£13(b)(2). This summary would
also be subject to the approval of the
Regional Administrator, and would be
mailed to all individuals on the facility's
mailing list by the owner/operator. (The
facility mailing list which is required
under 40 CFR 124.10(c)(l)(viii). is
developed and maintained by EPA as
part of the permitting process.) This
proposed requirement is an important
element of the Agency's overall public
involvement strategy for corrective
action, which is described in further
detail in today's preamble under section
VOL Distribution of the summary in "this
manner will provide notice to interested
parties as to the general nature of the
environmental problems at the facility,
what releases have been found, and
other results of investigations.
Section 264.513(e) would require that
the permittee maintain all raw data
(such as laboratory reports, drilling logs,
and other supporting information) at the
facility for the duration of the corrective
action activities and any permit period
unless the Regional Administrator
approves maintaining this information in
a different location. Although such data
will often be required to be submitted
along with investigation reports, this
requirement will ensure that when
questions do arise concerning
interpretation of data or the adequacy of
procedures used to obtain and analyze
data, the original records will be
available for inspection.
D. Determination of No Further Action
(Section 284.514)
EPA anticipates that at oome facilities
releases or suspected releases mat are
identified in a RCRA Facility
Assessment (RFA), and subsequently
addressed as part of required remedial
investigations, will be found to be non-
existent, or otherwise of such a nature
that they do not pose a threat to human
health or the environment EPA
proposes providing a mechanism by
which a permittee may request a permit
modification to effectively terminate
further requirements in these cases.
Section 284.514 proposes the
procedures to be followed by both the
permittee and the Regional
Administrator when a determination of
no further action for the facility is
requested. The request for an Agency
determination that no further action is
required, and the corresponding permit
modification request must be
accompanied by supporting
documentation that demonstrates that
there are no releases of hazardous
waste (including hazardous
constituents) from SWMUs at the
facility which pose a threat to human
health or the environment (See
proposed S 264.514(a)(2).)
Under proposed § 264.514(a) the
permittee may request a modification of
tiie facility permit to terminate the
schedule of compliance for corrective
action based on the findings of remedial
investigations. The request would be
initiated according to the procedures of
a Class m permit modification. (See the
September 1988 final permit
modification rule.) These procedures
would require the permittee to notify all
persons on the facility mailing list of the
proposed change and publish a
newspaper notice concerning the
request; both notices must announce the
initiation of a 80 day comment period as
well as the time, date, and location of an
informational public meeting. In
addition, a copy of the proposed
modification and supporting
documentation must be placed in a
location accessible to the public hi the
vicinity of the permitted facility. (In the
case of proposed modifications at
facih'ties required to establish an
information repository under S 270.36 of
today's proposal this location would be
the information repository.) More
detailed information concerning the
requirements for a Class ffl permit
modification may be found in the rule
for permit modifications cited above and
the preamble discussion which
• accompanies it
Under proposed 8 264.514(b), if the
Regional Administrator, using all
available information (including
comments received during the comment
period required for Class HI
modifications), determines that releases
or suspected releases investigated either
do not exist or do not pose a threat to
human health or the environment the
Regional Administrator will grant the
requested permit modification.
This determination will be
straightforward where the permittee can
demonstrate that no release has
occurred; however, such a determination
may still be supported when a release
has occurred, whether the release(s) is
either below or above action levels. For
example, such a determination may be
made when concentrations of hazardous
constituents exceed action levels but the
contamination is in a highly saline
(Class EH) aquifer, or where
contamination in ground water can be
shown to have originated from a source •
outside the facility. Such a
determination would be consistent with
the provision made in today's proposal
at § 284.525(d)(2)(ii), which allows
certain cleanup exemptions when
contamination is present in ground
water that is neither a current or
potential source of drinking water nor
potentially usable for other human
purposes. Another example where a no
further action determination might be
made is where it can be determined that
contaminant levels (and the risks posed
by them) from a release from a SWMU
are insignificant as compared to existing
"background" levels (e.g., levels that are
naturally occurring, or that have
resulted from releases from outside the
facility). This determination would be
consistent with the provision made in
today's proposal at S 284.525(d)(2)(i).
A determination that no further action
is required under S 264.514, and the
subsequent termination of the permit
schedule of compliance for corrective
action, does not affect other
responsibilities or authorities of the
Regional Administrator. For example,
responsibilities to include requirements
in a permit for air emissions control and
monitoring under section 3004(n) are not
affected by a determination that no
further action is required under 5 264.514
(see preamble section Vn.C.3 on
relationship to section 3004(n)
standards). In addition, the authority of
the Regional Administrator to modify
the permit under S 270.41 at a later date
to require corrective action
investigations or studies based on new
information is not affected. Furthermore,
despite a determination under § 264.514,
EPA may require continuing or periodic
monitoring when site-specific
circumstances indicate that releases are
likely to occur in the future. For
example, for a particular SWMU from
which releases-have not occurred, it
may be reasonable to conclude, based
on site-specific circumstances, that
releases to ground water might be
expected within the next several years
(/.a, the term of the permit). In these
situations, continued monitoring
requirements could be imposed.
Where the permit schedule of
compliance has been terminated and the
Regional Administrator subsequently
determines that a new investigation or
remediation is required, the Regional
Administrator will initiate a major
permit modification under 1270.41 to
require further action by the permittee.
E. Corrective Measure Study (Sections
2B432O-284.S24)
1. Purpose of Corrective Measure
Study (§ 284.520). Proposed i 264.520
would establish the authority of the
Regional Administrator to require the
permittee to perform a Corrective
Measure Study (CMS). The remedial
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Federal Register / Vol. 55; No. 145 / Friday, July 27. 1990 / Proposed Rules
Investigation should serve to focus the
CMS on units which are sources of
releases and the media pathways
affected by such releases. The CMS is
designed to identify and evaluate
potential remedial alternatives for the
releases that have been identified at the
facility; in this respect it is analogous to
the Feasibility Study (FS) conducted for
CERCLA remedial actions.
2. Trigger for Corrective Measure
Study (§ 264.521)—a. Use of Action
Levels, Action levels are defined in
proposed § 264.521. Under proposed
§ 2644>20{a), the Regional Administrator
may require the permittee to conduct a
Corrective Measure Study whenever
concentrations of hazardous
constituents in an aquifer, surface
water, soils, or air exceed action levels
for any environmental medium.
Action levels are health- and
environmental-based levels determined
by the Agency to be indicators for
protection of human health and the
environment The Agency proposes to
set action levels for hazardous
constituents, a subset of hazardous
wastes. Many hazardous wastes, such
as some of the wastes listed in 40 CFR
261.32. are not specific constituents at
all. but rather are complex mixtures
comprised of many constituents. EPA
believes that it would not be feasible in
most cases to set action levels for such
wastes. Conversely, other hazardous
wastes are individual constituents that
do not appear on appendix Vm to 40
CFR part 261 or appendix K to 40 CFR
part 284. When such wastes (e.g.,
asbestos) are of concern at a facility, an
action level would be specified for that
waste.
Where appropriate, action levels are
based on promulgated standards (e.g.,
maximum contaminant levels-
established under the Safe Drinking
Wa?n* Act). In other cases, action levels
are •••tab'lished by the Regional
Adit . tstrator on the basis of general
crik '<. (see following discussion).
App -.'.dix A provides examples of
concentrations derived by EPA
according to these criteria for some
appendix Vm and DC constituents.
Tha Agency Is proposing the use of
action levels because active remediation
may not be necessary at all facilities -
required to perform a remedial- -
investigation under proposed i 284510.
For instance, a remedial investigation
may indicate that a suspected release
identified in the RFA had, in fact, not
occurred, or may indicate that levels of
contamination from a past release are
unlikely to present a threat to human
health and the environment Therefore,
the Agency believes it should establish
a trigger that will indicate the need for a
CMS, and below which a CMS would
not ordinarily be required.
Action levels will, whenever possible,
be incorporated in the permit The
Agency believes it is advantageous to
identify action levels in the permit so
that the public and the permittee will
know in advance what levels will trigger
the requirement to conduct a CMS. This
approach also minimizes the need for
permit modifications later in the
process, which could delay ultimate
cleanup.
In some cases there may be sufficient
information on the nature and levels of
contamination at the time of permit
issuance to establish the need for a
Corrective Measure Study. In such
cases, it might not be necessary to
include action levels in the permit
However, it is more often likely that
remedial investigations conducted after
permit issuance will yield the data
needed to determine if action levels are
exceeded; hence the need to generally
include the action levels in the original
permit
A determination that action levels
have been exceeded may occur at any
point during the RFI, or may not become
evident until the RFI is completed. In
either case, when such data .become
available, the permit schedule of
compliance wUl provide for notification
of the permittee that the action levels
specified in the schedule have been
exceeded. The notification, as provided
in proposed S 264.520(d) would specify
which hazardous constituents exceed .
action levels, for which media, and
when initiation of a CMS is required.
It is the Agency's intention that the
action level "trigger" approach as
outlined in this proposal serves to
identify early in the process the need for
initiating a Corrective Measure Study;
such studies should typically not be
delayed pending completion of all
remedial investigations. In many-
instances it will be appropriate to
- conduct simultaneously the RFI and
CMS for the faculty.
Action levels should be distinguished
from cleanup standards, which are
. determined later in the corrective action
process. Contamination exceeding
action levels indicates a potential threat
. to human health or the environment
which may require further study. Action
levels also inform the permittee of the
levels below which the Agency i»
unlikely to require active remediation of
releases, and provide a point of
reference for suggesting and supporting
alternative remedial levels.
Section 264.520 allows, but does not
require, the Regional Administrator to
require a CMS when contamination •
exceeds action levels. In some cases, the
permittee may rebut the presutnption
that a CMS is required when action
levels are exceeded. For example, the
permittee may establish that the
contamination is not due to releases
from solid waste management units at
the facility. In other instances, the
permittee may demonstrate that a CMS
is not required (or only a limited CMS is
required) if the release is confined to a
Classjn aquifer meeting the criteria of
S 264.525{d)(2)(ii) or to ground water
other than Class ni for which the actual
and reasonably expected uses do not
merit further action. In addition, a CMS
might not be required if the CMS is
triggered by a carcinogenic hazardous
constituent that slightly exceeds the
action level but is within the lxlO~4 to
lX10~4risk range that is protective for
the site (see preamble section VI.F.S.b
for discussion of risk range). This
"rebuttal" of the need for a CMS would
generally be made through the process
for determination of no further action,
proposed in S 264.514.
Conversely, the fact that no
contaminants are found to exceed action
levels does not preclude the Regional
Administrator from requiring a CMS.
Section 264.520(b) would allow the
Regional Administrator to require a
CMS if concentrations below action
levels may pose a threat to human
health or the environment due to site-
specific exposure conditions. (See
discussion in section VI.E.2.h of today's
preamble, below.)
In some situations it may not be
obvious from the available data whether
concentrations in media truly exceed
action levels. This situation would arise
when some data on a hazardous
constituent indicate that it is present at
a concentration less than the action
level, while other data indicate that it is
present at a concentration greater than
the action level. In such situations, the
Regional Administrator may require the
permittee under S 264.511(a)(7) to
provide additional data or statistical
analyses to aid in the determination
under 5 264.520 of whether action levels
are exceeded. For example, a tolerance,
prediction, or confidence interval
procedure may be required, in which the
action level is compared to the upper
limit established from the distribution of
the data for the concentration of the
constituent
The'Agency considered the
alternative of establishing a mandatory
requirement to perform a statistical
analysis as part of the determination
under S 264.520 that action levels have
been exceeded. However, the Agency
believes that it is unnecessary to make
this requirement mandatory, since in
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30815
many cases contamination from
SWMUs will greatly exceed action
levels. The Agency believes that the
diversity of SWMUs and contamination
scenarios calls for some discretion in the
requirement to perform statistical
analyses. For example, in some
situations, contamination from a SWMU
may be known to be extensive in size
and concentration. In such situations,
statistical analyses are not needed to
determine that an action level has been
exceeded. In other situations, a
contaminant release at a SWMU may
not be extensive enough (either in size
or concentration) to clearly indicate
contamination. In these cases, a
statistical test may be required to
determine if a release has actually
occurred in excess of action levels. The
Agency requests comment on its
proposed approach of providing.
discretion to the Regional Administrator
in requiring statistical analyses, and on
the alternative of making such analyses
mandatory hi determining whether
action levels have been exceeded.
The Agency examined but did not
propose two alternatives to requiring the
Corrective Measure Study which did not
involve the use of action levels. Under
one approach, the Agency would have
required the permittee to conduct a
Corrective Measure Study concurrently
with the remedial investigations
conducted pursuant to S 284.510. Under
this option, the Agency would have used
the same trigger for requiring a CMS as
is used to require an RFI—the finding of
an existing or likely release pursuant to
an RFA. This alternative was rejected
because of its potential for requiring
unnecessary studies.
The second alternative considered by
the Agency would have required the
permittee to conduct a Corrective
Measure Study only after completion of
the remedial investigation conducted
pursuant to proposed S 264.510 and a
determination of the need to protect
human health and the environment If
the Agency had adopted this approach,
it would not have required the permittee
to conduct a CMS until all
contamination and contaminant sources
at the facility were fully characterized
and the need for corrective measures at
the facility was established. The Agency
rejected the alternative because of the
delay that would be associated with
conducting these phases of the
investigations sequentially even in cases
where early data indicate that
remediation is highly likely to be
required.
The Agency also examined alternative
approaches for setting action levels. One
alternative would have required a
Corrective Measure Study whenever
background levels of contaminants were
exceeded. Experience .in the subpart F
program has demonstrated that the
determination of background levels can
be a lengthy, controversial process.
Furthermore, background levels will
often be much lower than health-based
levels. Thus, this alternative was
rejected, since it might delay the
initiation of the CMS and ultimate
cleanup, and might often require
Corrective Measure Studies even where
levels were significantly below health
and environmental-based standards.
A second alternative would have
required a CMS whenever detection
limits were exceeded. This alternative
was also rejected, since detection limits
can be difficult to define and do not
directly relate to the goal of corrective
action; that is, protection of human
health and the environment
The Agency also considered but did
not adopt an alternative for requiring
the Corrective Measure Study that
would involve the use of a range of
action levels. Under this approach, the
Agency would select constituent-
specific action levels within the lxlO~*
to !XlO~*risk range based on the
exposure scenarios proposed under
5§ 264.521 (a)(2). (b). {c)(3), and (d),
depending on the likelihood that
exposure would in fact occur. For
example, if the Agency could be
convinced that there is a minimal
opportunity for human exposure through
one medium or several media, an action
level could be established at the 1X 10~*
risk level. This alternative was
considered because the Agency is
concerned about the possibility that
some SWMUs might be triggered into a
CMS at the 1 X10~* level even though
they do not pose a threat to human
health and the environment due to a
lack of current and low probability of
future exposure. Although it is the
Agency's view that the proposed
regulations have enough flexibility to
avoid requiring a Corrective Measure
Study where it is not necessary, the
Agency is requesting comment on the
use of a range of action levels.
The Agency believes the approach
proposed in today's rule provides it with
the flexibility to require the permittee to
investigate corrective measures
sufficiently early (whether
simultaneously with the RFI or
sequentially) in the corrective action
process, while minimizing the potential
for unnecessary investigations.
Experience in the Superfund program
suggests that early consideration of
potential remedies allows focused
investigations and prevents delays
without imposing unnecessary resource
burdens on either the permittee or the
Agency.
b. Criteria for Determining Action
Levels. In several cases, EPA has
promulgated health-based standards
appropriate for action levels for specific
media. Where these standards are
available, EPA intends to use them as
action levels. The most obvious of these
are maximum contaminant levels
(MCLs), which establish drinking water
standards under the Safe Drinking
Water Act (SDWA). EPA will use these
standards to set action levels for ground
water, and, in some cases, for surface
water.
In the overwhelming majority of
cases, however, promulgated standards
will not be available. Nevertheless,
health-based levels that have undergone
extensive scientific review, but which '
have not been formally promulgated, are
available for many chemicals. The
Agency is proposing today in
§ 264.521(a)(2) (iHiv) criteria which
enable the Regional Administrator to
use such non-promulgated health-based
levels to derive action levels.
Concentrations derived from non-
promulgated health-based levels that
meet the following four criteria included
in today's proposal could be used for
action levels. First the concentration
must be derived in a manner consistent
with principles and procedures set forth
in Agency guidelines for assessing the
health risks of environmental pollutants,
which were published in the Federal
Register on September 24,1986 (51FR
33992, 34008, 34014, 34028). Second,
toxicology studies used to derive action
levels must be scientifically valid,
conducted in accordance with the Good
Laboratory Practice Standards (40 CFR
part 792), or equivalent. The Good
Laboratory Practice Standards prescribe
good laboratory practices for conducting
studies related to health effects,
environmental effects, and chemical fate
testing, and are intended to assure
quality data of integrity. The guidelines
are for ensuring scientifically valid
studies, and also may be useful as
guidance. In addition, the Agency
guidelines for assessing the health risks
of environmental pollutants (cited
above) cite several publications which
outline procedures for evaluating studies
for scientific adequacy and statistical
soundness. Third, concentrations used
as action levels must (for carcinogens)
be associated with a 1X10~*
upperbound excess cancer risk for Class
A and B carcinogens, and a 1X10"*
upperbound excess cancer risk for Class
C carcinogens. Finally, for systemic
toxicants (referring to toxic chemicals
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Federal Register / Vol. 55. No. 145 / Friday. July 27, 1990 / Proposed Rules
that cause effects other than cancer or
mutations), the action level must be a
concentration to which the human
population (including sensitive
subgroups) could be exposed cm a daily
basis that is likely to be without
appreciable risk of adverse effects
during a lifetime. These criteria are
similar to those upon which promulgated
health-based standards and criteria are
based. Action levels derived according
to these criteria represent valid,
reasonable estimates of levels in media
at or below which corrective action is
unlikely to be necessary.
As mentioned previously, guidance
levels are available for many chemicals.
Appendix A of this preamble lists •
concentrations for selected hazardous
constituents in water, soil, and air which
the Agency believes meet these four
criteria. EPA established these
concentrations by an assessment
process which evaluated the quality and
welght-of-«vidence of supporting
lexicological, epidemlological, and
clinical studies, and which relied on the
exposure assumptions in appendix D of
this preamble.
The Agency's approach to assessing
the risks associated with systemic
toxidty is different from that for the
risks associated with carcinogenicity.
This Is because different mechanisms of
action are thought to be involved in the
two cases. In the case of carcinogens,
the Agency assumes that a small
number of molecular events can evoke
changes in a single cell that can lead to
uncontrolled cellular proliferation. This
mechanism for carcinogenesis is
referred to as "nonthreshold," since
there is essentially no level of exposure
for such a chemical that does not pose a
small, but finite, possibility of generating
a carcinogenic response. In the case of
systemic toxidty, organic homeostatic,
compensating, and adaptive
mechanisms exist that must be-
overcome before the toxic end point is
manifested. For example, there coujd be
a large number of cells performing the
same or similar function whose
population must be significantly
depleted before the effect is seen.
The threshold concept is important in
the regulatory context The individual
threshold hypothesis holds that a range
of exposures from zero to some finite
value can be tolerated by the organism
with essentially no chance of expression
of the toxic effect Further, it is often
prudent to focus on the most sensitive
members of the population; therefore,
regulatory efforts are generally made to
keep exposures below the population
threshold, which is defined as the
lowest of the thresholds of the
individuals within a population.
Thus, for the chemicals on appendix A
which cause systemic toxic effects, the
Agency has estimated reference doses
(RfDs). The RfO is an estimate of the
daily exposure an individual (including
sensitive individuals) can experience
without appreciable risk of health
effects during a lifetime, and is
consistent with the threshold concept
described above.
For the chemicals on appendix A
which are believed to cause cancer, the
Agency has estimated carcinogenic
slope factors (CSFs). Since the Agency
assumes that no such threshold exists
for carcinogens, the issue to be resolved
in health assessments of carcinogens is
the probability of the occurrence of an
effect. The CSF, or unit cancer risk, is an
estimate of the excess lifetime risk due
to a continuous constant lifetime
exposure from one unit of carcinogenic
concentration (e.g., mg/kg/day by
ingestion, ug/m3 by inhalation).
Chemicals which cause cancer and
mutations also commonly evoke other
toxic effects. Thus, an RfD and CSF may
both be available for a single chemical.
In these cases, the level which is lower
(more protective) should be used as an
action level. Generally, the protective
level for cancer will be lower.
For carcinogens, EPA believes that
action levels corresponding to a 1X10~*
risk level (or iXHT'for Class C
carcinogens) generally are appropriate.
This is at the higher protective end of
the HP4 to 10~* risk range. (See
discussion in section VLF.5 of today's
preamble.) Using a value from the high
end of this range ensures that the
hazardous constituents screened out at
this point are those for which corrective
measures are unlikely to be necessary.
In adopting the IXMT'to lxl
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30817
contamination situations that may
require Corrective Measure Studies,
while triggering such studies only in
situations where actual ground-water
cleanup is a reasonable remedial
approach.
The Agency considered using the term
"uppermost aquifer," but decided that
this would limit its flexibility in
addressing contamination in lower
aquifers that are not hydraulically
connected with the uppermost aquifer.
Such a situation could arise if waste
were leaked from the casing of an
underground injection well. Thus, the
wording of § 264.521(a) will explicitly -
allow the Agency to address any such
unusual instances where solid waste
management units have contaminated
ground water that is not hi an
"uppermost" aquifer as defined in
§ 264.510.
The Agency also considered not using
the term "aquifer" in 5 264.521(a). This
would have required Corrective
Measure Studies for ground water to be
performed even when the ground water
is of negligible use as a resource, such
as a small pocket of soil which becomes
saturated only episodically. Although
contamination in any saturated zone
that could act as a pathway transporting
contaminants to aquifers could be a
concern, the Agency would intend to
address those situations in the context
of setting action levels for soils (see
§ 204.521(d)), including "deep soils" that
could act as a ground-water
contaminant pathway.
EPA has, under a number of statutes,
promulgated standards and criteria
relevant to protection of environmental
media. Among the most important of
these are maximum contaminant levels
(MCLs) promulgated under the Safe
Drinking Water Act (42 U.S.C. section
300(f) etseq.}, which have been
incorporated into this rule as action
levels for ground water under
§ 264.521(a)(l). MCLs promulgated under
the Safe Drinking Water Act are
maximum concentrations of
contaminants allowed in water used for
drinking (see appendix B). The use of
MCLs for action levels is consistent with
current RCRA ground-water protection
standards (40 CFR part 284, subpart F),
which set the interim primary drinking
water standards (MCLs) for 14
constituents (which existed at the time
subpart F regulations were promulgated)
as ground-water protection standards in
the absence of another Agency decision.
Currently there are 34 MCLs
promulgated, of which six are
microbiological contaminants, three are
radionuclides, and 25 are organic and
inorganic contaminants; the MCLs for
the chemical contaminants are listed hi
appendix B.
Where MCLs are available for a
particular constituent but the ground
water at a site is not currently used for a
drinking water supply, and is unsuitable
for use as a drinking water supply in the
future, MCLs will still ordinarily be used
as action levels {i.e., to require a CMS);
however, cleanup to the MCL might not
be required (see section VT.F.5 for
discussion of media cleanup standards).
The Agency is persuaded that, in cases
where ground water is contaminated at
levels above action levels, further study
is necessary (e.g., to make sure that
sources of releases are controlled).
Where MCLs have not been
promulgated for hazardous constituents,
EPA would develop levels according to
the criteria specified in proposed
§ 264.521(a)(2)(iHiv) and described in
detail above hi this preamble (see
section VI.E.2.b). In this analysis, the
Agency would use the standard
exposure assumptions of two liters a
day for a 70 kilogram adult over a 70
year lifetime (see appendix D),
assumptions that are used extensively
throughout EPA and other agencies.
Appendix A lists levels that were
developed for water by the Agency
according to these principles and which
the Agency believes would be
appropriate for ground-water action
levels. In addition, proposed (but not yet
promulgated) MCLs would also typically
meet the criteria proposed in
§ 264.521(a)(2)(iHiv) and could serve as
ground-water action levels.
Where data are insufficient to develop
action levels according to these criteria,
the Agency would establish levels
according to the procedures in proposed
S 2B4.521(e), which are described in
mere detail in section VLE.2.g of this
preamble. The Agency solicits comment
on the proposed approach and
alternative approaches to establishing
action levels for ground water.
. d. Action Levels for Air. Proposed
S 284.521(b) identifies criteria for
establishing action levels for air,
assuming exposure through inhalation of
air'Contaminated with the hazardous
constituent. Appendix A lists possible
action levels that meet these criteria.
The Agency used the following
procedures to develop concentrations hi
air listed in appendix A:
Note: Appendix A action levels are
currently taken exclusively from the IRIS
data base, and developed using only
procedures 1 and 4; this appendix will be
modified to include other health-based
numbers not currently on IRIS, derived from
procedure* 2 and 3. This is consilient with
current Superfund practices and policy.
1. Where an Agency-verified health-
based intake level for inhalation (e.g.t
RfD) was available, that level was used
to calculate the concentration in air.
2. Where an Agency-verified level (as
in (1), above) was not available, a level
based on a valid inhalation study was
used, even if it had not yet gone through
the formal intra-Agency verification
process.
3. If a level based on an inhalation
study (as hi (1) or (2) above) was not
available, a health-based intake level
(e.g., RfD) based on an oral study was
used, with a conversion factor of one for
route-to-route extrapolation to calculate
the concentration hi air—except where
such an extrapolation factor was
determined to be inappropriate. For
example, it is not appropriate where a
constituent that is a systemic toxicant
through the oral route of exposure
causes local adverse effects on the lung -
through the inhalation route. A
constituent might also be determined to
be an inappropriate candidate for route-
to-route extrapolation due to significant
differences hi metabolism or absorption.
Where the extrapolation from oral route
to inhalation route of exposure is
determined to be inappropriate, and a
level based on an inhalation study (as hi
(1) or (2) above) is not available,
appendix A does not list a concentration
hi air (see section VI.E.2.g for a
discussion of how to set action levels
where health- and environment-based
levels are not available). While the
concentrations hi air listed in appendix
A (and C) are being evaluated further by
the Agency with regard to the
appropriateness of this route-to-route
extrapolation, they will be used only as
an interim measure. The Agency will
adopt RfDs based on actual inhalation
toxicity data as soon as the data
become available.
4. The standard exposure assumption
for air typically used in Agency risk
assessments (i.e., 20m'/day for a 70
kilogram adult for a 70 year lifetime)
was used (see appendix D).
Under proposed S 264.521(a)(2), action
levels would be measured or estimated
at the facility boundary, or another
location closer to the unit if necessary to
protect human health and the
environment
The Agency has chosen the facility
boundary as the location where air
action levels are proposed to be
typically measured, for several reasons.
Measuring at the facility boundary will
have the effect of requiring Corrective
Measure Studies to be conducted
whenever potentially health-threatening
levels of airborne constituents that
originate from waste management units
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Register / Vol. 55. No. 145 / Friday. July 27. 1990jjropo8edRuleg
•^
are being ideated to area* outside the
facility property. The Agency recognize*
that In some case* this could require
owner/opermtort to study potential
remedial solutions where actual
remediation of air releases wffl not be
required—under today's proposal the
requirement actually to remediate air
releases is tied to actual exposure: *&,
exceedence of health-baaed levels at the
most exposed individual (see the
discussion of air cleanup standards in
section VLF.7.a of today1* preamble).
However, under this scenario, if
exposure condition* were to
subsequently change and trigger the
need for corrective action for air
emissions, the owner/operator would be
able to more expeditiously implement
the remedy that had already been
developed in the Corrective Measure
Study. Tha Agency believes that
measuring action levels at the facility
boundary, while environmentally
conservative, will not reprfff^* *n
undue burden on owner/operators.
Under today's proposal, the Regional
Administrator could, when necessary,
require action levels to be measured at
one or more locations within the facihty.
An example would be if individuals
were actually residing on the facihty
property, as might be the case at a
Federal facility (e#, a military base).
On-site worker exposure would not
generally be • determining factor m
establishing locations for action levels,
since such exposure is regulated by fee
Occupational Safety and Health
Administration (see further discussion
in section VLR7.a{2) of today's
preamble).
The Agency considered, but did not
propose, other locations for establishing
action levels for air releases. These
alternative locations would have
involved determining action levels at (1)
the unit boundary, or (2) the most
exposed individual The alternative of
determining action levels at the rant
boundary was rejected as unnecessarily
stringent, since it would likely have fee
effect of very often triggering the need
for a. Corrective Measure Study, where
no actual or potential threat to human
health and the environment existed. The
option of measuring action levels *t the
most exposed individual was not choten
because in some cases a CMS would not
be triggered based on current location*
of receptors, even though future
residential development close to the
facility were planned and could result in
exposure above action levels. The
Agracy specifically rWf**™*?**
on the most appropriate location tor
measuring action levels for the air
mediuD
e. Action Leveln for Surface Water.
Proposed § 264.521(c) identifies action
levels for surface water.
Notwithstanding these action bevels.
some releases from solid waste
management units to surface water may
be subject to the National Pollutant
Discharge Elimination System (NPDES)
pursuant to section 402 of the Clean
Water Act (CWA). The CWA prohibits
the unregulated discharge of any
pollutant to waters of the United States
from any point source. Releases to
surface waters that are nonppint sources
may be subject to the Nonpoint Source
Management Program established under
sections 20B and 319 of the CWA. If the
Agency discovers releases from solid
waste management units which are
point sources, but lack an NPDES
permit, CWA authorities will generally
be used to address the release. It should
be understood that the term surface
water hi this context includes wetlands,
as prescribed under section 404 of the
CWA. Section 404 permits are required
for dredge and/or fill into wetlands.
Proposed § 264£2ttc) specific* mat
State water quality standards
established pursuant to section 303 of
the CWA that are expressed a*
numerical values will be used as action
levels, where they have been
established for the surface water body
in question. However, EPA anticipates
that such numerical standard* may, to
some cases, not have been established
at the time when remedial investigations
are being conducted at RCRA facilities.
In these cases, action level* may be
established as numeric interpretations
of State narrative water quality
standards.
Water quality standards both
establish water quality goals, and serve
as a basis for establishing treatment
controls, based on the use or use* which
the State designate* for the receiving
water (e.&, recreation or public water
supply). The standard* consist of •
designated use or uses, and the water
quality criteria which will protect such
uses. Criteria are expressed as either
numeric constituent concentration levels
or narrative statements that represent a
quality of water that supports a
particular use.
In applying narrative standards to
specific water bodies, some States have
prescribed methods for calculating
numeric values for the water body. Such
methods vary from State to State in their
complexity, me time required to
establish the numeric values, and the
procedures involved. Although deriving
these numeric interpretations from
narrative standards will often be
straightforward, the Agency expect*
that in some situations the derivation of
such value* could be relatively complex
and time-intensive. In such case*, th»
Regional Administrator could determine
that the use of numeric interpretations
of narrative water quality standards
was not appropriate for the purpose of
establishing action levels. EPA
emphasizes that the use of such
narrative standards must not delay the
corrective action process.
Where numeric water quality
standards have not been established by
the State, and where numeric
interpretations of narrative standards
•are either unavailable or inappropriate
(for reasons described above), proposed
5 284J>21(c)(3) provides that maximum
contaminant levels (MCLs) promulgated
under the Safe Drinking Water Act will
be used as action levels, if the surface
water has been designated as a drinking
water source by the State (see
discussion in previous section on the use
of MCLs as action levels in ground
water).
In situations where a numerical water
quality standard, a numeric ,
interpretation of narrative standards, or
an MCL is not available for a particular
hazardous constituent in surface water
designated by the State for drinking.
proposed 1284.524(c)(4) specifies that
the criteria under 5 284.521(a)(2) (iH«0
be used for establishing action levels in
surface water, assuming exposure
through consumption of the water
contaminated with the hazardous
constituent The standard exposure
assumptions of two liters/day for a 70
kg adult over a 70 year lifetime in
appendix D should be used, unless
people also consume aquatic organisms
from the surface water. In these cases,
the Agency suggest* that Federal Water
Quality Criteria be used as action levels,
since they satisfy the criteria for action
levels established under i 284£21(a)(2)
(i)-(iv). Federal Water Quality Criteria
are concentrations of contaminants
determined to be protective of human
health and/or aquatic organism*.
Criteria for protection of human health
are based on exposure through drinking
water, a* well a* exposure through
drinking water and ingesting aquatic
organisms. Criteria for protection of
freshwater/estnarine and marine
organisms are also available. EPA ha*
promulgated water quality criteria for
128 pollutants under the Clean Water
Act
In situations where a numerical water
quality standard is not available for a
particular hazardous constituent in
surface water designated by the State
for uses other than drinking, proposed
§ 264.524(c)(5) provides the Regional
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Federal Register / Vol. 55. No. 145 / Friday. July 27. 1990 / Proposed Rules
Administrator with the flexibility to
consider the State-designated use of the
surface water in establishing a
concentration as the action level. For
example, in some surface waters
designated for industrial uses, the
Agency believes that an MCL may be
too sensitive a trigger for a CMS. In
other situations, MCLs may be too
insensitive a trigger for a CMS (for
example, in trout streams). Federal
Water Quality Criteria may provide
useful guidance in setting action levels
under § 264.524(c)(5). .
If Federal Water Quality Criteria are
used as action levels, the purposes for
which such criteria were developed
should be considered in determining
which criteria are appropriate to use.
For example, for a surface water body
used for fishing and drinking, the criteria
for protection of human health based on
drinking water and eating aquatic
organisms would be most appropriate.
For Class A and Class B carcinogens,
the criteria corresponding to a 10"'risk
level should be used, whereas for Class
G carcinogens, the Agency suggests that
the criteria corresponding to 10~5 risk
level be used. (See discussion of
Agency-established classes of
carcinogens and relative risk levels
considered appropriate hi section
V1.E.2.C of this preamble.)
If contaminants attributable to
releases from a SWMU exceed an action
level anywhere in surface water, a
Corrective Measure Study may be
required. Proposed § 264.521{c) does not
specify where in surface waters
concentrations should be measured
against action levels. In determining
appropriate sampling locations, the
Agency will generally attempt to specify
locations in the surface water where the
highest concentrations of hazardous
constituents released from SWMUs are
expected to occur—i.e., at or near the
point or points where releases enter the
surface water. However, in some cases,
establishing the precise point(s) where
releases enter the surface water may be
difficult and time-consuming, such as in
the case of a ground-water plume in a
complex hydrogeologic setting that
flows into a lake. In these cases, the
Agency would not wish to delay the
initiation of a Corrective Measure Study
while the point of release is located, if
concentrations greater than action levels
could already be detected in the surface
water.
EPA specifically requests comment on
today's proposal for establishing action
levels for surface water.
Proposed § 284.520(b), which allows
the Regional Administrator to require a
CMS when necessary to protect human
health and the environment, even when
no action levels have been exceeded,
may be particularly important for
surface water. For example, the
Regional Administrator may determine
that a threat from consumption of
aquatic organisms exists at levels at or
below the MCL, since the MCL does not
incorporate exposure through ingestion
of contaminated organisms.
A Corrective Measure Study may also
be required under § 284.520(b) if the
Regional Administrator determines that
there is a threat to human health or the
environment from contaminated
sediments even though action levels for
surface water have not been exceeded.
The Agency believes it is important to
clarify its authority to address
sediments contaminated by releases
from solid waste management units
under sections 3004 (u) and (v) of
HSVYA, although today's proposal does
not establish action levels specifically
for sediments. The Agency is currently
developing sediment criteria which,
when promulgated, may be used as
guidance hi evaluating contaminated
sediments. However, no health-based or
environmental levels are currently
available which are appropriate as
sediment action levels. Thus, until such
criteria are developed, the need for
Corrective Measure Studies based on
sediment contamination will be
determined on a case-by-case basis. The
Agency requests comment on this
approach to addressing sediments.
Finally, the Regional Administrator
may require a Corrective Measure Study
for surface water under § 264.520(b)
when a threat to aquatic health exists at
levels at or below action levels. Federal
Water Quality Criteria for protection of
aquatic health should be used as
guidance in making this determination.
f. Action Levels for Soil. Proposed
§ 264.521(d) establishes criteria for
establishing action levels for soil,
assuming exposure through consumption
of the soil contaminated with the
hazardous constituent Action levels
would be set on the basis of the
exposure assumptions in appendix D,
which assume a residential use pattern,
with long-term direct contact and soil
ingestion by children. Action levels for
soil would typically be measured on the
surface (generally the upper two feet of
earth). .
The exception to this approach, is
where EPA has already established
standards for the cleanup of spilled
polychlorinated biphenyls (PCBs), which
are regulated under the Toxic
.Substances Control Act (TSCA). The
Agency has determined that the use of
these promulgated standards, as action
levels and cleanup standards for soil, is
relevant to RCRA corrective action. This
policy is also consistent with Superfund
policy. The PCB Spill Policy under TSCA
is discussed more fully hi section VII.B
of this preamble.
Although action levels for soils are
established using direct contact
assumptions most appropriate for
surficial soils, it is intended that these
action levels will often also be used as a
presumption that a CMS may be
necessary for contaminated deep soils
which may pose a threat to ground
water in aquifers. The Agency does not
believe that generic action levels based
on the potential for hazardous
constituents hi soil to contaminate
ground water can be developed at this
time, since the type of soil, distance to
ground water, and other site-specific
factors, as well as the properties of the
hazardous constituent, influence this
potential. A permittee may attempt to
rebut this presumption by demonstrating
that there is no threat to human health
and the environment from such deep soil
contamination, either through direct
contact or migration to aquifers or
surface water. Alternatively,.
| 264.520(b) may be used to require a
CMS hi situations where deep soils are
contaminated below action levels, but
pose a threat to ground water in
aquifers.
Although estimates of soil intake are
not as frequently used by the Agency as
are estimates of air or water intake,
appendix D provides recommended
exposure assumptions for non-
carcinogenic and carcinogenic soil
contaminants given an unrestricted use
scenario. A soil ingestion rate of 0.1 g/
day is recommended for carcinogens,
and a rate of 0.2 g/day, based on an
average child's body weight of 18 kg, is
recommended for non-carcinogens.
In the case of non-carcinogenic
contaminants, the oral RfD would be
used to calculate an action level, or
threshold concentration below which'
adverse effects would not occur,
assuming 0.2 gram per day of soil is
consumed. Sixteen kilograms represents
an average body weight for children
aged one to six. The Agency believes
these exposure assumptions are
reflective of a conservative average
scenario hi which children ages 1-6
years (i.e., the time period during which
children exhibit the greatest tendency
for hand-to-mouth activity) are assumed
to ingest an above-average amount of
soil on a daily basis. The exposure
levels estimated hi this manner are
calculated to keep exposures well below
the population "threshold" for toxic
effects (see earlier preamble discussion).
Since the toxic effect of concern is
assumed to occur once the threshold
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Federal Register / VoL 55, No. 145 / Friday, July 27, 1990 / Proposed Rules
level is exceeded, the amount of soil
ingested on a daily basis becomes of
major importance in determining non-
carcinogenic effects. Therefore, to
account properly for the risk from
elevated exposure to non-carcinogenic
soil contaminants during early
childhood years, it is important that the
exposure not be estimated over a
lifetime; to do BO would "smear" out the
peak exposure occurring during the
above-mentioned time period of five
years and result in the failure to detect
an unacceptable exposure level [i.e., a
level which exceeds the RfDJ.
In the case of carcinogens, the action
level would be derived by assuming
consumption of 0.1 g/day averaged out
over * lifetime, baaed on an adult body
weight of 70 kilograms. Because the
expression of carcinogenic effects is
principally a function of cumulative
dose (/.ft, the time course of exposure is
usually secondary), the Agency believes,
in general, that elevated exposures
during early childhood are relatively
unimportant in determining lifetime
cancer risk. Therefore, total lifetime
(cumulative} soil ingestion can be
averaged to derive a per day value.
These exposure assumptions do,
however, reflect • reasonable worst-
case scenario—0.1 g/day is an upper-
range estimate of soil ingestion for older
children and adults.
The above recommendations are
based on the conservative assumptions
that 100 percent of the ingested non-
carcinogenic and carcinogenic soil
contaminants are absorbed across the
gastrointestinal tract and that ingestion
occurs 385 days/year, regardless of
climatic conditions or age. The Agency
solicits comment on the above
assumptions for soil exposure for
establishing action levels.
.The Agency considered the use of
other generic exposure assumptions for
establishing action levels for soil based
on direct contact (e.g, exposure through
dermal contact, exposure through
ingestion under a non-residential
scenario), but rejected these alternatives
for several reasons. First, establishing
action levels based on generic
assumptions for dermal exposure or
exposure via ingestion of soil under •
non-residential scenario would be a far
less sensitive trigger, and could in effect
cause a "false negative" in situations
where the Agency believes corrective
action would be necessary. Second, the •
data base for developing action levels
based on dermal exposure or exposure
via ingestion of soil under a non-
residential exposure scenario is limited.
In addition to considering generic
exposure assumptions, the Agency
considered the nio of site-specific, direct
contact exposure factors for deriving
soil action levels. However, the Agency
believes that assessing site-specific
exposure in setting action levels would
be a resource-intensive process, and
would run counter to the objective of
using action levels as a simple screening
mechanism. The Agency recognizes that
the proposed approach is conservative.
Nevertheless, the Agency believes that
these levels are appropriate as action
levels (as opposed to cleanup targets)—
that is, they can reasonably serve as
rebuttable presumptions that further
study, including analysis of possible
remedies, is necessary.
Soil cleanup levels are discussed in
more detail in section VLF.5 of this
preamble. However, it should be
recognized that facilities with soft
contamination above an action level—
particularly where the levels would pose
no threat under current conditions of
exposure—would have a wide range of
remedial options open to them, {T"*-h!^iiflg
"conditional" remedies (for which the
permit would specify appropriate
exposure controls), or the covering of
the contaminated soil with a soil cap. In
this case, a Corrective Measure Study
might simply be a proposal to clean up
to protective levels, assuming industrial
land use, and to ensure restricted access
for the hie of the permit. This raises the
issue of "conditional'* remedies, which
is discussed in more detail in section
VI.F.8 of this preamble.
g. Action Levels Where Health- and
Environmental-Based Levels Are Not
Available. If. for any medium. Agency-
promulgated standards or criteria, or
other health-baaed levels meeting the
proposed criteria are not available oc
cannot be developed for use as action
levels, S 284£21(e) allows die Regional
Administrator to set an action level for
any constituent on the basis of available
data and reasonable worst-case
assumptions. In most cases, partial data
or data on structural analogs will allow
the Regional Administrator to estimate
whether the detected level of a
contaminant is likely to r-y"*** a
problem. In other cases, other
contaminants will be present at high
levels (triggering a CMS in any case).
and it will be clear that the constituent
is not a driving factor in determining the
risk at the site, even under worst-case
assumptions concerning its toxicity. hi
such cases it may not be necessary to
specify an action level for the
constituent. Finally, under proposed
S 264.521(e)(2). the Regional
Administrator would have the authority
to set the action level at background for
a hazardous constituent for which data
were inadequate to set a health- or
environment-based action leveL This
option, however, is provided primarily
as a fall-back position. The Agency
believes that it will very rarely be
necessary to set action levels at
background.
As indicated earlier, appendix A lists
possible action levels for a range of
hazardous constituents based on the
criteria proposed in 8 264.5Zl(a)(2).
EPA's Office of Solid Waste (OSW) is
developing, for the purpose of guidance,
health-based numbers on additional
constituents. These levels would also
satisfy the criteria of proposed
S 264.521(a)(2). As these additional
health-based levels are developed, they
will be entered into tha Integrated Risk
Information System (IRIS). For
information on these guidance numbers,
the OSW Technical Assessment
Branch/Health Assessment Section
should be consulted at (202) 382-4761.
h. Authority to Require a Corrective
Measure Study Where Action Level
Have Not Been Exceeded. The Agency
believes it is important to provide the
Regional Administrator authority to
require a CMS under § 264.520(b) even
when no constituents exceed action
levels. For example, a CMS could be
required if there are threats to certain
sensitive environmental receptors at a
particular facility with contamination at
or below action levels. Also, a CMS
could be required in situations where
the risk posed by the presence of
multiple contaminants may be high
enough to warrant a Corrective Measure
Study even if no single constituent
exceeds the individual action level for
the constituent Similarly, if individuals
living near the site are receiving
significant exposures from sources other
than SWMUs at the site, the incremental
exposure due to SWMUs at the site may
result in a cumulative risk large enough
to warrant a CMS. hi addition, there
may be situations where "cross-media"
risks could indicate the need for a CMS,
even though action levels hi a particular
medium have not been exceeded. An
example might be where at nearby
residences releases hi both the air and
ground water are present at very low
levels, but the cumulative risks from
both pathways of exposure are
sufficient to be of concern. Although
such situations are expected to be
relatively rare, the Agency will examine
such cross-media risks when site-
specific conditions indicate the potential
for such exposure factors.
A CMS may also be required if
constituents pose a threat through
exposure pathways other than that
assumed in setting action levels. For
example, constituents hi surface water
that do not exceed MCLs may still pose
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I Vol. 55. No. 145 / Friday. lufr 27. «*0 / Propel Rale.
seen
•
a threat to persons who ingest fish
caught from that surface water.
Constituents in ground water that do not
exceed MCLs may still pose a threat
through ponding or basement seepage.
Nevertheless, the Agency believes that
with few exceptions, proposed action
levels will be adequate to identify
potential threats to human health ana
the environment which necessitate a
*\jfC
3 Scope of Corrective Measure Study
f§ 264.522). In the RCRA program,
corrective action requirements will be
implemented at facilities with a wide
range of different types of
environmental problems. Some KUU\
facilities might if evaluated according to
Superfund's Hazard Ranldng System
(HRS1. score high enough to be included
on the National Priority List On the
other hand, most RCRA facilities have
much less extensive environmental
problems, ana are nmni»i»w»* wj ..—-
owner/operators, who may be expected
to operate at the site for an extended
period of time. Recognizing the diversity
of the RCRA facility universe, today s
proposal has been structured to provide
the Agency considerable flexibility in
defining the scope and analytic
approach to developing Corrective
Measure Studies, consistent with the
extent and nature of the environmental
problems at the facility.
EPA anticipates that for most RCRA
facilities, the studies needed for
developing sound, environmentally
protective remedies can be relatively
straightforward, and may not require
extensive evaluation of a number of
remedial alternatives. Such
"streamlined" Corrective Measure
Studies can be tailored to fit the
complexity and scope of the remedial
situation presented by the faculty. For
example, if the environmental problem
at a facility were limited to a small area
of soils with low-level contamination.
the Corrective Measure Study might be
limited to a single treatment approach
that is known to be effective for such
types of contamination. In a different
situation, such as with a large
municipal-type landfill it may be
obvious that the source control element
of the CMS should be focused on
containment options. EPA anticipates
that a streamlined or highly focused
CMS will be appropriate to the
following types of situations:
.\owriilFfaciUties;Facilities where
environmental problems are relatively small.
and where releases present minimal exposure
00• °High quality remedy proposed by the
owner/ operator. Owner/operators may
pro^o* aWmedy which to highly protective
?J!*!Wuvalent to *RCRA "clean closure").
•I. i—i '
and which to consistent with all other
remedial objective* (reliability, etc.).
• Facilities with few remedial options. This
would include situations where there are few
practicable cleanup solutions (a#.. large
municipal landfills), or where anticipated
future uses of the property dictate • high
degree of treatment to achieve very low
levels of residual contamination.
• Facilities with straightforward remedial
solutions. For some contamination problems.
standard engineering solutionscanbe
applied that have proven effective in similar
situations. An example might be cleanup of
soils contaminated with PCBs.
• Phased remedies. At some facilities the
nature of the environmental problem wfll
dictate development of the remedy in phases,
(see the discussion of phased approach under
S 264526(d)). which would focus on one
aspect (a*, ground-water >•»>***») °f me
remedy, or one area of the facility that
deserves immediate measures to control
further environmental degradation or
exposure problems. In these situations, the
Corrective Measure Study would be focused
on that specific element of the overall
remedy, with follow-on studies as
appropriate to deal with the remaining
remedial needs at the facility.
