UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
SEP 2 7 1993
OFFICE OF
SOLIO WASTE ANO EMERGENCY RESPONSE
MEMORANDUM
SUBJECT: Off-site FGH& Implementation,
FROM: Bruce
Office^TWastc Programs Enforcement
TO:
Hazardous Waste Management Division Directors,
Regions I-X
Environmental Services Division Directors,
Regions I, VI, and VII
Emergency and Remedial 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
-------
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
Terri Johnson, OERR
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Policy and Rule Differences
Issue
Current Policy
Final Rule
Responsible
fegency
Definition on page 7.
Clarifies thai EPA maintains overall authority over final determination with State
participation and support
Applicability to
wastes generated
by RCRA
§7003 actions
Covers this issue. "
Does not apply the off-site management criteria.
Violations that
cannot be undone
Not addressed, but
implement Bruce Diamond's
8/29/88 memo.
Incorporates Bruce Diamond's memo requiring settlement of legai and financial obligations
before regaining acceptability.
Definition of
de minimus
releases
Defines accumulation of-" -
1 gallon/acre/day or less
between landfill liners
to be de minimus.
~ Further defines da mmimus and"corrects policy deffrabonby stating" thaflhe accumulation
of liquid between liners that are controlled by leachate collection systems does not involve <
release to the environment'
Pre-SARA vs.
Post-SARA
Makes a distinction.
Eliminates the distinction.
Review of
Unacceptability
Assessment
Grants Regional Admini-
strator or State official
discretion to provide or not
provide such review.
Gives facility a right to have unacceptability assessment reviewed by Regional
Administrator.
Judicial or
Administrative
Chalteriges to
Corrective Action
Requirements
Not addressed.
Facilities remain '.'narreptabte during judicial or administrative cha'leryjes to corrective
action requirements, unless interim steps are taken (i.e., an interim agreement may be in
place with Stale, making iactiity acceptable during this perioo).
Aab Samples
pnd Treatability
Samples
Not specifically
addressed.
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(c), 'Treatability Studies Sample Exemption.'
Criminal
Violations
Discretion should be
used when determining
what criminal violations
are relevant violations.
Criminal violations are relevant where an indictment is issued.
POTWs
Refers to another EPA policy.
Addressed.
Uninspected
Facilities
Not specifically
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.
Release
To Air
As addressed by
§101(22) of CERCtA
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 21,1990.
Inspection
Frequency
Compliance inspection
required 6 months prior
to receipt of CERCLA
waste.
Inspection frequency removed from rule but addressed in preamble.
-------
United States
Environmental Protection
Agency
EPA 9834.11 FSa
September 19,1993
Solid Waste and Emergency Response
&EPA Environmental
Fact Sheet Update
PROCEDURES FOR PLANNING AND
IMPLEMENTING OFF-SITE RESPONSE
ACTIONS
BACKGROUND 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 § 121 (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 The off-site rule 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.
National Toli-Free: (800) 424-9346
Washington, DC area (703)920-9810
For the Hearing Impaired (TDD) (800) 553-7672
(703) 486-3323
Please send written requests to:
Superfund Docket (OS-245)
U.S. Environmental Protection Agency
401 M Street, SW
Washington, DC 20460
FOR MORE IN-
FORMATION
-------
CRITERIA 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
NOTIFICATION 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 The Off-site Rule is very similar to previous policy, with only a few differ-
FROM POLICY ences rale:
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
t
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.
Contact the appropriate ROC
Immediately prior to sending wastes off-
site to ensure the receiving facllty Is
acceptable.
Wastes that are treated on-site are
still subject to the rule when transferred
off-site.
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
Region 3 Sarah Caspar (215)597-8174
Region 4 Edmund Burks (404)347-7603
Region 5 Gertrude
Matuschkovilz (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 9834.11F-'
Environmental Protection September 199
Agency
Solid Waste and Emergency Response
EPA 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 CE RCLA 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 procecjres. 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.
It you have any questions regarding the Off-
site Rule, contact Ellen Epstein at (202)260-
4849.
-------
Federal Register / VoL 58; No. 182 / Wednesday, September 22, 1993 / Rules and Regulations 49199
approved the State approving-
agency finds that-the briefings and
critiques are an integral part of the
course and do not praeeoe or follow
solo flying hours whfcefr exceed the
minimum number ofsolo flying hours
for the course in 14 CFR 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 3(4)2, 2452(b); 10 U.S.C
2131) :/ j
(4) Waiver of limitation in approvabh
course hours, (i) Flight schools that
wish to have a greater ^umber 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 approved 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 flight school. The
request should—
• • • "" ' 0l » "
(iii) The limit on the pumBer 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(f), 3231(f); 10/
U.S.C 2131(g)) .. . |
(i) Charges. The appropriate Statd
approving agency shall: approve charges
for tuition and foes for each flight bourse
exclusive of charges fbi tuition and fees
for solo flying hours wkich exceed the
maximum permitted under paragraph
(h)(l)(i) of this section and for pyeflight
briefings and postflight critiques which
precede or follow the' excess quo hours.
* • ' « , • I
(FR Doc. 03-22964 Filed 9-ttTO; 8:45 am]
BiLUNS COOK CStS-OMMf
ENVIRONMENTAL PROTECTION
AGENCY
40 CPR Part 272
[FRL-469»-«]
Hazardous Waste Management
Program: Incorporation by Reference
of Approved State Hazardous Wast*
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 Pinal 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; hi accordance with
5 U.S.C 532(a) and 1 CFR part 51.
AD0RE8SES: 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 REFORMATION CONTACR
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 MFORMATION:
Background
Effective April 24,1989, and May 29, "
1990,~£PA incorporated by reference
Wisconsin's than 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 and
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
enhimce 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
. -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
analysis.
Compliance WTthExecntive Order
12291
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.C 3501 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 CTR Part 272
'' Administrative practice and
procedure, Confidential business,
infbrtiiatian; 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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49200Federal Register / Vol. 58, No. 182 / Wednesday, September 22. 1993 / Rules and Regulations
Authority: Sees. 2002(a). 3006, and 7004(b)
of the Solid Waste Disposal Act; at amended
by the Resource Conservation and Recovery
Act. 42 U.S.C. 6912(a), 6926; and 6974(b):
2. Section 272.2500, Stat»
Authorization, is removed.
3. Section 272.2501 is revised to read
as follows:
§2724501 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 6,1989, January 22,1990, and..
April 24,1992.
State Statutes and Regulations
(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.
6921etseg.
(1) EPA Approved Wisconsin
Statutory Requirements Applicable to
the Hazardous Waste Management
Program, (dated August 9,1993).
(2) EPA Approvea 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:-
(lj Wisconsin Statutes, Volume V- c
§§ 19.21; 19.31; 19.32(2) and (5);
19.35(3) and (4); 19.38; 19.37(1) and .(2);
Wisconsin Statutes, Volume 3, .
§§144.89-144.72; 144.73-144.74;
144.76(2) and (3); Wisconsin Statutes
Volume 4, §§ 227.07; 227.09; 227.14;
227.51; and Wisconsin Statutes, Volume
5, §803.09 (1985-68).
(2) Wisconsin Administrative Code,
Volume 1, S NR: 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 272—State-
Requirements
MISSOURI
WISCONSIN
The statutory provisions include:
Wisconsin Statutes, Volume 3, Sections:
144.01; 144.43-433; 144.44 (except
144.44(4Ha)); 144.441(1H2); 144.441(3) (b),
(f). and (g); 144.441(4) (a) and (cHg);
144.441(6); 144.442(1), (4H11); 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,
§ NR 600.01-400.04(2); 600.06; 600.3-600.11;
605.02; 605.04-60S.il; Appendix D, ffl, IV
and V; 610.01-610.09(2); 615.01-
615.13(2)(b); 620.01; 620.04-420.10(3):
620.14; 625.04(4); 628.05(l)-625.07(7)(c)12;
625.12(1) and (2); 630.02; 630.04-
630.40(3)(c); 635.02; 635X»-63B.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(1)(a)(l)-645.17(l)(a)3.e; 650; 655.02; ;
655.05-655.13(13); 660.02; 660.06-660.20(2);
66502; 665.05(l)-669.10(2); 670.06- .
670.11(2)(d)3; 678.01-675.30(6); 680.01-
680.51(5); 685.02; 68S.05-«85.08(13)(b).
[FR Doc. 93-23071 Filed 9-21-03; 8:48 am) ? •
40 CFR Part 300
[FRL-3718-71
RIN20S0-AC3S
Amendment to the National Oil and
Hazardous Subatancee Pollution .
Contingency Plan; Procedures for
Planning and Implementing Off-Site
Response Actions
: AGENCY: Environmental Protection -"
Agency (EPA). , ,
ACTION: Final rule. ' ¦
SUMMARY: The U.S. Environmental - ,r-c -
Protection Agency (EPA) is today
amending the National Oil and •
Hazardous Substance Pollution
Contingency Plan ("NCP"). Today's1
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 con*""**"""** (hereinafter "
referred to as "CERCLA wastes")
resulting from CERCLA decision
documents signed after the enactment of
SARA (Lb., after October 17,1988). This
rule also makes these procedures
applicable to off-site management of^
CERCLA wastes resulting from CERCfl
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
legislative veto of regulations
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 calla the effective
date of this regulation into question,
EPA will publish notice of clarification
in the Federal Register.
