UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
SEP 27 1993
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
MEMORANDUM
SUBJECT: Off-site Ru!^ Implenjentatiqn
Bruce U^i^ff^^^r^
Office^TWast/Programs Enforcement
FROM:
TO:
Hazardous Waste Management Division Directors,
Regions I-X
Environmental Services Division Directors,
Regions I, VI, and VII
Emergency and Re; nedial Response Division Director,
Region II
On September 22, 1993, the Procedures for Planning and Implementing Off-site
Response Actions (the Off-site Rule) was published in the Federal Register. The rule
codifies CERCLA §121(d)(3) and previously published policy and guidance. The purpose of
the rule is to ensure that wastes from CERCLA sites are sent only to environmentally sound
facilities and do not contribute to future environmental problems. The rule establishes the
criteria that a waste management facility must meet before it can take off-site CERCLA
wastes and describes the procedures that EPA must follow when making determinations on
the acceptability of these facilities.
This rule, when it becomes effective on October 22, will supersede the November
13, 1987 Off-site Policy. While some of the provisions of the rule are different from the
policy, the way in which the off-site provisions are currently implemented will not be
significantly changed. Regional off-site coordinators (ROCs) will still be responsible for
determining the acceptability of waste management facilities, and OSCs and RPMs will be
responsible for ensuring that CERCLA wastes are sent to facilities that have been determined
to be acceptable. The rule does differ slightly from the policy in its scope and clarifies some
Printed on Recycled Paper
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areas not specifically covered in the policy; these differences are detailed in the attached
table. There are also a few major changes: the rule will-
not apply to RCRA §7003 actions (the policy did apply to these actions);
consider all facilities with criminal violations to be unacceptable if an
indictment has been issued;
eliminate the policy's distinction between pre-SARA and post-SARA RODs;
and
give waste management facilities the right to have unacceptability assessments
reviewed by the Regional Administrator (as opposed to leaving the decision of
whether to grant this review up to the Region).
The promulgation of the rule will most directly affect those involved in the off-site
acceptability determination process (the ROCs and Regional Counsel off-site contacts).
However, this would be a good time to update Superfund personnel on the requirements of
the rule and remind them that CERCLA wastes are subject to the off-site provisions.
Pamphlets for OSCs and RPMs, fact sheets, and copies of the rule are enclosed for this
purpose. If your staff has any questions on the rule or the accompanying materials, please
have them call Ellen Epstein at (202) 260-4849.
Attachments
cc: Henry L. Longest II, OERR
Regional Off-site Coordinators
Mark Badalamente, OGC
Ken Skahn, CED
Tern Johnson, OERR
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Policy and Rule Differences
1 Issue
.Responsible
Agency
Applicability to
wastes generated
by RCRA
§7003 actions
Violations that
cannot be undone
Definition of
de minimus
releases
Pre-SARA vs.
Post-SARA
Review of
Unacceptability
Assessment
Judicial or
Administrative
Challenges to
Corrective Action
Requirements
mab Samples
Rnd Treatability
Samples
Criminal
Violations
POTWs
Uninspected
Facilities
Release
To Air
Inspection
Frequency
^
Current Policy
Definition on page 7.
Covers this issue. "
Not addressed, but
implement Bruce Diamond's
8/29/88 memo.
Defines accumulation oTrT~"''~
1 gallon/acre/day or less
between landfill liners
to be da minimus.
Makes a distinction.
Grants Regional Admini-
strator or State official
discretion to provide or not
provide such review.
Not addressed.
Not specifically
addressed.
/
Discretion should be
used when determining
what criminal violations
are relevant violations.
Refers to another EPA policy.
Not specifically
addressed.'
As addressed by
§101 (22) of CERCtA
Compliance inspection
required 6 months prior
to receipt of CERCLA
waste.
Rnal Rule
Clarifies that EPA maintains overall authority over final determination with State
participation and support
Does not apply the off-site management criteria.
Incorporates Bruce Diamond's memo requiring settlement of legal and financial obligations
before regaining acceptability.
" Further defines da mimm^ and^c*rects poficy~tfefTrafi6n by staSng/fftanhe accumuialion'
of liquid between liners that are controlled by leachaie collection systems does not involve ;
release to the environment''
Eliminates the distinction.
Gives facility a right to have unacceptabilily assessment reviewed by Regional
Administrator.
Facilities remain '.macreptahie during judicial or administrative challenges to corrective
action requirements, unless interim steps are taken (i.e., an interim agreement may be in
place wilh Slate, making iaciiiiy acceptable during this period).
Samples of CERCLA wastes being sent off-site to labs for testing are not subject to the
rule; wastes from lab tests may not be sent back to the original site unless there is no
commercially available capacity, or an on-site remedy has been selected which will be able
manage the wastes safely (in either case, approval from an CSC must be obtained prior to
shipping). TreatabiGty study materials are exempt if handled consistent with 40 CFR
261 .4(0), Treatability Studies Sample Exemption."
Criminal violations are relevant where an indictment is issued.
Addressed.
'EPA will determine if there are relevant releases or relevant violations at a facility prior to
its initial receipt of CERCLA waste.* Preamble says compliance inspections and/or facility
assessments will generally be necessary components of such affirmative determinations,
although the agency will rely on reasonable current inspection information where available.
Air emissions not otherwise permitted are considered releases if they exceed new
standards in 40 CFR 264/265 subparts AA and BB. This rule, covering emissions from
equipment leaks and process vents, was made final June 21 , 1 990.
Inspection frequency removed from rule but addressed in preamble.
MM*
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vvEPA
BACKGROUND
United States
Environmental Protection
Agency
EPA 9834.11 FSa
September 19,1993
Solid Waste and Emergency Response
Environmental
Fact Sheet Update
PROCEDURES FOR PLANNING AND
IMPLEMENTING OFF-SITE RESPONSE
ACTIONS
On November 5, 1985 EPA published a policy to ensure that wastes
shipped off-site from CERCLA clean-ups were sent to environmentally sound waste
management facilities. When CERCLA was reauthorized in 1986, Congress
incorporated this policy into § 12 l(d)(3) of the CERCLA statute. The policy was
subsequently updated and on September 22, 1993 the final rule, Procedures for
Planning and Implementing Off-site Response Actions (the Off-site Rule), was
published in the Federal Register. This rule codifies the statute and previous policy
by describing the criteria that off-site waste management facilities must meet when
taking waste from CERCLA sites and the procedures that EPA must follow when
making determinations on the acceptability of these facilities.
APPLICABILITY ^ne °ff-site m'e applies to:
all CERCLA remedial or removal actions
actions taken under §311 of the Clean Water Act
the clean-up of Federal facilities under § 120 of SARA
Superfund-financed response actions
State-lead enforcement actions if CERCLA funds are used
Lab samples and treatability samples from these facilities are generally exempt
from this rule.
For further information, please call the RCRA/SUPERFUND Hotline,
Monday through Friday, 8:30 a.m. to 7:30 p.m., EST.
FOR MORE IN-
FORMATION
National Toli-Free:
Washington, DC area
For the Hearing Impaired (TDD)
Please send written requests to:
Superfund Docket (OS-245)
U.S. Environmental Protection Agency
401 M Street, SW
Washington, DC 20460
(800) 424-9346
(703)920-9810
(800)553-7672
(703) 486-3323
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CRITERIA
NOTIFICATION
All facilities receiving off-site CERCLA wastes must be in physical compli-
ance with all applicable State and Federal requirements.
At RCRA Subtitle C land disposal facilities:
There should be no releases at the receiving unit
Releases must be cotrolled under RCRA corrective action at
all other units
At RCRA Subtitle C treatment and storage facilities:
There should be no releases at the receiving unit
All environmentally significant releases at other units must be
controlled under RCRA corrective action
At all other types of facilities:
Environmentally significant releases must be controlled under
an appropriate corrective action authority
EPA must determine whether a facility is acceptable before that facility can
receive off-site waste.
If EPA finds that a facility has violations or releases
that may make it unacceptable the facility is notified
in writing.
Facilities may ask for a meeting to discuss the determina
tion.
Any new information from the facilitiy will be evaluated
within 60 days of the initial notice.
The facility may ask the Regional Administrator to recon
sider the final determination. (Reconsideration does not
stay the determination.)
CHANGES
FROM POLICY
The Off-site Rule is very similar to previous policy, with only a few differ-
ences. The rule:
Eliminates the differences in acceptability criteria
for pre-SARA and post-Sara facilities
Does not apply to actions taken under RCRA §7003
Provides facilities with a right to have unacceptabiity determi
nations reviewed by the Regional Administrator
Clarifies that criminal violations are always considered
relevant violations where an indictment is issued
-------
REMEMBER
The Off-site Rule applies to any
remedial or removal action under any
CERCLA authority or using any Fund
money; response actions under §311 of
the Clean Water Act (except cleanup of
petroleum products); and cleanups at
Federal Facilities under §120 of SARA.
*-/ Ensure that a receiving facility's
permit or Interim status authorizes the
receipt of the wastes anticipated to be
transferred.
\-l Contact the appropriate ROC
Immediately prior to sending wastes off-
site to ensure the receiving facllty Is
acceptable.
Wastes that are treated on-slte are
still subject to the rule when transferred
off-site.
v-' PRPs must have prior approval from
an OSC before sending waste to a facility In
an emergency situation when human health
or the environment Is threatened.
Regional Off-site Contacts
February, 1993
Region 1 Lynn Hanifan (617)573-5755
Region 2 Greg Zaccardi (212)264-9504
Regions Sarah Caspar (215)597-8174
Region 4 Edmund Burks (404)347-7603
Region 5 Gertrude
Matuschkovitz (312)353-7921
Region 6 Ron Shannon (214)255-2192
Region 7 Gerald McKinney (913)551-7816
Region 8 Terry Brown (303)293-1823
Region 9 Diane Bodine (415)744-2130
Region 10 Ron Lillich (206)553-6646
United States EPA 9834.1 IF-'
Environmental Protection September 199
Agency
Solid Waste and Emergency Response
Overview of the
Off-site Rule
for OSCs and RPMs
The Procedures for Planning and
Implementing Off-site Response Actions
(September 22, 1993) describes
procedures that should be observed when
a response action under the
Comprehensive Environmental
Response, Compensation and Liability
Act (CERCLA) involves off-site storage,
treatment, or disposal of CERCLA waste.
The purpose of the Off-site Rule is to
avoid having wastes from CERCLA-
authorized or -Funded response actions
contribute to present or future
environmental problems by directing these
wastes to management units determined
to be environmentally sound.
CERCLA §121(d)(3) requires that
hazardous substances, pollutants or
contaminants transferred off-site for
treatment, storage or disposal during a
CERCLA response action be transferred
to a facility operating in compliance with
§3004 and §3005 of RCRA and all other
applicable Federal laws and all applicable
state requirements.
-------
Role Of OSCs and RPMs
OSCs and RPMs play a critical role
in ensuring effective implementation of the
Off-site Rule. They must determine if the
facility's permit or interim status authorizes:
1) the receipt of the wastes that would be
transported to the facility; and 2) the
process contemplated for the waste. They
are also responsible for contacting the
Regional Off-site Contact (ROC) in the
region where the receiving facility is located
prior to wastes being shipped.
Acceptability Status
The ROC will provide the current
acceptability status of the facility to receive
CERCLA waste. Often, an off-site
determination is specific to particular units
within a facility, rather than to an entire
facility. Because of the dynamic nature of
compliance conditions at these units or
facilities, it is important to recheck a facility's
status prior to each shipment of waste.
A facility that has received a notice
of unacceptability (issued by the ROC)
has a 60-day period during which it may
continue to receive CERCLA wastes while
it addresses the violations cited. The ROC
and OSC/RPM should maintain close
coordination throughout the 60-day period.
On the 60th day after issuance of the
unacceptability notice, the OSC or RPM
must stop transfer of wastes to the facility
and/or stop the transfer of CERCLA waste
already received by the facility from its storage
unit to an unacceptable unit if the facility or
receiving unit has not regained its
acceptability. Transfers within a facility are
more difficult for a ROC to monitor and thus
the Agency contemplates that restrictions on
such transfers under the Off-site Rule will be
included in contracts for off-site disposal or
treatment of wastes. If the primary facility
becomes unacceptable, the acceptability
status of the backup or secondary receiving
facility must be checked with the ROC.
The disposal contract between the
Agency and the company chosen to manage
the disposal of CERCLA wastes off-site
should specify the primary facilities that will
receive the wastes for ultimate treatment,
storage or disposal, as well as alternate
facilities.
Emergencies
Although compliance with the rule is
mandatory for removal and remedial actions,
OSCs may determine that an emergency
exists and that the need for fast action
prevents ensuring that all of the criteria in the
rule are met. This exemption may be used if
the OSC believes the threat to human health
and the environment posed by the
substances requires a removal action without
observing the rule procedures. Temporary
solutions, such as interim storage, should be
considered to allow time to locate an
acceptable facility. If this e xemption is used,
the OSC must provide a written explanation
to the Regional Administrator within 60 days
of taking the action.
Inspections
OSCs and RPMs do not have the
authority to conduct inspections for
purpose of compliance determinations
under the rule. If a facility has not been
inspected for off-site acceptability, contact
the ROC to get that facility on the inspection
schedule. In emergency situations, the
OSC should make every effort to use the
most environmentally sound facility.
If you have any questions regarding the Off-
site Rule, contact Ellen Epstein at (202)260-
4849.
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Federal Register / Vol. 5ft, No. 182 / Wednesday. September 22, 1993 / Rules and Regulations4919ft
approved unless the State approving-
agency finds that-the briefings and
critiques are an integral part of the
course and do not precede or follows
solo flying hours whidt exceed the
minimum number ofsolo flying hours
for the course in 14 (EFR part 141. The
maximum number of hours of preflight
briefings and postflight critiques which
may be approved for these courses may
not, when added together, exceed 25
percent of the approved hours of flight
instruction. , .
(Authority: 38 U.S.C 3002, 2452(b); 10 U.S.C
" "'
.
(4) Waiver of limitation in approvable
course hours, (i) Flighi schools that
wish to have a greater number of hours
of dual flight instruction approved than
are permitted by paragraph (h)(l)(ii) of
this section, may seek an administrative
review of their approval by the Director,
Education Service. Requests for such a
review should be made: in writing to the
Director of the VA facility having
jurisdiction over the flifeht school. The
request should :
"*' ' '"'-
(iii) The limit on the Dumber of hours
of solo flight instruction found in
paragraph (h)(l)(i) of this section may
not be waived. '
(Authority: 38 U.S.C 3032{i). 3231(0; 10,
U.S.C 2131(g)) - 1 ' ,
(i) Charges. The appropriate Stat*
approving agency shalLapprove charges
for tuition and fees for each flight course
exclusive of charges fol tuition and fees
for solo flying hours wlich exceed the
maximum permitted under paragraph
(h)(l)(i) of this section and for preflight
briefings and postflight; critiques which
precede or follow the excess sftlo hours.
* * ' * " , *'-,. *v~. 2.
[FR Doc. 93-22964 Filed 9-3*4*3; 8:45 ami
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 272
[FRL-4698-«] - -
Hazardous Waste Management
Program: Incorporation by Referanc*
of Approved State Hazardous Waste
Program for Wisconsin
AGENCY: Environmental Protection
Agency.
ACTION: Immediate final rule.
SUMMARY: Under the Resource
Conservation and Recovery Act of 1976, .
as amended (RCRA), the United States
Environmental Protection Agency (EPA)
may grant Final Authorization to States
to operate their hazardous waste
management programs in lieu of the
Federal program. EPA uses part 272 of
title 40 of the Code of Federal
Regulations (40 CFR part 272) to
provide notice of the authorization
status of State programs, and to
incorporate by reference those
provisions of State statutes and
regulations that EPA will enforce under
RCRA section 3008. Thus, EPA intends
to incorporate by reference the
Wisconsin authorized State program in
40 CFR part 272, The purpose of this -
action is to incorporate bjrreference -:;
EPA's approval of recent revisions to
Wisconsin's program: -
DATES: This document will be effective
November 22,1993 unless EPA
publishes a prior Federal Register (FR)
action withdrawing this immediate final-
rule. All comments on this action must
be received by the close of business
October 22,1993. The incorporation by
reference of certain Wisconsin statutes
and regulations was approved by the
Director of the Federal Register as of
November 22,1993; iri accordance with
5 U.S.C 5S2(a) and 1 CFR part 51.
ADDRESSES: Written comments should
be sent to Margaret Millard, Wisconsin
Regulatory Specialist, Office of RCRA,
U.S. EPA Region V, 77 West Jackson
Boulevard, HRM-7J, Chicago, Illinois
60604, (312) 353-1440.
FOR FURTHER MFORMATON CONTACT:
Margaret Millard, Wisconsin Regulatory,
Specialist. Office of RCRA; U.S. EPA -
Region V, 77 West Jackson Boulevard.
HRM-7J. Chicago, Illinois 60604, (312)
353-1440: '
SUPPLEMENTARY MFORHATKMtt.-.:
Background
.Effective April 24,1989, and May 29,
1990,* EPA incorporated by reference
Wisconsin's then authorized hazardous'
waste program (see 54 FR 7422 and 55
FR 11910). Effective April 24,1992, (see
57 FR 15029) EPA granted Wisconsin
additional authorization. In this notice,
EPA is incorporating the currently
authorized State hazardous waste
program in Wisconsin.
EPA provides both notice of its
approval of State programs in 40 CFR
part 272, and incorporates by reference
therein the State statutes ana
regulations that EPA will enforce under
section 3008 of RCRA. This effort will
provide clearer notice to the public of
the scope of the authorized program in
Wisconsin.
Revisions to Wisconsin's and other
State hazardous waste programs are
necessary when Federal statutory or
regulatory authority is modified. The
incorporation by reference of
Wisconsin's authorized program in
subpart YY of part 272 is intended to
enhance the public's ability to discern
the current status of the authorized State
program and clarify the extent of
Federal enforcement authority. For a
fuller explanation of EPA's
incorporation by reference of
Wisconsin's authorized hazardous waste
program, see 54 FR 7422 (February 21,
1989).
