[Federal Register Volume 63, Number 229 (Monday, November 30, 1998)]
[Rules and Regulations]
[Pages 65874-65947]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-30269]
[[Page 65873]]
_______________________________________________________________________
Part III
Environmental Protection Agency
_______________________________________________________________________
40 CFR Part 260, et al.
Hazardous Remediation Waste Management Requirements (HWIR-Media); Final
Rule
Federal Register / Vol. 63, No. 229 / Monday, November 30, 1998 /
Rules and Regulations
[[Page 65874]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 260, 261, 264, 265, 268, 270 and 271
[FRL-6186-6]
RIN 2050-AE22
Hazardous Remediation Waste Management Requirements (HWIR-media)
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: As part of President Clinton's March 1994 environmental
regulatory reform initiative, the United States Environmental
Protection Agency (EPA) is issuing new requirements for Resource
Conservation and Recovery Act (RCRA) hazardous remediation wastes
treated, stored or disposed of during cleanup actions. These new
requirements make five major changes: First, they make permits for
treating, storing and disposing of remediation wastes faster and easier
to obtain; second, they provide that obtaining these permits will not
subject the owner and/or operator to facility-wide corrective action;
third, they create a new kind of unit called a ``staging pile'' that
allows more flexibility in storing remediation waste during cleanup;
fourth, they exclude dredged materials from RCRA Subtitle C if they are
managed under an appropriate permit under the Marine Protection,
Research and Sanctuaries Act or the Clean Water Act; and fifth, they
make it faster and easier for States to receive authorization when they
update their RCRA programs to incorporate revisions to the Federal RCRA
regulations.
DATES: These final regulations are effective on June 1, 1999.
ADDRESSES: Supporting materials are available for viewing in the RCRA
Information Center (RIC), located at Crystal Gateway I, First Floor,
1235 Jefferson Davis Highway, Arlington, VA. The Docket Identification
Number is F-98-MHWF-FFFFF. The RIC is open from 9 a.m. to 4 p.m.,
Monday through Friday, excluding Federal holidays. To review docket
materials, it is recommended that the public make an appointment by
calling (703) 603-9230. The public may copy a maximum of 100 pages from
any regulatory docket at no charge. Additional copies cost $0.15/page.
The index and some supporting materials are available electronically.
See the Supplementary Information section for information on accessing
them.
FOR FURTHER INFORMATION CONTACT: For general information, contact the
RCRA Hotline at (800) 424-9346 or TDD (800) 553-7672 (hearing
impaired). In the Washington, DC, metropolitan area, call (703) 412-
9810 or TDD (703) 412-3323.
For more detailed information on specific aspects of this
rulemaking, contact Michael Fitzpatrick, Office of Solid Waste 5303W,
U.S. Environmental Protection Agency, 401 M Street, SW, Washington, DC
20460, (703) 308-8411, fitzpatrick.mike@epamail.epa.gov.
SUPPLEMENTARY INFORMATION: The index and supporting materials are
available on the Internet. Follow these instructions to access the
information electronically:
WWW: http://www.epa.gov/epaoswer/hazwaste/id/hwirmdia.htm
Outline
The information presented in this preamble is organized as follows:
I. Overview Information
A. Why do This Rule and Preamble Read so Differently From Other
Regulations?
B. What Law Authorizes This Rule?
II. Background Information
A. What Problems Does Today's Rule Address?
1. Response-oriented Programs Have Different Objectives and
Incentives Than Prevention-oriented Programs
2. LDRs, MTRs, and Permitting Raise Problems When Applied to
Remediation Wastes
B. How has EPA Tried to Solve These Problems in the Past?
C. How did the Proposed Rule Attempt to Solve These Problems?
1. The ``Bright Line'' Approach for Contaminated Media
2. Other Options Within the ``Bright Line'' Approach
3. The ``Unitary'' Approach--An Alternative to the ``Bright
Line'
D. What General Comments did EPA Receive About the Two Major
Proposed Options?
E. What did EPA Decide to do After Considering Those Comments?
III. Definitions Used in this Rule (Sec. 260.10)
A. Corrective Action Management Unit (CAMU)--Changes to the
Existing Definition, and Changes to the CAMU and Temporary Unit
Regulations at Secs. 264.552(a) and 264.553(a)
1. Definition of CAMU
2. Secs. 264.552 and 264.553
B. Remediation Waste--Changes to the Existing Definition
C. Remediation Waste Management Site and Facility--New
Requirements for Remediation Waste Management Sites
1. EPA Changed the Term From ``Media Remediation Site'' in the
Proposal to ``Remediation Waste Management Site'' in the Final Rule
2. EPA has Created Different Requirements for Remediation Waste
Management Sites than for Facilities Managing ``As-generated''
Hazardous Wastes
3. Differences Between the Proposed Definition of Media
Remediation Site and the Final Definition of Remediation Waste
Management Site
4. Remediation Waste Management Sites are Not Subject to
Facility-wide Corrective Action
5. Remediation Waste Management Sites are Excluded From Only the
Second Part of the Definition of Facility
6. Facility
D. Staging Pile--A New Kind of Unit
1. Differences Between the Definition of Staging Pile and the
Existing Definition of Pile
2. Differences Between the Proposed Definition of Remediation
Pile and the Final Definition of Staging Pile
E. Miscellaneous Unit--An Edit to the Existing Definition
IV. Information on Remedial Action Plans (RAPs) (Secs. 270.2, 270.68
and 270.80-270.230)
General Information About RAPs
A. What are EPA's Objectives for RAPs?
B. What is a RAP? (Secs. 270.68, 270.2 and 270.80)
1. The Differences Between a RAP and a Traditional RCRA Permit
2. Some Advantages of a RAP Compared to a Traditional RCRA
Permit
3. Differences Between ``Remediation Management Plans'' in the
Proposal and ``Remedial Action Plans'' in the Final Rule
C. When do I need a RAP? (Sec. 270.85)
1. What Activities Require RCRA Permits?
D. Does my RAP Grant me Any Rights or Relieve me of Any
Obligations? (Sec. 270.90)
Applying for a RAP
E. How do I Apply for a RAP? (Sec. 270.95)
F. Who Must Obtain a RAP? (Sec. 270.100)
G. Who Must Sign an Application for a RAP? (Sec. 270.105)
H. What Must I Include in my Application for a RAP?
(Sec. 270.110)
1. Description of the Specific Content Requirements
2. Comments on the Contents of RAPs
3. Contents of RAPs in the Proposal that are Not Required in the
Final Rule
I. What if I Want to Keep this Information Confidential
(Sec. 270.115)
J. To Whom Must I Submit my RAP Application? (Sec. 270.120)
K. If I Submit my RAP Application as Part of Another Document,
What Must I do? (Sec. 270.125)
1. Provisions From the Proposal that are Not Included in the
Final Rule
Getting a RAP Approved
L. What is the Process for Approving or Denying my Application
for a RAP? (Sec. 270.130)
M. What Must the Director Include in a Draft RAP? (Sec. 270.135)
1. Provisions of the Proposal that are Not in the Final Rule
N. What Else Must the Director Prepare in Addition to the Draft
RAP or Notice of Intent to Deny? (Sec. 270.140)
[[Page 65875]]
O. What are the Procedures for Public Comment on the Draft RAP
or Notice of Intent to Deny? (Sec. 270.145)
1. A Description of the Requirements
2. Commenters Requested More Flexibility
P. The Importance of Public Involvement in the RAP Process
Q. How Will the Director Make a Final Decision on my RAP
Application? (Sec. 270.150)
1. A Description of the Requirements
2. Comments on the Proposed Requirements
R. May the Decision to Approve or Deny my RAP Application be
Administratively Appealed? (Sec. 270.155)
S. When Does my RAP Become Effective? (Sec. 270.160)
T. When May I Begin Physical Construction of New Units Permitted
Under the RAP? (Sec. 270.165)
How May my RAP be Modified, Revoked and Reissued, or Terminated?
U. After my RAP is Issued, How May it be Modified, Revoked and
Reissued, or Terminated? (Sec. 270.170)
V. For What Reasons May the Director Choose to Modify my Final
RAP? (Sec. 270.175)
W. For What Reasons May the Director Choose to Revoke and
Reissue my Final RAP? (Sec. 270.180)
X. For What Reasons May the Director Choose to Terminate my
Final RAP, or Deny my Renewal Application? (Sec. 270.185)
Y. May the Decision to Approve or Deny a Modification,
Revocation and Reissuance, or Termination of my RAP be
Administratively Appealed? (Sec. 270.190)
Z. When Will my RAP Expire? (Sec. 270.195)
AA. How May I Renew my RAP if it is Expiring? (Sec. 270.200)
BB. What Happens if I Have Applied Correctly for a RAP Renewal
But Have Not Received Approval by the Time my Old RAP Expires?
(Sec. 270.205)
Operating Under Your RAP
CC. What Records Must I Maintain Concerning my RAP?
(Sec. 270.210)
DD. How are the Time Periods in the Requirements in this Subpart
and my RAP Computed? (Sec. 270.215)
EE. How May I Transfer my RAP to a New Owner or Operator?
(Sec. 270.220)
FF. What Must the State or EPA Region Report About Non-
compliance with RAPs? (Sec. 270.225)
Obtaining a RAP for an Off-site Location
GG. May I Perform Remediation Waste Management Activities Under
a RAP at a Location Removed From the Area Where the Remediation
Wastes Originated? (Sec. 270.230)
HH. Comparison of the RAPs Process to that for Traditional RCRA
Permits
V. Requirements Under Part 264 for Remediation Waste Management
Sites (Sec. 264.1(j))
A. Comments on Applying Part 264 Standards to Remediation Waste
Management Sites
B. EPA's Response to These Comments
C. EPA is Providing Relief From Part 264, Subparts B, C, and D
VI. Application of RCRA Sections 3004(u) and (v), and Sec. 264.101
to Remediation Waste Management Sites (Sec. 264.101(d))
VII. Staging Piles (Secs. 260.10 and 264.554)
A. Introduction and Background
B. A Summary of Principal Changes From the Proposal
1. Changes From the Proposal
2. Consistent With the Proposal
C. What is a Staging Pile? (Sec. 264.554(a))
D. How is a Staging Pile Designated? (Sec. 264.554(b))
E. What Information Must I Provide to get a Staging Pile
Designated? (Sec. 264.554(c))
F. What Performance Criteria Must the Staging Pile Satisfy?
(Sec. 264.554(d))
1. Performance Standards for Staging Piles (Sec. 264.554(d)(1))
2. Decision Factors for Staging Piles (Sec. 264.554(d)(2))
G. May a Staging Pile Receive Ignitable, Reactive, or
Incompatible Wastes? (Sec. 264.554(e))
H. How do I Handle Incompatible Remediation Wastes in a Staging
Pile? (Sec. 264.554(f))
I. Are Staging Piles Subject to Land Disposal Restrictions
(LDRs) and Minimum Technological Requirements (MTRs)?
(Sec. 264.554(g))
J. How Long May I Operate a Staging Pile? (Sec. 264.554(h))
K. May I Receive an Operating Term Extension for a Staging Pile?
(Sec. 264.554(i))
L. What is the Closure Requirement for a Staging Pile Located in
a Previously Contaminated Area? (Sec. 264.554(j))
M. What is the Closure Requirement for a Staging Pile Located in
an Uncontaminated Area? (Sec. 264.554(k))
N. How May my Existing Permit (for Example, RAP), Closure Plan,
or Order be Modified to Allow me to Use a Staging Pile?
(Sec. 264.554(l))
O. Is Information About the Staging Pile Available to the
Public? (Sec. 264.554(m))
P. What is the Relationship Between Staging Piles, Corrective
Action Management Units, and the Area of Contamination Policy?