ADORE88E8: The official record for this
rulemaking is located in the Superfund
Docket, U.S. Environmental Protection
Agency (OS-245), 401M Street SW.,
room 2427, Washington, DC 20460 (202/
260-3048) and is available for public
inspection from 9 a.m. to 4 p.m.,
Monday through Friday, excluding
holidays. The docketnumber 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)
280-4849, or the RCRA Superfund
Hotline (800) 424-9346 (or (703) 920-
' 9810 in the Washington. DC,
~ metropoHtanarea).'' * !
8UPFlEMBfTARV WFORMATKM:
^ Table of Contents '
L Authority
IL Introduction
OL Background
IV. Discussion of Final Rule
A. Applicability
1. CERCLA "Wastes Affected
L Laboratory Samples
1L LDR Residues
ill Clarification on Subsequent Transfers
of CERCLA wastes
2. Actions Affected
i. Enforcement Activities'-
iL Actions under CERCLA Section 120
liL Federally-permitted releases
iv. Definition of Site
3. RCRA Section 7003 Actions
4. Removals
5. Pre-SARA v. Post-SARA Actions
B. Determining Acceptability
1. State Role
2. BPA's Role
3. Disputes between States and EPA
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Federal Register / Vol. 58, No. 182 / Wednesday, September 22, 1993 / Rules and Regulations49201
4. No Cooperative Agreement Requirement
5. Facility Acceptability Statu*
C Determining Acceptability—Compliance
Criteria fJ:,_
1. Inspection Requirements „
2. Receiving Unit '-£>-7 •
3. Facility ^
4. Relevant Violation*
5. Minimum Technology Requirement*
(MTRs)
6. Facilitie* Operating Under a RCRA
Exemption and Non-RCRA Facilities
D. Determining Acceptability-Release*
1. Identifying Releases - -
2. De Minimis Release* '
3. Release*to the Air uns r,:)i=?s-..-s
4. Other Releaser " • - nn
E. Notification of Acceptability , r-'
1. Management Options fipx laudks-.
Acceptability. _ —
2. Potential Unacceptabilily
F. Review Procedures ciJ.
1. Agency Response Tims" _
2. Notification of Immediate
Unacceptability'
3. Potentially Responsible Parties1
G. Due Process Issues - ~
1. Potential Loes of Business ' -' ^
2. Payment of Penalties
3. Review of Determination Decision
~. Review Procedures. . . -
5. Notification of Decisions, - - - ,
H. Re-evaluation, of Unacceptability
I. Thresholds/Enforceable Agreements
2. Corrective Action/Controlled Releases
3. Releases and Regaining Eligibility
4. Regaining Physical Compliance at
Treatment and Storage Facilities
I. Implementation ' ' •* :.
). Manifest Requirements
V. Regulatory-Analysis - •»
A. Regulatory Impact Analysis.
B. Regulatory Flexibility Act
C Paperwork Reduction Act
VL Supplementary Document
I. Authority = . ;
Sections 104(c)(3f. 10^. and 121(d)(3)
of the Comprehensive Environmental
Response. Compensation andL^biij^y
Act of 1980 ("CERClA'OV as amended
by the Superfund Amendments and
Reauthorization Act of 1086 ("SARA")
(42 U.S.C. 9604(c)(3). 9605. 9621(d)(3));
section 311(c)(2) of the Clean Water Act
(33 U.S.C. 1321(c)(2)); Executive Order
12580 (52 FR 2923, January 29.1987);
and Executive Order 12777 (56 FR
54757, October 22.1991).
IL Introduction
- \ • . . •
Today's final rule amends the
National Oil and Hazardous Substances
Pollution Contingency Plan ("NCP"). 40
CFR part 300, by adding a new
§ 300.440. The May 1985 off-site policy
(50 FR 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.
The purpose oI this off-site regulation
is to avoid having CERCLA wastes from
CERCLA-authoriied 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 to ensure, the proper,
treatment, and disposal of CERCLA
wastes remove^ irPfB a CERCLA site.
EPA'Believes th^t the process setout in
this rule for cusuriag.uuLCEBCLA
wastes an transferred, only.to properly-
permitted facilities that have po relevant
violations or uncontrolled releases, •
assures that the receipt of CERCLA
waste will not pose adverse eSects on
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 liability by establishing
critflris governing tfre.pff-gila transfer of
CERCLA wastes from CERCLA-
authorized^or^funded responseQCggns.
The rule shouldalso help to ensunUhat
off-site transfer decision^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.t-
section'lQ4(a)(l)).
. Today'# final rule implements the
requirements of section 121(d)(3) of f,
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 Recovenr
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
receive CERCLA wastes from CERCLA
authorized or funded response actions,
including RCRA treatment, storage, and
permit-bv>-rule facilities, and any non-
RCRA subtitle C facilities (such as
subtitle D facilities or facilitie*
permitted to receive hazardous
substance wastes, under the Toxic
Substances Control Act (TSGA)) >. 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 pe!is$i &wouldalsa serve to
furtheMhe goals .reflected in£ERCLA
section 121(d)(3). -
Similarly, although SARA section
121(b) provides that CERCLA section
121 (and thus section 121(d)(3)) applies
to actions arising from post-SARA
decision documents only,2* EPA believes
that it is logical and appropriate to
applv.this rule to CERCLA wastes
resulting from two other categories of
similar cleanup actions: those
authorized-,unaer CERCLA before the
enactment of SARA,and those u. . -
performed undsrthe National. -
ContingeotqfiPlan-pursiMakto section
311'oLtW€le&n water Aot-(for non-
petroleum products). Accordingly, this
rule applies to a number of situations in
addition to thope expressly set out in
section. 121(d)(3) of CERCLA.
Today's final rule establishes the
criteria and, procedures for determining
whether facilities are acceptable for the
off-s to receipt of CERCLA ;«tpste from
CERCLA-authorized or -funded
response actions and outlines the
CERCLA wastes and actions affected by
the criteria. It establishescompUance
criteria andrelease.critariak.andi >•*""
establishes a process, for determining
whether facilities are acceptable based
on those criteria* Theirule leaves the
final decision of offrait&acGeplability
with EPA, after providingthft? ^
opportunity, for, and.encoureging,
substantial consultation with the State
in which the off-site facility, iis located.
' . v
rscaiva CEK£LA*wajtaa is ba*«{ obcompliance
and releua flndlngs. As with a RCRA facility, tha
compliance finding at a TSCAfadiityhiagMoa tha
abstoca of raiavant violation* at o» aflacttng tha
racaivtng unit Tha nlnaw finding fara TSCA
facility b bawd on tha piwauca or abwnca at
mriionmaoully •'flr'Ar—~ rolaase* anywhere at
tha facility (Lai, not fust at tha receiving unit). Such
rsiasaas must ba adanued by comtiire action
under a Stata or Pedaral program.
» Sactta 13lQ>Xl) of SAKA provide* thai tha
requirement* of CERCLA (action 121 (hell not
apply to any remedial action far which tha Record
ol Dacliton ("ROD") wu rignad. or tha cocMnt
dtciM lodndkbsfanthiditiofinicttMBt of
SARA. SAKA Section 121(bX2) provide* that if an
ROD was signed. or ronwnt daosa lodged. within
tha 30-day period after enartram of SARA, (ha
nmadial action ihonld comply with CERCLA
•actioo 121 to the maximum agdant practicable.
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49202 Federal Register / Vol. 5g. No. 182 / Wednesday, September 22, 1993 i Rules Regulations
The final rule outlines the State's role in
the off-site acceptability determination
and ensures that States wilt remain
active participants in the -
decisionmaking process. The rule also
establishes procedures for notification
of unacceptability, appeals of
unacceptability determinations, and re-
evaluation of unacceptability
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.
III. 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(dK3) 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
Federal-law, 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
reauirements, updated the 1985 Off-site-
Policy, and provided detailed
procedures for issuing and reviewing
unacceptability determinations.' ¦ -
The Agency proposed amendments to
the NCP on November. 29,1988 (53 FR,
48218) to implement the requirements
of CERCLA section 121(d)(3), and to .add
certain appropriate requirements •_
contained in the Off-site Policy. EPA _
received over 75 specific comments on
the proposed rule and has carefully ..
analyzed those comments and made
changes as appropriate in promulgating..
today's rule. Today's final rule (the
"Off-site Rule") implements and
codifies the requirements contained in
CERCLA section 121(d)(3), and
incorporates many provisions of the Off-
site Policy. Specific responses to the
comments received are set out below, or
in the "Comment-Response Document"
to this rule, which is available.from the. '
Sujjerfund Docket , >t.
IV. Discnssion of Final Rule
'• The Off-site Rule generally provides
thSt a facility used for the on-site
management of CERCLA wastes must be
in physical compliance with RCRA or
other applicable Federal and State laws.
In addition, the following criteria must
be met:
• Units receiving CERCLA wastes at
RCRA subtitle C facilities must not be
releasing any hazardous wastes,
hazardous constituents or hazardous
substances:
• Receiving units at subtitle C land
disposal facilities must meet minimum
technology requirements;
• All releases from non-receiving
units at land disposal facilities must be
addressed by a corrective action
program prior to using any unit at the
facility; and
• Environmentally significant
releases from non-receiving units at
• For additional dlscunion on tha background of
thii ml*, tea tha piopoaad nil* at S3 FR 43219-20
(Novate 29, IMS).
Subtitle C treatment and storage
facilities, and from all units at other-
than-Subtitle C facilities, must also be
addressed by a corrective action
program prior to using any unit at the
facility for the management of CERCLA
wastes.
The Rule provides procedures for EPA
to notify the facility if EPA determines
that the facility is unacceptable. It also
provides an opportunity for the owner/
operator to discuss the determination
with the appropriate government
official, ana if still unsatisfied, to obtain
a review of the determination by the
Regional Administrator.