EPA recognizes that, in contrast to the
above situations, some facilities with
very extensive or highly complex
environmental problems will require
Corrective Measure Studies that assess
a number of alternative remedial
technologies or approaches. The
following are examples of situations
which would likery need relatively
extensive studies to be done to support
sound remedy selection decisions:
• "High risk" facuity with complex
remedial solutions. Such facilities might have
lane volume* of bom concentrated wastes
and contaminated soils, for which several
different treatment technologies could be
applied to achieve varying degrees of
effectiveness (/.«, reduction of toxuaty or
volume), in conjunction with different types
of containment systems for residuals.
• Contaminant problems for which several
very different approaches are practicable.
There may be several, quite distinct technical
approaches for remediating a problem at a
facility, each of which offers varying degrees
of long-term reliability, and would be
implemented over different time frames, with
substantially different associated cost
impacts, fa such cases. »medy selection
derisions win necessarily involve a difficult
balancing of competing goals and interests.
Such derisions must be supported with
adequate information.
In addition to the above examples of
situations calling for either a limited, or
relatively complex CMS, other studies
will fall in the middle of that range.
Given this "continuum" of possible
approaches to structuring Corrective
Measure Studies, it is the Agency's
Measure »iuuies.» »•»«• «»•>—'* -
general intention to focus these studies
on plausible remedies, tailoring the
scope and substance of the study to fit
the complexity of the situation.
The general types of analyses and
information requirements that may
potentially be required of the permittee
in conducting a Corrective Measure
Study are outlined in today's proposed
S 264.522(a). Note that this provision
does not prescribe that any specific
types of remedies be analyzed, nor does
it define a decision process by which
remedial alternatives are "screened" or
evaluated. It is intended to provide the
decisionmaker with a range of options
for structuring a study to support the
ultimate remedy selection for the
facility.
- Proposed S 264-522(a)(l) lists items
that the Regional Administrator may
require in a CMS for any remedy(s)
evaluated. In general sufficient
information should be provided for the .
Agency to determine that the remedy
selected can meet the remedy standards
of 5 284.525(a).
Section Z64.522(a)(l} would give the
Regional Administrator authority to
require the permittee to perform an
evaluation of the performance,
reliability, ease of implementation, and
impacts (including safety, cross-media
contaminant transfer, and control of
exposures to residual contamination)
associated with any potential remedy
evaluated. In evaluating the
performance of each remedy, the
Agency would expect the permittee to
evaluate the appropriateness of specific
remedial technologies to the
contamination problem being addressed
and the ability of those technologies to
achieve target cleanup concentrations
(per following discussion on "target
levels").
To evaluate these factors for a
specific remedy, the owner/operator
may be required to develop specific
data. Data may be needed on general
site conditions, waste characteristics,
site geology, soil characteristics, ground-
water characteristics, surface water
characteristics, and climate. The Agency
anticipates that permittees will collect
much of this information during
remedial investigations required under
§ 284.510. In some cases, important
relevant information may be included in
the part B application. To the extent that
potential remedies are identified early in
the remedial investigation process, the
permittee can streamline his or her data
collection efforts to include data needed
for the evaluation of specific remedial
alternatives.
Analysis of a remedy's performance
and reliability should include an
assessment of the effectiveness of a
remedy in controlling the source of
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Federal Register / Vol* 55. No. 145 / Friday. July 27. 1990 f Proposed Rules
release and It»long-tenn reliability.
Where treatment i* planned, an
assessment of treatment capability
should be provided; where waste will be
managed on-slte, the details of the
management (including a description of
the units in which it is treated or-
disposed of) should be supplied.
Potential safety impacts (e&, associated
with excavation, transportation, etc.) of
the remedy should also be considered in
most cases. Further, the Agency may
require information on
Implementability—such as capacity
availability or State or local permitting.
requirements—to determine whether a
remedy is feasible.
The Agency is particularly concerned
about potential cross-media impacts
(intermedia transfer of contaminants) of
remedies, and therefore specifically
identified them as an area that may
require study. In addition, cross-media
impacts will be one of the factors
considered in remedy selection (see
proposed i 284.525). Some remedial
technologies may cause secondary
impacts that must be considered in
selecting remedies. For example, in
some circumstances, air stripping of
volatile organic compounds (VOCs)
from ground water may release these
VOCs to the air unless specific emission
control devices are installed on the air
stripper. The Corrective Measure Study
should also determine whether other
adverse impacts from a potential
remedy will reduce its effectiveness in
achieving the cleanup goal. For example,
removal of contaminated sediments in
large, slow-moving rivers may
resuspend sediments and cause more-
harm than allowing the sediments to
remain in place.
Proposed i 264.522ta){2) would allow
the Regional Administrator to require
that the Corrective Measure Study
assess the extent to which appropriate
source controls could be implemented,
and contaminant concentrations
appropriate to the constituents) could
be reached by the remedy. In some
cases, bench- or pilot-scale studies may
be required to determine the given
treatment technology's performance on •
the particular waste at the facility. Such
studies can often save both time and
money in addressing environmental-
remediation.
It will often be appropriate for the
Regional Administrator to specify, prior
to or during the course of the CMS,
preUminary "target" cleanup levels for
contaminants which the permittee
should use in evaluating the items under
12S4.S22(a) (l) and (2). These target
concentrations would thus serve as
preliminary estimates of the medic
cleanup standards to be established in •
the remedy selection process. Target
levels might be specified to cover a
cleanup range (e.g., 10~*level and a 10~*
level), or a specific level for a
constituent that would be EPA's best
estimate of the ultimate cleanup
standard, based on the information
available at the time.
There will be many situations where
the levels of cleanup that must be
achieved will dictate the kinds of
cleanup technologies considered, and
thus, the target levels specified in the
context of the CMS process will be a
critical element in shaping the study.'
However, there may also be many
situations where it would not be
necessary to specify preUminary target
levels, such as where the remedy
involves only removal of a specified
number of drums, or construction of a • '
tank for dewatering sludges. Other such'
situations might be where cleanup
concentration levels do not greatly
affect the actual design of the remedial
technology (e.g., a ground-water
extraction system), or where the owner/
operator proposes a remedy that will
effectively achieve highly protective
levels of cleanup. In any case, however,
when target levels for a remedy are
specified, the Agency would reserve the
right to set cleanup standards different
from the target levels that were
identified, since those standards may
often be affected by remedy factors that
cannot be fully evaluated until the CMS
has been completed.
Today's proposal would also allow
the Regional Administrator to require an
evaluation of the timing of the potential
remedy fS 264J22(a)(3)). including.
construction time, start-up, and
completion. The timing of a remedy will
be particularly important where
contamination has migrated beyond the
faculty boundary or is nearing potential
receptors. In these cases, a prompt
remedy would be necessary. In other
cases, Hming will be important in
distinguishing among remedies. Some
technologies may require considerably
less construction and start-up- time than,
others, but would require more time to
achieve the cleanup standard. For • .
example, if the permittee has a large
volume of waste which must be -•
incinerated to achieve BDAT under the
land disposal restriction requirements
imposed in HSWA, s/he may need to -
build an incinerator and successfully
complete the requirements for a trial
burn. If, on the other hand, the wastes to
be removed from- a SWMU are not -
wastes subject to the land disposal
restrictions and may be disposed in an'
operating hazardous waste disposal unit
at the site, far less time will be required
both to initiate and complete the
remedy. The Agency, therefore, may
require the permittee to include
information on factors affecting both
remedy initiation and completion.
The Regional Administrator may also
require the permittee to include cost
estimates for alternatives considered
(5 264.522(a)(4)). Cost information may
become a factor in the remedy selection
process when evaluating alternative
remedies which will achieve an
adequate level of protection. This
information will also serve as a first
estimate of the cost estimate required to
determine the level of financial
assurance mat the permittee must
demonstrate when the final remedy is
selected.
Finally, § 264.522(a)(5) would provide
the Regional Administrator authority to
require the permittee to assess
institutional requirements, such as State
or local permit requirements, or other
environmental or public health
requirements, that may be applicable to
the remedy and that may substantially
affect implementation of the remedy.
State and local governments may have
specific requirements related to the
remedial activities that could affect
implementation of the remedies
evaluated in the Corrective Measure
Study.
In addition to the elements listed in
proposed i 2B4.522(a), the Regional
Administrator may include other
requirements in the scope of the CMS as
needed. Such requirements will be
specified in the permit schedule of
compliance.
As indicated above, proposed
8 264.522(b) would allow the Regional
Administrator to specify one or more
potential remedies which must be
evaluated in the CMS. The Agency is
persuaded that this authority is
necessary to ensure that delays in
initiating cleanup will not result from
CMS reports which evaluate only poor
or inappropriate remedial solutions.
Requirements for Corrective Measure
Studies in two particular circumstances
contemplated under today's proposal
. merit special attention. When either a
phased remedy (see § 264.526(d)) or a
conditional remedy (see 9 284.525(f)) is
contemplated for the facility, the scope
and timing of Corrective Measure
. Studies may be adjusted to fit the
particular requirements for such
remedies.
Proposed f 284.526(d) allows the
Regional Administrator to specify (in the
permit modification for remedy
selection) that a remedy be implemented
.in phases. Such an approach is
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Federal Register / Vol. 55. No. 145 / Friday. July 27, 1990 / Proposed Rules
30823
anticipated where separable activities
are being addressed at the facility and
where, in many cases, imposition of
further remedial requirements may be
dependent on the experience and/or
knowledge gained during preceding
phases. In such a case, the CMS may
also be divided into phases to match the
remedial phases specified in the permit
modification.
Conditional remedies are authorized
under proposed § 264,525(f). Conditional
remedies are not final remedies since
they do not necessarily meet all
standards for remedies included in
§ 264.525{a); decisions must be revisited
before the permit can be terminated. If
the conditional remedy is found to meet
all | 264.525(a) standards, it may be
declared the final remedy when the
decision is revisited. If, however, further
corrective action is required to satisfy
requirements for a final remedy, a
follow-up CMS may be necessary prior
to a final remedy decision.
4. Plans for Corrective Measure Study
(§ 264.523). This section would give the
Regional Administrator authority to
require the submission of a plan for
conducting the Corrective Measure
Study at the time s/he determines that a
CMS is necessary. Specific requirements
for the plan and a schedule for its
submission would be included in the
permit schedule of compliance.
Typically, a plan would include a
description of the-general approach to
investigating and evaluating potential
remedies, a definition of the overall
objectives of the study, a schedule for
the study,, a description of the specific
remedies which will be studied, and a
description of how each potential
remedy will be evaluated. Further, to
guarantee an orderly presentation of
study results, the Regional
Administrator may require the permittee
to include as part of the plan the format
for presenting the results of the CMS.
Discussions between the permittee and
the Regional Administrator before the
plan is drafted will generally be needed
to ensure that appropriate remedial
alternatives are considered, that
appropriate target concentration levels
of contaminants are used, and that the
unnecessary expenditures of time or
other resources for revisions which
otherwise might be required are
avoided.
Upon receipt of the corrective
measures plan, the Regional
Administrator will evaluate its
adequacy. If the plan is deficient
proposed 5 264.523(a) would allow the
Regional Administrator to modify the
plan or require the owner/operator to
make the appropriate modifications. In
some cases die plan will require only
slight modification, and by actually
making those modifications the Regional
Administrator will be able to eliminate
the need for further iterations of the
submission and approval process. In
other cases, where a submitted plan is
deficient even after modifications have
been made by the owner/operator,
modifying the plan will allow the
Regional Administrator to cut short the
iterative process that has not produced
an acceptable document. This provision
of § 264.523(a) is analogous to the
authority provided to the Regional
Administrator for modifying interim
status closure plans (see § 265.112). It is
also similar to the process involved in
obtaining complete permit applications.
Upon approval of the plan by the
Regional Administrator, 5 264.523(b)
would require that the permittee
conduct the CMS according to the
approved plan, including the schedule..
Both the plan and the schedule included
in the plan will become an enforceable
part of the permit schedule of
compliance.
5. Reports of Corrective Measure
Study (§ 264.524). As proposed, 5 284.524
would provide authority for the Regional
Administrator to require progress
reports on the Corrective Measure Study
at intervals appropriate to the site-
specific study requirements. Progress
reports would serve two functions—they
would keep the Regional Administrator
informed of the progress of the study,
and would provide.the basis for a
periodic review to determine whether
midcourse corrections to the study are
needed. For example, if a pilot-scale
study is conducted for a specific
treatment technology and early results
indicate mat the technology does not
consistently achieve the expected
concentration level, it may be
appropriate to eliminate further study of
that particular remedy and to consider
other approaches.
Today's proposal would require, in all
cases, submission of a final report of the
CMS which summarizes the results of
the investigations for any remedy
studied, and any pilot tests conducted.
The report would evaluate each
alternative in terms of its anticipated
performance in achieving the standards
for remedies, which are provided in
today's proposal at 5 264.525(a).
Proposed 5 264.524(c) would give the
Agency the authority, upon review of
the CMS report, to require the permittee
to evaluate one or more additional
remedies or to develop in greater detail
specific elements of one or more
remedies previously studied. This
provision would ensure that appropriate
remedies are evaluated by the permittee
in sufficient detail to allow the Agency
to determine its feasibility and
effectiveness. In a case where the
permittee does not identify an
appropriate remedy during the
Corrective Measure Study, the Agency
may require him or her to evaluate
additional remedies as necessary to
ensure that a suitable remedy, meeting
the standards established under
§ 264.525(a), is developed.
F, Selection of Remedy (Section 264.525)
1. General (§ 264.525). Proposed
§ 264.525 outlines the general
requirements for selection of remedies
for RCRA facilities. As structured, it
establishes four basic standards which
all remedies must meet and specifies
certain decision criteria which will be
considered by EPA in selecting the most
appropriate remedy which meets those
standards for individual facilities. In
addition, decision factors for setting
schedules for initiating and completing
remedies are outlined, and specific
requirements for establishing media
cleanup standards, including
requirements for achieving compliance
with them, are also contained hi this
section. The section also specifies
requirements for conditional remedies.
2. General Standards for Remedies
(§284.525(a)J. Proposed 8 264.525(a)
specifies that remedies must:
• Be protective of human health and
the environment;
• Attain media cleanup standards as
specified pursuant to 9 264.525 (d) and
(e);
• Control the sources of releases so
as to reduce or eliminate, to the extent
practicable, further releases that may
pose a threat to human health and the
environment* and
• Comply with standards for
management of wastes as specified in
S 5264.550-264.559.
These standards reflect the major
technical components of remedies:
cleanup of releases, source control, and
management of wastes that are
generated by remedial activities. The
first standard—protection of human
health and the environment—is a •"
general mandate derived from the RCRA
statute. This overarching standard
requires remedies to include those
measures mat are needed to be
protective, but are not directly related to
media cleanup, source control, or
management of wastes. An example
would be a requirement to provide
alternative drinking water supplies in
order to prevent exposures to releases
from an aquifer used for drinking water.
Another example would be a
requirement for the construction of
barriers or for other controls to prevent
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Federal Register / V6L 65. No* 145 / Friday. July 27, 1990 / Proposed Rulea
harm arising from direct contact with
waste management units.
Remedies will be required to attain
the media cleanup standards that will
be specified by EPA according to the
requirements outlined in subsection (d)
of this section. The media cleanup
standards for a remedy will often play a
large role in determining the extent of
and technical approaches to the remedy.
In some cases, certain technical aspects
of the remedy, such as the practical .
capabilities of remedial technologies,
may Influence to some degree the media
cleanup standards that are established.
It is because of this interplay between
cleanup standards and other remedy-
goals and limitations that today's rule
establishes media cleanup standards
within the overall remedy selection
structure of i 284.525.
Section 264.525(a}(3) is the source
control standard for remedies. A critical
objective of remedies must be to stop
further environmental degradation by
controlling or eliminating further
releases that may pose a threat to
human health and the environment
Unless source control measures are .
taken, efforts to clean up releases may
be ineffective or, at best, will involve an
essentially perpetual cleanup situation.
EPA is persuaded that effective source
control actions are an important part of
ensuring the long-term effectiveness and
protectiveness of corrective actions at
RCRA facilities. The proposed source
control standard is not intended to
mandate • specific remedy or class of
remedies. EPA encourages the
examination of a wide range of
remedies. This standard should not be
interpreted to preclude the equal
consideration of using other protective
remedies to control the source, such as
partial waste removal, capping, slurry
walls, in-situ treatment/stabilization
and consolidation. Overall, EPA expects
this policy to be no more stringent than
the threshold criteria used for selecting
remedies under the National
Contingency Plan.
Proposed § 2B4.525(a]{3) requires that
further releases from sources of
contamination be controlled to the
"extent practicable." This qualifier is
Intended to account for the technical
limitations that may in some cases be
encountered in achieving effective
source controls. For some very large
landfills, or large areas of widespread
soil contamination, engineering
solutions such as treatment or capping
to prevent further leaching may not be
technically practicable, or completely
effective in eliminating further releases
above health-based contamination
levels. In such cases, source controls
may need to be combined with other
measures, such as plume management or
exposure controls, to ensure an effective
and protective remedy.
The proposed remedy standard of
§ 264.525(a)(4) requires that remedial
activities which involve management of
wastes must comply with the
requirements for solid waste
management, as specified In 55 264.550-
264.559 in today's proposed rule. RCRA
remedies will often involve treatment,
storage or disposal of wastes,
particularly in the context of source
control actions and cleanup of releases.
This standard will assure that
management of wastes during remedial
activities will be conducted in a
protective manner.
3. Remedy Selection Decision Factors
(§2Q4.525(b)). Proposed § 264.525(b)
specifies five general factors which shall
be considered as appropriate by EPA in
selecting a remedy that meets the four
standards for remedies, and that
represent an appropriate combination of
technical measures and management
controls for addressing the '
environmental problems at the facility.
The five general decision factors in
proposed 9 26*.525(b) are:
• Long-term reliability and
effectiveness;
• Reduction of toxicity, mobility or
volume of wastes;
• Short-term effectiveness;
• Implementability; and
• Cost
Any remedy proposal developed
under a Corrective Measure Study and
presented to EPA for final remedy
selection must at a minimum, meet the
four standards of i 284.525(a). The
Agency will then evaluate potential
remedies against the five decision
factors listed in proposed 5 264.525(b).
as appropriate to the specific
circumstances of the facility.
The order of the decision factors
listed in proposed S 2B4.525(b) is not
intended to establish an implicit
ranking, nor does it suggest the relative
importance each factor might have at
any particular facility or across faculties
in general There are circumstances in
which any one of these' factors might
receive particular weight
For example, long term effectiveness
may rule out alternative remedies that
might achieve clean up targets hi the
short term, but at the expense of
creating new or greater future risks that
may necessitate a future corrective
action. Conversely, remedies that
significantly reduce actual or imminent
human exposure in the short term may
be preferred over alternatives that
eliminate long term risks, but at the cost
of lengthening the period during Which
exposure persists. Reductions in
toxicity, mobility, or volume are •
especially valuable in situations;where
the wastes or constituents may degrade
into more hazardous or toxic products,
or fail to naturally attenuate. Finally,
cost may be determinative when more
than one alternative remedy can reach
the established cleanup target In
practice, the relative weights assigned to
these five factors will vary from facility
to facility according the site
characteristics. EPA is soliciting
comment today on situations in which
these tradeoffs may significantly affect
the-remedy in ways which would
suggest that a more prescriptive
weighting of the factors might be
desirable.
The following is a general explanation
of the five decision factors, and how
they may generally be used in remedy
decisions.
The Agency intends to place special
emphasis in selecting remedies on the
ability of any remedial approach to
provide adequate protection of human
health and the environment over the
long term. Thus, source control
technologies that involve treatment of
wastes, or that otherwise do not rely on
containment structures or systems to
ensure against future releases, will be
strongly preferred to those that offer
more temporary, or less reliable,
controls. Whenever practicable, RCRA
corrective action remedies must be able
to ensure with a high level of confidence
that environmental damage from the
sources of contamination at the facility
will not occur in the future. EPA
believes that long-term reliability of
remedies is an essential element in
ensuring that actions under section
3004(u) satisfy the fundamental mandate
of RCRA to protect human health and
the environment
The second decision factor—reduction
of toxicity, mobility or volume —is
directly related to the concept of long-
term reliability of remedies. As a
general goal remedies will be preferred
that employ techniques, such as
treatment technologies, that are capable
of permanently reducing the overall
degree of risk posed by the wastes and
constituents at the facility. Reduction of
toxicity, mobility or volume is thus a
means of achieving the broader
objective of long-term reliability. EPA
recognizes, however, that for some
situations, achieving substantial
. reductions in toxicity, mobility or
volume may not be practicable or even
desirable. Examples might include large,
municipal-type landfills, or wastes such
as unexploded munitions that would be
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Federal Register / VoL 55, No. 145 / Friday. July 27. 1990 / Proposed Rules
30825
extremely dangerous to handle, and for
which the short-term risks of treatment
outweigh potential long-term benefits.
The third decision factor—short term
effectiveness—may be particularly
relevant when remedial activities will
be conducted in densely populated
areas, or where waste characteristics
are such that risks to workers are high,
and special protective measures are
needed. Implementability. the fourth
decision factor, will often be a
determining variable in shaping
remedies. Some technologies will
require State or local permits prior to
construction, which may increase the
time needed to implement the remedy.
One of the decision factors which
raises particular issues in the context of
RCRA remedies is that of cost RCRA's
overriding mandate is protection of
human health and the environment
However, EPA believes that relative
cost is a relevant and appropriate
consideration when selecting among
alternative remedies that achieve the
clean up range.
EPA's experience in Superfund has
.shown that in many cases several
different technical alternatives to
remediation will offer equivalent
protection of human health and the
environment but may vary widely in
cost The Agency believes that it is
appropriate in these situations to allow
cost to be one of the several factors
influencing the decision for selecting
among such alternatives.
The exact emphasis placed on these
decision factors, and how they will be
balanced by EPA in selecting the most
appropriate remedy for a facility, will
necessarily depend on the types of risks
posed by the facility, and the
professional judgment of the
decisionmakers. Comment is specifically
invited on the remedy selection
approach outlined hi today's proposed
rule and preamble.
4. Schedule for Remedy (§ 264.525(cJJ.
Proposed S 264.525(c) would require the
Regional Administrator to specify a
schedule for initiating and completing
remedial activities as a part of the
selection of remedy process. Some of the
factors that will be considered when
setting the schedule are enumerated in
proposed S 264.525(c) (IMS). These
factors include:
• Extent and nature of contamination
at the facility;
• Practical capabilities of remedial
technologies as assessed against
cleanup standards and other remedial
objectives;
• Availability of treatment or disposal
capacity for wastes to be managed as
part of the remedy;
• Desirability of utilizing emerging
technologies not yet widely available
which may offer significant advantages
over currently available technologies;
and
• Potential risks to human health and
the environment from exposure to
contamination prior to remedy
completion.
Proposed § 264.525(c)(6) would allow
the Regional Administrator flexibility to
consider other relevant factors in setting
a schedule for remedy initiation and
completion. Such factors could relate to
the remedial technology to be employed
or the characteristics of the particular
waste or facility being addressed.
The timing of remedy implementation
and completion will be determined after
these and other factors are considered
by the Regional Administrator, and a
schedule of compliance will be included
in the modified permit The Agency
wishes to emphasize, however, that
expeditious initiation of remedies and
rapid restoration of contaminated media
is a high priority and a major goal of the
RCRA corrective action program. The
schedule included in the permit will be
an enforceable permit condition, and the
owner/operator will be obligated to
seek any change in the schedule for
remedy implementation and completion
prior to milestones established. This
approach is consistent with the
Agency's application of schedules of
compliance to other aspects of the
corrective action program proposed
today.
EPA expects that many different
specific factors will influence the timing
of remedies. For example, the level of
technical expertise required and
available to implement a particular
remedial technology could be an
important factor, or the amount and
complexity of construction which must
precede actual cleanup, or the amount of
time which would routinely be needed
to achieve the media cleanup standards
set hi remedy selection, given a
specified technology. All major
variables which will affect remedy
timing are expected to be assessed
routinely hi the CMS, and will be
considered by EPA hi setting aggressive
yet realistic schedules for remedial
activities.
While the Agency's strong preference
is for rapid and active restoration of
contaminated media, it is recognized
that there may be limited cases where a
less aggressive schedule may be
appropriate. For example, in situations
where ground-water cleanup standards
can be achieved through natural
attenuation within a reasonable
timeframe, and where the likelihood of
exposure and potential risks to human
health and the environment from
exposure to contaminated ground water
prior to the attainment of cleanup
standards is minimal, a remedy schedule
based on natural attenuation could be
determined to be the most appropriate
solution for a site. Thus, such factors as
location, proximity to population, and
likelihood for exposure may allow more
extended timeframes for remediating
ground waters.
Management strategies adopted in the
remedy selection decision also may
affect the timing of remedies. For
example, proposed § 264.526(d)
(discussed later in this preamble) would
allow the Regional Administrator to
require implementation of remedies in
discrete phases or incremental
segments. Such a phased approach often
will affect overall timing of the final
cleanup for the facility. As one or more
phases of the required remedy are
completed, the Regional Administrator
may choose to review the results
achieved by that phase prior to requiring
subsequent stages. For example, if
results of an initial treatment process foi
wastes in a SWMU are successful, the
next phase of the remedy might apply
that treatment technology to the
remainder of the wastes at the facility.
Similarly, timing of remedies often may
be influenced by the need to address the
most important environmental problems
first This might be the case where
ground-water contamination has
migrated beyond the facility boundary;
the initial remedial step would be to
require installation of a pump and treat
system to stop further migration. [This
could also be done as an interim
measure prior to final remedy selection;
see § 264.540.) Subsequent actions to
perform source control, or other
remedial action might then be phased in
as dictated by their environmental
priority, practicability, or other factors.
. In addition to these lands of
considerations, adequate time must be
allowed hi the schedule of the remedy
for the owner/operator to
decontaminate and remove, close, or
dispose of units, equipment devices, or
structures used to implement the
remedy. The time needed to perform
specific activities associated with this
requirement necessarily will be
evaluated on a site-specific basis.
5. Media Cleanup Standards
(§ 264.525fd)}— a. General. Section
264.525(d)(l)(iHiv) outlines the
Agency's proposed approach for
establishing media cleanup standards
(MCS] through the remedy selection
process.
Media cleanup standards represent
constituent concentrations in ground
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Federal Register / VoL 55, No, 145 / Friday, Jnly 27. 1990 / Proposed Rales
water, surface waten soils, and air mat
BV« to comply wnh
section of die pnu
nhb. Section
standards for remedies under
} 2&t525(aX2). Media deannp standards
an established at concentration* mat
ensure protection of human health and
the environment, and are set for each
medium during the remedy selection
process.
The Agency is proposing to set media
cleanup standards within the overall
context of the remedy selection process.
As part of the Corrective Measure Study
development process, the Agency wiU
typically provide the owner/operator
with target deannp levels for significant
hazardous constituents hi each mediiua
of concern when he/she is required to
perform a CMS. For carcinogens, these •
targets will be established within the
protective risk range of lX10~*to
1X1CT *, based on site-specific factors,
unless another level is deemed
necessary to protect environmental
receptors. EPA may .start the analyses
by establishing target deannp levels at
the action, level, understanding mat
action, level* are set under conservative
assumptions and that the deamm levels
tlPHlfllfl t . -.^J»^— ^k*«w« **•»• Kaw 1 — --
may be modified ax appropriate. The
remedies analyzed by the owner/
operator would generally be designed to
meet these targets. After reviewing the
permittee's Corrective Measure Study
(CMS) nsing the remedy arlfcfinn
factors given hi 1 2BC525{b). the Agency
will select a remedy and set media
cleanup standard* that mast be
achieved.
Hie Regional Administrator wfll
specify media deannp standards that
the remedy must achieve, as necessary
to protect human health and the
environment The Regional
Administrator may set a media deannp
standard for each constituent for which
an action level has been exceeded. a»
well as other hazardoos constituent*
which the Regional Administrator.
determines to poee a threat to human
health and the environment
264£25(dXl} describes the specific
approach the Agency proposes to follow
hi setting these levels.
b. Protectiveness. A primary goal of
corrective action is to achieve deannp
consistent with existing media-specific
cleanup standards, or, when such
Btandards do not exist, to achieve
protection against risks to human health
•neb that the excess lifetime risk from
exposure to a carcinogenic hazardous
constituent in soil, air, ground water or
surface water does not exceed KT*. A
variety of practical constraints, as
described later, can
fJ^-fBJUm ^la*' U£U HJJ wis.l.iUS»iMTT ar-i S.**^y
constituents considered under
§ 2S1520(b». Alternatively, the Regional
Administrator may specify aedia
cleanup standards for • subset of
hazardous constituents present at the
site which are the most toxic. mobile,
persistent and «Mffl«tlt to leasKlate,
considering the concentrations at winch
they are present at the sits. Tins
approach «aay be most appropriate
where there are large numbers of
hazardous constituents present hi a
m edfann. The Regional AdsamWrator
ii 1.I.-.-1... In tibm UJtllJuWl * ""
jnay ufixerjnmv ™* UBB JECIUBU^ •
UGaUXK^BM §•••»,, 1PWB* f*WWW«MM .••!•
consistent achievement of that goal.
However, the risks to an individual from
exposure to a hazardous constituent in,
contaminated media should not exceed
approximately 10~4.
In the corrective action program,
remediation decisions must be made at
hundreds of diverse sites across the
country. Therefore, as a practical
matter, the human health goal wffl
typically be established by means of •
two-step approach. First. EPA intends to
use a lifetime excess cancer risk of VT*
as a point of departure for establishing
remediation goals for the risks from
hazardous constituents at specific sites.
This starting point is generally
consistent with historical Agency
practice. While H expresses EPA's
preference, it is not a strict presumption
that the final cleanup will attain that
risk leveL
The second step involves.
consideration of a variety of site-specific
or remedy specific factors. Such factors
will enter into the determination of
where within the risk range of 10~*to
HP* the media cleanup standard for a.
given hazardous constituent will be
since the risk range covers two orders of
magnftoda By using MT*BS the point of
departure, EPA intends mat mere be a
preference for s«*lH"B remediation goals
at the mare protective end of the range,
other things being equal. EPA does not
believe that this preference will be so
strong as to preclude appropriate she-
specific actors.
Several examples flhistiate how under
today's proposal EPA might adjust
cleanup standards fat fight of potential
uses. First, ground water that is not a
potential source of drinking water would
not require «T«M»«tiati«»i to a HT* to 1
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Federal Register / Vol. 55, No. 145 / Friday, July 27, 1990 / Proposed Rules
30827
cleanup standards for carcinogens
within the risk range are intended to be
included broadly within these four
general considerations.
(1) Multiple Contaminants. The first
consideration under
§ 264.525(d)(l)(iii)(A) is multiple
contaminants in the medium. In order to-
ensure that individuals exposed to a
medium (e.g., via drinking ground water)
will be protected it may be necessary to
consider the risks posed by other
constituents in that medium before a
media cleanup standard for a single
constituent can be established. In
considering the risks posed by multiple
contaminants, the Agency will follow
the procedures and principles
established in its "Guidelines for the
Health Risk Assessment of Chemical
Mixtures" (51FR 34014). The cumulative
risk posed by multiple contaminants
should not exceed a 1X10~* cancer risk.
All other factors being the same, the
media cleanup standard for a
constituent present in a medium that is
contaminated with many other
constituents posing significant risks may
be established at a lower concentration
than if that constituent were the sole
contaminant in'the medium.
(2) Environmental Receptors.
Remedies must be protective for the
environment as well as human health.
Section 264.525(d)(l)(iii)(B) allows the
Regional Administrator to consider
actual or potential exposure threats to
sensitive environmental receptors in
establishing media cleanup standards.
Standards, criteria, and other health-
based levels are often based on
protection of human health, since more
information is usually available on
effects of contaminants on humans (or
laboratory animals) than on
environmental receptors. Levels set for
protection of human health will
frequently also be protective of the
environment. However, there may be
instances where adverse environmental
effects may occur at or below levels that
are protective of human-health.
Sensitive ecosystems {e.g., wetlands) or
threatened or endangered species or
habitats that may be affected by
releases of hazardous waste or
constituents should be considered in
establishing media cleanup standards.
The Agency plans to develop guidance
on evaluating ecological impacts. Until
more substantial guidance is developed,
the Agency intends to determine on a
case-by-case basis when standards must
be established at lower concentrations
to protect sensitive ecosystems or
environmental receptors. For releases to
surface water, Federal Water Quality
Criteria may be used as guidance in
making this determination.
(3) Other Exposures. Generally, the
Agency will only consider the
contamination contributed by the
releases subject to corrective action in
setting protective cleanup levels. In
unusual situations, however, it may be
necessary to consider the presence of
other exposures or potential exposures
at the site (§ 264.525(d)(l)(iii)[C)). For
example, if residents living in close
proximity to a facility receive unusually
high exposures to lead due to the
presence of a lead smelter in their town,
it may be necessary to set lower cleanup
levels for lead in ground water from a
SWMU than would otherwise be
necessary. Remedies whose cumulative
exposures (Le., mixtures of chemicals, or
multiple pathways of exposure) fall
within the risk range for carcinogens
(!X10~*to 1X10~1, or meet acceptable
levels for non-carcinogens, are
considered protective of human health.
Chronic exposure to multiple SWMU-
contaminated media, although not likely
at most sites, may be considered under
proposed 5 284.525(d)(l)(iii)(C) in
establishing media cleanup standards.
An example might be where releases
from solid waste management units are
present in both ground water and soils
(from wind blown particulates) at
nearby residences. In this case, it might
be appropriate to set cleanup standards
for either or both releases at more
conservative levels, to account for such
cumulative risk concerns. The Agency
will examine such cross-media effects,
when appropriate, on a case-by-case
basis.
(4) Remedy-Specific Factors. Section
264.525(d)(l)(iii)(D) allows the Regional
Administrator to consider the reliability,
effectiveness, practicability, and other
relevant factors of the remedy hi
establishing media cleanup standards.
These factors are related to the remedy
selection decision factors specified in
S 264.525(b>. An example of how these
factors may be considered by the
Agency in establishing media cleanup
standards under § 264.525(d) is the
following. Suppose that one remedial
alternative can theoretically treat
constituents in soil to concentrations
posing a ix 10"'risk level, but relies on
a technology that has not been
successfully demonstrated under
conditions analogous to those at the site
in question, or may be unreliable for
other reasons. In this situation,
consideration of the long-term reliability
and effectiveness of the remedy may
result in the selection of another
technology that can achieve a 1X 10~*
risk level, but has been demonstrated to
be more reliable.
A variety of exposure-related factors
may be considered in establishing media
cleanup standards. For example, the '
potential and pathways for exposure to
soils may vary greatly across sites.
Media cleanup standards will generally
be established for soils to protect
individuals from health threats resulting
from direct contact to soils. In some
cases, however, individual health may
be threatened due to the absorption of
contaminants in soils by plants and in
turn by grazing animals used for human.
consumption. In these cases, cleanup
standards might be set on the basis of
protecting health from this exposure
pathway.
In establishing media cleanup
standards for soil based on exposure via
direct contact, the Agency may use the
exposure assumptions listed in -
Appendix D. These exposure
assumptions are based on a daily intake
of soil through mgestion, of particular
concern for young children (see
preamble section VI.E.2.f fora detailed
discussion of soil exposure
assumptions). However, the Agency
recognizes that these exposure
assumptions would be appropriate only
where soil mgestion is plausible. The
Agency is considering using different
exposure assumptions where different
exposure scenarios are likely based on
current and projected future land use at/
near the site. For example, for sites
located in industrial areas that are likely
to remain industrial hi the foreseeable
future, exposure assumptions more
appropriate to industrial land use might
be used. Thus, the exposure
assumptions proposed in Appendix D
would apply to sites near areas that are
now residential or are reasonably
projected to become residential.
However, the Agency recognizes that
considerable uncertainty is involved in
forecasting future land use. The Agency
requests comment on the general
concept of using current and projected
land use to develop likely exposure
scenarios for different sites hi
developing media cleanup standards,
and on specific exposure assumptions
which are reasonable for these different
exposure scenarios.
It should be understood that the
Agency does not intend typically to
establish cleanup standards per se (i.e.,
according to 5 264.525(d)(l)) for "deep"
soils that do not pose a direct contact
exposure threat Such contaminated
soils can, however, often be a transfer
source of contaminants to other media,
such as through leaching of wastes into
ground water or surface water. In such
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30828
Federal Register / Vol. 55, No. 145 / Friday. )a*y 27, 1900 / Proposed Rule*
cue* the contaminated soils would be
dealt with as a source,, rather than a* a
release; that is, the remedy would
specify containment! removal or
treatment measure* for the soils in the
tame manner a* for other sources of
releases (e.g., landfills]. Such measures
would be required as necessary to
ensure that media cleanup standards for
the affected media are not exceeded.
There are several means of
Investigating the mobility of
contaminants fn soil, including a
descriptive approach (i.e. consideration
of constituent and soil properties), and/
or the nse of mathematical models or
leaching tests (for mobility to ground
water). The Agency is further evaluating
the use- of different leach tests, and
requests comments on these and other
ways of estimating media transfer of soil
contaminants,
The Agency recognizes that there are
also technical limitations which must be
considered, in addition to scientific
infbraation about the hazard* to human
health and the environment, in
establishing media cleanup standard*.
For example, media cleanup standards
would not be cat lower than detectable
lave!*. Consideration of reliability,
effectiveness, practicability, and other
factor* will generally be considered on a
case-by-case bad*.
c, Cleanup Level* and Other Source*
of Contamiootfojj. In •"•"* case*, sond
waste management units will be located
in area* contaminated from other
sources. For example, a solid wa*te
management unit may lie over an
aquifer already contaminated from, off-
site source* or from other activities at
the facility. Similarly, an area of
contaminated soil resulting from waate
management may lie in a broader area
of high naturally occurring
contamination. In *ach cases, section
3004(u) give* EPA authority only to
require cleanup of contaminant*
released from on-*ite *olid wa*ta
management units. Tbi* authority doe*
not extend to cleanup of release* from
production areas (unleu tba release*
are "routine- and systematic*1) or from
off-site source* (unleu those source*
are al*o at a RCRA facility).
Proposed § 2M£25{dKlUv} codifies
this limitation on section. 3004(u)
authority by allowing the facility owner/
operator to demonstrate that a specific
concentration, of a conatituent in the
vicinity of a *oh*d wa*te management
unit doe* not come from that unit, but
rather ix attributable to sources other
than on-sita solid waste
concentration. Proposed .
§ 284.525(d)(lJ(v) provides, however.
that the Regional Administrator may
determine that cleanup to levels below
the background concentration is
necessary for the protection of human
health or the environment in connection
with an area-wide cleanup under RCRA
or other authorities.
The best example of tins limitation on
section 3004(n) is found in contaminated
ground water. If a specific constituent is
found in ground water downgradient of
a solid waste management unit at levels
exceeding action levels, a CMS would
ordinarily be required. However, if the
facility owner/operator can demonstrate
that the constituent levels did not
exceed npgradient ''background" levels,
and that tin upgradient background
levels did not come from other sohd
waste management units on the facility;
cleanup would not be required,
Similarly, even if the downgradient
concentration exceeded upgradient
background, cleanup could be required
only to the upgradient background
level*. This approach to "background" is
the same as the one found in aubpart F.
In the case of soil, the same principle
applies. Section 300i(u} provides EPA
the authority only to require owner/
operators to clean up contaminated soils
to the extent that the contamination
derives from releases from a *olid waste
management unit (or that the area itself
is a solid waste management unit}.
Therefore, cleanup of soils would not be
required under subpart S below
"background** levels. The best measure
of background levels for soils wiQ
generally be naturally occurring soils fn
areas not contaminated by a facility's
activities—for example, off-site soils.
However, in areas broadly
contaminated with constituents tat
subject to section 30M(u) (for t
unit*. If the owner/operator can
successfully make thi* demonstration.
EPA would not have the authority under
aubpart S to require cleanup below that
\ Hy ^Pff OF QlaX'aUtB 8IT
emissions), an owner/operator may be
abte to argue successfully that
constituent* found on at fatrihty below a
certain level cannot be attributed to.
releases from a solid waste management
unit
Today's proposal, however, does not
. allow RCRA facilities located in
contaminated areas to ignore facility
contributions to *fa*> contamination. Th*
permittee will be required to dean sp
the contamination caused by his/her
waste management activities, MT^^T at
determination is made under proposed
section 2fi4£25(d}(2) that remediation, of
the release i* not required.
In reviewing the demonstration nncT»r
5 264£25(d](l}(V] that a hazardous.
constituents] at a specific concentration
in a medium f* naturally occurring or is
from a source other than a solid waste
management unit at the facility, the
Regional Administrator would evaluate
sampling data developed by the
permittee. The Regional Administrator
would assess the accuracy of these data
and evaluate the statistical procedures
used by the permittee to characterize
these concentrations. The Regional
Administrator may use tile performance
standards proposed on August 24,1387,
at 40 CFR 264.97 to make this
assessment (52 FR 31948).
6. Determination tfiat Remediation of
Release to a Media Cleanup Standard Is
Not Required. Proposed 9 264.525(d)(2)
identifies three situations in which the
Regional Administrator may decide not
to require cleanup of a release of
hazardous waste or hazardous
constituents from a SWMU to a media
cleanup standard meeting the conditions
of § 284.525(d)(l). These situations are
limited to cases where there is no threat
of exposure to releases from SWMUs;
cases where cleanup to a level meeting
the standards of i 284-525(d){l) will not
result in any significant reduction in risk
to humans or the environment; or is
technically impracticable. In sijtoations
where the Regional Administrator
determines that cleanup to a level
meeting the conditions of 1264J2S(d)(l)
is technically impracticable, the owner/
operator may be required to remediate
to levels which are technically
practicable and which significantly
reduce threat* to human health and the
environment.
The Agency does not believe that
continued further degradation of the
environment should be allowed, even in
those situation* where actual cleanup of
releases may not be required. As
provided by 9 2fi4.525(dX& the Regional
Administrator may require source
control measures to control further
releases into the environment, or other
measures to protect against exposure to
contaminated imuM*- If source control or
other measures are not necessary (e&.
the *ource no Innoiir exist*), a '
jAtwmtTiatfon of no further action may
be made pursuant to i 28&514J
a. Areas of Broad Contamination. In
some case*. SWMU* releasing
hazardous i^M^tfrfaffnts to the
environment will be located in areas
that already are significantly
contaminated. Where rt"» Hol-a from
release* from the SWMU* are trivial
compared to the risk already present
from overall area-wide contamination.
or where remedial measure* g*""*^ at
the SWMU would not significantly
reduce risk. EPA believes that;
remediation of releases from the SWMU
to a cleanup level meeting the standards
of § 2B4.525(d)(l) would not be
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Federal RegUfcm / Vol. 55. No. 145 / Friday. July 27. 1990 / Proposed Rule* 30829
necessary at appropriate. In these
situations, proposed S 264^25{d}{2){y
would allow the facility owner/operator
to provide the Regional Administrator
information demonstrating that such
remediation would provide-no
significant reduction in risk. If the
demonstration were successful, the
Regional Administrator would
determine that remediation to a level
meeting the standards of S 264.525(d)(l)
was not necessary.
For example,-ground water below a
leaking SWMU might be heavily
contaminated from off-site sources. In
this case, removal of the SWMlTs
contribution to the contamination might
have very limited benefit, particularly if
that contribution was relatively minor.
Similarly, a SWMU such as a surface
impoundment might be contributing
relatively trivial amounts to area-wide
air problems. Control of the SWMU
releases might do very little, hi such
cases, to improve the overall situation in
the area, yet (In the case of an operating
unit) could be extremely burdensome to
the owner/ operator.
In such cases, EPA believes that it
will make more sense to attack area-
wide problems, where they are
determined to threaten human health or
the environment, on a more
comprehensive basis and to focus on the
primary sources of release—for
example, under RCRA section 7003,
CERCLA, or other environmental
authorities. The Agency does not believe
that it makes sense routinely to require
remediation of SWMU releases where
they represent only a trivial contribution
to an area's problems.
Two points should be stressed hers,
however. First, the facility owner/
operator would be required to take
corrective action where it could have •
significant effect on reducing risks—for
example, as part of an area-wide
cleanup'strategy. The fact of area-wide
contamination would not eliminate
EPA's authority to require action in mis
case. It should be noted that an area-
wide cleanup might not be coordinated
under a single authority, or within a
specific narrow time frame; rather the
Regional Administrator may use a
variety of authorities to address an
area-wide contamination problem over
time. Second. EPA in any case would
have the authority under proposed
S 284.525(dK3) to require source control
to prevent further releases, or to require
other measures such as those necessary
to protect against exposure to the
affected medium.
The Agency has not attempted to
define "significant reductions" in risk in
this rulemaJdng, and believes the
decision is best made on a case-by-case
basis. However, the Agency seeks
comment on whether a more specific
definition is necessary for the purposes
of this rulemaking.
b. Ground Water, Under proposed
S 264.525(d)(2)(ii), the Regional
Administrator may determine mat
remediation of a hazardous constituent
released from a SWMU into ground
water to a media cleanup standard
meeting the standards of S 2B4.525(d)(l)
is not necessary to protect human health
and the environment if: (1) The ground
water is not a current or potential
source of drinking water; and (2) the
ground water is not hydraulically
connected with waters to which the
hazardous constituents could migrate in
concentrations which could increase
contamination in the water to
concentrations that exceed action
levels.
In interpreting whether the aquifer is a
current or potential source of drinking
water, the Agency will generally use the
approach outlined in the Agency's
Ground-Water Protection Strategy
(August 1984 and as subsequently
modified) as guidance. Generally, Class
in aquifers will be considered to meet
the requirements specified in
S 264.525(d)(2)(ii). Class 01 aquifers are
ground waters not considered potential
sources of drinking water and are
considered to be of limited beneficial
use. They are ground waters that an
heavily saline, with total dissolved
solids (TDS) levels over 10,000 mg/L or
are otherwise contaminated beyond
levels that allow cleanup using methods
reasonably employed in public water
system treatment These ground waters
also must not migrate to Class I or n
ground waters or have a discharge to
surface water that could cause
degradation.
A determination under
5 2M;52S(d)(2Xii) that remediation to a
media cleanup standard is not necessary
might be made in situations where a
SWMU located in a heavily
industrialized area has released to
ground water in an aquifer that is
surrounded by ground water that has
been heavily contaminated from non-
SWMU sources. It is not the intention of
the Agency to create a ground-water
"island of purity" that is unlikely to be
used for drinking water or other (non-
industrial) beneficial purposes due to its
location in an area historically used
only for industrial purposes.
Information from the State and/or
local government as to the beneficial
use of the ground water may also be
useful if the ground water has been
classified for specific uses. If die ground
water is not a potential source of
drinking water but has other beneficial
uses (eg* agricultural), then, remediation
to a media f-lg«nnp standard may not be
required; however, remediation of the
ground water to its beneficial use would
be required, as provided under
S 2B4.525{d)(3).
• If a determination under
§ 264.525(d)(2)(ii) is made where the
ground water poses a threat to
environmental receptors, or poses a
threat to human health through an
unusual exposure pathway {e.g., ponding
.or basement seepage from shallow
aquifers), remediation to alternative
levels could likewise be required
pursuant to § 264.525{d)(3), The Agency
believes that health-based concerns may
be secondary to environmental concerns
for releases to Class ffi ground waters.
The need to remediate Class m ground
waters will be assessed on a case-by-
case basis, m any case, cleanup levels
for ground water that is not a potential
source of drinking water would be
established at other man "drinkable"
levels.
In other cases, ground water may not
fall into Class m, but, because of its
distance from any population or other
factors, is unlikely to become a source of
drinking water in the foreseeable future.
In these cases, remediation might be
carried out over an extended period of
time, and natural attentuation might
play a major role in the remedy. The
issue of timing of remedies is discussed
in more detail in section VT.F.4 of this
preamble.