Certification Under the Regulatory
Flexibility Act
-* ' - . *.;«-.: 7* > ?: - - -1--
-Pursuant to the provisions of 5 U.S.C.
, 605(b). I hereby certify that this action
will not have a significant economic
impact on a substantial number of small
entities. It intends to incorporate by
. reference the decision already made to
authorize;Wisconsin's program and has
no separate effect on handlers of
hazardous waste in the State or upon
small entities. This rule, therefore, does
not require a regulatory flexibility
analy
Compliance With Executive Order
"12281 :"-:-r° ' i!Q'"" "' '**
The Office of Management and Budget
has exempted this rule from the
'requirements of section 3 of Executive
Order 12291.
Paperwork Redaction Act -
Under the Paperwork Reduction Act,
44 U.S.CT3501 et seq:, Federal agencies
must consider the paperwork burden
imposed by any information request
contained in a proposed rule or a final
rule. This rule will not impose any
information'requirements upon the
regulated community.
List of Subjects in 40 CFR Part 272
"Administrative practice and
procedure, Confidential business.
information; Environmental-Protection,
Hazardous waste transportation,.
Hazardous waste, Incorporation by
reference, Indian lands.
Intergovernmental relations, Penalties,
Reporting and recordkeeping
requirements, Water pollution control.
Water supply. ." " .
Dated: August 9,1993.
David A. Ullrich.. :
Acting Regional Administrator.
For the reasons set forth in the
preamble, 40 CFR part 272 is amended
as follows: -
PART 272-APPROVED STATE
HAZARDOUS WASTE MANAGEMENT
PROGRAMS
1. The authority citation for part 272
continues to read as follows:
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49200 Federal Register / Vol. 58, No. 182 / Wednesday. September 22. 1993 / Rules and Regulations
Authority: Sec*. 2002(a). 3006. and 7004(b)
of the Solid Waste Disposal Act; as amended
by the Resource Conservation and Recovery
Act. 42 U.S.C. 6912(a). 6926; and 6974(W
2. Section 272.2500, Stnte
Authorization, is removed.
3. Section 272.2501 is revised to read
as follows:
S27&2501 Wisconsin State administered
program; final authorization.
Pursuant to section 3006(b) of RCRA,
42 U.S.C. 6926(b): Wisconsin has final
authorization for the following elements
as submitted to EPA in Wisconsin's base
program application for final
authorization which was approved by
EPA effective on January 31,1986.
Subsequent program revision
applications were approved effective.on
June 8,1989, January 22,1990, and.
April 24,1992.
State Statutes and Regulation*
(a) The Wisconsin statutes and .
regulations cited in this paragraph are
incorporated by reference as part of the
hazardous waste management program. :.
under subtitle C of RCRA. 42 U.S.C
6921 ef seq.
(1) EPA Approved Wisconsin
Statutory Requirements Applicable to
the Hazardous Waste Management ...
Program, (dated August 9,1993).
(2) EPA Approved Wisconsin. -,
Regulatory Requirements Applicable to
the Hazardous Waste Management
Program (dated August 9,1993).
(b) The following statutes and ...
regulations concerning State
enforcement, although not incorporated
by reference for enforcement purposes. -._.
are part of the authorized State program:
(1) Wisconsin Statutes. Volume V c
§§ 19.21; 19.31; 19.32(2) and (5);
19.35(3) and (4); 19.36; 19.37(1) and (2);
Wisconsin Statutes, Volume 3,..... :,.--
§§144.69-144.72:144.73-144.74; -. .Vj
144.78(2) and (3); Wisconsin Statute*
Volume 4, §§ 227.07; 227.09; 227.14;
227.51; and Wisconsin Statutes, Volume
5, §803.09 (1985-88).
(2) Wisconsin Administrative Code,
Volume 1. SNR: 2.19; 2.195(1); and
2.195(5) (effective April 1.1984);
Wisconsin Administrative Code,
Volume 12, §NR: 680.06(12) (effective
March 1,1991).
4. Appendix A to part 272, State
Requirements, is amended by revising
the Appendix heading and adding the
center heading "Missouri" above the
listing, and adding in alphabetical order
"Wisconsin" and its listing to read as.
follows:
Appendix A to Part 272State
Requirements
MISSOURI
WISCONSIN
The statutory provisions include:
Wisconsin Statute*, Volume 3, Sections:
144.01; 144.43-433; 144.44 (except
144.44(4)(a)): 144.44K1H2); 144.441(3) (b),
(f). and (g); 144.441(4) (a) and (cHg):
144.441(6); 144.442(1), (4Hll); 144.443;
144.444; 144.60-144.63; and 144.64 (2H3)
(except for 144.64(2)(e)(l)).
The regulatory provisions include:
Wisconsin Administrative Code, Volume 12.
SNR 600.01-600.04(2); 600.06; 600.3-666.11;
605.02; 605.04-605.11; Appendix D. m, IV
and V; 610.01-610.09(2); 615.01-
615.13(2)(b): 620.01; 620.04-620.10(3):
620.14; 625.04(4); 625.05(l>-625.07(7)(c)12;
625.12(1) and (2); 630.02; 630.04-
630.40(3)(c); 635.02; 635.05-63S.16{17)(d);
635.17(1), (2) and (3); 640.02; 640.06(2)(b);
640.09-640.22(22); 645.04-645.14;
645.17(l)(a)(l}-645.17(l)(a)3.e; 650; 655.02; :
655.05-655.13(13); 660.02; 660.08-660,20(2);.
665.02; 665.05(1)-665.10(2); 670.06- . ,.
670.11(2)(d)3; 675.01-675.30(6); 680.01-
680.51(5); 685.02; 685.05-685.08(13)(b).
[FR Doc, 93-23071 Filed 9-21-93; 8:45 ami"'
BoiMo COM ano-co-M ;- -
40 CFR Part 300
[FRL-371S-7J
BIN2050-AC38. .. . ' - .iv _;.-.
Amendment to the National Oil and
Hazardous)Substance*Pollution,, .,
Contingency Plan; Procedure* for . ..
Planning and Implementing Off-Site
Responae Actiona ,.,,
-. AGENCY: Environmental Protection - "
Agency (EPA).
ACTON; Final rule. y:? "t^ " ,
SUMMARY: The U.S. Environmental v'-- -
Protection Agency (EPA) is today
.amending the National Oil and .'-=
Hazardous Substance Pollution '-<
Contingency Plan ("NCP"). Today's-';
final rule implements the requirements
of the Comprehensive Environmental ~
Response. Compensation and Liability
Act ("CERCLA") (as amended by the
Superfund Amendments and
Reauthorization Act of 1986 (SARA))
and includes certain additional
requirements that EPA finds to be
appropriate. CERCLA describes
procedures that must be observed when
a response action under CERCLA
involves off-site management of ., .
CERCLA hazardous substances,
pollutants or contaminants (hereinafter
referred to as "CERCLA wastes")
resulting from CERCLA decision
documents signed after the enactment of
SARA (Le.. after October 17.1986). This
rule also makes these procedures
applicable to off-site management olA
CERCLA wastes resulting from CER(fl
decision documents signed before th?
enactment of SARA. Prior to this rule,
EPA managed the off-site transfer of
CERCLA wastes according to the May
1985 off-site policy (published in the
Federal Register on November 5,1985).
as revised November 13,1987 (OSWER
Directive No. 9834.11).
DATES: Effective: The final rule is
effective October 22.1993.
CERCLA section 305 provides for a
promulgated under CERCLA. Although
INS v. Chadha, 462 U.S. 919,103 S.Ct.
2764 (1983), cast the validity of the
legislative veto into question, EPA has
transmitted a copy of this regulation to
the Secretary of the Senate and the Clerk
of the House of Representatives. If any
action by Congress calls the effective
date of mis regulation into question.
EPA will publish notice of clarification
in the Federal Register.
ADDRESSES: The official record for this
rulemaldng is located in the Superfund
Docket. U.S. Environmental Protection
Agency (OS-245). 401M Street SW.,
room 2427. Washington, DC 20460 (202/
260-3046) and is available for public
inspection from 9 a.m. to 4 p.m.,
Monday through Friday, excluding
holidays. The docket number is 121-
POS.
FOR FURTHER INFORMATION CONTACT:
Ellen Epstein; RCRA Enforcement
Division. Office of Waste Programs
Enforcement (OS-520). Environmental
Protection Agency, 401M Street, SW.,
Washington. DC 20460. Phone (202)
260-4849. or the RCRA Superfund
Hotline (800) 424-9346 (or (703) 920-
9810 in the Washington. DC.
metropolitan'area);:'"* t . _..
8UPPt£MENTARYmFORMATION:
% Table of Contenta " ;
L Authority
IL Introduction
ID. Background
IV. Discussion of Final Rule
A. Applicability
1. CERCLA Wastes Affected
L Laboratory Samples
u. LDR Residues " -
iii. Clarification on Subsequent Transfers
of CERCLA wastes
2. Actions Affected
I. Enforcement Activities
u. Actions under CERCLA Section 120
iiL Federally-permitted releases
iv. Definition of Site
3. RCRA Section 7003 Actions
4. Removals
5. Pre-SARA v. Ppst-SARA Actions
B. Determining Acceptability
1. State Role
2. EPA's Role
3. Disputes between States and EPA
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Federal Register / Vol. 58; No. 182 / Wednesday, September 22, 1993 / Rules and Regulations 49201
4. No Cooperative Agreement Requirement
S, Facility Acceptability Status
C Determining AcceptabilityCompliance
Criteria >>,_., .
1. Inspection Requirements
2. Receiving Unit -"Sfrr -
3. Facility 7 <
4. Relevant Violations
S. Minimum Technology Requirements
(MTRs)
6. Facilities Operating Under a RCRA
Exemption and Non-RCRA Facilities
D. Determining Acceptability-Releases
1. Identifying Releases ' ' "
2. De Minimis Releases "'-":' --itl -: '
3. Releases^ the Air vjs' use ,-31=2333
4. Other Releases-:0 .:-.. a '.rsua *n
E. Notification of Acceptability;
1. Management Options f
Acceptability, _ -
2. Potential Unacceptability,-,
F. Review Procedures ..^ .
1. Agency Response Time ,?.-."
2. Notification of Immediate ""' "'
Unacceptability" "" -'-'"
3. Potentially Responsible Parties-,
G. Due Process Issues '=- '
1. Potential Loss of Business0;'--v
2. Payment of Penalties
3. Review of Determination Decision
4. Review Procedures..-- . ,._ . ^.- ---i
5. Notification of Decisions,, .-.r:. .^B
H. Re-evaluation, of Unacceptability
1. Thresholds/Enforceable Agreement*
2. Corrective Action/Controlled Releases
3. Releases and Regaining Eligibility
4. Regaining Physical Compliance at
Treatment and Storage Facilities
I.Implementation ' '- ''"'>'''
J. Manifest Requirements -----
V. Regulatory-Analysis . - -.-?
A. Regulatory Impact Analysis.
B. Regulatory Flexibility Act ,. ,;
C Paperwork Reduction Act ... ,
VI. Supplementary Document
The purpose of this off-site regulation.
is to avoid having CERCLA wastes from
CERCLA-authorized or -funded
response actions contribute to present or
future environmental problems by .
directing these wastes to management
units determined to be environmentally
sound. Congress and EPA have always
believed that a CERCLA cleanup should
be more than a relocation of
environmental problems, and have , . .
attempted fo ensure the proper,
treatment.and disposal of CERCLA
wastes removeO^ a jCERCLAaUB.
EPA believes th«t th»prpcess setout in
.this' rule fox ensupiirig^aaLCERCLA
wastes ace transferred, only.to properly-
permitted facilities that have no relevant
violations or uncontrolled releases,
assures that the receipt of CERCLA
waste will not pose adverse effects_oa
the environment. . '.. ...
The off-site regulation should help
prevent the aggravation of conditions at
problem sites and reduce the .- ^
government's and the Superfund'*-.
potential JiabUity bv establishing
cxiiflriagpvernina tfte^
receive CERCLA wastes-from CERCLA
authorized or funded response action*,
including RCRA treatment, storage, and
I. Authority = -
Sections 104(c)(3f. iosTand 121(d)(3)
of the Comprehensive Environment
Response. Compensatio
Act of 1980 ("CERQA'OVas'ami
by the Superfund Amendments and
Reauthorization Act of 1986 ("SARA")
(42 U.S.C. 9604(c)(3). 9603.9621(d)(3));
section 311(c)(2) of the Clean Water Act
(33 U.S.C 1321(c)(2)); Executive Order
12580 (52 PR 2923, January 29.1987);
and Executive Order 12777 (56 PR
54757, October 22.1991).
IL Introduction
Today's final rule amends the
National Oil and Hazardous Substance*
Pollution Contingency Plan ("NCP"). 40
CFR part 300, by adding a new .
§ 300.440. The May 1985 off-site policy
(50 PR 45933-45937 (November 5,
1985)). as revised by the Procedures for
Implementing Off-site Response Actions
of November 13,1987 (OSWER
Directive No. 9834.11), (hereinafter
known as the "Off-site Policy"), is
superseded by this rule. "
^
CERCLA^wastes from CERCLA-
authorized,oic.-fundad response actions.
The rule should"also help to ensunUhat
off-site transfer, decisions, are made in an
environmentally sensible manner,
consistent with sound public policy and
business practices.; ... .
The requirements of this rule are
integral components of the "selection of
remedial action" provision in CERCLA
section 121, and their proper
application, will help to ensure that
response actions selected are. protective
of human health and the environment
(consistent with CERCLA section
121(b)(l) and, more generally, with ,-
. section 104(a)(l)).
. . ^Tp4ay's Qnal rule implements the
requirements of. section 12l(d)(3) of;.
CERCLA. which provides that in the,
case, of any CERCLA response, action
involving the off-site transfer of any
hazardous substance, pollutant, or- "
contaminant (CERCLA waste), that
CERCLA waste may only be placed in a
facility that is in compliance with the '
Resource Conservation and Recovery
Act (RCRA) (or other applicable Federal
law) and applicable State requirements.
CERCLA requires that for "land disposal
facilities," there may be no transfer of
CERCLA wastes to a unit with releases,
and any releases at other units must be
controlled.
Although CERCLA section 121(d)(3)
applies compliance criteria to all ~
facilities, it applies "release" criteria
only to RCRA subtitle C land disposal
facilities. EPA believes, as a matter of
policy, that some release criteria should
also be applied to all facilities that
RCRA subtitle C facilities (such as
subtitle D facilities-or facilities
permitted to receive hazardous
substance wastes, .under the Toxic
Substances Control Act (TSCA)) i. The
Agency believes that such a step will
further the protection of human health
and the environment, and the-.
development.of a sound and consistent
public policy &jtvouhi also serve to
rurtheMhe goalsjraflected ia-CERCLA
section 121(d)(3}. ..v=---*
Similarly, although SARA section
121(b) provide*thaLCERCLA section
121 (and thus section 121(d)(3)) applies
to actions arising from post-SARA
decision documents only.*'EPA believes
that it is logical and appropriate to
apply this rule to CERJGLA wastes
resulting from two other categories of
similar cleanup actions: those
authorizediunde; CERCLA before the
enactment of SARA,,and those Ui.. -
performed under, the National^ v
Contingenc^Plan-pumieatto section
311>otth«nQlean Water Acttfiw non-
petroleum products). Accordingly, this
rule applies to a number of situations in
addition to .those expressly set out in
section 121(dH3) of CERCLA..
Today's final rule estabUaJties the
criteria and,]
whether facilities are acceptable for the
off-sit& receipt of CERCLA .waste from
CERCLA-authorized or -funded
response actions and outlines the
CERCLA wastes and actions affected by
the. criteria. It establishes compliance
criteria andrelease criteria, and;»«v
establishes a process, far determining
whether facilities-are acceptable based
on those criteriasTbaitul« Jaaves the
final decision, of ojfi-aitecaeeepiability ~
with EPA, after,»«pvidingdtk»>;' -
opportunity for, andbniQDunguigt
substantial consulutioa,with the State
in which the off-site facility, is located.
> A TSCA permitted fadli^anxptability to
recaiva CERCLA wastas is alto baiad on compliance
and releata findings. As with RCRA belli ty, tha
compUanca pn
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49202 Federal Register / Vol. 59, No. 182 / Wednesday, September 22, 1993 / Rules and Regulations
The final rule outlines the State's role in
the off-site acceptability determination
and ensures that States will remain
active participants in the -^ .
decisionsmaking process. The rule also
establishes procedures for notification
of unacceptabiiity, appeals of
unacceptabiiity determinations, and re-
evaluation of unacceptabiiity
determinations.
Under the rule, the policy of applying
off-site requirements to actions taken
under section 7003 of the Solid Waste
Disposal Act, as amended by RCRA, is
discontinued.
HI. Background
From the beginning of the CERCLA
program. Congress has mandated that
CERCLA wastes be treated, stored, and
disposed of in an environmentally
sound manner. Section 104(c)(3) of
CERCLA, as originally enacted in 1980,
required States to ensure the availability
of a hazardous waste disposal facility in
compliance with RCRA subtitle C for
receipt of hazardous waste from Fund-
financed remedial actions.
In January 1983, EPA issued Guidance
on the Requirements for Selecting an
Off-Site Option in a Superfund
Response Action. This first guidance on
the off-site transfer of CERCLA wastes
required a facility inspection and that
all major violations at the facility be
corrected in order for the facility to
receive CERCLA wastes from remedial '
or removal actions. EPA's May 1985
"Procedures for Planning and
Implementing Off-Site Response
Actions" (50 FR 45933) detailed the
criteria for evaluating the acceptability
of facilities to receive CERCLA wastes. ''
The NCP, revised in November 1985 ~c
(40 CFR part 300), incorporated-'" -.;'-.
requirements for off-site receipt of ' ' "
CERCLA waste. The NCP, at 40 CFR
300.68(a)(3), required that facilities have
permits, or other appropriate-
authorization to operate, in order to be
acceptable for receiving off-site CERCLA
waste.