The following discussion of today's
rule describes the new § 300.440
' requirements and responds to public
comments received on the proposal.
Two major changes have been'made
from the proposed rule as a result of the
comments received: (1) EPA—not the
States—will make the final''
determinations as to whether off-site
facilities are "acceptable" under this
rule to receive CERCLA wastes, with.
States being active participants during
the decision-making process, and (2) the
distinction between criteria for CERCLA
wastes resulting from pre- and post—.
SARA decision documents has oeen
removed. These changes, as well as
other comments received on the
proposed rule, are discussed below.
A. Applicability .
1. CERCLA Wastes Affected'
i. Laboratory samples. The proposed
rule provided that the transfer of
CERCLA site samples to an off-site
laboratory for characterization would:
not be subject to the rule based on the
small size of lab samples, the need for
prompt and frequent laboratory . . .
analysis, and the high level of.:
confidence that lab samples—-due to
their value to the sending facility—will
be properly handled (53 FR 48220).
Several commenters contended that the
exemption should be enlarged, such that
off-site requirements would also not
apply to sample shipments from labs to
ultimate disposal or treatment facilities.
The commenters argued that requiring
labs to segregate the small volumes of
CERCLA wastes sent to labs for analysis
for separate handling under the Off-site
Rule would be burdensome, and
unnecessary to protect public health. A
number of commenters also questioned
the wisdom of preventing labs from
sending tested samples back to the site,
as is common practice. EPA has
evaluated these comments, and agrees
that it is not necessary to require
transfer of lab sample CERCLA wastes
from labs to meet tne full requirements
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Federal Register / Vol. 58, No. 182 / Wednesday, September 22. 1993 / Rules and Regulations49203
of this rule for reasons discussed above
and in the preamble ta the proposed
rule. However, today'gruls 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 CERCLAwastes. 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 inay 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"and gives
permission for the sample to be returned
to the site.'
One commenter requested that a
sinular 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 •;. Vs
wastes will be property handled and
managed, and tnat 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 witbthe 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 sant off-site
for treatability studies ana that meet the
requirements for an exemption from
RCRA under 40 GFR 261.4(e), are also
exempt from today's rule. CERCLA
wastes, residues and other materials that
are not RCRA hazardous wastes
resulting from treetability 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 ana
that are below the quantity thresholds - -
established in the Treatability Studies.....
Sample Exemption Rute are similarly
exempt frdm the requireinents 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
posed a hazard. EPA maintains that
RCRA hazardous wastes or waste ^
residues meeting LDR treatment
standards are stflT considered hazardous
under RCRA; unless they no longer
exhibit a characteristic of hsardous
waste, or if appropriate, are delisted.
Moreover, even if a CERCLA waste
meeting LDR treatment standards is
found not to be a RCRA hazardous
waste, it may stiU-be CERCLA waste. -
Under today's rule, CERCLA waste that
is
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49204 Federal Register / Vol; 58, No. 182 / Wednesday, September 22, 1993 / Rules and Regulations
agency-lead CERCLA actions taken at
NFL sites. _
In response, EPA does fake CERCLA
actions at private facilities giat are not
on the NPL (e.g., enfoiramenCactions
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 on-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 (ana the larger
Federal facility or installation) meet the
requirements of this rule.
lii. Fedemlly-Dermitted 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-
permitted releases," as defined in NCP,
§ 300.5 (1090 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 not be ^
considered to be "Federally permi'tfed"
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 (53
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 wine 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 '
Agency policy and the goals of CERCLA
section 121(d)(3). It also
consistency with practices under the
NCP in its handling of Federally- :
permitted releases. For example, theT
Agency lists certain sites on tne NPL
where an "observed release" has been"
documented, even if that release was
. Federally permitted and was within
regulatory limits (47 FR 31188. July18;
1982; 48 FR 40865, September 8,1983). -
• • -IV. Definition of she. One commenter'"
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 tne cleanup. ' :" s
- 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'1.".
contamination necessary for "
¦ implementation of the response'action,"*'
40 GFR 300.400(e)(1) (1990); this "
'additional space would be available for .
treatment systems that require ' ulJ."
considerable area for construction, and ^
for staging areas. Areas not, covered by '
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 (tne
"waste portion" of the site) had releases
that ware not yet controlled for
purposes of this 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
commentera 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 commentera asked that the
language be-modified to confirm that
private parties, as well'as goviBrninent
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 cnange. However,
the 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 avoia the
. possibility of ai responsible party
abusing the emergency exemption in
order to use unacceptable off-site
facilities which may be less
environmentally sound. Note that the
Off-site Rule only applies to private
parties engaged in response actions that
are funded or ordered under CERCLA.'.
- 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
u&ed 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
offcite before an off-site facility's
acceptability may even be reviewed.
5. Pre-SARA v. 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, 1993- / Rules and Regulations 49205
different off-sita-requirements were
applied to CERCLAwasMs, depending
upon whether the CERCLA decision
document was signedpre- or post-SARA
(S3 FR 48220). One«ammenter argued
for eliminating the-bonftising
distinctions between pre- and post-
SARA CERCLA wastes. Although the
statute applies only to post-SARA
decision documents, the co mm enter
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-sit*
policy. Several other commenters
supported simplifying the Rule
generally.
EPA agrees that eliminating the ~
different criteria for CERCLA wastes
from pre- 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 svstem 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 fad 11 ties
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* "' 'i -
would be disrupted by application of ;'
the newer criteria.4 Indeed^ most'.
facilities receiving CERCLA w&te ' ~
already meet both the pre-and post* "
SARA criteria, in order to be acceptable
to receive all CERCLA waste. The
elimination of separato 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 States
that were authorized to cany out the
corrective action portions of RCRA. 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 regardi^wu£S6^mabillty of a
facility." (53 FR'48222) Thus, the
Agency specifically'requested comment
on whether qualifying States should
make off-site acbeptaoility. .
determinations,' or whether EPA Regions
should exercise that decision-making
authority. . - -
EPA received eight specific 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 and concerns that
some States might use theoff-site
authority to pronibitihe receipt of out-
of-state CERCLA wastes. Two of these
six commenters added that States
should be allowed to make acceptability
determinations only if they agree to
follow tbenotlce an
under which oae consolidated list wooUba mad*
available to the public. However. tha Apncy
~*y'**T lf-Wnpn—IliU M piM>«K
a Ust of acceptable fecilitiee nationwide (a* •*•»...:
regionally), aa tha off-tit* statin of tarlllrtas ia .
.¦...I,..lfci4i«i|lfi| Mil any «dl lit iixmM fcr
oalMMmtti
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 dot eliminate the need
for the EPARegional contacts; a State
could not make determinations for other
Federal programs, such as the Toxic
Substances Control Act (TSCA). Thus,
the public wouldbe required to check :
with State contacts and EPA Regional
contacts in order to determine which
facilities are acceptable to receive
certain types of CERCLA\vastes. The
prospect of requiring interested parties
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 rerfew of all the-
comments received on the proposed : .
rule, as well as a review of the Agency's
experience to date in implementing the
Ou^ite Policy, EPA still believes that it
is essential for the off-site acceptability
Success to take into aceount the
mportant role of the States in making
compliance findings (and, in some
States, release findings) under RCRA;
however, the comments received and
EPA's experience also demonstrate a
strong need foe national consistency,
and for facilitating timely public access
to acceptable capacity. Thus, while the
basic approach and structure of the rule
remainsunaliered, the Agency is
making several important changes in the
language of the rule, in order to l\elp
make 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-sitfeMceptability----
determination for a facility is based, in
large part on a compliance finding and
a release finding. Authorized States may
make the compliance findings for
those parts of the program for which
they, are authorized. If a State finds a
violation at a unit of a facility, EPA will
evaluate the finding for "relevance"
under the rule (e-.g., whether the .
violation occurred at the receiving unit -
and thus is "relevant" under the ruler.
"relevant" is discussed in more' detail in.
section IV;C4 of this preamble). If the
-------
49206Federal Register / Vol: 9». Nor 1827 Wednesday. September 22. 199SV Rules-and Regulations
Agency concludes that the violations an
relevant it will issuean initial. .
determination of unacceptability.
meaning that the facility will he .
unacceptable to receive CERCLA wastes
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 flndinga and, if it finds the releases
are relevant under the rule, will issue an
initial determination that the facility-
will be unacceptable in 80 days unless
EPA finds that there are no uncontrolled .
releases at the facility at that time.
In order to further increase the States?
role throughout the process, the Agency- -
will also take the following stepsr-
• Encourage the free exchange of -,.
information between States and EPA:
Regional offices concerning violations
ana releasee 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 all. ?
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, tot'"
compliance within the 60-day review -
period; and >• t,;.
• Provide in the rule that if the Stata* ^
disagrees with the EPA Region's.-
determination (after the informal -- ~=
conference), it may obtain review .of-thi&
decision by the Regional Administrator.
2. EPA'sRole ~
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 findings 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.