To demonstrate whether the ground
water is hydraulically connected with
waters to which the hazardous
constituents are migrating, samples of
water should be taken within the
discharge zone of the ground-water
contamination plume. The discharge
zone will have to be determined on a
site-specific basis, and is dependent on
the local hydrogeology. If. upon
sampling in the discharge zone, the
levels of the constituent of concern are
not detectable, a statistical comparison
of sampling data does not need tb be
performed. However, if the discharge
levels are detectable, an appropriate
statistical procedure should be used to
compare the constituent concentration
in the discharge zone to die constituent
concentration upstream. Guidance on
appropriate statistical techniques may
be obtained from the proposal on
statistical methods for use in the RCRA
subpart F program dated August 24.1987
(proposed as 40 CFR 264.97; see 52 FR
31946). In addition, the Agency expects
to develop further guidance on
appropriate statistical techniques for
making these determinations.
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30630
•••••
^,^™^-"^^^~
The determination of whether the
ground water IB hydraulically connected
with waters to which the hazardous
constituent* are likely to migrate in
concentrations which exceed" action .
levels will be made on a site-specific
basis. The physical and chemical
characteristics of the hazardous
constituents in ground water, the
concentrations of the hazardous
constituents in ground water and
surface water, and local hydrogeological
characteristics should be considered in
making this determination.
c. Technical Impracticability.
Proposed i 284.525(dK2)(iii) would allow
the Regional Administrator to make a
determination that remediation of a
release to a media cleanup standard
meeting the criteria of i 284.525{d)(l) i«
not required when remediation is
technically impracticable. The
determination of technical
impracticability involves a
consideration of both engineering
feasibility and reliability. Such a
determination may be made, for ,
example, in some cases where the
nature of the waste and the
hydrogeologic setting would either
prevent installation of a ground-water
pump and treat system (or other
effective cleanup technology), or limit .
the effectiveness of such a system—eg.,
dense, immiscible contaminants in
mature Karst formations or in highly
fractured bedrock. In other situations a
determination under § 284.525(d)(2)(ili)
may be made when remediation may be
technically possible, but the scale of
operations required might be of such a
magnitude and complexity that the
alternative would be impracticable. The
Agency is persuaded that in these and
other situations determined to be
technically impracticable from a
remedial perspective the Regional
Administrator should have the authority
to not require remediation to media
cleanup standards.
Decisions regarding the technical
impracticability of achieving media
cleanup standards must be made upon
careful evaluation of the technical-
circumstances involved. Facility owner/
operators will be required to provide
clear and convincing information to
support any assertion that such cleanup
is technically impracticable.
As suggested in the examples
provided above, the Agency believes
that the concept of technical
impracticability may in some cases also
apply to situations in which use of
available remedial technologies would
create unacceptable risks to workers or
surrounding populations, or where
cleanup would create unacceptable
cross-media impacts. For example, some
wastes present a high potential for
explosion during excavation. The
Agency expects that these types of
situations which could lead to a
determination of technical
impracticability will be quite rare. In the
case of cross-media impacts, it is
expected that sound techniques and
engineering controls—or other remedial
alternatives—should be available to
effectively minimize such cross-media
transfer effects. In the absence of such
controls or alternatives, however,
remediation of such situations could be
determined technically impracticable.
The Agency is specifically soliciting
comment today on the types of
situations which might warrant a
determination that remediation of a
release to a media cleanup standard
meeting the standard of 5 264.525(d)(l)
is technically impracticable, and would
not therefore, be required.
7. Demonstration of Compliance With
Media Cleanup Standards (§ 264.525(e)).
Section 264.525(e) outlines the Agency's
proposed approach to establishing
conditions the permittee must fulfill to
achieve and demonstrate~~compliance
with the media cleanup standards (or
alternative cleanup levels) established
during the remedy selection process.
Media cleanup standards are
contaminant concentration limits set on
a constituent-specific basis in each
environmental medium in which the
permittee is required to remediate a
release. (See proposed 9 264.525(d).) The
site-specific conditions which would be
established by the Regional.
Administrator in the permit under
5 264.525(e) include compliance points
(where cleanup standards must be
achieved) for each medium; sampling,
analytical, and statistical methods the
owner/operator must use in compliance
demonstrations; and the length of time
over which the data must show that the
media cleanup standard (or alternative
cleanup level) has not been exceeded to
successfully demonstrate compliance.
Each of these requirements is discussed
below.
a. Points of'Compliance—•{!) Ground
Water. Proposed S 264.525(e)(l)(i) would
establish that the media cleanup
standard would generally be required to
be achieved throughout the area of
contaminated ground water. This would
require that if the ground water were a
drinking water source, the entire plume
of contamination would have to be
cleaned up to levels acceptable for
drinking. EPA is proposing this
alternative since exposure to
contaminated ground water may
potentially occur anywhere within an
area of ground-water contamination.
Proposed § 264.525(eKl)(i) would also
provide the Regional Administrator with
the discretion to establish a point of
compliance for ground water at the
boundary of the waste when waste is
left in place. Such discretion may be
necessary where it is impossible or
inappropriate to install monitoring wells
at certain locations. For example, in the
case of a large landfill, it would usually
be unwise to install monitoring wells
through the landfill itself. In addition,
there will be circumstances where
ground water contamination is caused
by releases from several distinct units or
sources that are hi close geographical
proximity. In such cases, the most
feasible and effective ground-water
cleanup strategy may well be to address
the problem as a whole, rather than unit
by unit and to draw the plume of
contamination back to a point of
compliance encompassing the sources of
release. Proposed § 264.525(e)(l)(i)
therefore explicitly gives the Regional
Administrator the authority to set the
point of compliance at a line ••
encompassing the original sources of the
release. i
The Agency stresses that its general
goal is to clean up the entire plume of
contamination; however, it believes that
for very practical reasons it must have
the discretion to set an alternative point
of compliance for ground water around
one or more common sources of release.
In determining where to draw the point
of compliance in such situations, the
Regional Administrator will consider
such factors as the proximity of the
units, the technical practicabilities of
ground-water remediation at that
specific site, the vulnerability of the
ground water and its possible uses,
exposure and likelihood of exposure,
and similar considerations.
Further, in situations where there
would be little likelihood of exposure
due to the remoteness of the site,
alternate points of compliance may be
considered, provided contamination hi
the aquifer is controlled from further
migration.
Proposed 3264 J25(e)(l)(i) provides
that the location of ground-water
monitoring wells will be specified by the
Regional Administrator. The monitoring
wells will serve both to monitor the
effectiveness of the ground-water
remediation program, and to allow the
permittee to demonstrate compliance
with the media cleanup standards
contained in the permit for releases to
ground water. Where waste is left in
place (either at facility closure or at
operating waste management units),
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Federal Register / VoL 55, No. 145 / Friday, July 27, 1990 / Proposed Rule*
30831
wells will generally be located up to the
boundary of the waste (i.e., the unit
boundary for operating waste
management units).
In establishing the point of
compliance for remediation of (pound
water for today's proposed rale, EPA
considered several different
alternatives. These include the
following:
• Throughout the ground water;
• At the hazardous waste unit
boundary;
• At the edge of the existing
contamination not to exceed a "buffer"
zone inside the facility boundary (&#., a
line describing the point at which it
would take at least five years for the
contamination to reach the facility
boundary if it was left unabated); and
• At the facility boundary.
The alternative considered by the
Agency which would have established
the point of compliance at the facility
boundary would recognize that the
likelihood of exposure to ground-water
contamination is extremely unlikely on
the property of an actively managed
facility. Owners and operators of these
facilities are required to identify and
monitor existing contamination under
existing regulations. Where existing
contamination would result in exposure
(or to any contamination beyond the
facility boundary), owner/operators
would be required to cleanup this
contamination. A point of compliance at
the facility boundary would reduce costs
in certain cases, while providing
protection from adverse exposure.
However, the Agency is not proposing
this alternative because it may allow the
spread of contamination within the
facility boundary, and provides a
smaller margin of safety than a more
stringent point of compliance.
Another alternative would be to set
die point of compliance at the edge of
the existing contamination, with a
"buffer" zone inside the facility
boundary. This would prohibit the
continued spread of contamination and
provide a margin of safety between the
facility boundary and any existing
contamination. The size of the "buffer"
could be determined by the expected
mobility of the contamination at mat
site. For instance, the buffer could be set
so that it would take at least five years
for contamination to reach the facility
boundary. Once identified,
contamination entering the buffer zone
would be required to undergo corrective
action.
EPA requests comments on its
proposal and on alternatives to this
approach. In any case, if the Agency
adopted a point of compliance less
stringent than die waste unit boundary,
the Regional Administrator would have
the discretion to adopt a more stringent
point of compliance where warranted by
site specific characteristics.
(2) Air. Proposed S 264.525(e)(lKii)
would generally establish the
compliance point for hazardous
constituents released to air at the
location of the most exposed individual.
This is intended to be the points) where
maximum long-term human exposure
would occur. It is expected that the
point of compliance will typically be
outside tile facility boundary.
In determining the location of the
most exposed individual, the Agency
will evaluate the risks where people
spend a significant amount of their time
on a daily basis rather than address
temporary or transient exposure* to air
emissions (e.g* persons driving by the
facility). Thus, cleanup standards might
be set at any dwelling, private, or public
building, or other public or private area
where exposures could occur on a
regular or continuous basis if releases
continue. This exposure might occur
through windblown particles (&g., from
contaminated soil), windblown volatile
emissions, or toxic gases migrating from
the subsurface into dwellings or other
structures. These kinds of potential
exposures are evaluated during the
facility investigation, and will generally
require source controls when they pose
an actual or potential threat
In establishing the locations) of the
most exposed individual^). EPA will
generally not include on-site facility
workers, but would include people who
live on-site, such as military personnel
and families who reside at a Federal
facility required to obtain a RCRA
permit Occupational exposures
generally are the purview of the
Occupational Safety and Health
Administration (OSHA). Under OSHA
Instruction CPL 2-2.37A of January 29,
1988, OSHA and EPA have agreed that
OSHA has the lead role hi providing for
the safety and health of workers at
hazardous waste sites. OSHA has
established standards for such
exposures in 29 CFR 1910.120. Although
EPA has the authority to address
occupational exposures, it will generally
do so only when the Regional
Administrator has cause to believe mat
inadequate controls are being exercised
at the site.
The Agency believes that achieving
compliance at the location of actual
human exposure will, in most cases, be
fully protective. However, the Agency
recognizes that some sites may present
circumstances in which a different
compliance point may be necessary to
protect human health and the
environment, and has provided the
Regional Administrator the flexibility to
set a compliance point other than at the
most exposed individual. This may
particularly apply where exposure of
environmental receptors are a concern.
For example, the Regional Administrator
could specify that a permittee must
demonstrate compliance with the
cleanup standard at the location of the
most exposed environmental receptor if
site conditions warranted.
The Agency considered other points
of compliance for media cleanup
standards for air, including the unit
boundary and the facility boundary. The
Agency, however, believes that
requiring compliance with air cleanup
standards at these locations would be
unnecessarily stringent, and would
provide very little, if any, real additional
health or environmental protection. For
example, if the point of compliance were
set at the unit boundary, releases from
the unit would have to be controlled to
health-based levels, assuming life-time
exposure at mat unit In practical terms,
this would require that emissions from
units such as surface impoundments
would in some cases have to be
controlled virtually to zero. The Agency
believes that such a standard would be
unrealistic. Similarly, the Agency
believes that it is unnecessary to set the
point of compliance as a routine matter
at the facility boundary, since in many,
if not most cases the actual location of
exposed populations will be some
considerable distance from the site.
As discussed earlier in today's
preamble (section VLE.2.d), action levels
for air are determined at the facility
boundary in order to ensure mat there
will be a plan in place to address the
contingency of receptors moving close
enough to the facility to be adversely
affected by air releases from SWMUs.
Recognizing that residential patterns
may change after a remedy has been
selected and implemented, proposed
S 264.560(b) would require the facility
owner/operator to notify EPA and any
individuals who may be exposed to the
contaminated air if, at any time, air
concentrations exceed the action level
beyond the facility boundary. The need
for interim measures or additional
studies would be assessed at that time.
The approach proposed today for
establishing points of compliance for air
releases differs somewhat from the
proposed approach for other media,
such as ground water. This is due to
basic differences in the behavior of
contaminants in air as compared to
ground water. When a release into
ground water occurs, typically the
resulting ground-water contamination
will remain at or near the facility for an
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Federal Register / Vol. 55, No. 145 / Friday, July 27. 1990 / Proposed Rules
extended period of time. Thus, if the
contamination is not remediated,
exposure to the contamination (i.e.,
through drinking water wells) can occur
for years thereafter. In contrast, when a
release into air occurs, typically it will
migrate and disperse relatively rapidly;
the time when individuals who are
located close to the facility could be
exposed to the air toxicants would be a
matter of minutes or hours. Thus, an air
release that is occurring at any given
time does not present a long-term
exposure threat to those individuals, as
would a ground-water release. Remedies
for an air release problem will most
often involve stopping or controlling the
release itself from continuing to occur;
the released chemicals will not actually
be "cleaned up" per se.
Although the Agency recognizes that
there can be other effects from air
releases from solid waste management
unite (e.g., formation of ozone), the
general objective under subpart S is to -
prevent exposure of nearby individuals
to harmful levels of airborne toxicants.
and carcinogens released from SWMUs
(see section VHC.3 of this preamble for
a discussion of the relationship of
subpart S to section 3004(n) standards .
and ozone concerns). Therefore, EPA
believes that the proposed approach for
setting points of compliance for air
releases at the most exposed individual
is sensible and realistic. Requiring
compliance at the unit boundary [which
would follow the approach for ground
water] would, in essence, create a
standard based on protecting against an
implausible exposure scenario.
Proposed § 284J25(e)(l)(ii) also
provides that the Regional
Administrator will specify locations ,
where air monitoring devices must be
installed and what emission modeling or
testing, atmospheric dispersion models,
or other methods must be used to
demonstrate that a permittee has .
achieved compliance with the media ,
cleanup standards. Methods of
demonstrating compliance with air .'
cleanup standards will vary from site to
site. At many sites, emission modeling,
or monitoring air close to the unit may
be coupled with air dispersion modeling
to estimate concentrations of hazardous.
constituents at the point of compliance.
At other sites, monitoring of air quality
at the actual point of compliance may be
the most accurate and reliable method
of demonstrating compliance with the
media cleanup standard. In other cases.
corrective measures taken to control the
source of the release may eliminate the
releast to air altogether. In such cases. .
continued air monitoring or modeling .
would not generally be required.
(3) Surface Water, For surface water,
the Agency is proposing the point where
releases enter the surface water as the
point of compliance. (See,
5 264.525(e)(l)(iii).) This compliance
point will be used for releases to surface
water that are ongoing, such as would
be the case with contaminated ground
water that flows into a surface water
body, or non-point runoff which occurs
during rainfall events. The Agency
believes that achieving compliance with
the media cleanup standard for such
releases at the point of entry into
surface water will be necessary to
assure that human health and the
environment are protected.
EPA recognizes, however, that in
some cases releases from solid waste
management units that have occurred in
the past have settled and accumulated
in surface water sediments. Where
actual cleanup of contaminated
sediments is determined to be
necessary, and cleanup standards have
been specified for the sediments in the
context of a remedy, proposed
S 264.525(e)(l)(iii) would allow the
Regional Administrator to designate
locations (i.e., areas and depths in the
sediments) where compliance with the
standards would be required.
The Regional Administrator will
specify the locations where surface
water must be sampled to monitor the
water quality. The Agency recognizes
that in some cases (e.g., fast moving .
streams) there may be some dilution of
hazardous constituents before samples
can be collected; however, the goal in
establishing sampling locations should'..
be to minimize such dilution effects. The
Regional Administrator also may specify
locations where sediment samples will
be collected and analyzed to ,
demonstrate compliance with media
cleanup standards. Such considerations
will be particularly important where the
surface water is an important
environment for aquatic life and/or fish
or other organisms which are likely to .
be ingested by a nearby population. .
(4) Soils. Today's proposal would.
establish the point of compliance for
soils at any point where direct contact. .
exposure to the soils, may occur. In most
.cases this point will be near the surface
of soils, because this is where the
greatest likelihood exists of human
contact
b. Methods. Under 1264.525(e)(2), the
Agency proposes that the Regional
Administrator specify in the permit the
sampling and analytical methods to be
used, methods of statistical analyses, if
required, and the frequency of sampling
or monitoring that may be required to
characterize levels of hazardous
constituents in all media, and to
demonstrate compliance with media
cleanup standards (or alternative
cleanup levels). In many cases the
permittee may have proposed, in the
Corrective Measure Study, sampling and
other analytic methods that would be
appropriate for the remedial alternative
as part of an implementability or
availability of needed services analysis.
In such cases, the Regional
Administrator may consider and adopt
the proposed methods or other methods
that he/she believes to be more
appropriate for the environmental •
problem being addressed or may require
the parmittee to use methods he/she
believes more reliable.
c. Timing of Demonstration of
Compliance. The Agency is also
proposing under { 264.525(e}(3) that the
Regional Administrator specify in the
remedy the length of time during which
the permittee must demonstrate that
concentrations of hazardous
constituents have not exceeded
specified concentrations in order to
achieve compliance with media cleanup
standards (or alternative cleanup
levels). Under the existing subpart F
regulations (S 264.100), the Agency has
required that facility owner/operators
remediating ground-water
contamination from regulated units
continue corrective action until the
designated ground-water protection
standard has not been exceeded for a
period of three years. The Agency has
found that, given the variety of
hydrogeologic settings of facilities and
characteristics of the hazardous
constituents, it is difficult to
demonstrate reliably that the ground-
water protection standard has been
achieved by imposing a uniform time for
demonstrating compliance.
The Agency is not proposing a specific
time period under the subpart S
regulations for achieving compliance
with cleanup standards before
discontinuing corrective action. Instead,
the Agency is proposing that the
Regional Administrator specify the
length of time required to make such a
demonstration as appropriate for a given
media cleanup standard. As described
under proposed i 284£25{e)(3) (i)-(v),
the Regional Administrator may
consider five factors in setting this
timing requirement (1) The extent and
concentration of the release; (2) the
behavior characteristics of the
hazardous constituents in the affected
medium; (3) the accuracy of the
monitoring techniques; (4)
characteristics of the affected media;
and, (5) any seasonal, meteorological, or
other environmental variables that may
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30833
affect the accuracy of the monitoring
results. The Agency believes that
consideration of these factors will allow
the Regional Administrator to set an
appropriate time period for
demonstrating compliance with cleanup
standards rather than relying on an
arbitrary time period for all facilities or
all situations at the same facility.
One example of how these
considerations might affect a decision
on the time a cleanup standard must not
be exceeded to demonstrate compliance
is given here. The Agency expects that
pump and treat systems will be required
at many facilities where hazardous
wastes or hazardous constituents have
migrated to ground water from SWMUs.
Experience in the RCRA subpart F
program (which addresses releases of
hazardous constituents to ground water
from regulated units) has shown that
continuous operation of a pump and
treat system may interfere with the
owner/operator's ability to obtain
accurate sampling data on constituent
concentration levels. Allowing natural
restoration of chemical equilibrium in
the affected ground water after the
pump and treat system is turned off will
be necessary to obtain accurate
readings of constituent concentrations.
If the concentration^) rise to
unacceptable levels after the remedial
technology is disconnected, reinitiation
of treatment may be required. This
process would have to be repeated until
acceptable concentration levels are
achieved after chemical equilibrium has
been reached in the ground water with
the treatment system suspended. In such
cases it may be necessary to extend the
life of the permit until required remedial
results have been achieved even when
waste management operations have
ceased at all active hazardous waste
units at the facility.
& Conditional Remedies (§264.525$)).
Proposed 9 264.525{f) would allow EPA
to select a "conditional" remedy. A
conditional remedy would allow, at
• EPA's or the authorized State's
discretion, an owner/operator to phase-
in a remedy over time, as long as certain
conditions are met EPA recognizes that
in some cases completing cleanup will
be sufficiently complex and costly to
warrant a phased approach to cleanup.
Generally, a conditional remedy would
allow existing contamination
(sometimes at existing levels) to remain
within the facility boundary, provided
that certain conditions are met These
conditions would include achieving
media cleanup standards for any
releases that have migrated beyond the
facility boundary as soon as practicable,
implementing source control measures
that will ensure that continued releases
are effectively controlled, controlling the
further migration of on-site
contamination, and providing financial
assurance for the ultimate completion of
cleanup. The length of time that
contamination could be allowed to
remain within the faculty boundary
would be established on a site-specific
basis, but could be for as long as the
permit remains in effect. Nothing in this
provision, of course, would prevent the
transfer of property subject to a
conditional remedy or other corrective
action requirements. For a further
discussion of the property transfer issue,
see section VI 1.1. of this preamble.
This type of remedial approach may
often be appropriate for RCRA faculties.
for several reasons. First, permitted
RCRA facih'ties will typically be actively
managed properties, with viable owner/
operators who can control and restrict
access to the property. Typically,
exposure at such facilities (which have
permits to manage hazardous waste)
will be significantly less than at sites
where access is unrestricted. For
example, actual drinking of ground
water under the facility will not
generally occur, nor would residences
typically be found—as long as the site
remained a RCRA permitted facility.
Therefore, an appropriate remedy for
such a site might be the cleanup of
ground water contamination under the
site to a level consistent with current
exposures. Most RCRA facih'ties pose
significantly lower environmental and
human health risks than Superfund sites,
and therefore the need to pursue
complete cleanup at such facih'ties will
often be less urgent The use of
conditional remedies in appropriate
situations complements EPA's overall
management goal of addressing the most
significant and urgent environmental
problems first
The Agency anticipates that there
may be a variety of facility-specific
situations under which a conditional
remedy would be appropriate, given the
nature of the contamination problem at
the facility, the capabilities of the
owner/operator and other factors such
as the level of risk and local public
concerns. One example could be a large
facility where the contaminant sources
and releases are of no current threat are
relatively remote from any potential
receptors and can be reliably controlled
to prevent further significant
degradation, and where the owner/
operator can be reasonably expected to
maintain an effective, long-term
presence at the facility, and thus able to
prevent exposure to contaminants
during the conditional remedy. EPA
recognizes that decisions regarding the
appropriateness of conditional remedies
could often have important implications
for owner/operators, as well as others
who may be affected by or who have
interest in the long-term environmental
conditions of these facilities. Such
decisions must be made in careful
consideration of relevant site-specific
factors. The Agency specifically
requests comment regarding which
factors should be considered—and
how—in determining the
appropriateness of conditional remedies,
and whether more formal criteria should
be specified in the rule for making such
decisions.
Conditional remedies would not be
appropriate in situations where EPA or
the authorized State lacks reasonable
assurance that further environmental
degradation will not occur. For example.
a conditional remedy would not be
appropriate in the case of a fast moving
plume or in circumstances where the
hydrogeology of the area suggests that
additional vertical migration will likely
occur despite the implementation of
engineered systems or devices to control
plume migration. Further, conditional
remedies may not be appropriate in
situations where a site with ground
water contamination is located in close
proximity to an environmentally
sensitive area. In the case of Federal
facih'ties, conditional remedies may be
frequently used because of a
combination of factors, including
technical limitations on the ability to
achieve complete cleanup at facilities
which are often extremely large and
complex, and the unique financial
constraints placed on Federal facih'ties
by the nature of the federal budget
process.
The media cleanup standards, source
control actions, or other actions required
under a conditional remedy may or may
not be sufficient for a final remedy.
Today's rule recognizes that in some
cases, there are technical limitations to
achieving complete cleanup of ground
water contamination. The proposal
recognizes this and allows technical
practicability to be factored into the
decisionmaking process at a particular
site both during the selection of
remediation alternatives to be
considered and in the final
determination of appropriate remedies.
The Agency is particularly interested
hi comments on this issue from the
States, who will ultimately be the
implementing agencies for corrective
action. Comments are solicited as to
whether States support this approach,
and whether they believe it reasonably
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Federal Register / Vol. 55, No. 145 / Friday, July 27, 1990 / Proposed Rules
addresses corrective action problems at
facilities operating under State permits.
Section 264.525(f)(2) outlines the seven
specific requirements—or conditions—
that conditional remedies must comply
with. Should any of these conditions not
be me.t during the term of aTacility's
permit, EPA would either impose new or '
additional conditions to ensure
protection, or require the owner/
operator to implement a "final" remedy;
i.e., a remedy that fully meets the
standards of S 284.525(a). In any event,
such a final remedy would ultimately
have to be implemented and completed
at the facility before termination of the
permit
Under a conditional remedy the
owner/operator would be required to
achieve media cleanup standards for
any releases that have migrated beyond
the facility boundary as soon as
practicable. In addition, the remedy
would have to prevent against any
further significant environmental
degradation This will typically involve
Implementing source control measures
that will ensure that continued releases
(e.g., leachate from a landfill to ground
water) are effectively controlled. In
order to achieve this standard of
protection, substantial treatment'of
wastes or other containment measures
will often be required. In addition to
such source control measures, a
conditional remedy would also be
required to have implemented
engineered systems or devices to control
the further migration of on-site releases
that have already occurred. For
example, in the case of a plume of "on-
site" contamination (i.e., that had not
yet reached the facility boundary), that
would continue to migrate and further
contaminate the aquifer if left
unchecked, the owner/operator would
be required to install, at a minimum,
some type of ground-Water interception
system or barrier system that would
reliably halt such continued migration.
The source control actions or other
actions required under a conditional
remedy to prevent further environmental
degradation may or may not be
sufficient for a final remedy. In some
cases, further treatment of wastes or
extra engineered features might be
required to achieve final remedial goals,
consistent with the provisions for
remedies under § 264.525 (a) and (b). ,
Likewise, the final remedy would also
require compliance with standards for
attaining media cleanup standards
within the facility boundary, as well as
outside the facility.
Under a conditional remedy, any
treatment, storage or disposal of wastes
required by the remedy would have to
be done in accordance with the
requirements for management of wastes,
as specified in proposed SS 264.550-
264.559.
Today's proposal would require that
financial assurance for the remedy be
demonstrated. The Agency recognizes
that financial assurance may often be
very important in ensuring the
effectiveness of a conditional remedy,
as well as ensuring that final cleanup of
the facility will be achieved. Comment is
solicited as to the types of financial
assurance requirements that should be
imposed on conditional remedies.
Since a conditional remedy may allow
some contaminated media to remain on
the facility during the course of the
remedy, a critical feature of the remedy
will be ensuring adequate controls to
prevent against exposure to such
contamination. Controls could be
engineered features, such as fences or
other physical barriers to restrict access
to those areas of the facility. Other non-
engineered controls, such as
prohibitions against use of on-site
ground water for drinking water, could
also be required and written into the
permit
EPA solicits comments on the overall
concept of conditional remedies, and on
the specific conditions and requirements
that should be imposed in implementing
such remedies.
G, Pemit Modification for Selection of
Remedy (Section 284,528}
After a preliminary selection of
remedy,, the Agency will need to revise
the permit to incorporate the remedy.
This decision (selection of remedy) is a
major one in the corrective action
process, and the public is entitled to
review and comment on the Agency's
preliminary decision concerning
appropriate remedial activities atlhe
facility. Moreover, this modification
provides an opportunity for the public to
comment on activities (e.g., the remedial
investigations and the CMS) that have
led up to the identification and selection
of the remedy. As a result, the Agency
believes that a major modification of the
permit is appropriate. Therefore, the
Agency is proposing today in
S 264.526(a) to require a major permit
modification for the purpose of
specifying the selected corrective
measures and imposing a schedule of
compliance for implementing the
remedy.
The regulatory authority for a major
permit modification is found in 40 CFR
270.41, as amended by proposed
§ 270.41(a)(5)(ix) of today's regulation.
No changes are being proposed in '
today's rule for the major modification,
process, which requires a 45-day notice
and comment period, a response to
comments, and a public hearing if such a
hearing is requested. (Regulations
concerning standards for major
modifications are located at 40 CFR
270.41; governing procedures are found
in 40 CFR part 124.) '.
Opportunities for public involvement
in the corrective action process .beyond
the modification for selection of remedy
are discussed in Section Vm of today's
preamble.
Proposed § 264.526(b) specifies seven
elements that would be included in the
modified permit. The proposed
modification and its accompanying
statement of basis would provide a
framework for the facility owner/
operator's and the public's
understanding of the remedial activities
selected for the facility. First the
proposed modification would have to
include a description of the technical
features of the remedy necessary to
achieve standards for remedies as
stated hi proposed S 264.525(a). This
description must be complete enough to
enable a reviewer to determine that it
complies with the standards for
protectiveness, attainment of media
cleanup standards, source control, and
waste management practices imposed
on all RCRA remedies under
S 264.525(a). For instance, if an
incinerator is to be constructed to
incinerate waste at the facility, the
description would generally indicate the
type of incinerator proposed, the part
264 performance standards the
incinerator would meet the capacity,
etc. The remedy description might also
need to specify equipment or design
features needed to address air releases
from the treatment process (e.g., ah*
strippers used to remove volatile
organics will generally be required to
have a control device such as a carbon
adsorption unit). The technical features
required should be provided in sufficient
detail to allow meaningful comment and
to provide the facility owner/operator
clear guidance in developing a remedial
design. (See discussion of remedy design
under section VLH of today's preamble.)
At the same time, EPA believes that
many details of the remedy—for
example, the operating conditions of the
incinerator needed to meet the
performance standards or the exact
nature of emissions control devices on
tanks—might not be available at this
stage and would be addressed during
approval of the remedy design.
Second, today's proposal would
require in S 264.526(b)(2) that media
cleanup standards established during
remedy selection be included in the
modified permit
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30835
Third, proposed § 284.528{b)(3) would
require that the modified permit
describe conditions the permittee must
fulfill to demonstrate compliance with
the media cleanup standards
established in the remedy selection
process under § 264.525(e). For example,
the modified permit might require the
owner/operator to continue monitoring
ground water over a certain period of
time after a cleanup standard has been
achieved to ensure that the level is not
subsequently exceeded. In addition, the
permit might specify where ground
water would be monitored to measure
compliance. Again, specific details on
compliance measurements might not be
available at remedy selection, but would
be addressed through remedy design.
Proposed § 264.526(b)(4) would
require the Regional Administrator to
specify standards applicable to the
management of corrective action wastes
in the permit For example, if the remedy
selected specifies use of a temporary
tank at the facility for the purpose of
waste treatment, any design, operating
or performance standard deemed
applicable to the operation of the unit
would be included in the modified
permit by the Regional Administrator.
Fifth, any procedures the permittee
must follow to remove, decontaminate,
or close units or structures used during
remedy implementation would b*
specified in the permit, as well as any
post-closure care required. In the
example of the temporary unit used
above, the Regional Administrator
would specify any closure standards
that applied to the temporary unit if the
unit was employed to treat hazardous
waste.
Proposed 1264.526(b)(6) would
require that the modified permit include
a schedule for initiating and completing
all major technical features and
milestones of the remedy.
Finally, the modified permit must
include (under S 264.526(b)(7)) any
requirements for submission of program
reports or other information deemed
necessary by the Regional
Administrator for the purpose of
overseeing remedy implementation and
progress. For further discussion of the
remedy selection process and
components of the decision-making
process, see section VLF of today's
preamble.
The Agency believes that these
minimum requirements—a description of
the remedy's technical features, the
cleanup standards mat must be
achieved, the standards that must be
met to demonstrate compliance with die
media cleanup standards, standards
applicable to the management of
corrective action wastes, requirements
for removal, decontamination, closure.
or post-closure of units or devices
employed during remedy
implementation, a schedule of
compliance, and requirements for
reporting—are the most important
decisions the modified permit must
reflect. Further, they are essential to
inform the public fully of the Agency's
preliminary decision when the draft
permit modification is issued for notice
and comment
In addition to the draft permit
modification itself, EPA would also be
required to publish, under the permit
modification requirements, a statement
of basis. This statement which would
be roughly analogous to the Superfund
Record of Decision (ROD), would
, generally describe the basis for EPA's
tentative remedy selection or approval
and an explanation for the cleanup
levels chosen. In addition, EPA would
generally make the remedial
investigation and the CMS reports
available to the public for review. The
scope and content of the statements of
basis will vary widely, of course,
depending on the complexity of the site,
the nature of the proposed remedy, the
level of public interest, and other
relevant factors. In any case, they
should be sufficiently detailed for the
public and the facility owner/operator
to understand and comment on the
Agency's tentative decision, and the
studies and conclusions leading up to
the decision.
The permittee, based on the remedy
selected and approved in the final
modified permit will be required under
proposed S 264.528(c) to demonstrate
financial assurance for completing all
required remedial actions specified hi
the modified permit The proposed
regulations for financial assurance for
corrective action (FACA) (51FR 37854).
as discussed in sections IVD and
Vn.C.5 of today's preamble, may be
used as guidelineo by owner/operators
for demonstrating the required financial
assurance.
Today's proposed S 264.526(c) would
require the permittee to demonstrate
financial assurance no later than 120
days after the modified permit becomes
effective. The Agency believes that this
approach is needed since the remedy
proposed for the facility in the draft
permit modification may be altered hi
response to comments, and since final
detailed remedy design, construction,
operation, and maintenance plans which
will provide significantly improved cost
estimates may not be submitted until
after the modified permit is hi effect
The Agency chose 120 days to promote
consistency with other RCRA financial
assurance provisions. Experience hi
implementing the financial assurance
provisions under 40 CFR part 264,
subpart H. has shown that 120 days is a
reasonable period of time for owners or
operators to obtain financial assurance
mechanisms. The Agency is specifically
soliciting comment on this proposed
provision today, and whether 120 days
after the final remedy decision is
imposed is an appropriate length of time
for demonstrating financial assurance.
In addition, proposed § 264.525(c)(2)
would allow the Regional Administrator
in certain circumstances to release the
faculty owner/operator's mechanisms
establishing financial responsibility for
closure and post-closure financial
assurance at the time financial
assurance for corrective action is
established. This amendment is
necessary to address situations where
corrective action is conducted at
regulated units-—particularly under the
subpart F requirement* of S 264.100—
and the corrective action schedule of
compliance replaces the unit's closure
plan. In these cases, it will generally be
appropriate for the Regional
Administrator to release the faculty's
financial assurance for closure and post-
closure for that unit and allow the
facih'ty to apply the mechanisms to
financial assurance for corrective
action. In addition, at the point where
the unit subject to corrective action is
effectively closed in accordance with
the corrective action schedule of
compliance, the Regional Administrator
would have the authority under today's
proposal to release the owner/operator
from third-party liability requirements
with respect to that unit This proposed
requirement is consistent with the
current provisions of subpart H. which
generally provide for the release of
third-party liability mechanisms at the
time an owner/operator certifies final
closure.
Section 264.528(d) provides for phased
remedies when considered appropriate
by the Regional Administrator. The
concept of phased remedies is similar to
the designation of "operable units" in
CERCLA. Remedial actions at CERCLA
sites are often managed in stages called
operable units since it is often not
feasible, for a variety of reasons, to
clean up an entire site in one action.
Operable units under CERCLA, or
remedial phases under RCRA, may
consist of any logically connected set of
actions performed sequentially over
time, or concurrently at different parts
of a site.
One example of a situation where a
phased remedial approach would be
useful is where treatment of waste is
desirable, but where a suitable
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Federal
/ Vol. 55. No. 145 / Friday. Tuly 27. 1990 / Proposed Rules
•^
treatment technology or adequate -
treatment capadty is not currently
available, although it is expected to be
available in the foreseeable future. In
such cases, remedial phases might
consist initially of limited mea'sures to
stabilize the wastes, to be followed by a
complete response action when an
appropriate treatment technology or
capacity becomes available.
Another example of a phased
approach would be a requirement to
Install a ground-water pump and treat
system to control further movement of a
contaminant plume and begin toe
cleanup process, prior to specifying the
source control measures necessary for
the releasing unit(s). Conversely, source
controls ata SWMU (or SWMUs) might.
ba required prior to Installing the pump
and treat system. This kind of approach
would be desirable, in many cases,
where the disintegration of the
engineered structure of the unit(s) is
resulting in continued significant
releases, but the concentration of the
hazardous constituents in the ground
water had not reached levels or
locations that threaten exposure of
humans or sensitive environmental
receptors to hazardous constituents at
harmful levels in the near term.
• Any initial remedy phases should be
consistent with, and complementary to,
the final remedy that is selected.
according to i 264.525. The separation of
a remedy into phases should in no.way
impede future cleanups; rather, this
approach should often be useful in
taking early action to prevent further
degradation while other problems are
* The Agency has determined that the
use of phased remedies for managing
corrective action at RCRA facilities is
appropriate for many of the same
reasons the concept is used at
Superfund sites. Using remedial phases
at RCRA sites will provide the Agency
with more flexibility to require remedies
tailored to site-specific considerations. It-
may be advantageous at a particular
RCRA facility to address releases from
an individual SWMU or group of
SWMUs in stages, focusing first on
those releases that pose the greatest risk
to human health and the environment.
while allowing releases posing less risk
to be addressed later.
O. Implementation of Remedy (Sections
264.527-264.531)
1. RemedyDesign (§204.527). After
EPA has approved the remedy through
the permit modification process, the
facility owner/operator will often be
required in the modified permit to
develop a remedy design. Proposed
§ 284.527 would require the permittee to
prepare detailed construction plans and
specifications for implementing the
remedy. The schedule for submission of
the plans would be included to a
schedule of compliance detailed in the
permit This proposed requirement is
analogous to the Superfund program s
adoption of design standards following
the Record of Decision on remedy
selection. The Agency would approve or
modify the design and incorporate it into
the schedule of compliance.
Designs required under S 264.527 must
include specifications that demonstrate
compliance with the applicable
standards for management of hazardous
and/or solid wastes during
implementation, of the remedy, as
determined by 55 264.550 through
264.552 of today's proposal. The
information required would be similar to
the information typically required about
units and processes at facilities in part B
The permittee would also be required
under proposed § 264.527 to submit
implementation and long-term
operation, monitoring, and maintenance
plans, a project schedule, and a program
to assure quality assurance during the
construction phase (if any) of remedy
implementation. Such information would
include specific dates for major
milestones and project completion as
well as other significant events.
Proposed § 264.527(b) would require
the permittee to implement the remedy
according to the plans and schedules
approved by the Regional Administrator
and in a manner consistent with the
objectives specified for the corrective
measures during remedy selection.
Section 264.527(a) will provide that the
approved schedule and specifications
become an enforceable part of the
Peproposed § 264.527(b)(2) would
require the permittee to place a copy of
the approved design plans and
specifications in the information
repository if the facility is required by
the Regional Administrator to maintain
such a repository under the authority of
8 270.36. All permittees would be
required, under propgsed 5 284.527(b)(3),
to provide written notice of approval of
remedy design to those persons on the
facility mailing list This notice would
provide individuals on the facility
mailing list a notice of the location of
the approved remedy design and
specifications and provide information
on the availability of those documents
for public review.
Additionally, proposed 9 264.527(b)(4)
would require the permittee to amend
the corrective action cost estimate and
adjust the amount of financial assurance
demonstrated, if necessary, after
approval of the remedy construction
plans and specifications. These plans
will provide improved cost estimates
compared to those developed during
modification of the permit Therefore, to
ensure that adequate amounts of funds
are available to cover corrective action
costs, the amount of financial assurance
demonstrated must reflect the revised
cost estimate derived from the final
construction plans and specifications.
2. Progress,Reports (§264.528). Since
implementation of remedies will often
take place over extended time periods,
S 264.528 of today's proposal provides
that the Regional Administrator may
require periodic progress reports from
the permittee. These progress reports
may contain information on ;
construction, operation, and
maintenance of the selected remedy.
The Regional Administrator would
specify- the frequency and format of such
reports in the permit schedule of
compliance, when s/he approved the
remedy design. Such reports would be
designed to summarize the progress of
remedy implementation, discuss-
changes or problems with the remedy;
and provide data obtained during
remedy implementation.
The timing and content of progress
reports will vary from site to Site.
Factors that may be used by the
Regional Administrator hi determining
what progress reports are necessary for
a given site include complexity of the
waste mixture, complexity of the
remedy, hydrogeologic and climatic
conditions, and potential for exposure.
These factors are qualitative measures
of the risks posed by contamination at a
specific site. The Agency intends to
monitor closely those sites at which the
risk to human health and the
environment is greatest For example,
the frequency of progress reports may
be greater at sites where there are
complex remedies and/or a high
potential for exposure to contamination
than at sites where remedies are simple
and the potential for exposure is low.
Reports required by the Regional
Administrator will be tailored to meet
site-specific conditions. Where
necessary, progress reports may be
required to contain detailed information
on remedy implementation. In other
cases, such as where the remedy is
simple, the progress reports may be less
detailed.
The Agency considered several
alternatives to today's proposal for
allowing discretion to the Regional
Administrator hi requiring progress
reports. These included: Not requiring
progress reports from any facility;
requiring submission of reports on a
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Federal Register / VoL 55. No. 145 / Friday, July. 27. 199O / Proposed Rules
3O83T
routine basis from all facilities
implementing remedies; and requiring
development of progress reports which
would be kept on file at the facility and
available for inspection by EPA. The
Agency has tentatively rejected these
alternatives, because it believes that the
variation among sites will require that
reporting (including frequency of
reporting) be tailored to the specific site.
All raw data and information
developed or submitted during remedy
implementation (including design,
laboratory reports, etc.] must be
maintained hi the operating record of
the facility as long as the facility
operates under a RCRA permit,
including any reissued permit following
initiation of corrective action. This
requirement is proposed in § 264.528(b)
and is necessary to ensure that periodic
reviews at the site will have all data
available for inspection.
3. Review of Remedy Implementation
(§264329). Under the regulatory
authority proposed in § 264.529, EPA.
would review remediation activities on
a periodic basis. Such reviews will take
place throughout the design,
construction, operation, and
maintenance of the corrective
measure(s). The Agency's review of
remediation activities will consist both
of a review of progress report*
submitted by the permittee and, where
necessary, on-site inspections and
oversight of remedy design.
construction, operation, and
maintenance. The Agency intends to
focus on-site inspections on areas
identified for oversight in progress
reports or prior Agency reviews.
The Agency believes that the
authority to perform close reviews of
remediation activities is an essential
element of the corrective action
program. Experience in the HSWA
corrective action program and the
CERCLA remedial program has
demonstrated that timely and close
oversight of cleanup activities is
essential in many cases to ensure that
remedies are effectively implemented.
For example, oversight of the remedy
may indicate that the technology
originally called for in the design plans
is not in fact successfully meeting the
media cleanup standards. Proposed
S 264.529 provides EPA with the
authority to take steps to remedy such
implementation problems.
The Agency intends to work closely
with permittees by overseeing remedy
implementation and addressing
problems in a timely manner. Where
problems arise during implementation of
the selected remedy, the Agency will
attempt to settle such problems
informally with permittees to ensure
prompt completion of the remedy hi a
manner which adequately protects
human health and the environment. In
some cases, the Agency may determine
that an enforcement action under
section 3008(a) is necessary to compel
compliance with the permit. In other
cases, where no resolution of
disagreements appears possible, or
where the contemplated change is one
that warrants additional public
participation, proposed § 264.529 would
allow the Regional Administrator to
initiate a permit modification using the
procedures laid out in 40 CFR 270.41 or
those proposed today under S 270.34(c).
If the Regional Administrator believes
that a disagreement over a proposed
provision is suited to alternative dispute
resolution, she/he may seek resolution
using the procedures described in
section VLL7 of today's preamble. A
more detailed discussion of
circumstances which may require permit
modifications may be found in section
VLL of today's preamble.
The Agency also considered, but
rejected, requiring a specific number of
facility inspections during remedy
implementation. Because the variety of
problems to be addressed under today's
proposed regulation is extensive (as is
the range of proven reliability of
technologies which may be employed to
address the problems, complexity of the
site, and potential for exposure), the
Agency has concluded that frequency of
, site reviews must be a case-by-case
decision.
4. Completion of Remedies (§284.530).
Proposed § 264.530 would establish
criteria by which the owner/operator
would demonstrate the completion of
remedies.
Section 264.530 would specify that
corrective measures required in the
permit are complete when three
conditions have been met First, under
proposed § 264.530(a)(l), the
requirements for compliance with all
media cleanup standards (or alternative
cleanup levels) as specified hi the permit
would have to be met For example, if
both a ground-water and soil cleanup
standard are specified in the permit the
cleanup standard must have been
achieved for each medium before the
facility meets the criterion of
compliance with all media cleanup
standards. In addition, after initially
achieving the cleanup standard the
permittee generally would be required to
monitor the medium for an additional
period of time to ensure that the remedy
was hi fact complete and that
contaminant levels did not subsequently
exceed the cleanup standards under the
provisions of proposed § 264.525(e). This
requirement is discussed hi section
VI.F.7.C of this preamble.
Second, under proposed
§ 264.530(a)(2), all actions required in
the permit to address the source or
sources of contamination must have
been satisfied. This provision is
designed to prevent continued
contamination in the future. One type of
source control which may be required is
construction of a structurally sound cap
on an inactive SWMU to prevent future
contaminant migration to surface water
which could potentially result from
rainfall runoff from an uncovered
SWMU.
Third, under proposed § 264.530{a)(3),
the permittee would have to comply
with procedures specified in the permit
for removal or decontamination of units,
equipment devices, or structures
required to implement the remedy. In
other words, temporary structures or
equipment necessary to conduct the
remedy must be removed or
decontaminated to complete the remedy.
For example, liners or the contents of
temporary waste piles would have to be
disposed of according to appropriate
waste management practices. Units
employed during the remedial activities
to manage hazardous waste will be
required to meet the closure
performance standards for the
appropriate type of unit (Closure would
net be required, of course, if the owner/
operator wished to continue use of the
unit to manage waste and continued use
was allowed in the permit.)
Proposed S 264.530(b) would establish
procedures that permittees must follow
to document that corrective measures
have been completed in accordance
with the requirements of S 284.530(a).
Upon completion of the remedy, the
permittee would be required to submit a
written certification to the Regional
Administrator by registered mail stating
that the remedy has been completed in
accordance with the requirements of the
permit The certification must be signed
by the permittee and by an independent
professional skilled in the appropriate
technical discipline. The Agency
believes that a certification by an
independent professional is necessary
because the permittee may lack the
expertise and the incentive to judge
adequately the compliance of the
remedy with the applicable
requirements specified in the permit.
The Agency is not proposing to
specify the types of independent
professionals who must certify
completion of the remedy. The Agency
proposes to require certification by an
appropriate independent professional in
recognition that different certifications
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Federal Register / Vol. 55, No. 145 / Friday, July 27. 1990 / Proposed Rules
may require different skills (e.g., an
engineer may be appropriate in some
cases whereas a hydrogeologist might
be more appropriate in another).
The Agency considered, but is not
proposing, a requirement that all
supporting documentation be'submitted
along with the certificate of completion.
Since, in most cases, the Regional
Administrator would have required
submission of periodic progress reports
on remedial activities and since the
supporting information must be
available at the facility for inspection,
the Agency believes that submission of
all documentation will not be necessary.
Upon receipt of the certificate of
completion, the Regional Administrator
would determine whether the remedy
has been completed in accordance with
the requirements of proposed 9 264.530.
If the Regional Administrator
determines that the applicable
requirements for remedy completion
established in the permit schedule of
compliance have not been met, the
Regional Administrator would generally
notify the permittee of such a decision
and of the steps that must be taken to
complete the remedy. After such steps
have been taken, the permittee should
submit a new certificate of completion
in accordance with the requirements of
this section.
When the Regional Administrator has
determined that the remedy is complete,
the permittee will be released from the
financial assurance requirements for
corrective action under §§ 264.500(c)
and 2&4.528{c).
The Agency is proposing, in
§ 264.530{c)(l), that the permit will be
modified according to the Class m
procedures for owner/operator-initiated
modifications (5 270.42), to terminate the
permit schedule of compliance-when all
required corrective action is determined
to be complete.