SARA reaffirmed the rationale
embodied in CERCLA section 104(c)(3) =
and the May 1985 Off-site Policy.
Section 121(dX3) of CERCLA. as added
by SARA, explicitly provides that in the
case of any CERCLA "removal or
remedial action involving the transfer of
any hazardous substance or pollutant or
contaminant off-site," such transfer
shall only be to a facility operating in
compliance with the Solid Waste
Disposal Act (as amended by RCRA and.
the Hazardous and Solid Waste
Amendments (HSWA)), or, where
applicable, the Toxic Substances
Control Act (TSCA). or other applicable
FederaUaw, and all applicable State
requirements. The section also requires
that receiving units at land disposal
facilities have no releases of hazardous
wastes or hazardous constituents and
that any releases from other units at a .
land disposal facility be controlled by a
RCRA corrective action program.
Finally, EPA issued revised
procedures for implementing off-site
response actions on November 13.1987,
as a memorandum from J. Winston
Porter, Assistant Administrator for Solid
Waste and Emergency Response, to the
EPA Regional Administrators (OSWER
Directive No. 9834.11) (the "Off-site
Policy"). These procedures, which were
effective immediately, provided
guidance on complying with the SARA
requirements, updated the 1985 Off-site.
Policy, and provided detailed
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Federal Register /Vol. 58, No. 182 / Wednesday. September 22. 1993 / Rules and Regulations 49203
of this rule for reasons discussed above
and in the preamble to. the proposed
rule. However, today's'rule is predicated
on the principle that CERCLA actions
should not contribute) to existing
environmental problems, and that
materials generated from CERCLA
actions should be transferred only to
environmentally sound facilities. Thus,
EPA does not believe it is appropriate
for labs to routinely send CERCLA waste
samples back to CERCLA sites.
Accordingly, EPA has identified two
options for the proper disposal of lab-
tested samples of CERCLA wastes. The
Agency believes that these options.
included in the final rule, respond to
commenters' concerns that unnecessary
obstacles not be placed in the way of lab
testing, while ensuring that CERCLA
wastes are handled in an -
environmentally-sound manner.
First labs may send the tested
samples and their residues to an
appropriate facility (i.e., they may treat
it as material, not subject to this rule and
transfer it to any facility that may legally
accept such wastes); the Agency expects
that the vast majority of the materials
sent to labs from CERCLA sites will be
handled under this first option. Second, -
the lab may return the CERCLA waste
sample to the site from which the
sample came if the Remedial Project
Manager (RPM) or On-Scene
Coordinator (OSC) agrees to assume
responsibility for the proper /
management of the sample"arid gives
permission for the sample to be returned
to the site.' -
One commenter requested that a .-...
similar exemption be applied to
CERCLA wastes sent off-site for
treatability studies. ThW commenter ,., ..
reasoned that information on treatability .
is valuable, resulting in a high ..
confidence level that these CERCLA ;,;«
wastes will be property Bandied and .....
managed, and that treatability studies -.
promote treatment rather than disposal
of CERCLA wastes; treatment is a
preferred waste management option :..
under CERCLA". Finally, the RCRA .
program has exempted treatability study
wastes from most hazardous waste
management requirements.
EPA agrees with the commenter that ,-.'
an exemption from this rule for
treatability CERCLA wastes is
appropriate, end that it is consistent
with the approach taken in the final rule
for Identification and Listing Hazardous
Waste Treatability Studies Sample
Exemption (53 FR 27290, July 19,1988).
Thus, those hazardous wastes at a
CERCLA site that are being sent off-site
for treatability studies and that meet the
requirements for an exemption from
RCRA under 40 CFR 261.4(e), are also
exempt from today's rule. CERCLA
wastes, residues and other materials that
are not RCRA hazardous wastes .
resulting from treatability studies are
subject to the same disposal options as
materials from lab characterization
samples. Again, EPA believes that this
approach will help to facilitate prompt
site cleanups while ensuring that
CERCLA wastes are managed in an
environmentally-sound manner. Non-
RCRA hazardous wastes that are being
sent off-site for treatability studies and
that are below the quantity thresholds - -
established in the Treatability Studies.....
Sample Exemption Rule are similarly
exempt from the requirements of the
Off-site Rule.
ii. LDR residues. One commenter
objected to applying the requirements of
the rule to transfers from a CERCLA site
of CERCLA waste residues meeting
treatment standards established by the
land disposal restrictions (LDRs),
believing that these residues no longer
prxsorf A hagnrrii RPA mnintnina jhnf .
RCRA hazardous wastes or waste ^..
residues meeting LDR treatment
standards are still considered hazardous
under RGRAi unless they no longer
exhibit a characteristic of hazardous
waste, or if appropriate, are deUsted.' '"
Moreover, even if a CERCLA waste
meetingLDR treatment standards is ...
found not to be a RCRA hazardous
waste, it may still be CERCLA waste. -
Under today's rule, CERCLA waste thai
is not* RCRA hazardous waste may be
sent to other than a RCRA subtitle C
facility for disposal (if that facility meets
the requirements of the rule), e.g., a
RGRA subtitle D landfill. EPA believes
that the rule as it stands should not .-
prove burdensome and that it should be .-
relatively easy to find capacity for such..*
GERGLA wastes. Therefore, the final
rule does not exempt CERCLA waste ......
residues meeting LDR treatment
standards when they are transferred
from the CERCLA site.
., tit. Clarification, on Subsequent
transfers of CERCLA Wastes. The prior
comment raises the related issue of how
the Off-site Rule applies to subsequent
transfers of CERCLA waste. When a
CERCLA waste is to be transferred off-
site as part of a CERCLA funded or
authorized cleanup, the contract
implementing the decision document
should identify the final disposition
point for the CERCLA waste (i.e. the
final treatment or disposal facility), and
any intermediate facilities that will store
or pre-treat the wastes (e.g., waste
brokers, blenders). AH such facilities-
would be required to be acceptable
under the final rule.
Once the CERCLA waste is finally
disposed of off-site, or treated off-site tor
BOAT levels or in the absence of BOAT.
treated to substantially reduce its
mobility, tpxicity. or persistence, it is no
longer considered a CERCLA waste and
subsequent transfers of the waste would
not be regulated under this rule.
However, if residues derived from the
treatment of the CERCLA waste are
RCRA hazardous wastes, they must be
managed as such under RCRA.
2. Actions Affected
i. Enforcement Activities. EPA would.
like to clarify and respond to several
. commenters' questions concerning
which enforcement activities are
affected by today's rule. The Off-site
Rule applies only to those actions being
taken under a CERCLA authority or
using CERCLA funds. These include:
actions taken under section 104.
CERCLA consent agreements, decrees
(including special covenants under
section 122(f)(2)(A)), Records of
Decisions (RODs), section 106 orders.
and actions taken under pre-
authorizatfon CERCLA decision
documents. State response actions
conducted under a CERCLA cooperative
agreement,' are also subject to the off-site
requirements.--' ' --"--lUr-
Actions which would no? trigger the.
off-sitetequirements include-
notification ofaspllf of a reportable
quantity under CERCLA section 103,
cleaning up a site using only State
'authority and State funds (whether or
not the site is listed on the Superfund
National Priorities List (NPL)), and
conducting a voluntary cleanup
involving government oversight (e.g., by
the U.S. Coast Guard), unless under
CERCLA or a CERCLA pfdif or decree,:
In one commenter's example, if a PRP
has taken a voluntary response action
(not under a CERCLA order and without
'CERCLA fundsjrthat action is not
subject to th'e Off-site Rule; thus, in a
cost recovery action under CERCLA
section 107(a)(4)(B), the PRP may
demonstrate action "consistent with the
NCP" without having to show
compliance with the Off-site Rule
requirements.
ii. Actions under CERCLA section 120.
The proposed rule states that the
requirements of this rule do apply to all
Federal facility actions under CERCLA,
including those taken by EPA and/or
another Federal agency under CERCLA
sections 104,106, and 120 (53 FR
48220). One commenter objected to
applying this rule to Federal facilities.
arguing that this was not equitable
because the rule covers private party
actions at NPL sites only. The
commenter asked that the rule .only be
applied to EPA-funded or Federal-.
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49204Federal Register / Vol. 58, No. 182 / Wednesday. September 22. 1993 / Rules and Regulations
agency-lead CERCLA actions taken at
NFL sites.
In response, EPA does lake CERCLA
actions at private facilities {hat are not
on the NPL (e.g., enforcemeriTactions
and removals) and these actions are
subject to the Off-site Rule when they
are conducted under CERCLA authority
or using CERCLA money. Consistent
with CERCLA 120(a), EPA does not
believe it is appropriate to treat CERCLA
actions at non-NPL Federal facilities
differently. Thus, if a Federal agency
plans to transfer CERCLA wastes off-site
from a Federal facility under a CERCLA
authority or with CERCLA funds (as
compared to being transferred under
another statutory authority), the Federal .
agency may transfer CERCLA wastes
only to facilities found to be acceptable:
under this rule. Federal facilities may
transfer CERCLA wastes off the CERCLA '
site to treatment, storage or disposal
units on the same Federal property, but
only if the other units (and the larger _
Federal facility or installation) meet the
requirements of this rule.
Hi. Federally-permitted releases. In
the proposed rule, the Agency stated
that Federally-permitted releases should
not be routinely included within the*;
concept of "release" for the purposes'of'
section 121(d)(3). For "Federally-
§ermitted releases," as defined in NCP,
300.5 (1990 ed.) and CERCLA section *
101(10), the government has specifically
identified the types and levels of
hazardous substances that may safely. '.'
and appropriately be released (e.g., a
NPDES water discharge permit), and it
would not make sense to find a facility
unacceptable based on the existence of
such an authorized and planned release.
Of course, unauthorized releases that .
are being studied, cleaned up, or .
controlled under a corrective action ''' '"_'
portion of a permit, would noit be., <'1,",* ^
considered to be "Federally permitted" :
for the purposes of this rule.
The Agency further stated in the
proposed rule that, although Federally
permitted releases would not routinely
be considered to be a "release" for the.
purpose of acceptability under this rule,
if the permitted release comes to
constitute a threat to human health and
the environment, the release can and
should be considered under this rule (S3
FR 48224). -
One commenter argued that EPA *.
should not limit the exemption for
Federally-permitted releases. If a permit
is not sufficiently protective it should be
altered, rather than determining that the
facility is unacceptable under the Off-
site Rule. If the Agency were to decide-
not to fully exempt Federally-permitted
releases from this rule, the commenter
asked EPA to narrow the limitation from.
"threat" to "significant threat." and to
clarify circumstances under which a
release is considered a threat.
;. EPA agrees that permits that are not
sufficiently protective should be
upgraded. However, upgrading of
permits may not address past
contamination and the upgrading may
take time to accomplish. Thus, until
such permits are upgraded, or until the
threat to human health and the
environment is otherwise addressed
(e.g., through a corrective action order),
EPA will not send CERCLA wastes to
such facilities and thereby contribute to
an unsound environmental situation. ;
Similarly, EPA believes it is appropriate
to cease sending CERCLA wastes to
facilities with Federally-permitted:
releases if a threat to human health or'
the environment is posed by the release;
This approach is consistent with '.' J
.Agency policy and the goals of CERCLA
section 121(d)(3). It also maintain*
consistency with practices under the '
NCP in its handling of Federally-
permitted releases. For example, dieT "^
Agency lists certain sites on the NPL
where an "observed release" has been"
documented, even if that release was
Federally permitted and was within
regulatory limits (47 FR 31188, July 18;
1982; 48 FR 40665, September 8,1983).
j'v. Definition of site. One commenter x
requested a definition of the term "site"
(in order to understand what is "off-
site"), and asked that the definition
include property in the immediate ''""**
vicinity of the cleanup. '?"-<* **-...
In the recent revisions to the NCP, 55
FR 8840 (March 8,1990), EPA defined ~
"on-site" to include all suitable areas in...
very close proximity to the v-'~ ' , \ T
contamination necessary for "'.''.;""v>4-
implementation of the response 'action,""'*'
;40FR300.40p(e)(i) (199JO); this"' *'
'additional spam would big available for,...
treatment systems that require"' ''u.'J..lr.t^.
considerable area for construction, ami y
for staging areas. Areas not, covered by u
this definition come, by extension,
within the definition of "off-site."
EPA believes it is essential for the
sound operation of the CERCLA
program to define "on-site" and "off-
site" in a concerted manner. Were EPA
not to apply the general definition of
"on-site" to this rule, an anomalous
situation would result in which .
CERCLA wastes transferred to the "on-
site," proximate area used for
implementation, would constitute an
off-site transfer. Moreover, such
transfers might be disallowed in many -
cases where the non-receiving unit (the
"waste portion" of the site) had releases
that were not yet controlled for .
purposes of the Off-site Rule. .
3. RCRA Section 7003 Actions
EPA received three comments on the
proposal not to extend this rule to cover
cleanup actions carried out under RCRA
section 7003 (53 FR 48221). All three
commenters agreed with EPA that the
rule should not apply to off-site disposal
associated with RCRA section 7003
actions. Therefore, the Agency will not
require RCRA section 7003 actions to
comply with the off-site requirements as
part of this CERCLA rulemaking.
4. Removals
Three commenters supported the
proposed rule's exemption from the
regulation for emergency removal
actions in situations posing a significant
threat (53 FR 48220). One of these
commenters asked EPA to extend the
exemption to remedial actions taken in
situations of immediate and significant
threat Two commenters asked that the
language he-modified to confirmthat ~
private parties, as well'as government
entities, are eligible for the exemption:
EPA believes that an exemption for
emergency removals is appropriate, and
should also apply to emergencies. - ~ ~'
occurring during remedial actions (e.g.,
occurrence or substantial threat' of '"'-''.
occurrence of fire or explosion); the ." '
final rule reflects that change. However,
die Agency does not believe'it is
appropriate to allow private parties to
use the emergency exemption without
obtaining approval from a CERCLA On-
Scene Coordinator (OSC). This prior
'approval requirement will avoid the
possibility of a responsible party
abusing the emergency exemption in
order to use unacceptable off-site; ..'",: .
facilities which may be less"". 7'" '._'l .
environmentally sound. Note that the
Off-site Rule only applies to private
parties engaged in response actions that
are funded or ordered under CERCLA.
P-Another commenter stated that it was
not clear what criteria the OSC should. -
use to determine that a facility in
.noncompliance with the rule can be
used for off-site disposal
EPA believes that the OSC should
weigh, to the extent practicable:
exigencies of the situation; the
availability of alternative receiving.
facilities; and the reasons for the
primary facility's unacceptability. their
relation to public health threats, and the
likelihood of a return to compliance. In
some situations (e.g., fire, explosion), it
may be necessary to remove materials
off-site before an off-site facility's .,
acceptability may even be reviewed.
5. Pre-SARAv. Post-SARA Actions :
In the proposed rule. EPA explained
the evolution of a system under which'.
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Federal Register / Vol. 58, No. 182 / Wednesday, September 22, 1991 / Rules and Regulations 49205
different off-site-requirementa were
applied to CERCLA wasted, depending
upon whether the CERCLA derision
document was signo$ pr»- or post-SARA
(S3 FR 48220). Onefommenter argued
for eliminating the confusing '
distinctions between pro- and post-
SARA CERCLA wastes. Although the
statute applies only to post-SARA
decision documents, the commenter
saw no reason why these requirements
could not be extended to CERCLA
wastes from pre-SARA decision
documents, particularly given the
ambiguity of the May 1985 off-site-
policy. Several other commenters
supported simplifying the Rule .": '
generally.
EPA agrees that eliminating the
different criteria for CERCLA wastes
from pro- and post-SARA decision
documents would simplify the..
understanding and implementation of
the rule. The Agency's experience with
the revised Off-site Policy (since 1987)
has been that the dual system is
confusing, and potentially subject to
inconsistent interpretation. The original
reason for having different requirements
for CERCLA wastes from pre- vs. post-'.
SARA decision documents was to avoid
disrupting contracts and actions already
in place at the time SARA (and section'
121(d)(3)) were enacted. However, in
response to the commenter's suggestion,
EPA has surveyed the existing pre-
SARA ROD contracts and the '-''
acceptability status of facilities
currently receiving CERCLA wastes
from pre-SARA actions. The-^
information gathered indicates that few
if any CERCLA waste transfers resulting
from pre-SARA decision document* "''.!:.
would be disrupted by application of
the newer criteria.4 tedeea.'most'
facilities receiving CERCLA waste
already meet both the pre-and post- '"'
SARA criteria, in order to be acceptable
to receive all CERCLA waste. The .
elimination of separate standards for
CERCLA wastes from pre-SARA '-'
decision documents, would be neither
burdensome nor disruptive. Therefore.
in the final rule, CERCLA wastes from
pre-SARA actions and CERCLA waste*
from post-SARA actions are treated the-
same. x -. -
B. Determining Acceptability- -'-.- -
In its November 29,1988, Federal :
Register notice, EPA proposed, and- ;
requested comment on, allowing State*
that were authorized to carry out the
corrective action portions ofRCRA. to .
make off-site acceptability '""
determinations-for RCRA subtitle G
facilities within their respective
jurisdictions. The Agency noted that the
"States often have the most direct
responsibility over the potential
receiving facilities * *, and thus may
be in the best position to make the
findings required under the Off-site
Rule." (53 FR 48221) However, at the
same time, EPA noted that retaining the
off-site decision in the EPA Regional
Offices would offer the advantages of
"more easily assuring consistent
application of the rule, and avoiding
conflicts between the Region and the:
State regardingraic^ wbility of a
facility." (53 FR 48222) Thus, the
Agency specifically "requested comment
on whether qualifying-States should
make off-site acceptability/.
determinations.' or whether EPA Regions
should exercise that decision-making
authority. """."