VIII. Corrective Action Management Units (CAMUs) (Sec. 264.552)
IX. Dredged Material Exclusion (Sec. 261.4(g))
A. What is the Dredged Material Exclusion?
B. Regulation of Dredged Material Under CWA and MPRSA
C. Dredged Material and RCRA Applicability
D. Determination of Regulatory Jurisdiction
E. Clarification of Future Practice
F. Comments on the Dredged Material Exclusion
G. Dredged Material as a Solid Waste
H. Clarification of Terms Related to Dredged and Fill Material
I. Normal Dredging Operations and the Exclusion
J. The Exclusion of Nationwide Permits
X. State Authority (Sec. 271.1(j))
A. Applicability of Rules in Authorized States
B. Effect on State Authorization
1. Staging Piles
C. Authorization for Today's Rule
D. Authorization of State Non-RCRA RAP Authorities
XI. Abbreviated Authorization Procedures (Sec. 271.21(h))
A. Existing Authorization Process
B. Summary of Comments on the August 22, 1995 Proposal
C. Basis and Rationale for Today's New Procedures
D. Rules Listed in Table 1 to Sec. 271.21 to Which the
Abbreviated Procedure Applies
E. Use of Today's Abbreviated Procedure for the Authorization of
Previously Promulgated Rules
F. Final Abbreviated Authorization Procedures
G. Authorization Application Requirements
H. Procedures for Reviewing and Approving Applications
I. EPA's Decision to Not Promulgate Proposed Category 1 and 2
Procedures
J. Improvements to the Existing Authorization Process
XII. Conforming Changes (Secs. 265.1(b), 268.2(c), 268.50(g),
270.11(d), and 270.42 Appendix I)
XIII. How Does Today's Rule Relate to Other EPA Regulations,
Initiatives and Programs?
A. Subpart S Initiative
B. Suspension of the Toxicity Characteristic for Non-UST
Petroleum Contaminated Media and Debris
C. Deferral of Petroleum Contaminated Media and Debris from
Underground Storage Tank Corrective Actions
D. Hazardous Waste Identification Rule (HWIR-waste) (May 20,
1992, and December 21, 1995)
E. CERCLA
F. Legislative Reforms
G. Brownfields
H. Land Disposal Restrictions (Part 268)
XIV. When Will the Final HWIR-media Rule Become Effective?
XV. Regulatory Requirements
A. Assessment of Potential Costs and Benefits
1. Executive Order 12866
2. Background
3. Need for Regulation
4. Assessment of Potential Regulatory Costs
B. Executive Order 12898: Environmental Justice
C. Unfunded Mandates Reform Act
D. Executive Order 12875: Enhancing the Intergovernmental
Partnership
E. Regulatory Flexibility Act
F. Paperwork Reduction Act
G. National Technology Transfer and Advancement Act
H. Submission to Congress and the General Accounting Office
I. Executive Order 13045: Protection of Children from
Environmental Health Risks and Safety Risks
J. Executive Order 13084: Consultation and Coordination with
Indian Tribal Governments
[[Page 65876]]
I. Overview Information
A. Why do This Rule and Preamble Read so Differently From Other
Regulations?
Today's regulatory language and accompanying preamble are written
in a ``readable regulations'' format. The authors tried to use active
rather than passive voice, plain language, a question-and-answer
format, the pronouns ``we'' for EPA and ``you'' for the owner/operator
(in the regulatory text), and other techniques to make it easier for
readers to find and understand the information in today's rule and
preamble.
This new format is part of the Agency's ongoing efforts at
regulatory reinvention, and may be unfamiliar to readers as it looks
very different from the existing regulatory text of the Parts affected
by today's rule. However, the Agency believes that this new format will
increase readers' abilities to understand the regulations, which should
then increase compliance, make enforcement easier, and foster better
relationships between EPA and the regulated community.
All of the requirements found in today's final regulations,
including those set forth in table format, constitute binding,
enforceable legal requirements. The plain language format used in
today's final regulations may appear different from other rules, but it
establishes binding, enforceable legal requirements just as those in
the existing regulations.
B. What Law Authorizes This Rule?
These regulations are finalized under the authority of sections
2002(a), 3001, 3004, 3005, 3006, 3007 and 7004 of the Solid Waste
Disposal Act of 1970, as amended by the Resource Conservation and
Recovery Act of 1976 (RCRA), as amended by the Hazardous and Solid
Waste Amendments of 1984 (HSWA), 42 U.S.C. 6912(a), 6921, 6924, 6925,
6926, 6927 and 6974.
II. Background Information
A. What Problems Does Today's Rule Address?
Currently, hazardous wastes managed during cleanup are generally
subject to the same RCRA Subtitle C requirements as newly generated
hazardous wastes. Often those Subtitle C requirements are not
appropriate for the cleanup scenario, as described below.
1. Response-oriented Programs Have Different Objectives and Incentives
Than Prevention-oriented Programs
Since 1980, EPA has developed a comprehensive regulatory framework
under Subtitle C of RCRA for identifying, generating, transporting,
treating, storing and disposing of hazardous wastes. The RCRA program
is generally considered prevention-rather than response-oriented. The
regulations center around two broad objectives: to prevent releases of
hazardous wastes and constituents through a comprehensive and
conservative set of management requirements (commonly referred to as
``cradle-to-grave management''); and to minimize the generation and
maximize the legitimate reuse and recycling of hazardous wastes.
However, in the remediation programs, EPA wants to develop a regulatory
regime that encourages people to cleanup contaminated areas thereby
generating potentially large volumes of hazardous waste.
The RCRA regulations constitute minimum national standards for
managing hazardous wastes. With limited exceptions, they apply equally
to all hazardous wastes, regardless of where or how generated, and to
all hazardous waste management facilities, regardless of how much
government oversight any given facility receives. To ensure an adequate
level of protection nationally, the RCRA regulations have been
conservatively designed to ensure proper management of hazardous wastes
over a range of waste types, environmental conditions, management
scenarios, and operational contingencies. This causes remediation
activities to be subject to conservative, and often inappropriate
requirements. For example, all waste piles must have a leachate
collection and removal system under Sec. 264.251(a)(2). This is
appropriate when highly concentrated wastes will be stored in a pile
for an extended time, but may not be necessary for less-concentrated
wastes, or shorter-term activities, or cleanup actions when the level
of oversight is high. However, to account for any activities that may
take place nationally, EPA wrote the regulations conservatively to
require all waste piles to comply with these requirements, even when
they will contain less-concentrated waste for a short time. Nationally
applicable requirements must be written in this manner to provide
protective requirements for the highest risk activities that the
regulations allow.
As opposed to requirements designed for on-going waste management,
remediation activities often involve less-concentrated wastes, one-time
activities, and shorter-term activities. Remediation activities are
also conducted under close EPA or State oversight. However, the current
regulations do not allow EPA or the State to modify the requirements
for piles, or many other Subtitle C requirements, to make them more
appropriate for the specific circumstances of the remediation taking
place.
In administering current RCRA regulations for hazardous waste
generated during cleanup, EPA and States have recognized fundamental
differences in both incentives and objectives for prevention- and
response-oriented programs. In prevention-oriented programs, the
regulations require taking appropriate precautions against causing
contamination before an activity takes place, such as the regulations
that require liners and leachate collection systems. Also, because the
regulations provide an incentive to minimize waste production, from the
beginning, the activity is planned and managed to carefully control the
appropriate factors such as amount of waste produced, concentrations,
and handling practices to prevent unacceptable situations such as
releases. However, in administering remedial programs such as Superfund
and the RCRA Corrective Action program, EPA and the States already face
an unacceptable situation (contaminated sites) that must be remedied.
Response-oriented programs must address already existing problems.
Response-oriented programs cannot pre-determine the location of the
contamination, but must respond where contamination has already
occurred, which may be close to sensitive ecosystems or populated
areas. Response-oriented programs cannot control the volumes or
concentrations of remediation wastes, but must manage what wastes have
already been released into the environment in varying volumes,
concentrations and matrices. Often the site-specific situations facing
response-oriented programs make waste management difficult, such as
complex matrices and combinations of constituents of concern, or
concerns over on-site treatment or disposal units to manage the wastes
that must be cleaned up.
In a prevention-oriented system, if the community objected to
building new on-site units, the facility could decide not to engage in
business practices that would generate the waste that would need to be
managed. In the response-oriented situation, however, the facility (or
the regulatory agency) must deal with existing contamination, and must
find an acceptable response.
Also, remedial actions generally receive intensive government
oversight, and remedial decisions are made by a State or Federal Agency
only after they thoroughly investigate site-specific
[[Page 65877]]
conditions. In contrast, prevention-oriented hazardous waste
regulations are generally implemented independently by facility owner/
operators through complying with national regulatory requirements.
2. LDRs, MTRs, and Permitting Raise Problems When Applied to
Remediation Wastes
In the HWIR-media proposed rule, EPA identified the application of
three RCRA requirements to remediation wastes as the biggest problems
to address; Land Disposal Restrictions (LDRs), Minimum Technological
Requirements (MTRs), and permitting.
The LDRs (which appear in 40 CFR part 268) generally prohibit land
disposal (or ``placement'' in land-based units) of hazardous wastes
until the wastes have met the applicable treatment standards. Often
this placement is appropriate and desirable when managing remediation
wastes to excavate them from their current locations, and temporarily
store the wastes before on-site treatment, or to excavate the wastes
and accumulate enough volume to ship off-site cost effectively. By not
allowing temporary storage and accumulation in land-based units, the
LDRs can be a strong disincentive to excavating and managing
remediation waste. The staging pile provisions of today's final rule
address this issue by allowing temporary storage and accumulation of
remediation wastes in a staging pile without being subject to LDR.
Another example of the problems with LDRs in the cleanup scenario
is that contaminated media are often physically quite different from
as-generated process wastes. Contaminated soils often contain complex
mixtures of multiple contaminants and are highly variable in their
composition, handling, and treatability characteristics. For this
reason, treating contaminated soils can be particularly complex,
involving one or sometimes a series of custom-designed treatment
systems. It can be very difficult to treat contaminated soils to the
LDR treatment levels. The parts of the HWIR-media proposal that
addressed this issue have been finalized in the LDR Phase IV rule (63
FR 28556 (May 26, 1998)).
The MTR requirements were designed as preventative standards for
wastes generated through industrial processes. They were not designed
for the remedial context. For example, under 40 CFR Subpart F, surface
impoundments, waste piles, and land treatment units or landfills must
have specific detection, compliance monitoring programs, and corrective
action programs for potential groundwater contamination from the unit.
These are appropriate preventative requirements for units managing
process wastes. However, many cleanup actions involve short-term
placement of remediation wastes into a waste pile, and all of these
requirements may not be necessary. The staging piles provisions of
today's rule address this issue by allowing the Director to determine
appropriate design criteria for the staging pile based on the site-
specific circumstances such as the concentration of the wastes to be
placed in the unit and the length of time the unit will operate. EPA
also explained in the preamble to the CAMU rule additional reasons why
LDR and MTR requirements can be counterproductive when managing
remediation waste as opposed to as-generated process wastes. To read
about these additional reasons, see 58 FR 8658 (8659-8661)(February 16,
1993).