Generaljy, remedies required under
subpart S will be considered complete
only when all measures at a facility
have been completed. Thus, if separate
remedies are implemented for several
units at a facility, all remedies must be
completed before the Agency considers
corrective action at the facility to be
complete. For example, if a remedy for •
releases from two units at a facility is
complete, but a different remedy for
releases from three other units at the
facility is incomplete, the Agency will
not consider corrective action for the
facility complete.
la some situations, however (e.g.,
where essentially separate remedial'
activities addressing releases widely
separated in location and affecting.
different environmental media), it may
be possible fof the owner/operator to
demonstrate that some portion of the
remediation required has been
successfully completed though other
required actions are still underway. This
will usually be the case where the
remedy chosen for a facility is a phased
remedy divided under proposed
S 264.526(d). In such cases, the Regional
Administrator may allow submission of
certifications of partial completion of
remedies by the owner/operator.
Certifications of partial completion will
be handled in a manner analogous to
certifications of partial closure and are
provided today in proposed S 264.530(d),
which includes a provision for partial
release of the financial assurance
mechanism as well. However, until all
corrective action activities required in
the permit are complete the owner/
operator must continue to comply with
all implementation and reporting
requirements specified in the permit
which have not been specifically
satisfied to date.
5. Determination of Technical
Impracticability (§264.531), This
proposed section is intended to address
situations where a performance
requirement set for a selected remedy in
the permit cannot technically be
achieved after reasonable efforts to do •
so have been made by the permittee. An
example of such a situation might be
where hydrogeologic and geochemical
factors that were not fully understood at
the time of remedy selection prevent the
attainment of a media cleanup standard
for ground water
EPA will require owner/operators to
put forth active efforts to achieve all
requirements of the selected remedy. If
the selected remedial technology proves
not to be capable of attaining a media
cleanup standard or other remedy
requirement (such as a source control
measure), EPA may require the owner/
operator to examine alternative
technologies that are available and that
may be able to achieve the requirement
If such an alternative technology is
identified, and is compatible with the
overall remedial objectives (e.g* would
not create unacceptable cross-media
impacts), the permit wiU be modified to
require implementation of the
technology. (See discussion of review of
remedy implementation under
S 264.529.)
' EPA will examine, on a case-by-case
basis, the owner/operator's efforts to
achieve remedy requirements.
Comments are solicited as to what
objective factors may be examined in
making these judgments.
If the Regional Administrator
determines that attainment of a remedy
requirement is not technically
practicable and no practicable
alternative technologies are available, it
will be necessary to determine what
alternative, or additional, requirements,
if any, will be needed to ensure mat the
remedy adequately protects human-
health and the environment. If, for
example, attainment of a cleanup
standard for ground water is determined
to be technically impracticable,
additional measures [e.g., facility access
controls) to control long-term exposure
to the ground water may be needed if
the ground water is not drinkable.
Likewise, if treatment of contaminated
soils to specified levels were not
technically feasible, the soils may need
to be covered or disposed of in a unit
with upgraded engineering controls for
release prevention. In some cases, the
Regional Administrator may determine
that no alternative or additional
requirements are necessary. For
example, the total risk from the site may
be acceptable, although some '
carcinogenic constituents may exceed
the desired risk level established by the
media cleanup standard.
If attainment of a media cleanup
standard is determined to be technically
impracticable, it is not the intention of
EPA to modify the standard to a less
stringent level. Media cleanup; standards
represent levels that are determined to
be protective of human health and the
environment; a finding-that such
standards cannot be met does not affect
the desirability of achieving those
levels. A determination of technical
impracticability thus represents a
finding that remediation to protective
levels cannot be accomplished from a
technical standpoint, and that the
owner/operator wUl not be required to
continue to expend resources to meet
the standard.
A determination of technical
impracticability does not relieve the
owner/operator of his ultimate
responsibility to achieve the specific
remedy requirement If such a j
determination is made, but subsequent
advances in remedial technology or
changes in site conditions make
achievement-of the requirement
technically practicable. EPA reserves
the authority to modify the permit (if the
permit is still in force) or take other
appropriate action to require attainment
of the standard or other requirement
/. Interim Measures (Section 264.540)
This section would establish the
Agency's regulatory authority to compel
.permittees to conduct interim measures.
As part of its overall strategy for
implementing the corrective action
program, EPA intends to place strong
emphasis on using this interim measure
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authority to expeditiously initiate
cleanup actions, especially in situations
where it is clear that such a measure
will be a necessary component of the
final remedy. The need for interim
measures should be assessed early in
the corrective action process, as well as
in subsequent phases as more
information on releases and potential
remedial solutions become known.
Under proposed § 264.540(a), the
Agency could require the permittee to
conduct interim measures at a facility
whenever the Agency determines that a
release from a SWMU (or, based on site-
specific circumstances, a threatened
release) poees a threat to human health
or the environment. Interim measures
will be specified in the schedule of
compliance, and will generally serve to
mitigate actual threats and prevent
imminent threats from being realized
while a long-term comprehensive
response can be developed.
Interim measures may encompass a
broad range of possible actions. In some
cases, such measures will involve
control of the source of the release,
while in other cases, control of the
contaminated medium, or other
exposure controls, will be necessary.
For example, a permittee responsible for
contamination of a public drinking
water supply may be required to make
available an alternate supply of drinking
water as an interim measure, until the
contaminated surface or ground water
can be remediated. A permittee could
also be required, as an interim measure,
to initiate a ground-water pump and
treat system to control the further
migration of contamination, if it were
determined that further significant
degradation of the aquifer would occur
while options for the ultimate remedy
for the faculty are being studied. Other
examples of interim measures include
fencing off an area of contaminated soils
to prevent public access, or overpacking
of drums that are in poor condition to
prevent possible leakage.
The Regional Administrator will
consider the immediacy and magnitude
of the threat to human health or the
environment as primary factors in
determining whether an interim
measure(s) is required. Proposed
S 284.540{b)(lH9) UsU factors which the
Regional Administrator may consider in
determining whether an interim measure
is required. These factors include: (1)
The time required to develop and
implement a final remedy, (2) actual or
potential exposures of nearby
population* or animala to hazardous
constituents; (3) actual or potential
contamination of drinking water
supplies or sensitive ecosystems; (4)
further degradation of the medium
which may occur if remedial action is
not initiated expeditiously; (5) presence
of hazardous wastes or hazardous
constituents hi drums, barrels, or other
bulk storage containers that may pose a
threat of release; (6) presence of high
levels of hazardous constituents in soils
at or near the surface which may
migrate; (7) weather conditions which
may cause releases of hazardous
constituents or migration of existing
contamination; (8) risks of fire or
explosion or the potential for exposure
to hazardous constituents as a result of
an accident or failure of a container or
handling system; and, finally, (9) any
other situations that may pose threats to
human health or the environment For
example, consideration of high levels of
hazardous constituents in surfitial soils
at a facility located adjacent to a
surface water body (see 8 2&L540(b)(6))
used as a drinking water source may
lead the Regional Administrator to
conclude that immediate excavation of
the contaminated soil or other
containment measures are needed to
prevent a threat to the surface water
which could result from runoff after a
heavy rain.
Proposed S 284.540(c) would require
the Regional Administrator to notify the
permittee in writing of required interim
measures, and would require the
permittee to initiate the interim
measures as soon as practicable. In
some situations, ouch as an actual
emergency situation, the Regional
Administrator might require the interim
measure to be initiated immediately,
with little if any formal procedures.
More typically, however, the Regional
Administrator will initiate a permit
modification under either S 27O34 or
S 270.41 as appropriate, to specify the
required interim measure. Section 270.41
modification might be used, for example.
if installation of an extensive ground-
water pump and treat system were
required. This would be appropriate
since such a requirement would be
resource-intensive for the owner/
operator, would likely serve as the basis
for a final remedial action at the facility
during a later decision-making process
conducted by the Agency, and would
indicate a serious concern for
concentrations of contaminants in the
ground water about which the public
should receive th» extensive notice and
comment opportunities provided by that
procedure. Conversely, if the interim
measure were designed to address
problem* of lesser magnitude, the
procedural requirements of the permit
modification proposed today in { 27034
may be sufficient
The proposed regulations in this
subsection are similar to those in the
removal section of the NCP under
CERCLA (see 40 CFR 300.415). In many
cases, the Agency expects that needed
interim measures will be undertaken
voluntarily by the owner/operator
without the need for permit
modification. In some cases, however,
the use of CERCLA removal authorities
or Section 7O03 of RCRA may be
appropriate; as in a situation where the
permittee is unwilling to respond quickly
to an exposure problem that merits an
immediate response; and where a permit
modification to compel the response
would cause unacceptable delay. For
example, this would be the case if high
levels of constituents had migrated from
the facility and were affecting nearby
drinking water supplies and the owner/
operator was unwilling to voluntarily
make available an alternate source of
drinking water to affected populations.
The Agency would first act to protect
against potential exposures, then act to
compel the permittee to comply with
other conditions necessary to protect
human health and the environment.
Section 264.540(d) indicates the
Agency's intent for interim measures
taken at a facility to be consistent with
any further remedy that will be
implemented at the facility after full
characterizations of the contamination
under the RFI and selection of the final
remedy under proposed § 284.525.
The Agency has developed guidance
for imposing interim measures under
RCRA. Interim Final RCRA Corrective
Action Interim Measures, OSWER
Directive 9902.4. May, 1988. Contact-
Tracy Back (202) 382-3122.
As the discussion above indicates,
interim measures are one type of
• corrective measure which may be
required under the authority of section
3004(u) of RCRA. In considering the
statutory requirements for a
demonstration of financial assurance by
owner/operators for taking corrective
. action, the Agency evaluated several
approaches to financial assurance for
interim measures.
In many cases, a requirement to
demonstrate financial assurance for
interim measures may serve no useful
purpose and may actually contribute to
delay* in facility cleanups. For example.
where an interim measure is imposed
requiring removal of barrels containing
hazardous constituents (similar to a
removal action under CERCLA) it would
be unnecessary to require a
demonstration of financial assurance,
since compliance would be relatively
inexpensive and could be quickly
completed.
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Federal Register / Vol. 55. No. 145 / Friday. July 27. 1990 / Proposed Rules
In other cases, interim measures could
be relatively extensive and could be
conducted over a period of several
years. This could be the case, for
example, where a well system must be
installed to stop a plume of
contamination from further migration at
a highly complex site until a final
remedy could be implemented, or where
a soil treatment system is installed
which would require several years to
achieve required contaminant
concentration levels. In these kinds of
cases, a demonstration of financial
assurance for interim measures will not
substantially impact the implementation
of the interim measures and would
promote the Congressional intent of
ensuring that adequate funds are
available to complete the required
actions. In such a case, requiring a
demonstration of financial assurance for
an interim measure within 120 days of
the imposition of the interim measure
may be reasonable.
Another option for addressing the
question of financial assurance that was
considered by the Agency, but was
rejected, would have interpreted the
requirement for financial assurance to
apply only to final remedial actions
required by the Agency. Still another
possible reading of the statute might
lead to the conclusion that imposition of
any type of corrective action would
require a full demonstration of financial
assurance. The Agency has concluded
that the objective of the corrective
action provisions, which is to remediate
environmental problems in an
expeditious manner and the financial
assurance objective of ensuring
adequate funding for remediation,
should be balanced on a case-by-case
basis for interim measures. The Agency
specifically solicits comments on this
approach.
J. Management of Wastes (Sections
264.5SO-264.552)
1. Overview. In the course of .
corrective action, facility owner/
operators will manage a wide range of-
wastes, including both wastes that meet
the RCRA definition of hazardous waste
and those that do not Sections 284.550-?
264.552 of the proposed regulation*
would establish standards for the
management of these wastes during
corrective action. Under these sections.
wastes that meet the RCRA regulatory
definition of hazardous waste must be
managed in accordance with the
applicable standards of 40 CFR parts
262,284.268, and 269, with certain
exceptions (see following discussion of
temporary units). In addition, statutory
land disposal restrictions will be
triggered when restricted hazardous
wastes are placed into a land disposal
unit, and rninimnm technology
requirements will apply to new or
replacement units and lateral
expansions of existing units. Finally,
non-hazardous solid waste must be
handled according to applicable subtitle
D standards, except where the Regional
Administrator determines that
additional controls are necessary to
protect human health and the
environment
In general owner/operators will also
have to comply with all other applicable
Federal, state, and local regulations. The
basic responsibility for complying with
any applicable permits and
requirements will be the owner/
operator's; however, the EPA or State
permit writer will consider these
requirements in selecting a remedy and
will take steps to ensure that remedies
selected are consistent with other
Federal or State standards.
2. General Performance Standard
(§264.550). Section 264.550 proposes a
general performance standard for
management of all wastes during
corrective action. Under this standard,
the Regional Administrator may impose
any requirements on the management of
corrective action waste that s/he deems
necessary to protect human health and
the environment This standard applies
both to solid and to hazardous waste
managed as part of RCRA'corrective
action requirements. This general
standard derives from the statutory
mandate of section 3004(u) to require
corrective action; as a corollary to this
authority, the Agency is authorized to
ensure that actions taken to implement
corrective actions do not themselves
pose unacceptable threats. EPA is
therefore obligated to impose controls
on management of wastes, pursuant to
remedial activities, as necessary to
protect human health and the
environment
EPA believes this general
performance standard is necessary
because current regulations governing
. treatment storage, and disposal of solid
or hazardous wastes may not be
adequate in all situations involving •
corrective action. In particular, many
cleanup activities that do not involve
treatment storage, or disposal of
hazardous waste require special care tff
prevent release of hazardous
constituents. For example, dredging of
surface impoundments or excavation of
soils containing volatile organics can
lead to significant releases of hazardous
constituents to the air, potentially
endangering workers or neighboring
populations. When such situations have
arisen in Superfund actions, EPA has
imposed controls on cleanup activities,
such as prohibiting cleanup when the
wind was blowing in a certain direction
or requiring air monitoring and the
cessation of activity when a specific
level was exceeded. Requirements to
control air emissions from RCRA
permitted units, when promulgated, may
not be strictly applicable to certain
SWMUs. Proposed § 264.550 would give
EPA the authority to impose such
conditions, or other controls, as part of
correction action under section 3004(u).
Section 264.550 proposes general
performance standards for management
of all wastes during corrective action.
Under proposed § 264.550(a), wastes
must be managed in a way that is
protective of human health and the
environment and that complies with
applicable Federal, State, and local
regulations. Faculty owner/operators
will be required to comply with all
applicable regulations in carrying out,
corrective action; proposed :
S 264.550(a)(2) codifies this requirement
as a reminder to owner/operators that
RCRA corrective action permit
conditions do not absolve them of other
legal responsibilities.
However, there may be cases where a
State or local law stands as an obstacle
to the accomplishment of Congress'
purpose in enacting section 3004(u), or
directly conflicts with regulations
developed under section 3004(u). EPA
believes that in such rare cases where
State or local laws could be said to
frustrate the purposes of the statute, a
court might find such laws to be
preempted by RCRA. See, e.g. ENSCO,
Inc. vs. Dumas, 807 F^d.745 (8th Cir.
1986). Alternatively, in the case of a
State requirement that could jeopardize
implementation of a remedy, it may be
possible for the State to waive that
requirement.
3. Management of Hazardous Wastes
(§264.551(a)). In many cases, waste
subject to corrective action will meet the
regulatory definition of RCRA
hazardous waste. A facility owner/
operator would be handling hazardous
waste at a SWMU, for example, if it
contains listed wastes disposed of
before November 19,1980, or the wastes
fail the characteristic test Also, releases
from hazardous waste management
units exempted from permitting
requirements, such as wastewater
treatment.units or 90-day accumulation
tanks, may be hazardous waste even
though the units in which they are
managed are exempt from permitting.
Similarly, soils and ground water
contaminated with releases of listed
hazardous waste will generally be
subject to subtitle C standards. Under
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30841
current rules, a contaminated medium
that exhibits any of the characteristics
identified in subpart C of part 261 or
contains a listed hazardous waste,
including (with certainjexceptions) any
constituent generated by a listed waste
(e.g., leachate), must be managed as
hazardous waste until it no longer
contains any of the waste, is delisted, or
for characteristic wastes, until it no
longer exhibits any of the
characteristics. Where wastes meeting
the RCRA regulatory definition of
"hazardous" are treated, stored, or
disposed of during corrective action,
they will be subject (with certain
exceptions; see discussion below) to the
standards of 40 CFR parts 262,264, and
268 (or, in the case of ah* emissions, part
269 or the Clean Air Act). Proposed
§ 264.551(a) clarifies this point
Proposed 5 264.551(a), however,
would also allow the Regional
Administrator discretion to waive most
procedural requirements associated
with closure of hazardous waste
management units (subpart G of 40 CFR
part 264) for units created for the
purpose of managing corrective action
wastes. Procedural requirements that
may be waived include submission and
approval of closure plans, and specific
time frames for submission and review
of the plan and other activities
associated with closure.
EPA believes that the process for
developing and reviewing remedies as
outlined in today's proposal, coupled
with the procedures that will be
followed in modifying permits to specify
remedies, provides an equivalent and
equally effective means of ensuring that
the applicable closure and post-closure
technical requirements are required of
units that are created and operated for
the purpose of implementing remedies.
Were the subpart G procedural
requirements to remain applicable to
those units, the result would be to have
two parallel, and essentially redundant
(and sometimes inconsistent), processes
for establishing technical requirements
for remedial units. It should be
understood, however, that the general
performance standard for closure (see
5 264 111), and the unit-specific
technical closure standards could not be
waived, and will be applied to new units
created during the remedy.
Waiver of the subpart G procedures is
at the discretion of the Regional
Administrator. In some situations it
would be appropriate to require the
owner/operator to follow the subpart G
process for closure/post-closure for a
unit used in remediation activities. An -
example could be where a unit (such as
a tank) is constructed and operated for
the purpose of implementing the remedy
for the facility, but the owner/operator
subsequently chooses to continue to use
the tank after the remedial activity is
completed, for other hazardous waste
management purposes. Since the tank
would no longer be part of the remedy,
the owner/operator would have the
obligation to follow the normal
administrative procedures for closure of
the tank.
a. Temporary Units (§ 264.551(b)).
EPA is concerned that some technical
requirements for units prescribed in the
current 40 CFR part 264 regulations may
be inappropriate for management of
hazardous waste during corrective
action, and may in fact discourage
prompt cleanup. The Superfund program
has frequently found-it necessary to
build temporary units to store wastes for
short periods of time before treatment or
final disposal. In many cases, the
Agency has found that full RCRA 40
CFR part 264 regulatory standards may
not be necessary for such short-term
storage taking place during the course of
remedy implementation, and that full
compliance with these standards could
in fact delay cleanup. For example, for
some remedies it will be necessary to
excavate soils contaminated with
hazardous wastes and store them in a
pile for a short time (e.g.. a few days or
weeks), prior to treatment Under
current RCRA regulations, the pile
would have to comply with the part 264
requirements applicable to waste piles,
such as itiiniirmm technology liner
requirements, ground-water monitoring,
and other operating and maintenance
requirements. As another example,
tanks will often be used for short-term
storage of hazardous wastes in the
course of a remedy; such tanks would
accordingly be required to have full
secondary containment EPA believes
that in many cases'applying these
stringent part 264 standards, which are
designed to ensure adequate protection
for long-term management of hazardous
wastes in such units, would be
unnecessary from a technical
standpoint as well as counterproductive
in many cases. In the above example of
the temporary pile, a single liner might
be adequate, with some limited
monitoring, depending on the nature of
the wastes, the environmental setting,
and other factors. Requiring the pile to
meet full part 264 standards would
result in delays in constructing the pile,
and increased expense to the owner/
operator which could otherwise be
directed to other remedial work, without
appreciably increased environmental
benefits. Note that adjustments to
minimum technology standards
applicable to the pile would have to be
done in accordance with certain
statutory requirements (see following
discussion).
Proposed 5 264.551(b)(l) provides EPA
authority to modify 40 CFR part 264
regulatory design, operating, or closure
standards for temporary units, as long
as alternative standards that are
protective of human health and the
environment and comply with statutory
' requirements are imposed. In the case of
temporary tanks, for example, the
Regional Administrator would be
making a determination generally
analogous to risk-based variances from •
secondary containment requirements for
tanks in §§ 264.193(g) and 265.193(g).
The Agency believes that this
approach to temporary units; that is,
adjusting design and operating
standards for such units on a site-
specific basis, is sensible and practical
within the context of the corrective
action process. The process of
examining and selecting corrective
action remedies will involve a high
degree of Agency oversight and
remedial decisions will be made in
consideration of a number of site-
specific factors. Since remedies can be
tailored to site-specific conditions, a
degree of protection of human health
and the environment equivalent to the
generic national standards can be
achieved, while facilitating the
timeliness and implementability of the
remedies.
This provision for temporary units
could apply to any unit used during
corrective action, except incinerators
and non-tank thermal treatment units
(e.g., pyrolysis units). EPA believes that
modifications of 40 CFR part 264 design
standards should not be allowed for
incinerators and non-tank thermal
treatment units because of the
complexity of these devices and the high
level of public concern about then*
operation. Furthermore, the Regional
Administrator would be authorized to
modify only technical standards for
temporary units under this authority, not
performance standards. For example,
secondary containment for tanks might
be modified in specific situations;
however, basic performance standards
relating to releases to the environment—
such as performance standards in the 40
CFR part 269 air emissions regulations—
could not be modified.
It should be understood that under
this provision for temporary units, only
requirements applied solely by
regulation, and not directly by statute,
may be modified. Statutory
requirements may be modified only to
the extent authorized by statute.
-------
.««••»•••—"—
Two statutory requirements in
particular may often be applicable to
temporary units, specifically, the land
disposal restriction requirements of
RCRA section 3004(dMg) <""* 4° C*11
part 288, and the minimum technology
requirements of section 3004{o).
However, the Agency expects that
temporary units may often be able to
meel the statutory provisions for
waivers from these requirements under
section 3004(gH5) (for the land disposal
restrictions), and section 3004(o)(2) (for
minimum technology requirements). The
major permit modification associated
with the selection of remedy would
provide the public notice and comment
usually associated with a petition
submitted by the owner/operator (a
waiver of land disposal restriction
requirements would, however, also be
published in the Federal Register, as
required by RCRA section 3004{i)). In
addition, the statement of basis
associated with the permit modification
will summarize, and the supporting
Administrative Record will provide, the
documentation of the Agency's finding
that the statutory requirements for
granting the waiver have been met
The Agency believes that waivers
from these statutory requirements will
often be appropriate for temporary units,
and in some cases may also be essential
to the prompt implementation of
corrective action. For example, in many
cases it will be necessary to pkce
wastes temporarily on the land beside a
hazardous waste unit when mat unit is
being excavated; this placement would
be an Interim step before incineration or
other treatment It has been EPA's
experience in Superfund that Ml
compliance with minimum technology
requirements (Le., double liners.
leachate collection systems, and ground-
water monitoring) in such cases may
often be unnecessarily restrictive and
could delay cleanup. Instead, in cases of
short-term storage, something less than
minimum technology—for example, a
single rather than double hner--could
frequently be fully protective of human
health and the environment The
_ » i A j__.i.«i«+wAtfM» fTMim renuife
Regional Administrator could require
design standards less stringent than the
full minimum technology requirements.
so long a* they would ensure (consistent
with the waiver provision of •ecti°n.
3004(oH2)) that the control* wdl beef in
equivalent level of protection for the life
oftheunit
Similarly, the application of land
disposal restrictions to the temporary
placement of waste could impede
corrective action in some cases, tt the
restrictions appHed ft would be
impossible to store wastes on the
ground while they awaited treatment,
because placement on the ground could
not occur before the treatment The only
alternative would be to leave the waste
untreated in place, or to store it in tanks
or containers, which in some case*
might cause a delay and add to the
complexity of the remedy without
serving public health or the
environment In such cases, it would be
necessary to demonstrate that the
petition standards for the land disposal
ban have been met so that such
temporary placement on the land would
be allowed.
In modifying 40 CFR part 284 and part
289 design or operating regulatory
standards, and in establishing
alternative standards, the Regional
Administrator would be required to
consider a range of factors, which are
listed in proposed f 284J51(bX2). These
include the length of time the unit will
be in operation, the type of unit the
potential for releases from the unit the
type of waste, hydrogeological and other
conditions at the facility, and the
potential for human and environmental
exposure to releases if they did occur.
The Regional Administrator would
specify in the permit design and
operating requirements that would apply
to the temporary unit and the length of
time it could remain in operation, and
requirements associated with its
closure. These conditions would be
subject to public notice and comment as
part of the process for approval of
remedy selection.
Today's proposal specifies a time limit
of 180 days for temporary units. This
time period is consistent with the
closure period for a hazardous waste
unit and the "temporary authorization
period in the new permit modification
rule. It is expected mat many temporary
units will be needed for much shorter
periods of time; however, EPA also
recognizes that in some cases a
temporary unit might have to remain in
service beyond the 180-day limit due to
unexpected circumstances. For example,
if wastes being stored in a temporary
unit were to be taken to an off-site
facility, and feat facility no longer had
the capacity or was unwilling to accept
the waste, it might be advisable to
continue storing the waste in the
temporary unit for a limited amount of
time [&&. SO days). In such cases, the
facility owner/operator could request an
extension. Request* for such extensions
would typically be processed as a Clas*
I modification, with Regional
Administrator approval, under permit
modification prooednre* of S 27MZ.
Such time extensions for temporary
units would only be approved where it
is necessary because of unforeseen,
temporary, and uncontrolled
circumstances, and when the owner/
operator is actively seeking alternatives
to continued use of the unit(s). If the
owner/operator failed to move
expeditiously to remove the unit the
Agency would deny further extension's
and require the owner/operator to
retrofit the unit to meet all applicable
Subtitle C design and operating
standards, or remove the waste and
close the unit
EPA considered several alternatives
in specifying time limits for temporary
units. One alternative would have been
to not specify a generic time limit for
temporary units in the rule, and allow
the Regional Administrator to set permit
conditions limiting the active life of a
temporary unit on a case-specific basis.
This approach would allow more
flexibility in designating such units,
recognizing that the amount of time a
temporary unit could safely remain in
service may vary significantly, -
depending on the type of unit type of
waste, unit location and other factors.
Another approach could have been to
specify a shorter time limit such as 90
days, which would be consistent with
the provision for on-site accumulation of
, wastes by generators (5 282.34).
Alternatively, a specified time period
longer than 180 days (e.g., one year) for
temporary units might also be
appropriate. EPA specifically requests
comments on its approach to temporary
units, including suggestions for how
"temporary" should be defined.
Today's proposal (5 264.551(b)(2){ii)}
also clarifies that off-site units (i.e., that
are located outside the facility property)
will not be treated as "temporary units"
for the purpose of managing hazardous
wastes generated as part of a remedy or
interim measure.
In addition, proposed
§ 284.551(bX2)(iii) specifies that
temporary units may only be used for
treatment or storage of wastes that
originate within the facility boundary.
This would preclude, for example,
wastes from a different facility from
being brought to a temporary unit at
another facility for storage or treatment.
However, waste* that were released
from solid waste management units at
the facility, and mat subsequently
migrated beyond the facility property.
could be recovered and managed in a
temporary unit in the context of
implementing a remedy. Comment is
solicited on these limitations to the
temporary unit concept
b. Correctrm Action Management
Unit* (§2B4£51(c);§ 204.501). In many
cases, corrective action at RCRA
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30843
facilities will address broad areas of
contamination, which may or may not
themselves contain discrete waste
management units. For example, soils
surrounding one or more leaking surface
impoundments, landfillsror tanks may
be contaminated. In devising a remedy
to address this situation the facility
owner/operator, at the direction of EPA,
could consider the contaminated area as
a whole and select a remedy that best
addressed the entire area of
contamination. In these situations, EPA
believes that the entire area of
contamination can properly be
considered a waste management "unit
under the RCRA regulatory structure.
Consequently, proposed § 264.551(c)
gives the Regional Administrator the
authority to designate such areas as
corrective action management units
(CAMUs).
As indicated in proposed §§ 264.551(c)
(1) and (2), designation of such an area
as a waste management unit will have
important implications for the
management of hazardous waste within
that area. Specifically, movement or
consolidation of hazardous wastes
within these areas will not
automatically trigger the statutory land
disposal restrictions (sections 3004(d)-
(g)) or mini"""" technology
requirements (section 3004(o)). Land
disposal restrictions are triggered by
placement of a restricted waste in a
waste management unit (section
30O4(k)); minimum technology
requirements are triggered by the
creation of new or replacement surface
impoundments or landfills, or lateral
expansions of existing surface
impoundments or landfills (section
3004(o)(l)). Consequently, if an area of
contamination is designated as a unit by
EPA during corrective action, hazardous
waste moved within the unit would not
be subject to land disposal restrictions.
Similarly, moving hazardous wastes
around inside the unit will not constitute
either creation of a new or replacement
unit, or a lateral expansion of an
existing unit; therefore the minimum
technology standards would not apply.
EPA believes that this approach to
defining "unit" in the context of
corrective action is essential to the
implementation of sections 3004(u) and
3008(h) of RCRA. and that it accurately
reflects the realities of cleanup
activities. In addressing a broad area of
contamination. EPA or a facility owner/
operator requires the flexibility to move
hazardous waste around and
consolidate it without automatically
triggering mf"*™"m technology or
treatment requirements at every turn.
For example, a typical remedy at a
corrective action sight might consist of
treatment of the most highly
contaminated soil at an off-site
incinerator, together with bn-site
consolidation and capping of remaining
soil containing hazardous constituents
at low concentrations. Incineration or
other treatment of the less contaminated
soil might yield few, if any, benefits, and
it might hi some cases delay cleanup
and increase risk; for example, risk
resulting from transportation of wastes.
However, in moving the soils for
consolidation, a narrow application of
land disposal restrictions might require
incineration (or other treatment) of the
soil and prohibit the most
straightforward, implementable, and, in
some cases, most effective remedy.
Similarly, imposition of minimum
technology requirements will add to the
cost of cleanups and may, in some
cases, cause delays in implementation,
without providing any significant
environmental benefit.
< EPA believes that its general
approach to the definition of unit makes
sense not only within the context of
section 3004(u) but also for other
remedial action involving waste already
in place—such as source control taken
in the course of a final cleanup of a unit
which will not receive waste in the
future. Where remedial action is taking
place within an area that has already
been contaminated, there should be
sufficient flexibility to select effective
remedies that can be safely and reliably
implemented. In cleaning up existing
contamination problems, EPA believes
that it will often be unnecessary and
counterproductive to strictly apply to
cleanup activities standards that were
designed to prevent future risks at
operating facilities that will continue to
receive and manage hazardous waste.
In § 264.501. EPA is today proposing a
definition of "corrective action
management unit," which is intended to
clarify the nature and scope of the areas
which may be given this designation.
The definition is as follows:
! ••* * * an area within a facility as
designated by the Regional Administrator for
the purpose of implementing corrective action
requirements of this subpart, which is
broadly contaminated by hazardous wastes
(including hazardous constituents), and
which may contain.discrete, engineered land
based sub-units."
This definition is intended to place
several important restrictions on how
CAMUs are designated, and on how
hazardous wastes must be managed
within CAMUs. It should first be
recognized that it will be the Agency's
(or State's) role to define the area!
configuration of any CAMU at a facility.
This decision should be made based
upon careful assessment of the extent of
the contamination of soils, location of
existing solid waste management units,
the remedial objectives for the facility,
and other relevant factors. Although
owner/operators may wish to propose a
specific area as a CAMU, the decision
as to whether designating a .CAMU is
necessary and appropriate to
implementing a remedy, and if so, the
boundaries of the unit, must rest with
the Agency or the State.
In designating CAMUs, only areas
where contaminated soils or
concentrated wastes already exist will
be included. Uncontaminated or "virgin"
areas of a facility cannot be included
within a CAMU. Likewise, two separate
areas of contamination could not be
combined into one CAMU, since they
could not be considered a single unit.
In some cases, remedial solutions may
involve creating new "sub-units," or
enlarging existing ones within a CAMU.
For example, dispersed, low-level
contaminated soils might be
consolidated into a smaller, discrete
landfill which would then be capped.
Similarly, in some cases an effective
remedial approach could be to remove
wastes from several small landfills
within a broad area of contamination,
stage them in a waste pile prior to
treatment, and dispose of the residuals
in a newly engineered "sub-unit" Thus,
it is intended that CAMUs may include
one or more land based sub-units
created or expanded as part of the
cleanup action, as well as pre-existing
solid waste management units.
In specifying that a CAMU may
contain land-based sub-units, the
proposed definition is meant to clarify
that non-land based units, such as a
tank or an incinerator, would not be
considered part of the CAMU. Thus,
while a remedy might involve
constructing a tank treatment system for
contaminated materials within the area
defined as the CAMU, the tanks would
be subject to all applicable part 264
standards for tanks, and the residuals
from the treatment systems would also
be subject to any regulatory or statutory
requirements that would apply had the
CAMU not been designated.
The Agency believes that allowing the
creation of land based sub-units within
a CAMU is reasonable and necessary to
realizing the basic objective of the
CAMU concept; ie., allowing sensible
cleanup solutions for existing
contamination problems. In essence, a
CAMU can be considered to be a large,
land-based unit Remedial actions such
as treating or consolidating wastes, or
creating new land-based units within
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Federal Register / Vol. 55. No. 145 / Friday. July 27. 1990 / Proposed Rules
the CAMU, serve in effect to enhance
the environmental performance and
integrity of the rant
In developing the concept of the
CAMU as articulated in today's
proposal, the Agency considered several
alternative approaches. One option
would have been to only allow
movement of wastes into existing
landfill areas within the CAMU; new
land-based units would not be
considered as part of the CAMU. This
option could have caused land disposal
ban and minimum technology
requirements to be triggered relatively
frequently, thus restricting decision
makers' flexibility to upgrade these
areas of the CAMU, and engineer more
effective and protective waste
management systems, la addition, the
option would likely create substantial
difficulties in defining what constituted
new units within the area of existing
contamination.
EPA also considered options that
would have significantly broadened the
CAMU concept Once such option would
have allowed wastes to be excavated,
treated in a non land-baaed unit (e.g., a
tank) within the CAMU, and the
residuals redeposited on the land
without triggering the land disposal ban.
A variation of this approach would also
allow an incineration or other thermal
treatment system to be considered as
part of the CAMU. Yet another option
considered would have allowed CAMUs
to include land areas at the facility that
were not already contaminated; such
areas might thus be used as sites for
locating new landfills. Although these
options would have offered more
flexibility in designing remedies, the
Agency has chosen not to propose such
broader interpretations of the CAMU
concept, for several reasons. Allowing
uncontaminated land to be mended as
part of a CAMU (and thus potentially
allowing it to become contaminated)
would have contradicted the overall
intent of the CAMU; that is achieving
reasonable cleanup solutions for
existing contamination problems. In
addition, allowing non land-based units
to be considered part of the CAMU
would, in effect, contradict tin iiotlou of
the CAMU as a type of land-based unit
(albeit one that to contaminated and
needs to be upgraded to improve its
protectiveness), and could have
complicated the ability to impose the
stringent part 284 standards for
treatment units such as incinerators.
It should be understood that, given
today's proposed definition or any of the
alternative approaches described above,
several fundamental requirements will
apply to CAMUs. Firstly, land disposal
restrictions wfll apply whenever
hazardous waste is placed into a CAMU
from outside its defined area, fa
addition, all waste management
activities conducted within the CAMU
will be protective of human health and
the environment win conform to the
standards for remedies proposed in
i 264.525(a), be evaluated in terms of the
remedy selection factors of proposed
S 284.525(0}, and comply with the
cleanup standards of proposed
§ 264.525(d). Finally, aH decisions
regarding the scope of CAMUs and the
nature of remedial activities that wiH be
conducted within them will be subject to
public review and comment daring the
remedy selection and permit
modification process.
EPA specifically invites comment on
today s proposed approach to defining
CAMUs, and any alternative
approaches which may be viable in
achieving the remedial goals for which tt
is intended.
Proposed 5 284.551(c)(4) lists the
factors which the Regional
Administrator will consider in
specifying closure requirements for
CAMUs. As with other units created for
the purpose of implementing corrective
action remedies. EPA proposes to not
apply part 294 snbpart G procedural
req uiieiiieixtA for closure to CAMUs (see
previous discussion on closure of
remedial units), in favor of using the
remedy selection and permit
modification process that wiQ serve to
establish comprehensively the technical
requirements for the remedy. ID
addition, under today's proposal, the
specific technical standards for closure
and post-closure (e&, type of cap, scope
of post-closure ground-water
monitoring) of CAMUs would be
determined 'through the corrective action
process rather than the unit-specific
technical closure standards of part 284.
Technical requirements for closure
and post-closure of CAMUs, therefore,
will be established on a site-specific
basis. The specific requirements for
CAMU dosura/poet-dosure must be
designed to achieve the general
performance standard of f 264.551(cX5).
This standard is essentially the same as
the performance standard for closure In
subpart G (see S 264,111). In addition to
this general standard, the Regional
Administrator will use the decision
factors specified in 9 264.551(c)(4) in
determining the specific closure and
iiu to&t &ior
as the potential for exposure to
contaminants should future releases
occur. ;
This approach to determining dosu. e/
post-closure requirements for CAMUs is
intended to provide flexibility for the
regulatory Agency in setting appropriate
standards specific to the site conditions.
while also ensuring that adequate long-
term controls are imposed for any
wastes remaining within the CAMU.
This approach is also consistent with
the general process for defining
remedies and for management of wastes
aa established hi proposed 5 J 264.525
and 264.550-552.
EPA considered other approaches for
prescribing dosnre/post-closure
requirements for CAMUs. One approach
would have been to adopt a set of more
specific requirements that would be
applied generically to all CAMUs. This
approach would have been similar to
the current RCRA regulations for
dosure/post-closure of conventional
hazardous waste units (e& tanks or
waste piles). This approach was •
rejected, however, for two reasons. First
the closure requirements for hazardous
waste units are designed to apply to
discrete, engineered units that must also
comply with specific design and
operating standards under RCRA. ra
contrast, CAMUs wffl typically be
broad, contaminated areas that may
contain discrete or non-discrete "sub
units" of varying types and
configurations. It would therefore be
impractical to specify generic national
standards for a dass of units that will
be of such diversity, and within which ft
will make sense to apply different
closure techniques to different areas or
sub-tmtts of me CAMU.
The second reason for not applying
generic national standard to dosure of
CAMUs relates to tin nature of the
corrective action process. Under
corrective action, the Agency has
considerable control over the technical
derision-making process, and deanup
problems at facilities are typically
subjected to direct Agency review and
oversight m contrast the dosure
process under RCRA typically involves
review and approval of owner/operator
plans against established regulatory
standards. EPA believes mat the greater
control over technical decisions that is
provided under corrective action allows
a more site-specific tailoring of doanre
t0 based on a thorough
appropriate for the CAMU to ensure that
the general peifuiinance standard is
met These decision factors will include
considerations of waste and unit and
environmental characteristics, as well
knowledge of site conditions.
4. Management of Non-Hazardous
Solid Wastes (§264.552). In other cases,
wastes addressed under corrective
action will not meet the specific RCRA
definition of hazardous waste. Many
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Fedaral Register / Vol. 55. No. 145 / Friday, July 27. 1990 / Proposed Rules ' 30845
wastes that do not meet the RCRA
regulatory definition of hazardous
wastes contain varying concentrations
of hazardous constituents that, if the
waste is improperly disposed of, could
be released to ground water, surface
water, soil, or air. The goal of corrective
action is to protect human health and
the environment by removing these
contaminants from the environment, and
controlling the source of the release—
even if the waste from which the release
originated does not meet the regulatory
definition of hazardous.
Proposed § 264.552 states that non-
hazardous wastes handled during
corrective action must be handled in
accordance with any applicable subtitle
D standards. The Agency is in the
process of developing more
comprehensive regulations under
subtitle D, and will continue to examine
in that context issues relating to the
applicability of those regulations to the
management of solid wastes undertaken
as part of subtitle C corrective actions.
In addition, the proposal provides the
Regional Administrator authority, under
certain circumstances, to impose more
stringent standards than subtitle D. For
example, a specific waste might not be
listed as hazardous, but it might have a
high concentration of specific hazardous
constituents, or it might be similar in
composition to a listed waste. In such
cases, the Regional Administrator could
impose subtitle C standards or
standards that were protective given the
circumstances at the site and
characteristics of the waste where
necessary to protect human health and
the environment even though the waste
did not technically meet the definition of
hazardous waste.
K. Required Notices (Section 284.580)
1. Notification of'Ground-Water
Contamination. Proposed 8 264.560(a)
would require the permittee to notify
EPA and any persons who own or reside
on land adjacent to the facility in
writing within 15 days when s/he
discovers that hazardous constituents
originating from a SWMU at the facility
have migrated beyond the faculty
boundary in concentrations that exceed
action levels.
Action levels are defined in proposed
S 264.521 of today's proposal and are
discussed in detail in section VLB of this
preamble; therefore, they are not
discussed in detail here. However, the
reader should note that action levels are
established using conservative
assumptions to protect human health
and the environment Concentrations
exceeding action levels will not
necessarily result in adverse effects.
Short term exposures to releases above
action levels may often not represent a
threat to human health or the
environment since action levels are
derived using long-term exposure
assumptions. In fact, in some cases
constituents at or above action levels
will not ultimately require active
remediation.
This notification requirement is
limited to situations in which the
adjacent land can reasonably be
determined to overlie the contaminated
ground water given current knowledge
of the direction and rate of the ground-
water flow.
EPA believes that it is appropriate to
require such notification in order to
provide adequate awareness for persons
who are, or who could potentially be
exposed to the contaminated ground
water. It is possible that residents near a
facility could be using water from wells
that have become contaminated from
the facility; in such cases, prompt notice
to the individual would be an essential
part of the response action.
The Agency may require the permittee
to initiate an interim measure to address
off-site ground-water releases virtually
immediately, including making available
an alternative drinking water supply
when drinking water supplies have
become contaminated. On the other
hand, the Agency may ultimately decide,
based on further study, that no further
action will be necessary. Such might be
the case where the ground water is
highly saline, and not usable for
drinking. As explained earlier in this
preamble, the actual response action
that may be required when ground-
water contamination is identified will be
determined by a variety of site-specific
factors. In any case, an early
notification that an action level has
been exceeded will alert the adjacent
resident or owner to the potential
problem and will allow their informed
comment on further permitting actions
taken at the facility if they have special
concerns. EPA solicits comment as to
what alternative mechanisms or
approaches could or should be required
to alert potential users of ground water
that contamination has occurred from a
facility.
2. Notification of Air Contamination.
Proposed 5 264.560(b) would require the
permittee to notify, in writing, EPA and
any residents or other individuals who
may be exposed to air emissions from
SWMUs above action levels. This
proposed notification requirement
would apply when there is exposure in a
residential setting, or other situation
where long-term exposure to the air
emissions from the facility can
reasonably be assumed. This is
consistent with the overall approach to
corrective action for air releases (as
discussed in section VLB of this
preamble).
This notification requirement for air
would also be triggered when residences
or activities that could result in long-
term exposures become established near
the facility after the initial release
investigations have been conducted and
are within an area where air emissions
have been found to exceed action levels.
Permittees whose remedial
investigations have confirmed
substantial air emissions migrating •
beyond their property limits have a
continuing responsibility to identify and
provide notice whenever such exposure
situations occur. If concentrations of
hazardous constituents in air beyond the
facility boundary are found to be
causing actual exposure problems of
concern, the Regional Administrator
may require the permittee, in addition to
the notice requirement, to institute an
interim measure to reduce the threat
For example, s/he could require the
installation of a floating cover on a
surface impoundment for the purpose of
reducing the surface area of the
impoundment available to allow the
escape of hazardous constituents to air.
In many cases the release to air will be
reduced or eliminated during the course
of remedial activities at the facility. For
example, a permittee may be required to
excavate and treat wastes contained in
the SWMU or to cover the SWMU with
a cap.
EPA solicits comments on what
alternative mechanisms or approaches
could or should be required to alert
persons who may be exposed by
releases of hazardous constituents into
the air from RCRA facilities.
3. Notification of Residual
Contamination. Under the regulatory
authority proposed in § 264.560(c), the
Regional Administrator may require the
permittee to provide notice whenever
hazardous wastes (including hazardous
constituents) are left in place in the
subsurface at the facility. This
requirement would apply whether
hazardous wastes or hazardous
constituents left in the subsurface are
contained in a discrete unit or diffused
throughout subsurface soils. The notice
would consist of a notation in the deed
to the facility property, or a notification
via some other instrument used by the
State if the instrument is routinely
searched during the course of
transferring ownership of property.
When such a notice is required, the
notice must clearly indicate the types,
concentrations, and locations of
hazardous wastes or hazardous
constituents that remain at the property.
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EPA bolteve* that the Agency's
authority to allow owner/operators to
certify completion of their corrective
action responsibilities and, in some
cases, dote or transfer ownership of the
property while hazardous wastes remain
in place hi the subsurface is
accompanied by a responsibility to
ensure that future owners of the
property do not inadvertently act in a
way that could result in harmful
exposures to the residual contamination.
This could occur, for example, when a
facility in an area where mixed land
uses are common (e#, residential and
light industrial uses) is closed in
accordance with applicable regulations
and ownership of the property is
transferred several times over the
course of a few years. If notice is not
provided in the property deed, a new
owner could be unaware of its previous
use for hazardous waste management
Inadvertently, the new owner could then
initiate construction or other activities
ha a manner or at a location where
disturbance of the subsurface could
result in potentially harmful exposures.
For example, by digging a foundation is
a certain location, the owner might
unearth an old solid waste nmnngflnnmt
unit, and in doing so damage any
engineering controls designed to pnvemt
releases from the unit One of the moat
likely situations in which residual
contamination would remain at the
property is where facilities have large
anas of contaminated sous deep in the
subsurface.
The residual contatniT'***"" notice
requirement proposed today is
analogous to the existing requirement
contained in 40 CFR 284.119 that facility
owner/operators place a notice in the
deed (or other instrument normally
examined in title searches) within 00
days after the first and the last
hazardous waste units at the facility are
certified closed in conformance with th»
approved closure plan, in compliance
with subpart G standards. This notice is
required in recognition that post-doeun
care may need to be instituted fot some
units (or, in the case of corrective action.
anas of contamination) where.
hazardous wastes remain In place. Until
the tarm of the final facility permit
expires (/.ft, all closure, post-clown.
and corrective action responsibilities at
the fadUty have beea fulfilled), the
permit responsibUities shift to any new
owner or operator who assumes, control
of the property. After the final permit
has expired, the Agency beUevms that
prospective purchasers of the property
shouldbe made aware of the past use of
the property, legal restrictions imposed
on Its futur* use, and the location and
details of any residual contamination on
the property which could influence
decisions of the new owner concerning:
allowable future uses.
In some cases it may be appropriate
to require the owner/operator to place
the deed notice well before expiration of
the permit For example, a selected
remedy may involve capping (thus,
leaving in place) units or contaminated
soils in an area of the facility. This part
of the remedy could be implemented
well before all other corrective action
requirements at the facility are
completed. In this situation, it may be
appropriate to require the deed notice as
part of the remedy selection permit
modification, thus providing notice to
prospective purchasers if ownership of
'that portion of thfl facility were to be
transferred at some point before the
permit is terminated.