EPA received eight spedfitt comments
on the State decision-making issue. Six
of the comments objected to allowing
States to make the off-site- '
determinations, based on the need for
national consistency fend concerns that
some States might use the off-site
authority to prohibitihe receipt of out-
of-state CERCLA wastes. Two of these
six commenten added that States ;.
should be allowed to make acceptability
determinations only if they agree to .
follow the notice and re-qualification
procedures that apply toEPAi A seventh
commenter (a State) criticized the
proposed approach on the grounds that
it would effectively deny any input on
the acceptability determination rrom-
most States, since most States are not
authorized to cany out corrective action
under RGRA; the commenter
recommended that States'be given at- -:-
least 3O days to comment on a proposed
decision before the facility, ia notified of ,
the final acceptability status; A second V
commenting State suggested that the
egencyrinspecting the facility for RCRA
compliance should make the off-site-
acceptability determination; however, H
added that "it appears obvious that it
should be a joint determination."
- The Agency also received four
comments on a related pointthe.
difficulty of receiving ready access to a.
list of acceptable facilities.' In effect. .,..:
these comments indicate that it has been
difficult for the public to quickly and
accurately determine what facilities are
acceptable under even the present Off- "
site Policy, under which one need check
with only ten regional off-site contacts.
EPA has reviewed this comment in light
of the issue of whether States should
make final off-site determinations, and .
has concluded that the problem
identified by the commenters would -
grow dramatically if the public were '
required to verify off-site acceptability
with up to fifty State contacts. Further,
allowing the State to make off-site "
acceptability determinations as
proposed would riot eliminate the need
for the EPA Regional contacts; a State- '
could not make determinations for other
Federal programs; such as the Toxic -
Substances Control Act (TSCA). Thus.
the public would be required to check :
with State contacts and EPA Regional
contacts in order to determine which .'""
facilities are acceptable to receive
certain types of CERCLA "wastes. The -
es
system of having- ten EPA regional contecti hoold
be replaced by e more eetily Implemented qmtom..
under which one coniolidated lictwonU.be made
available to the public. However, the Agency
recognize* ***** U would be Unpotdble to publiih
a lift of acceptable CidlitJei nationwide (or«
. collected to Included la the docket of thl* rule. .-.
regionally), n the off-fit* (tstn* of tedUtiOT U
outdated before It wa» dMrfbated; . -- - W: - :
prospect of requiring interested parti
to check acceptability status with all .
. fifty states (for portions of RCRA) and -
all ten EPA Regions (for other portions- ':
of RCRA; and TSCA. etc.) would place
an unreasonable burden on the people
who need to locate acceptable capacity.'*
Based on a careful review of all the-
comments received on the proposed :
rule, as well as a review of the Agency's
experience to date in implementing the
Off-site Policy* EPA still believes that it
is essential for :tha. off-site acceptability
process to take into account the
important role, of the States in making
compliance finding* (and, in some
States, release findings) under RCRA;
however, the comments received and
EPA's experience also demonstrate a :
strong nee.d foe national consistency,
and for facilitating timely public access
.to acceptable capacity. Thus, while the
basic approach and structure of the rule
remains unaltered, the Agency is
making several important changes -in the
language of the rule, in order to b%elp .
mate States active participants in off-
site determinations, while at the same
time preserving final off-site .
determination authority within EPA.
1. State Role ^^ .
The off-site:acceptability-- - -
determination for a facility is based, in
large part, on a compliance finding and
a release finding. Authorized States may
make the <«
-------
492OeEed8rml Register / Vol: 3ff. Nor 182 / Wednesday. September 22, 199S7 Ruler and Regulations
Agency concludes that the violations an
relevant it will issue.an initial
determination of unacceptability.
meanmg that the facility wittier.
unacceptable to receive CERCLA waste*
in 60 days unless EPA find* that the
facility is operating in physical
compliance with applicable law at that
time. - .
If a State is authorized to carry out the
corrective action authorities of RCRA
sections 3004 (u) and (v), it may also
make initial findings regarding releases
at the facility. Again. EPA will evaluate
such findings and, if it flndf the releases
are relevant under the rule, will issue an
initial determination that the facility- -
will be unacceptable in 60 days unless -
EPA finds that there are no uncontrolled <
releases at the facility at that time.
In order to further increase the State*:'
role throughout the
will also take the fo
, the Agency
steps:- -----
of -.-. ,.
information between State* and EPA: .
Regional offices concerning violations
and releases at facilities:
Afford States the opportunity to. .
participate in all meetings-with EPA and
the facility owner/operator regarding the :
facility's acceptability; -- --..-:;- :
Provide States with copies of att. - c ;
initial and final unacceptability .
determinations as soon as they are- ,.
issued:
Provide States with the opportunity -
to call for additional meetings with- . ..
Regional officials to discuss the off-site
acceptability of a facility, and whether -
a facility has returned, or can return, tottr
compliance within the 60-day review,'
period; and - - --?;,,,
Provide in the rule that if the Stat* v
disagrees with the EPA Region'* , ^ .-:;-. r
determination (after the informal-. *.«; ,-53
conference), it may obtain review. of thai.
decision by the Regional Administrator.
2.EPA'sRole '"'" ^^_W1
Where a State does not have authority,,
to carry out portions of the RCRA ^ .
program, EPA will make the initial > -=- . : . .".
compliance and/or release findings. In ~
addition, EPA will make the compliance
and release finding with respect to.
applicable regulations under other ..-.'.-
Federal Statutes (e.g., TSCA). EPA may.
also make findings at facilities where.
the State has programmatic authority, as
a supplement to State oversight
(However, in such cases, the Agency
expects most finding* to be made by the
States.) Further, as noted above. EPA
will evaluate all initial findings of . '.' "'.
violations or releases to determine- ' -
whether they are "relevant" under . . .'
today's rule. , ..
Although State* will make many of
the initialRCRA finding* for off-site
unacceptabtii^r determinations. EPA
will retain the ultimate decision-making
authority for all off-site determinations.
including those at RCRA facilities. EPA
Regional Offices, having collected
information on the compliance and
release status of a RCRA facility, and
having consulted with the State in
which the facility is located, will be
responsible for determining whether a.
facility is operating in compliance with.
applicable law (and thus has no relevant
violations) at the end of the 60-day
period, and whether there are any
uncontrolled relevant releases at the end
of the 60-day period; if EPA finds that
the relevant violations or releases .-
alleged in the initial notice are ^^^ >;
supported by the facts and are -'? -'
continuing, the unacceptability; - "-
determination will take effect.**"
-provided below. The Regions will also o
, be responsible fbrkeeping-np-to*datecrri
record* of mos» RCRA facilities that am-
acceptable, and those that are not A*..- -.?
discussed above, these step* will help to
ensure national consistency in off-site-
decisions, »»<* will fitr^Hhitn timely^ " ; »
public access to offfctte acceptability p<
~
for EPA to retain the final authority for
making off-site acceptability> - ~ or> ?»
determinations; Because GERGLA-^..
cleanup* are generally ordered ot-r..-.:. .-^
funded by EPA* ths-off-site* r^~ -:...
.determination i*. in effect. EPA'*^^ .^ *j,..x
business decision as to where CERCLA. r: r
waste* under therAgenoy-'*controlfr.^.
should be sent -: .**,,.-. i..sr"_,;..: _.,,.,
.-.,. It U also important that EPA issue the,
final, consolidated acceptability.
determinations in order to.retaifi
Regional official* official* from the .
State in which-the off-site facility is
located, and representative* of the .=
facility ownei/operatov will then have
the opportunity to meet during the 60-
day review period to discuss: (1) The
basis for the finding of a violation or
release. (2) the relevance of the
violation/release under the Off-site
Rule, and (3) what step* are necessary
for the facility to return to compliance
or control releases within the 60-day
review period (or whether sufficient
steps have already been taken). After the
informal conference with the. ownei/
operator, at which the State may be
present EPA will notify the State of it*
program level determination; the ""'-':
Agency will decide whether the initial
finding of a relevant violation or release
was supported by the facts, and whether
the violation orroleasets continuing (or
has been controlledKIf tbb^tate (or the
owner/operator) disagrees with the. '
dedsionbytheEPARegioualstaff.it
may obtain a review of u»'decision by!
the EPA Regional Administrator.
' EPA expects *"* in most cases* there
will be no dispute between it and ther
State over these issues. However, the- . .-
ipropriatear.i Agency recognizes that there may b*F :
instance* where disagreements could;.
jCTOgranunatifrj^ponsibUi
cleanup actions, on'
arise with the State, or where the
Agency must act independently.
Following are three major examples of
situations where a disagreement might- ;
.occur between 'State and EPA officials.
.., First, there may be instances where "
the State is unabfo or unwilling to meet *
.with EPA and the affected facility
within the 60-day period (e.g., where
the case is to litigation and'toe-State-;'-'~~
chooses not tameeOeparately with one
, potentially re8pbnsibteparQ*;Staularly.
. . . .
fl&.In.orde^,- : .EPA must acftn certain situations
,to plan CERCtA cleanup actions, on' :. ^without full participation from the
reliable schedule*, and pffxaefcw^lC ^ ^ , State, such Mjfa|riifcame|gencx. _...'
them quickly. EPA needs to resolve i off- rv cleanup actions. In such cases, in order
site issues relatively qaickly.'and.make fto fulfill its mandates to accomplish
alternative contracts and plans as n ., planned CERCLA cleanups and to
appropriate. As the proposed rule '
Rvnlainad. thin wa* a maior reafinr
. explained, tnis was a major reason for. ^
the establishment of a 6fr-day period In..
which to discuss acceptability with the
relevant parties. EPA is also sensitive tor.
the need to afford owner/operators a, - '
reasonable opportunity to contest the.. ,
violation/release finding, or to return to
compliance, within this 60-day review
period." , ' ._. ..._._
3. Disputes Between States and EPA
"'_ EPA intends to issue initial
unacceptability determinations in cases
where States have made initial finding*
of violation* or releases that EPA find*
are relevant under the final rule: thus.
States may play a major role in initiating
the off-site'review process. EPA
'administer th«f Off-site Rule; the EPA
Region may need to meet with the
owner/operator independently to :
resolve the compliance or release" " '
problems expeditiously.
Second, a State may disagree with
certain findings committed to the
discretion of the Agency under the Off-
site Rule, such as the finding that a.
violation or release is (or is not)
"relevant" under the rule, or that a .
facility has (or has not) taken adequate
step*, to resolve a violation or control a
release. Such findings are integral parts
of the off-site determination, and must
be consistently applied to facilities
regulated under RCRA. TSCA, or other
applicable laws. The Agency believes . :
that lath* interest of national . '
-------
Federal Register' / Vol. 58", No. 182 /Wednesday; September 22, 1993 A Rules and Regulaflons 49207
authority in these areas- However, as -
with aU Off-site Ruteissuesy the States
will be invited to discuss these issues
with EPA, and wilTBe afforded an
opportunity to obtain review of such '
decisions with the Regional
Administrator.
Third, there may be isolated cases
where EPA and the State disagree on the
initial finding of violation or release.
(This could generally be expected to
arise during the review period, as EPA
plans to initiatei the off-site review
process where the State makes a finding
that EPA determines is relevant under
the rule.) In such cases, EPA will
consult with the State, and the State
may request additional meetings with
the Agency .-However, in order to fulfill -
its obligations under the statute, EPA
must have the ability to make an '-
independent assessment of the facility's^
status atthe end of the SOrday-periodto
determine if. the facility is currently
operating in compliance and/or- has any
uncontrolled relevant releases, for the
limited purposed the Off-site Rule.
These judgment do not prevent the
State from pursuing an enforcement
action for past violations, oreverft
arguing that violations are continuing.
It is important to note that the
question of whether or not a unit is
operating in compliance, or has .
returned to physical compliance* is an
issue separate and distinct from the
question of whether an enforcement
action for past violations is appropriate,
The statute clearly focuses the
acceptability determination oa present
compliance: CERCLA wastes ^shall only
be transferred to a facility operating in
physical compliance* with-"-RCRA or <;
other applicable law (CERCLA- section" -
121(d)(3)). Thus, where a fedtttyha* :;
returned to compliance and. where ; _
appropriate, changed its operations to .
prevent recurrence, the facility"!* ..- /.
operating" in compliance and should
not be unacceptable under the Off-site
Rule simply because, a complaint for
past violations is still pending.* .
4. No Cooperative Agreement - . .
Requirement ," -
Under the proposed rule, EPA had
suggested allowing Stales that were-
authorized to carry out RCRA corrective
* Of couiw. In sonw CUM. th* violation fvtn** -
bo twii^ffnff MIIJ may b§ antMd tO tw ft *Vntitirnifnj
violation." EPA ha* already addnand thU CM* by
hy MMlglng lK« giolartnn, (nrhiiihig p-^.lM~ «mt
toy «nforcam«u action* brought by BPA. SM
prapOMd rail tt S3 FR 48220. Now«nb« 28,108S:
tat alto diacuiikm below, at nctiao IV.C4, and - -
IVAC ' -' :---. .-. ' - .-
action to make the off-site ' -
determinations if they were found to be
capable, under a CERCLA Core
Cooperative agreement, of carrying out
certain functions. Because the Agency
has decided to retain the authority to
make the final determination, and use
State findings as a basis for the initial
determinations, there is no longer a
need for States to enter into such
agreements for the purpose of the Off-
site Rule. . ^. . ^
5. Facility Acceptability Status-
. Section 3(&$&W(i) of the proposed
rule (53 FR.48232) stated that,' JaJ.
facility is acceptable until the' - IT
responsible Agency notifies the facility
otherwise"; the scone of this section
needs to.be clarified. For faculties that
have already been notified that they are
acceptable under the rule (or the
preceding policy), the facility would
,,remain acceptable until EPA determines
otherwise according to the provisions of
final rule § 300.440{d). This allows both;
receiving facilities and CERCLA.site .
managers adequate time to respond to . ;
new circumstances. By contrast, the
language quoted above was not meant to
apply to faculties for which EPA has '
-never made a determination of a *
acceptability under this rule (or the
preceding policy), and at which
CERCLA wastes are not likely to be in-
transit; for such facilities, EPA believes
that affirmative determinations of
"compliance" and "control of releases"
are necessary before a facility, may be
deemed acceptable for the receipt of
CERCLA wastes, consistent with the
languagwof CERCLA§ i21(dX3).' Final
: rule § 300.440W(4) has been revised tot
clarify this.point, ^r-. . -..*. ' .
* C: Determining Acceptability^t £e . _ V
Compliance Criteria ' --'-'--
.. .-
regulatory agency to conduct
inspections at the required frequency.
One of these commenten objected to .-
being penalized for EPA or State
tardiness, and believed that the rule
suggested that EPA could not conduct
an inspection during the 60-day period
following a Notice of Unacceptability.
EPA continues to believe that periodic
inspections to update information on
facilities receiving CERCLA wastes are
important to the effective
implementation of this rule, and the- v
Agency will .address the recommended: -
frequency ofinspectioris uxguidance.:
The Agency, notes that inspections are .
already carried out under a number of '
regulatory programs, such as RCRA. :
EPA agrees that the absence of an
inspection six months prior to the
receipt of CERCLA waste (or the absence
of a CMEor OftM mspection for RCRA
land disposal facilities within one year
prior to the receipt of CERCLA wastes).:./
should not in itself be grounds for :
unacceptability, unless the facility ",
rafusedto allow an inspection to o» ''...
, perfonned.. The.requjrementfor .
updating ms^ertians, within a defined
from filial rule § 3CJ0.440(c). (Of courser
as- discussed above, final rule . ....
:
;
requirement for an affirmative
determination of acceptability when a :
facility first seeks to receive CERCLA .'
wastes under this rule, and this may
involve a compliance and release . ' '
inspection.) In response to the last
comment EPA would like to clarify that
the language in the proposal was not .
meant to suggest that EPA could not, if .
appropriate, conduct an inspection. .
during th^,6Q-day review [period.
1: mspectionRequirements--V . -
' Section 300.440(c)(l) of the proposed"
rule provided that a facility "must have:
received an appropriate facility
compliance inspection within six '
months prior to receiving CERCLA
waste" (53 FR 48232). Three..".'''
cpmmenters expressed concern that a.
receiving facility, which would .
otherwise be in compliance, could be;
penalized because of the failure of the
-2. Receiving Unit
r" .Several commehteW supported the . .
.definition of "'receiyihguiut" as that
"unit which directly received the waste
in question (5 JFR 48222}. This .
definition remains the same in the final
'"" ""
» Althonah BPA will meet with th* owned!
optntan of inch fadllUei during DM eoxtay period
after relevant nlau* or violation It brand, th*
Agency doe* not belie** Hut it would tw
appropriate to accord a 00-day period of .
onptabUlty to web bdllttee. whew the availaU*'
infcnnanonlndleatwnon-coinpliancaor
uncontroUed retauue. and no dUrnption to on-
going CERCLAcleauap*wouldDtoccasiOMdby
tht finding. Fbwl mto.MCtion 30a440(dH3) bat - :
been ravlMd to dully thl» point ''-
3, Facility .^., ; . ,'-.
- , K:.VTJ».H, d':'--a : .-d- ;'/ .
Three' commenter* supported the :'
proposed definition bf/'fadlity" (53 FR
48222); however, one commenter .
questioned the concept of facility-wide
violations that could render the entire
facility unacceptable, rather than just
the violating unit The commenter asked
for a clear and precise example of both
unit-specific and facility-wide
violations. . .
, . Examples of facility-wide violations
include the failure to have or comply
with the faculty's waste pre-acceptance
procedures, waste analysis plan,
contingency plan, financial
-------
49208 Federal Register /Vol. 58, No. 182 / Wednesday, September 22, 1993 / Rules and Regulation*
responsibility requirements, and the
closure plan. Criminal violations also
create a lack of confidence in a facility's
ability to handle waste at any unit, and
thus may also be considered "facility-
wide." Unit-specific violations include
failure to comply with the design and
operating requirements.
4..Relevant Violation?
Numerous commenters asked for
clarification concerning the definition of
relevant violations, as set out in the
proposed rule (53 FR 48223-48232). and
more precise guidance regarding what
constitutes a relevant violation. Many
commenters also had suggestions on
what the definition of relevant violation
should include.