Finally, another area creating roadblocks is permitting. The time-
consuming process for obtaining a RCRA permit can delay cleanups,
thereby delaying the environmental and public health benefits of
cleaning up a contaminated site. For example, the traditional RCRA
permitting process requires the facility owner/operator to submit a
great deal of information on activities at the facility to EPA or the
State, and the permit must include terms and conditions to protect
against any improper waste management practices over the long-term
active life of an operating facility. Because of the large volume of
information submitted, these permits are huge documents and approval
often takes several years. However, in the remedial scenario, cleanup
activities are generally a one-time project; once the cleanup is
completed and the remediation waste is properly treated and disposed,
then the activities are completed. Also, these activities are limited
to addressing the contamination at the site, and therefore are often
more limited in scope than the operating practices of a facility that
is engaged in on-going waste treatment, storage and disposal. To
overcome the limitations discussed above from traditional RCRA permits,
the new Remedial Action Plans (RAPs) requirements in today's rule
streamline the process for receiving a permit for treating, storing and
disposing of remediation wastes, and require the facility owner/
operator to submit significantly less information than for a
traditional RCRA permit. However, the information submitted for a RAP
application and RAP terms and conditions must be sufficient to ensure
proper waste management of the remediation wastes involved during the
life of the cleanup activities.
Furthermore, a facility seeking a traditional RCRA permit to manage
remediation wastes on-site must investigate and cleanup their entire
facility (facility-wide corrective action). This requirement can deter
potential cleanups from happening at all. For instance, facility owners
and operators may wish to clean up a small portion of their facility
for any number of reasons, such as to avoid future liability, to free
the property for sale or other uses, or because they simply wish to
restore the environmental health of their property. However, they may
not be willing to take on the burden of investigating and cleaning up
their entire facility, when it is only a small portion they wish to
voluntarily clean up, and they may be reluctant to conduct the cleanup
under the RCRA corrective action program. Therefore, to encourage
cleanups, under today's final rule, facilities that need a RCRA permit
only to treat, store, or dispose of remediation wastes (remediation-
only facilities) are not subject to the facility-wide corrective action
requirement.
B. How Has EPA Tried to Solve These Problems in the Past?
EPA has tried to solve these problems in the past through a series
of regulations and policies; for example;
The ``Area of Contamination'' (AOC) policy;
The ``contained-in'' policy; and
The regulations for Corrective Action Management Units
(CAMUs), and temporary units.1
---------------------------------------------------------------------------
\1\ 61 FR 18780, 18782 (April 29, 1996), memorandum from Michael
Shapiro, Director, Office of Solid Waste, Stephen D. Luftig,
Director, Office of Emergency and Remedial Response, and Jerry
Clifford, Director, Office of Site Remediation Enforcement, EPA to
RCRA Branch Chiefs and CERCLA Regional Managers, (March 13, 1996);
55 FR 8666, 8758-8760 (March 8, 1990); and 58 FR 8658 (February 16,
1993).
---------------------------------------------------------------------------
All of these regulations and policies help alleviate some of the
problems facing cleanups, but none have completely solved these
problems. (See the October 1997 report by the United States General
Accounting Office, ``Remediation Waste Requirements Can Increase the
Time and Cost of Cleanups.'' 2)
---------------------------------------------------------------------------
\2\ Hazardous Waste: Remediation Waste Requirements Can Increase
the Time and Cost of Cleanups, U.S. General Accounting Office, GAO/
RCED-98-4, October 1997.
---------------------------------------------------------------------------
The AOC policy allows important flexibility for activities done
within a contiguous contaminated area. For example, hazardous
remediation wastes may be consolidated or treated in situ
[[Page 65878]]
within an AOC without triggering the LDRs or MTRs. However, the AOC
policy does not address the permitting issues today's rule is
addressing, nor does it address LDR and MTR for wastes removed from an
AOC, or treated ex situ.
The contained-in policy defines when some contaminated media can be
considered to no longer ``contain'' hazardous waste. When EPA or an
authorized State determines that media do not ``contain'' hazardous
waste, RCRA does not generally pose a barrier to remediation because
permitting requirements, LDRs (generally), and MTRs do not apply to
media that do not contain hazardous waste. However, the contained-in
policy is limited to media only, and does not provide any flexibility
for other remediation wastes, nor does it provide needed flexibility
for highly concentrated media.
The CAMU and temporary unit rules provide much-needed flexibility
for unit-specific standards at cleanup sites. CAMUs and temporary units
are not subject to LDRs or MTRs. The requirements for these units are
set on a site-specific basis, depending on site-specific factors such
as the types of wastes being managed (for example, concentrations,
volumes, other characteristics) and the period of time the unit will
operate. However, CAMUs and temporary units do not address any of the
permitting issues that cause problems for remediation wastes.
Because each of these regulations or policies is limited in solving
the problems inherent to managing hazardous remediation waste under the
RCRA Subtitle C system, EPA felt it was necessary to propose additional
solutions.
C. How Did the Proposed Rule Attempt to Solve These Problems?
EPA recognized a continuing need for further reforms than the
regulations and policies discussed above had provided, and yet knew
that these reforms would be controversial. In 1993, EPA convened a
committee under the Federal Advisory Committee Act (FACA) to provide
recommendations to EPA on how to make these reforms. The FACA Committee
included representatives from environmental groups, regulated industry,
the waste management industry, States, and EPA. The FACA Committee met
numerous times between January 1993 and September 1994. EPA based the
options in the April 29, 1996 HWIR-media proposal on the
recommendations and discussions of the FACA Committee.
EPA presented several options for reforms in the HWIR-media
proposal. EPA presented two comprehensive options (the Bright Line and
the Unitary Approach), and requested comment on sub-options and issues
within those comprehensive options.
1. The ``Bright Line'' Approach for Contaminated Media
The first comprehensive option, which formed the basis for the
proposed rule, was the ``Bright Line'' option. The Bright Line option
would have been limited to ``contaminated media'' only. Contaminated
media was defined to include soils, groundwater, and sediments, but not
debris, nor other remediation wastes such as sludges. The Bright Line
option got its name from a ``line'' dividing more highly contaminated
media from less contaminated media. That Bright Line was a set of
constituent-specific concentrations based on the risks from those
constituents. Media found to contain constituents above these
concentrations would have remained subject to Subtitle C management
requirements (however, the proposal requested comment on some potential
modifications to those requirements), and media containing constituents
below the concentrations would have been eligible for a determination
that it no longer ``contained'' hazardous waste, thereby generally
removing it from Subtitle C jurisdiction.
The determinations of which media were and were not subject to
Subtitle C requirements were to be documented in a Remediation
Management Plan (RMP) approved by EPA or an authorized State. The RMP
would have been an enforceable document that would also have included
any requirements for managing media below the Bright Line, and would
have served as a RCRA Subtitle C permit for treatment, storage or
disposal of media above the Bright Line. The RMP process would have
been more streamlined than that required for RCRA permits obtained
under the current regulations, and also, at remediation-only
facilities, would not have required 3004(u) and (v) facility-wide
corrective action, as is required for all RCRA permits before today's
rule.
2. Other Options Within the ``Bright Line'' Approach
Other requirements that EPA proposed to modify were LDR treatment
standards for soils that remained subject to Subtitle C requirements,
standards applicable to on-site storage and/or treatment of cleanup
wastes during the life of the cleanup, and State authorization
requirements. New treatment standards would have applied to soils that
remained subject to LDRs under the Bright Line approach. EPA also
proposed a new unit called a ``remediation pile.'' Remediation piles
could have been used temporarily without triggering LDRs and MTRs, for
the on-site treatment or storage of remediation wastes subject to
Subtitle C. States picking up any revisions to their RCRA programs (the
proposal was not limited to the revisions to remediation waste
management programs) could have followed new streamlined authorization
procedures. Also, EPA proposed to withdraw the CAMU regulations if the
final HWIR-media rule would sufficiently replace the flexibility
currently available under the CAMU rule.
Finally, EPA proposed excluding dredged materials from Subtitle C
if they were managed under permits issued under the Clean Water Act
(CWA) or Marine Protection Research and Sanctuaries Act (MPRSA).
3. The ``Unitary'' Approach--An Alternative to the ``Bright Line''
As an alternative to the Bright Line approach, EPA requested
comment on the ``Unitary Approach.'' The Unitary Approach excluded all
remediation wastes (irrespective of the concentration of hazardous
constituents in the waste and including non-media remediation wastes)
managed under a Remedial Action Plan (RAP) (which was very similar to a
RMP) from Subtitle C management requirements and made them subject to
site-specific requirements in the RAP.
Again, EPA requested comment on the two main comprehensive options,
the Bright Line and the Unitary Approach, and on all the sub-issues,
such as the proposed elimination of CAMUs, and the new requirements for
remediation piles, LDR, RMPs and RAPs, dredged materials, and State
authorization.
D. What General Comments did EPA Receive About the Two Major Proposed
Options?
Some commenters supported the Bright Line option and thought it was
appropriate to distinguish between highly contaminated media and media
that were less contaminated, and to regulate them differently.
However, most commenters on the Bright Line option believed that
the Bright Line would be too difficult to implement, and therefore
should not be finalized. There were several elements of the Bright Line
option that commenters were concerned about implementing. One concern
was sampling to determine whether media was above or below the Bright
Line.
[[Page 65879]]
Concentrations of contaminants in environmental media typically are not
heterogeneous, and it is difficult to make assumptions about the
concentrations of large areas of contamination without taking many
samples.
Another concern was how to differentiate between media, debris, and
other remediation wastes, such as sludges. Commenters stated that often
these different types of remediation waste are all found at the same
site and they will all need to be managed, and it would be unduly
complicated to have to separate the different types of remediation
wastes and manage them separately under separate regulatory
requirements.
Also, commenters were concerned about the methodology that EPA used
to determine the Bright Line levels themselves. EPA received many
specific comments on the proposed Bright Line constituent specific
numbers, as well as the choice of which constituents were assigned
Bright Line numbers.
With regard to the Unitary Approach, many industry and State
commenters supported the Unitary Approach, saying that the flexibility
would greatly streamline cleanups and allow more appropriate decisions
for managing remediation waste. These commenters emphasized that
flexibility was needed so that States could develop cleanup programs
with oversight and public participation requirements specific to the
concerns, needs, and resources of individual States, and felt that the
Unitary Approach most closely addressed those concerns. However, some
commenters were concerned that the lack of any national requirements
was too open-ended and would not guarantee protectiveness. Commenters
were also concerned about the resources required for States and Regions
to make site-specific determinations of the appropriate management
requirements for remediation wastes at each different site.
Finally, commenters had many specific comments on the elements of
these options such as RAPs and RMPs, remediation piles, LDRs, etc.
Major comments and EPA's responses are summarized under those more
specific sections of this preamble, and all comments are answered
specifically in the ``response to comments'' document for today's rule.
E. What did EPA Decide to do After Considering Those Comments?
EPA has decided to promulgate only selected elements of the HWIR-
media proposal in today's rule, rather than go forward with a more
comprehensive approach as proposed. EPA plans to complement the
elements finalized today by leaving the CAMU regulations in place,
rather than withdrawing these regulations as proposed.
Although EPA conducted a lengthy outreach process before developing
the HWIR-media proposal and made every effort to balance the concerns
and interests of various stakeholder groups, public comment on the
proposal makes it clear that stakeholders fundamentally disagree on
many remediation waste management issues.
EPA agreed with commenters' concerns that the Bright Line approach
would be too difficult to implement, and that a Bright Line that would
satisfy commenters who wanted the Bright Line levels to consist of very
conservative levels would not sufficiently reform the system to remove
the existing barriers to efficient, protective remediation waste
management. EPA has concluded that pursuing broader regulatory reform
would be a time- and resource-intensive process that would most likely
result in a rule that would provoke additional years of litigation and
associated uncertainty. This uncertainty would be detrimental to the
program and have a negative effect on ongoing and future cleanups.
Based on these conclusions, the Agency has decided not to finalize
either the Bright Line or the Unitary Approach, and recognizes that a
purely regulatory response will not solve all of the remediation waste
management issues that HWIR-media was designed to solve.