L Permit Requirements (Sections
270,l(c}-270.80{c)(3))
1. Requirement to Maintain a Permit
(§270.1(0)). Today's proposal would
require an owner/operator to operate
under a valid RCRA permit for the entire
length of time required to comply with
requirements of part 284, subpart S or F
corrective action. This requirement
would be established by adding to the
existing language of 40 CFR 270 J.(c).
which defines the period during which
owner/operators of RCRA treatment
storage, or disposal fatititiM must
maintain a permit Where corrective
action is required under a permit a
permit will be necessary for the duration
of the activities regardless of whether
other waste management activities an
continued at the facility. For example, at
a storage or treatment facility not
required to have a post-closure permit,
the permittee may decide to cease
operation prior to or at the end of the
term of his/her permit and close the
facility according to applicants
regulations, rather man reapply for
another permit term. If that owner/
operator had any remaining corrective
action responsibilities at the facility.
today's proposal would require that the
permit be maintained even after the
hazardous waste units are closed, until
all subpart S or F requirements havs
been terminated. '
This provision is also likely to have
important implications in situations
involving transfer of property for which
corrective action obligations under
subpart S have not been fully
discharged. An example would be a
facility with a solid waste management
unit causing a release to ground water
that had been issued a permit with a
schedule of compliance requiring the
owner/operator to investigate the
release and ultimately implement a
remedy, when the owner/operator
subsequently sold the portion of the
facility property upon which the solid
waste management unit was located. In
this and other situations, EPA believes
that transfer of corrective action
responsibilities to new property owners
is critical to ensuring that RCRA facility
owner/operators are not able to evade
cleanup requirements by simply selling
the contaminated portions of their
facilities. If such a transfer of ownership
did not also involve a transfer of legal
responsibility for complying with
corrective action permit conditions, the
effect could be a substantial number of
new Superfund sites that could no
longer be addressed under RCRA. EPA
does not believe that Congress intended.
in enacting section 3004(u). to create or
to allow such an evasion of cleanup
responsibilities. The Agency, therefore,
intends to require new owners of
property at which corrective action
responsibilities have been identified in
the permit to obtain a permit and
comply with the corrective action
requirements specified in the permit
Those corrective action requirements
could, alternatively, be specified and
enforced through an administrative
order (e& under section 7003).
EPA specifically solicits comment on
cleanup responsibilities following
transfer of property. As an alternative to
the approach outlined above (under
which the new owner/operator becomes
responsible for cleanup) EPA considered
a provision that would require the
former owner/ operator to maintain
corrective action responsibility. Under
such an approach, it is likely that the
former owner/operator's responsibilities
would be limited to those off-site
activities (/.ft, activities on the
transferred property) that the new
owner/operator allowed him to
undertake. The former or new owner/
operator's responsibility to undertake
corrective action on transferred property
may also be dependent upon the status
of corrective action activities at the time
of transfer. For example, a transfer of
property before permit issuance would
probably not implicate section 3004(u)
responsibilities. Transfers occurring
after the permit is issued but before
remedy implementation or interim
measures have begun [e&, some
transfers during the RFI and CMS
stages) should perhaps be subject to
different rules than transfers occurring
after remedial activities have begun.
After consideration of public comment
on these questions, the Agency intends j
. to develop a provision governing f
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30047
corrective action responsibilities upon
property transfer for the final rule.
2. Schedules of Compliance for
Corrective Action (§270.34). Section
3004(u) of RCRA specifies that "Permits
issued under section 3005 shall contain
schedules of compliance (where such
corrective action cannot be completed
prior to issuance of the permit) * * *."
Section 270.34 of today's proposal would
codify this requirement and provides a
regulatory framework for it»
implementation.
Schedules of compliance will be a
major tool for imposing corrective action
requirements because, in most cases, the
complex and sequential nature of the
corrective action process will not allow
its completion prior to permit issuance.
The provisions of today's proposed
regulation, including plans and reports
for remedial investigations and
Corrective Measure Study and remedies,
will, for the most part, be implemented
through a schedule. Consequently, the
quality and detail of the permit schedule
of compliance are extremely important if
the objectives of the corrective action
program are to be achieved.
In addition to codifying a statutory
requirement proposed § 270.34(a) states
that a corrective action schedule of
compliance shall "* * * contain terms
and conditions deemed by the Director
to be necessary to protect human health
and the environment" This provision is
derived from the basic statutory
objective of RCRA (protection of human
health and the environment; see section
1003 of RCRA), and is a logical
extension of statutory language found in
section 3004(u) which allows cleanup to
be implemented through a schedule of
compliance specified in the permit
where corrective action cannot be
completed prior to permit issuance. The
Agency believes that inclusion of this
language in proposed S 270.34 is
desirable to clearly assert the authority
of the Region or State to include
requirements in the corrective action
schedule of compliance to address
contingencies that arise during the
corrective action process and that are
not specifically contemplated by today's
proposed regulation, but that must be
dealt with in order to protect human
health and the environment
Proposed S 270.34(b) would require
the permittee to comply with the
schedule imposed in the permit and
provides a time frame for notifying the
Agency when s/he finds that such
compliance will not be possible. When
the permittee will not be able to meet
the schedule, s/he must initiate a permit
modification under provisions of the
recently issued permit modification rule
(September 28,1988,53 FR 37912.
discussed below). Section 270.42(f) of
this rule establishes procedures for
owner/operators who wish to initiate
permit modifications where the desired
modification has not been specifically
listed as either a Class I, n, or in
modification. These procedures are
discussed in detail in the permit
modification rule and its preamble. In
addition, a brief explanation of the
provisions of the proposed rule is
included later in this discussion.
In $ 270.34(c) the Agency proposes a
specific procedure for modifying
corrective action schedules of
compliance for the purpose of
implementing subpart S requirements.
The proposed § 270.34(c) mechanism is
important for two reasons. First,-since
permits containing corrective action
schedules of compliance will often be
issued before complete information has
been gathered as to the extent and
nature of any releases at the facility,
and, therefore, the corrective action
necessary to address such releases, it
will generally not be possible to
adequately predict (and thus specifically
provide for in the schedule) all
requirements and contingencies
necessary to develop and implement
such corrective action at the facility.
Therefore, it may often be necessary for
the Agency to modify the schedule of
compliance to provide for new actions
or to make mid-course changes to
provisions specified in the original
schedule. Secondly, this modification
provides a mechanism to resolve
disputes which may arise between the
permittee and the Agency concerning
the scope or meaning of conditions in
the schedule of compliance when those
disagreements cannot be resolved
through less formal means. (The
potential use of this modification
procedure for dispute resolution is
discussed hi more detail later in this
section of the preamble.)
It should be understood that the
§ 270.34(c) procedure will be applied
only in modifying corrective action '
schedules of compliance; it will not be
used to modify terms or conditions of
the permit that are outside the scope of
the schedule. Given this narrower
application, a modification made
according to § 270.34(c) would not
constitute reissuance of the permit
It is the Agency's objective in creating
this modification process for corrective
action schedules of compliance to
ensure that such actions are
implemented expeditiously, while
preserving the permittee's due process
rights, and ensuring adequate public
participation.
The procedures proposed for
modifying schedules of compliance
using this proposed authority are found
hi S 270.34(c) (1H5); there are fewer
procedural requirements for this
modification than for a major
modification initiated under the current
authority of 40 CFR 270.41. Under
proposed § 270.34(c)(l), the Director
would notify the permittee in writing of
the proposed permit modification. This
notification would include a description
of the exact change(s) to be made to the
permit and an explanation of why the
change is needed; it would also indicate
the date by which the Director would
have to receive any comments on the
proposed modification. In addition, the
notification would indicate whether any
supporting documentation is available
for review. Further, the notification
would include the name of the Agency
contact designated to receive comments.
At the same time, the Director would
publish a notice of the proposed
modification in a locally distributed
newspaper (S 270.34(c)(2)), provide
notification to individuals on the facility
mailing list and place a notice in the
information repository being maintained
for the facility, if the permit required
that a repository be established. Each of
these notifications would contain all of
the information included in the notice to
the permittee. The comment period
provided would extend for no fewer
than twenty days after publication of
the newspaper notice (or, for the
permittee, twenty days after receiving
the written notification if the notice
were received later than the date of the
newspaper notice publication).
If the Director does not receive
written comments on the proposed
modification, the modification will
become effective five days after the
close of the comment period. S/he will
then notify the permittee and individuals
on the facility mailing list that the
modified permit is hi effect and will
place a copy of the modified, permit hi
the faculty's information repository
where such a repository is maintained.
If written comments on the proposed
modification are received, as provided
in S 270.34(c)(4), the Director will make
a final determination as to what if any,
changes should be made to the
modification. This determination should
generally be made within 30 days after
the end of the comment period. In some
cases, however, it may not be
practicable for the Director to make the
determination within that time frame;
this would not affect the legal validity of
the modification. When the
determination has been made, the
Director will provide notice to the
permittee in writing and to the public
through a notice in a local newspaper, of
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Fedand Register / VoL 55. No. 145 / Friday. Jory 27. I960 / Propoeed Rales
the pn«1 decision on the modification.
The notice will include an explanation
of how comments received were
considered in die final deciainr. an
indication of the effective date of-the
modification (no later than fifteen days
following the notification), and a copy of
the final modification. EPA believes that
the abbreviated i 270M(c) modification
procedures will strike an appropriate
balance inmost cases between the
public and government's interest in
ensuring expeditions remediation of
harmful situations, and the permittee's
due process rights.
It should be understood that the
procedure outlined above is a minimum
process, and does not preclude
providing additional steps or
opportunities for review and comment
For example, the Director could conduct
a public meeting during the comment
period, if it was determined to be
appropriate in addressing concerns of
the permittee or the public, or both. In
other cases, the comment period might
be extended for some period to allow for
more thorough review or comment
Moreover, as noted later, the burden
imposed by some changes may warrant
the more extensive process provided for
in 1270.41.
Section Z70.34{cX5), as proposed, does
not provide for administrative appeals
of modification* to corrective action
schedules of compoanoe that are made
under the procedures of 1270.34. The
administrative appeal process can be
quite lengthy; experience with RCRA
permit appeals has been that appeal
decisions may often take one year or
more. If an owner/operator's appeal is
denied, s/he then has some recourse
through judicial appeal proceeding*.
Thus, the proposed § 27O34(c)
modification process may be
advantageous in situations where
disputes between the Agency and the
owner/operator will be most effectively
resolved by reaching a final Agency
action expeditiously (see discussion
below on dispute resolution). The
absence of an administrative appeal
procedure will not affect tha owner/
operator's right to judicial appeal of
modification deed-ions.
When initiating modification* to
corrective action schedules of
compliance, the Director will dedde on
a case-by-caa* basis which modification
procedwre—S SffOM[cl or a major
modification under 127041—4*
appropriate. A number of factor* «ay
influence* thi* decision. Since the
§ 270.34(c) procedure is less complex •
administratively and should take .
substantially less time to mak»
modifications effective, it is anticipated
that the process will be used for
modifications that are relatively routine
and do not include very large additions
or changes to the requirements already
specified in the schedule. An example
might be a requirement to increase the
frequency or methods used for ground-
water sampling. On the other hand,
some Director-initiated modification*,
because of the nature, scope, or
anticipated resource burden of
complying with the new requirement
may be more appropriately handled as a
major modification under 5 270.41. One
example of such a situation is the permit
modification for specifying the remedy
(see proposed { 264.526)-, the rale
explicitly requires Hie major
modification under 5 270.41 in these
situations.
In addition to the relative magnitude
of the requirements) being imposed
through a modification, other factors
such as timing and public participation
considerations may affect decisions as
to which type of permit modification
should be used. For time-critical actions,
such as might be the case for one of
several types of interim measures, the
S 270.34(0) modification would likely be
most appropriate, since the § 270.41
process can take a number of months
before the modification requirements
are effective, likewise, for imposing
requirements that are especially
sensitive or controversial from the
community's perspective, major
modification procedures, which allow
maximum public input Into the
substance of the permit mmtififiarinn.
could be most fitting.
The two types of modifications
discussed above also have different
legal conclusion*, which will also be a
factor in the decision as to which one
may be more appropriate The proposed
modification under fi 27O41 ia eubject to
administrative appeal. It 1* subject to
judicial review only after the appeal
process ha* been completed. (Permit
appeal procedures are described in 40
CFR part 124.) As discussed earlier, the
S 270J4(c) modification would not be
subject to administrative appeal When
it is apparent that • disagreement
between the permittee and the Agency
over collective action requireiaents
cannot be resolved outside the jadicial
proces* (such a* aught be die case in
dealing with a recalcitrant owner/
operator), tins type of modifiratinn
would likely be the most direct and
timely means of reaching such
resolution.
The need for flexibility in procedural
requirements for initiation of
modifications to corrective action
schedules of compliance is supported by
an analysis completed for owner/
operator initiated permit modifications.
EPA issued a rule on September 28.
1988, concerning owner /operator-
initiated permit modifications, which
was tiie result of a regulatory
negotiation effort involving EPA,
industry, States, and public interest •
groups (see f 27034 schedules of
compliance for corrective action). In this
rule, the Agency recognized that
situations in which permittees request
permit modifications represent a
continuum of potential impacts on the
permittee, the public, and the
environment which, in turn, warrant a
continuum of procedural requirements.
The rule does not alter major permit
modifications under § 270.41. However,
for permittee-requested permit
modifications (under a new S 270.42],
the rule establishes a permit
modification classification system, with
each modification defined as either
Class I, H, or ffl. Proposed Class m
permit modification procedures are
similar to the existing procedural
requirements for a major modification
initiated by the Director under 5 270.41
(additional public meetings are required
in the Class HI procedures]. Class in
procedures are somewhat less
extensive; and Class I modifications.
which are of a limited nature, generally
do not require formal Agency approval
Today's proposal in S 27
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30849
be used in the case of disputes which
may arise between the permittee and
the Agency. In practice, the Agency
presumes that the permittee and the
Director will be able to resolve most
issues that arise during-the course of
corrective action without resorting to
the procedures of $ 270.34{c). For
example, disputes may arise over the
scope of a remedial investigation and
how many monitoring wells may need to
be installed, or the appropriate soil
sampling procedure. The permit
modification proposed in S 270.34(c)
niight be used in this case, although
generally such issues can be resolved
informally by technical staff from both
sides, or through the use of an alternate
dispute resolution process (described in
section Vli of this preamble). However,
in recognition that cases may arise in
which no agreement is possible, the
Agency is persuaded that it needs the
regulatory authority to modify the
permit, as necessary, to specify
requirements the permittee must fulfill,
and to offer both the public and the
permittee an opportunity for formal
comment on the proposed changes.
Where situations identified by .the
Director are determined by him/her to
require immediate action to protect
human health and the environment,
there may be insufficient time to
undertake a permit modification even
under the relatively streamlined ,
procedures proposed in S 270.34(c). In
such cases, the Director may take action
under the removal authority provided in
CERCLA section 104 or require action
under CERCLA section 106 or RCRA
section 7003.
3. Conditions Applicable to All
Permits (§ 270.30(1)(12)). Under
§§ 270.30(1) (1HU) of 40 CFRpart 270,
subpart C, the Agency has promulgated
regulations that specify reporting
requirements applicable to all RCRA
permittees. These permit conditions fall
into two broad categories. The first
category covers those situations in
which a permittee must give notice to
the Director of changes affecting the
permit conditions (e.g., planned physical
alterations or additions to a permitted
facility). The second includes those
reports typically required of all
permittees (e.g., manifest discrepancy
reports, biennial reports, etc.). Reporting
requirements contained in § 270.30 may
be incorporated into the permit either
expressly or by reference.
Today, EPA is proposing to add a new
reporting requirement under S 270.30(1)
relevant to the lubmittal of information
pertinent to subpart S corrective action
requirements. Specifically, proposed
S 270.30{l)(12)(i) would require the
permittee to submit information on any
additional solid waste management
unit(s) (SWMU) discovered at any time
during the term of the permit within 30
days of the discovery of this unit.
Further, it would require the permittee to
submit information on newly discovered
releases of hazardous wastes or
hazardous constituents from previously
identified or newly discovered SWMUs
at the facility within 20 days of
discovery of the release(s).
Currently, EPA or an authorized State
identifies all SWMUs at RCRA facilities
during the RCRA Facility Assessment
(RFA) prior to permit issuance. In
addition, $ 270.14(d) requires the owner/
operator to identify SWMUs as part of
the facility's part B application. The
Agency realizes, however, that
additional SWMUs and releases may be
discovered at any time following permit
issuance. Therefore, today's proposal
requires the facility owner/operator to
provide new data relating to SWMUs
and releases from SWMUs during the
life of the permit.
Under § 270.30(l)(12)(i)(A), the
permittee would be required to submit
the following information on each newly
identified SWMU within 30 days of
identifying the SWMU: (1) Location; (2)
type (e.g., landfill, storage tank); (3)
general dimensions; (4) operating
history, (5) specification of all hazardous
and/of solid wastes that have been
managed in the unit (if available); and
(6) all available data pertaining to any
release of hazardous waste (including
hazardous constituents) to any media
from the unit The location of the unit
may be indicated on the topographic
map submitted by the facility on its part
B permit application in accordance with
§ 270.14(b)(19) of 40 CFR, or may be
submitted on a topographic map of
comparable scale that clearly indicates
the location of the unit in relation to,
other SWMUs at the facility. These data
are the same as those now required in
the part B application under 40 CFR
270.14(d). (See Second Codification Rule
of December 1.1987,52 FR 45788.)
Based on the information supplied by
the permittee under § 270.30(D(12)(i)(A),
EPA would require, as necessary (under
proposed § 270.30(l)(12)(i)(B)) sampling
and analysis data for the purpose of
determining whether releases
warranting further investigations have
occurred. Further investigations or
corrective measures as necessary would
be imposed by amending the existing
schedule of compliance or by initiating ar
permit modification as provided in
I 270.34, depending upon the extent of
the change needed to cover necessary
corrective action.
Proposed S 270.30(l)(12)(i)(C) would
require the permittee to identify newly
discovered releases from newly
discovered SWMUs or from SWMUs
where no release had occurred at the
time of permit issuance. Information
submitted would include the following:
(1) The type of unit and its location,
clearly identified on a facility map; and
(2) available data pertaining to the
release, including potential exposure
pathways, controls already imposed to
address the release, and action planned
for further cleanup. The permittee would
be required to submit this information
within 20 days of discovery.
EPA is persuaded that these
requirements are necessary to ensure
that both the statutory requirements of
section 3004(u) and Congressional intent
are satisfied. (See e.g., S. Rep. No. 98-
284, 98th Cong. 1st Sess., 32 (1983).) The
requirement for corrective action is a
continuing one, applying not just to
releases that have occurred prior to
permit issuance, but also to any releases
that occur after permit issuance.
Without such requirements, the Agency
might have to wait until the time of
permit review or reissuance (in some
cases as long as ten years) before newly
discovered units or releases could be
addressed in the permit. Including these
requirements in today's proposal will
allow the Director to learn of a release
requiring remediation in a timely
manner.
4. Information Repository (§270.36).
Proposed § 270.36 would provide the
Director authority to require in the
permit that the permittee establish an
information repository. The repository
would allow interested parties access to
reports, findings and other informative
material relevant to ongoing corrective
action activities at the facility. A
repository would generally be required
where the RCRA site is similar to sites
listed on the NPL under CERCLA in
terms of the magnitude of contamination
and potential for exposure to hazardous
wastes.
As provided by S 270.36(b), the
information repository would contain all
public information that the Director
determines to be relevant to public
understanding of corrective action
activities at the facility (i.e., material
determined to be confidential business
information would not be included). For
example, copies of RFI plans and reports
and CMS plans and reports would
generally be included in the repository.
Background material that would also
typically be maintained in the repository
would include copies of relevant RCRA
regulations and press releases.
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The repository would be located at a
local public library, town haQ, public
health office, EPA Regional or State
office, or another public location within
reasonable distance of the facility- In
instances where this is not feasible due
to the remote location of the facility, for
example, the Director would require that
the repository be established and
maintained at the facility. Regardless of
the location, however, interested
persons must be allowed reasonable
access to the repository. For example, it
may be appropriate to require a facility
to provide additional hours of access
(s.g,, beyond normal business norm).
depending, among other things, on the
degree of public interest In corrective
action activities at the facility and the
timing of public meetings or hearings.
The Agency solicits comment on where
and when the information repository
should be reqaired.
The Director would specify
requirements that the permittee must
satisfy fa informing the public of ti»
existence of the information repository
in the permit schedule of compliance.
(See proposed f 27O£8(d).) At a
mJnimnm, the Director would reqaire the
facility owner/operator to notify
individuals on the mailing list of the
repository's establishment S/he might
also be required to provide public notice
ta a local newspaper. An EPA contact
person to whom comments can be'
submitted will be identified.
The information repository proposed
today is similar to the repository
established at CERCLA sites.
Experience under CERCLA has shown
that the pabltc is frequently concerned
about nearby remedial activities and
that this interest is effectively served by
a repository. Withoat such a repositorjr.
the burden would be on citizens to
locate and contact the appropriate
officials knowledgeable about the site in
Regional EPA or State offices.
There are two major differences
between the information repositories in
today's proposal and the repositories
included in the CERCLA program. First.
information repositories are required for
all CERCLA sites whereas they will be
required lor RCRA sites only as
determined to be appropriate by the
Director. In m^ng such a
for the basis of EPA's
determination, the Director would
consider tbe extent of rnTitn""r">H"n.
the scope and complexity of the
remedial action, and the degree of
public interest Second, designated
information repositories under CERCLA
generally house the administrative
record for CERCLA actions. Under the
RCRA permitting program,
administrative records, which provide
decisions and other parts of the record.
are maintained by EPA Regional offices
(or authorized States) at the VV^HQH of
the Regional offint*. Because the RCRA
record is kept elsewhere, where it is
available for public inspection, the
Agency does not believe it is necessary
to duplicate the entire administrative
record for RCRA sites at information
repositories.
5. Major Permit Modifications
(§ 270.41(a)(5)(ix). Section
270.41{aH5Xix) of today's proposal
would add a new provision to the major
permit modification requirements
allowing the Agency to reopen a permit
for good cause to modify a permit for
reasons arising from corrective action
requirements under subpart S of 40 CFR
part 264. The Agency would use mis
authority to modify permits after a
remedy has been selected under
proposed S 264.525, or to recommence
corrective action after a no-action
decision had been made under 3 254.514.
In addition, the Agency might use this
authority to begin corrective action after
notification of a new SWMU or a new
release under S 270.30(1)112). The
Agency believes that it already has the
authority to modify permits in this ,
situation under § 270.41(a)(2), which
allows it to modify permits when new
information justifies the application of
different permit conditions. However,
the Agency is proposing to amend these
regulations to clarify its authority.
Modifications under proposed
S 27D.41(a)(5J(ix) would undergo the niQ
permit modification procedures of 40
CFR part 124— that is. there would be
public notice, a 45-day comment period,.
• and a public hearing, if requested. In
addition, the jnn^'Bf-aHrm could be
appealed through EPA's administrative
appeal procedures.
The introductory paragraph of
S 270.41 has also been amended to make
it dear that EPA-initiated modifications
may be made pursuant to $27034(0), as
well as 1 270.41. This paragraph has
been reprinted in Ml for purposes of
clarity. EPA is seeking to change, and is
seeking "tmTnontn only, on those
references to new S 27D.34(c) and the
balance of the paragraph.
0. Conforming Changes to
Requirements for Pennite-by-Rule
(§27O£O{b)t3);§270.8O[cX3){riii}). The
subpart S regulations also apply to ,
RCRA "permits-by-rule" for Class I
hazardous waste injection wells, and
publicly owned treatment works
(POTWs) that receive hazardous waste
by truck, rail or dedicated pipeline (see
40 CFR 270.60 and conforming changes
in today's proposal). Today's proposal
provides conforming changes to | £70,60
to reflect the deletion of S 264.101 from
the current aubpart F requirements. The
current "permit-by-rule" requirements
for Class I hazardous waste injection
wells (§ 27060(bH3)) and POTWs that
have a National Pollutant Discharge
Elimination System (NPDES) permit and
that receive hazardous waste by truck,
rail or dgdicated pipeline
(5 27O60{c)l3Xvii)) stipulate thai owners
and operators of these facilities must
comply with the 1264.101 requirements
hi order to obtain a RCRA "permit-by-
rule". The references to S 254.101 in
these two sections have been replaced
with references to the requirements of
today's proposed subpart S, reflecting
that these facilities will be subject to all
requirements in this new subpart
Further infarrrmHofi on how EPA plans
to implement corrective action at these
types of permit-by-rule faculties can be
found in the preamble to the December
1.1987, Codification Rule (52 FR 45788)
for underground injection control (UIC)
wells and in "Guidance for
Implementing RCRAPermit-by-Ruie
Requirements atPOTWs." issued on
July 21.1987 (contact Permits Division,
Office of Water Enforcement and
Permits, at (202) 475-9545).
7. Alternative Dispute Resolution.
During the process of investigating
releases and studying remedies for
RCRA facilities. EPA anticipates that
some disagreements between the
Agency and the owner/operator may
arise rggnrHir^fl various technical or
procedural issues. For example, in
defining the technical scope of a work
plan for remedial investigations, the
Agency's technical judgment as to die
numbers or placement of ground-water
monitoring wells may differ from the
permittee's. ',
In most cases, the Agency anticipates
that such disagreements Mn and will be
resolved through mnKmring i
communications between Ate owner/
operator and the Agency. However. EPA
recognizes mat mere wul inevitably be
some disagreements which cannot be
resolved by such means. In these cases.
there are several options the Agency
may employ to resolve the dispute and
prevent unacceptable delays in
implementation of corrective action
requirements. Such options include the
use of a more formal type of dispute
resolution process; enforcement action
under RCRA section 30D8(a); or a
modification of the permit The choice of
options win depend on the specific
issues under dispute and the
circumstances at the facility. For
situations where the requirements at
issue are clearly defined In the permit
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30851
schedule of compliance, but where the
permittee refuses, or otherwise
demonstrates an unwillingness to
comply with the requirements, EPA
would intend to utilize enforcement
options (e.g., section 3008(a)) to compel
appropriate action by the permittee.
Alternatively, a modification to the
permit schedule of compliance (such as
the process defined in today's proposed
S 270.34(c)) may often be chosen as the
appropriate mechanism for resolving
disputes in situations where the
requirement at issue is less specifically
defined and when the Agency and the
permittee are unable to negotiate an
acceptable agreement
The use of enforcement authorities for
corrective action, and the permit
modification process proposed today at
§ 270.34(c) are discussed elsewhere in
today's preamble. The remainder of this
discussion focuses, therefore, on the
potential use of alternative dispute
resolution techniques to resolve
disagreements.
On August 14,1987, EPA's "Final
Guidance on Use of Alternative Dispute
Resolution (ADR) Techniques in
Enforcement Actions" discussing
multiple ADR techniques was issued. In
this guidance document, the Agency
articulated its intention of encouraging
the use of alternative dispute resolution
techniques where there is reason to
believe that one or more of the
techniques discussed in the guidance
may lead to expeditious final
compliance agreements. The Agency
believes that some of the techniques
discussed in this guidance may be useful
in resolving disputes which arise in the
corrective action process under RCRA
permits. A copy of this guidance is
included in the docket established for
today's rulemaking.
In particular, EPA is examining the
use. of a neutral, third-party mediator in
the context of a time-limited, non-
binding negotiation process to resolve
corrective action disputes. The Agency
is not prescribing the use of such a
process as a provision of today's
proposed regulation, however, or any
other process. Given the Agency's
limited experience with ADR to date it
is premature to include any specific
ADR technique within a RCRA
regulatory framework. EPA intends to
encourage, when appropriate, the use of
ADR in certain situations as the RCRA
corrective action program evolves. The
Agency is specifically seeking comment
today on several issues associated with
alternative dispute resolution in the
context of corrective action. These
issues are: (1) For what types of
corrective cclion issues and disputes
would ADR techniques be most useful?
(2) What techniques (e.g., mediation,
fact-finding, mini-trials) are most
suitable for this purpose? and (3) Who
should bear the cost (e.g., of third-party
mediators) of alternative dispute
resolution?
M. Conforming Changes to Closure
Regulations (Section 264.113,265.112
and 265.113)
1. General. As discussed further in
section VII.C. of today's preamble,
corrective actions undertaken at a
facility may affect closure of regulated
units under applicable standards of 40
CFR parts 264 and 265, subpart G. For
example, closure requirements for
regulated units contain certain deadlines
that may be unpractical if corrective
action is required at the facility and the
closing unit is being used to receive
corrective action wastes. EPA today is
proposing to amend the closure
regulations in 5§ 264.113,265.112, and
265.113 to simplify extension of these
deadlines when doing so would assist in
implementing corrective action. The
Agency is also proposing to expand part
265 closure plan information
requirements to include information on
SWMUs.
It is important to note that the part 264
and part 265 subpart G closure
regulations apply only to hazardous
waste management units. Today's
proposed changes to closure regulations
are designed to address potential effects
of subpart S or F corrective action on
the closure of such hazardous waste
management units. Corrective action at
SWMUs that are not used for the
management of hazardous waste is not
subject to subpart G regulations.
In addition, as discussed earlier in
this preamble, S 264.551(a) provides the
Regional Administrator with the
authority to waive subpart G
requirements (except for S 264.111) for
units created for the purpose of
managing corrective action waste.
The reader should note that the
proposed changes are for both permitted
hazardous waste units (part 264
standards) and interim status hazardous
waste units (part 265 standards).
Although today's rule primarily
addresses corrective action at permitted
facilities, interim status facilities which
close without an operating permit are
potentially subject to corrective action
under orders issued pursuant to Section
3008(h) of RCRA. or they may wish to
conduct corrective action voluntarily.
Therefore, conforming changes are being
proposed for both permitted and interim
status units.
2. Clarifications. The following
discussion clarifies several points
relating to corrective action and the
closure of hazardous waste management
units, and explains how existing
regulations and authorities can be used
to address potential conflicting interests.
a. Extension of Closure Deadlines—
(1) Notification of Closure. Under
current regulations, when a unit ceases
to receive hazardous waste, the owner/
operator is generally required to notify
the Agency and initiate closure of the
unit (§ 264.112(d) or S 265.112(d)). In
order to perform needed corrective
action without posing unnecessary
implementation problems, the Regional
Administrator may find it necessary to
require suspension of the acceptance of
wastes at the unit temporarily. For
example, it may be necessary to drain
liquids from a surface impoundment to
allow reinforcement or repair of a berm
to prevent migration to a nearby surface
water body. However, closure of the
unit may not be desirable at that time
since available capacity in the unit, once
it is repaired, could be beneficially used
for the disposal of wastes generated in
the course of corrective action. The
Agency believes that the current
requirements at §§ 264.112(d) and
265.112(d) provide sufficient flexibility
to accommodate temporary suspension
of waste receipts to facilitate corrective
action without triggering the notice and
closure initiation requirements. These
regulations allow the Regional
Administrator to grant an extension to
the deadline for beginning partial or
final closure if the acceptance of waste
is suspended only temporarily and
additional hazardous waste capacity
remains in the unit. Thus, the Director
may allow an extension of time for the
initiation of closure activities when
capacity in the unit could be beneficial
for disposal of corrective action wastes
from other SWMUs at the facility.
(2) Time Allowed for Closure. For
hazardous waste management units that
will be required to close, but where
corrective action is required prior to or
in conjunction with closure, the owner/
operator may find it difficult to comply
with the timing requirements of
S 264.113 or S 265.113. These provisions
currently require that within 90 days
after receiving the final volume of
hazardous waste at a unit, the owner or
operator must treat, remove, or dispose
of the waste off-site, and that closure of
the unit be completed within 180 days
after receiving the final volume of
hazardous waste. However, extensions
to these deadlines may be necessary
because corrective action may interfere
with the owner or operator's ability to
comply with the deadlines for
completing closure. Sections 264.113 and
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Federal Segbrtet / VoL 55. No. 145 / Friday. July 27. 19SO / Propped Rules
205.113 cuuejjuy cftiitftht provisions for
flKlftllllillg ClOSCre deaCllmCS UnQBT
certain ciiiaiiii«<«nra.«. EPA bdierea that
ths need to take corrective action at the
imib or to receive wastes front other
SWMUs, Is already included vnthin the
existing criteria for granting these
extensions. However, to clarify this
point, EPA I* proposing today to amend
§ § 2S4.113 and 265.113 explicitly to
include corrective action among the
criteria for granting an extension to the
deadline for completing closure
activities
b. Modification of Closure PJam.
Corrective actions may bring about
changes in unit and facility design and
operation that will require a resulting
modification to the closure plan and
closure cost estimate for a hazardous
waste management unit For example, a
unit may be expanded to accept waste
generated during corrective action at
other SWMUs as part of the remedy for
a facility. Under f 284-112(c) and
§ 265.112(c), amendments to closure
plans are required when changes in
operating plans or facility design affect
the closure plan. When interim
measures or the final remedy selected
affect the closure plan for a hazardoas
waste management unit, bom the plan
and the associated cost estimate must
be amended according to requirements
of sobparts G and H. For permitted
units, the closure plan and coet estimate
amendments may ba
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30853
conducted pursuant to the NCP at a
RCRA facility addressed only a portion
of the unite or release* at the facility
requiring remediation, the permit would
address any such remaining corrective
action requirements pursuant to subpart
S.
2. Listing RCRA Sites on the National
Priorities List (NPL). EPA is
emphasizing coordinated
implementation of the RCRA and
CERCLA programs. Of particular
importance is the Agency's policy for
listing RCRA facilities on the National
Priorities List (NPL). Section 105(a)(8)(B}
of CERCLA requires EPA to establish
the NPL list to set national priorities
among sites with known or threatened
releases where action under CERCLA
may be warranted. A site must be listed
on the NPL before a remedial action can
be financed by the Hazardous
Substances Trust Fund established
under CERCLA.
The Agency's policy regarding the
listing of RCRA facilities on the NPL
was outlined in a November 23,1985,
Federal Register notice (50 FR 47912].
The policy states that sites that can be
addressed by RCRA subtitle C
corrective action authorities generally
will be deferred from placement unless
they fall within certain exceptions. For a
more detailed discussion of these
exceptions, see 54 FR 41004-6 (October
4.1989).
The proposed RCRA listing policy,
however, does not apply to Federal
facilities. These are listed on the NFL, as
required under CERCA {120, as
amended under SARA (52 FR 17991,
May 13,1987).
3. Use of CERCLA to Supplement
RCRA Authorities. EPA intends to clean
up hazardous waste sites by selecting
the most appropriate response and/or
enforcement authorities from among aH
of-those available. Accordingly, several
CERCLA authorities may be used at
RCRA facilities. For example, fund-
financed removal actions under
CERCLA section 104 can be taken at
RCRA sites when necessary to respond
promptly to a release. Although
removals may be conducted whether or
not the site is listed on the NPL, such
actions must be undertaken in response
to a release or substantial threat of a
release and must be consistent with the
criteria outlined in the National
Contingency Plan and CERCLA. EPA
may seek reimbursement of costs of
these actions from generators,
transporters, or owner/operators of
treatment, storage, or disposal faculties
pursuant to CERCLA section 107.
Where an "imminent and substantial
endangerment" may be posed by a
release at a RCRA facility, the Agency
may employ either a CERCLA section
108 or RCRA section 7003 order. As
noted earner, these authorities will be
particularly useful in addressing
contamination from SWMUs that
requires prompt action.
The Agency may also use CERCLA or
joint efforts with States in conjunction
with RCRA to address situations of
"area-wide" contamination. Preliminary
investigations have shown that at some
RCRA faculties substantial portions of
on-site contamination is contributed by
adjacent facilities not under RCRA
jurisdiction. Corrective action at a single
RCRA faculty alone, therefore, might do
little to restore overall environmental
quality. In these cases, it may be
appropriate to apply both RCRA and
CERCLA authorities or other Agency
authorities in a comprehensive program
to address all sources of the release and
provide complete remediation of the
area. This would allow a comprehensive
cleanup of an area (CERCLA trust funds
would be used only where the site
scored 28.5 or higher under the HRS)
that has become contaminated as a
result of activities at multiple facilities,
including both operating and abandoned
faculties.
In situations where CERCLA section
104 or section 106 remedial activities
have been initiated, and where a RCRA
permit is to be issued to the facility, the
Agency may choose to continue these
remedial actions under CERCLA
authority. In such cases, the CERCLA
cleanup would be referenced in the
RCRA permit and the Agency would
take steps to ensure that further cleanup
under RCRA section 3004(u) would not
be required at the affected portion of the
faculty. At the same time, RCRA may be
used to address other cleanup needs at
the facility that are not addressed by the
CERCLA action underway.
Alternatively, the cleanup may be
shifted to RCRA and the selected
remedy incorporated into the permit
through a permit modification.
B. PCB Spill Policy Under TSCA
EPA regulations under the Toxic
Substances Control Act (TSCA)
controlling the disposal of PCBs,
published in the Federal Register of
February 17.1978 (43 FR 7150) and May
31.1979 (44 FR 315741 define the term
disposal to encompass accidental as
well as intentional releases to the
environment When PCBs in
concentrations of 50 parts per million
(ppm) or greater are improperly
disposed (or when material at less than
50 ppm got that way through dilution),
EPA has the authority under section 17
of TSCA to compel persons to take
actions to rectify damage or clean up
contamination resulting from the spilL
Before May 4,1987, standards for the
cleanup of spilled PCBs were set by EPA
Regions on a case-by-case basis.
However, EPA believed that uniform,
predictable, nationwide requirements
for the majority of spills would reduce
risks to PCB spill sites by encouraging
rapid and effective cleanup and
restoration of the sites; accordingly, EPA
established a nationwide policy for PCB
spill cleanup. On April 2,1987, EPA
published the TSCA policy for the
cleanup of spills resulting from the
release of materials containing PCBs at
concentrations of 50 ppm or greater.
(See 52 FR 10688.)
The policy requires cleanup of PCBs
to different levels depending on spill
location, the potential for exposure to
residual PCBs remaining after cleanup,
the concentration of the PCBa initially
spilled, and the nature and size of the
population potentially at risk of
exposure. The policy imposes the most
stringent requirements on areas where
there is the greatest potential of direct
human exposures, and less stringent
requirements where there is little
potential for any direct human exposure.
While the policy is expected to apply
to the majority of spill situations, the
policy does provide for exceptional
situations that may require additional
cleanup or less cleanup at the direction
of the EPA Regional offices. Further.
some spills are outside the scope of the
policy. Such spills include: Spills
directly into surface water, drinking
water, sewers, grazing lands, and
vegetable gardens. Final cleanup
standards for these types of spills are
established by the EPA Regional offices
on a site-specific basis.
RCRA corrective action authority
under section 3004(u) applies to PCBs
because PCBs are listed as an Appendix
VHI constituent in 40 CFR part 281. PCB
releases from solid waste management
units at permitted RCRA facilities are
addressed in accordance with TSCA
PCB spill cleanup policy. These solid
waste management units would often
technically be considered "old spills'*
under the spill policy. It is the Agency's
belief that the cleanup levels and
practices discussed in the policy will be
appropriate in many situations, and that
when necessary, site-by-site evaluations
should still be required.
C. Other Elements of RCRA Subtitle C
Program
1. Relationship to Subpart F Ground-
Water Corrective Action. Existing
RCRA regulations for ground-water
corrective action (40 CFR Part 264,
subpart F) prescribe a specific approach
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for detection, characterization, and
cleanup of contaminated ground water
from regulated land disposal units which
received waste after July 28,1982.
Sub-part F is a "prospective" program
requiring that monitoring be established
to detect contamination, and that if
detected, contaminated ground water be
removed or treated in place if or when a
ground-water protection standard has
been exceeded. There is additional
discussion of current Subpart F
corrective action in section IV of today's
preamble.
Achieving a coordinated, facility-wide
approach to cleanup of releases from
both regulated units and other solid
waste management units is a basic
objective of the Agency. However, the
universe of units and contamination
being addressed by subpart S corrective
action regulation is somewhat broader
in scope.
To ensure consistency in
implementing corrective action at both
regulated units (a subset of SWMUs)
and other solid waste management
units, and to achieve environmental
results as rapidly and effectively as
possible, the Agency is developing a
proposal that would restruqture the
current subpart F regulations to make
them consistent with the key features of
subpart S. These proposed revisions to
subpart F are expected to be issued
relatively soon. It is expected that these
revisions will reference a number of
specific sections of today's subpart S
proposed regulations; likewise, for the
sake of clarity and consistency, the final
subpart S rule may also contain cross-
references (that do not appear in today's
proposal) to certain subpart F
provisions.
2. Land Disposal Restrictions
Pfogram. As enacted on November 8,
1984. the Hazardous and Solid Waste
Amendments CHSWA) to the Resource
Conservation and Recovery Act (RCRA)
impose restrictions on the land disposal
of hazardous wastes. In HSWA,
Congress specified dates when
particular groups of hazardous wastes
not meeting treatment standards are
prohibited from land disposal unless it
can be demonstrated that "no migration
of hazardous constituents from the
disposal unit or injection zone for as
long as the wastes remain hazardous'.'
will occur (RCRA section 3004(d)(l),
(e)(l), and (g){5)). The dates specified by
Congress for triggering the land disposal
restrictions are listed below: •
* Solvents and dioxins by November
8,1688;
• California list wastes by July 8,
1987; and
• Scheduled wastes by August 8,1988
(First Third), June 8, 1989 (Second
Third), and May 8,1990 (Third Third).
Note: A separate schedule was established
for hazardous wastes disposed of by deep
well underground injection.
HSWA required the Agency to set
"levels or methods of treatment, if
any, which substantially diminish the
toxicity of the waste or substantially
reduce the likelihood of migration of
hazardous constituents from the waste
so that short-term and long-term threats
to human health and the environment
are minimized" (RCRA section
3004(m)(l)). To date, EPA has developed
treatment standards based on the
performance of best demonstrated
available technologies (BDAT) in a
series of five rulemakings. After the
appropriate effective date, wastes for
which treatment standards have been
promulgated must meet those standards
before the wastes may be land disposed.
Where adequate treatment capacity
was not immediately available on the
statutory effective date, the Agency
granted a national capacity variance.
This established an alternative
prohibition effective date for the waste
of up to two years. During a variance,
wastes not treated in compliance with
applicable treatment standards may be
disposed of in surface impoundments or
landfills only if they meet the minimum
technological requirements (RCRA
section 3004(o)). Furthermore, wastes
granted this variance must be in
compliance with the California list
prohibitions if they are applicable, and
are subject to the paperwork
requirements of 40 CFR 288.7.
The rules promulgated to date are
summarized below:
• Solvents and Dioxins. On November 7,
1986, regulation! were promulgated
establishing the implementation framework
of the LOR program (51FR 40572). In this
rulemaldng, EPA promulgated treatment
standards and e£fectiv« dates for spent
solvents and dioxin-containing hazardous
wastes identified as EPA Hazardous Waste
numbers FOol-FCCo. F021-FOZ3, and F026-
F028 (40 CFR 258.30 and 268.31).
• California List Wastes. On July 8,1987,
regulations were promulgated restricting land
disposal of the California list hazardous
wastes (52 FR 25760). Treatment standards
wen established for liquid and nonliquid
hazardous waste containing halogenated
organic compounds (HOC*), and for liquid
hazardous wastes containing polychlorinated
biphenyU (PCBs). The statutory prohibitions
on land disposal of corrosive wastes and
liquid wastes containing certain metals were
codified and became effective immediately.
• The Scheduled Wastes. On Augusts,
1988.-the Agency promulgated regulations for
certain scheduled wastes (40 CFR 268.10),
referred to as First Third wastes. Treatment
standards were established for most of the
wastes identified by EPA Hazardous. Waste
numbers "F1 and "K." Wastes scheduled in
the First Third for which treatment standards
were not set were subject to the "soft
hammer" provisions of { 268.8. On June 8,
1989, the Agency promulgated regulations for
the Second Third of the scheduled wastes (40
CFR 288.11). In the Second Third final rule,
the Agency also set standards for certain
First Third soft hammer wastes, Third Third
wastes, and newly listed wastes. This rule
also set effective dates for underground
injected wastes. On May 8,1990, the Agency
promulgated treatment standards and
effective dates for the remaining soft hammer
wastes, wastes listed in the Third Third of
the scheduled wastes (40 CFR 268.12), wastes
that were rescheduled to the Third Third, and
five newly listed wastes.
Separate rulemakings for the
underground injection control (UIC)
program established hazardous waste
disposal injection restrictions and
requirements and set effective dates for
underground injected solvents, dioxins,
California list wastes, and First Third
scheduled wastes (40 CFR parts 124,144,
146, and 148).
Corrective action taken under today's
rule must comply with the land disposal
restriction requirements of 40 CFR part
268. The prohibitions do not apply to
hazardous wastes placed into land
disposal prior to the effective date of an
applicable land disposal restriction, if
such wastes do not have to be removed
or exhumed for treatment. Furthermore,
as explained in the preamble to the NCP
revisions (published on March 8,1990),
the Agency has determined that
placement, and thus land disposal, of
hazardous wastes does not occur when
waste is moved or treated in-situ within
a unit This is particularly important for
RCRA corrective action since many
remedial actions are likely to involve
treatment consolidation, and capping of
wastes within existing units. Wastes
moved or treated within such units
would not be subject to the land
disposal restrictions. Placement does
occur, and the land disposal restrictions
apply, when waste is removed from the
unit for treatment or other purposes and
the waste or residuals are returned to
the unit, or to a different unit
3. Relationship to section 3004(n)
Standards. RCRA section 3004(n)
requires the Agency to promulgate
standards for the control and monitoring
of air emissions from hazardous waste
management units subject to permitting
standards other than subpart S at
treatment storage, and disposal
faculties (TSDFs). The goal of these
standards is to protect human health
and the environment as necessary from
air emissions associated with
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3OBS5
management of hazardous wastes.
Currently, the Agency is developing
standards under section 3004(n) that will
apply to certain hazardous waste
management units covered by today's
proposal under section 3004(u). Section
3004{n} standards for air emissions
associated with equipment leaks and
certain process vents at TSDFs were
proposed in February 5,1987 (52 PR
3748) and are expected to be finalized in
June, 1990; standards for volatile organic
emissions from certain other TSDF
emission sources will be proposed at a
later date.
The standards being developed under
section 3004(n) will require engineering
controls at units that manage hazardous
waste. Air emissions will be controlled
through, among other filings, some
combination of covers and add-on
control technologies which capture the
air emissions for recovery or
destruction.
Although standards developed under
section 3004{n) will only address air
emissions from hazardous waste
management units at TSDFs (a subset of
all SWMUs). they are expected to
provide valuable guidance for
addressing air emissions from other
SWMUs used for management of non-
hazardous solid waste. In addition to the
standards being developed under
section 3004(n} of RCRA, the Agency is
examining technical approaches and
policy options for regulating, under the
Clean Air Act. air emissions from
SWMUs in which non-hazardous solid
wastes are managed.
The Agency is today proposing a
specific approach to imposing corrective
action requirements on certain air
releases from SWMUs in today's
proposal. The proposed approach is
designed to be flexible enough to be
used in conjunction with the section
3004{n) standards being developed.
When,the section 3004(u) standards are
developed. EPA will make any
adjustments to the subpart S standards
necessary to ensure a consistent and
complementary approach.
4. Administrative Orders Under
RCRA section 3OO8(h). The section
3008(h) authority for interim status
corrective action orders provides a
sister authority to section 3004(u] for
requiring corrective action at non-
permitted RCRA facilities.
Corrective action may be required
under section 3008(h) whether the
facility is operating (prior to receiving *
permit) under interim status, is closing
or is closed under interim status, has
lost interim status, or failed to properly
obtain interim status. Corrective action
orders under section 3008{h) may be
issued unilaterally by the Agency or
they may be issued as consent
agreements between the owner/
operator and the Agency.
In many cases, the entire corrective
action process for a facility will be
implemented under a section 3CQ8(h)
order. However, in some cases a facility
that has been issued a section 3008(h)
order will be issued a permit prior to
completion of the activities specified in
the order. In such cases, the Agency
may require the owner/operator to
continue all or some of the activities
under the order, or may incorporate the
requirements of the order into the RCRA
permit
In any case, EPA intends that
equivalent environmental results will be
achieved whether corrective action
requirements are imposed in an order
under section 3008(h) or a permit
Accordingly. EPA expects that orders
issued under section 3O08(h) generally
should follow the substantive
requirements of today's proposal (eg-
remedy selection factors to be
considered), as well as procedural
elements (&#., triggers for moving from
one phase of corrective action to the
next). There will, however, be some
procedural differences between orders
and permits in implementing corrective
action. On April 13,1988, EPA
promulgated rules for administrative
procedures for issuing orders under
section 3008(h). (See 53 FR12256.)
The section 3008(h) enforcement
authority will not be delegated to States.