One commenter suggested that
relevant violations balimited to _
violations that pose a threat to the
physical integrity of the disposal unit;
EPA finds this suggestion unacceptable.
The environmental laws and regulations
contain many requirements, all of which
have been determined to be important to
assuring the protection of the
environment. For example, financial
assurance requirements and ground-
water monitoring are critical to a
facility's safe operation, although
neither involves a present threat to the
physical integrity of the disposal unit
The legislative history, specifically refers
to excluding only minor paperwork
violations when determining whether a
facility is in compliance. H. Kept 962K
99th Cong., 2nd sess. at 248 (1986). The
statute specifies that the facility must be
operating in compliance with RCRA (or.
where applicable, with TSCA or other
applicable law) and all applicable State .
requirements. Therefore, it would not be
reasonable for EPA to offer broad
generic exclusions, like those proposed.
by commenters, for "isolated instance*/.
of noncompliance," violations which do
not thiwtei human health and the
environment, or violations that are not
of an "ongoing nature." These
suggestions are not consistent with the
mandate of the statute. Further, these
types of relatively minor violations may
often be resolved within the 60-day
review period, before a determination of
unacceptability would take effect at the
violating facility. The definition of
relevant violation from the proposed
rule is retained without change (Section;
300.440(b)(l)(ii).) In general. EPA
believes that relevant violations will
generally be Class I violations by high.
priority violators (HPVs). Guidance Cox -
determining what is a Class I violation
or HPV can be found in the Revised
RCRA Enforcement Response Policy .
' (OSWER Directive No. 9900.0-1A). . ,
Criminal violation*.(aftar theisauaneeoi
an indictment) are also generally
relevant violations.'
One commenter asked the Agency to
'delete the word "include" from the first
sentence of the discussion of relevant
violation in $ 300.440(b)(l)(u), as it
implies that matters not listed in the
section may also be included as relevant
violations. The Agency has decided to
retain the word "include" in the final ,
rule, as deleting the word could
unnecessarily limit the Agency's
discretion in making determinations
regarding what constitutes a relevant .
violation under the rule. Although EPA
has attempted to describe the type of
violation that would be deemed .; < . .-,...
relevant, it cannot foresee all possible
circumstances. EPA will evaluate
finding? of violation and determine if
they are relevant under the rule on a :
case-by-case basis; parties will have an
opportunity to discuss that decision
with EPA during the 60-day period for
the review of the unacceptability
determination.
Another coTnmanter maintained that
the prohibition on relevant violations -
should apply to the entire facility, rather
than Just the unites) receiving the waste.
EPA has decided to continue to limit
the application of relevant violation-
criteria to the receiving unit except in
cases where the violation affects the
entire facility. As explained in the ~
proposed rule, EPA believes that this.
interpretation is consistent with .
Congressional intent that response - .
actions be designed to ensure that no _
new environmental problems are
created; this goal is accomplished by....
sending CERCLA wastes only to units
that are in compliance with applicable
Federal and State requirements (and at ".""
which releases are controlled). See S3
FR 48223-48224. In addition, mis ^
interpretation furthers the .
Congrossionally-mandated preference:
for treatment by allowing the use of
incinerators and alternative treatment
technologies even if there is some
violation elsewhere on the property. See
53 FR 48222-23. At the same time, the
release criteria do apply to non- .
receiving units, and ensure that
CERCLA wastes will not be sent to
facilities where significant, uncontrolled
releases are occurring at any unit
Another commenter objected to
requiring facilities to meet any
requirements, other than compliance
with a RCRA permit In response, the
rule does not impose any direct
requirements on RCRA facilities; it ;'"
simply provides that CERCLA wastes
may not be transferred to a RCRA
facility that is out of compliance or that
has uncontrolled releases. Congress
specifically recognized that leaks at
RCRA facilities might not constitute
violations, and thus a requirement to
control releases was added. See 53 FR
48219-48220 (proposed rule).
Finally, one commenter asked EPA to
clarity what an applicable State
environmental law was and who (EPA
or the State) has the final say over
whether a particular environmental law
is applicable.
EPA. after conferring withohe State.
will determine what State and Federal
laws are applicable, and if the facility is
operating in compliance with those . ..
laws. In most cases, EPA expects to
reach consensus with the State as to a
facility's compliance with State
requirements. However, EPA will make
its own independent determination on a
facility's return to compliance for the
purpose of the Off-site Rule; EPA
emphasizes that a facility will be
deemed acceptable under the rule if it'
demonstrates to EPA's satisfaction that
it is operating in compliance with '
applicable laws and has addressed all "
relevant releases. EPA can be satisfied
that a facility has returned to physical
compliance with State law even if there
is an outstanding State enforcement
action. The only situation in which off-
site acceptability will be conditioned
upon resolution of all legal actions is
where the violation cannot be
"undone." For example, if a facility had
incinerated wastes not specified in, its .
permit, or disposed of unpermitted
wastes in a manner that to require their -
removal would cause harm., EPA will .
not require recovery of the waste as a
condition for returning to acceptability;
however, in such cases EPA would not
consider the facility to have returned to
compliance until certain steps were;
taken, such as the payment of penalties.
thus removing any economic advantage
the facility may have enjoyed during the
period of violation. See 53 FR 48229. (A
similar approach may be appropriate for
facilities with criminal violations; the
payment of penalties, institution of new
training procedures, and other such
steps may be necessary in order to -
restore confidence that the facility can
again safely handle CERCLA wastes.)
Conversely, a facility that had been out
of compliance with ground-water
monitoring or finawHul assurance
Sa» (b* propOMd rate. S3 PR 4*224; DM*
Policy, at p. 16c and MMonndm torn Bract It
DUmood. tXMto Policy I
(August sa. total._--..';.
requirements, but that had brought the
ground-water monitoring system back
into physical compliance or met it*
fiimnir-fat assurance obligations-could be
considered to have returned to physical .
compliance even if legal actions wen -
-------
Federal Register / Vol. 58. No. 182 / Wednesday. September 22. 199S / Rules and Regulations 49209
outstanding or penalties had not been
paid.
"Physical compliance" does not .'
include being in compfonce with a
schedule to return to phypical
compliance. :*;,
5. Minimum Technology Requirements
(MTRs)
EPA received conflicting comments
on the proposal to require a RCRA
Subtitle C land disposal unit to comply
with the more rigorous minimum
technical requirements ofRCRAr
§ 3004(o) in order to be acceptable to
receive RCRA hazardous wastes from a
CERCLA cleanup (53 PR 48224). EPA
believes that this requirement is '
appropriate in ordefto assure that
CERCLA waste that are RCRA hazardous
wastes remain safely disposed of in the ~
future. HSWA established minimum
.technology standards for new land
disposal facilities (lie., facilities ~
commencing construction afterNov. 8,
1984). These standards are more .
stringent than the requirements for
existing (i.e., pre-1984) land disposal
facilities because Congress considered
existing requirements tab* inadequate
to prevent hazardous waste from.
entering the environment^ Of course.
waivers from MTRs are allowed if the
owner/operator, can show that.
alternative design and operating
practices, together with location;;
characteristics, will prevent the
migrationof any,hazardous waste
constituent into the ground water or
surface water at least as effectively as
the required liners andjeachata. ., _.,
collection system. (40 CFR.264.3t01) An
MTR unit is less likely to have future .
problems than, a non-MTR unit, and
therefore:the requirement that receiving.
RCRA Subtitle C land disposal units
must meet MTRs is consistent with .
Congressional intent not to send-
CERCLA wastes to. land disposal units
that may leak. . ' . -
6.. Facilities Operating Under a RCRA ' -
Exemption and Non-RCRA Facilities
One commenter suggested that a '
facility operating under a RCRA
exemption should still have to meet :
certain conditions, such as justifying the
exemption, obtaining all necessary
permits, and passing an inspection. EPA
agrees that facilities subject to a RCRA
exemption are still covered by the Off-
site Rule. CERCLA wastes may be
transferred to such a facility only if the
facility is operating in compliance with
applicable law (which for some facilities-
operating under a RCRA exemption may-.
still include some provisions of RCRA),
has obtained ail necessary permits (if
any), and has controlled any
environmentally significant releases.
EPA will rely upon information
developed during inspections in making
such determinations. These
requirements were specifically set out in
the proposed rule for other-than-RCRA-
facilities, and remain in the final rule as
requirements (53 FR 48225-26;
proposed §§ 300.440(b)(l).
300.440(b)(2)(D)).
D. Determining Acceptability-Releases
1. Identifying Releases, -n,-
Forall RCRA Subtitle C facilities, a
facility-wide investigation"(e'.g.;'I RCRA
Facility Assessment (RFA) or a '"'
Preliminary Assessment/Site
Investigation (PA/SI)) by the responsible
Agency is necessary to determine if a
release has occurred,, or if there/is a
substantial threat of release, prior to its
initial use for the receipt of off-site
CERCLA wastes. (Once a facility has
been found to beacceptable. if remains
acceptable until EPA notifies the facility
otherwise, as provided in § 300.440(a)(4)
of the rule.) If a release has been
identified outside the scope of such an
investigation, completion of the ^ -
investigation is notnecessary prior to
issuing a notice of unacceptability or
initiating a corrective action-program (in-
such situations, the corrective action
program should be designed to include
a facility-wide investigation):* Although
the performance of a facility-wide
investigation is ho longer discussed in
the rule (see proposed rule § 300.440 -
(c)(2)f,"it remains an important part of
the off-site evaluation program.
': One commenter objected to including
"substantial threat of a release" in the
definition of release (53 FR 48224ft -
claiming that this exteeds EPA's .
statutory authority. v--
Although CERCLA section 121(d)(3)
does not specifically state whether ox .
not a "substantial threat of release" is
intended to be covered by the terms of
the provision. EPA believes that the
inclusion of substantial threats is
consistent with the intent of the section
that CERCLA wastes be transferred only
to environmentally-sound facilities, and
that they not add to environmental
problems. Where there is a substantial:.
threat of a release, e.g., a crack in a
containment wall, the transfer of .
CERCLA wastes to the site would not be
environmentally sound. . ;
. Even if the statute is not read to
compel this result, EPA believes it is a
sound one as a matter of policy under
CERCLA. It is within the Agency's
authority to respond to both releases
and "substantial threats of release"
under CERCLA section 104. It would ba
inconsistent with the purposes of
CERCLA sections 104 and 121(d)(3) and
the goal of protecting health and the
environment, for EPA to transfer
CERCLA wastes to facilities where a
substantial threat of release has been
identified, and thus where the threshold
for a CERCLA response action has been
met. The general position that both
"releases" and "substantial threats of
releases" are serious causes of concern .
is reflected in the definition of "release"
in the NCP revisions (40 CFR 300.5).
which states that for the purposes of the
NCRi ,wlease also means threat of
release* f - . ,... . ,
Three commenters questioned We
criteria EPA will use todetermine"5 .
whether a release exists. One
commenter asked EPA to provide more
specific criteria for when the Agency
may find a site to be unacceptable based
on a relevant.release, while two other
commenters asked that determinations
of unacceptability be'grounded on very
firm evidence, using objective criteria.
In evaluating releases and threatened
releases, the Agency believes that it
should rely on all available information,
indudinglnTonnation oh the'design and
operating characteristics of a unit-The
determination that there is a release
(including a substantial threat of a,
release) may be made based on sampling
results or may be deduced from other
relevant information. For instance, as
discussed ;in
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49210 Federal Register / Vol. 58, No. 182 / Wednesday. September 22, 1993 / Rules and Regulations
scope of the exemption. One commenter
argued that only those releases that pose
a threat to human health and the
environment should render a facility
ineligible. Two commentere disagreed
with the example of a nonrde minimis
release between landfill liners, and
asked EPA to correct this
misunderstanding when issuing the
final rule, by stating that accumulations
of liquids between the liners are not
"releases into the environment."
The statute directs EPA not to transfer
CERCLA wastes to a unit of a land
disposal facility that is releasing "any"
hazardous waste, or constituent thereof,
into the environment (CERCLA section.
121(d)(3)(A)), and to control "all such
releases" from non-receiving units ~:
(section 121(d)(3)(B)). Contrary to the
suggestion of the first commenter, the
language of the statute does not provide
that "only releases that pose a threat to'
human health and the environment" - '
should render a land disposal facility
unacceptable under the Off-site Rule. As
explained in the proposed rule, S3 PR
48219-48220, Congress was very
concerned about leaking land disposal -
units, and set but in section 121(dH3) *
very stringent standard for the transfer
of CERCLA wastes to such units. (The
Agency has greater discretion for setting
a standard for units that were not :
addressed by the statute.)
EPA recognized, however, that there
are releases of such a minor nature as:
to be considered "do minimis," or of *
such a trifling nature that the law does
not take notice of them. See Alabama
Power Co. v. Costle, 636 F.2d 323,360
(D.C. Cir. 1979); Black's Law Dictionary
(4th ed.), West Publishing. 1968. at p.
482. EPA considers a de minimis release <
as substantially less than a release that ~r
poses a threat to human health'and the-;
environment. Releases will be -**.
considered to be de minimis only in -
exceptional cases. To aid the public, the
Agency has attempted to identify some
examples: releases to the air from the
temporary opening and closing of
bungs, and emissions of non-toxic and
non-regulated substances from units not
otherwise subject to Federal or State
permits.* De minimis releases will be
exempt from the "definition of release.
However, as two of the commenters
noted, one example in the proposed, rule
was incorrect: "releases" between
preamble to the propoMd nil* (S3 FR it 48124) »
saying thtt dt minimi* relatsw are "my raleutt
that do oot «4*anely «fbct public health or the
environment" nth* than manly minimal .'
nlaaio*with no advene affoctrUie tho*e nt out
in tin examplef in the preamble. To the extent the
, i» ! riariflad hy At*
'
liners. The accumulation of liquid
between liners that are controlled by
leachate collection systems does not
involve a release to the environment;
thus the presence of leachate between
liners will not necessarily make a unit
unacceptable.
3. Releases to the Air
Two commenters stated that until the
promulgation of regulations for the
control of air emissions from hazardous
waste management units (under RCRA
section 3004(n)), it is Impossible to tell
what releases are normal during
hazardous waste management ' ...
operations. Thus, they argued that air
releases should not be considered as a
basis for unacceptability under the Off-
site Rule at this time. ".'."....
'' In response to the comments, EPA..
'agrees mat standards do hot yet exist for;
differentiating between acceptable '
releases to the air and air releases that .
may pose a threat to human health'ano!'
the environment Because almost all
liquids evaporate or volatilize, air
releases of some kind may be expected
' at almost every site, making a "no-
' release to air" standard unrealistic.
Indeed, the statute does not restrict the
use of units with releases to the air. See
section 121(dX3)(A). Thus, as a matter e
of policy, air emissions not otherwise-
permitted that result from hazardous ~"~
waste management units will be
considered releases under this rule only
if they exceed the standards " ": '
promulgated under RCRA section ''-L
3004(n)(when they have been-"" '-': if:v
promulgated). However, until the'" '
' section 3004(n) rule is final, air >
"emissions from such units will be- :>-v"-
consideredreleases where they are "*''''"
"found to pose'a threat to human health «'
'" fiad the environment Similarly; air n-8
emissions that are not covered by RGRA^
section 3004(n) standards will be
' considered releases under this rule only
where they are found to pose a threat to
human health or the environment
4. Other Releases
One commenter was concerned that
releases from non-receiving units at
RCRA Subtitle C land disposal facilities
could result in unacceptaoitity of the
entire facility. Specifically, the
commenter stated that § 300.440(b)(2)(B)
could preclude the use of an incinerator
at a land disposal facility where a non-
receiving unit has a release. The
commenter agreed with prohibiting the
use of a land disposal unit in a land
disposal facility with a leaking non-
receiving uniti because there are likely
to be similar problems with other units.
The commenter argued that these
problems have no relation to
incinerators.
The legislative history (see, e.g.. 53 FR
48219-48220), shows that Congress was
very concerned about releases to the
land. That concern was reflected in the
statute by providing special statutory
requirements for the transfer of any
hazardous substance or pollutant or
contaminant from a CERCLA site to a
land disposal facility. By providing that .
EPA may not use land disposal facilities
with uncontrolled releases at non-
receiving units, the statute suggests that
EPA should not, through CERCLA
cleanups, do business with facilities
that have leaking land disposal units.
Sending CERCLA wastes to facilities at
which relevant releases have been
controlled avoids adding to
environmental problems, and furthers
, the Congressional policy to reward only .
the best facilities with CERCLA
contracts. -
. The fact that the receiving unit may
be an incinerator does not change this
analysis. The environmental damage
from leaking units is still present
Further, unlike receiving units at a land
disposal facility which must eliminate
all releases, non-receiving units need
only "control" their releases in order to
be acceptable, a reasonable step to
require before deeming the facility
acceptable to receive the government's
CERCLA waste. Finally, as RCRA
.regulations make clearrthe>presenceof
a single land disposal unit makes a
facility a land disposal facility (see, -
proposed rule, 53 FR 48225); therefore.
where an incinerator is parjof a.facility
with land disposaj unite! the. final rule
still requires compliance ,witk'the,:
"release requirements for land disposal
facilities in order for the incinerator to
"be acceptable to receive CERCLA
wastes! ' :""."". .. ' '"'.
E. Notification of Acceptability
1. Management Options for Loss of
Acceptability - ; ^ ;
Two commenters asked EPA to
discuss the ramifications on a cleanup
contract if the disposal facility becomes
unacceptable during a remedial action.
They also asked that claims from a
contractor be made an eligible cost of
the action. . ~
Loss of acceptability during a
response action constitutes an
implementation problem that will be
handled on a case-by-case basis through
the contracting process with the
individual facility. EPA does not believe
that this needs to be addressed in the
rule. There- are, however, several points-
to note.