While EPA believes the elements finalized today along with the
retention of the CAMU rule, will improve remediation waste management
and expedite cleanups, the Agency is also convinced that additional
reform is needed to expedite the cleanup program, especially to provide
greater flexibility for non-media remediation wastes like remedial
sludges, address certain statutory permitting provisions, and more
appropriate treatment requirements for remediation wastes (for example,
treatment that focuses on ``principal threats'' rather than all
underlying hazardous constituents). Therefore, the Agency continues to
support appropriate, targeted legislation to address application of
RCRA Subtitle C land disposal restrictions, minimum technological and
permitting requirements to remediation waste and will continue to
participate in discussions on potential legislation. If legislation is
not forthcoming, the Agency may reexamine its approach to remediation
waste regulation and may take additional administrative action.
The elements finalized in today's rule are:
Streamlined permitting for treating, storing and disposing
of remediation wastes generated at cleanup sites that, among other
things, eliminates the requirement for facility-wide corrective action
at remediation-only facilities;
A variation on the proposed remediation piles, called
staging piles, modified in response to public comments;
A RCRA exclusion for dredged materials managed under Clean
Water Act (CWA) or Marine Protection Research and Sanctuaries Act
(MPRSA) permits; and
Streamlined procedures for State authorization.
EPA also finalized, in a separate document (63 FR 28604 (May 26,
1998)), the LDR treatment standards specific to hazardous contaminated
soil that were proposed in the HWIR-media proposal. EPA is deferring
action on the Treatability Sample Exclusion Rule, that EPA requested
comments on expanding in the HWIR-media proposal at 61 FR 18817.
EPA will withdraw all other portions of the proposal, such as the
proposal under the Bright Line option to distinguish between lower- and
higher-risk contaminated media and give regulatory agencies the
flexibility to exempt lower-risk contaminated media from RCRA
requirements, and the portion of the proposal that proposed to withdraw
the CAMU rule.
Existing areas of flexibility for managing remediation waste, such
as the contained-in and AOC policies, and site-specific land disposal
restrictions treatability variances, continue to be available.
III. Definitions Used in this Rule (Sec. 260.10)
Some terms defined in today's rule may be difficult to understand
when discussed out of context of the rest of the rule; therefore,
readers may wish to read the preamble sections on RAPs and staging
piles before reading this section on definitions. To discuss related
terms together in this preamble, discussion of the definitions is not
in alphabetical order (which is how the terms appear in the rule
language). The section discusses:
First the revised definition of ``corrective action
management unit'' or ``CAMU,'' then
The definition of ``remediation waste,'' then
``Remediation waste management site'' and ``facility,''
then
``Staging pile,'' then finally,
``Miscellaneous unit.''
[[Page 65880]]
A. Corrective Action Management Unit (CAMU)--Changes to the Existing
Definition, and Changes to the CAMU and Temporary Unit Regulations at
Secs. 264.552(a) and 264.553(a)
1. Definition of CAMU
In today's final rule, the Agency has revised the definition of
CAMU, as well as the CAMU and temporary unit regulations themselves.
This revision clarifies the Agency's interpretation of these provisions
and accommodates EPA's new interpretation, promulgated today, that
remediation-only facilities are not subject to the facility-wide
corrective action requirement under RCRA section 3004(u). (See
discussion under the definition of remediation waste management site
below.) Specifically, the Agency has added to both the CAMU definition
(Sec. 260.10) and Secs. 264.552 and 264.553 language providing that
CAMUs and temporary units are not limited to facilities subject to RCRA
sections 3004(u) or 3008(h), but may also be approved at other cleanup
facilities, as well.\3\
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\3\ When using the term ``remediation-only'' facilities, EPA
means facilities that require RCRA permits solely for the purposes
of treating, storing or disposing of remediation wastes due to
cleanup at the facilities. EPA uses this term to distinguish these
facilities from operating treatment, storage and disposal facilities
that manage as-generated process wastes as part of ongoing facility
operations.
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The revised definition in today's rule reads as follows:
Corrective action management unit (CAMU) means an area within a
facility that is used only for managing remediation wastes for
implementing corrective action or cleanup at the facility.
EPA is amending the definition of CAMU by deleting the parts of the
definition that referred to corrective action authorities under
Sec. 264.101 and RCRA section 3008(h). This change will accommodate
RAPs and permits for the management of remediation waste as defined in
today's rule that are not subject to Sec. 264.101 or RCRA section
3008(h). Also, the reference in this definition (as well as in the
definition of remediation waste) to actions taken ``for the purpose of
implementing corrective action requirements under Sec. 264.101 and RCRA
section 3008(h)'' implied that EPA intended to restrict CAMU to these
authorities. In fact, EPA did not intend to restrict the CAMU (or the
temporary unit) to wastes generated solely through specific RCRA
regulatory mechanisms, or to cleanup wastes generated solely at RCRA
treatment, storage or disposal facilities.
For example, EPA anticipated that CAMUs or temporary units might be
used as applicable or relevant and appropriate requirements (ARARs) for
the remediation of many CERCLA sites, especially where CERCLA
remediation involves management of RCRA hazardous wastes. EPA tied its
definition of CAMUs and remediation waste to RCRA Federal authorities
applicable to TSD's (that is, 40 CFR 264.101 and RCRA section 3008(h))
because the Agency developed the CAMU and temporary unit rules within
that context--that is, they were developed as Federal rules to
implement corrective action at facilities subject to RCRA sections
3004(u) or 3008(h). Yet, EPA also expected that the CAMU would be
appropriate as ARARs at Superfund sites; at the Regional
Administrator's discretion for purposes of remediation under RCRA
section 7003 (even if not at a Subtitle C facility); and under State
authorities analogous to section 7003 or CERCLA (which provide a waiver
from otherwise applicable State RCRA requirements).\4\
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\4\ For a discussion of State permit waiver authorities, see the
memorandum from J. Winston Porter, Assistant Administrator, Office
of Solid Waste and Emergency Response, EPA to Regional
Administrators, Regions I-X, EPA (November 16, 1987), available in
the docket to today's rule.
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The revised definition of CAMU makes it clear that the CAMU is also
available under RAPs and other permits for remediation-only facilities
that under the new interpretation in today's rule are not subject to 40
CFR 264.101 or RCRA section 3008(h).
Without this change, the current definitions of CAMU and
remediation waste might be interpreted to preclude the use of CAMUs and
temporary units at remediation-only facilities operating under RAPs.
Yet these facilities are clearly among the type of facilities for which
CAMUs and temporary units would be beneficial--that is, facilities at
which remediation should be expedited and encouraged.
For this reason, EPA has removed the section of the CAMU definition
(and also parallel provisions in the definition of remediation waste)
that appeared to limit CAMUs (and temporary units) to facilities
subject to Sec. 264.101 or section 3008(h). This change should
eliminate any confusion over the scope of CAMUs and remediation waste,
and it is consistent with the central purpose of today's rule--
expediting cleanup at sites overseen by Federal and State cleanup
authorities, whether these sites are within the corrective action
universe, or whether they are ``remediation-only'' or ``remediation
waste management sites'' where RCRA hazardous waste is being managed.
Without this change, the Agency's new interpretation that
remediation waste management sites are not subject to section 3004(u)
corrective action requirements, which is intended to stimulate
cleanups, would have had the unintended effect of eliminating the
availability of two of the waste management options, CAMUs and
temporary units, that were designed for the same purposes.
2. Secs. 264.552 and 264.553
The removal of the language referencing activities performed under
Sec. 264.101 or RCRA 3008(h) from the definition of CAMU does not
change the scope of CAMUs. EPA simply removed the language discussing
authorities from the definition, and added it to the regulatory
language for CAMUs and temporary units at Secs. 264.552 and 264.553.
EPA also added specific language clarifying that CAMUs and temporary
units may be approved at permitted facilities that, under today's rule,
are not subject to Sec. 264.101. EPA believes these provisions are more
appropriate in the regulatory text of the CAMU and temporary unit
requirements instead of in the definitions because they identify the
mechanisms by which CAMUs and temporary units are approved, rather than
define the scope of the unit itself. By including these authorities in
the text of Secs. 264.552 and 264.553, EPA is clarifying that CAMUs and
temporary units are intended to implement corrective action consistent
with the requirements in Sec. 264.101 and 3008(h) requirements, as well
as cleanup under today's RAPs, which do not require compliance with
Sec. 264.101. The mechanisms for approval of CAMUs and temporary units
will be the permit and order procedures, and the RAP procedures. Of
course, Federal and State authorities with permit waiver provisions may
also use CAMUs, as discussed above and in the preamble to the CAMU rule
at 58 FR 8658 (p. 8679) (February 16, 1993).
EPA is also adding language to Secs. 264.552 and 264.553, and has
included language in the new Sec. 264.554 created in today's rule, to
specify that CAMUs, temporary units, and staging piles may only be used
within the contiguous property under the control of the owner/operator
where the wastes to be managed in the CAMU originated. EPA added this
language because the Agency removed that limitation from the definition
of remediation waste, as discussed below. EPA believes these
restrictions are more appropriate in the regulatory text of the CAMU,
temporary unit, and staging pile requirements instead of in the
definitions.
[[Page 65881]]
EPA is retaining the current limitation that CAMUs and temporary
units may only be used within the contiguous property under the control
of the owner/operator, and creating the same limitation for staging
piles created under today's rule. However, EPA believes that it may be
advantageous in some cases to use CAMUs, temporary units, and staging
piles at off-site facilities. Today's rule provides some relief for
off-site management of remediation wastes, but does not allow off-site
CAMUs, temporary units, or staging piles. EPA may reconsider the need
for and appropriateness of allowing off-site CAMUs, temporary units and
staging piles in the future.
B. Remediation Waste--Changes to the Existing Definition
Under current regulations, the term ``remediation waste'' defines
wastes that can be managed in a CAMU or temporary unit. Today's rule
amends the definition for the same reason that EPA made the same change
to the definition of CAMU--to remove the limitation to wastes managed
under Sec. 264.101 and RCRA Sec. 3008(h). The new definition retains
the term's current use, and makes the definition conform with the new
RAPs and staging piles provisions by not limiting remediation wastes to
wastes managed under certain specific corrective action authorities.
Wastes managed under the provisions of today's rule will be managed
during the course of a wide range of cleanups conducted under many
different types of cleanup authorities.
The existing definition of remediation waste (in Sec. 260.10) might
be read as limiting the term to wastes managed under the RCRA
corrective action cleanup authorities of 40 CFR 264.101 and RCRA
section 3008(h). In the preamble to the proposed rule (61 FR 18836),
EPA requested comment on a revised definition of remediation waste that
eliminated the limitation to wastes ``managed for the purpose of
implementing corrective action requirements under Sec. 264.101 and RCRA
section 3008(h),'' and added that wastes from a ``media remediation
site'' could be considered remediation wastes. Today's definition is
based on this definition and reads as follows:
Remediation waste means all solid and hazardous wastes, and all
media (including groundwater, surface water, soils and sediments)
and debris that contain listed hazardous wastes or that themselves
exhibit a hazardous characteristic and are managed for implementing
cleanup.
The Agency has made two changes to the existing Sec. 260.10 definition
of remediation waste originally promulgated for the CAMU and temporary
unit rules. The first change removes references to RCRA corrective
action authorities, and the second change eliminates the restriction
that remediation wastes may originate only from within the facility
boundary.
The first reference that was eliminated defined remediation waste
as wastes ``managed for the purpose of implementing corrective action
requirements under Sec. 264.101 and RCRA section 3008(h).'' The revised
definition refers to wastes ``that are managed for implementing
cleanup,'' without specifying the authority under which owner/operators
must address these wastes. As mentioned above, the Agency specifically
suggested this change in the preamble of the proposed rule (61 FR
18836) in a discussion of the Unitary.