Althi
theinll
tough States will make many of
tialRCRA findings for off-site
unacceptability 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 taw (ana 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 ®re "1
supported by the facte and are
continuing, the unacceptability:. •- r
determination will take effect as "
Erovided below. The Regions will also o-.-
9 responsible for keeplng up-to-datec—-
records of those RCRA facilities that aw
acceptable and those that an not As. -.?
discussed above, these steps will help to
ensure national consistency in off-site
decisions, and will facilitate timely h
public access to offsite acceptability;-
inCamatia» v rV". •; i-v;
.The Agency bcltovM tt-is ftppiopcltttflF>r.<.
for EPA to retain the final authority for >
making off-site acceptability -n o-
determinations^ Because CERCLA •
cleanups an generally ordered
funded by EPA, th»o£f-site*
determination U, IneSect EPA*- .,_
business decision as to when CERCLArr
wastes under the Agency'scontxolr,^
should be sent •
. It is also important , that EPA is^ue tha,
final, consolidated acceptability
. determinations in order tQ.refafp f-pptrnl,
oyer, and help, fulfills the-Ageiky'jC
{migram^tifrxc^pon&ibihues. Inord^;_
;,U>jwan CERCLAcleanup actions,on'
reliable schedule, and piocee^vritlC ~
them quickly, EPA needs to resolve o%
site issues relatively quiddy,'andtmake,
alternative contracts and plans as* .
appropriate. As the proposed rule!, __.lV
. explained, this was a major reason fin;"
the establishment of a 6frday period in.,
which to discuss acceptability with the
relevant parties. EPA is also sensitive to.
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 findings -
of violations or releases that EPA'fihds
are relevant under the final rule; thus.
States may play a major role in Initiating
the off-site review process. EPA
Regional officials, officials from the
State in which the off-site facility is
located, and npresentativee of tn»
facility owner/operator will then have,
the opportunity to meat during the 60-
day review period to discuss?!!) The
basis for the finding of * violation or
release, (2) the relevance of the
violation/release under the Off-site
Rule, and (3) what steps 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 owner/
operator, at which the State may be
present. EPA will notify the State of its;
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 or release Is continuing (os
has been.contralled)b If th%.StaU (or the
owner/operator) disagrees with the.
decision by the EPA Regioual staff, it
may obtain a review of the decision by
the EPA Regional Administrator.
EPA expects that ia mdst cases, then
wiU be no dispute bistwen; it and thon
State over these issues. However, the- . -
arise with the State, orwhere the
Agency must act independently.
Following use three major examples of
situations whereadlsagfeement might '
.occtir between State and EPA officials.
. ..^ First, then may be inMinces where '
the State is unable or unwilling to meet >
^with EPA iuid the affected facility
within the 60-day period (e.g., where
the case is in litigation and the-Stat»;
.chooses not toraeetLMparateiy with on»v
, potentially respbnsibha^party); Simi larly,
.Ef^. must actte certain-situations ~
'Without full parttdp&tion from the
Rtntn, mirh aaHijrtifg anyfrganny^ ^
cleanup actions. In su6n: cases, in order
'^to fulfill its mandates td accompliah
planned CERCLA dead tips ana to
"administer the 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 maydlsagree 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
steps 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 believe? .
that la the Interest of. national; ..
-------
Federal Register" / VoL 58, No. 182 / Wednesday; September 22,1993 t Rules and Regulations49207
consistency, it is appropriate for EPA to
retain the final decision-making ¦
authority in these anas^ However. a» -
with all Off-site Ruld'iasues, the States
will be invited to these issues
with EPA, and willlie 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 (hiring the review period, as EPA
plans to initiate-the off-site review
process when the State makes a finding
that EPA determines is relevant under
the rule.) In such cases, E?A 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 60-day-periodto
determine if the facility is currently
operating incomptianceand/ar has any
uncontrolled relevant releases, for the
limited purpose ofthe Off-site Rule.
These judgment* dd not prevent the
State from pursuing an enforcement
action for past violations, or even*
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 o» present
compliance:CERCLAwastes^snall only
be transferred to afadlityoperating in
physical compliance^ witn" RCRA or <
other applicable law (CERCLA section
121(d)(3)). Thus, where a facility-has :
returned to compliance and.where
appropriate, changed its operations to
prevent recurrence, the facility "ia
operating" in compliance and should
not be unacceptable under the Off-site
Rule simply becauin-a complaint for _.
past violations is still pending.*
4. No Qqoperative Agreement .
Requirement
Under the proposed rule, EPA had
suggested allowing States that wer^
authorized to cany out RCRA corrective
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 sudi
agreements for the purpose of the Off-
site Rule. . o
5. Facility Acceptability Status -
. Section 30a$4&{a)U)of the proposed
rule (53 FR_48232)stated that'^a}
facility is acceptable until tha' - IT
responsible Agency notifies the facility
otherwise"; the scope of this section
needs to-be clarified. For facilities 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 ,
recaiving facilities and CERCLA,site
managers adequate time to respignd to
new circumstances. By contrast, the
language quoted above was not meant to
apply to facilities for which EPA has •
never made a determination of r .-
acceptability under this rule (or the
preceding.policy), and at which-
CERCLA wasteaare not likely to be in -
transit; for suchfadlities, B»A 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
language.of CERCLA § 121(d)(3).7 Final :
rule § 300.440(a)(4) has been revised Ur
clarify this.paint • •• -
(^.Determining Acceptabili^ -^6 v;
Compliance Criteria '
1. Inspection Requirements - >
' Section 300.440(c)(lJ of the proposed'
rule provided that a facility "must have 7
received an appropriate facility.
compliance inspection within six
months prior to receiving CERCLA
waste" (53 FR 48232). Three.
commenters expressed concern that a
receiving facility, which would .
otherwise be in compliance, could be
penalized because of the failure of the
regulatory agency to conduct
inspections at the required frequency.
One of these commenters 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
Agency will address the recommended:
frequency of inspection inguidance.. :
The Agency notes that inspections are _
already carried'out under a number of
regulatory programs, SUbh as RCRA.
EPA agrees that the absence of an
inspection six months prior to the
receipt of £ERCLA waste (ot the absence
of a CMEor O&M inspection for RCRA -
land disposal facilities within one year
prior to the receipt of CERCLA wastes) .:
should not in itselfbe grounds for;,
unacceptability, unless the facility ' ,
refused to allow an inspection to W
, perform^ Tlw.reqidremeritfor .
Hma
from filial rale §300.440(c). (Of courser '
a» (
-------
49208Federal Register / Vol. SB. No. 182 / Wednesday, September 22, 1093 / Rules and Regulations
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 consideredi^facility-
wide." Unit-specific violations include
failure to comply with the design and
operating requirements.
4..Relevant Violations
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 bewnited 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 monituing an criticsl to t
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. Rept 962,.
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 threaten 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)(1)(H).) In general. EPA
believes that relevant violations will
generally be Class I violations by high,
priority violators (HPVs). Guidance Cot ¦
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 violations, (after the issuance oi
an indictment) are also generally
relevant violations.1 -
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)(ii), 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
findings 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 commenter maintained that
the prohibition on relevant violations -
should apply to the entire facility, rather
than Just the unit(s) 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, this
interpretation furthers the
Congressionally-man dated 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, ana 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
clarify 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 withihe 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 reouire 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.
• Sm d» propoMd ml* SS PR 4SSZ4; 08-dt»
Policy, at p. 16c «nd if—wiiIiim boo Brad M.
DUmood.tMMto Policy ImflmtBoOUoa bnM."
(Augtntia.1M8L r
the facility may have enjoyed during tbe
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 assurance
requirements, but that had brought the
ground-water monitoring system beck
into physical compliance or met It*
financial assurance obligationscould be
considered to have returned to physical.
compliance even if legal actions were -
-------
Federal Register / Vol. 58, No. 182 / Wednesday, September 22. 1993 / Rules and Regulations 49209
outstanding or penalties hadnot been
paid.
"Physical compliance-" does not
include being in compliance with a
schedule to return to physical
compliance. *5-
5. Minimum Technology Requirements
(MTRs)
EPA received conflicting comments
on the proposal to require a RCRA
Subtitle Cland disposal unit to comply
with the more rigorous minimum
technical requirements of RCRA''
§ 3004(o) in order to be acceptable to
receive RCRA hazardous wastes from a
CERCLA cleanup (53 FR 48224). EPA
believes that this requirement is
appropriate in order to 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 (Le., facilities ~
commencing construction afterNov. 8r
1984). These standards are more
stringent than the requirements for
existing (i.e.. pre-1984)~land disposal
facilities becauseCongress considered
to preventliazardous waste front..
entering.the environments Of course,
waivers from MTRs are allowed if the
owner/operator can show that
alternative design andoperating
practices, together with location;:
characteristics, will prevent the
migration of any .hazardous waste
constituent into the ground water or
surface water at least as effectively as
the required liners and lea chats.
collection system.-(40 CFR%64Jkpl) An
MTR unit is lessliksly to have future
problems thana non-MTR unit, and
therefore.therequirementthpt receiving .
RCRA Subtitle C land disposal unit*
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 oily 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 all necessary permits (if
any), and has controlled any
environmentally significant releasee.
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)(1).
300.440(b)(2)(D)).
D. Determining AcceptabiIity:ReIeases
1. Identifying Releases- -f.••
For allRCRA'Subtitle C facilities, a
facility-wide investigation (e.g.; 4! 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 be acceptable, 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 sudi an -
investigation, completion of the
investigation is natnecessary prior to
issuing a notice of unacceptability or
initiating a corrective actionprogrnm (in-
such situations, the corrective action
progr&in should be designed to include
a facility-wide investigation):'Although
the performance of a facility-wide
investigation is no longer discussed in
the rule (see proposed rule § 300.440 -
(c) (2Jf."it remains an important part of
the off-site evaluation program
One commenter objected to including
"substantial' threat of a release1' in the
definititin'of release (53 FR 48224ft
claiming that this exfceeds EPA's
statutory authority.
Although CERCLA section 121(d)(3)
does not specifically state whether or
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. ft is within the Agency's
authority to respond to both releases
and "substantial threats of release"
under CERCLA section 104. It would be
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 ~
NCP, please also means threat of
release. , • . .