-------
Federal Register / Vol. 58t No. 182 / Wednesday. September 22. 1993 / Rules and Regulations 49211
In most cases, there will be a 60-day
review period before the initial notice of
unacceptability takes effect The facility
may use this time to take steps to'return
to acceptability, and thereby avoid
disruption of the remedial action. This
60-day time period was also provided to
afford the lead agency the opportunity
to arrange for alternative disposal
capacity (if the remedy will not be
completed within the 60 days, or the
facility is not expected to return to'
compliance in 60 days) (53 PR 48227).
Second, the issue of who should bear
added costs stemming from a facility's
loss of acceptability must be a matter of
contract negotiation between the parties.
Finally, the Regional Administrator
does havethe discretion to extend the
60-day period if all factors, such as a
lack of available alternative disposal
capacity and a low threat to human
health and the environment, so warrant
2. Potential Unacceptability
One commenter asked for clarification
in both the preamble and the rule on the
relationship between the initial notice '
of potential unacceptabflity anfl the
ability of a facility to continue to receive
CERCLA wastes .for 60 days after the
notice of unacceptability
(§300.44O(d)(3)). fa addition; tfto ':
commenter believed that a " " '_
determination of unacceptability should"
be published in the Federal Register. *~
The receipt.of an initial notice of
potential unacceptability does not
usually render a facility unacceptable- -
unless or until the final determination *
has been made and takes effect (usually'
60 days after the initial notice, or after
an alternative tinwperlodtis provided ""'
under § 300:440 (d){8) oridHW(53 FR
48227). As &scus8ed-earHOT,r(f facility "
for which EPA hasmever made a .
determination of unacceptability will '-
not be afforded a 60 day period of . .-*-
acceptability after the initial notice. - v
Note that in exceptional cases,'" «.->
unacceptability notices cai»be made
immediately effectives. See 53 FR 48227-
48228. EPA will not publish
unacceptability notices in the Federal
Register, because of the ability of a .
facility to take steps to return to
compliance at any time, acceptability-
status is dynamic, and many such
notices will be out of date before they
get published. In addition, such a
publication requirement would obligate
notices of when facilities returned to
compliance; the effort involved would
oe significant (with Uttfo assurance of- .
being timely), and could detract from '.
more important Agency business*
Rather, EPA maintains- an np-to^dste
record of the-acceptability status of
commercial facilities in each Region. -
This information is available to parties.
directly involved in locating sites for
disposal, and to the interested public,
from the "Regional Off-Site Contact" in
each Regional Office. A list of these
coordinators and their telephone
numbers is included as Appendix I to
this preamble, and updated lists will be
available from the Superfund Hotline
and Superfund docket.
P. Revievr Procedures'" -'- .-';'-
1. Agency Response Timer
Two conunenter»caked EPA to
identify a specific timCfframe for ~
Agency review of» facih'ry's return to~-'~
acceptability status, and a specified
response time for review of
unacceptability determinations by the
Regional Administrator (the commenter
suggested that th* appeal to the RA
should b* completed within the 60^1ay
review period).' -= -""""'" r--'-r -'
EPA does not believe it is feasible or
appropriate to establish specific time
frame within which it must respond to*
a frcilityVrequest to return it to
(whether that request ::
comes withiff the" 60 day review period
Drifter* final determination of
xinacceptability has been issued).
Although the Agency is committed to
making 'every effort to respond to such
requestsasquickly or the case allows,
the Agency cannot" allow its priorities to
be driven by artificial deadlines. -
Farther1, if the Agency wen not able to
verify a facility's alleged return to
compliance by a required date, and in
fact the-company had not returned to
compliance, CERCLA wastes would be
transferredto unacceptable facilities, in
violation of CERCLA section.l21(d)(3).
Comp^fe thaf^Tmacfceptablemust -
baal'somgrespbhsibmtylfar the|r status;.-
EPA witt attempt to evaluate a/return to
acceptability as promptly as practicable;
'* A* to the comment that the appeal to.
the Regional Administrator should.
always conclude within the 60-day
review period, EPA notes that the
statute establishes a critical mandate; .
the-Agency shall not send CERCLA. -
wastes to unacceptable facilities. The
Agency has already provided a _
reasonable period for review and
comment after an initial finding of
violation; during which time the facility
will have an opportunity to meet with;
Regional officials. As an added :
protection. EPA has provided a right to
appeal thq staff-level decision to the
Regional Administrator, who will issue
a decision as soon as possible. However,
EPA cannot allow this process to
routinely continue indefinitely, and it -
cannot violate Congress* clear direction
not to send CERCLA.wastes to facilities
with relevant violations or releases. For : <
the reasons set out at 53 FR 48227, the
Agency believes that a 60-day review
period is, a reasonable compromise
among competing interests. Of course.
the Regional Administrator has the -
discretion to extend the 60-day period.
if appropriate, depending on the factors -
in the case. In. deciding whether to
extend the 60-day period, the Regional ,.'
Administrator should, for example..
consider the need to proceed with the. . J;
cleanup expeditiously and the nature of
the violations or releases found at the -
facility {fee;, the potential danger in
continuing to send wastes to the site).
against the adequacy of the record
developed at the staff level and the due _
process concern* of the facility. -' -
2. Notification of Immediate :
Unacceptabflity^'
_ ,hi the proposed rule, EPA stated that
"in case of either an extension or
tiUpq'MJifltn nnn<7»i«>ntflhiHtyt tha facJHty
should be notified as quickl^a^ ..* -
possible" (5 3jra, 48228). Onet ..
commenter flprftd ftiat in cases where
immediate unacceptability is triggered^
the owner/pperalor be notified within
-l
cy will make every effort to
as soon as possible after
Tn many fAfi^if^^iit fftay'ka urithip « 24-
hour perioxL'The Agency notes as well
situationStit may be appropriate to
make a finding of unacceptability
effective in less'than,6Q dav8,«lthough
reflect this fad,
'
bee^i changed to^
3. fttteatlallyjRBepDnaibl* Parties
-r One commented asked EPA to
a^csrtam'whethOTa&tenniflfttionof
utVHiVMjitpMtffy* fatght higqa Art tTnpnfft
on removal or/remedial actions beinK
condutfedby'p'otentially responsible
parties (PRP«t?ThecommBnter" '
maintained thaf 4 representative of the
PRP* shoflia bVallowed to attend any
conferex^&gifanthe determination of
unacceptabffityf-
A determination of unacceptability
may have an impact on PRP actions if
those actions are being conducted
pursuant to a CERCLA authority or
using CERCLA funds (e.g^ a mixed
funding case); In such a case, off-site
transfers of CERCLA wastes would be.
required to comply with this nil*.
EPA does not believe that it is
necessary to Invite PRPs to participate
in its deliberation'on acceptability :
rifltornuflftDom CftXiuOUflu EP^V QIAV do
so in appropriate cases). The effect of
-------
49212Federal Register / Vol. 58. No. 182 / Wednesday, September 22, 1993 / Rules and Regulations
acceptability determinations on PRPs
involved in CERCLA actions is limited
to determining when they can transport
their waste. The parties mbs]t>
knowledgeable about the facility's
statusthe owner/operator^ EPAand
the Statealready participate. The
possible need for some PRPs to make
alternative arrangements for transport of
a CERCLA waste is not a direct element
of an acceptability determination.
G. Due Process Issues '
1. Potential Loss of Business '".
One commenter asserted that the Off-
site Rule may infringe on the-. . -,..-.
constitutionally protected interests of
private parties; specifically, the ... .
commenter argued that the . >
"opportunity" to compete for business-
is denied whenever EPA determines
that a facility is unacceptable. Such--
decisions have a negative impact on a
company's reputation, further subjecting
them to a potential loss of business, and-
therefore, these decisions must be made
within the confines of the due process^-
clause. -< -
As noted in the preamble to the
proposed rule (53 FR 48226), EPA
agrees that facilities with valid RCRA
permits are authorized to receive certain
types of wastes and have the ~
opportunity to compete for those-- '' '~>
wastes, but it does not create the right-
to receive any particular waste - ~"
shipments, from the government or any
other party. EPA is, at the same time,
sensitive to the company's concerns that
EPA's process for deciding which _ ;
facilities to use must be a fair one. Thus,
Congress has established the parameters'
for that decision-making process [i.e., no
shipments to violating orlealr1"1""'' '"
facilities),,and has required a _ ^
procedural process. In implementinathi
Congressionally mandated scheme, this
rule sets out a 60-day period for a .; "
meeting with Regional and State'. " '"
officials, an opportunity for comment, a
decision by the appropriate Regional
Waste Management Division, and then ;
the opportunity for appeal fo the
Regional Administrator. The final rule.
makes review by the EPA Regional
Administrator available to the State and
the receiving facility owner/operator, as
compared to a discretionary matter left
up to the Regional Administrator.
EPA has made every effort to establish
procedural protection for affected .:.
facilities that will ensure that off-site
acceptability determinations an made
in a careful and consistent manner. The
Agency believes adequate due process
protection has been provided. With
regard to the comment of a negative
impact from the off-site determination.-
EPA addressed this issue in the
proposed rule (53 FR 48226-48227). An
EPA decision not to use a facility is
simply a response to, and recognition of
the finding of a violation or release. The
facility must accept some responsibility
for its actions (or inactions) and
negative impacts which may result.
2. Payment of Penalties
A commenter charged that off-site
determinations are a means of forcing
the payment of penalties and of forcing
an owner/operator to forego the right to.
appeal corrective action orders or ..
permit provisions; the commenter .
argued that payment of a penalty should,
be irrelevant to whether the facility has
corrected the violation. Further, the ,r.r,-,
commenter asked that the burden in
S 300.440(e) for establishing, ,,, : ;..
acceptability during challenges to... .
corrective action decisions, should be
reversed to providethat a facility is,;.,,..-.
acceptable during the period of an .....nf
appeal, unless EPA (rather than the, v ,-
facility) can demonstrate that interim, \
measures are inadequate and that other.
corrective action measures are necessary
to protect human health and the , -^ -
Guviroimioiii* ~ * ~- - ~* ~'*;»-M -. «?'...»,
As stated earlier in this preamble..
impoundments at great risk to workers
or the environment), the Agency has
provided another avenue for correcting
violations. .
Similarly, EPA Is not "forcing an
owner/operator to forego the right to an
appeal." Congress has directed EPA to
clean up Superfund sites expeditiously,
and at the same time not to send
CERCLA wastes to sites that are in
violation of applicable laws or that have
uncontrolled relevant releases. Thus.
the Agency must make these latter
determinations promptly, while -
allowing the owner/operator a " r
reasonable right to review. EPA believes
that the 60-day review period with
access to two levels of decisionmakers.:
as provided under this rule, represents
such a balance. However, withholding
decisions during months'and years of
administrative and Judidal'challenge
would not allow tn* Agency tocoraply .
with, its statutory mmdatevand .would
encourage dilatory app$alB.f{See'v<.',.-,,
discussion at 53 FRV48228>) - "t
On the appeal issue'spedfically. EPA
has gone even further,, providing an .
additional mechanism for an owner/-
operator to be considered" acceptable' .
during interruptions in corrective action
o cdntrol releases due to die need to
.._ ______________________________
(section IV.C.4), the question of whether , pursue permit modifications. Although
ornot a facility has returned to physical
compliance with applicable laws is^
'generally separate and distinct from Jhe^
question of whether penalties may be
appropriate for past violations;.ac- ,-.--..-n.
company's right to appeal any penalties,
associated with underlying .violations is;
unaffected in most cases. Howevez»;EP. A
'has identified one major exception-to;; 4
1*1 it _. . * _ i _ .
the statute conditions acceptability on
the"control" of releases, and no
corrective action will be on-going under
the permit or order during corrective
action appeals or permit modifications.
EPA will consider the facility acceptable-
if the Agency is satisfied that sufficient
interim corrective' action steps are
underway, or if it is convinced that no ..
this rule. Where a violation cannot ,.r a /corrective action is-needad during the
physically b» ''undone" (or the Agency ->-, interim period; Thus; a facility. wishing
has determined that it is safer to leaven «*:, to remain acceptable and wishing ton .-,-.-.
waste in place), one can argue UtaMhfes ^appeal may do both^ Contrary toa,:
"" - commenter^'SuggesttOtt.i this burden, is
properly on the owner/operator, if it
wishes to remain acceptable during the ;
period of its permit modification appeal.
receiving'unit is "tainted," and-that the
'violation is a continuing one. In order
*fo avoid such a harsh result, EPA ha*. r=«,
.; provided that in such cases, the facility
- may be said to have returned to physical
compliance after any required steps -
have been taken to prevent recurrence of
the violation, and any outstanding
penalties to EPA have been paid (see 53,_
FR 48229). EPA needs assurance that -
there will be no repetition of the
violation, and the payment of a penalty
helps provide that needed assurance. In
effect, it is the preventive measure plus
the penalty that "corrects" the violation
in these cases. Thus, the Off-site Rule is~
not "forcing" the payment of penalties?;
' in most cases, such payment is not
required to achieve acceptability. When
physical compliance is not technically
achievable, or would be extremely
difficult to achieve (ag.. excavating
entire landfills or draining entire surface
After a certain point, the Agency must
be able to get on with its business of
cleaning up sites;1
3. Review of Determination Decisions
One commenter argued that the
procedures set out in the proposed rule
for review of off-site uhacceptability
determinations (53 FR 48227) would not
promote consistency in detisionmalting.
which a district court found to be a.
serious flaw in the original Off-site
Policy. The commenter requests the
right to an expeditious review by an
impartial Hari at nnmalcar (someone other
than- the-person who originally made the
decision), and a right to review of EPA
Regional decisions by EPA Headquarters
(preferably the General Counsel);
-------
Federal Register / Vol. 58. No. 182 / Wednesday. September 22. 1993 / Rules and Regulations 4921S
EPA believe*.that it has. established a
system of review which wHI promote
consistency in dentojonmalring. The
procedures to be applied are clearly set.
out, and will be overseen by
coordinators in the^teit EPA Regions.
The Agency intends to provide training
and guidance to these coordinators in.
order to assure consistent applications^
The consistency problem identified by
the district court and cited by a
commenter, stemmed from
implementation of the May 1985 Off-site
Policy, which was dramatically more .
limited in scope and procedures than
this final rule. Procedures for notice and
opportunity to comment by affected .
facilities were added by the revised Off-.
site Policy in November 108). and those
procedures are being expanded by this
rule. Moreover, the tact that such
procedures will now be legally.
enforceable regulationsas compared to
policy guidanceadds to the certainty.
that the procedurea. will be consistently
followed^ ; ...
The request for expeditious review by
an Impartial decisionmaker, other than
the person who originally made.the
decision, is satisfied by -the provision in
the final rule for appeal to the Regional
Administrator. The Regional.
Administrator is not involved in the
day-to-day compliance and release
findings of the Regional Waste,-^
Management Divisions, and does, not
make the initial acceptability,
determination based on the meetings
with the owner/operator within 30 days
of the notice letter. Rather, the Regional
Administrator supervises all operations-
of the Region, and is available to hear
appeals from those detisiqns.if
requested, , . ^ , .,.
It has been EPA fs experience under
the revised Off-site Ptoj
opportunity to'appear with counsel.
submit documentary evidence., and.'.
present and confront witnesses; and a -
transcript of the proceeding* to be made
available to the respondent.
The more complex debarment
procedures are not appropriate for the
Off-site Rule. The review procedures set
out by EPA under the Off-site Rule
already provide for an informal hearing.
opportunity to appear with counsel, and
submission of documentary evidence.
EPA does not believe it is appropriate or
necessary tb~caUradconfront witnesses.
in order to determine if the'faeility's
operatlbnVreveal relevant Violations or.
releases. Moreover, a key distinction
between the two set* of rule* is that
acceptability is within the control of the
owner/operator, unlike a disbarment for
. a set period of up to three yean,
unacceptability status may be
terminated once. the. facility returns to
physical compliance jar controls
relevant release*.
The informal procedure* set out hi the
Off-site Rut* are also consistent with the
purpose andterms ofthVstatute.
CERCLA requires swift action in these
cases; the use'of procedure* provided in
this rule :allow relatively quick action.
while providing due process. Further. ..""
the procedures go well beyondthose .
required ih'the statute (simple "CI
"notification1'Jonrfthtise suggested in
the Conference report on SARA ("an
opportunftycto meet informally." and -~
"post-determination dispute resolution
procedure*" for release determinations).
(See 53 FR 482271 ~ -
' ^' 'ESPA^notes that only one commenter;
Administrators do not rubber-stamp
staff recommendations on off-site
acceptability, and have overruled or
remanded such recommendations in
appropriate cases. The courts have '-
hirther stated that Agency
decisionmakers are presumed to be
unbiased. See Wi throw v. Laikin, 421
U.S. 35,47(1975). ..- - -;
4. Review Procedures :-",...-
One commeriter argued that the .
informal conference and written;
comment procedure (described at 53 FR
48227) is not sufficient for review, and'
suggested using the procedures . '
proposed in 40 CFR 32.312 (d) and (e)
(52 FR 39202, Oct 20,1987). This refer*
to proposed regulation* forDebannent,
and Suspension under EPA Assistance*.-
Loan, and Benefit Program*, which \.
provide for an informal hearing, without
formd rules of evidence or procedural.
S.NToUficafion of Decision*
, at 53 FR 48227,
""provides that the Agency will inform
- the, owner/operator "in writing" of it*
decision after the informal conference
- and review of comments. EPA thus .
agrees with the comment that the baci*
foi;all decisions should be clearly
. articulatid'iHwritipg.EPA"aIso agrees
that owner/operators should receive
responses to their major comment* on
the acceptability decision. Region* will.
specify in notice* of unacceptabitity
why a facility or unit ha* been found .
unacceptable, and in post-conference .
Hivrliri<)py why « final iirmfyoptahiHty
determination ha* been made. Sucb/-
step* will also facilitate the review by
the Regional Administrator, vrho may
limit review-to the underlying record.
H. Re-Evaluation of Unacceptability
1. Thresholds/Enforceable Agreement*
One commenter asked for a
clarification on the threshold that will
render a facility inappropriate for .,.-.- .
accepting waste.. .