States which desire enforcement
authorities equivalent to section 3008(h)
and do not already have such
authorities in existing legislation will
need to enact parallel statutory
enforcement authorities. While
procedural aspects of issuance of
section 3008(h) orders do not duplicate
the procedural aspects of today's
proposed rule for corrective action
under permits, the procedures for both
are designed to ensure equivalent
results and to provide adequate
participation in the process for aH
interested parties.
5. Financial Assurance for Corrective
Action. As discussed in section IV of
this preamble, EPA proposed financial
assurance requirements for corrective
action (FACA) on October 24,1986 (51
FR 37854). The fourteen commenters on
the FACA proposal generally supported
the flexibility of the Agency's approach.
The procedures presented in FACA and
today's regulatory changes to these
procedures are summarized below.
a. Timing. In today's rule, EPA is
proposing specific language that wiQ
clarify when financial assurance for
corrective action must be demonstrated.
Section 264.526(c] requires that, after
selection of the remedy, the Director
shall modify the facility permit and
schedule of compliant to require a
• demonstration of financial assurance
within 120 days of the effective date of
the permit modification. This
requirement, which is a clarification of
the requirement proposed in the 1988
FACA proposal, is discussed further in
sections VLF and VLG of today's
preamble.
In addition to this approach. EPA
requested comment in the FACA
proposal on a second, more complicated,
approach. In this approach, the facility
would be required to demonstrate
financial assurance once corrective
action is determined to be necessary,
but before the corrective action
measures and cost estimate are
specified in the permit Adjustments to
the amount of financial assurance would
be required after specification of the
corrective measures and cost estimate in
the permit
Most commenters on the FACA
proposal supported the proposed
approach. However, some commenters
argued that financial responsibility
demonstrations should be made not at
the time the cost estimate is completed,
but rather prior to permitting. The
Agency disagrees, since unnecessarily
early demonstration of financial
assurance may increase the number of
bankruptcies, increase the amount of
unfunded corrective actions, and thus
result in less environmental protection.
b. Cost Estimation. The 1986 FACA
proposal required facility owners or
operators to submit a cost estimate for
corrective action, consisting of two
parts: (1) A year-by-year current cost
estimate of required corrective action in
undiscounted current dollars; and (2) the
sum of these year-by-year estimates of
corrective action costs. The Agency
proposed that third-party costs, rather
than first-party costs, be used to
estimate yearly and total corrective
action costs (/.a, costs of contractor
labor rather than the owner's or
operator's own labor). The corrective
action cost estimate must be revised if
changes in corrective measures alter the
cost or expected duration of corrective
action. The proposal also would require
the owner or operator to adjust the cost
estimate annually to account for
inflation, using either recalculations in
current dollars or an inflation factor
derived from the most recent annual
Implicit Price Deflator for the Gross
National Product published by the
Department of Commerce.
In addition to the annual inflation
adjustment required under the FACA
proposal. EPA is today proposing in
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Federal Register / Vol. 55. No. 145 / Friday. July 27, 1990 / Proposed Rules
12&4.527(c) to require that cost
estimate* be revised, if necessary, upon
approval of the remedy design. The
financial assurance mechanisms must
bo adjusted to reflect any changes in the
cost estimate. This requirement is
discussed further in section VI.H of
today's preamble.
c. Allowable Mechanisms. Under the
October 24,1988, FACA proposal,
owners or operators who are
responsible for performing corrective
action would be required to demonstrate
financial assurance through one or more
of the following mechanisms: trust fund,
surety bond guaranteeing performance,
letter of credit, financial test, or
corporate guarantee. A letter of credit
and a trust fund may be combined to
demonstrate financial responsibility and
a single mechanism may be used to
demonstrate financial responsibility for
multiple facilities. The rationale for
authorizing the use of these mechanisms
and for the regulatory framework for
financial assurance for corrective action
is similar to that for the financial
assurance requirements for closure and
post-closure care under part 264, subpart
H (47 FR15032, April 7,1982). The key
differences between the FACA proposal
and Subpart H are that insurance and
surety bonds guaranteeing payment into
a standby trust fund were not deemed
appropriate mechanisms for corrective
action situations and are not allowed.
Additionally, the proposed fund
includes a pay-in period and pay-in
formula which accounts for the costs of
corrective action (see 51 FR 37854 et
sag.].
Commenters on the FACA proposal
generally supported the range of
allowable mechanisms, but offered
specific suggestions for altering the
requirements of particular mechanisms
(».#., shorten the pay-in period for the
trust fund). The Agency will address the
commenters suggestions when the final
FACA requirements are promulgated. In
the interim, EPA intends to rely on the
FACA proposal as a guide. The Agency
expects that in most cases financial
assurance will be demonstrated by use
of instruments that are consistent with
the proposed regulatory language of
FACA. However, other instruments may-
be permissible if the owner or operator
demonstrates, to the satisfaction of the.
Agency, that such instruments provide
an acceptable level of financial
assurance.
The fundamental criteria the Agency
will use in evaluating the acceptability
of other instruments are: (1) the
certainty of the availability of funds,
and (2) the amount of funds assured.
The certainty of the availability of funds
from alternate mechanisms should be
equivalent to. the certainty provided by
existing financial assurance
mechanisms under 40 CFR part 264,
subparts G and H. For example, the
alternative mechanisms should provide
that the Regional Administrator or State
Director has the sole authority to direct
the payment or use of funds or must
provide for prompt notification of intent
to cancel the mechanism. To be deemed
equivalent in terms of the amount of
funds, the alternative mechanisms
should meet several criteria, such as
providing that the funds cannot be used
for other purposes, and providing that
the amount of funds are equal to the
current cost estimate.
D. RCRA Subtitle D: Solid Waste
Disposal
Today's proposal is for corrective
action at facilities subject to RCRA
permits issued under the authority of
section 3005 of RCRA (i.e., those which
treat, store, or dispose of hazardous
waste as defined under RCRA). The
disposal of non-hazardous solid waste
falls under the authority of subtitle D of
RCRA. EPA has two major roles under
subtitle D. The first is to establish
minimum national performance
standards (under the authority of
section 4004) for the protection of human
health and the environment from solid
waste disposal facilities. The second is
to help the States make appropriate
solid waste management decisions by
offering up-to-date technical assistance.
Some of the subtitle D standards for
protection of human health and the
environment from solid waste disposal
facilities could apply or be relevant to
subtitle C facilities. For example.
S S 257.3-257.8 provides safety limits for
the concentration of explosive gases
generated by a facility (defined under
§ 257.2 as any land and appurtenances
thereto used for the disposal of solid
wastes). It may be appropriate to apply
this requirement to subtitle C facilities
with solid waste management units that
could generate methane (e.g., landfills
used for disposal of municipal-type
wastes). Thus, the Agency could require
compliance with the part 257
requirements for explosive gases if such
situations were encountered at a subtitle
C facility undergoing corrective action
according to subpart S.
Passage of HSWA added section
4010(c) to subtitle D. Section 4010(c)
required EPA to revise criteria
promulgated under section 4004(a) for
facilities that may receive household
hazardous wastes or small quantity
generator hazardous wastes. The statute
indicated that these criteria must
include, at a minimum, ground-water
monitoring necessary to detect , .
contamination, location standards, and
corrective action, as appropriate. The
statute also indicated that the criteria
should take into account the practicable
capability of such facilities.
On August 30,1988, EPA proposed
these revised criteria for municipal solid
waste landfills (see 53 FR 33313). The
criteria for subtitle D municipal solid
waste landfills most relevant to today's
proposal are the criteria proposed for
ground-water monitoring and corrective
action under subpart G of 40 CFR part
258.
The part 258 subpart G proposal
would require the owner/operator of a
municipal solid waste landfill to
establish a two-phase ground-water
monitoring program. If parameters
established for Phase I monitoring are
detected at a statistically significant
level above background, the owner/
operator must initiate a phase n
monitoring program which includes an
initial test for all constituents listed in
appendix IX of 40 CFR part 264. If the
concentration of any appendix IX
constituent exceeds the established
trigger lever, as discussed below, then
the owner/operator must initiate an
assessment of the nature and extent of
the contamination.
Like the subpart F program under
subtitle C, the corrective action program
proposed in 40 CFR part 258, 'subpart G,
for municipal solid waste landfills
would be limited to releases to ground
water. The corrective action program, aa
described in subpart G, would have to
be designed to delineate the area! extent
of the plume of contamination and to
clean up to maximum allowable
constituent concentrations throughout
the plume. Ground-water protection
standards would be set using the same
health and environmental based criteria
as those employed in today's proposal
for subtitle C corrective action for solid
waste management units. The
requirements for ground-water cleanup
in the corrective action program
described in the revised subtitle D
criteria are thus very similar to those
described in today's subtitle C
corrective action proposal The subtitle
D revised criteria will not however,
address procedural requirements;
procedures for implementing the criteria
will be established by the States.
R RCRA Subtitle/: Undarground
Storage Tanks
Section 9003 of subtitle I of the
Resource Conservation and Recovery
Act [RCRA) directs EPA to promulgate
regulations applicable to owners and
operators of underground storage tank
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30857
(UST) systems to protect human health
and the environment Section 9003(c)
specifically requires EPA to promulgate
regulations applicable to owner/
operators of UST systems which require
corrective action in response to releases
from USTs and, further, requires the
owner/operator to report the actions
taken.
Section 9003(h) was added to RCRA
by section 205 of the Superfund
Amendments and Reauthorization Act
(SARA) of 1986, which established a
Leaking Underground Storage Tank trust
fund that can be used by EPA to clean
up releases of petroleum from UST
systems. Alternatively, EPA can order
UST owners and operators to undertake
such cleanup. Under the corrective
action requirements of section 9003(c),
all petroleum UST cleanups will have to
be conducted in accordance with the
requirements in the regulations. The
approach to UST corrective action
adopts the same basic steps as the NCP
requirements for CERCLA actions and
those contained within today's proposed
RCRA section 3004 regulation: control
the release source, determine the extent
of the contamination, determine the
extent of the remediation required, and
take the necessary cleanup actions.
Specific differences in the programs
reflect the different scope and nature of
implementation under the different
programs.
EPA issued final technical standards
governing petroleum and CERCLA
hazardous substance UST systems on
September 23,1988 (— FR ).
Approximately two million USTs will be
affected by the regulations, and a wide
variety of release situations and
hydrogeologic settings are expected.
These standards would require owners
and operators of leaking UST systems to
take certain actions upon confirmation
of a release. Owners and operators must
report confirmed releases to the
appropriate regulatory authority and
begin immediate cleanup steps.
Immediate measures required under the
proposed standards include mitigation
of safety and fire hazards; initiation of
free product recovery, if applicable; and
assembling of information on the nature
and quantity of the release and site
characteristics. The owner/operator
must submit to the implementing
agency, reports describing these
immediate steps, as well as the design
and implementation of free product
recovery systems. A corrective action
plan would be required for longer-term
cleanups addressing soil and ground-
water contamination. Cleanup levels
would be established on a site-by-site
basis as approved by the implementing
agency (typically the State) that would
oversee the cleanup by the owner or
operator.
The first stage of the UST corrective
action process requires immediate steps
to abate imminent safety and health
hazards whenever a release from a
petroleum UST is confirmed The owners
and operators must investigate the
presence of free product and, if present
begin free product recovery. The owner/
operator must also submit information
characterizing the site and the nature of
the release. If, after reviewing this
preliminary information, the
implementing agency determines that
the product may have reached ground
water or that contaminated soil is in
contact with ground water, the owner/
operator must characterize the extent
and location of soil and ground-water
contamination. The implementing
agency will use this information as the
basis for determining, through a site-
specific risk assessment whether the
owners and operators will be required
to undertake a longer-term correction
action.
This second stage of the corrective
action process addresses soil and
ground-water cleanup. The site-specific
analysis is the basis for prescribing the
extent and timing of cleanup that would
be required for longer-term corrective
action. The assessment would be based
on analysis of site-specific conditions
and problems posed by the release.
Factors to be considered include: the
quantity of material released; the
. mobility, persistence, and toxicity of the
material; the exposure pathways; its
relationship to present and potential
ground-water well locations and uses;
and any relevant standards.
Technology-based cleanup requirements
would also be possible under this
approach if: (1) The cleanup level set
during the UST corrective action process
is found to be unattainable with current
technology; (2) it is shown that the
remaining contamination does not pose
a substantial present or potential hazard
to human health and the environment;
and (3) monitoring procedures are
instituted to ensure that the conditions
remain stable or improve.
EPA's approach to corrective action at
underground storage tanks is largely
shaped by the enormous size of the
regulated universe. These factors, as
well as the absence of permitting
requirements for USTs, explain the
procedural differences between
corrective action for USTs and today's
proposal.
EPA estimates that there are
approximately two million petroleum
USTs at about 700.000 facilities as well
as 50,000 hazardous substance USTs at
30,000 facilities potentially subject to
subtitle I. Because of the size of this
universe, EPA believes that the program
is best implemented at the State and
local level, and that it should be, to the
extent possible, self-implementing. Thus,
the UST rule would require that certain
automatic actions be taken at the
determination of a release: mitigation of
fire and safety hazards, recovery of free
product and repair of the leak or
removal of the tank These are all
straightforward actions particularly
relevant to the UST universe and are
amenable to self-implementing
standards. At RCRA permitted facilities,
contingency plans and tank standards
would require comparable action for
hazardous waste units. However, the
Agency did not adopt comparable self-
implementing provisions—beyond the
regular facility subtitle C standards—hi
today's rule because of the much wider
variety of units that would be subject to
subtitle C corrective action and the
close Federal or State oversight afforded
by the permit process.
The UST rule would also require long-
term remedial action for ground-water
and soil contamination, based upon a
site-specific assessment after
immediate action had been taken.
Because of the large size of the regulated
universe, the absence of a national
permitting system under which to carry
out cleanup, and the necessity of local
implementation, EPA believes a
procedurally less prescriptive approach
to selecting cleanup strategies and
cleanup levels is necessary for USTs.
Some USTs are potentially subject to
corrective action requirements under
both subtitle I and today's rule.
Specifically, releases from an UST
containing solid wastes at a RCRA
permitted facility may be subject to
corrective action requirements under
both programs. In order to avoid
confusion and because USTs located at
RCRA faculties will be subject to the
oversight provided by a site-specific
permitting process, today's regulations,
when promulgated, will be the
applicable corrective action
requirements for USTs subject to section
3004(u). The final UST rules also clarify
the applicability of the subtitle I
corrective action requirements to USTs
located at RCRA permitted facih'ties by
excluding them from coverage under
subtitle L
F. Federal Facilities
Many Federal agencies have facilities
which require RCRA permits. Some of
these agencies have developed remedial
programs which apply at their facilities
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30858
In addition to EPA programs under the
RCRA and CERCLA statutes. Regardless
of any self-imposed remedial programs,
federally-owned or operated facilities
must comply with all RCRA and
CERCLA requirements (with certain
limited exceptions) in the same manner
and to the same extent as most non-
governmental entities. The objective of
the RCRA corrective action program at
Federal facilities, as at all RCRA
facilities, is to ensure protection of
human health and the environment
Section 6001 of RCRA requires any
agency of the Federal Government
of Hazardous waste to comply with both
substantive and procedural
requirements under RCRA as well as
with any other applicable requirements
for the management of hazardous waste,
including Federal, State, interstate and
local requirements. CERCLA section
120{a) makes Federal facilities subject to
CERCLA hi the same manner and to the
same extent as private facilities. Section
1200) also makes it clear that the special
provisions for Federal facilities in
Section 120 do not impair any
obligations they have to comply with
RCRA requirements, including
corrective action. In accordance with
section 120 (c) and (d), EPA has
established a comprehensive Federal
agency hazardous waste compliance
docket and will list Federal facilities on
tha CERCLA National Priorities List
(NPLJ if they meet the NPL listing
criteria.
Many Federal facilities at which
hazardous wastes are managed will be
subject to both CERCLA remedial action
and RCRA corrective action authorities
In many such cases, EPA intends to
coordinate the application of RCRA and
CERCLA authorities through the use of
interagency agreements (lAGs), as
provided under the authority of section
120f el of CERCLA. The IAG will provide
the vehicle for explicitly defining the
procedural and technical requirements
for corrective action, in satisfaction of
the statutory.and regulatory authorities
While it is the responsibility of
Federal facilities to comply with the
requirements of both the RCRA and
CERCLA programs, the Agency plans to
continue its efforts to coordinate the
activities required tinder both programs
with those under already-established
Federal facility remedial programs. For
example, the Department of Defense
(DOD) has developed the Installation
Restoration Program (IRP) to identify
and cleanup contamination resulting
from past waste management practices
at DOD facilities. IRP conducted
activities will often serve to satisfy
RCRA and CERCLA requirements.
Furthermore, the Agency is aware that
in some cases an Environmental Impact
Study (EIS) will be conducted at a
Federal facility during the same time
frame as the RCRA Corrective Action
investigations and studies are
undertaken. To the extent that the
information generated by the EIS is
deemed relevant by EPA to the needs of
Corrective Action, EPA would not
intend to require duplicative information
to be generated to satisfy corrective
action requirements. In fact it may be
possible in some cases to merge the two
studies into one integrated document
EPA intends, however, to oversee and, if
necessary, direct the scope and
substance of investigations and cleanup
activities at DOD and other Federal
facilities. In addition, EPA anticipates
that many States will exercise oversight
authority under State laws to review
and participate in corrective action
decisions at Federal facilities.
VUL Public Involvement
Effective public involvement efforts
within the corrective action program
will enable the interested public to
receive accurate and timely information
about remedial plans and progress and
to comment on proposed actions at
significant decision points. The statutory
public involvement requirements for
permitting contained in RCRA section
7004 are elaborated hi regulatory
requirements at 40 CFR parts 124 and
270. Today's proposal includes
additional requirements intended to
promote active and effective
communication between the interested
public, the regulatory agency
responsible for implementation of the
corrective action program, and the
permittee.
The first required public involvement
occurs before a draft RCRA permit is
developed. At the time the permit
application is submitted, a mailing list
must be assembled by EPA or the State
for the community in which the facility
is located. (See 40 CFR 124.10(c)(lKviii).)
The list serves as an important
communications tool to allow the
regulatory agency to reach interested
members of the public with
announcements of meetings, hearings,
events, and available reports and
documents. Guidance on developing a.
comprehensive mailing list is available
in the January 1986 Guidance on Public
Involvement in the RCRA Permitting
Program.
After developing a draft permit the
regulatory agency is required to provide
public notice that a draft permit has
been prepared and is available for
public review. (See 40 CFR 1°4.6.) The
notice must be published hi a major
newspaper and broadcast over local
radio stations. A 45-day public comment
period on the draft permit must follow
the public notice. If a written request is
received, EPA or the State is required to
hold an informal public hearing. A 30-
day advance notice containing the time
and place of the hearing is required. In
addition, a fact sheet is developed to
accompany every draft permit. It
includes the significant factual and legal
bases used in preparing the draft permit.
The comment period for the draft permit
will provide the public an opportunity to
comment on corrective action conditions
contained in the permit. In most cases,
requirements for the RCRA Facility
Investigation (where necessary) will be
included hi the schedule of compliance .
in the draft permit
When a final decision is reached on
whether to issue or deny a permit, EPA
regulations require that a notice of the
decision be sent to each person who
submitted written comments ,on the draft
decision or who requested such a notice.
In addition, a response to all significant
comments must be issued by the Agency
or the State. The response to comments
must include a summary of substantive
comments received and an explanation
of either how they were incorporated or
addressed in the final permit condition
or why they were rejected. ;
- In addition to the established public
involvement activities required during
the permitting process, today's
regulation proposes in 9 270.30 to
provide the Director with the authority
to require an additional effort to keep
the interested public informed of
activities at the site. Proposed 8 270.36
would allow the Director to require the
establishment of an information
repository that would house documents
pertinent to the corrective action
activities near the facility. The details of
the proposed repository are discussed in
section VLL of today's preamble. In
addition, today's proposal would require
the permittee to mail a summary of the
final report of the RCRA Facility
Investigation to all individuals on the
facility's mailing list to keep interested
persons informed of findings at the site.
Today's proposal would also require a
major permit modification to incorporate
remedy selection. The modification
would provide an additional opportunity
for public involvement This
modification would follow established
public participation procedures under
part 124 for major modifications. In
addition, today's proposal provides that
additional permit modifications initiated
by the Agency or the permittee will be
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Federal Register / Vol. 55, No. 145 / Friday. July 27. 1990 / Proposed Rules
30859
classified on the basis of their potential
effect on the permittee, the affected
public, and the environmental impact of
proposed changes. Those that are
classified as major modifications will
follow the existing procedures for major
modifications as described above. Those
that have less significant impacts will
follow the procedures described under
today's proposed { 270.34(c) or those
issued on September 28,1988 (53 FR
37912} for owner/operator initiated
modifications. In all cases there will be
an opportunity for public review and
comment. Section VI.L of today's
preamble discusses the classification of
permit modifications for corrective
action and their related procedural
requirements more fully.
There may be some actions taken
during the course of a permit that are
not reflected in the initial permit and are
not the subject of a permit modification.
For example, many of the detailed
activities taken by the permittee hi
implementing the RFI or in designing the
CMS plan may not be specified in the
initial permit In some cases, EPA and
the permittee may reach a mutual
agreement about the exact nature of the
required activities (within the general
scope of the permit), and the specifics of
these activities may not be reflected hi a
permit modification. In such cases, the
specific activities agreed to will be
documented on the permit record and
the public will have an opportunity to
comment on them when the permit is
modified at the time of remedy
selection. This approach would be
limited to activities that would not •
constitute a major change that might
otherwise warrant application of the
public participation requirements
specified in S 7004 of RCRA.
EPA believes that the .approach
outlined above provides an appropriate
balance between the need to involve the
public in the remedial process and the
need to proceed expeditiously to remedy
releases to the environment The public
will have a full opportunity to comment
on all remedial activities undertaken
during the term of the permit and not
otherwise subject to public scrutiny, at
the time of remedy selection. To the
extent that public comment-takes
legitimate issue with such activities,
EPA may need to revisit some of these
activities or modify its decision
regarding the remedy. Accordingly, EPA
will be very sensitive to possible public
reaction in specifying activities to be
undertaken during the course of the .
permit without public involvement
Public involvement activities required
hi the permitting process and proposed
today for the corrective action program'
are similar, though not identical, to
those established under the Superfund
Community Relations Program.
Activities proposed today are hi
addition to public involvement activities
conducted at RCRA facilities targeted
by the Agency for expanded public
involvement because of the high
potential for exposure to the population
or because of a high level of interest hi
the community. Public involvement
efforts at RCRA sites listed on the
National Priorities List and/or facilities
which will accept Superfund wastes
should be integrated with concurrent
Superfund community relations efforts
to the extent possible.
EPA and State offices, as a matter of
policy, jointly issue permits. Where
States are authorized to implement only
some portions of the hazardous waste
program, the State and EPA may also
conduct public involvement activities
jointly.
IX. State Authorization
A. Applicability of Rules in Authorized
States
Under section 3006 of RCRA, EPA
may authorize qualified States to
administer and enforce the RCRA
program within the State. (See 40 CFR
part 271 for the standards and
requirements for authorization.)
Following authorization, EPA retains
enforcement authority under sections
3008, 7003 and 3013 of RCRA, although
authorized States have primary
enforcement responsibility under
section 7002.
Prior to the Hazardous and Solid
Waste Amendments of 1984 (HSWA). a
State with final authorization
administered its hazardous waste
program entirely in lieu of EPA
administering the Federal program hi
that State. The Federal requirements no
longer applied hi the authorized State,
and EPA could not issue permits for any
facilities hi the State which the State
was authorized to permit When new,
more stringent Federal requirements
were promulgated or enacted, the State
was obliged to enact equivalent
authority within specified time frames.
New Federal requirements did not take
effect in an authorized State until the
State adopted the requirements as State
law.
In contrast under section 3006fg)(l) of
RCRA, 42 U.S.C. 6928(g). new
requirements and prohibitions imposed
by HSWA take effect in authorized
States at the same time that they take
effect hi nonauthorized States. EPA is
directed to carry out those requirements
and prohibitions hi authorized States,
including the issuance of permits, until
the State is granted authorization to do
so. While States must still adopt
HSWA-related provisions as State law
to retain final authorization, the HSWA
requirements apply hi authorized States
in the interim.
B. Effect on State Authorizations
1. Schedule and Requirements for
Authorization. Today's rule is proposed
pursuant to section 3004(u), section
3004(v), and section 3005(c)(3) of RCRA,
provisions added by HSWA. Therefore,
the Agency is proposing to add the
requirements to Table 1 hi 40 CFR
271.1Q), which identifies the Federal
program requirements that are
promulgated pursuant to HSWA and
take effect hi all States, regardless of
authorization status/States may apply
for either interim or final authorization
for the HSWA provisions identified hi
Table 1, as discussed hi this section of
the preamble.
EPA will implement today's rule in
authorized States until (1) they modify
their programs to adopt these rules and
received final authorization for the
modification or (2) they receive interim
authorization as described below.
Because this rule is proposed pursuant
to HSWA, a State submitting a program
modification may apply to receive either
interim or final authorization under
section 3006(g)(2) or section 3006(b),
respectively, on the basis of
requirements that are substantially
equivalent or equivalent to EPA's. The
procedures and schedule for State
program modifications for either interim
or final authorization are described hi 40
CFR 271.21. It should be noted that all
HSWA interim authorizations will
expire automatically on January 1,1993
(see 40 CFR 271.24(c)); EPA invites
comment on whether this deadline
should be extended for cause.
EPA invites comment on an expedited
process for granting interim
authorization for today's rule, pursuant
to RCRA section 3006(g](2), to States
already authorized for HSWA corrective
action pursuant to the initial
codification of section 3004(u) at 40 CFR
264.101 (50 FR 28747. July 15,1985). An
expedited process is needed if such
States are to avoid losing their authority
to issue corrective action permits upon •
the effective date of today's rule. This
expedited process would not involve a
detailed review of the State regulations.
Rather, when determining whether the
State's regulations are substantially
equivalent to today's rules, EPA would
consider the State's statutory authorities
to impose similar corrective action
requirements. Because today's rules
clarify the scope of and are consistent
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Faderri Ragrtet / Vol. 55. No. 145 / Friday. July 27. 1990 / Proposed Rales
with, the July 15.1985, codification rule
for which some States are authorized,
these authorized States already should
have statutory authority to implement
today's rules.
To ensure that today's rules are
uniformly applied by a State granted
interim authorization under this
approach, a State applying for interim
authorization would be required to
commit, in the State-EPA Memorandum
of Agreement, to implementing its
corrective action authorities according
to the subpartS requirements. In
particular, permit* issued by the State
must reflect subpartS requirements
even prior to adoption by the State of
regulations equivalent to and no less
stringent than the subpart S
requirements. The State interim
authorization application under this
approach, then, would consist of the
revised Memorandum of Agreement
(MOA), and a revised Attorney
General's (AC) statement certifying that
the State has the authority to enter into
the Memorandum of Agreement and that
permits issued with the conditions
agreed to in the MOA would be
enforceable under State law. EPA
specifically invites comment on whether
State law allows the State to make this
MOA commitment
EPA believes this expedited process
will minimize disruptions to the State
permit process. A State already
authorized for corrective action which
applies for interim authorization for
today's rule shortly after its publication
as a final rule should be able to receive
Interim authorization prior to the
effective data and thus avoid the need
for EPA to resume responsibility for
issuing permits containing corrective
action conditions in that State. •
Although requirements imposed .
pursuant to section 3008{g)(l) of HSWA
take effect in authorized States at the
same time as in unauthorized States,
EPA believes that this requirement
applies only to the promulgation of the
relations identified in 1271.10) and
only to the extant that these
requirements put the HSWA program in
place. In passing section 3O»fe)(lj,
Congress was concerned that no delay
occur before these requirements, once in
place in the Federal program, became
effective In authorized States. However,
Congress clearly did not intend for the
authorized State program's authority to
return, in part, to EPA every time EPA
were to promulgate a subsequent, more
stringent modification or addition to
these requirements promulgated under
HSWA. Thus, once the basic framework
for the HSWA provisions has been
promulgated and is essentially complete.
subsequent regulations promulgated by
EPA will be adopted by States
according to the timelines fornon-
HSWA regulations in 40 CFR 271.21(e).
In regard to today's rule. EPA is
soliciting comment on whether the
HSWA corrective action requirements
should be considered essentially
complete with the adoption of these
requirements.
40 CFR 271.21(e)(2) requires that
authorized States must modify their
programs to reflect Federal program
changes, and must subsequently submit
the modifications to EPA for approval
The deadlines by which a State must
modify its program to adopt this
proposed regulation will be determined
by the date of promulgation of the final
rule, in accordance with 40 CFR
271.21(e). These deadlines can be
extended in certain cases (40 CFR
271.21(e)(3)). Once EPA approves the
modification, the State requirements
become subtitle C RCRA requirements.
A State that submits its official
application for final authorization less
than 12 months after the effective date
of these standards is not required to
include standards equivalent to these
standards in its application. However,
the State must modify its program by the
deadlines set forth hi 40 CFR 271.21(e).
States that submit official applications
for final authorization 12 months after
the effective date of these standards
must include standards equivalent to
these standards in their applications. 40
CFR 271.3 sets forth the requirements a
State must meet when submitting its
final authorization application.
In addition to meeting the
requirements in 40 CFR part 271. a State
seeking authorization for today's rules
must demonstrate the ability to capably
implement the base RCRA program as
wen as die additional HSWA elements.
EPA's assessment of a State's capability
will reflect an evaluation of the State's
entire authorized program. The
assessment will examine not only
whether a State is effectively
implementing the base program, but also
how that State may implement
additional program areas.
2. State* with Existing Corrective
Action Programs. Sidles that are
authorized for RCRA. but not for
corrective action may already have
requirements under State law similar to
those in today's rule. These State „.
regulations have not been assessed
against the Federal regulations being
proposed today to determine whether
they meet the tests for authorization.
Thus, a State is not authorized to
implement these requirements in lieu of
EPA until the State program
modification is approved. Of course,
States with existing standards may
continue to administer and enforce their
standards as a matter of State law. In
implementing the Federal program. EPA
wiU work with States under cooperative
agreement* to minimize duplication of
efforts. In many cases, EPA will be abl«
to defer to the States in their efforts to
implement their programs, rather than
take separate actions under Federal
authority.
Additionally, some States have
received authorization for HSWA
corrective action pursuant to the initial
codification of section 3004(u) at 40 CFR
264.101 (50 FR 28747. July 15,1985). The
July 15,1985, Codification Rule explains
at 50 FR 28730 that a State's ;
authorization status may change in
response to further implementation of
HSWA, i.e., when EPA publishes
regulations that further define initially
codified rules. A State that was
authorized for corrective action under
the July 15,1985, Codification Rule will
no longer be authorized when today's
rules are promulgated unless the State
applies for and receives interim or final
authorization before the effective date
of the final promulgation of today's
rules. However, if such States have not
obtained interim or final authorization
by the effective date, cooperative
agreements can be used so as to avoid
interruption of ongoing State corrective
action activities. See the above
discussion of an expedited process for
interim authorization of such States.
C. Corrective Action and Mixed Waste
Authorization
On July 3,1986, EPA published a
notice that, to obtain and maintain
authorization to administer and enforce
a hazardous waste program pursuant to
subtitle C of RCRA. States must have
authority to regulate the hazardous
component of radioactive mixed wastes
(51 FR 24504). Radioactive mixed wastes
are wastes that contain hazardous
wastes subject to RCRA and radioactive
wastes subject to the Atomic Energy Act
(AEA). Radioactive mixed wastes
(except for the component subject to
AEA) are considered to be a "solid
waste" for purposes of corrective action
at solid waste management units.
Therefore, in order to obtain
authorization for corrective action.
States must have previously obtained or
must simultaneously obtain
authorization for their definition of solid
waste, which must not exclude the non-
AEA components of radioactive mixed
waste. This is because States must be
able to apply then* corrective action
authorities to mixed waste units.
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Federal Register / Vol. 55, No. 145 / Friday. Jvty 27. 1990 / Proposed Roles
30861
X. Regulatory Impact Analysis
A. Executive Order No. 12291.
Regulatory Impact Analysis
1. Background. In conjunction with, the
development of today's proposed rule.
EPA performed a regulatory impact
analysis (RIA), as mandated by
Executive Order 12291. These analyses
are required for "major" regulations.
denned as those likely to result in
annual effects on the economy of S100
million or more; a major increase in
costs or prices for consumers or
individual industries; or significant
adverse effects on competition,
employment, investment, productivity.
innovation, or international trade. The
results of the RIA prepared for today's
rulemakmg demonstrate mat the rule is
a "major" regulation,
Pursuant to the Regulatory Flexibility
Act. 5 U.S.C. 601 et seq* the Agency is
also required to assess the impact of a
proposed or final rule on small entities
(i.e., small businesses, small
organizations, and small governmental
jurisdictions]. The results of this
assessment, which waa conducted as
part of the RIA. are presented below in
section X.B.
The complete regulatory impact
analysis document is available in the
docket established for this proposed
rule. The following is a summary of the
analytical methodology used in
conducting the RIA. and the results of
the analysis.
2. Summary and Major Conclusions.
The analysis conducted by the Agency
indicates that the corrective action rule
may result in a wide range of costs,
depending on the nature of the remedies
selected in site-specific deciirionmaking.
Given die large, national scope of this
rule, and the flexibility provided by the
provisions outlined in this proposal.
these uncertainties are expressed in the
following diMUfff'""-
Chrerall the analysis found that about
31 percent of facilities are projected to
require corrective action for releases to
ground water from solid waste
management units (Media other man
ground water were not ana>yzed due to
data and modeling limitations.) The
average annuanzed per facility coots for
non-Federal facilities under today's
proposed rule are estimated to range
between $1.8 million to $M million. The
total present value national cost of the
proposed role, as an increment over the
pre-HSWA corrective action, program, is
likely to range between $7 billion and
$42 billion. The costs of cleaning up
Federal facilities, presented separately,
are much more uncertain and could
range between $3 billion to $18 billion.
The above results reflect two oi four
regulatory alternatives that were
analyzed which die Agency believes
reflect die flexibility inherent hi die
proposed rule. These alternative*
provide an upper and lower bound to
die costs of the proposed rule and reflect
die Agency'* uncertainty about •everal
of die data and assumption* used in
estimating cost*. >uch as the type* of
remedial measures that will be
ultimately implemented. While both
regulatory alternative* would require
cleanup to bealth-basedlevela. die key
distinction between diem is in the
choice of allowable corrective action
remedies. The analysis assumed that die
lower bound option would be more
flexible than die upper bound (e#» by
allowing use of exposure controla in
case* where certain remedies were
technically inf easible or prohibitively
expensive].
3. Scope and Analytical Approach. In
developing die RIA for today's proposed
rule, die Agency analyzed both
qualitatively and quantitatively several
basic alternative* which could have
been adopted in structuring die
corrective action role The alternative*
studied cover a range, from a highly
conservative "cleanup to background'*
approach with very title flexibility in
adjusting remedies for site-specific
conditions, to alternatives which trigger
cleanup of releases in only limited
circumstance*, and would allow, in
many cases, «n^*"fa*™"*fl HCMI \Q remain
within a facility1* property and beyond.
The analysis indicate* mat diese
alternative* nave quite different
environmental results, a* well a*
impacts on the regulated community.
In developing dw RIA. EPA assembled
data to estimate the potential scope of
die RCRA corrective action program.
The data used in generating these
estimates wa» primarily obtained from
die Agency** existing database on
RCRA fatintie* (die "Hazardous Waste
Data Management System." or
HWDMS), and an anarysi* conducted
for the RLA. which examined a sample
set of 65 RCRA Facility Assessment
(RFA) reports. These reports ace
typically prepared by EPA or die State*
prior to issuance of RCRA permit*, and
provide preliminary finding* a* to what
release* have or may have uuairred.
and what investigation* should be
conducted to verify and/or characterize
ths release*. These preliminary RFA
findings were extrapolated to provide
estimate* of the numbers and types of
facilities mat may require mm;Ui»e
action. Certain data from die report*
were also n*ed to support modeling for
the quantitative analyai* of the RIA. A
summary of die RIA estimates a* to die
size and distribution of RCRA facilities
that may need corrective action are
presented indte fallowing section of tin*
discussion.
4. Potential Scope of the Corrective
Action Program. EPA estimate* that
there are approximately 5,700 facilities
regulated under RCRA subtitle C that
are potentially subject to the corrective
action authorities of sections 3004{u)
and 3006(h). Based on preliminary
survey results from RFA reports, it is ;
estimated that roughly 80,000 fond
waste management units exist at meae
facilities; this number includes some j
3,000 land-based hazardous waste
management units (e.g., hazardous
waste landfills and surface
impoundments) that were subject to
corrective action prior to die 1964
HSWA amendments. The number of
solid waste management units at
individual facilities varies widely, up to
as many as UOO. Federal facilities,
because of their large size, typically
contain many more solid waste
management units—an average of 55 per
facility, according to the RFA survey
results. The survey indicated mat mere
are an average of 12 solid waste
management units (including hazardous
waste management units} at non-Federal
facilities.
The types of solid waste management
units found at facilities are diverse.
More than one-third (36 percent] are
tanks used for storage or treatment of
wastes. Landfills comprise 16 percent,
and surface impoundments 15 percent
The rpmnrnHpr aje units such as
container storage areas, piles, land
treatment units, incinerators and other
miscellaneous units. The survey also
found a wide diversity within unit
categories in terms of size, age, general
condition, types of wastes managed, and
other factors.
The survey revealed that, on average.
62 percent of all facilities have
indication* of possible releases, based
on RFA finding*, sufficient to require
follow-up remedial investigations {i.e.,
RFIs). Typically, facilities that have
subtitle C land disposal units and
incinerators are more likely to require
follow-up investigations than are
treatment/storage facilities (74 percent.
70 percent and 50 percent, respectively}.
The Agency's experience with die
corrective action program to date (as
confirmed by die RFAsurvey results)
indicate* that one-half of these facilities
(or one-third of die total universe) will
require some type of remedial action.
based on die confirmation of a release
intheRFL
Potential release* of concern most
often noted in RFA finding^ are release*
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Federal Register / Vol. 55. No. 145 / Friday. frfr 27. 1990 / Proposed Rules
•^i^
to ground water and soil; of all facilities,
SO percent have actual or suspected
releases to ground water, 34 percent to
soil Facilities with confirmed or
suspected releases to surface water and
air arc less common—17 percent and 7
percent respectively, based on the RFAs
surveyed.
Based on the results of the models
used in the quantitative analysis
conducted for the RIA, approximately 31
percent (1,700 RCRA facilities) will have
ground-water contamination requiring
remediation. .
S. Qualitative Analysis. EPA
considered three strategies for
implementing corrective action under
the HSWA mandate that permits for all
treatment, storage, or disposal facilities
(TSDFs) address releases from SWMUs
to all environmental media. The
following is a summary of each
alternative strategy.
Strategy 1—Cleanup to background
levels as soon as practicable for all
facilities. This strategy represented the
most stringent and environmentally
conservative option of the three.
Regulations modeled after this approach
would require complete restoration of
all contamination back to the unit
boundary, as quickly as could be
practicably achieved. In order to ensure
that solid waste management units
would continue to meet what would
amount to a "zero release" standard,
extensive source controls would be
required, perhaps often involving
treatment or destruction of all wastes
that could cause future contamination.
This strategy would, if implemented,
at least theoretically achieve the highest
degree of protection to human health
and the environment Realistically,
however, current technologies cannot
consistently achieve such a cleanup
standard^ In addition, the economic
impacts of such a regulatory approach
would obviously be much greater than
the other options, and could be expected
to cause substantially more owner/
operators to become insolvent, thereby
placing additional demands on other
funding sources, such as State or
Federal cleanup funds.
Strategy2—•Cleanup to health-based
levels, with flexibility in toning. In
broad terms, this strategy would require
cleanup of releases to the unit boundary
to concentration revels safe for lifetime
human exposure. The timing for
achieving these levels would vary
depending on a number of site-specific
factors, such as the extent and nature of
the contamination, exposure potential
availability of technologies, and other
factors. Source control* would be
required in order to prevent further
releases above health-based levels.
This strategy would also achieve a
conservative level of protection. The
economic impacts of this strategy,
although substantial, would be
considerably smaller than for Strategy 1.
Strategy S—Cleanup to health-based
standards only where actual or
imminent exposure exists. Under
Strategy 3, corrective actions would be
required only if there was evidence of
actual or imminent exposure to
contaminated media (e.g., contaminated
drinking water wells), above health-
based standards. The extent of cleanup
would be tied to alleviating that
exposure; cleanup to the unit boundary
would not be required unless exposure
were actually of concern at that point
Required source control measures would
be less extensive than under Strategy 1
or 2. Protection against future exposure
to contamination would rely heavily on
institutional controls.
This regulatory approach would
achieve a mi""""*" level of protection,
as compared to the other two strategies. '
By allowing contaminated media to
remain contaminated based on current
exposure patterns, protection against
future exposure could not be
guaranteed. Thus, Strategy 3 is the least
protective strategy. This strategy would,
however, be substantially less costly to
owner/operators, relative to Strategies 1
and2.
Today's proposed rule adopts the
Strategy 2 approach. The Agency
believes that this regulatory strategy
provides an optimum balance in
ensuring a high degree of protection of
human health and the environment
while not placing unnecessary burdens
on facility owner/operators.
It should be understood that crafting a
comprehensive rulemaking within the
broad confines of any of the three
alternatives listed above would, of
necessity, require addressing a large
number of specific policy questions.
Thus, a variety of specific regulatory
blueprints could be created under any
one alternative. In this regard, as noted
below, we have developed two
alternatives for the purpose of
quantitative analysis that we believe
reflect the bounds of flexibility of
implementation afforded by this rule
This is reflected in the rule proposed
today, .which is generally patterned after
Strategy 2, but also contains certain
regulatory requirements that could be
considered in line with Strategies 1 and
g
6. Description of Options Analyzed
Quantitatively. In developing the
quantitative analysis for the RIA, a
similar range of regulatory options were
assessed as in the qualitative analysis.
For comparison purposes, however, the
analysis .also examined a "baseline"
option—in effect the pre-HSWA
corrective action program. In addition,
the Agency developed four regulatory
options, two of which were generally
believed to reflect the flexibility
inherent in the proposed rule. It should
also be noted that in structuring the
modeling logic for this analysis, it was
necessary to make certain assumptions
and use decision rules that vary slightly
from those used in the qualitative
analysis; however, the broad regulatory
alternatives examined in the qualitative*
and quantitative analyses are generally
the same.
The quantitative analysis examined
each of the five regulatory options in
terms of the following criteria: cost
protection of human health and the
environment flexibility in
implementation, and technical
practicability. This analysis evaluates
the effects of each alternative only as it
would address contamination of ground
water.
Detailed information on the data used
in this analysis, and how the models
were constructed, are presented in the
RIA document. The following is a
summary of the options modeled, and •
the general assumptions used in
constructing each.
Option 1: Baseline (Pre-HSWA}. This
option represents requirements under
RGRA prior to enactment of the 1984
HSWA corrective action requirements
and is used as the basis for comparison
of costs and benefits of other options.
Only land disposal units that received
hazardous waste after July 26,1982, and
thus were regulated under part 264,
subpart F, were examined. The
corrective action trigger and target
concentrations are the same, either the
background concentration or a
maximum contaminant level. (For
modeling purposes, the baseline
scenario assumed that cleanup targets
would not be established at "alternate
concentration limits" under subpart F.)
Only onsite cleanup within the facility
boundary is addressed. Ground-water
removal and treatment or capping, are
the only corrective action remedies
considered.
Option 2: Immediate Cleanup to
Background. This option is the strictest
of those evaluated: All SWMUs, in
addition to regulated subtitle C land
disposal units, were addressed. Any
detectable release to ground water in
excess of background levels would
trigger corrective action, and both on-
site and off-site contamination must be
cleaned up to background levels as soon
as practical. For purposes of; this
analysis, we assumed that background
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Federal Register / Vol 55. No. 145 / Friday. July 27, 1990 I Proposed Rules
30663
contamination did not exist and,
therefore, assumed that cleanup to
background was equivalent to cleanup
to detection limit*. Scarce controls ate
required with a bias toward excavation
Option 3: Immediate Cleanup to
Health-Based Standards. This option is
similar to the previous one in that all
SWMUs are addressed, source control
remedies such as excavation are
required, and off-site contamination
must be addressed as soon as detected.
However, corrective action would be
triggered only if concentrations were
detected above a health-based standard,
rafter than above background
concentrations. This option involves •
strong preference towards source
control remedies and towards cleanup
of contamination as quickly as possible.
Use of technical infeasibility waivers is
very limited, even if remedies cannot
reasonably be expected to achieve the
target. In addition, unHke the previous
option, cleanup of on-site contamination
could be deferred until facility closure.
at which point cleanup to health-based
levels would be required.
Option 4: Flexible Cleanup to Health-
Based Standards. This option also
addresses SWMUs, and health-based
standards are used as both trigger and
target levels. As in the previous option,
owners and operators may defer
cleanup of on-site releases until facility
closure. However, in mis alternative
owners and operators have considerable
flexibility in identifying corrective
action remedies. Here, remedies less
costly than source control can be chosen
if they achieve target within a
reasonable time frame. As a decision
rule to reflect the fact mat the problems
of scale and other tPj-.Knir.al difficulties
will preclude certain remedies at
complex sites, remedies that failed to
achieve cleanup in a reasonable period
of time (assumed to be about 13O years
for this analysis) or that would be
extraordinarily expensive (L&. over $150
million) were rejected as
"impracticable." Instead, exposure
controls would be relied on to prevent
risk in these cases. It is important to
note that this approach in not intended
to imply that remedies of this scope
would never be undertaken, or to define
the limits of technical practicability.
Option & Flexible Cleanup Based an
Actual Exposure. This option is the least
stringent of the five. It is similar to
Option 4, except that cleanup of off-she
exposure could be deferred if there i* no
actual human exposure to the release. If
there is an off-site exposure, corrective
action must address the exposure.
Again, under mis option, there is a
flexible approach towards remedy
selection.
The Agency believes that options 3
and 4 provide an upper and lower bound
on the range of outcomes that may result
during implementation of the proposed
rule. This range results from the flexible
nature of the proposed rule and the
uncertainty about the choice of
remediation measures in the field and
the performance of the remedies mat are
selected. EPA expects that the real
effects of the rale are likely to he
somewhere between these two options.
7. Results of Quantitative Analysis.
The analysis estimated that
approximately 31 percent of all RCRA
faculties win trigger corrective action in
all the post-HSWA options analyzed, as
compared to 14 percent that would
trigger under the baseline pre-HSWA
scenario. This reflects the requirement
that all SWMUs, not fust land disposal
units, are subject to corrective action
under post-HSWA options. Note mat
even in the post-HSWA options,
approximately two-thirds of the
facilities wiD not trigger corrective
action for ground water.
It is important to note that differences
hi trigger levels did not result in
significant differences hi the number of
facilities triggering corrective actions.
However, differences hi target levels for
the various regulatory options made a
significant difference in how many
corrective actions were "successful'* in
achieving cleanup levels, as is discussed
later in this section. In examining the
potential benefits of the proposal
(Options 3 and 4) as compared to other
options, the Agency developed an
"effectiveness" test which measures the
degree to which a particular option is
successful in achieving its cleanup level
The results of the test demonstrate that
Options 3 and 4 are the most successful
in achieving the cleanup target. This
analysis supports the Agency's selection
of Options 3 and 4 for the proposed rule.
The effectiveness test should not.
however, be viewed as a measure of all
the potential benefits of remediation of
contaminated ground water.
The point when corrective action is
triggered was also analyzed. The
analysis demonstrates that, for Option 2,
in which corrective action must begin
immediately, approximately 29 percent
of all existing RCRA faculties would
initiate corrective action in the first year
of the program. In Options 3,4, and 5, in
which on-site corrective action can be
deferred, only about 12 percent of all
facilities would initiate corrective action
hi the first year. The ability of a facility
to defer on-site corrective actions results
in lower economic impacts.