No comments were submitted specifically on the definition of
remediation waste, although several commenters expressed their views on
the general issue of what materials should be subject to the proposed
rule, which is the issue addressed by the definition of ``remediation
waste.'' For example, one commenter expressed support for the approach
envisioned by the proposal, and finalized in today's clarification to
the definition, stating that ``the HWIR-media rule should be applied to
any management of hazardous contaminated media (and further, to all
remediation waste . . .), regardless of whether this remediation is
conducted under RCRA, CERCLA, or other State or Federal authority.''
In view of the statements made by commenters expressing support for
allowing the use of different State and Federal authorities, EPA
continues to believe that the purpose behind the provisions finalized
today--to encourage cleanup by removing unnecessary regulatory
barriers--is best served by the broad definition finalized today.\5\
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\5\ Many commenters on the proposal addressed the issue of the
types of materials that should be eligible for the relief offered by
the proposed rule--most notably, whether relief should be provided
for both contaminated media and hazardous wastes that are managed
during cleanup (for example, sludges that have not commingled with
media). Because this issue was addressed differently under the
various provisions of the proposed rule, these comments are
addressed in the discussion of each specific provision finalized
today.
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The second change has removed the limitation that waste must
originate from ``within the facility boundary.'' This allows
remediation waste managed at off-site locations, such as those
permitted under Sec. 270.230 to continue to meet the definition of
remediation waste even though they are removed from the original site.
The changes made to the definition of remediation waste parallel
changes in the definition of CAMU, and changes to the CAMU and
temporary units regulations at Secs. 264.552 and 264.553.6
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\6\ Today, EPA is also modifying Secs. 264.552 and 264.553 to
allow implementation of CAMUs and temporary units under permits
(including RAPs) at facilities that are not subject to Sec. 264.101
and 3008(h) as discussed in today's preamble under the definition of
CAMU.
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Commenters were concerned about the status of wastes that have
migrated beyond the traditional RCRA ``facility'' boundary, and the
need to include those wastes in remediation waste. Some commenters were
concerned that, as proposed, owners and operators would be required to
obtain a RAP for on-site activities and an RCRA permit for off-site
locations where wastes had migrated. Some were concerned that they
would not be able to bring wastes that had migrated off-site back to
the site for management; still others were concerned that they would be
forced to manage wastes on-site even if it was not the most protective
option. EPA has retained the inclusion of wastes that have migrated
beyond the facility boundary by removing the clause that limited from
where remediation waste could originate. EPA expects this to resolve
the concerns of these commenters.
Finally, it is important to stress two points. First, it should be
noted that remediation waste includes only waste managed because of
cleanup, and does not include wastes generated from on-going hazardous
waste operations, which are commonly referred to as ``newly
generated,'' ``as generated,'' or ``process'' wastes. When managed as
part of a legitimate cleanup action, any (non-``as-generated'')
hazardous wastes (for example, media, debris, sludges, or other wastes)
are all remediation waste. Second, remediation waste includes both
hazardous and non-hazardous solid wastes managed as a result of
cleanup, including any wastes generated from treating remediation
wastes (for example, carbon canisters and sludges generated from
groundwater pump-and-treat or soil vapor extraction systems). Third,
the changes made to the definition of remediation waste do not, in any
way, change the scope of the CAMU and temporary unit regulations. EPA
has replaced the limitation on contiguous property removed from this
definition with a limitation in the CAMU and temporary unit regulations
themselves at Secs. 264.552 and 264.553. That same limitation also
applies to staging piles created in today's rule.
[[Page 65882]]
C. Remediation Waste Management Site and Facility--New Requirements for
Remediation Waste Management Sites
The final definition for remediation waste management site included
in Sec. 260.10 in today's rule is:
Remediation waste management site means a facility where an
owner or operator is or will be treating, storing or disposing of
hazardous remediation wastes. A remediation waste management site is
not a facility that is subject to corrective action under
Sec. 264.101 of this chapter, but is subject to corrective action
requirements if the site is located in such a facility.
Traditionally, RCRA has focused on ``facilities'' when applying
hazardous waste regulations. These are generally properties where
industrial operations manage hazardous wastes that they have generated,
or where commercial operations or entities conduct hazardous waste
treatment, storage, and/or disposal operations. For corrective action
under Sec. 3004(u) and (v) (implemented through Sec. 264.101) and
3008(h), a facility was defined (see Sec. 260.10) as ``all contiguous
property under the control of the owner or operator'' where hazardous
wastes are managed.
In the proposal, EPA defined ``media remediation site'' as a new
term that would apply to a location where certain remediation waste
management activities were taking place, and might or might not include
all or part of a pre-existing RCRA ``facility.'' EPA felt that it was
important to differentiate between existing ``facilities'' and a new
kind of site that would be eligible for the streamlined permits
(Remedial Action Plans or RAPs) promulgated in today's rule, and would
be exempt from Sec. 264.101 and certain other Part 264 requirements
that are not necessary or appropriate for areas used solely to manage
cleanup wastes.
1. EPA Changed the Term From ``Media Remediation Site'' in the Proposal
to ``Remediation Waste Management Site'' in the Final Rule
EPA has replaced the term ``media remediation site'' with the more
descriptive term ``remediation waste management site.'' Commenters
generally supported the concept of a media remediation site, but the
term ``media remediation site'' caused confusion for some, because
``remediation site'' implies an area that is being cleaned up, not, as
is meant in this case, an area where hazardous remediation wastes are
being managed.
Also, the proposed rule allowed only contaminated media to be
exempted from Subtitle C requirements, and the word ``media'' in the
title ``media remediation site'' was meant to emphasize that the
exemptions were only for contaminated media. In today's final rule, EPA
is not exempting any wastes from Subtitle C, and all provisions of this
final rule apply to all remediation wastes, so the term ``media'' is no
longer needed in the definition of the site.
These are the reasons EPA changed the term from ``media remediation
site'' to ``remediation waste management site.'' Changes to the
definition of the proposed term are discussed later in this section.
2. EPA has Created Different Requirements for Remediation Waste
Management Sites Than for Facilities Managing ``As-generated''
Hazardous Wastes
Throughout today's rule and the proposal, EPA has emphasized that,
to stimulate cleanup, it is important to regulate remediation waste
management activities differently from as-generated process waste
management where appropriate. This definition of remediation waste
management site allows EPA to apply requirements to remediation waste
management activities that are more appropriate for the remediation
scenario than the current requirements that, until today's rule, have
applied to both remediation waste management and as-generated process
waste management.
In today's rule, to facilitate prompt and protective treatment,
storage, and disposal of hazardous remediation wastes, EPA has created
three new requirements for remediation waste management sites that are
different from those for other facilities:
A new form of an RCRA permit for treating, storing and
disposing of hazardous remediation wastes (a RAP) that streamlines the
permitting process for remediation waste management sites to allow
cleanups to take place more quickly (Part 270, Subpart H);
Performance standards for remediation waste management
sites that replace the detailed requirements in Part 264 Subparts B, C,
and D (General Facility Standards, Preparedness and Prevention and
Contingency Plans and Emergency Procedures) (Sec. 264.1(j)); and
A provision excluding remediation waste management sites
from RCRA Sec. 3004(u)'s requirement for facility-wide corrective
action(Secs. 264.1(j) and 264.101(d)).
As noted above, EPA believes it is appropriate to regulate
facilities that manage as-generated process wastes and those that
manage remediation wastes differently, and the designation of a
remediation waste management site defines when the new provisions
unique to areas that manage remediation wastes will apply.
3. Differences Between the Proposed Definition of Media Remediation
Site and the Final Definition of Remediation Waste Management Site
The definition of media remediation site in the proposal which,
like today's definition of remediation waste management site, was used
to define where reduced permitting requirements would apply, was:
An area contaminated with hazardous waste that is subject to
cleanup under State or Federal authority, and areas in close
proximity to the contaminated area at which remediation wastes are
being or will be managed pursuant to State or Federal remediation
authorities (such as RCRA Corrective Action or CERCLA). A media
remediation site is not a facility for the purposes of implementing
corrective action under 40 CFR 264.101, but may be subject to such
corrective action requirements if the site is located within such a
facility (as defined in 40 CFR 260.10).
In response to the limitations to ``contaminated areas'' and
``areas in close proximity,'' several commenters identified specific
situations where those limitations might prevent owners and operators
from conducting environmentally beneficial activities under a RAP.
These comments are addressed in today's rule under new Sec. 270.230,
and the preamble discussion of that section instead of in today's
definition.
EPA has removed from the proposed definition the requirement that
limits media remediation sites to areas subject to cleanup under State
or Federal authority, and wastes managed under State or Federal
remediation authorities. EPA has always intended that today's rule
would promote voluntary initiation of cleanup activities by people not
already required to conduct cleanup under other authorities. EPA
continues to hope that this will be a result of today's rule.
Therefore, EPA has removed this limitation to make it clear that
people voluntarily initiating cleanup can have their properties
designated as remediation waste management sites. These activities
would still ordinarily require a RCRA permit (for example, a RAP) if
owner/operators were to treat, store or dispose of hazardous
remediation wastes, so that the proper requirements would be applied,
and the public would have the opportunity to participate in the waste
management decisions.
Finally, EPA has kept in the final rule the part of the proposed
definition of
[[Page 65883]]
media remediation site that stated that these were not facilities for
implementing facility-wide corrective action. As discussed elsewhere in
this preamble, EPA believes that applying 3004(u) and (v) and 3008(h)
requirements to facilities not already subject to these requirements is
such a disincentive to voluntarily initiated cleanup actions that
people often choose options that do not require permitting, rather than
face such a responsibility.
4. Remediation Waste Management Sites Are Not Subject to Facility-wide
Corrective Action
Today's rule, like the proposal, provides that a remediation waste
management site is not subject to the requirements in RCRA section
3004(u) for facility-wide corrective action. EPA believes, as discussed
more fully in the proposal, that requiring facility-wide corrective
action for facilities that are or will be engaged in ongoing hazardous
waste management outside the context of an environmentally beneficial
cleanup activity may properly be seen as a quid pro quo for the costs
of doing business in, and in some way profiting from, the management of
hazardous wastes. In a remedial context, however, there is no profit or
advantage gained by owners and operators from managing hazardous
wastes; it is simply a necessary part of performing an act that is
environmentally beneficial (that is, cleaning up a site). To view
remediation-only sites as traditional hazardous waste facilities (which
would impose additional cleanup responsibilities) can have the effect
of penalizing those who wish to clean up their properties. EPA does not
believe that this result is one that Congress intended. (See 61 FR
18792-93).
The large majority of commenters on this issue supported the
interpretation, because it is widely recognized that the facility-wide
corrective action requirement often acts as disincentive to cleanup of
wastes subject to Subtitle C. Some commenters, however, expressed
concern over the Agency's legal theory supporting the interpretation.
This concern appears to stem from the commenters' perception that the
Agency is making a purely semantic argument--that is, that by being
renamed ``media remediation sites,'' these sites are no longer the
``facilities'' to which section 3004(u) applies.
The Agency understands the commenters' confusion on this point. The
corrective action requirement of section 3004(u) applies to ``a
treatment, storage, or disposal facility seeking a permit.'' Today EPA
clarifies that the Agency's view is not that remediation-only
facilities do not constitute ``facilities'' for RCRA purposes, but
simply that they should not be interpreted to be the ``facilities
seeking a permit'' to which the requirements in section 3004(u) apply.
In the Agency's opinion, the reference to ``a treatment, storage, or
disposal facility seeking a permit'' clearly refers to facilities that
need permits because they are in the business of hazardous waste
management. Remediation-only facilities, because they only obtain a
permit to engage in remediation, do not fit into that category. EPA
believes that it is a reasonable interpretation of section 3004(u) that
sites that are or will be conducting hazardous waste management only as
part of cleanup activities are not the types of facilities to which
Congress intended to apply the section 3004(u) facility-wide corrective
action requirements. (See 61 FR 18792-93).