The criteria for determining when a. -
facility crosses the threshold into
unacceptability are described in
§ 300.440(b). In short, for a facility to be
acceptable to receive CERCLA waste*, it:
must have no relevant violations under :
applicabl* )awr andit must controlalk..
relevant release* (and. for certain
categories of facilities, eliminate alt .
relevant release* at the receiving units)^.
EPA will determine whether these-
criteria have been met based on regular-
inspections* , - . .<
The commenter also objected to the
requirement that a Federal facility must
control relevant releases under an
"enforceable agreement" in order to be
acceptable to receiver 6ERCLA waste*
(S3 PR 48229); The commenter noted '
that there may be fully-permitted units
at Federal installationa^that could safely-
accept CERCLA wastes; however, these;
units will be unavailable because of the
presence of releases elsewhere on the
installation that are part of a fadlity- "..
wide investigation, but not under an
enforceable agreement Thus, agencies
would be forced to use facilities off the
Federal property for receipt of CERCLA
waste, adding to costs and delay. -
(^ngress'cTearly^statdd that CERCLA
wastes should not be transferred to
leaking units at Jiand disposal facilities
or to land disposal facilities with :
leaking non-naceiying umts that are not .
being "controlled:" EFA maintains that
ensure that such.rej|fases, are controlled.
and to ensure the continual''"'
implementation of a corrective action
program approved by EPA or, when-
appropriate, the State. EPA sees no
reason why Federal facilities should be.
treated differently from private parties
(see CERCLA section 120(a)). Although^
it might be easier for some Federal
facilities to use active RCRA units on >
their property to receive CERCLA
wastes, they may only do so if those
units meet the conditions set forth in .
this rule. The requirement to have .
relevant release* at non-receiving unit*
controlled by an enforceable agreement
may be satisfied through a permit (e.g., -.
"the corrective action portion of the
RCRA permit), or consent agreement
(e.g., an interagency agreement under._...
CERCLA section .120). both of which are
available.to Federal fadlitie*.; 1 _ ;
-------
48214 Federal Register / VoL 58» No. 182 / Wednesday, September 22. 1993' / Rules and Regulations
^«_^^^"i^^»^^^_^^
irralevanf to the question of whether a.
unit can safely handle hazardous waste
This issue has already been largely
addressed in this preamble statement at
section IV.C.4 ("Relevant Violations")
and section IV.G.2 ("Payment of
Penalties"). Final resolution of legal
proceedings (Including payment of
penalties) is not a pre-condition ta
regaining acceptability where the
facility can. in effect, undo the violation-
(e.g.. remove improperly disposed
waste) and thereby return to physical
compliance. However, resolution of
penalties and of EPA legal proceedings
are generally pre-conditions to regaining
acceptability in those cases where *
violation cannot be undone. (See
examples in the discussion of Relevant
Violations. C.4.) In those cases, -
(especially where a decision has been
made to leave wastes in place in a land
disposal unit), the Agency is allowing a
physical compliance determination to
be made despite what some might see as
a forever-ongoing violation. For such -
cases, the Agency has a need for greater
certainty that every action has been :
taken that can be taken to assure that the
violation wiH not recur. In effect it is;
the talcing of required preventative ,::
measures and the payment of the
penalty that "corrects" the violation In
these cases. ~.
2, Coneotiv* Action/Controlled Releases
One cooimenter agreed thai a facility
with a corrective action program in
place should be corisidered acceptable.
and supported the broader-definition of
what constitutes a corrective action
program (proposed § 300.440(fH3)(iii)).
including the use of equivalent Stats
authorities.
The final rule continues to provide .
that corrective action programs must be
performed under a RCRA order or
permit, or under another appropriate ...
authority if the release is at an othex-
than-RCRA subtitle C facility. EPA
cautions, however,, that provisions ta
State orders or permits issued by States
not authorized to HSWA corrective
action are generally not acceptable to
satisfy this requirement at RCRA
facilities. (See 53 FR 48229.) The major
exception to this i* when States
authorized for the base RCRA program.
corrective action for releases from
regulated units to the ground water
(pursuant to 40 CFR 264.100)..
One commenter objected to
considering a release at a non-receiving -
unit to be "controlled" based simply on
the issuance of an order or permit; the
commenter claimed that in such cases.
an owner/operator would not be
required to show that the release is
actually under control, as called for in
the statute.
For purposes of this rule. EPA is
considering releases from non-receiving
units "controlled'' when an enforceable
order or permit to study the problem has
been issued. The Agency believes that:
once a facility is under such an
enforceable order or permit or
agreement, the situation is "under "
control." (If action is necessary to ~"
protect human health and the
environment during the term of the ~
study, interim measures may be
required.) The situation will be-
considered under control unless or until
the order, permit, or agreement is -
violated or the document needs to be* .
modified to proceed to the next phas* -
of action. Provided the owner/operator
is t«Hng positive action ***** remains in-
compliance widvthe terms p*g*fl»»«i in
an order or permit, the facility may
remain acceptable. - '
In addition, investigations can often
take a long time to complete, and most
waste treatment, storage and disposal
facilities have at least minor releases.
from non-receiving units; thus.
requiring facilities to complete
corrective measures before being-
considered acceptable could severerr
limit acceptable off-eft* mahngsment;' " '
options, effectively reducing the
available capacity to nothing. . '-.- -
Requiring the owner/operator tfr '
/physicaUy eliminate the release at non-
receiving units in order to be acceptable
would also go beyond the strict terms of
the rule to "control" releases. Further, it
would be a particularly harsh result
given the statute's requirement to
control "any" release at a land disposal
facility. By encouraging facilities to
begin studying and eliminating releases.
this rule furthers the control 01 leaking
units. Further, by requiring such work
to be conducted under an enforceable
order or corrective action permit. EPA
has the ability to ensure that the
required steps are carried out
expeditiousty. . - -..
3. Releases and Regaining Eligibility
One commenter challenged as too
inflexible the provision in the proposed,
rule (53 FR 48229) that requires the
elimination of all releases from
receiving unit in order to regain
acceptability. The commenter argued
tttmt Enquiring elimination to the extent
technically feasible and to a level which
poses no threat to human health and thsr
environment would be more realistic.
In response, de aunimis releases from
receiving units are already exempted .
from the rule. EPA believes that any
further relaxation of the no-release
standard for receiving units at RCRA
facilities is against the intent of the
statute which states that waste may only
be transferred to a land disposal unit
that "is not releasing any hazardous
waste, or constituent thereof, into the
groundwater or surface water or soil."
Congress simply does not want CERCLA
wastes sent to leaking RCRA land
disposal units. See S3 FR 48219. EPA
believes that the same standard should
apply to receiving units at RCRA
treatment and storage facilities. See 53
FR 48225.
4. PagitHng Physical Compliance at -
Treatment and Storage Facilities*
In the preamble to the proposed rule.
at S3 FR 48229, EPA discussed how a
facility could return to compliance after
the facility had been found to be
unacceptable based on a relevant
violation. One commenter supported '
two of the three conditions under which
a unit will be considered to have
regained physical compliance, but :
disagreed with the contention that "in
be regained until all legal proceedings,
(etc.) an resolved." The commenter
charged that final resolution of disputss
regarding what legal consequences
.should flow from a violation are
I. Implementation
Three commenters suggested that in
Older to facilitate implnmontfltinn of thin
rule. EPA should establish a national
ftahi hflgn nr nthar morhanigm en that
off-site contacts and their staff can-
easily tell which ^"^I'H",1?, nationwide; -
are in compliance with the Off-Site ;
Rule. With such a listing system. EPA
and other Agencies could readily know
or access * list of approvedoff-site
disposal facilities. One of these
commenters also asked EPA to develop
a more formalized list which reports
which facilities have significant
violations under applicable Federal and
State laws or regulations.
It has been EPA's experience that oft *
site acceptability status changes
frequently, and is difficult to usefully
reduce to a published list Thus, the
Agency believes that the only way to
ensure up-to-date, accurate information
is to continue to rely on the ten Regional
Off-Site Contacts (ROCsX The Agency
does not believe that it is an
unreasonable bnp^fi t" T»frfr- '
interested parties to make one to several
phone calls to determine the
acceptability status of facilities near a
given site or with specialized capacity.
The Regional Off-Site Contacts will ..
maintain up-to-date information on the :
-------
Federal Register t Vol.'58. N6. 182 t Wednesday; September 227 1993 / Rules and Regulations 49215
acceptability-of facilities, within their
r, in order to ensure that the
information is readily available. EPA
will strongly encoarage the maintenance
of a back-up contact for use when the
primary Off-Site Contact is unavailable,
EPA will keep a copy of the ROCs in the
Superfund docket and with the RCRA/
CERCLA Hotline (a list is also included
as Appendix I to this preamble, :
although it will obviously become
outdated in the future, and interested
parties should consult with the sources
named for revised lists).
Due to the dynamic nature of the
acceptability determinations, EPA has
no plans at this time to publish a1 -
national list of acceptable (or. ' ""1 -
unacceptable) units. The Agency -
believes that such lists could serve more-
as a source of misinformation (or out-of-
date information) than reliable" ' ''
information. EPA's recognition, Of the
dynamic nature of acceptability i»
reflected in the Agency's policy that an
off-site facility does not needto be
acceptable to bid on accepting waste.
from a CERCLA clean-op, but mustbe
acceptable under this rule to be awarded
such a contract . = ~v .
In order to avoid problems resulting^
from contractors whose designated-. -.
receiving facilities become unacceptable
under this rule, agencies and PRPsmay
want to provide for back-up or 3 . :.-.
alternative facilities in their controAs.
J. Manifest Requirements.: , .-^KI.'
One commenter objected to thje-
statement in the preamble to tfiea .
proposed rule (53 FR 48230)7tha₯Bmits.
the requirement to file a'TJnlfbritf1
Hazardous Waste Manifest'1 fbrm%
CERCLA wastes that are also RCRA , .
wastes;- the commenter asked that'the -
requirement cover all types of wastes* : -
The preamble simply noted-thai*- --,
already existing manifest requirements :
under RCRA must be met There is no
manifest requirement under CERCLA,
and this rule does not establish an-
independent trackingsystem; for'.. :;;
CERCLA wastes. Compliance with the'
rule is assured through inspections, and
enforcement of contract provision*.
V. Regulatory Analysis L"'^ "
A. Regulatory. Impact Analysis ;
Under Executive Order No. 12291,
EPA must determine whether a .
regulation is "major" and thus whether
the Agency must prepare'and consider
a Regulatory Impact Analysis in
connection with the rule. Today's rule
is not major because it simply «mHfl««-
an Agency policy that has been in effect
since May of 1985 and largely mirrorr
a revision of that policy that has been
in effect since November of 1987. A*
discussed in the preamble to the
proposed rule (53 FR 48230-48231), this
rule contains criteria that EPA will use
to determine where it will send waste
from Superfund cleanups, but does not
regulate or otherwise impose any new
requirements on commercial waste
handlers. Acceptability under this rule
is largely based on compliance with
applicable regulations the Agency
already enforces. As a result of .today's
rule some facilities may choose to-
initiate corrective action sooner than if
they waited for the corrective action
conditions in their final operating
permit pursuant to RCRA.3004 (u) and
(v). However, regardless of.the
requirements of this rule, under, the
authority of section 3008Ch) of RCRA,
EPA already compels corrective action
at RCRA interim status facilities with
known or suspected releases^ The rule,
then, should not result in increased
long-term costs to the, commeid*! waste
APPENDIX r.REGIONAL OFF-SITE
CONTACTS (ROCs)Continued
B. Regulatory Flexibility Act ; "'"'
Under the Regulatory Flexibility Act
5U.S.C.601s«sso..,atthetimeattv
Agency publishes any
rule, it must prepare a
Flexibility Analysis that <
impact of the rule on small entitles,
unlessjjieAdgdBtsWoy.qarttfiesthat
the rule wiltnot have a significwtv ...
impact on a substantial numberof smallc
entities. Today's final rule describes .
procedures for determining4he< ; 2 i
acceptability of a facility for off-site
.man^ge^ent of QXC1A wastes. It does-
not impose signiflranit' additional .
requixements or compliance burdens on
....> Region'-
use. ^^
"to II
1 jj-jf u ...«««......
' UWt
our - *
vw
nil A in
i***« III *«**
B - . -- '
ay's IV
' .
mil
1U U
ft " ' . '
J -
and
VI ._
s- ;. ...?.: ;-, .:.:
IA, ' ..:. .-..'- .
Son V« .--**.
Ith '.:. .:" -
lib-' .'-
?" VIII .-..
t. " -.».;,-. -i -. .
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unuw -. . -.-. . -
' " ''is.fJT^'"^ -
.- """.''
Ac*V' ' : -. '-; : -;-
***»" . -
flnai ,X "i""~;"r
.
Primary con*
tact/phone
Greg ZaccaroV
(212) 264-
9504.
aaran vesper.
(215)597-
1857.
EdtTMlOr*
Burks, (404)
347-7603.
Qertrud
Malusehkov-
" ItZ, (312)
353-7921.
Ron Shannon;
(214)655^.
228Z ' ',.
GeraUMcKkv
neyr(913),
55lr7816.
Teny Brown,
(303)293-
1823; :
i . ~ ~ '«-..- ,
Diane Bodbie,
(415)744-
2130W .'- --
**
RonUfch;
(206)553-
6646.
-.-' - .
Backup con-
iwnprvn****
Joef
Qotumbeh,
(212) 264-
2638.
Naomi iwrny,'
(215)597- '
8338; -"
JohnrjWdn-
son, (404)
347-7603.
Uytelne^
McMahon,.
(312)686- '--
4445. --
Joe Dougherty;
(214) 655-
228T.
David Doyte,; ,
(913) 551- .
-.7667.
George '
Dandk. -
(303) 293- .
1506.
'Gloria- . .- - "
. Browntey,-
: (415)744^. ...
r. 2114, :,-;
Kevin ""
SchanBae; -
(206)553- --,
1AIK4' 3
1UO1.
List of Snlsctfr in 40 CFR Part 300
mtergover^imentalrelations. Natural
Reorting and _ .
pursuant to 5 U.S£. 6p
this regulation
ri "~
------- *^jr-~ JT r
Water polfutton control. Water supply.
Dated: S*pttm&srl*.;im-
Lcar^fy that;
C. Paperwork Redaction Acf
'ibCFK part '300 is 'amended as
'" '
This rule does not contain any new
information collection requirements .
subject to OMB review under the
Paperwork Reduction Act, 44 U.S.G.
3501, etseq. -
VL Supplementary Document ' ' ^
APPB4DK I. REGIONAL OFF-SITE
CONTACTS (ROCs)
Region
Primer
(617)573-
9662.
PART 300-NATIONAL OIL AND
HAZARDOUS SUBSTANCES
CONTMQENCYPLAN
. 1. The authority citation for part 300
continues to read as follows:
AOdMritjn 42 U.S.& 8601~06S7; 33 U^.C.
1321(cM2): B.0. 12777. 56 PR 54757. 3 CFR.
1991 Comp.. p. 381; B.0. 12580, 52 FR 2923.
3 CFR, 1987 Camp., p. 193.
2. Section 300.440 is added to part
300 to read asfollowe:
j 300^440^ Proeeiteee lor planning end
ttCtlOfM*
Aurtne
.
(617)573-
1754.: >
fa) Applicability: (I) This section
applies to any remedial or removal
action involving the off-site transfer of
any hazardous substance, pollutant, or.
-------
49216F«der»l Rugtoar / Vol. 58, Nor 182 / Wednesday, September 22. 1993 / Rule* and Regulations
contaminant at Haflimd nnA^ CERCLA
sections 101 (14) and (33) ("CERCLA
waste") that is conducted by EPA,
States, private parties, or othav Federal
agenda*, that is Fund-financsViand/or
is taken pursuant to any CERCLA
authority, including cleanups at Federal
facilities under section 120 of CERCLA.
and cleanups under section 311 of the
Clean Water Act (except for cleanup of
petroleum exempt under CERCLA).
Applicability extends to those actions
taken jointly under CERCLA and
another authority. - ' ""'*'?'--
(2) In cases of emergency removal : n '''
actions under CERCLA, emergency
actions taken during remedial actions,
or response actions under section 311 of
the Clean Water Act where the release
. .ft>'
signincant
~uv<-
threat to human health and the
environment, the On-Scane Coordinator
(OSQ may determine that it is necessary
to transfer CERCLA waste off-site
without following the requirements of
this section. ^ ..>,.....:
(3) This section applies to CERCLA'
(ii) RCRA hazardous wastes that are-
being transferred from a CERCLA site
for testability studies and that meet the
requirements for an exemption for
RCRA under 40 CFR261.4(e); and
(iii) Non-RCRA wastes that are being
transferred from a CERCLA site for
treatability studies and that are below
the quantity threshold established at 40
CFR261.4(e)(2).
(b) Acceptability criteria. (1) Facility
compliance, (i) A facility will be
deemed in compliance for the purpose
of this rule if there are no relevant -'
violations at or affecting the unit or"' '^"
units receiving CERCLA wasteV.,"
(A) For treatment to standards ,.' .
specified in 40 CFR part 268. subpart D.
including any pro-treatment or storage
units used prior to treatment;. " -
(B) For treatment to substantially/ -~^ > .
reduce its mobility, toxieityor^ <
persistence in the absence of a defined
treatment standard, including aioy pre* !
treatment or storage un|ts used prior to
(C) For storage or ultimate disposal of
wastes from cleanup actions based on -": CERCLA waste'not treated'to the
CERCLA decision documents signed or
consent decrees lodged after October 17,
1986 ("post-SARA CERCLA wastes") as
well as those based on CERCLA ';;"" -'
decision documents signed and consent
decrees lodged prior to October 17,1986
("pre-SARA CERCLA wastes"). Pr£-
SARA and post-SARA CERCLA wastes ^
are subject to the same acceptability '
criteria fa § 300.440(b) (1) and (2).