For those facilities mat trigger
corrective action, the analysis estimated
the length of time required for a
corrective action to reduce contaminant
concentrations below the target levels at
all wells within 1,500 meters of the
release. Under options requiring cleanup
to health-based levels (ie., options 3,4,
and 5), about 51 to 56 percent of the
facilities reach cleanup targets at all
weD distances within 75 years of the
initiation of corrective action. In
contrast under the two options requiring
cleanup to background, only about 34
percent of facilities triggering corrective
action are projected to achieve targets
within 75 years. This further confirms
the presumption mat achieving cleanup
to background concentrations may be
difficult or impossible to achieve
technically.
As part of the quantitative analysis.
the Agency developed estimates of the
costs of corrective action under different
regulatory options on a per-facility
basis, as well as on a national basis.
Typical facility corrective action costs
vary significantly depending upon the
specific regulatory option. The cost
analysis demonstrates that the most
stringent post-HSWA regulatory option,
(i.e.. Option 2, or "Immediate nteamip to
Background") is by far the most costly
option, with a mean present value cost
of over $281 million per faculty, and an
annualized per facility cost of about $19
million (at a 3 percent discount rate).
The upper bound proposed rule
option. "Immediate Cleanup to Health-
Based Standards" option (Le,, Option 3),
was estimated to have a mean present
value per facility cost of $26.9 million,
and annnali»«t per facility costs of $1.8
million. The lower bound regulatory
option {ie. Option 4, at "Flexible
Cleanup to Health-Based Standards")
was estimated to have a mean present
value cost per facility of $6i3 mution.
and atimiaIi*M> per facility costs of $0.4
million-
The baseline per-facility cost is the
lowest of all me options at a mean
present value cost of $3£ million, and an
annualized per-facility cost of $0.3
million. The "Flexible Cleanup Based on
Actual Exposure** option (/.A. Option 5)
was estimated to have a mean present
value cost of $&8 million and annualized
per facility costs of $013 miUkm.
The total national cost for EPA's
corrective action program is influenced
by three parameters: The average cost
of each action, the number of facilities
required to undertake corrective action,
and the cost to facility owners and
operators of undertaking required
investigations. National costs discussed
below are presented in incremental
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30864
Federal Register / VoL 55. No. 145 / Friday. July 27. 1990 / Proposed Rules
terms (i.e., after subtracting the costs of
the baseline scenario).
The "Immediate Cleanup to
Background" option is the most
expensive, with an incremental total
c^st above the baseline pre-HSWA
scenario of $490 billion. This option was
estimated to have an annualized cost of
S32.9 billion.
Among the other regulatory options,
the differences in costs are primarily a
result of differences in timing of cleanup
and in the flexibility afforded hi terms of
choosing corrective action remedies.
Option 3 (/. e., "Immediate Cleanup to
Health-Based Standards") was
estimated at a total cost of $41.8 billion,
with an annualized cost of $2.8 billion.
This option is relatively costly, due in
part to modeling assumptions as. to the
types of remedial technologies that
would be employed to meet these
standards.
Option 4 (i.e., "Flexible Cleanup to
Health-Based Standards") was among
the least costly, with a total cost of $7.4
billion, and an annualized cost of $0.5
billion. The costs are lower because, in
general, less expensive technologies are
assumed and, for many facilities, final
cleanup of contaminated ground water
would be deferred for a number of
years, thus reducing the present value
costs.
Option 5 {/.e., "Flexible Cleanup
Baaed on Actual Exposure"), where both
on-site and off-site cleanup of
contamination could be deferred until
closure if there was no actual exposure,
was somewhat less expensive than the
above option. This option had a total
cost of $5.0 billion, an annualized cost of
$0.3 billion.
Today's proposed regulation is most
similar to Option 3 (Le* "Immediate
Cleanup to Health-Based Levels") and
Option 4 (i.e., "Flexible Cleanup to
Health-Based Standards"). These results
illustrate that the total national costs of
this rule are likely to range between $7
and $42 billion. The relatively wide
range reflects the uncertainty in a
number of areas, such a* the timing of
corrective action, the types of remedial
measures that will be considered, and
the nature and difficulty of remedial
measures that are selected. Overall, the.
Agency believes that this range
represents a reasonable bound of the
potential effects of the rule, and that in
all likelihood, the actual effects will fall
somewhere within this range.
The Agency is committed to trying to
refine these costs estimates before
promulgation of the final rule. To help in
this effort, the Agency requests that
commenters provide anyjdata or
infonnation relevant to the analysis
described in the preamble or in the
accompanying Regulatory Impact
Analysis.
8. Economic Impacts. With the cost
information developed from the
quantitative analysis, the RIA estimated
the financial impacts of the proposed
rule on affected firms. The results are
expressed in terms of predictions of
total costs that facility owners and
operators would not be able to cover
due to insolvency. The results provide
an indication of the magnitude of costs-
that could ultimately be faced by
entities other than the immediate owner
or operator of the facility. Alternate
funding sources might include the
Superfund (provided that the facility
would be eligible for Superfund
funding), State remedial action funds,
corporate parents of facility owners and
operators, or, through price increases,
the customers of the firm owning or
operating the facility. The results of this
analysis are presented hi
"undiscounted" numbers, since
Superfund monies are generally
described in undiscounted terms. For
scenarios other than baseline, costs are
presented on an incremental basis
relative to the baseline.
Under the baseline scenario, if was
estimated that 9 percent of all firms
owning RCRA facilities would be
adversely affected, creating total
unfunded costs of $97 million
(undiscounted) over the next 50 years..
The "Immediate Cleanup to
Background" scenario generated by far
the highest level of unfunded costs,
totaling $74 billion over the next 50
•years. The "Immediate Cleanup to
Health-Based Standards" option results
in unfunded costs of over $5.1 billion
over the next 50 years. The "Flexible
Cleanup to Health-Based Standards"
option results in unfunded costs of over
$0.5 billion over the next 50 years. The
"Flexible Cleanup Based on Actual
Exposure" option resulted in a total of
$0.2 billion unfunded costs,
undiscounted, over the next 50 years.
Based on the RIA analysis, EPA
anticipates that the ability to fund
corrective action costs will vary
between industries. Industries that may
have a relatively low ability to pay for
corrective actions include sanitary
services; coating, engraving, and allied
services; and miscellaneous wood
products. These industries have
relatively low net income levels.
Industries that show a particularly high
ability to pay include petroleum refining,
motor vehicles and motor vehicle
equipment, and aircraft and aircraft
parts.
9. Federal Facilities. The KLA
discusses Federal facilities as a separate
entity because, although they only
constitute 6 percent of the total RCRA
facility universe, they contain many
more SWMUs per facility (on average,
55 per site) and therefore, may incur
higher corrective action costs; These
costs must be funded by public money.
Based on the RIA analysis, it is
estimated that of the 352 Federal RCRA
facilities, between 61 percent and 100
percent are likely to require ground-
water corrective action under the.
proposed rule, compared to between 17
percent and 23 percent under the
baseline A rough approximation of the
costs for these corrective actions, per
facility, ranges from $17 million for the
baseline scenario to $1.3 billion for the
"Immediate Cleanup to Background"
option. For the options most similar to
the proposed rule (i.e., "Immediate
Cleanup to Health-Based Standards"
and "Flexible Cleanup to Health-Based
Standards") the mean per facility cost is
estimated to range from $123! to $29
million, or in annualized costs, from
about $8 to $2 million per facility.
The total Federal facility costs,
incremental to the baseline, for the
options most similar to the proposal
range from $3 to $18 billion; the
annualized costs range from $0.2 to $1.1
billion. Again, this range reflects the
likely bounds on the ways in which the
RCRA corrective action program will
ultimately be implemented for Federal
facilities. Incremental Federal facility
costs for other regulatory approaches
could be $208 billion for the "Immediate
Cleanup to Background" option, or $2
billion for the "Flexible Cleanup Based
on Actual Exposure" option. Baseline
costs are estimated to be $1 billion.
This analysis thus concludes that,
although Federal facilities only comprise
6 percent of the population affected by
the corrective action program, they
could incur roughly 30 percent of the
total cost of the rule.
10. Further Regulatory Impact
Analyses. Given the scope and potential
impacts of this nuemaking, EPA
recognizes the need to continue to refine
its estimates of the costs and benefits of
the rule. The Agency intends to collect
additional data and will conduct
substantial new analyses prior to
finalizing today's rule. In conducting
these studies, the Agency believes that
it will be of particular value to examine
the experience gained in recent years in
• remediating Federal facilities. Large
volumes of information and extensive
technical experience have been
accumulated specifically by the
Department of Defense and the
Department of Energy. EPA intends to
form an interagency working group to
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Federal Register / Vol. 55. No. 145 / Friday, July 27. 1990 / Proposed Rules
30865
develop and conduct these further
Regulatory Impact Analyses.
The new analyses will be conducted
in accordance with the existing Agency
guidance on Regulatory Impact Analysis
and the draft Regulatory Impact
Analysis Guidance published in the 1988
Regulatory Program of the United States.
The analyses will explicitly examine the
costs, health and environmental
benefits, and technological limitations
for the key regulatory requirements
contained in the proposal—especially
for the several alternative approaches to
ground water remediation outlined hi
the proposed rule. This analysis will
also estimate the aggregate impacts,
identified above, for sites eligible for
remediation under this rule and for
those sites which are listed on the NPL,
and will, therefore, look to this rule as
an ARAR, under the provisions of
CERCLA. Upon completion of the
revised analyses, EPA will solicit
comment on the results of the analyses
and the methodology used to derive
them. The Agency will then assess these
comments, along with comments which
will have been received previously on
the proposed rule. Through these actions
EPA wUl ensure that the net social
benefits (including environmental and
health benefits] of the rule proposed
today are maximized, taking into
account costs, technological limitations,
risks, and realistic assessments of both
actual and reasonably expected uses of
each site. If the revised RIA, together
with the comments received,
demonstrate that the rule proposed
today does not achieve this outcome, the
Agency will make appropriate
modifications to the final rule, or if
necessary, will repropose the rule.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act
requires Federal agencies to fully
analyze the economic effects of
regulations on small entities. The
Agency analyzed the economic impacts
for the regulatory options that are most
similar to today's proposed rule (i.e.,
"Immediate Cleanup to Health-Based
Standards" and "Flexible Cleanup to
Health-Based Standards").
The RIA assumes that a small
business is significantly impacted if its
excess of cash flow over ten percent of
its total liabilities is insufficient tp meet
corrective action costs, or if its net
income is insufficient to meet its
corrective action costs.
For the alternative analyzed, it was
found that small firms encounter more
severe impacts from the corrective
action requirements than large firms.
The options most similar to the
proposed rule result hi incremental
impacts (i.e., relative to the baseline) on
approximately 9 to 11 percent of small
businesses owning RCRA facilities.
Based on the Agency's guidelines for
implementing the Regulatory Feasibility
Act, the results of the analysis as
summarized above, suggest that the
proposed rule does not impose
significant impacts on small entities.
C, Paperwork Reduction Act
The information collection
requirements in this proposed rule have
been submitted for approval to the
Office of Management and Budget
(OMB) under the Paperwork Reduction
Act, 44 U.S.C. 3501 et seq. Reporting and
recordkeeping burden on the public for
this collection is estimated at 42,497
hours for the 674 respondents, with an
average of 1.151 hours per response.
(Burden estimates should include all
aspects of the collection effort and may
include time for reviewing instructions,
searching existing data sources,
gathering and maintaining the data
needed, completing and reviewing the
collection of information, etc.)
If you wish to submit comments
regarding any aspect of the collection of
information, including suggestions for
reducing the burden, or if you would like
a copy of the information collection
request (please reference ICR #1451),
contact Rick Westlund, Information
Policy Branch, PM-223, U.S.
Environmental Protection Agency, 401M
Street, SW., Washington, DC 20460 (202-
382-2745); and Tim Hunt, Office of
Information and Regulatory Affairs,
Office of Management and Budget,
Washington, DC 20503. The final rule
will respond to any OMB or public
comments on the information collection
requirements contained hi this proposal.
List of Subjects La 40 CFR Parts 264,265,
270, and 271
Administrative practice and
procedure, Corrective action, Hazardous
waste; Insurance, Reporting and
recordkeeping requirements.
Dated: July 5,1990.
William Reilly,
Administrator.
XI. Supplementary Documents
APPENDIX A.—EXAMPLES OF CONCENTRATIONS MEETING CRITERIA FOR ACTION LEVELS
[Section 264.521 (a)(2)(Wv)J
Constituent namo
Acfltonftrite ......,,,...4,
Acrylamkte L (11 , ,..,..„..., _ .„.„.,..„.......„.,... Ll.
Acrytonttrile,...,..., .....„,
AWicart) „„„...,.. -,- ,.!,!„„! ,. ,—-„--„-,—„„,„,.,„„„„.,.;,..
Aldrin . LJ-.M „.--„-, ......,...„„„„„ „„,., , ,
Allyl alcohol , ,,„„„„..,.„..,„.„ ,,,,,, [[[ t
Alttfriinufn phosphkte •• » - .
Aniline
Antimony -TT-- -- —........... « ...............n-iu n.. . .
Barium cyankte .
Barium, ionic .^x........... .....„.,,..„..„„„.„.,„.,,..,„.„.,„., ...........^.^^ ^ ,
Bis(2-*thythflxyl)phttilat» ,.,„...,.,.,.„ , ,, , ,, - , ,-, ,,-• ..,.,.,.„.,...,,..„..,...,..,......„„„,„,„.,„.,.,.„„ ,,„„„„„,„,..,
Bis(chioioothyOothof ,„„.„..„.,„.„ L i ^ . .i..i ^ ,.„.....,.„
Bromodichlorofnoltianf) (3) mu — [[[ .T....-T....TT.. ............... .1 _
Bramofomi (3)..... - .
Rirtvt hnnrvl nhthBlatA . , . .....,..,.„ ,„„-,,, „„,..„„„ ,,„„„„ ,-—,,,—, -,„-—„„„.„..„.»,„.„„,
Class
D
D.
D
B2
B1
D
B2
Q
D™. .
B2
D
A
A
o
D ...
A..
B2
B2
82
B2
D _.
D.
C
Aiitug/
lira)
2E 01
8E 04
1E 02
2E 04
7E-OS
2E 02
4E 01
2E 05
4E 04
3E 03
3E+01
Water
(mg/L)
4E 00
2E 01
4E 00
8E 06
6E 05
5E 02
2E 06
2E— 01
IE 02
6E 03
1E 02
(1)
2E 00
(1)
2E 07
8E 06
3E 03
3E 05
3E 05
7E 01
5E 02
7E—OO „
Soils (ma/
kg)
op , no
ep i no
op ,00
2E 01
1E 00
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Federal Register / VoL 55. No. 145 / Friday. July 27. 1990 / Proposed Rules
APPENDIX A.-BCAMPLES OF CONCENTRATOR MEETING CRITERIA FOR ACTION Uvas-Contlnued
tSectton 264.521 (a)(2)(Wv)1
Water I Sons (mg/
«reyanld«
nvCrvso
0-Cr»»ol
Cyanogen
DDO
DO
.
Dichtofo«n«
,
2.«>ichto«>ph«noxyacoti
1,3-OfcWocoprop**
DMdrin
t
2,343inttrotoloen»
EpJehlorohydrin
EthytoanzMW
Ethyl«n«
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Federal Register / Vol. 55. No. 145 / Friday, July 27, 1990 / Proposed Rules
30867
APPENDIX A.—EXAMPLES OF CONCENTRATIONS MEETING CRITERIA FOR ACTION LEVELS—Continued
[Section 264.521 (a)(2)(Mv)3
Constituent name
Soils (mg/
kg)
Methytene chloride.,
n-Nitroso-dkvbutylamine....
n-Nitroso-n-metnylethytamine
n-Nttroscpylarnine...,,
n-Nitrosodtethanolamine—
n-NHrosodiphenylamine
n-NitrosopyrroikJine
Nickel...,
Nickel refinery dust
Nitric oxide
Nitrooenzene...
Nitrogen dioxide...
Osmium tetroxkte
Parathion
(1) MCL available; aaaappondx B.
(2) Tha a* action lev*) for a»be«toa to treasured ki units of fibers/imiatm.
(3) There to an MCL for total trihatomethanes, whicn include* four constituents: bromoform. bromxficMoromethane, chloroform, and oftromochtoromethane.
Concentration derived using exposure assumption* In appendix D and reference dose* for systemic toxicant* and verified risk-specific doses at 10-6 for Ctasa A and
_
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30868
F>deral Register / Vol. 55^ No. 145 / Friday, July 33, 1990 / Proposed Rules
APPENDIX B— MAXIMUM CONTAMINANT
LEVELS
Cooetttuent
fMrJe.
Ricftim
Cwtmt'.fn
Cartmn wmcnlo^^*
•jJTUJ.Vf^hinTin*
i?Mnw*im«th«p«
1.H>ehtororth¥4ioB _ —
MCL(ppm)
0.05
1
0.005
0.010
aoos
aos
a075
aoos
0.007
APPENDIX B— MAXIMUM CONTAMINANT
LEVELS— Continued
Constituent
2.4-D '..
?,
1r1r1-TriehlarnaliuinA
. TrieMaramhylafMi
Trihalonnattunnf, to4n| >
Vinyl chloririo „
NTAMINANT
3d
MCL(ppm)
0.01
0*06
0006
O2
O005
0.10
O002
1 Jndodng chtorotofm, oromofonn. bronxxtchkxu-
APPENOOC C—RANGE OF CONCENTRATIONS FOR ESTABLISHING MEDIA PROTECTION STANDARDS FOR CARCINOGENS
Constituent narat
A^t*"""
,Air^Jt,«. , ...
AcOoplnoone , , ,
Aoyt^nkH ,
AnvfonMt
^v*^*
fWn - - -- - -,-
Atyafcohol
*'••»'" •»r*»^rt*t*
,*»>«.
Antimony
Aowlc 1
^t^rt'-t n - -.-
R.tn/yuM.
B*rtura.tonlc
f*rj»""
rtitp1 «Mi)ti»i(-tyf^
Bfon»«anw
tt""""*j"j
Bu^l bwayt phtMM* :
C*ArAn?
ryf^/^Mrit , ,
"J~«i
f»J~H»»
CHorirwcyanid*
OiJore*xni
•MTftfcTfpptyfnrt
Chren*«i(VQ,.
Copper tyrictf
mOMOl i
o-CnMd
(xCnwot
ryrf**t
Cyanogen
CyanooMbromichi
pop . -- u ,
POP , , - ,-,-,-, ,,,
PTT
DixitytphtieMe
DtxJtytnnroMirim
*»T-nHiL..J^i»Lfc»
DtdtooOHIuorrn«m
1.2-OMtoro«U»ne
1 1-dfhiorafhyltfi* . , ,.
2.4^ehtoroph*nol.
2^0»ch»orophencay«*Jc«dd
1>Ochloropropen»
DfeWrin—
Dtolnyf pochette . 1
Class
D
D
D
B2
R1
D
B2
D
D
82
D
A
A
D
D
A
82
B2
DO
82
O
D
C
81
o
D
82
O
82
D
82
o
A
D
0
D
O
O
O
D
62
B2
B2
O
82
B2
O
82
c
D
D
82
82
D
MaxAIr
(u0/m3)
8E-02
2E-02
7E-03
2E-00
OC-/M
4E-02
6E-02
3E-00
3E-01
4&-00
OE-03
1E-00
OE-02
4E-00
3E-O1
2E-02
MinAir
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Federal Register / Vol. 55. No. 145 / Friday, July 27, 1990 / Proposed Rules
30669
APPENDIX c—RANGE OF CONCENTRATIONS FOR ESTABUSHING MEDM PROTECTION STANDARDS FOR CARCINOGENS—Contmued
Constituent name
Diethvlnitrosamine
PhnattvqUn, -,.„„.,....,_.,...,.... 11IL, ......... ........... ._„„.„_...„.. „_„ _........
DunolliyiiuUijifUHliitf
m-Dinftrobonzono » — . . .»»«. .. .
2,4-Oinrtrophenol _.. . „
2,3-Dmitrototueoe (and 2,6-, mixture) _.:. . ._
1,4-Dioxane
Diphenyiamine ..».««.......»..«. ......«.„....«.
1,2-Diphenylhydrazine.. «... --.,-.-„,,„„„„,,,......._„ .. n>
Dtsutfoton _. . .„.„.„„„ .. . ,'.".".'.
Endosutfan ...
Endrin ............ „.__ «....«.....__«._.™.™.._....._™........«......m™!.""."
Ethytene dforomide
Formaldehyde
Gfycidyaldehyde.... ............... .... ....«..»..« _
H0x8ctilofdibQfTZO~p*drOxin n«« •m««_ .
Hexactilorobutadiene ..
Hexachlorocyctopentadiene
He^cttonlph^e*
Hydncine
rfyuvogon cysHinfl — [.[ — i................... > •
Hydrogen suffite..__..._. „......._._„„...„..„._.....„_ _. «.„.......„_»
IsoDutyt afe"Vv i.. . . .,. . n
Isophorone
Lead .
Lindane (garnma-hexachlorocyctohexane) .......... . ..„„„.. _..._...._._._.„...,
m-Phanytanedbifnina , ., _.,,,„_ „,,,„„...,., ,. ..
Maleic anhydride _
Malai^ hyrtrajtria _.___ , ,,„, ... .,
Mona>y (inorganic) ,„„.,.,.„..,.,.,., ,
MethacTvtonrtrila _
"^yT^htomrflrtvxi^T "
Mnrhyl fithyl kntnrm
Mothyt fsobulyl kfltorm .,„„. .... ,
Mfltnyl psrathion _._._ ,,.....,...... . .
Morhyiene chloride
n-Nitroso-di-h-butytamine
n-Nitrono^vethyiwea
n-Nitrrxuvn-mathylAthylnmina ,,,„,„,„„,„.,.,„,.„.,„..,„ . ..
n-Nitrosodieth«nolamin«
n-Ni1rosodiph«nylflmirm _
n-NHrO9Opyrrolirinat«d biphwiyl* , „
Potassium cyanide
Potassium silvw nyanklo _ _ ._..
Pronamide «•
PyriHina ,.„ •_____._ :.. ,,„,,„ ,„,„,,„„„
Setentotis acid ,,,,,,,,,,,, ,,,„,,,, , ,
SolonourMi i IL i , _ m.ui im.n .
Silver , , , , - , , , , , >»
Silver cyanide _ _
Sodium cyanide , , ,,,,,,
Class
B2
D
B2
D
D
B2
82
0
82
D
D
D
D
82
D
81
0
D
82
B2
82
C
82
D
C
D
B2
D
D
D
C
82
B2/C
0
D
0
0
D
D
o
D
D
D
B
B2
' B
B2
82
B2
82
B2
D
A
D
D
D
D
C
D
C
D
D
D
D
D
82
D
D
D
D
O
D
D
D
D
D
MaxAJr
(ug/m 3)
OC-AQ
7E-03
4E-01
z:::::::::
8E+01
8E-00
8E-02
4E-02
6E-05
4E-00.
6E-02
3E+01
2E-02
».
«-•-• —— ••
36+01
6E-02
26-01
4E-01
1E-00
MlnAir
(ug/m 3)
7P rai
4E-03
8E-02
BE-04
4E-04
6E-07
4E-02
6E-04
3E-01
yp-tiA
— —
..._.„..
3E-01
6E-04
~~
2E-03
4E-03
1E-02
rmnj.
Max-,
Water
(mg/L)
3E-01
4E-03
.4f^l
4E-05
8E-04
4E-04
fiP-A7
4E-02
6E-04
^t-O9
3E-01
9E-01
3E-03
™
5£-fH
6E-O4
5E-04
1E-03
7E-01
•—•"••••••—•••
5E-O4
MnWater
(mg/L)
2E-07
3E-03
Z^
4E-O3
4E-07
8E-06
4E-00
4E-04
6E+06
2E-05
3E-03
—5^5-
""'aEl*5
-w>
.......... H. .......
' "
6E+06
5E-06
1E^K
CC.AA
iin . „„ .
""•"""""""
MaxSoi
(mg/kg)
5E-01
1E-OO
•• •*
•—*•"•"
6E+03
~"ai+oi
TE-l-03
8E-01
2E+01
8E-00
9E+02
1E-01
4E+01
5E+03
2E+04
" •
»«...«...,...„.
, 1E-01
1E+01
38+01
.............,!„.„
*W»M«..*..«...
MinSort
(mg/kg)
5E-O3
" -
1E-02
'•~~—-—
•••"—
1E-00
6E+01
fflE-^M
7E+01
8E-03
2E-01
8E-02
1E-04
9E-00
1E-01
4E-01
5E+01
—.«...«_.»
2E-01
2E+02
' "*"
11
•
""""——"•*
~""~"*"
""•*•* "
•—"*•"••"• "•
1E-01
1E-01
3E-01
.................
..».....»».,„..
""""""••""•
"""""""""**
*"*•** •••••*
••""•*••""•••*'
.................
*""*"••"—•
...............
................
-------
30870
Federal Register / Vol. 55, No. 145 / Friday, July 27. 1990 / Proposed Rules
APPENDIX C—RANGE OF CONCENTRATIONS FOR ESTABUSHINQ MEDIA PROTECTION STANDARDS FOR CARCINOGENS—Continued
Constituent name
Class
MaxAir
(ug/m 3)
MinSoi
(mg/kg)
t ^.4,&T«tnchlorobtnz«oe
t.'llu-TetncMoroethana
2,3,4.e-TetracMorophenol
Tetmethyl toed,
TetnwthykSthlopyrophosphatft
ThaWc oxide
Trichloroathyl«fM
Trichloromonofluorornethane
2,4,B-Trichkxoph«ool.
t^3-TricNoropropane.
Vanadium pentoxide.
ZlflccyanldeM
2ft)o phospNde.
C
C
D
C
C
B2
D
D
D
D
D
D
D
D
D
D
D
D
B2
D
C
82
D
B2
D
D
D
D
D
D
Appendix D: Recommended Exposusre
AMumptioni for Uu in Deriving Action
Levels
{Sections 264.521 (a)(2); (b): (c)(3); and
td))
1. In deriving action levels for hazardous
conatituanta in ground-water, assume a water
intake of 211 ten/day for 70 kg adult/70 year
lifetime exposure period.
2. In deriving action levels for hazardous
constituents in air, assume air intake of 20
cubic me ten/day for 70 kg adult/70 year
lifetime exposure period.
3. In deriving action levels for hazardous
constituents in soil, which are known or
impeded to be carcinogens, assume soil
Intake of 0.1 gram/day for 70 kg adult/70 year
lifetime exposure period.
4. In deriving action levels for hazardous
constituents in soil other than those which
are known or suspected to *>e carcinogens,
assume soil intake of OJ! gram/day for 16 kg
child/5 year exposure period (age 1-0).*
5. In deriving action levels for hazardous
constituents in surface water designated by .
the State for use as a drinking water source,
assume • water intake of 2 liters/day for 70
kg adult/70 year lifetime exposure period,
unless intake of aquatic organisms is also of
concern.
Appendix E: Examples of Calculations
of Action Levels
L Governing Equations for Calculating Action
Levels
A. Systemic Toxicants
where:
C-i«: action level in medium (units are
medium-dependent);
RfD=referenc* dose (mg/kg/day);
W-body weight (kg):
I = In take assumption (units are medium-
dependent); and
A= absorption factor l (dimensionless).
, B. Carcinogenic Constituents
C-,=lR*WLTJ/[CSF*rA*ED]
where:
C»~action level in medium (units are
medium-dependent);
Ra*assumed risk level (dimensionless) (1(T •
for class A & B; 10"' for class C
carcinogens);
W=body weight (kg);
LT— assumed lifetime (years);
CSFKcartinogenic slope factor (mg/kg/
I =» intake assumption (units are medium-
dependent);
A=absorption factor (dimensionless); and
ED»expo8ure duration (years).
'tfot to b« *.v«ngtd ov*r • 70-year lifetime.
* Assumed to be 1 for this ippendix based upon ,.
the assumption that the human absorption nte will
be the syne es the rete in the study upon which die
RfD or CPF was developed.
n. Example Calculations for Hazardous
Constituents in Air
A. Systemic Toxicants
Example calculation for 2,4-dinitrophenol:
C.=[0.002 (mg/kg/driOOO (/ig/mg)*70(kg)]/
[20 (m»/d)*l] =7.0 fig/m»
where:
C.»action level hi air (|tg/m^
RfD=0.002 mg/kg/day
W=70 kg adult
A=l
B. Carcinogenic Constituents
Example calculation for 1,1,2,2-
tetrachloroethane:
C.=[10-§*1000 (fig/mg)*70 jrrs)*70 (kg)]/.
[OJSO (mg/kg/day)- «*20 (m'/day)*l*70
(yrs)]=.l7Sjig/m
where:
C,=actlon level in air (fig/ml
R=10-»(1.1.2J-Tetrachloroethane is a Class
C carcinogen)
W>= 70 kg adult
LT^TO year lifetime
CSF-azo (mg/kg/day)-1
I-2em»/day
A=l
ED =70 year exposure duration
HI. Sample Calculation for Hazardous
Constituents in Water
A. Systemic Toxicants
Sample calculation for toluene:
C-,-I&.30 (mg/kg/dav)'70 (kg)]/[2 (L/
where:
Cw=action level in water mg/L)
-------
Federal Register / Vol. 55. No. 145 / Friday, July 27, 1990 / Proposed Rulea
30871
RfD=0.30 mg/kg/day for toluene
W-70 kg adult
I=2L/day
A-l
B. Carcinogenic Constituents
Sample calculation for 1,1 A2,-
tetrachloroethane:
Cw=[10-»*70 (kg)*70 (yr)]/[020 (mg/kg/
" day)-«*2 (L/day)*l*70 (yr)]=1.75E-03
mg/L
where:
C,=action level in water (mg/L)
R=10~* (1,1,2,2-Tetrachloroethane is • Class
C carcinogen)
W=70 kg adult
LT=70 year lifetime
CSF-020 (mg/kg/dayrl
I=2L/day
A-l
ED=70 year exposure duration
IV. Sample Calculations for Hazardous
Constituents in Soils
A. Systemic Toxicants
Example calculations for toluene:
C,=[0.30 (mg/kg/day)*16 (kg)J/[0.2 (g/
day)*ro.om (kg/g]=24,000 mg/kg
where:
Cs —action level in soil (mg/kg)
RfD=0.30 mg/kg/day for toluene
W-18 kg (5 year old child)
1=0.2 g/day
A-l
B. Carcinogenic Constituents
Sample calculation for 1.1A2.-
tetrachloroethane:
C.= [10-«*70 (kg)*70 (yrs)]/[0.20 (mg/kg/
day)-••O.I (g/day)'0.001 (kg/g)*l'70
(yrs)]=35.0 mg/kg
where:
C,=action level in soil (mg/kg)
R=10-*(ia,2.2-tetrachloroethane is a Class C
carcinogen)
W=70 kg adult
LT=70 year lifetime
CSF=0.20 (mg/kg/day)-»
1=0.1 g/day
A-l
ED=70 year exposure duration
APPENOOC F—LIST OF CONSTITUENTS SHOWING ACTION LEVEL SOURCE DATA
Constituent name
Acatana
Acetaptwnan* _
Acrytamida „„ u jt
A«ry4nn«rilfli . _..imn '
Aldicarti . „
iWrio
AHyialcflhot ... ______
Aluminum phQfphfefe. , ,, IIIMI _ 1
Anilina , , .
Antimnny ,,,,,.,
Al»«ni«. , „ _ _ _ ,..,..,.„.
Afit— to. (9) ,, ,
Barium cyanide,,,, „„.,.„ _ ...._....,..„..,..„ ,
Raritim, Ionic ,
Benzidn*
n^y*—
RJ^'a^ihylhMyl^pMhbXo
Bmmnriiphlnmmnthana
Rrfyrv^mn
""«""«""«»«"" „.„ ,. , ,
Riityl hanryl phthala.o
Carlmiiim
CalnuB ryanlrte .
n^hnn >«uiHiri>
Carbon tatru4*virfa
fiWnml..
ChlnrinA cyanirto ,
nhlnmhanmna ...., ,
2J=hloroph«»l
r^Y^r ryonirto Mi
">-'>»«nl ,, , - __
o«nl
p^rawil
Cvanide _
r^tanngan hmmirU
nnn
nnp
nnr
nihirtyl pMhatata
a.a'-nichIomh«B«in«
Diehlnrndlflun«xnath«n^ „-,„„....,
1,9JVehlnmyHn
-------
Federal Register / Vol. 55, No. 145 / Friday. July 27. 1990 / Proposed Rules
APPENDIX F— LIST OF CONSTITUENTS SHOWING ACTION LEVEL SOURCE DATA— Continued
Constituent name
ettwe " ~
DimethyWtroeamioe ~— — — ™
2.4J)fnttropheool
2,3-DWtrotofueoe (and 2,8-, mixture) ....................... ~.— •—
t,4*dox£ne «,«.«.«,«.—* ii- i
Dipheoylafnlne -• •• ~
Disutfoton —
Endoeurftn
*• . .1 — tf .111111 — — ••»•••••«•«
Endrln
EpidilOfonydrln.. — — —
Elhylbenzerte, "
Ethyleoe dfcromlde— ____——— „___—————
Heptachlor eposdde
(jpha-HexaehkxocycJohexane —____—-. « '
l^nchkxpcydopentKtene •—
Hexaehtoroothane, -™ —— — —
booutyt alcohol ~
nvPhenylenedtenloe — ~ •
MiMc hydraride.., — — --1""""""1
Mercury (Inorganic)— — •— '" _,.„__
Methomyl— — ~~ '
Methyl cntorocartxsnete — —
Methyl ethyl ketone- -—
Methyl leobutyl ketooe
Methyl parathton .. ™
Mttbyler* chloride — — ' ~
n-NKroeo-dkvteutytaiTilne, —
Nickel refinery duet ~~~~_.
Nttroberaeoe-— . — — ' — "
Oerolun letadde — ""
Parattiton — — — — ~
PerU«cr*xooitrobeni«n*__- ""'
Peotachtoropheool ——. —
Phenol — "~ ""
pnenyl mercuric aoetale ~- -..„---
PnthaSe anhydride —— — — ~
Pouuelom cyanide —— "
Potaeekim eBver cyanide — —
Pyridine_ — — '
' SetentoueacU — ~~~
Selenourea— '
Class
D
B2 .
D
D
B2
B2
D
B2
0
D
D
D
B2
D
82
B1
D
0
62
82
B2
C
B2
C
D
C
D
B2
D
D
D
C
B2
B2/C
D
D
D
D
D
D
D
D
D
. D
B
B2
B
B2
B2
B2
B2
B2
0
!A
D
0
D
0
C
D
C
D
D
D
D
O
B2
C
0
D
C
0
- !
J C
OralRFD
(mg/kg/d)
2.0E 02 .
1.0E-04 .
2.0E-03 .
EsE™ 02 .
5.0E-OS .
2.0E-02
3.0E-04 .
2.0E 03
1.0E-01
2.0E— 00
4.0E-04
6.0E-04
1.3E-05
2.0E-03
7.0E-03
1.0E-03
3.0E-04
2.0E-02
3.0E-03
3.0E-01
2.0E 01
3.0E 04
6.0E-03
1.0E 01
S.OE 01
3.0E-04
1.0E-04
2.5E-02
5.0E-02
5.0E-02
2.5E-04
6.0E-02
ZOE-02
1.0E-01
5.0E-04
1.0E-00
1.0E-06
6.0E-03
8.0E-04
3.0E-03
3.0E-02
"6.0E-01
8.0E-06
3.0E-04
2.0E-00
i ._
S.OE-02
2.0E-01
7.5E-02
1.0E-03
3.0E-03
5.0E-03
3.0E-03
1.0E-01
4.0E-0!
Inhalation
"W
1
2.0E-05
2.0E-04
0.0E-02
2.0E-02
60E-04
-
„ -,
Oral«tope
factor (mg/
kg/dJ-1
K 1C i n-«
eJsi-oi
1.1E-02
8.oi-6i
8.9E-03
4.5E-00
0.1E-00
7.8E-02
6.3E-00
1.8E-00
3.0E-00
4.1E-03
1.3E-00
7^E-03
5.4E-00
7.0E-00
2.8E-00
4.9E-03
2.1E-00
imiz
7.7E-00
Inhalation
slope factor
(mg/kg/d) >
51E+01
"'"IToif-oi
4.2E-03
'• 7.6E™'oV
4.5E-02
""TsE-OO
9.1E-00
6.2E+03
7.8E-02
6.3E-00
1.8E-00
1.4E-02
5.4E-00
2.1E-00
J 8.4E-01
.......
. .™^
2.SE-01
1
Sodkim ey»nkJ»
-------
Federal Register / VoL 55. No. 14S / Friday. luly 27. 1990 / Proposed Rules
30873
APPENDIX F—UST OF CONSTITUENTS SHOWING ACTION LEVEL SOURCE DATA—Continued
Constituent name
Strychnifw mi,,...,.,
1.1.1.2-Tetrachlonrthana. ,., ,.. ,
1.2.4,5-Tetmchkynbaremra „..
1,1.1.2-Tirtraehloroathana .....,., Ml]llll , ,,
1,1.2,2-Tetr8chloroethane _.
TfltraehlomnthyiAno ,,„, IM IIM
2.3.4.6-Tetraehiomph«nnl ,„,
TetraethyldHiiiopyrophosphfrtB „ „„„ „
Thallium acetata ,--„„„...„„.. .-„ ,„„„ ,
Thallium carbonate ,, ,„ ,, I.I.I.IM
Thallium chloride
Thallium nftrata ,,„„„„„ , ,... „
Thallium sutfata ,-.
Thtosemicarbazkie «. ui
Thiram ...„.„, . """
Toluana —
Tompham TIIIIIIIJ "..-......
1.2.4-Trichkxobenzenii „,„ ,
1,1,2-TriehlofOBHMn.,,,, , ,
TnchkntMthylana . „ „., r
Tnchlaramonaflunranifllhana , _ __:
2.4.5-Tricnlorapnanol „ ,
£4.6-Trichlorophenol
2.4.5-Trichl«i»nanoxyacatic«*<
1^,3-Trichlompmpano ,.,
Xytenaa
Tine eyaniria
Tinr phnaphirU ,
Class
0
C
C
B2
D
0
D
0
0
D
D
D
0
D
0
D
82
0
D
C
B2
0
0
B2
D
0
0
D
D
D
1 '•
Oral RFC
(mg/kg/d)
3.0E-04
2.0E-01
3.0E-02
3.0E-04
3.0E-02
ToE~02
3.0E-02
1.0E-07
S.OE-04
7.0E-05
9.0E-05
8.0E-05
8.0E-05
9.0E-OS
8.0E-05
6.0E-03
5.0E-03
3.0E-01
ZOE~Q2'
9.0E-02
4.0E-03
3.0E-01
1.0E-01
lloii'^oT
6.0E-03
e.OE-03
2.0E-00
5.0E-02
3.0E-04
Inhalation
RFD(mg/
kg/d)
— — ••—
™ —
..........„„_.„_„
••••- •— —
2.0E-00
3r
-------
30874
Federal Register / Vol. 55. No. 145 / Friday. July 27. 1990 / Proposed Roles
264.531 Determination of technical
impracticability.
2M.532-2MJOT [Reserved]
284.540 Interim measures.
2S4£il-£8t.540 [Reserved]
264J50 Management of wastes.
264.551 Management of hazardous wastes.
264.552 Management of non=hazardous solid
wastes.
264.553-2a4.559 [Reserved]
264.500 Required notices.
Subpirt S—Corrective Action for Sofld
Wast* Manaflsment Units
9264.500 rhirpose and applicability.
(a) The provisions of this snbpart
establish requirements for investigation
and corrective action for releases of
hazardous.waste, including hazardous
constituents, from solid waste
management units.
(b) Tho owner or operator of a facility
seeking a permit under subtitle C of
RCRA must institute investigations and/
or corrective action, as necessary to
protect human health and the
environment, for all releases of
hazardous waste, including hazardous
constituents, from any solid waste
management unit at the facility,
regardless of the time at which waste
was placed La such unit
(c) Requirements for investigations
and/or corrective action will be
specified in the permit The permit will
contain schedules of compliance for
such investigations and/or corrective
action (where such cannot be completed
prior to issuance of the permit] and
assurances of financial responsibility for
completing such corrective action.
(d) The owner or operator must
implement corrective actions beyond the
facility property boundary, where
necessary to protect human health and
the environment, unless the owner or •
operator demonstrates to the
satisfaction of the Regional
Administrator that, despite the owner's
or operator's best efforts, the owner or
operator was unable to obtain the
necessary permission to undertake such
actions. The owner or operator is not
relieved of responsibility to clean up a
release that has migrated beyond the
facility boundary where off-site access
is denied. On-site measures to address
such releases will be determined on a
case-by-case basis. Assurances of
financial responsibility for completing
such corrective action must be provided.
(e) For protection of ground water
from landfills, surface impoundments,
land treatment units, and waste piles
that received listed or identified
hazardous waste after July 28,1962, the
provisions of this subpart apply only as
specifically provided herein.
(f) The provisions of this subpart do
not apply to:
(1) Permits for land treatment
demonstrations using field test or
laboratory analyses (see S 270.63).
(2) Emergency-permits (see § 270.61).
(3) Permits by rule for ocean disposal
barges or vessels (see § 270.60(a)).
(4) Research, development, and
demonstration permits (see 5 270.65).
J 264.501 Definitions.
For the purpose of complying with the
requirements of this subpart, the
following definitions apply:
Corrective Action Management Unit
means a contiguous area within a
facility as designated by the Regional
Administrator for the purpose of
implementing corrective action
requirements of this subpart, which is
contaminated by hazardous wastes
(including hazardous constituents), and
which may contain discrete, engineered
land-based sub-units.
Facility means all contiguous property
under the control of the owner or
operator seeking a permit under subtitle
C of RCRA.
Hazardous Constituent means any
constituent identified in appendix VHI of
40 CFR part 261, or any constituent
identified in appendix IX of 40 CFR part
Hazardous Waste means a solid
waste, or combination of solid wastes,
which because of its quantity,
concentration, or physical chemical, or
infectious characteristics may cause, or
significantly contribute to, an increase
in mortality or an increase in serious
irreversible, or incapacitating reversible,
illness; or pose a substantial present or
potential hazard to human health or the
environment when improperly treated,
stored, transported, or disposed of, or
otherwise managed!. The term hazardous
waste includes hazardous constituent as
defined above.
Release means any spilling, leaking.
pouring, emitting, emptying, discharging.
injecting, pumping, escaping, leaching,
dumping, or disposing of hazardous
wastes (including hazardous
constituents) into the environment
(including the abandonment or
discarding of barrels, containers, and
other closed receptacles containing
hazardous wastes or hazardous
constituents).
Solid Waste Management Unit means
any discernible unit at which solid
wastes have been placed at any time,
irrespective of whether the unit was
intended for the management of solid or
hazardous waste. Such units include any
area at a facility at which solid wastes
have been routinely and systematically
released.
to 284£02-264£0» [Reserved]
S2M.510 Requirement to perform
remedial Investigations.
If the Regional Administrator
determines that hazardous waste
(including hazardous constituents) have
been, are likely to have been, or, based
on site-specific circumstances, are likely
to be released into the environment from
a solid waste management unit at the
facility, the Regional Administrator may
specify in the permit schedule of
compliance that the permittee
investigate and characterize solid waste
management units and releases from
solid waste management units at the
facility. ,
S264J.11 Scope of remedial
Investigations.
(a) Investigations required under
S 284.510< shall characterize the nature,
extent direction, rate, movement and
concentration of releases, as required by
the Regional Administrator. In addition.
such investigations may include, but are
not limited to, the following:
(1) Characterizations of the
' environmental setting at the facility.
including:
(i) Hydrogeological conditions;
(ii) Qimatological conditions;
(iii) Soil characteristics;
(iv) Surface water and sediment
quality and other characteristics; or
(v) Air quality and meteorological
conditions.
(2) Characterization of solid waste
management units from which releases
have been or may be occurring,
including unit and waste characteristics.
(3) Descriptions of humans and
environmental systems which are, may
have been, or, based on site-specific
circumstances, may be exposed to
release(s).
(4) Information that will assist the
Regional Administrator in assessing
risks to human health and the
environment from releases from solid
waste management units.
(5) Extrapolations of future movement,
degradation and fate of contaminants.
(6) Laboratory, bench-scale or pilot-
scale tests or studies to determine the
feasibility or effectiveness of treatment
technologies or other technologies that
may be appropriate in implementing
remedies at the facility. !
(7) Statistical analyses to aid in the
interpretation of data required tinder
S 284.510, in accordance with statistical
methods approved by the Regional
Administrator,
(b) Samples of ground water, surface
water, soils, or air which are collected
as part of remedial investigations
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30875
required under 5 264.510 shall be
analyzed for those constituents and
parameters determined to be necessary
by the Regional Administrator to
accurately and adequately characterize
the presence of hazardous wastes
(including hazardous constituents) in the
samples.
S264£12 Plan* for remedial
Investigations.
(a) The Regional Administrator may
require the permittee to develop and
submit a plan(s) for conducting any
remedial investigations required under
5 264.510 of this subpart Such plans
shall be subject to review and approval
or modification by the Regional
Administrator, and shall be developed
and submitted according to a schedule
specified in the schedule of compliance.
Such plans may include, but are not
limited to, the following:
(1) Overall approach, including
objectives, schedules, and qualifications
of personnel conducting investigations.
(2) Technical and analytical approach
and methods for investigations.
(3) Quality assurance procedures,
including:
(i) Data collection strategy;
(ii) Sampling, chain of custody
procedures; and
(iii) Methods of sample analysis.
(4) Data management procedures,
including formats for documenting
analytical results and tracking sample
custody, and other results of
investigations.
(b) Upon approval or modification of
the plan by the Regional Administrator,
the plan shall be incorporated expressly
or by reference as a part of the permit
schedule of compliance. The permittee
shall conduct the studies and
investigations in accordance with the
plan and any other requirements
specified in the permit schedule of
compliance.
§264.513 Report* of remedial
Investigations.
(a) The Regional Administrator may
require periodic reports to be submitted
by the permittee during remedial
investigations required under 5 264.510,
and may, based on information from the
investigations, or other information,
require new or modified investigations.
Such modifications will, if necessary, be
specified by modifying the permit
schedule of compliance. •' '
(b) Upon conclusion of the remedial
investigations, the permittee shall
submit to the Regional Administrator for
approval:
(1) A final report describing the
procedures, methods, and results of the
remedial investigations, in such format
and containing such information as
specified by the Regional Administrator;
and
(2) A summary of the report
(c) If, upon receipt of the final report
and summary, the Regional
Administrator determines that the final
report and summary do not fully satisfy
the requirements for the report and
summary specified in the permit
schedule of compliance, or otherwise do
not provide a full and accurate summary
and description of the remedial
investigations, the Regional
Administrator may require the permittee
to submit a revised report
(d) Upon approval of the summary,
the permittee shall mail it to all
individuals on the facility mailing list
(required under 5 124.10(c)(l)(viii)).
(e) All raw data, such as laboratory
reports, drilling logs and other
supporting information generated from
investigations required under § 264.510
shall be maintained at the facility (or
other location approved by the Regional
Administrator) during the term of the
permit including any reissued permit
{264.514 Determination of no further
action.
(a)(l) Based on the results of
investigations required under 5 264.510
or other relevant information the
permittee may submit an application to
the Regional Administrator for a permit
modification to terminate the schedule
of compliance for corrective action,
according to the procedures for Class HI
permit modifications under 5 270.42.
(2) The permit modification
application must contain information
demonstrating that there are no releases
of hazardous waste (including
hazardous constituents) from solid
waste management units at the facility
that may pose a threat to human health
or the environment
(b) If the Regional Administrator,
upon review of the request for a permit
modification, reports submitted under
S 264.513, or other information,
determines that there is no such threat
to human health and the environment
from releases from solid waste
management units at the facility. The
Regional Administrator shall grant the
permit modification according to the
procedures of § 270.42.