In addition, in light of the disincentive to cleanup created by
applying the facility-wide corrective action requirement to
remediation-only facilities, to continue to apply the requirement would
appear to be contrary to one of Congress' clear goals in enacting
section 3004(u)--to ensure that currently unmanaged remediation wastes
that pose a risk to human health and the environment are addressed.
Today's rule differs in one significant respect from the proposal:
this interpretation is no longer limited to facilities that obtain
RAPs, but also applies to remediation-only facilities that obtain
traditional RCRA permits. Thus, any facility that meets the definition
of a ``remediation waste management site'' (promulgated today),
regardless of whether its hazardous waste management activities are
authorized by a RAP or traditional RCRA permit, will not be subject to
the facility-wide corrective action requirement. The Agency agrees with
the one commenter who argued that there was no reason to limit the
relief from section 3004(u) to facilities addressed under the RAP
framework. After all, because the RAP standards are less stringent than
existing requirements, States may choose not to adopt them as part of
their authorized programs. There is no reason to prevent these States,
however, from nonetheless amending their programs to reflect the
section 3004(u) interpretation finalized today. Similarly, if a State
not authorized for corrective action issues a RCRA permit for
remediation-only sites (remediation waste management sites), Federal
corrective action requirements will not attach.
Although the above discussion stresses the use of RAPs as the
vehicle for permitting a remediation waste management site and for
applying the benefits of RAPs, the new requirements in Sec. 264.1(j),
and the elimination of Sec. 264.101 facility-wide corrective action
through the new Sec. 264.101(d) provision for remediation waste
management sites are not limited to sites permitted under RAPs. States
wishing to use the traditional RCRA permits process for activities at
remediation waste management sites may do so, and the other benefits of
remediation waste management sites (Sec. 264.1(j), and 264.101(d))
continue to apply to remediation waste management sites under permits,
as well as under RAPs. The preamble discussion explaining the need and
rationale for these other provisions can be found in the section of the
preamble discussing those provisions.
5. Remediation Waste Management Sites Are Excluded From Only the Second
Part of the Definition of Facility
This exclusion from the definition of facility is strictly limited
to the definition of facility for purposes of corrective action, which
is found in part (2) of the definition of facility. Remediation waste
management sites are not excluded from part (1) of the definition of
facility for other purposes.
6. Facility
EPA is revising the definition of facility, (to make conforming
changes with the definition of remediation waste management site), as
follows:
Facility means ... (3) Notwithstanding paragraph (2) of this
definition, a remediation waste management site is not a facility that
is subject to Sec. 264.101, but is subject to Sec. 264.101 corrective
action requirements if the site is located within such a facility.
EPA requested comment on this change to the definition of facility
at Sec. 260.10 of the proposal, and did not receive any comments
opposing this change, and is therefore finalizing this amendment with
only two minor changes.
First, the proposed rule language stated that ``notwithstanding (1)
and (2)'' remediation waste management sites were not subject to the
facility-wide corrective action requirement, but on further reflection,
it has become clear that the reference to paragraph (1) was an
oversight. This is because the proposed definition clearly stated that
remediation waste management sites are only not ``facilities'' ``for
the purposes of Sec. 264.101.'' The facility definition in paragraph
(1) is not used for those
[[Page 65884]]
purposes. In addition, because the facility definition in paragraph (1)
is used in implementing the rest of the RCRA hazardous waste
regulations, which continue to apply to activities at remediation waste
management sites, paragraph (1) must remain applicable.
Second, the proposed definitional change did not include the
current language that states ``but may be subject to such corrective
action requirements if the site is located within such a facility.''
EPA has added this clause to make the language consistent with the
definition of remediation waste management site, which was included in
this language at proposal.
As the Agency stated in the preamble to the proposed rule, this
language is meant to provide for the following situation: ``In some
cases a media remediation site could be part of an operating (or
closing) RCRA hazardous waste management facility that is already
subject to the Sec. 3004(u) and (v) corrective action requirements; in
those cases, identifying an area of the facility as a media remediation
site [today's remediation waste management site] would not have any
effect on the corrective action requirements for that site or the rest
of the facility.'' (61 FR 18793).
D. Staging Pile--A New Kind of Unit
The definition of staging pile states that ``[s]taging pile means
an accumulation of solid, non-flowing remediation waste (as defined in
40 CFR 260.10) that is not a containment building and that is used only
during remedial operations for temporary storage at a facility. Staging
piles must be designated by the Director according to the requirements
in 40 CFR Sec. 264.554.''
1. Differences Between the Definition of Staging Pile and the Existing
Definition of Pile
This definition uses a slight alteration of the definition of
``pile,'' as defined in Sec. 260.10 for waste piles (Sec. 264.250),
which better fits the purposes of today's staging pile rule. The
definition of pile differs from the staging pile definition in three
ways; the definition of pile:
Is limited to non-containerized waste;
Addresses the ``accumulation of solid, nonflowing
hazardous waste,'' rather than ``solid, nonflowing remediation waste;''
and
Allows for ``treatment or storage'' rather than simply
temporary storage.
First, EPA believes it may often be environmentally protective or
simply more convenient to move remediation wastes in bags or other
containers when placing them into a staging pile. Because bags may
reduce blowing of wastes in a pile, or volatilization of hazardous
constituents, EPA did not want to eliminate the option of bagging, or
other protective activities, of wastes in a staging pile.
Second, because today's rule does not allow ``as-generated''
hazardous waste to be stored or treated in a staging pile, the
rationale behind using the term remediation waste rather than simply
hazardous waste should be clear. EPA also included the ``solid, non-
flowing'' portion of the definition of pile to ensure that liquid
wastes will not be placed in the staging pile. Liquid wastes are
inappropriate for storing in staging piles because of the possibility
of releases and run-off.
Third, the definition of ``piles'' allows both storage and
treatment. However, as discussed below, staging piles allow only
storage.
2. Differences Between the Proposed Definition of Remediation Pile and
the Final Definition of Staging Pile
In the proposed rule, the definition of remediation pile reads
that, ``[r]emediation [p]ile means a pile used only for the temporary
treatment or storage of remediation wastes, including hazardous
contaminated media (as defined in Sec. 269.3), during remedial
operations.''
This definition was altered for a number of reasons. First, the
Agency felt that including the term ``pile'' in the staging pile
definition would only serve to confuse staging piles with waste piles.
Furthermore, because staging piles will accept hazardous remediation
waste, rather than only hazardous contaminated media for the reasons
previously discussed, this portion of the definition also had to be
changed. Finally, treatment is not mentioned in today's staging pile
definition, because treatment will not be allowed in staging piles. No
commenters provided comments directly addressing the definition of
remediation pile. For a fuller discussion of staging piles, and the
comments EPA received, see the discussion of staging piles in section
VII of this preamble.
E. Miscellaneous Unit--An Edit to the Existing Definition
EPA is simply adding the unit ``staging pile'' to the list of units
excluded from the definition of miscellaneous unit. The revised
definition is as follows:
Miscellaneous Unit means a hazardous waste management unit where
hazardous waste is treated, stored, or disposed of and that is not a
container, tank, surface impoundment, pile, land treatment unit,
landfill, incinerator, boiler, industrial furnace, underground
injection well with appropriate technical standards under 40 CFR
Part 146, containment building, corrective action management unit,
unit eligible for research, development, and demonstration permit
under Sec. 270.65, or staging pile.
Miscellaneous units are meant to cover units that do not have
regulatory provisions specific to that individual type of unit. Because
EPA is today adding provisions for staging piles, staging piles should
likewise be excluded from the definition of miscellaneous units.
IV. Information on Remedial Action Plans (RAPs) (Secs. 270.2,
270.68 and 270.80--270.230)
General Information About RAPs
A. What Are EPA's Objectives for RAPs?
After considering the public comments on the proposal, the Agency
crafted the final RAP regulation with the following six objectives in
mind:
One, RAPs should be suited to the specifics of managing remediation
waste in the context of cleanup, both in procedure and in substantive
requirements;
Two, RAPs should ensure compliance with the applicable requirements
for safe hazardous remediation waste management;
Three, RAPs should provide certainty and protection to the
permitted party, as appropriate;
Four, the RAP approval process should provide opportunities for
meaningful public involvement;
Five, because RAPs constitute RCRA permits, the RAP approval
process must, at the least, follow the statutory minimum requirements
for obtaining a permit; and
Six, RAPs, and the RAP approval process should accomplish the
previous objectives through the most streamlined, reasonable, and
understandable regulations possible.
In today's rule, EPA believes that it has reached a reasonable
compromise consistent with these objectives. In summary, the RAP
requirements promulgated today:
Significantly reduce procedural steps in permitting, while
retaining the minimum statutory public participation requirements and
certain basic permitting steps or conditions (for example, permit
appeal procedures);
Replacing the detailed requirements in Secs. 270.3--270.66
with broader performance standards;
Significantly reducing and focusing information
requirements; and
Removing the requirement for facility-wide corrective
action.
[[Page 65885]]
Given this flexibility, EPA believes that it will be possible for
EPA and authorized States to develop RAPs that are much more suited to
cleanups than are current RCRA permits--that is, a RAP will generally
fit the model of a Superfund Record of Decision or an approval of a
cleanup workplan, rather than that of a RCRA Part B permit. EPA
believes this flexibility is essential for an effective cleanup
program.
At the same time, EPA recognizes that its approach to RAPs in
today's rule (and more broadly today's rule as a whole) only partially
solves the long-standing problems associated with remediations
involving hazardous waste regulated under RCRA Subtitle C. For example,
as EPA and others have long emphasized, the statutory public
participation requirements (newspaper notices and radio spots) are
highly prescriptive without, in fact, ensuring effective public
involvement. EPA believes a more flexible approach could better reflect
the wide variety of cleanup actions, while still providing a full
opportunity for public involvement. EPA also recognizes that it has
made less extensive changes to Subtitle C permitting requirements as
they apply to remediation waste than some have recommended. Indeed, EPA
believes that, in the long run, further changes are appropriate.
For example, EPA has left the substantive, unit-specific
requirements in 40 CFR part 264 intact (although the Agency has added
new flexibility for staging piles), even though EPA recognizes that
these requirements do not always make sense in a remedial context. (For
example, secondary containment may not always be needed for tanks
within an area of contamination.) EPA took this approach in today's
rule because it has not yet aired these issues in detail in previous
proposals. EPA is deferring action here, however, the issues are
continuing to be discussed more fully in the context of possible
statutory changes to RCRA.
In the meantime, EPA emphasizes that today's rule, in combination
with existing rules and policies, provides important flexibility in
cleanup scenarios. EPA not only expects that today's rule will provide
significant benefits; EPA also intends (and encourages authorized
States) to use existing flexibility in EPA land disposal standards for
soils, the CAMU rule (which today's rule is retaining), the Agency's
contained-in policy for contaminated media, the AOC concept for
contaminated sites, and similar tools to expedite effective cleanups.
The flexibility provided by today's rule should be understood within
this broader context.
B. What Is a RAP? (Secs. 270.68, 270.2 and 270.80)
Sec. 270.68
To make it clear that RAPs are subject to different, more
streamlined requirements than other RCRA permits, EPA created a
separate Subpart (40 CFR Part 270, Subpart H) for RAPs. The provision
in today's rule in Sec. 270.68 simply points readers who may look for
RAPs in the existing Subpart F (Special Forms of Permits) to the
section for RAPs in the new Subpart H.