Three commenters questioned the
criteria EPA will use to determine1 r
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., tiie Agency believes that it
should rely 6n all available information,
inciudffijfmformation on 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 commenters disagreed
with the example of a non-de 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, 53 FR
48219-48220, Congress was very
concerned about leaking land disposal -
units, and set out in section 121(d)(3) a
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 "de 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 pv
482. EPA considers a de minimis release'
as substantially less than a release that -
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
•One commaotar misread language la the
preamble to the proposed ml* (51 PR at 48124)as
saying thai dt minimi* ralmaa ai* "any releases
that do oot adrarMljr aflact public health or the
environment" rathar than marety minimal
wlnea with no adverse affect Ilka tho» eat out
in the examples in the preamble. To the octant the
prior language waa confining. it la clarified by the -
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 tinder the Off-
site Rule at this time.
In response to the comments, EPA.. u";
agrees that standards do not yet exist for .
differentiating between acceptable
releases to the air and air releases that
may pose a threat to human health and
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(d)(3)(A). Thus, as a matter
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 -
3004(n)(when they have been:
Jiromulgated). However, until the>-:
' section 3004(n) rule is finah air " r
"emissions from such units will be^
considered releases where they are":
"'fotihd to pose'a threat to human health
'' &d the environment Similarly; air" n-er
emii&ioiis 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 waa concerned that
releases from non-receiving units at
RCRA Subtitle C land disposal facilities
could result in unacceptaDility 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 Inking non-
receiving unit, because there are likely
to be aim liar 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>presence of
a single land disposal unit makes a
facility a land disposal facility (see
proposed rule, 53 FR 48225); therefore,
where an incinerator is pa^t of a .facility
with land disposal units, the. finalrule
still requires compliance,witli the;,
'release requirements for land disposal
facilities in order for the incinerator to .
be acceptable to riceivtrCERCLA
washes! '
E. Notification of Acceptability
1. Management Options for Loss of
Acceptability - - • s.
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.
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Federal Register / Vol. 58,. No. 182 / Wednesday. September 22. 1993 / Rules and Regulations 49211
In most cages, there will be a 60-day
review period before the initial notice of
unacceptability takes effect The facility
may use this timetotake steps to return
to acceptability, and thereby avoid
disruption of tne 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 FR 48227).
Second, the issue of who should bear
added costs stemming from a facility's
loss of acceptability must be a matter of
contractnegotiation between the parties.
Finally, the Regional Administrator
does have the 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 Unacceptahility .
One commenter asked for clarification
in both the preamble and the rule on the
relationship between the initial notice
of potential unacceptability and the
ability of a facility to continue to receive
CERCLA wastes jor 60 days alter the
notice of unacceptability
(§ 300.440(d)(3)). In adcutionvthd :
commenter believed that a
determination of unacceptability should*'
be published in the Federal Register.
The receipt.of an-inltial nbtice of
potential unacceptability does not
usually render a facility unacceptable
unless or untU the finaidetenbmatiori
has been made and takeseffect (usually'
60 days after the Initial notice, at after
an alternetive timrperfcftftis brovided
under § 300.440 (d)(8) midfflf(53 FR
48227). Asdiscussedearlisr,^facility
for which EPA havnever made* .
determination of unacceptability will
not be afforded a 60 day period of
acceptability after the initial notice.
Note that in exceptianel'cases,*-- ~ "r',;
unacceptability notices can. be mad*
immediately effective^ 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
compuanqe 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
EPA to publish in the Federal Register
notices of when facilities returned to
compliance; the effort involved would -
be significant (with little assurance of-
being timely), and could detract from
more important Agency business
Rather, EPA maintains anup-to-date
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. Review Procedures:
1. Agency Response Time
Two commentsreaaked EPA to
identify a spedfictinMrframe for
Agency review of tifacility's return U* "
acceptability status, and a specified
response time for review of
unacceptability determinations by the
Regional Administrator (the commenter
suggested that the appeal te the RA
should be completed within the 60-day
review perfo®.-ax ' ' r'r
EPA does not believe it is feasible at
appropriate to establish ¦ specific time
frame within which it must respond to
a facility Yrequestto return it to
accep tabUi tV ( whether that request
coines within the 60 day review period
orltftera final determination of
unacceptability has been Issued).
Althoughthfc Agency is committed to .
making every effort fo respond to such
requests as quiddy as the case allows,
theAgency cannot' allow its priorities to
be driven by artificial deadlines. -
Further1, if the Agency were not able to
verify a facility's alleged return to
complfano^ by a required date, and in
fact the company had not returned to
compliance, CERCLA wastes would be
transferred to unacceptable facilities, in
violation of CERCLA section.l2l£d)(3).
Comp^&thaf4re^a&»ptabte must
"bttarwftierespbnsibillty'for th«|r status;
EPA wiff attempt to evaluate a return to
acceptability aS promptly as practicable;
AS 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: .
theAgency 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 33 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-dav 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.
cleanup expeditiously and the nature of
the violation* or releases found at the
facility {i.e;, the potential danger in
continuing to send wastes to the site),
against the adequacy of the record
developed at the staff level and the duo
process concern* of the facility.
2. Notification of Immediate
Uaacceptahility
,Jh the proposed rule, EPA stated that
"in case of either an extension or
immediate unaccaptahility, the facility
should benotified as quicklj^
.possible" (53LFR.48228). One*'
commenter asked thai in cases where
immediate unacceptability Utriggered^
the owner/operator be notified within
24jj0UW*:?l--
The Agency will make every effort to
notify a fkdUty as soon as possible after
a -finding oflnunediate unacceptability.
In many c&se^ thia maybe within a 24-
hour period. 'Hie Agency notes as well
that in saribussafcty at emergency
situatinnSi.it may be appropriate to
make a finding of unacceptability
effective in less'than, $0 days, although
imm^lateliifo>ocept^ili|y is not
required. Thejulenas be^j changed to
reflectthisfad. ",-v\ ,
3>PoDwrttalIf Jtespunslble Parties
•OnecotdmStitfir asked fiPAto
ascertain' wB'etheradeterriiilli$ion of
unaeeejftebilfty fnight have ah Impact
on removal orremedfal actions being
condutfedbypotentially responsible
parties (PRP^Tha committer"
maintained thitf a representatlve of the
PRPs should Bs allowed to attend any
~ conference hBSTonthe determination of
unacceptabffity^
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 CERQA wastes would ho
required to comply with this rule.
EPA does not Believe that It is
necessary to invite PRPs to participate
in Its deliberation on acceptability' :
flafnirmlnaHnw (althnngh EPA jQgy do
so in appropriate cases). The effect of
-------
49212 Federal Register / Vol. 58, No. 182 / Wednesday. September 22, 1993 / Rules and Regulations
acceptability determinations on PRPs
involved in CERCLA actions is limited
to determining where they can transport
their waste. Toe parties mottle
knowledgeable about the facility's
status—the owner/operator? EPA and
the State—already participate. Hie
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, this
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^-2
clause.
As noted in die 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. T&us,
Congress has established the parameters
for that decision-making process (f.e., no
shipments to violating or leaking'
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 U,T,
commenter asked that the burden in,,
S 300.440(e) for establishing.
acceptability during challenges to... .
"corrective action decisions, would be
reversed to provide that a facility is,u ¦*,,
acceptable during the period of aa-
appeal, unless EPA (rather than tha^
CacSlity) can demonstrate that interim ¦. ,T.
"measures are inadequate and that other,
corrective action measures are necessary
to protect human health and the ,. .
environment
As stated earlier in this preamble.,. , ,r
(section IV.C.4),the question of whether.. .
ornot a facility has returned to physical,,
' compliance with applicable laws is^
generally separate and distinct from the^,
question of whether penalties may be'
" appropriate for past violations;.ar-
company's right to appeal any penalties^
; associated withunderlying violationsisi <
unaffected in most cases. However, EPA
hak identifiedone major exceptions r. ij
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 owher/operatSf a " r
reasonable right to review. EPA believes
that the 60-day review periodwith
access to two levels of decisionmakers..
, as provided under this rule, represents
such a balance. However, withholding
decisions during months'and years of
administrative andjudicial'challenge
would not allow thtf Agency ttrcoraplv ¦
., with its statutory mandate^aod would
encouragedilatOty appeals/<'Seew,:r
discussion at 53 FRv48228j-'<^
On theappeal issuespedfically, EPA
has gone even further, providing an
additional mechanism for an owner/-
operator to be considered-acceptable*
i * during interruptions in corrective action
to cdntrol releases due to the need.to:
pursue permit modifications. Although
the statute conditions acceptability on
the "control"of releases; and no
corrective action wtll be on-going under
die 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 -
facilities), and has required a
procedural process. In implementing the
Congressionally mandated scheme, th&L
rule seta out a 60-day period fora
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 to the
Regional Administrator. The final rule.
makes review by the EPA Regional
Administrate* 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 are 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,-
tfiis rule. Where a violation cannofcwr a^ycorrective actioni» needed during the
physically be''undone" (or the Agency interim period; Thusrs facility, wishing
has determined that it is safer to leave™ •.» , to remain acceptable and wishing to. v
waste in placed one can argue thaMhfe-s -appeal may do both^ Contrary to a , -
receiving unit is "tainted," andthat thenv commerite¥*6*3uggestlon,' this burden is
violation is a continuing one. In order properly on the owner/operator, if it ¦
"fo avoid such a harsh result, EPA ha& wishes to remain acceptable during the :
: provided that in such cases, the facility'. - period of its permit modification appeaL
' may be said to have returned to physical' After a certain point; the Agency must
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 ir -
not "fbrdng', the payment of penalties*
in most cases, sudi payment is not
required to achieve acceptability. Where-
physical compliance is not technically-
achievable, or would be extremely
difficult to achieve (e.g„ excavating
entire landfills or draining entire surface
be able to get on with its business of
cleaning up sitesi '
3. Review of Determination Decisions
One commenter argued that the
!>rocedures set out in the proposed rule
or review of off-site uhacceptability
determinations (53 FR 48227) would not
promote consistency to: decisionmaking,
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 decisionmaker (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);
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Federal Register / Vol. 58. No. 182 / Wednesday, September 22, 1993 / Rules and Regulations 49213
EPA believes.that it ha&established a
system of review which will promote
consistency in decisionmaking. The
procedures to be applied ore dearly set.
out, and will be ovdswnby
coordinators in the^tisitEPA Regions.