(c) Any determination made pursuant
to § 264.514(b) will not affect the
authority or responsibility of the
Regional Administrator to:
(1) Modify the permit at a later date to
require the permittee to perform such
investigations and studies as may be
necessary to comply with the
requirements of this Subpart if new
information or subsequent analysis
indicates that there are, or are likely to
be, releases from solid waste
management units at the facility that
..may pose a threat to human health or
the environment; or
(2) Require continued or periodic
monitoring under the terms of the permit
if the Regional Administrator
determines, based on site-specific
circumstances, that releases are likely to
occur.
§§264.515-264.519 [Reserved]
§ 264.520 Requirement to perform
corrective measure study.
(a) If at any time the Regional
Administrator determines that
concentrations of hazardous
constituents hi ground water in an
aquifer, surface water, soils, or air
exceed an action level (as defined
under S 264.521), and there is reason to
believe that such hazardous constituents
have been released from a solid waste
management unit at the facility, the
Regional Administrator shall require as
part of the permit schedule of
compliance that the permittee perform a
corrective measure study, according to
the requirements of 5 5 264.522-264.524,
except as otherwise provided under
S 264.520(c).
(b) If the Regional Administrator
determines that a constituent(s) present
in a concentration below an action level
(as defined under 8 264.521) may pose a
threat to human health or the
environment given site-specific
exposure conditions, and there is reason
to believe that the constituent(s) has
been released from a solid waste
management unit at the facility, the
Regional Administrator may require a
corrective measure study according to
the requirements of 85 264.522-264.524.
(c) If an action level has been
exceeded (as provided under
S 264.520(a), but the Regional
Administrator determines that the
release(s) may nevertheless not pose a
threat to human health and the
environment the Regional
Administrator may allow the permittee
to apply for a determination of no
further action, according to S 264.514.
(d) The Regional Administrator shall
notify the permittee in writing of the
requirement to conduct a corrective
measure study. This notice shall identify
the hazardous constituent(s) which
exceed action levels defined under
S 264.521, as well as any hazardous
constituents) identified pursuant to
S 264.520(b).
(e) For purposes of 55 264.520, 264.521,
264.525 (d) and (e), the term
"constituent" refers to hazardous
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Federal Register / Vol. 55. No. 145 / Friday. July 27. 1990 / Proposed Rules
constituents, as defined in 9 261501, as
well as other hazardous wastes (as
defined hi 9 284.501) that are single
chemical constituents.
1264J21 Action towfe.
Action levels are defined aslbllows:
(a) Action levels for constituents in
ground water in an aquifer which the
Regional Administrator has reason to
believe may have been released from a
solid waste management unit at the
facility shall be concentration levels
specified as:
(1) Maximum contaminant levels
(MCLs) promulgated under 91*1-2 of the
Safe Drinking Water Act (40 CFR part
141subpartB);or
(2) For constituents for which MCLs
have not been promulgated, a •
concentration which satisfies the
following criteria, assuming exposure
through consumption of the water
contaminated with the constituent:
(i) Is derived hi a manner consistent
with Agency guidelines for assessing the
health risks of environmental pollutants
(51FR 33992,34006,34014,34028); and
(il) Is based on scientifically valid
studies conducted hi accordance with
the Toxic Substances Control Act
(TSCA) Good Laboratory Practice
Standards (40 CFR part 792), or
equivalent: and
(ill) For carcinogens, represents a
concentration associated with an excess
upper bound lifetime cancer risk of
1x10—* due to continuous constant
lifetime exposure, and considers the
overall weight of evidence for
cardnogenidty; and
(iv) For systemic toxicants, represents
a concentration to which the humaa
population (including sensitive
subgroups) could be exposed on a daily
basis that is likely to be without
appreciable risk of deleterious effects
during a lifetime.
(b) Action levels for constituents in ah-
which the Regional Administrator has
reason to believe may have -been
released from a solid waste
management unit at the facility shall be
defined as concentrations which meet
the criteria specified in
exposure through inhalation of the air
contaminated with the constituent, as
measured or estimated at the facility
boundary, or another location closer to
the unit if necessary to protect human
health and the environment
(c) Action levels for constituents m
surface water which the Regional
Administrator has reason to believe-.
may have been released from a solid -
waste management unit at the facility
shall be specified as:
(1) Water Quality Standards
established pursuant to section 303(c) of
the Clean Water Act (40 CFR part 131}
by the State hi which the facility is
located, where such standards are
expressed as numeric values; or
(2) Numeric interpretations of State
narrative water quality standards, if
appropriate, where water quality
standards expressed as numeric values
have not been established by the State;
or
(3) MCLs promulgated under the Safe
Drinking Water Act for constituents in
surface waters designated by the State
for drinking water supply, where
numeric values or numeric
interpretations, described'in paragraphs
(1) and (2), are not available; or
(4) For constituents in surface waters
designated by the State for drinking
water supply for which numeric values,
numeric interpretations, or MCLs (as
described in paragraphs 1-3 above) are
not available, a concentration which
meets the criteria specified in
S 264£21(aK2HiHiv). assuming
exposure through consumption of the
water contaminated with the
constituent; or
(5) For constituents in surface waters
designated for a use or uses other than
drinking water supply and for which
numeric values or numeric
interpretations (as described hi
paragraphs (1) and (2) above) have not
been established, a concentration
established by the Regional
• Administrator which meets the criteria
specified in i 264£21(aX2)(iHiv).
considering the use or uses of the
receiving waters.
(d) Action levels for constituents hi
soils that the Regional Administrator
•has reason to believe may have been
released from a solid waste
management unit at the facility shall be
defined as concentrations which meet
the criteria specified in
S 2S4.521(a)(2){iHiv). assuming
exposure through consumption of the-
soil contaminated with die constituent
(e) If, for a constituents) detected hi
ground water in an aquifer, ah*, surface •
water or soils, a concentration level that
meets the criteria of 128tS21(aHd) is'
not available, the Regional
Administrator may establish an action
level for the constituent as:
(1) A level that U an indicator for
protection of human health and the
environment, using the exposure
assumptions for the medium specified .
under i 264J521[aH
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30877
(6) Proposed format for information
presentation.
(b) Upon approval or modification of
the corrective measure study plan by the
Regional Administrator, the plan shall
be incorporated expressly or by
reference as part of the permit schedule
of compliance. The permittee shall
conduct the studies and investigations in
accordance with the plan and any other
requirements as specified in the permit
schedule of compliance.
§264324 R«porta.of corrective measure
•tudte*.
(a) The Regional Administrator may
require periodic reports during the
conduct of the corrective measure study,
and may, based on information from
these reports or other information,
require the permittee to modify the
corrective measure study. Such
modifications will, if necessary, be
specified by modifying the permit
schedule of compliance.
(b) Upon completion of the corrective
measure study, the permittee shall
submit a report summarizing the results
of the study. This report must include a
detailed description of the remedies
assessed pursuant to { 284.522 or
S 264.524(a). The report shall describe
how any proposed remedyfs) meets the
standards for remedies as specified in
§ 264.525{a).
(c) Upon review of the corrective
measure study report, the Regional
Administrator may require the permittee
to evaluate further, and report upon, one
or more additional remedies, or develop
particular elements of one or more
proposed remedies. Such further
requirements will, if necessary, be
specified by modifying the permit
schedule of compliance.
5 264325 Selection of remedy.
Based on the results of the corrective
measure study, and any further
evaluations conducted under
S 264.524(c), the Regional Administrator
shall, except as otherwise provided
under paragraph (f) of this section,
select a remedy that, at a minimum,
meets the standards listed in paragraph
(a) of this section.
(a) Standards for remedies. Remedies
must
(1) Be protective of human health and
the environment;
(2) Attain media cleanup standards as
specified pursuant to paragraphs (d) and
(e) of this section;
(3) Control the source(s) of releases so
as to reduce or eliminate, to the extent
practicable, further releases of
hazardous wastes (including hazardous
constituents) that may pose a threat to
human health and the environment; and
(4) Comply with standards for
management of wastes as specified in
§5 264.550-284.559 of this subpart
(b) Remedy selection factors. In
selecting a remedy which meets the
standards of f 264325(a), the Regional
Administrator shall consider the
following evaluation factors as
appropriate:
(1) Long-term reliability and
effectiveness. Any potential remedy(s)
may be assessed for the long-term
reliability and effectiveness it affords,
along with the degree of certainty that
the remedy will prove successful
Factors that shall be considered in this
evaluation include:
(i) Magnitude of residual risks in
terms of amounts and concentrations of
waste remaining following
implementation of a remedy, considering
the persistence, toxicity, mobility and
propensity to bioaccumulate of such
hazardous wastes (including hazardous
constituents);
(ii) The type and degree of long-term
management required, including
monitoring and operation and
maintenance;
(iii) Potential for exposure of humans
and environmental receptors to
remaining wastes;
(iv) Long-term reliability of the
engineering and institutional controls,
including uncertainties associated with
land disposal of untreated wastes and
residuals; and
(v) Potential need for replacement of
the remedy.
(2) Reduction of toxicity, mobility or
volume. A potential remedyfs) may be
assessed as to the degree to which it
employs treatment that reduces toxicity,
mobility or volume of hazardous wastes
(including hazardous constituents).
Factors that shall be considered in such
t» includes
(i) The treatment processes the
remedyf.8) employs and materials it
would treat;
(ii) The amount of hazardous wastes
(including hazardous constituents) mat
would be destroyed or treated;
(iii) The degree to which the treatment
is irreversible;
(iv) The residuals that will remain
following treatment, considering the
persistence, toxicity, mobility and
propensity to bioaccumulate of such
hazardous wastes (including hazardous
constituents).
(3) The short-term effectiveness of a
potential remedyfs) may be assessed
considering the following:
(i) Magnitude of reduction of existing
risks;
(ii) Short-term risks that might be
posed to the community, workers, or the
environment during implementation of
such a remedy, including potential
threats to human health and the
environment associated with
excavation, transportation, and •
redisposal or containment; •
(iii) Time until full protection is
achieved. '
(4) Implementability. The ease or
difficulty of implementing a potential
remedy(s) may be assessed by
considering the following types of
factors:
(i) Degree of difficulty associated with
constructing the technology;
(ii) Expected operational reliability of
the technologies;
(iii) Need to coordinate with and
obtain necessary approvals and permits
from other agencies;
(iv) Availability of necessary
equipment and specialists;
(v) Available capacity and location of
needed treatment, storage and disposal
services.
(5) Cost. The types of costs that may
be assessed include the following:
(i) Capital costs;
(ii) Operation and maintenance costs;
(iii) Net present value of capital and
operation and maintenance costs;
(iv) Potential future remedial action
costs.
(c) Schedule for remedy. The Regional
Administrator shall specify as part of
the selected remedy a schedule(s) for
initiating and completing remedial
activities. The Regional Administrator
will consider the following factors in
determining the schedule of remedial
activities:
(1) Extent and nature of
contamination.
(2) Practical capabilities of remedial
technologies in achieving compliance
with media cleanup standards, and
other objectives of the remedy.
(3) Availability of treatment or
disposal capacity for wastes managed
during implementation of the remedy.
(4) Desirability of utilizing
technologies which are not currently
available, but which may offer
significant advantages over already
available technologies in terms of
effectiveness, reliability, safety, or
ability to achieve remedial objectives.
(5) Potential risks to human health
and the environment from exposure to
contamination prior to completion of the
remedy.
(6) Other relevant factors.
(d) Media Cleanup Standards. Except
as otherwise provided by § 284325(d)(2),
the Regional Administrator shall specify
in the selected remedy requirementB for
remediation of contaminated media as
follows:
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Federal Register / Vol. 55. No. 145 / Friday. July 27. 1990 / Proposed Rules
(1) Regional Administrator shall
specify concentration levels of
hazardous constituents in ground water,
surface water, air or soils that the
remedy must achieve, as necessary to
protect human health and the
environment Such media cleanup
standards will be established by the
Regional Administrator as follows:
(1) The cleanup standard(s) shall be
concentration levels in the affected
media which protect human health and
the environment ,
(ii) Unless a lower concentration level
is deemed necessary to protect
environmental receptors, cleanup
standards shall be established as
follows:
(A) For known or suspected
carcinogens, cleanup standards shall be
established at concentration levels
which represent an excess upperbound
lifetime risk to an individual of between
1X10'4 and 1X10"§. The Regional
Administrator shall use the ixltr*. risk
level as the point of departure in
establishing such concentration levels.
fJB) For systemic toxicants, cleanup
standards shall represent concentration
levels to which the human population
(including sensitive subgroups] could be
exposed on a daily basis without
appreciable risk of deleterious effect
during a lifetime.
(ill) In establishing media cleanup
standards which meet the requirements
of 12d4.525(d)(l) M and (")• above, the
Regional Administrator may consider
the following: .
(A) Multiple contaminants in the
medium;
(B) Exposure threats to sensitive
environmental receptors;
(C) Other site-specific exposure or
potential exposure to contaminated
media;
(D) The reliability, effectiveness.
practicability, or other relevant features
of the remedy.
(iv) For ground water and surface
water that Is a current or potential
» _i t__l_i _..—4«iB 4\*e* Oonfnm
source of drinking water, the Regional
Administrator shall consider maximum
contaminant levels promulgated under
section 141.2 of the Safe Drinking Water
Act(40CFRpartl41subpartB)to
establishing media cleanup standards.
(v) If the permittee can demonstrate to
the satisfaction of the Regional
Administrator that a specific
concentration of a constituent in a •
medium at the facility is naturally
occurring or from a source other than a
solid waste management unit at the
facility, the cleanup level established
under this Subpart for the constituent in
the medium shall not be below that
specific concentration, unless the-
Regional Administrator establishes that:
(A) Remediation to levels below that
specified concentration is necessary to
protect human health and the
environment; and
(B) Such remediation is to connection
with an areawide cleanup under RCRA
or other authorities.
(2) The Regional Administrator may
determine that remediation of a release
of a constituent from a solid waste
management unit to a media cleanup
standard established pursuant to
§ 264.525{d)(l) is not necessary if the
permittee demonstrates to the Regional
Administrator's satisfaction that:
(i) The affected medium is also
contaminated by substances that are
naturally occurring or have originated.
from a source other than a solid waste
managment unit at the facility, and
those substances are present to
concentrations such that remediation of
the release from the solid waste
management unit would provide no
significant reduction to risks to actual or
potential receptors; or
(ii) The constituents) is present to
ground water that:
(A) Is not a current orjotential source
of drinking water, and
(B) Is not hydraulically connected
with waters to which the hazardous
constituents are migrating or are likely
to migrate to a concentration^) greater
than an action level(s) specified
according to 8 264.522; or
(iii) Remediation of the release(s) to
media cleanup standards is technically
impracticable.
(3) If a determination is made
pursuant to paragraph (d)(2) of this
section the Regional Administrator may
require any alternative measure(s) or
standards he or she determines are
necessary to protect human health and
the environment including the control of
further releases.
(e) Compliance with media cleanup
standards. The Regional Administrator
shall specify to the remedy requirements
for achieving compliance with the media
cleanup standards established under •
S 284 525(d) (or alternative levels under
S 264.525(d)(l)(v) or (d)(3)), a» follows:'
(1) The Regional Administrator shall
specify where compliance with such
standards or levels must be achieved, as
follows:
(i) For ground water, the cleanup
standard(s) or levels shall be achieved
throughout the contaminated ground
water, or, at the Regional
Administrator'e discretion, when waste
is left to place, up to the boundary of •
waste management area encompassing-
the original source(s) of release;
The Regional Administrator shall
specify the locations at which ground-
i
water monitoring wells must be located
for purposes of:
(A) Monitoring the effectiveness of the
ground-water remediation program; and
(B) Demonstrating compliance with
the ground-water cleanup standard(s) or
level(s).
(ii) For air, the cleanup standard(s) or
level(s) shall be achieved at the location
of the most exposed individual, or other
specified point(s) of exposure closer to
the source of the release, if determined
by the Regional Administrator to be
necessary to protect human health and
the environment The Regional
Administrator shall specify locations -
where air monitoring devices must be
installed, or what emission modeling or
testing, atmospheric dispersion models.
or other methods must be used to
demonstrate that compliance with any
air cleanup standard(s) or level(s) has
been achieved at the potot(s) of
exposure.
(iii) For surface water, the cleanup
standard(s) or level(s) shall be achieved
at the point where the release(s) enters
the surface water. For releases that have
accumulated to surface water
sediments, the Regional Administrator
may, as necessary to protect human
health and the environment require that
a cleanup standard(s) or level(s) be
achieved at designated locations to the
sediments. The Regional Administrator
will specify the locations where surface
water or sediment samples must be
taken to monitor surface water quality,
and demonstrate that compliance with
any surface water cleanup standard(s)
or level(s) has been achieved.
(iv) For sous, the cleanup standard(s)
shall be achieved at any point where
direct contact exposure to the soils may
occur. The Regional Administrator will
specify the locations, or methods for
determining appropriate locations,
where soil samples must be taken to
demonstrate compliance with the soil
cleanup standard(s) or'level(s).
(v) If the owner/operator is unable to
obtain the necessary permission to
undertake corrective action beyond the
facility boundary, and can demonstrate
to the satisfaction of the Regional
Administration that despite the owner/
operator's best efforts, she is as a result
unable to achieve media cleanup.
standards or levels beyond the facility
boundary, then media cleanup
standards-or levels must be achieved to
the extent practicable, as specified by
the Regional Administrator.
(2) The Regional Administrator will
specify to the remedy the sampling and
analytical methods, any statistical
BHillyUU4U 11U7UAUUD, OAIJT •MBW»uw«*a •
- analyses that may be required, and the 1
frequences) of sampling or monitoring A
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30079
that may be required to characterize
levels of hazardous constituents in
ground water, surface water, air or soils.
(3) The Regional Administrator will
specify in the remedy the length of tun?
during which the permitteejnust in
order to achieve compliance with a
media cleanup standard or level,
demonstrate that concentrations of
hazardous constituents have not
exceeded the standard(s). Factors that
may be considered by the Regional
Administrator in determining these
timing requirements include:
(i) Extent and concentration of the
release(s);
(ii) Behavior characteristics of the
hazardous constituents in the affected
medium;
(iii) Accuracy of monitoring or
modeling techniques;
(iv) Characteristics of the affected
media; and
(v) Seasonal, meteorological, or other
environmental variabilities which may
affect the accuracy of monitoring or
modeling results
(f) Conditional remedies. (1) If the
criteria of 5 264.525(f)(2) are met, the
Regional Administrator may select a
conditional remedy that protects human
health and the environment under
plausible exposure conditions during the
term of the permit
(2) A conditional remedy must
(i) Protect human health and the
environment; and
(ii) Achieve all media cleanup
standards or levels as specified
pursuant to paragraphs (d) and (e) of
this section beyond the facility
boundary as soon as practicable; and
(iii) Prevent further significant
environmental degration by
implementing, as soon as practicable:
(A) treatment or other necessary
engineering controls to control any
source(s) of releases; and
(B) engineered measures as necessary
to prevent further significant migration
of releases within the facility boundary.
(iv) Institute effective institutional or
other controls to prevent any significant
exposure to hazardous wastes at the
facility; and .
(v) Continue the monitoring of
releases so as to determine whether
further Big"1'**"1"* environmental
degradation occurs; and
(vi) Include assurances of financial
responsibility for the remedy; and
(vii) Comply with standards for
management of wastes as specified in
5 S 264.550-264.559 of this subpart
(3) If at any time during the term of
the permit, any condition of paragraph
(f)(2) of this section is violated, the
Regional Administrator shall modify the
permit to:
(i) Require the permittee to perform
additional studies or actions, or
implement additional controls to
achieve compliance with the
requirements of paragraph (f)(2) of this
section; or
(ii) Require additional studies, actions.
or controls as necessary to implement a
remedy which meets the standards of
§ 264.525{a).
(4) The permit shall not be terminated
until a remedy which meets the
standards of S 284.525(a) has been
implemented and certified complete
according to S 264.530.
§264.526 Pwmit modification for raiMdy.
(a) The Regional Administrator shall
modify the permit to specify the remedy
selected according to 9 264.525,
according to the procedures for major
permit modifications under § 270.41.
(b) The permit modification shall
include, at a minimum, the following:
(1) Description of the technical
features of the remedy that are
necessary for achieving the standards
for remedies specified in 9 284.525(a)
and/or (f).
(2) All media cleanup standards
established pursuant to S 264525(d).
(3) Requirements for achieving
compliance with media cleanup
standards, pursuant to i 264~525{e).
(4) Requirements for complying with
the standards for management of
wastes, pursuant to S 9 264^50-264^59.
(5) Requirements for removal.
decontamination, closure, or post-
closure of units, equipment, devices or .
structures that will be used to .
implement the remedy.
(6) A schedule for initiating and
completing the major technical features
and milestones of the remedy.
(7) Requirements for submission of
reports and other information.
(c)(l) The schedule of compliance
specified in the permit modification
shall include a schedule for the
permittee to demonstrate financial
assurance for completing the remedy
specified according to 9 264.526(b). The
schedule shall require the demonstration
no later than 120 days after the effective
date of the permit modification.
(2) If the remedy requires closure of a
hazardous waste management unit, and
the schedule of compliance for die
remedy supplants or modifies the unit's
closure or post-closure plan, the
Regional Administrator may partially or
fully release existing financial assurance
for closure, postclosure, and third party
liability required under 99 264.143,
264.145, and 264.147. Such releases shall
not be effective until the financial
assurance requirements at
9 264.526{c)(l) are satisfied.
(d) A remedy specified in a permit
modification may be separated into
phases. A remedy phase may consist of
any set of actions performed over time
or any actions that are concurrent but
located at different areas, provided that
the actions are consistent with the final
remedy.
§264£Z7 Remedy design.
(a) The Regional Administrator may
require the permittee, upon modification
of the permit according to 9 264.528, to
prepare detailed construction plans and
specifications to implement the
approved remedy at the facility, unless
such plans-and specifications have
already been specified in the permit
modification. Such plans shall be j
subject to review and approval or ;
modification by the Regional ;
Administrator, and shall be developed
and submitted in accordance with the
permit schedule of compliance. Upon
approval by the Regional Administrator,
the plan shall be incorporated expressly
or by reference into part of the permit
schedule of compliance. The plans and
specifications must include, but are not
limited to, the following: j
(1) Designs and specifications for j
units hi which hazardous wastes and j
non-hazardous solid wastes will be i
managed, as specified in the approved
remedy.
(2) Implementation and long-term ^
maintenance plans. ;
(3) Project schedule. {
(4) Construction quality assurance '.
program. j
(b) Upon approval of the plans and j
specifications for the remedy, the <
permittee shall— I
(1) Implement the remedy in !
accordance with the plans and
specifications, and consistent with the
objectives of the remedy specified hi the
permit;
(2) Place the plans and specifications
hi the information repository, if required
under 9 270.38;
(3) Provide written notice of the
availability for inspection of the
approved plans and specifications for
the remedy to all individuals on the
facility mailing list If an information
repository has not been required
pursuant to 9 270.36, the notice shall
specify where the plans and
specifications are available for
inspection; and
(4) Revise the cost estimate used to
demonstrate financial assurance under
9 264.528(c), if necessary.
S 264^28 Program reports.
(a) The permittee may be required by
the Regional Administrator to provide
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Federal Register / Vol 55. No. 145 / Friday. July 27.1990 / Proposed Rules
progress reports during the design,
construction, operation and
maintenance of any remedy. Frequency
and format of reports shall be
determined by the Regional
Administrator and specified injne
permit schedule of compliance. Such
reports may include, but are not limited
°*fl) Summaries of progress of remedy
Implementation, Including results of
monitoring and sampling activities,
progress in meeting media cleanup
-tandaids, and description of other
remediation activities.
[21 Problems encountered during the
reporting period, and actions taken or
proposed to resolve the problems
(3) Changes in personnel conducting
or managing the remedial effort
(4) Project work for next reporting
PB(5) Copies of laboratory reports and
field sampling reports.
CD) All raw data, such as laboratory
reports, drilling logs and other
supporting information generated com
the remedial activities shall be
maintained at the facility (or other
location approvedby the Regional
Administrator) during the life of the
permit, Including the term of any
reissued permits.
lmp»«mtnt«tioa,
The Regional Administrator shall
periodically review the progress of the
remedy. Based on such review, to*.
Regional Administrator may modify the
permit schedule of compliance to require
additional remedial measures to ensure
prompt completion, safety,
effectiveness, protectiveness, or
reliability of the remedy.
|264£30 ompt.
(a) Remedies specified pursuant tor
I 284^29 shall be considered complete
when the Regional Administrator
(^mpto with .11 media cleanup
standards (or alternate levels) ai
specified in the permit have been^
achieved, according to the requirements
compliance according to the procedures
for Class m modifications in S 270.42.
The request shall include a certification
that the remedy has been completed in
accordance with the requirements of
§ 264.530(a), and that all other terms and
conditions specified in the permit
pursuant to Subpart S have been
satisfied. The certification must be
signed by the permittee and by an
independent professional(s) skilled in
the appropriate technical discipune(s).
(c) When, upon receipt of the
certification, and in consideration of
public comments and any other relevant
information, the Regional Administrator
determines that the corrective measure
remedy has bean completed in
accordance with the terms and
conditions of the permit and the
requirements for remedy completion
under 8 284.530(a), toe Regional
Administrator shall:
(1) Modify toe permit to terminate toe
corrective action schedule of .
compliance, according to toe Class ffl
procedures of i 270.42.
(2) Upon modification of toe permit
release toe permittee from toe •
requirements for financial assurance for
corrective action under |-264.500(c) and
§ 264.90.
(d) If a remedy includes one or more
identified phases, toe Regional
Administrator may.
(1) Require separate certification tnat
toe remedy phase has been completed
as specified in the permit, to be signed
bv toe permittee and an independent
professional^) skilled in the appropriate
technical discipline^; and _ .
(2) Release toe permittee from too
requirements for financial assurance for
that remedy phase, if toe Regional
Administrator determines that tofr
remedy phase has been successfully.
completed.
I264JS31 Datwmlnatton of technical
knpcacttaWUty.
(a) The Regional
Administrator may determine, based on
information developed by toe permittee
or other information, that compliance
with a requiremenUs) for toe remedy is
not technically practicable. In making
such determinations, toe Regional
Administrator shall consider.
(3) Procedures specmeu «« «^
decontamination, closure, or post-
dosure care of units, equipment, .devices
or structures required to implement the
remedy have been complied with.
ft) Upon completion of toe remedy.
the permittee shall submit to toe
Regional Administrator, by registered
S « request for termination of toe
corrective action schedule of
dministrator sha conser.
(1) The permittee's efforts to achieve
compliance with the requirement(s); and
(2) Whether other currently available
or new and innovative methods or
technologies could practicably achieve
compliance with the requirements.
fb) If the Regional Administrator
determines that compliance with a
remedy requirement is not technically
practicable, the Regional Administrator
shall modify the permit schedule of
compliance to specify as necessary and
appropriate:
(1) Further measures that may be
required of the permittee to control
exposure of humans or the environment
to residual contamination, as necessary
to protect human health and the
environment; and
(2) Alternate levels or measures for
cleaning up contaminated media,
controlling the source(s) of
contamination, or for removal or
decontamination of equipment, units.
devices, or structures required to
implement the remedy which:
(i) Are technically practicable; and
(ii) Are consistent with the overall
objectives of the remedy
§§ 264.S32-264339 [Reserved]
$264340 Interim imasurw.
(a) If, at any time the Regional
Administrator determines, based on
consideration of the factors specified in
$ 264.540(b), that a release or, based on
site-specific circumstances, a threatened
release from a solid waste management
unit(s) at the facility poses a threat to
human health or the environment, the
Regional Administrator may specify in
the permit interim measures required of
the permittee to abate, minimize,
stabilize, mitigate, or eliminate the
release(s) or threat of release(s).
(b) The following factors may be
considered by the Regional
Administrator in determining whether
an interim measure(s) is required:
(1) Time required to develop and
implement a final remedy;
(2) Actual or potential exposure of
nearby populations or environmental
receptors to hazardous wastes
(including hazardous constituents);
(3) Actual or potential contamination
of drinking water supplies or sensitive
ecosystems;
(4) Further degradation of the medium
which may occur if remedial action is
not initiated expeditiously:
(5) Presence of hazardous wastes
(including hazardous constituents) in
drums, barrels, tanks, or other bulk
storage containers, that may pose a
threat of release;
(6) Presence of high levels of
hazardous wastes (including hazardous
constituents) in soils largely at or near
the surface, that may migrate;
(7) Weather conditions that may
cause hazardous wastes (including
hazardous constituents) to migrate or be
released;
(8) Risks of fire or explosion, or
potential for exposure to hazardous
wastes (including hazardous
constituents) as a result of an accident
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Federal Register / Vol. 55, No. 145 / Friday. July 27.1990 / Proposed Rules
30881
or failure of a container or handling
system;
{9} Other situations that may pose
threats to human health and the
environment
(c) If the Regional Administrator
determines that an interim measure is
necessary pursuant to { 264.540(a), the
Regional Administrator shall notify the
permittee of the necessary actions
required. Such actions shall be
implemented as soon as practicable, in
accordance with a schedule as specified
by the Regional Administrator. The
Regional Administrator shall modify the
permit schedule of compliance, if
necessary, to require implementation of
an interim measure, in accordance with
the procedures of $ 270.34 or § 270.41, as
appropriate.
(d) Interim measures should, to the
extent practicable, be consistent with
the objectives of, and contribute to the
performance of any remedy which may
be required pursuant to S 264.525.
§J 264^41-549 [Reserved]
$264550 Management of waste.
. (a) All solid wastes which are
managed pursuant to a remedy required
under $ 264.525, or an interim measure
required under $ 264.540, shall be
managed in a manner
(1) That is protective of human health
and the environment; and
(2) That complies with applicable
Federal, State and local requirements.
(b) The Regional Administrator shall
specify in the permit requirements for
units in which wastes will be managed,
and other waste management activities,
as determined by the Regional
Administrator to be necessary for
protection of human health and the
environment
S264£51 MuuosnMftt of hazardous
wastes.
(a) Except as Provided herein and in
paragraphs (b) and (c) of this section
any treatment storage or disposal of
listed or identified hazardous waste
necessary to implement a remedy or an
interim measure shall be in accordance
with the applicable standards of 4O CFR
parts 262,264.268 and 269.
Requirements for closure contained in
subpart G of 40 CFR part 264, except for
§ 264.111, may be waived by the
Regional Administrator for units created
for the purpose of managing corrective
action wastes.
(b)(l) For temporary units (except for
intineratoi J and other non-tank thermal
treatment units) in which hazardous
wastes will be stored or treated, the
Regional Administrator may determine
that a design, operating, or closure
standard(s) applicable to such unit(s)
solely by regulation may be replaced by
alternative requirements which are
protective of human health and the
environment ;
(2) Any temporary unit to which
alernative requirements are applied
according to paragraph (b)(l) of this
section shall:
(i) Be operated for a period not
exceeding 180 calendar days, unless the
period is extended under $ 264.551(b)(3)
below; and
(ii) Be located at the facility, and
(iii) Be used only for treatment or
storage of hazardous wastes (including
hazardous constituents), or other solid
wastes that have originated within the
boundary of the facility.
(3) The Regional Administrator may
grant an extension to the 180-day period
of a temporary unit if hazardous wastes
must remain in the unit due to
unforeseen, temporary, and
uncontrollable circumstances. The .
owner/operator must request this
extension as a Class I modification, with
Director approval, under the procedures
of § 270.42.
(4) In establishing standards to be
applied to temporary units, the Regional
Administrator shall consider the
following factors:
(i) The length of time such unit(s) will
be in operation.
(ii) Type of unit and volumes of
wastes to be managed.
(iii) Potential for releases from the
unit(s).
(iv) Physical and chemical
characteristics of the wastes to be .
managed in the unit(s).
(v) Hydrogeological and other
relevant environmental conditions at the
facility which may influence the
migration of any potential releases.
(vi) Potential for exposure of humans
and environmental receptor* if releases
were to occur from the unit(s).
(5) The Regional Administrator shall
specify in the permit the length of time
that such units will be allowed to
operate, and specific design, operating,
and closure requirements for the unit(s).
(c) For the purposes of implementing
remedies under this subpart, the
Regional Administrator may designate
an area of contamination as a corrective
action management unit
(1) Movement or consolidation of
wastes within a corrective action
management unit will not constitute
placement of hazardous wastes in a
hazardous waste management unit
(2) Consolidation of wastes within- the
corrective action management unit will
not constitute creation of a new.
replacement or lateral expansion of a
hazardous waste management unit
(3) In making determinations as to
whether a corrective action management
unit is appropriate for implementing a
remedy at a facility, and/or the nature
and configuration of a corrective action
management unit at a facility, the
Regional Administrator may consider
the following:
(i) The nature, extent and location of
surficial contamination at the facility,
(ii) The potential benefits of a
corrective action management unit hi
achieving remedial objectives for the
facility, including (but not limited to):
(A) Expediting the timing of remedy
implementation; and
(B) Enhancing the effectiveness, cost-
effectiveness, reliability or
protectiveness of a remedy;
(iii) The practicability of alternative
remedial, approaches; or
(iv) Other relevant factors.
(4) The requirements of subpart G of
40 CFR part 264 will not apply to
corrective action management units. The
Regional Administrator will specify in
the permit closure requirements for any
corrective action management unit in
consideration of the following factors:
(i) Unit characteristics;
(ii) Volume of wastes which will
remain after closure;
(iii) Potential for releases from the
unit;
(iv) Physical and chemical
characteristics of the wastes;
(v) Hydrological and other relevant
environmental conditions at the facility
which may influence the migration of
any potential releases; and
(vi) Potential for exposure of humans
and environmental receptors if releases
were to occur from the unit
(5) Closure requirements specified for
corrective action management units
under paragraph (c)(3) of this section
shall:
(i) Minimize the need for further
maintenance; and
(ii) Control, minimize, or eliminate, to
the extent necessary to protect human
health and the environment post-
closure escape of hazardous waste,
hazardous constituents, leachate,
contaminated runoff, or hazardous
waste decomposition products to the
ground or surface waters or to the
atmosphere.
(6) The Regional Administrator will
specify in the permit post-closure
requirements for any corrective action
management unit as necessary to
protect human health and the
environment including monitoring and
maintenance activities and the
frequency with which they will be
performed to ensure the integrity of the
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30882
Federal Register / VoL 55. No. 145 / Friday, July 27.1990 / Proposed Rules
cap, final cover, or other containment
system.
§2«4£52 Management of non-hsaanioiie
(a) Treatment storage and disposal of
non-hazardous solid wastes pursuant to
a remedy or interim measure required
under this subpart shall be in
accordance with applicable technical
standards for solid waste management
as specified in regulations promulgated
pursuant to RCRA subtitle D.
(b) For any unit in which non-
hazardous solid wastes will be managed
pursuant to a remedy or interim
measure, the Regional Administrator
may specify additional design and
operating standards for the unitfs). as
necessary to protect human health and
tile environment In determining
appropriate design and operating
requirements for such units, the
Regional Administrator shall consider
the factors ispecified under
| 264.551(bX2).
Required notice*.
la) Notification of ground-water
contamination. If at any time the
permitted discovers that hazardous
constituents in ground water that may
have been released from a solid waste
management unit at the facility have
migrated beyond the facility boundary
In concentrations that exceed action
levels (as defined under | 284.521), the
permittee shall, within fifteen days of
discovery, provide written notice tome
Regional Administrator and any person
who owns or resides on the land which
overUes the contaminated ground water.
(b) Notification of air contamination.
If at any time me permittee discovert
that hazardous constituents in air that
may have been released from a soM
waste management unit at the facility
have or are migrating to areas beyond
the facility boundary in concentration*
that exceed action levels (as defined
under § 28C521), and tHat residences or
other places at which continuoos. long-
term exposure to such constituents
might occur are located within such
areas, the permittee mhaQ. within fifteen
days of such discovery:
(1) Provide written notification to the
Regional Administrator, and
(2) Initiate any actions that may be
necessary to provide notice to all
individuals who have or may have been
subject to such exposure.
(c) Notification of residual
contamination. If hazardous wastes or
hazardous constituents in solid waste
management units, or which have been
released from solid waste management
units, will remain in or on the land after
the term of the permit has expired, tha
Regional Administrator may require the
permittee to record, in accordance with
State law, a notation in the deed to the
facility property or in some other
instrument which is normally examined
during title search that will, in
perpetuity, notify any potential
purchaser of the property of the types.
concentrations and locations of such
hazardous wastes or hazardous
constituents.
PART 265-WTERIM STATUS
STANDARDS FOR OWNERS AND
OPERATORS OF HAZARDOUS WASTE
TREATMENT, STORAGE, AND
DISPOSAL FACILITIES
6. The authority citation for part 266
continues to read as follows:
Authority: 42 U.S.C. 0905,0924, and 6925.
7. In 40 CFR part 265. subpartG.it is
proposed to amend S 265.112(b) by
adding new paragraph (b){8). and to
amend 5 265.113 by redesignating
paragraphs (aXl)(ii) as (a)(l)(ui) and
. (b)(l)(ii) as (b)(l)(iii), and by adding new
paragraphs (a)(l)(ii) and (b)(l)(ii) to read
as follows:
$265.112 Clowe plan, amendment of
plan.
• • * * *
(b) * * *
(8) Information wMchcomplies with
the requirements of 40 CFR 270.14(d) for
all solid waste management units at the
facility.
. . « • •
§265.113 Closure,Hmeallowe*for
dosur*.
(a) • * •
(1) " * *
(fi) Corrective action required at the
unit or the facility under subpart S will
delay the completion of partial or final.
closure; or
• ••*»»
(b)* * •
(!]**•
fii) Corrective action required at the
unit or the facility under subpart S will
delay the completion of partial or final
closure: or
PART 270-EPA ADMINISTERED
PERMIT PROGRAMS: THE
HAZARDOUS WASTE PERMIT
PROGRAM
8. The authority citation for part 270
continues to read as follows:
AuAfldty: 42 U-&C. 6305,681Z 6825,6827.
and 6874
9. It is proposed to amend paragraph "'
(c) of $ 270.1 by adding the following
introductory text immediately before die
sentence which begins "The denial of a
permit for the active life * * , V as
follows: •
5270.1 Purpose «nd scop* of these
regulations.
*****
(c) * * * Owners and operators must
also have permits covering any period
necessary to comply with the
requirements of subpart S of part
264.* * *
*****
10. It is proposed to amend § 270.30(1)
by adding new paragraph (1X12) to read
as follows:
5270JO Conditions applicable to all
permtta.
*****
or * *
(12) Information pertinent to
corrective action requirements, (i) If the
permittee discovers additional solid
waste management units or learns of
releases of hazardous wastes (including
hazardous constituents) from previously
identified or newly discovered toad
waste management units at the facility,
the permittee shall submit the following
information to the Director:
(A) Identification of additional solid
waste management anitfaj. Within thirtj
days of the receipt of information about
a previously unknown and unreported
solid waste management unit at the
faculty (as denned in 40 CFR 284.501),
the permittee shall submit the following
information to die Director.
(1) The location of the unit on me
the part B application in accordance
with 40 CFR 270.14{b)(lfl) or a
topographic map of comparable scale
which clearly indicates die location of
the unit in relation to other solid waste
management units at the facility.
(2) Designation of type of unit
(3] General dimensions of the unit
(4) When the unit was operated.
(5) Specification of all wastes that
' have been managed in the unit, if
available.
(0) AD available information
pertaining to any release of hazardous
wastes (including hazardous
constituents) from the unit
(B) Sampling and analysis data. The
Director may require the permittee to
perform tempting and analysis of
ground water (which may involve the
installation of wefls), sous, surface
water, or air. as necessary to determine
whether a release(s) from such unites)
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30865
has occurred, is likely to have occurred,
or will likely occur.
(C) Releases of hazardous waste. If
the permittee discovers a release of
hazardous wastes (including hazardous
constituents) from a solid waste
management unit at the facility that may
pose a threat to human health and the
environment, the permittee shall, within
twenty days of the discovery, submit the
following information to the Director
(1) Identification of the solid waste
management unit(s) from which the
release has occurred, to include the type
of unit, and location of the unit clearly
indicated on a facility map; and
(2) Any other information currently
available concerning the release,
including potential exposure pathways.
controls already imposed to address the
release, and any action planned for*
further cleanup.
(ii) Based upon information supplied
under (A), (B), or (C) above the Director
may, as necessary, require further
investigations or corrective measures hi
accordance with the standards for
corrective action specified in 40 CFR
subpart S. Such additional activities
shall, if necessary, be specified by
modifying an existing schedule of
compliance according to S 270.34(c), or
by initiating a permit modification
according to 9 270.41.
*****
11. Section 270.33 is amended by
adding the following sentence at the end
of paragraph (a) to read as follows:
S 27043 Schedules of Compliance
(a) * * * Schedules of compliance for
corrective action are governed solely by
§ 270.34.
*****
12.* * * It is proposed to amend 40
CFR part 270, subpart C, by adding new
9 270.34 to read as follows:
S 270.34 Schedules of compliance* for
corrective action.
Schedules of compliance for
corrective action are governed by this
section and not 9 270.33.
(a) The Director may include a
schedule of compliance in the permit for
purposes of specifying the terms and
conditions necessary for the permittee
to comply with the requirements of
subpart S of part 264. Permit schedules
of compliance issued under this section
shall contain terms and conditions
deemed by the Director to be necessary
to protect human health and the
environment
(b) The permittee shall adhere to the
schedules specified in the permit If at
any time the permittee determines that
schedules cannot be met the permittee
shall, within 15 days of such
determination, notify the Director and
submit a request for a permit • -
modification under 9 270.42, with an
explanation of why the current schedule
cannot be met
(c) The Director may modify the
permit to include conditions in the
schedule of compliance as necessary to
comply with the requirements of subpart
S of part 264. The following procedures
will be followed unless the Director
determines instead that it is appropriate
to modify the permit pursuant to
9 270.41(aK5)(ix):
(1) The Director will notify the
permittee hi writing of the proposed
modification. Such notice will:
(i) Describe the exact change(s) to be
made to the permit conditions;
(ii) Provide an explanation of why the
modification is needed; and
(iii) Provide notification of the date by
which comments on the proposed
modification must be received. Such
date will not be less than twenty days
from the date the notice of proposed
modification is received by the
permittee, or after the public notice is
published under 9 270.34(c)(2);
(iv) Provide notification that
supporting documentation Or data may
be available for inspection at the
Regional or State office; and
(v) Include the name and address of
an Agency contact to whom comments
may be sent
(2) The Director shall:
(i) Publish a notice of the proposed
modification in a newspaper distributed
in the locality of the facility, which
includes notice of items (l)PHv);
(ii) Mail a notice of the proposed
modification to ail persons on the
facility mailing list maintained
according to 40 CFR 124.10(c)(l)(viii).
Such notice will include items (l)(iMv),
and shall be mailed concurrently with
notice to the permittee;
(iii) For facilities which have
established an information repository
pursuant to 9 270.36, the Director shall
place a notification of the proposed
modification, including items (l)PHv),
in the information repository
concurrently with actions taken under
(3) If the Director receives no written
comment on the proposed modification,
the modification will become effective
five days after the close of the comment
period; the Director will promptly notify
the permittee and individuals on the
facility mailing list in writing that the
modification has become effective, and
will place a copy of the modified permit
hi the information repository if a
repository is maintained for the facility.
(4) If the Director receives written
comment on the proposed modification.
the Director shall make a final
determination concerning the
modification within thirty days afUr the
end of the comment period if
practicable. The Director shall then:
(i) Notify the permittee hi writing of
the final decision. Such notification
shall:
(A) Indicate the effective date of the
modification, which shall be no later
than fifteen days after the date of
notification of the final modification
decision,
(B) Include an explanation of how
comments were considered in
developing the final modification, and
(C) Provide a copy of the final
modification;
(ii) Provide notice of the final
modification decision, including
paragraphs (c)(4)(i)(A) and (i)(B) of this
section, in a newspaper of local
distribution in the vidnity of the facility;
and
(iii) Place a copy of items (i)(AHi)(C)
in the information repository for the
facility if such a repository is
maintained.
(5) Modifications-initiated and
finalized by the Director using
procedures in 9 270.34(c) are not subject
to administrative appeal
• * * * *
B. It is proposed to amend 40 CFR part
270, subpart C, by adding new
S 27O36 Information repository.
(a) At any time during conduct of
investigations or other activities
required under part 264, subpart S, the
Director may require the permittee to
establish and maintain an information
repository for the purpose of making
accessible to interested parties
documents, reports and other public
information developed pursuant to
investigations and activities required
under part 264, subpart S.
(b) The information repository shall
contain all documents, reports, data and
other information which the Director
deems relevant to public understanding
of the activities, findings and plans for
such corrective action initiatives.
(c) The information repository shall,
when feasible, be located within
reasonable distance of the facility, or if
not feasible, at the facility. The
repository shall be accessible to the
public during reasonable hours, as
required by the Director.
(d) In the permit schedule of
compliance, the Director shall specify
requirements for informing the public
about the information repository. At a
minimum, written notice about the
information repository shall be given to
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/ Proposed Rule*
Vol. 55. No. 145 / Friday. July 27.1980
all individuals on the facility mailing
*(e) Information regarding procedures
for submission of commento shall be
made available at the repository.
* • • •
14. It is proposed to amend 9 270.41 by
revising the Introductory text and by
•ddbag new paragraph (a)(5)(ix) to read
as follows:
8270.41 Mc<«lcabonorrswoeatJon8«cl
the permit is reissued for a new term. .
[See 40 CFR 124.5{c)t2W D cause does.
not exist under this section, the Director
shall not modify or revoke and reissue
the permit, except on request of the
permittee or In accordance wife
6 270.34fcl. If a permit modification is
requested by the permittee, the Director
ihall approve or deny the request
according to the procedures of 40 CTR
270.42. "Hie Director may also modify the
permit schedule of compliance for
corrective action under the procedures
of § 270.34(c). Otherwise, a draft permit
must be prepared and other procedures
in part 124 (or procedures of an
approved State program) followed.
I*)***
(5)*
rtw.
When the Director receives any
information (for example, inspect* U»
facility, receiTe* information *nbmitted
bymeperodtteemfteqairedlntfaB
permit (see i 270JO), recede. • request . . •
formodmwitionorrevocationand }£) T^ Director tetermraes good
reissuanoe under I IMA «"^* ^gj ^ far modification rf the
review of the permit file) ha or *he may iant
determine whether one ormore of th«
causes ll*ted in paragraph* (a) and (b)
of this section to modification, or
revocation and reissuance or both exist.
If causa exi*t», the Director may modify
or revoke and reissue the permit
accordingly, .ubject to the limitation* of
paragraphic) of this section, and may
request an updated •H****1"...
necessary. When a permit i* modified.
only the condition* subject to
modification are reopened. If a permit to
revoked and reissued, the entire permit
is reopened and subject to revision and
cause exists for modincanon ex uw
permit for the purpose* of compliance
with subpart Sof part 264,
• • • * *
15. It i* proposed to revise paragraph*
(b)(3Mi) and (cKSKvH) of i 270*0 a*
follows:
M
»
will
,(i) Complies with 40 CFR subpart S;
and
. * • • •
(o) • * *
(3) « • *
[Tii) for NPDES permit* tawd after
November a M84,40 CPR subpart S.
PART 271— HEQUmEMEHTO FOR
AUTHORIZATION OF STATE
HAZARDOUS WASTE PROGRAMS
18. Tlie authority citation for part 271
continues to read as follows:
Authority: 42 U.S.C. 6905, W12(*l and 6028.
17. It i* proposed to amend i 271.10)
by adding the following entry in Table »
in chronological order by date of
publication:
1271.1
TABLE 1— REGULATIONS
•THE HAZARDOUS AND SOLID WASTE
AMENDMENTS OF 1964
Doto
TW* of RagiMton
[FR Doc. 90-1W3T Filed 7-26-4W; fc45 cm]
aHUNtt COOS MM SX
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