1. The Differences Between a RAP and a Traditional RCRA Permit
Secs. 270.2 and 270.80(a)
EPA defines a RAP in Secs. 270.2 and 270.80(a) as a ``special form
of RCRA permit that you [a facility owner/operator] may obtain instead
of a permit issued under sections 270.3-270.66, to authorize you to
treat, store, or dispose of hazardous remediation waste (as defined in
Sec. 260.10) at a remediation waste management site.'' Often, remedies
selected for cleanup sites involve treating, storing or re-disposing of
hazardous remediation waste. RCRA permits are required whenever you
treat, store or dispose of hazardous waste (unless a specific permit
exemption or exclusion applies). Until now, treating, storing or re-
disposing of hazardous remediation wastes required the same type of
permit as that for as-generated process waste management. Traditional
RCRA permits, however, were designed for operating hazardous waste
treatment, storage, and disposal facilities managing as-generated
process wastes. The permit procedures, requirements, and contents were
designed specifically for those situations. Traditional RCRA permits
also require facility-wide corrective action under RCRA Sections 3004
(u) and (v). Many of these requirements are not well suited to cleanup
activities.
Section 270.80(a) also limits RAPs to permit activities done in the
area of contamination or areas in close proximity. This is because EPA
generally wishes to encourage owners and operators to conduct
remediation waste management activities on-site. EPA does allow RAPs
for off-site locations for limited circumstance under Sec. 270.230,
when managing the remediation waste off-site will be more protective
than managing it on-site.
2. Some Advantages of a RAP Compared to a Traditional RCRA Permit
EPA believes that the traditional RCRA permitting requirements are
not well suited for cleanup activities for many reasons.
First, flexibility in public participation for RAPs, as opposed to
the more specific requirements for traditional RCRA permits, is
necessary because cleanup activities vary greatly in volumes of waste
to be managed; amount of time allocated for the project; types of
activities to take place; and risks posed by the cleanup activities.
Also, EPA and State cleanup programs generally involve ongoing dialogue
with the surrounding community about choices of remedies and other
considerations. Many of these programs have developed creative and
successful public participation strategies which may vary slightly from
specific procedures that could be set out in a nationally applicable
Federal regulation.
Second, the more streamlined and flexible requirements for RAPs are
better designed for the cleanup scenario than requirements for
traditional RCRA permits in 40 CFR Part 270 because the Part 270
standards are designed specifically to mirror and implement the
requirements throughout Subtitle C for as-generated process wastes. As
discussed earlier, the Subtitle C requirements are designed for the on-
going management of as-generated waste, and are designed to be a
``cradle-to-grave'' system of regulations that will prevent new
releases from the possible mismanagement of hazardous wastes. While
this ``cradle-to-grave'' system has been successful in preventing new
releases and in providing incentives to minimize the amount of waste
generated, the system is often cumbersome when applied to remediation
wastes. Remediation wastes have already escaped into the environment,
and often are found in unique volumes, matrices, mixtures, etc. The
nationally applicable Subtitle C requirements do not often have the
flexibility to respond to unique circumstances encountered at cleanup
sites. Therefore, the permitting requirements based on the Subtitle C
requirements also do not have the proper flexibility to respond to
unique circumstances encountered at cleanup sites.
Third, information requirements for traditional RCRA permits are
generally based on those nationally applicable requirements mentioned
above, and so are not necessarily appropriate for all cleanup sites.
[[Page 65886]]
Fourth and finally, as discussed below, EPA believes that requiring
facility-wide corrective action for all new RAPs provides disincentives
to cleanups and to remedies that involve excavating and treating or
moving wastes. These disincentives are discussed below.
In implementing, overseeing, and observing the hazardous waste
cleanup programs under RCRA Corrective Action and State cleanup
programs, EPA has concluded that the requirement to obtain a RCRA
permit for on-site treatment, storage or disposal of hazardous
remediation wastes often acts as a disincentive to cleanup,
particularly in the cases where the site is not otherwise subject to
RCRA. Cleanups may be desirable at these sites for many reasons (for
example, a State or Federal cleanup authority might determine that the
site presents a hazard; the facility owner/operator may wish to clean
up the property voluntarily; or a potential future facility owner may
hope to acquire and reuse the property.) Before today's rule, if
facility owners and operators of these sites chose to treat, store, or
dispose of hazardous remediation wastes on-site, they generally would
be required to obtain a RCRA permit, along with all the requirements
(including facility-wide corrective action) that come with that permit.
Obtaining these permits can be very time-consuming and expensive, and
facility-wide corrective action provides a strong disincentive to any
action that would require a permit. This requirement to obtain a RCRA
permit, especially the requirement for facility-wide corrective action,
was found by EPA's Permits Improvements Team (PIT) 7 to be a
major disincentive to cleanup. A recent study by the Government
Accounting Office (GAO) came to a similar conclusion.8 To
avoid having to secure a RCRA permit, many remedial decision-makers
often choose options for remediation that avoid application of the
permit requirements, such as capping in place, which may not be the
best remedial option for the site.
---------------------------------------------------------------------------
\7\ EPA's Permits Improvement Team (PIT) was created in 1994 to
identify specific actions that could be taken by EPA to increase the
efficiency and effectiveness of environmental permitting programs.
The PIT held numerous stakeholder meetings throughout the country
and prepared a draft set of recommendations before it finished its
work in 1997.
\8\ Hazardous Waste: Remediation Waste Requirements Can Increase
the Time and Cost of Cleanups, U.S. General Accounting Office, GAO/
RCED-98-4, October 1997.
---------------------------------------------------------------------------
Under the streamlined approach to permitting promulgated today,
these sites (which have sometimes been referred to as ``remediation-
only sites'') can receive a RAP for remediation waste management
activities that take place at the site rather than a traditional RCRA
permit. EPA has designed the RAPs process to be more streamlined than
that for existing permits to reduce disincentives to cleanups. As
opposed to traditional RCRA permits, RAP procedures, requirements, and
contents are designed specifically for the cleanup scenario.
The differences between the processes for receiving approval of
RAPs and for receiving approval of traditional permits are described
more fully in the sections that follow, as well as in the section
entitled ``Comparison of RAPs Process to That for Other Permits.''
As discussed more fully in the preamble discussion of the
definition of remediation waste management site, RAP recipients (other
than those who are already subject to the corrective action
requirements because of independent RCRA permitting requirements), are
also not required to perform facility-wide corrective action. The
regulatory language for the exemption from the requirements in RCRA
sections 3004 (u) and (v) does not actually appear in the RAPs section
of the regulatory language. Instead, because the requirements for RCRA
sections 3004 (u) and (v) are implemented through the regulatory
language at Sec. 264.101, the exemption from these requirements in
today's rule is found in Part 264 at Secs. 264.1(j) and 264.101(d), as
well as in the definition of remediation waste management site and
facility in Sec. 260.10, instead of part 270.
RAPs cannot be used to permit treatment, storage, and disposal of
``as-generated'' process wastes. RAPs are limited to authorizing the
treatment, storage, or disposal of hazardous remediation wastes. As
this preamble discusses, the definition of remediation waste is limited
to wastes that are managed to implement cleanup. This does not include
``as-generated'' process waste or wastes from any activities that are
not specifically implemented for the purposes of cleanup.
3. Differences Between ``Remediation Management Plans'' in the Proposal
and ``Remedial Action Plans'' in the Final Rule
EPA proposed streamlined permits for remediation-only sites under
the name Remediation Management Plans, or RMPs. The RMP concept was
proposed at Secs. 269.40 through 269.45. As in today's rule, RMPs were
proposed as a special form of a permit for hazardous remediation
wastes; however, RMPs 9 were also the vehicle by which EPA
or a State could exempt low-level hazardous contaminated media from
Subtitle C management requirements, and could impose any necessary
site-specific management requirements on these wastes. As discussed in
section II. E. of this preamble, the Agency is not finalizing the
aspects of the proposed rule that exempt hazardous remediation waste
from Subtitle C, but is finalizing the streamlined permitting process
for treating, storing, and disposing of hazardous remediation waste
(that is, wastes that would have remained within Subtitle C
jurisdiction under the proposal). However, in the final rule, EPA has
named these permits Remedial Action Plans or RAPs.
---------------------------------------------------------------------------
\9\ EPA has chosen to use the term RAP in the final rule because
it is more commonly understood than RMP.
---------------------------------------------------------------------------
In today's rule, as in the proposal, RAPs streamline the permitting
process but, unlike in the proposal, a RAP in today's rule is not used
to document and enforce alternative management requirements for
remediation wastes that are exempt from Subtitle C. Hazardous
remediation wastes remain subject to the applicable requirements in
parts 260-271. Many of the provisions of the proposed RMPs have been
eliminated or revised to accommodate this change.
The specific differences between RMPs, as proposed, and RAPs, as
finalized, are discussed under the description of each section of the
final regulation. EPA emphasizes that the contained-in principle, which
provided a legal rationale for the proposed approach exempting low-
level contaminated media, remains an existing EPA policy. EPA continues
to encourage States to apply this policy, where appropriate, to
expedite cleanups.
Section 270.80(b)
In Sec. 270.80(b) EPA states that the requirements in Secs. 270.3-
270.66 do not apply to RAPs unless those traditional RCRA permit
requirements are specifically required under Secs. 270.80-270.230, but
that the definitions in Sec. 270.2 do apply to RAPs. This is meant
simply to identify those requirements that apply to RAPs and those that
do not. Where appropriate, the RAPs requirements in Subpart H include
their own provisions instead of those in Secs. 270.3-270.66.
Section 270.80(c)
In addition, new Sec. 270.80(c) provides that, notwithstanding any
other
[[Page 65887]]
provision of [Part 270] or Part 124, any document that meets the
requirements in this section constitutes a RCRA permit under RCRA
section 3005(c). This is to ensure that, although RAPs may not be
expressly referred to in other provisions of Parts 270 and 124, they
are indeed RCRA permits. Although today's rule contains additional
language to enhance the reader's understanding, these two new
provisions are the same as proposed at Sec. 269.40(c). The Agency did
not receive any negative comments on this provision, and has therefore
finalized the approach as proposed.
Section 270.80(d)
To facilitate streamlining at cleanup sites, EPA included the
provision at Sec. 270.80(d), which states that a RAP may be either: (1)
a stand-alone document that includes only the information and
conditions required by this Subpart; or (2) part (or parts) of another
document that includes information and/or conditions for other
activities at the remediation waste management site, in addition to the
information and conditions required by this Subpart.
EPA anticipates that RAPs will often be granted at the same time
that other decisions, such as remedy selection, are made at a cleanup
site. Under the cleanup program, the facility owner/operator or the
Director may be preparing other documents, such as remedy decision
documents, which may cover much if not all of what a RAP will cover.
EPA has included this provision to make it clear that the facility
owner/operator and the Director do not have to duplicate efforts, and
can create one document that serves both purposes. This approach was
proposed at Sec. 269.40(e), and again, the Agency did not receive any
negative comment on this provision. In this case--where the issuing
authority is an authorized State--only the portion of the RAP imposed
under today's rule will be enforceable as part of the Federal RCRA
program.
Section 270.80(e)
Throughout the development of the HWIR-media rule, there has been
much confusion about the relationship between RAPs and cleanup
requirements. Notwithstanding the confusion, EPA believes this is a
very simple relationship. Cleanup programs dictate the goals of cleanup
(that is, ``how clean is clean'' and how to select remedies,
investigate sites, and conduct other related activities). Frequently,
the remedies selected under these cleanup programs involve treating,
storing, or disposing of hazardous remediation wastes in a way that
would require a RCRA permit.
RAPs are simply the permitting mechanism for authorizing (according
to RCRA requirements) this treatment, storage or disposal. In
Sec. 270.80(e), EPA has clarified that, if you are treating, storing or
disposing of hazardous remediation wastes as part of a cleanup
compelled by Federal or State cleanup authorities, your RAP does not
affect your cleanup obligations under those authorities in any way. The
RAP does not affect ``how clean is clean'' (cleanup standards), and
does not affect, in any way, existing legal obligations to perform
cleanup actions. This was proposed at Sec. 269.1(c), and the Agency did
not receive any negative comments on this provision, and so it is being
finalized as proposed, except for edits to make it easier to
understand.