The Agency intendsto 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 waa dramaticplly 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 ldtrf, and those
procedures are being expanded by this
rule. Moreover, the ract that such
procedures will now be legally,
enforceable regulations—as compared to
policy guidance—adds to,the certainty.
that the procedures^ will.be consistently
followed.
The request for expeditious review by
an impartial decisionmaker, other than
the person who originally made t^ie
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-3T
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, ana is available to hear
appeals from those decisions,,if -
requested. . ^/
It has been EPA fa experience under
the revised Off-site £oU(
Administrators do not rubber-stamp
staff recommendations on off-site
acceptability, and have overruled or
remanded such recommendations in--,--
appropriate cases. The courts have^ °
further stated that Agency
decisionmakers are presumed to be
unbiased. See Withmwv. Lorkin, 421 ' -
U.S. 35,47(1975).
4. Review Procedures
One commenter argued that th» .
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 refers
to proposed regulations for Debarment v
ana Suspension under EPA Assistants^-
Loan, and Benefit Programs# which-
provide for an informal hearing without
formal rules of evidence or procedure.
opportunity to appear with counsel,
submit documentary evidence,,and.:
present and confront witnesses; and a
transcript of the proceedings 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 foran informal hearing,
opportunity to appear with counsel, and
submission of documentary evidence.
EPA does not believe it is appropriate or
necessaryftTcall ^iKtconfront witnesses.
inorderto determine if thefeeility'a
operadbtfsre^eal relevant Violations or.
releasea.Moieffver. a key distinction
between the twb sets of rules is that
acceptability is within the control of the
owner/operator, unlike a disbarment for
a set period *bf up to three years,
unacceptability statuamay be
terminated pnce. the. facility returns to
physical compliance or controls
relevant releases.
Hie informal procedures set out in the
Off-site Rule are also consistent with the
purposeandtsrms ofthestatuta.
CfcKCLA requires swift action in these
cases; the use of procedure* provided in
this rule allow relatively quiijcsction,
while providing due process. Further,
the procedures gowelibeyond those .
required in th e statute (simple-
"notifioa^qn',J:aiirfthose suggested in
theConference report tin SARA ("an
opportunityctp meet informally," and
"port-detsnnination dispute resolution :
procedures" for release determinations).
(See 53 FR 48227.K r
^ ^A^nofes that only one commenter -
Iruggest^lEaftheriile'sTevie^^ --
S. Nbtltfratfon of Decisions
^"TftS-lftOpOsal, at:53'FR48227, '
provides that the Agency will inform
the p.vmer/operator "in writing" of its
decision after the informal conference
andreview of comments. EPA thus . -
agrees with the comment that the basis
for all djkfsiOns should bb clearly
artijpul^tid'iir writing. EPA'alsaagrees
that owner/operators should receive '
responses to their major comments on
the acceptability decision. Regions will,
specify in notices of unacceptability
why a facility or unit has been found ..
unacceptable, and inpost-conference .
decisions why a final unacceptability
determination has been made. Suck
steps will also facilitate thereviewby
the Regional Administrator, who may:-. .
limit review tothe underlying recocd.
H. Re-Evaluation of Unacceptability
I. Thresholds/Enforceable Agreements
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 wastes, it:
must have no relevant violations under. :
applicable law; and it murt control alt ..
relevant releases (and fbr ceitain
categories of facilities, eliminate all
relevant releases 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 CERCLA wastes
(53 FR 48229); The commenter noted '
thai there maybe fully-permitted units
at Federal instailationa that aiuld safely
accept CERCLA wastes; however; these '
units will be unavailable because of the
presetfc&bf releases elsewhere on thfr
installation that are part of a facility-
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. -
Congreu'clearly^stated^diat CERCLA
wastes should not be transferred to
leaking units atlahd disposal facilities
or' to land disposal facilities' with:
leakingnon-receiving mritsthatare not ...
being "controlled*" EPA maintains that
afr-enforceabteapMBnnt is necessary to
ensure that such.raj|ff^jare controlled,
and to ensure the continued'
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 releases at non-receiving units
controlled by an enforceable agreement
may be satisfied through a permit (e.g., -..
the corrective action portion of tha
RCRA permit), or consent agreement -
(e.g.,an interagency agreement under
CERCLA. tection-120), both of which are
available^ Federal facilities.-, . ...
-------
48214 Federal Eegistm / VoL 5ft. No. 182/ Wednesday,. September 22. 1993'/ Rules anetRegulations
2. Correctiv® Action/Controlled Balaam.
One commenter agreed tfeit a facility .;
with a corrective action profpamin
place should be considered acceptable,
and suppbited the broaderdefinition of
what constitutes a correct!veaction
program (proposed § 300.440(fX3)(iii)),
Including the use of equivalent Stats
authorities.
The final rule continues to provide
that collective action programs must he
performed under a RCRA order or
permit, or under another appropriate ...
authority if the release is at an othee-
than-RCRA subtitle C facility. EPA
cautions, however, that provisions in
Stale orders or permits issued by States
not authorized far HSWA corrective
action are generally not acceptable to
satisfy this requirement at RCRA.
facilities. (See S3 FR 48220.) The major
exception to this ia when States
authorized for the base RCRA program,
have issued a valid permit requiring
corrective action for releeses 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 willbe
considered under control unless or until
the order, permit, or agreement is -
violated or the document needs to be
modified to proceed to thenext phase -
of action. Provided the owner/operator
is taking positive action and remains in .
compliance withthe terms specified la
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 releasee
from non-receiving units; thus,
requiring facilities to complete
corrective measure* before being
considered acceptable could severely
limit acceptable off-site management ' '
options, affectively reducing the
availablecapacity to nothing.
Requiring the owner/operator to
physically 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 of leaking
units. Further, by requiring such work
to be conducted under an enforceable
order or corrective action pennit. EPA
has the ability to ensure that the
requited steps are carried out
expeditiously.
3- RalmniMi «nH Rngwinlng 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 regsia
acceptability. The commenter argued
that requiring elimination to the extent
technically feasible and to a level which
poses no threat to human health and ths-
ehvironment, would be more realistic.
In response, de minimis 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. Regaining 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 throe conditions under which
a unit will be considered to have
regained physical compliance, but
disagreed with the contention that, "in
most raws, physical compliance cannot
be regained until all legal proceedings, -
(etc.) are received." The commenter
charged that final resolution of disputes
irrelevant 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 ("RelevantViolations")
and section IV.G.2 ("Paymentof r
Penalties''). Final resolution of legal
proceedings (Including payment of
penalties) is not a pre-condition Ur
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 a
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 thatthe
violation Will not recur. In effect, it te-
the taking of required preventative: -
measures and the payment of the
penalty that "corrects" the violation in
these cases.
f. Implementation
Three commenters suggested that in
order to facilitate implementation of this
rule, EPA should establish a national
data base or other mechanism so that
off-site contacts and their staff can
easily tell which facilities nationwide;
are in compliance with the Off-Site
Rule. With such a listing system. EPA
and other Agenciee could readily know
or access • list of approved off-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 off? '
frequently and is difficuUtousefully
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 (ROCs). The Agency
does not believe that it is an
unreasonable burden to requite
interested parties to makia 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. N5. 182 t Wednesday^ September 227 1993" f Rules «nrf' Regulations49215
acceptability of facilities.within their
Region. .
However, in aider to ensure that the
information is rs&dily available, EPA.
will strongly encourage the maintenance
of a back-up contaet 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).
Di}e to the dynamic nature of the -
acceptability determinations, EPA has
no plans at this time to publish a"
national list of acceptable (or . ' '
unacceptable) units. The Agency;.*
believes that such lists could serins more-
as a source of misinformation (or out-of-
date information) than reliable'-: •
information. EPA's recognition bf the
dynamic nature of acceptability i»
reflected in the Agency's policy that an
off-site facility does not need to be
acceptable to bid onaccepting waste
from a CERCLA clean-up, but mttstbe
acceptable under this rule to beawarded
such a contract .
In order to avoid problems resulting ¦
fromcontractors whose dedpiated-. •
receiving facilities become unacceptable
under this rule, agencies and PRPsmay
want to provide for back-up or
alternative facilities in their contracts.
f. Manifest Requirements:
One commenter objected to the"
statement in the preamble to thea .
proposed rule (53 FR 48230)thatfimits
the reouirement to file a"Odift;
Hazardous Waste Manifest" fona$Q.
CERCLA wastes that are also RCRA , .
wastes; the commenter asked thatthe-
requirement cover all types of wastes^ : -
The preamble simply noted that
already existing manifest requirements/:
under RCRA must be met There is no
manifest requirement under CERCLA,
and this rule does not establish an
independent tracking system fbr
CERCLA wastes. Compliance with the
rule .is assured through inspections, and
enforcement of contract provisions.