(4) EPA (usually the EPA Regional
Office) will determine the acceptability
under this section of any facility >.-/
selected for the treatment storage; or-
disposal of CERCLA waste. EPA wtttrosT
determine if then are relevant releases1
or relevant violations at a faculty prior
to the faculty's initial receipt of ' ^ j
CERCLA waste. A facility which has.-..'.
previously been evaluated and found
acceptable under thia rule (or the- - ''«
preceding policy) is acceptable until the
EPA Regional Office notifies the facility:
otherwise pursuant to S 300.440(6%.
(5) Off-site transfers of those~:- . ,..-
laboratory samples, and treatability
study CERCLA wastes from CERCLA '..
sites set out fa paragraphs (a)(5) (ft -'
through (iii) of *hi« section, are not . ..
subject to the requirements of this .'/..
section. However, those CERCLA wastes
may not be transferred back to the ;.
CERCLA site unless the Remedial
Project Manager or OSCassures the
proper management of the CERCLA : .
waste samples cv residues and gbres^^ -
permission to the laboratory or --.; ;
treatment facility .for the samples and/or
residua* to be returned to the site. ..'
(i) Sample* of CERCLA wastes sent t»
a laboratory for chajcactarizatioj|»; -^- -
previous criteria at Iks-same facility.
(ii) Relevant violations include
dgniflrant deviations from regulations,
compliance order provisions, or permit
conditionadeBigBed to; ensure that - :
CERCLA waste is destined for and
delivered to authorized facilities;
irevent releases ofJu&ardous waste;
permitted roloaset are defined in
§ 300.5), except to the extent that such
releases are found to pose a threat to
human health and the environment: or
(Q Releases to the air that do not
exceed standards promulgated pursuant
to RCRA section 3004(n). or absent such
standards, or where such standards do
not apply, releases to the air that do hot
present a threat to human health or the
environment.
(ii) Releases from units at a facility
designated for off-site transfer of
CERCLA waste must be addressed as
"fellows: - - ,.or--.
(A) Receiving units at RCRA subtitle
C facilities. CERCLA wastes may be
- transferred to an off-site unit regulated
under subtitle C of RCRA. including a
facility regulatedundar the permit-by-
nite provisions of 40 CFR 270.60 (a), (b)
. or (c), only if that unit is not releasing: '
any hazardous waste, hazardous
constituent^ or hazardtiiissubstance into
the ground water, surface witer. soil or
(B) Other tinfo at RCRA subtitle C
-land dispotal facilities. CERCLA waswr -
compel correjc*^jetton
Qiminal violations which result fa
neBVare alaeneisvant violations.
b addftkn. violations of the followfaf
requirements inay be considered
lelovaob ~ -, "
(A) Ap^ficablewibsection* of section*
3004 and 3005 of RCRA oc;'where^
i Toxic Substance* Control Act and:
subtnisDof RCRAh '
- (B) AppUcahle sections of State ;?>>
environmental laws; and .n - .
(C) In addition, land disposal units air
RCRA subtitle C facilities receiving -.,.,
RCRA hasankwa waste from nepons*
actions authorizad or funded under , --,
CERCLA must be fa compliance with ,
RCRA section 3004(o) minimum . ..
equirement*. Exceptiom
if the unit has been
these .
requirement* under 4ft CFR 284.301. -
?2) fltifaasaa. (i) Release is defined in
'
technol
ecnoogy requre
may be made only
granted a waiver fr
section do not!
(A) DemiainUg release*;.
(B) Ralaases pamdtted under Federal
progtams or under Fedenl programs
delegfll»d to tha State*, CFe
may not be transferred to'any unit 'at*c--
RGRA subtitle Cland disposal fadlfty
where anon-receiving unit is releasing'
any hazardous waste, hazardous' '-'7 ''--
constituent, or hazardous substance into
the ground water, surface watar. soil, or
air. unless that release is controlled by
an enforceable agreement for corrective
action under suotiWCI'AfRCRAHBr other
applicable Federal Mutate authBrityvt
For purposes of this section, a RCRA-s
"land disposal facility" is any RCRA-^
facility at which a land disposal unit is
located, regardleesof whether a land^.
disposal unit is die receivmg unit: 'o c
(Q Other units at RCKA subtitle C
treatment,^ storage, oMtf permft^>y-nifa -.
faciMet. CERCLA wastes may not be.
transferred i
subtitle C treatment, storage or permit-
by-rutefacili^,:v>h%reare1eas»ofany
. hazardous waste, hazardous constituent,
or hazardous substance from non*
receiving units poses a significant threat
to public health or the » »i nimnmnt,
unloss that release is controlled by an
enforceable agreument for cuirective
action under subtitle C of RCRA or other
applicable Federal or State authority. .
(D) All other facilities. CERCLA
wastes should not be transferred to any
unit at an other-than-RCRA subtitle C
facility if tb* EPA Regional Office ha»
hazardous substances has occurred at
thai facility, union the release is
contioUsd by an
FederalorStatoauthority*
applicabia>
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Federal gqgfater / Vd. 58, No. 182 / Wednesday,. September 22. 1993 7 Rnlea and Ragoiatiaa*49217
(iii) Releases are considered to be
"controlled" for the purpose of this
section as provided In § 300.440
(f)(3)(rv) and (fX3Uvf:A release is not
considered "controjiidr for the purpose
of this section during, the pendency of
administrative or j^jJHftl challenges to
corrective action requirements, unless
the facility has made the requisite
showing under §300.440(e).
(c) Basis for determining
acceptability. (1) If a State finds that a
facility within its jurisdiction is
operating in non-compliance with state
law requirements including the
requirements of any Federal program far
which the State has been authorized.
EPA will determine, after consulting
with the State as appropriate, if the
violation is relevant under tin rule end
if so, issue an initial determination of
unacceptability.
(2) Ifa State finds that releases am
occurring at a facility regulated under
State law or a Federal program for
which the State is authorized, EPA will
determine, after consulting with the
State as appropriate, if the release is
relevant under the rule and if so,'
an initial determination of
unacceptability.
(3) EPA may also issue initial
on its own
any inspection*
EPA can
collection and/or
assessments necessary. EPA will then.
notify with the State about the results
.and issue a determination notice if a
relevant violation or release is found. .
(d) Determination of unacceptability.
(1) Upon initial determination by the
EPA Regional Office that a nullity being
considered for the off -site transfer of any
CERCLA waste does not meat the. ...
criteria for acceptability stated to:',
§30a440(b). the EPA Region snail,'..
notify the owner/operator' of such', ^v
facility, and the responsible agency in
the State in which me facility is located.
Of the '""TTM-^M+y finrftng Th»
notice will be sent by certified and fin*- .
class mail, return receipt requested. The
certified notice. If not acknowledged by
tho ration Mfnip* j-art^ fTioiiI/-| fra.
considered to have heon leceivad by the -
addressee if properly sent by regular
mail to thf l««t address known to *^*a
EPA Regional Office.
(2) The notice shall generally: state
that based on available information from
a RCRA Facility Assessment (RFA).
inspection. "> nt)u»f data
facility has been found not to meat tha'
requirements of 5 300.440; dte the :
specific acts, ««»««4««<«m^ or rrr"^^">v*
which form the basis of these findingar
anH inform
(3J A facility which was previously
oi/aliiotad «vrf found afrapfafrfr iinAtr .
this rule (or the preceding policy) may .
continue to receive CERCLA waste for
60 calendar days after the date of '-
issuance of the notic*, unless otherwise
determined in accordance with
paragraphs (d)(8) or (d)(9) of this
section.
(4) If the owner or operator of the
facility in question submits a written .
request for an informal conference with
the EPA Regional Office within 10
calendar days from the issuance of the
notice, the EPA Regional Office snail
provide the opportunity for such
conference no later tnan 30 cfllOT jflf.
days after the date of the notice, if ~r,f
possible, to discuss the basis for, the
underlying violation or release :.
determination, and it& relevancetolhe
facility's acceptability to receive'
CERCLA cleanup wastes. State. ,. -
representatives may attend the informal
conference, submit written comments
prior to the informal conference, and/or'
request additional meetings with the
EPA Region, relating to the - .,. .t
unacceptability issue during the -
determination process. If no State, ,,s
representative is present. EPA Auk*.-.
notify the State of the outcome of the.:
conference. An owner/operator may
submit written comments' by the 30th,
day after issuance of die notice, in
addition to or instead of requesting an
informal confiBrence*, ' * *
(5) If tin uwuei or operator neither^
an informal confen
unto written comments, the fadHty
becomes un *" *«p<*t _>i* to leueive. . '.
CERCLA waste on the 60th day after the:
notice is issued (or on such other date
paragraph (H](Q) of
this section}. The facility will remain .
unacceptable until each time.asjtiba BPA
Regional Office notifies the owner OE
operator otherwise. ., -; .'
(6) If an internal conisnooe is held
or written comments are received, thev ';
EPA Region shall dedda whether or not
the information provided is suffidaat to-'
show that the facility is operating in
physical compliance with respect to the
relevant viowtoae cited in the initial
notaoe of unscceptability, and that all
or controlled, as required in pungrapk
(b)(2) of this section, such that a
determination of acceptability would be
appropriate. EPA will notify the owner/
operator in writing whether or not the
tntnrmmttfm prfuHrtnH la miffiriant faf '
Support a >l«<*""l'v«Hnn of
acceptability,. Unless EPA drtflrmines .
provided by the ownarf
State is su
procedural recourse available under this-
operator and the
lBcisnt to,
aoceptabiltty^the Ssnliry bacomes
3 acceptable on the
ATtth i
unacceptability (or other date
establisned pursuant to paragraphs -
(d)(8) or (dX0) of this section).
(7J Within 10 days of hearing from the
EPA Regional Office after the iniannal -
conference or the submittal of written
comments, the owner/operator or the-
State may request a reconsMtoration of
the unacceptabiliry determination by
the EPA Regional Administrator (RAJ. -
Reconsideration may be by review of the-.
record, byconfarence. or by other means-
deemed appropriate by the Regional
i does not -
beyond the OHiay period. The ownae/
opensor will nceiva notice in writing of
the decisioBof theRA^-
(8) The fiPAiiagiaDal Administrator: "
may dedde to extend th*60*iay period
if mocetimB'laiwaAmdto revtow a :--
submisatoeB Hie teefifty owner/opentor
shall be notified in writing if the .
Regional ArfmhilXieiot eJOauds the «8
'days. ='. - :- -.--' - -: - :. -
(9) The EPA Regional Office snay - ~
deddettat a fatUttyH unacceptability:ts--:
immediately effecAirg (or effeetire ta
less thm 90 days) to extraordinary- /
situations such as. bnt' not limited tdt ;'.
emeigeDcies^ et the favijiry or egregious*
violations. The EPA Region shali notify
the ndnty ownerrobeiaUjs of the date of
(e) Unacceptability during
admiidstrothff and judicial challenge!
o/coi'fBcl/ve action 'rfeciaons. For a
facility with rettese^that are subject to
a corrective *tf *fiH permit, oiuAf, or
decree, an '* Tiffl i fll iyij of jndicial-. . ~
cbailease to the corrective action (or ;'*
' odificttibn
shall not be considered' to be part of a
ti
those releases eMAatt not act to stay
a determination of unacceptafailny
under this row However, such faciuty
niey TeHsafo acceptBDle to receivB
CERCLA waste during the pendency of
the appeal or litigation if:
(1) It satisfies the EPA Regional Office .
that adequate interim corrective action
O-ffB-tllHI-ff flt tiiW XKCiDtK Of
(2) ft demonstrates to the EPA
taVa COmctTfQ BtUlHl «turi»H th« short-
term, niterlm period.
during the 60-day review period ia the
rnpto^f Iff tH^JP"?*PMd C"T]fil»fllMO» «n«t -
iptabilityaad
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49218 Federal Register / Vol. 58. No. 18Z 7 Wednesday, September 227 1993^ f Rules and Regulations
the opportunity to confer as described
in §300.440(d). the facility remains
unacceptable, the faality.can regain
acceptability. A facility found to be
unacceptable to receive CERCLA wastes
based on relevant violations or releases
may regain acceptability if the following
conditions are met:
(1) Judgment on the merits. The
facility has prevailed on the merits in an
administrative or judicial challenge to.
the finding of noncompliance or
uncontrolled releases upon which the
unacceptability determination was -:
based, .
(2) Relevant violations. The facility
has demonstrated to the EPA Region its
return to physical compliance for the
relevant violations cited in the notice.
(3) Releases. The facility has. ... :
demonstrated to the EPA Region that:
(i) All releases from receiving units at.
RCRA subtitle C facilities have been,
eliminated and prior contamination :
from such releases is controlled by a
corrective action program approved
under subtitle C of RCRA; -
(ii) All releases from other units at
RCRA subtitle C land disposal facilities
are controlled by a corrective action
program approved under subtitle C of
RCRA; .--,... ..._K ^
(iii) All releases from other units at
RCRA subtitle C treatment.and storage
facilities do not pose a significant threat
to human health or the environment, or
are controlled by a corrective action-:
program approved under subtitle C of
RCRA.
(iv) A RCRA subtitle C corrective .
action program may be incorporated
into a permit, order, or decree. ....
including the following: a corrective^
action order under RCRA section ;jT .
3008(h). section 7003 or section 3013, a ,
RCRA permit undergo CFR 264.100 or
264.101, or a permit under an
equivalent authority in a State
authorized for corrective action under
RCRA section 3004(u). Releases will be ,
deemed controlled upon issuance of the
order, permit, or decree which initiates
and requires completion of one or more
of the following: a RCRA Facility
Investigation, a RCRA Corrective
Measures Study, and/or Corrective
Measures Implementation. The release .
remains controlled as long as the facility
is in compliance with the order, permit.
or decree, and enters into subsequent
agreements for implementation of
additional corrective action measures
when necessary, except during periods
of administrative or judicial challenges.
when the facility must make a
demonstration under § 300.440(e) in'
order to remain acceptable.
(v) Facilities with releases regulated
under other applicable Federal laws, or
State laws under a Federally-delegated
program may regain acceptability under
this section if the releases are deemed -
by the EPA Regional Office not to pose
a threat to human health or the
environment, or if the facility enters
into an enforceable agreement under
those laws to conduct corrective action
activities to control releases. Releases
will be deemed controlled upon the
issuance of an order, permit, or decree
which initiates and requires one or more
of the following: a facility investigation,
a corrective action study rand/or'-
corrective measures implementation.
The release remains controlled as long
as the facility is in compliance with the
order, permit, or decree, and enters into
subsequent agreements for
implementation of additional corrective
measures when necessary, except
during periods of administrative or
judicial challenges, when the facility
must make a demonstration under
§ 300.440(e) in order to remain .
acceptable;
(4) Prior to the issuance of a'
determination that a facility has:..'
returned to acceptability, the EPA
Region shall notify the State in which .
the facility is located, and provide an
opportunity for the State to discuss the
facility's acceptability status with EPA.
(5) An unacceptable facility may be
reconsidered for acceptability whenever
the EPA Regional Office finds that the
facility fulfills the criteria stated in
§ 300.440(b). Upon such a finding, the
EPA Regional Office shall notify the
facility and the State in writing.
[PR Doc. 93-23Q69 Filed 9-21-93; 0:45 am)
MLUNO COOB «MO B) 9
DEPARTMENT OF HEALTH AND
HUMAN SERVICES -
Administration for Children and -.( .
Famllie*
45 CFR Parts 205 and 233
RIN0970-AB14
Aid to Families With Dependent ,
Children Program; Certain Provision*
of the Omnlbua Budget Reconciliation
Act of 1990
AGENCY: Administration for Children
and Families (ACF), HHS.
ACTION: Interim final rule.
SUMMARY: These interim final rules
implement three sections of the. ~
Omnibus Budget Reconciliation Act
(OBRA) of 1990 that apply to the Aid to
Families with Dependent Children.
(AFDC) program. They are: Section
5053. which deletes all references to
income deeming by legal guardians in
minor parent cases; section 5054. which
expands State agency responsibility for
reporting, to an appropriate agency or
official, known or suspected '""*""rem
of child abuse and neglect of a child
receiving AFDC; and section 5055,
which adds an explicit reference to title.
IV-E on the list of programs for which
information about AFDC applicants and
recipients may be made available.
In addition, we deleted the reference
to title IV-C since the WIN program is .
no longer operative. Other OBRA 90
changes pertaining to the AFDC-OP
program and the Earned Income Tax.
Credit disregard were published July 9;
1992, in the final rules implementing
the related AFDC amendments of the
Family Support Act of 1988 (57 FR>
30408-30409).
DATES: Effective Date: September 22,
1993; --.:.
Comments: Comments must be
received on or before October 22.1993.=
ADDRESSES: Comments should be. ~
submitted in writing to the Assistant;.
Secretary for Children and Families; "
Attention: Mr. Mack A. Storrs, Director.
Division of AFDC Program. Office of'
Family Assistance. Fifth Floor. 370=
LTntant Promenade. SW., Washington.
DC 20447. Comments may be inspected
between 8 a.m. and 4:30 p.m. during
regular business days by making
arrangements with the contact person
identified below;.
FOR FURTHER MFORMATON CONTACT:
Mack A. Storrs. Director. Division of
AFDC Program, Office of Family .
Assistance, Fifth Floor. 3701,'Enfant
Promenade, SW., Washington. DC
20447, telephone (202)401-9289."'"
SUPPLEMENTARY WFOMIATWN:
Discussion of Interim Rule Provisions
Eliminating the Use of the Term^LegaJ .'-
Guardian" (Section 233.20 of the
Interim Rule)* :.. - -.;,.:,-.::
The Omnibus Budget Reconciliation
Act (OBRA) of 1981 addeoVsection
402(a)(39) of the Social Security Act to
require that, in-determining; AFDG;;- ;
benefits for a dependent child whose"
parent or legal guardian is under the age
of 18. the State agency must include the
income of the minor parent's own
parents or legal guardians who are
living in the same home.
Section 5053 of Omnibus Budget
Reconciliation Act of 1990 (OBRA 90)
amended section 402(a)(39) of the Social
Security Act by eliminating the use of
the term "legal guardian." Section
402(a)(39) provides that in determining
AFDC benefits for a dependent child '
whose parent is under the age of 18. the
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