V. Regulatory Analysis
A. Regulatory-Impact Analysis .;
Under Executive Order No. 12291,° .
EPA must determine whether • .
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 codifies
an Agency policy that has been in effect
since May of 1989 and largely mirrorr
Primary con-
tsefcpnone
coo-
a revision of that policy that has been APPENDIX f.—REGIONAL OFF-SlTE
in effect since November of 1987. A* CONTACTS (ROCS)—Continued
discussed in the preamble to the
proposed rule (S3 FR 48230-48231), this - .
rule contains criteria that EPA will use "•flw
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 HI
is largely based on compliance with
applicable regulations tne Agency
already enforces. As a result af.today's . IV
rule some &dlities may choose to-
initiate corrective action sooner than if „
they waited for the corrective action v...........
conditions in their final operating
permit pursuant to RCRA-3004 (u) and
(v). However, regardless of.the VI .-..
requirements ofthiarole.uaderthe
authority of. section .3008(h) of RCRA*
EPA already compels .corrective action ~ VH
at RCRA interim status facilities with
known or suspected reloasos. The rule,. ^
then, should not result in increased ".¦f.uTrr
long-term costs to the commercial waste
handling industry; . m
B. RegulatoryFlexibilrty Act1
Under th« Regulatory Flexibility Act* '
5 U.S.C. 601et stqa at the timeanv
Agency publishes any proposed er fina£
rule, it mustprepaie a Regulates?
Flexibility Anemia thatdescribes the .
impact of thB rule on small entities,
unless^ AdminisUstor.ceitiAesthat
the rule will jiot have a significant-- ...
Impact on a suhstsntial numberof smallc
entities. Today's final rule describes .
procedure* for detarTplnlng-the ¦ z)
acceptability of a facility for off-site
IX ....
QregZaocardU
(212)264-
9504.
Sarah Caspar.
(215)597-
1857.
Edmuni*-
BuiKs, (404)
347-7603.
Gertrud
Matuschtov-
itt. (312)
353-792t.".-
Ron Shannon;
(214)685^.
Miff ' . ¦
QeraMMcMrh.,
ney„(9t3),
65lr7818.;:
Teny Brawn,
(303)293-
1823; :
Diane Bocflne,
(415)744-
¦ 2ta8w..
RonLMcfc
(206)553-
Ovw«
Goiumbekr
(212)284-
2638.
Naomi Henry,
(215)597-
8338;
John DWdit-
son, (404)
347-7603.
UylaJne
McMahon,.'
(312) 886-
4445.
Joe Dougherty;.
(214) 655-
228T.
David Doyle, :
(913) 551—
.7667.
George "
Dandfc -
(303)283-
1508.
Gloria .
.. Browrtey,
: (415)744^
; 2114,
Kevin :
ocnanu9c;
(206)553-
1061.
not imposts i
requirements or compliance burdens on
theregulated community* Tharmfore,
pursuant to 5 U.&£. 601b, Icartify that:
this regulation wiUno$hvna^er^ -
significant economic ImpertoioSf- .
substantial number of small entiUes. :.
C. Paperwork Reduction Act *r~-
This mle 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 j '?*
Appendix I.—Regional Off-Site
Contacts (ROCs) * • -
Region
Primary con-
tact/phone
Backup
t8Ct/|*ions'
1 ^
LynnHenMsn,
AusNne
(617)573-
Fra«4sy, .
9662.
(617) 573-
. 1784.:'
List of Subjects in 40 CFRPart 300
AlrpoHutfon control, Chemicals,
Hazardous substahbe, Hazardous waste.
In tfirgovernm antal relations, Natural
resources,Penalties, Repenting and ..
recordkeepiiu requirements^ Superfund,
Water pdlmtton control. Water supply.
Dated: Sdpttiribar 14;1 993."
.Ceiel>1, Biw—ii-wi.,.- -
AdmiMitnitnry^ " •*'"'"e '
40 CFRpart 300 is amehded as .. .
follows^,y.„.
PART300-NATIONAL OIL AND
HAZARDOUS 8UBSTANCES
CONTINGENCY PLAN
1. The authority citation for part 300
continues to reed as follows:
Aatibmttft 42 U.S.C. 8801-6897; 33 US.C.
1321(c)(2): B.0.12777,56 FR 54737, 3 CFR.
1991 Gomp., p. 351; B.0.12560,52 FR 2923,
3 CFR, 1987 Compk, p 193.
2. Section 300.440 lis added to part.
300 to read as follows:
ia00u44»- Pweeduwie for planning end
ImplemeiitlfiffBfMMe rseponee actions.
fa) Applicability. (1) This section
applies to any remedial at removal
action involving the off-site transfer of
any hazardous substance, pollutant, or
-------
49216Federal Rngleter / Vol. 58. Nor 182 / Wednesday. September 22, 1993 / Rule* andRegulattoas
contaminant as defined undar CERCLA
sections 101 (14) and (33) ("CERCLA
waste") that is conducted byEPA,
States, private parties, or outer Federal
agencies, that is Fund-financedand/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 ofemsxgency removal n
actions under CERCLA. anersency
actions taken during remedial actions,
or response actions under section 311 of
the Clean Water Act where the release
poses an immediate and significant
threat to human health and idw :'~1
environment. the Qn-Scene Coordinator
(OSC) may determine thatit is necessary
to transfer CERCLA waste off-site
without following the requirements of
thta (ffMTrtnn,
(3) This section applies to CERCLA' "
wastes from cleanup actionsbasedon "
CERCLA decision documents sighed or <
consent decrees lodged after October 17,
1988 ("post-SARA CERCLA wastes") as
well as those based on CERCLA
decision documents signed and cabnsattt
decrees lodged prior to October 17.1986
("pre-SARA CERCLA wastes"). Pre-
SARA and post-SARA CERCLA wastes
are subject to the same accaptability -
criteria in § 300.440(b) (l) 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 ;
(ii) RCRA hazardous wastes that are
being transferred from a CERCLA site
for treatability studies and that meet the
requirements far an exemption for
RCRA under 40 CFR 261.4(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
CFR 261.4(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 norelevant; -
violations at oraffectlng the'unit of ."y
units receiving CERCLA watte..' '
(A) For treatment to standards , . "-
specified in 40 CFR part 288. subjpart D.
including any pre-treatment or stooge
units used prior to treatment;. :
^ (B) For treatment to substantially. ----- ¦
reduce its mobility, toxicity or ^ <
persistence in the absence of a deSned
treatment or storage units used prior to
treatment;or' .
' (C) For storage or ultimate disposal of
CERCLA waste not ttfeated'to the -
previous criteria at theaame facility.
(ii) Relevant violationsinclude
significant deviations from regulations,
compHanceorder provisions, or permit
conditions dasiyaed to; ensure that -
CERCLA tresis is destined for and'
delivered to authbHzed facilities;
prevent relea»of hazardous waste;
hazardouscot^tiic^^ 1 'v
disposal of CERCLA waste. EPA will
determine if there are relevant releases#
or relevant violations at a facility prior
to the facility's initial receipto?-' •'
CERCLA waste. A facility which has
previously been evaluated and found
acceptable under this rule (or the- - ">'«•
preceding policy) is acceptable until the
EPA Regional Office notifies the facility:
otherwise pursuant to § 300.440(d)..
(5) Off-site transfers of those^
laboratory samples, and treatability •
study CERCLA wastes from CERCLA ..
sites set out in paragraphs (a)(5) (i) '
through (iii) of 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 OSC assures the .
proper management of the CERCLA :
waste samples or residues aid ghreeiv--.
permission to the laboratory or
treatment facility , for the samples and/or
residues to be returnedtothasita
(i) Samplesof CERCLA wastes sent t»
a laboratory farchiyrrtflritahon:
Criminal violatioiu which result in
4ndictmesVeM abttidssrant violations.
In addition; violations of the following
requiienwots may be considered
relevant: 1 - — - ¦
<>i: (^ Aftl&&ble rsub6ectlons of sections
3004 and 3005 of RCRA or;' where^ i w
applicableTother Federal laws (such se-
ttle ToxfeSubstances Control Act- and
subtitkDOf RCRAh
- (B) Applicable sections of State-. ?rr»r
environmental laws; and -r .
(O In addition, land disposal units at r
RCRA subtitle G facilities receiving-': —
RGRA hawrdoua waste from response- -
actions autboriad or funded under ..
CERCLA must be in compliance with
RCRAsection 3004(o) minimum ¦
~nfhnnlngy nfriiwwHwite. Exceptions
may be made only if the unit has been.
granted a waiver from these •
requirements under 4® CFR 284.301. -
¦- - (2) fiuleeses. (i) Release is defined i»v
S 300.B of this pat Releases under this
section do not include: .
(At rim minimi* ""IfTSffff ¦ '
CflJ Ifnlnewi r""'1.***'1mi1"
pragmas or under Federal
delegated to the Statesir
permitted releases are defined in
§ 300.5), except to the extent that such
releesee are found to pose a threat to
human health end 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 not'
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
follows: • ",r-"
(A) Receiving units at RCRA subtitle
C facilities. CERCLA wastes may be
transferred to an off-site unit regulated
under subtitleC of RCRA. including a
facility w»g»u»n^ the permit-by-
rule provisionsof 40 CFR270.80(a). (b)
. or (c), only if that unit is nbt releasing:
any hazardous waste, hazardous
constituent, or hazardous substance into
the ground water, surface watsr, soil«
air. . ¦¦¦ • ..
(B) Otherdnits at RCRAsabtitla C
-land disposal facilities. CERCLA waster
may not be transferred to any'unit tffcc;
RCRA subtitle C land disposal facilitjr-'
where anon-receiving unit is releasing
any hazardous waste, hazardous
constituent, or hazardous substance into
the ground water, surface-water, soil, or
air, unless that releam iscxratrolledby
an enforceable agreement for corrective
action under subtitfi€!"6# RCRA^or other
applicableFederal orStkteauthWityt"
For purposes of this section, a RCRA~ a
"land disposal facility" is any RCRA-^
facility at which a land disposal unit is>
located, regardleseofwhetner aland-
disposal unitia thereceivihgunitnf
(C) Other units at RCKAsubtitleC
treatme nt, storage, attdpermit-by-mle -
facilities. CERCLA wastes may not be.'
tran8feTTedto«^ui4tl^RCRA
subtitleC treatment storage or permit-
by-rolefecilit$%Hikre a releaseof any
hazardous waste, hazardous constituent,
or hazardousstfstancefrom non-
receiving units posesa significant three!
to public health or the environment,
unless that release is controlled by an
enforceable agreement for collective
action under subtitle C of RCRA or other
applicable Federal eg State authority.
(D) All other facilities, CERCLA
wastes should not be transferred to any
unit at an otheMhan-BCRA subtitle C
facility if the EPA Regional Office ha*
lnfiimi«H~f fawtinHng that «n - .
environmentally signi fiennt reieese of :
hazardous subrtances hae occurred at
that fadlity. unless the release ia -
controlled lty an enforceable agreement
for cooective action under an applicable
Federal or Stale authority* - ^ -
-------
Federal Bfghtur / Voi. 58. No. 182 / Wednesdays September 22. 1993 7 Rnjgg and ELagtilatinos49217
(iii) Releases are considered to be
"cootnlltd" far the purpose of tills
section as provided in § 300.440
(f)(3)(tv) and (!X3tt%A release is not
considered "ccmtngled" for the purpose
of this section during the pendancy of
administrative or judicial 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 die rale and
if so, issue an Initial determination of
unacceptability.
(2) Ifa Stale finds that releases are .
occurring at a facility regulated under
State law or a Federal proyam for
which the State Is authorized, EPA wilt
determine, after consulting with the
State as appropriate, if the refeaae is
relevant under the rule and if so, f
an initial determination of
unacceptability.
(3) EPA may alao issue initial
determinations of i
on its own flnHiny epa can i
any inspections, data 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 facility being
considered for the off-site transfer of any
CERCLA waste does not meet the . .
criteria for acceptabilitystBteilfc'. '
§ 300.440(b). the EPA Region sbait'^.
notify the owner/operatdt of suchj'^. ....
facility, and the responsible agency in
the State in which the facility is located.'
of the unacceptability finding, Hie .
notice will be sent by certified and first-.
class mail, return receipt requested. The
certified notice, if not acknowledged by
the return receipt card, should be
considered to have been received by the -
addressee if properly sent by regular
mail to the last addnss known to the '
EPA Regional Office.
(2) The notice shall generally: state
that based on available Inlnrmarirrn from
a RCRA Facility Assesemenl-(RFA),.
inspection, or other data sources, the
facility has been found not to meat the
requirements of S 30&440; cite the
specific acts, rtr rmitlHmM "
which form die basis of these findings?
and inform the ownsr/operatnraf the :
procedural recourse available under thia
regulation.
(3) A facility which was previously
evaluated ana acceptable
this rule (or the preceding policy) may .
continue to receive CERCLA wests for
60 calendar days after the data at '-
issuance of the notice, unless otherwise
determined in accordance with
paragraphs (d)(8) or (dH9) 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 shall
provide the opportunity for such
conference no later than 30 calendar,
days after the date of the notice, if ~ r,,
possible, to discuss the basis for, the
underlying violation or release
determination. andit& relevance tothe
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 noStat»,,,s
representative is present EPA shall, -
notify the State of the outcome of the,.-
conference. An owner/operator may
submit written comments by the 30th .
day after issuance of the notice, in.
addition to or instead of requesting aa
informal conference., ...
(5) ff the owD9r or operator neither .
requests an informal conference nor
submits written comments, die facility
becomes unacceptable to receive.
CERCLA waste on the 80th day afiar the
notice is issued (or on such other date
this sectibn). The Exility will remain .
unacceptable until such timaastha EPA
RegionalOffice notifiea the amor or ...
operator otherwise.
(8) If an informal conference is bald :
or written comments are received, the -
EPA Region shall decide whether or not
the information provided is sufficient to-'
show that the facility is operating in -<
physical compliance with respect to the
relevant violations cited in the initial
notice of unacceptability, and that all
role»snt teieaeea have been eliminated
or controlled, as required in panpcaplfc-
(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
information provided is sufficient to "
support e determination of
acceptability. Unleash A determines
that nSomation provided by the ownent.
operator and the State is sufficient to,
support a determination of
acceptability, the facility hammae
unacceptable «n the 80th calendar day -
after issuance of the original notice of.
lln"Tftpt°Mlily (i» «»l«nr Jute .
established piirriaet to paragraph* .
(d)(8) or (d)(9) of this section)..
(7) Within 10 days of hearing from the
EPA Regional Office afier the informal'
conference or the submittal of written
comments, the owner/opeiaim or the-
Stato may request a reconaidmatton of
the unacceptability determination by -
the EPA Regional Administrator (RAJ. =•
Reconsideration may be by review of the
record, by conference; orby other means
deemed appropriate by the Regional
Administrator; raoanaidetatian does not -
automatically stay the determination
beyond the «Hiay periad. Tbe owner/
operatewill receive notice in writing «<
the decision of the RA.
(a)ThoEPAR«glonai Administrator ~
may decide to extendtheOOHfay period
if moretiineiBreqahedto review a
submission Hm facility owner/operator
shall be notified in writing if the
Regional Administrator extends the 80
days. -- : -
(9) The EPA Regkmal Office aaey
decide that afatiUtyYuiMCceptabilityis
immediatefy effective (or effedfte hi
less than 60 days) in extreoidlBarT-
situationssudhas,butnot limitedtos
emergencies at the fedfify or egregious
violations. Hjb EPARegiora shall notify
the facility ownmfdpttmM of the date of
unaoLaplabllity, ana may modify
timeframes far tomrfterts'and other
procedures accordingly:
(e) Unacceptability during
administrative arid judicial challenges
of corrective action decisions. For e
facility with refease^that are subject to
a conocuiB pwrux^ orasr* or
decree, madminiStrBtive 'at Jndidal
cballeageto die cuiiim^ve action (or a ~
callin^fi^ad^roal^iBalveaction}
shall not be OWMldBred to be part of a
collective actkm"prunram™ controlling
those releasesand shaft sot act'to atsy -
a determination ofuuacceytahllity
under this rale; However, such facility
may remain acceptable to receive
CERCLA waste during the pendency of
the appeal or litigation i£
(1) It satisfies me EPA Regional Office .
that adequate interim corrective action
measures will continue at the facility: or
(2) ft demunsUatas to the EPA
Regional Office the ahsence of a need to
take corrective actitm daring the short- .
term, intoim period. -
^Miwuii^nlLuniiiiy ^ Mila.
context of the informal conference and~
RA reconsideration. '•
(0 R* mtihinting unmtifjIaMitft It,
«n» nnMitMHiii» of unacceptability and
A
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49218Federal Register/ Vol. 58. No. 182/ Wednesday, September 227 1993^ f Rules and Regulations
the opportunity to confer as described'
in $ 300.440(d), the facility remains
unacceptable, the facilitycan regain
acceptability. A facility found to be
unacceptable to receive CSSGLA wastes
based cm 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 disppsal.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 correc^y®;
action order under RCRA section, T
3008(h), section 7003 or section 3013, a .
RCRA permit under40.CFR 264.100 or
264.101, or a permit under an
equivalent authority in a State
authorized for corrective action tinder
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 hi 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; 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
measures when necessary, except
during periods of administrative or
judicial challenges, when the facility
must inake 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 disciiss 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)
HLUNO COM MM0-40-#
DEPARTMENT OF HEALTH AND
HUMAN SERVICES ^
Administration for Children and .
Families
45 CFR Parts 205 and 233
RIN 0970-AB14
Aid to Families With Dependent .
Children Program; Certain Provisions
of the Omnibus 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. wnich' 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 inatanreg
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 disreprd werepttblished 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.=
AOORESSES: Comments should be;.
submitted in writing to the Assistant;.
Secretary for Children and Families; ,
Attention: Mr; MackA/Stons, Director,
Division of AFDC Program, Office of^
Family Assistance, Fifth Floor. 370^
L*Ehrant 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 ^FORMATION CONTACT:
Mack A. Storre. Director. Division of.
AFDC Program, Office of Family ;
Assistance, Fifth Floor. 370 L*Ehfant
Promenade, SW., Washington, DC
20447. telephone (202)401-9289.-"'"
SUPPLEMENTARY INFORMATION:
Discussion of Interbii Rule Provisioas
Eliminating the Use-of .the Term ^LegaJ .'¦¦¦
Guardian" (Section 233.20 ofthe
InterimRulep- • •
The Omnibus Budget Reconciliation ~
Act (OBRA) of 1981 added-section :
402(a)(39) of the Social Security Act ta
require that, in deternilhirig AFDC ; '
benefits for a dependent wild whose"
parent or legal guardian is under the age
of 18, the State agency must include the
income of the minor parent's own
Sarents or legal guardians who are
ving 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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