Section 270.80(f)
New Sec. 270.80(f) provides that interim status facilities that
treat, store or dispose of remediation waste under a RAP will not lose
their interim status by virtue of receiving an approved RAP, because
the RAP applies only to the remediation waste management activities
that take place as a result of the cleanup, and not to any obligations
under other authorities.
Under today's rule RAPs can now be used to designate CAMUs,
temporary units and staging piles (as well as other non-combustion
remediation waste management units and operations). Owner/operators of
interim status facilities who wish to construct CAMUs, temporary units
or staging piles may now apply for a RAP as the vehicle for imposing
the site-specific requirements, providing a mechanism for enforcing
those requirements and providing for public participation. RAPs provide
for all three of these functions, and may be a desirable alternative to
a 3008(h) enforcement order.
EPA is concerned that allowing a RAP at an interim status facility
may cause confusion about the impact on that facility's interim status,
and therefore has included Sec. 270.80(f). Because RAPs are RCRA
permits, and because permit issuance at an interim status facility
often terminates interim status for that facility, EPA is concerned
that some may think that issuing a RAP at an interim status facility
terminates that facility's interim status. Existing Sec. 270.1(c)(4)
already provides that, if EPA issues or denies a permit for one or more
units at a facility without simultaneously issuing or denying a permit
to all units at the facility, this does not affect the interim status
for any unit for which a permit has not been issued or denied. Section
270.80(f) in today's rule serves a similar function by providing that
RAP issuance does not terminate interim status for the other parts of
the facility not covered by the RAP (or for facility-wide corrective
action purposes).
EPA did not specifically propose this provision, but has included
it in the final rule to avoid confusion. In the proposed rule (see for
example, 61 FR 18791), EPA stated that these provisions would be
implemented under many different programs and agencies. In the proposed
rule at 61 FR 18814, EPA gave examples of CERCLA sites and permitted
treatment, storage and disposal facilities (TSDFs), but did not clarify
how these requirements would apply at interim status TSDFs. This was an
oversight and is corrected by Sec. 270.80(f) in today's final rule.
C. When Do I Need a RAP? (Sec. 270.85)
Section 270.85(a)
Section 270.85(a) states that ``whenever you treat, store, or
dispose of hazardous remediation waste in a manner that requires a RCRA
permit under Sec. 270.1, you must either obtain: (1) a RCRA permit
according to Secs. 270.3--270.66 of [Part 270]; or (2) a RAP according
to [Part 270 Subpart H].''
1.What Activities Require RCRA Permits?
Section 270.1 describes what activities require RCRA permits. If
the facility owner/operator intends to perform activities that require
permits, but is managing only hazardous remediation waste and not as-
generated process wastes, he may take advantage of the streamlined
procedures for RAPs, or may obtain a traditional RCRA permit. There are
also instances where treating, storing or disposing of remediation
wastes do not require a RCRA permit. Today's rule, like the proposal,
will not change, in any way, when a RCRA permit is required. Thus, no
RAP is needed where a permit would not otherwise be required.
One example of when neither RAPs nor traditional RCRA permits would
be required is CERCLA removal and remedial actions. CERCLA Section
121(e) grants a RCRA permit waiver for on-site response actions
selected under CERCLA Section 121. Generally, however, a Record of
Decision (ROD) or other CERCLA decision document would specify the
requirements for complying with the substantive RCRA Subtitle C
requirements for treating, storing, or disposing of remediation waste
on-site. Another example would be when State that is authorized to
[[Page 65888]]
implement the RCRA program has a permit waiver authority that is
analogous to EPA's authority under CERCLA Section 121(e) or RCRA
Section 7003. This permit waiver policy is described in a memorandum
from J. Winston Porter, Assistant Administrator, Office of Solid Waste
and Emergency Response, EPA to Regional Administrators, Regions I--X,
EPA, (November 16, 1987) available in the docket to today's rule.
Today's rule does not change or affect this policy in any way.
In addition, facility owner/operators may manage hazardous
remediation wastes in a way that does not require a RCRA permit. For
example, contaminated remediation wastes can be capped in place, or
excavated and transported off-site to a designated, permitted facility
for treatment or disposal. Another example is that wastes can be
treated or stored on-site in units that are exempt from permitting
requirements, such as wastewater treatment units. (See 40 CFR
Secs. 264.1(g)(6), 265.1(c)(10), and 270.1(c)(2)(v)). Still another
example is that remediation wastes can be treated or stored on-site for
less than 90 days in tanks, containers, or containment buildings (see
40 CFR 262.34), which also does not require a permit.
Section 270.85(b)
In the proposed rule at Sec. 269.43(f), EPA proposed that RMPs
involving on-site combustion of hazardous remediation wastes would have
to follow the requirements for issuance of RCRA permits in 40 CFR parts
270 and 124, and would not be eligible to obtain RMPs. EPA has
finalized that requirement at new Sec. 270.85(b).
EPA received one negative comment on that provision, which stated
that the Agency had not demonstrated how combustion of hazardous
remediation waste is different from other management techniques.
However, the Agency continues to believe, as stated in the preamble to
the proposed rule (61 FR 18818), that it is necessary to include this
provision because Secs. 270.16 and 270.62 include requirements for
trial burns and other important procedures for incinerators that EPA
continues to believe are necessary, even for combustion units handling
hazardous remediation waste. Also there is a high level of public
interest in hazardous waste combustion, which EPA believes merits the
extra public participation steps of the traditional RCRA permitting
process.
Another commenter asked that EPA clarify the procedures required
for permitting of combustion units under RAPs. The proposed rule stated
that ``for remedial actions involving on-site combustion of hazardous
remediation wastes, the procedural requirements for issuance of RCRA
permits . . . shall at a minimum be followed for review and approval of
RMPs [which are RAPs in today's final rule].'' This language led to
confusion over what requirements are considered ``procedural.'' Today's
final rule states that ``[t]reatment units that utilize combustion of
hazardous remediation wastes at a remediation waste management site are
not eligible for RAPs under this Subpart.''
EPA believes that this revised regulatory language makes it clear
that permitting for combustion units does not follow any of the RAP
requirements, but instead the traditional RCRA permitting requirements.
(However, 40 CFR 264.101(d) of today's rule would exempt a facility
receiving a permit for a combustion unit from facility-wide corrective
action, if that facility were a remediation-only site (remediation
waste management site).)
Sec. 270.85(c)
The proposed rule provided for the situation where a facility
owner/operator permitted for on-going hazardous waste operations sought
a RAP for cleanup activities at the facility. Under the proposed rule,
a facility owner/operator might desire a RAP for two reasons--the RAP
was the vehicle by which remediation wastes could become exempt from
Subtitle C, and, for wastes that remained in Subtitle C, the
application and procedural requirements for RAPs were more streamlined
and better tailored to the remediation scenario.
To accommodate these situations, the proposed rule would have
allowed traditional RCRA permits to serve as RAPs (Sec. 269.40(e)(2)),
and also would have allowed the permitted facility to obtain a RAP,
which would only cover the remedial operations at a site, in addition
to its RCRA permit, (see 61 FR 18814). Because under the final rule,
RAPs are not a vehicle for obtaining an exemption from Subtitle C,
there is no need to finalize the proposed rule provision allowing
traditional RCRA permits to serve as RAPs. On the other hand, the
Agency continues to believe it is appropriate to allow permitted
facilities to obtain the benefits provided by the RAP format and has
crafted today's rule accordingly.
Specifically, today's rule (Sec. 270.85(c)) states:
You may obtain a RAP for managing hazardous remediation waste at
an already permitted RCRA facility. You must have these RAPs
approved as a modification to your existing permit according to the
requirements in Secs. 270.41 or 270.42 instead of the requirements
in this Subpart. When you submit an application for such a
modification, however, the information requirements in
Sec. 270.42(a)(1)(i), (b)(1)(iv), and (c)(1)(iv) do not apply;
instead, you must submit the information required under
Sec. 270.110. When your permit is modified, the RAP becomes part of
the RCRA permit. Therefore when your permit (including the RAP
portion) is modified, revoked and reissued, terminated, or when it
expires, it will be modified according to the applicable
requirements in Secs. 270.40 through 270.42, revoked and reissued
according to the applicable requirements in Secs. 270.41 and 43,
terminated according to the applicable requirements in Sec. 270.43,
and expire according to the applicable requirements in Secs. 270.50
and 270.51.
This approach differs from the proposal in that a facility with a
permit covering ongoing hazardous waste operations would not obtain a
RAP as a separate authorizing document for the hazardous waste
management activities conducted during the course of cleanup. The
Agency made this change to avoid potential overlaps, gaps or confusion
in having two authorizing documents at one facility. Instead, the rule
provides that a RAP at a permitted facility be integrated into the
permit as a permit modification. Thus, the more streamlined RAP
application content requirements in Sec. 270.110 apply, but the
procedures for RAP approval in these cases are the permit modification
procedures Sec. 270.41 or Sec. 270.42.
The Agency chose the permit modification procedures over the RAP
procedures because it believes that establishing two different
procedures for permit modifications--depending on whether you were
modifying permits to include a RAP, or doing any other form of permit
modification under Secs. 270.41 and 270.42--would be unnecessarily
confusing.
Comments were mixed. Two commenters stated that the proposed rule
was unclear as to how RAPs would apply at facilities that already had a
RCRA permit. One commenter said that EPA should not require both a RAP
and a permit for the same activity. Another commenter suggested
amending permits to require compliance with RAPs. Two other commenters
disagreed with each other. One stated that RAPs would be beneficial
because they would avoid the cumbersome and costly permit modification
process. The other stated that it was unnecessary and inappropriate to
allow separate and less rigorous procedures at facilities already
subject to permitting. EPA agrees with this commenter to the extent
that today's rule requires issuance,
[[Page 65889]]
modification, revocation and reissuance, and termination of RAPs
through standard permit procedures at permitted facilities. But, EPA
also believes that the relief provided by the content requirements for
RAPs at Sec. 270.100 should be available at permitted facilities. EPA
developed the standards of today's rule with cleanups specifically in
mind. The Agency believes that they are generally appropriate for
cleanups taking place at TSDs, as well as to cleanups taking place
under RAPs elsewhere.
There are three classes of modifications for traditional permits,
Classes 1, 2, and 3. When modifying a permit to incorporate a RAP, the
Director and the facility owner/operator must follow the Class
modification procedure that is appropriate for the activities being
permitted under the RAP. The last sentence of new Sec. 270.85(c)
provides that once the RAP is part of the permit, the applicable permit
procedures must be followed for modification, revocation and
reissuance, termination and expiration. However, the content
requirements for RAPs will always remain those in Sec. 270.110. EPA
included this provision to avoid confusion about which requirements
apply when making changes to RAPs that are part of RCRA permits.
This does not mean that RAPs at permitted facilities must follow
two procedures, one for approval of the RAP and one for permit
modification. On the contrary, RAPs at permitted facilities need only
follow one process, the permit modification procedure, to receive
approval.
D. Does my RAP Grant me Any Rights or Relieve me of Any Obligations?
(Sec. 270.90)
Today's rule at new Sec. 270.90 applies the Sec. 270.4 provisions
to RAPs. Section 270.4(a) is known as ``permit as a shield,'' and
protects the facility owner/operator in that as long as they comply
with the terms of their RAP, they will be considered in compliance with
RCRA Subtitle C for enforcement purposes, except for the four
exceptions noted below. This means that EPA will not take enforcement
actions against facility owner/operators for activities that are in
compliance with their RAP, unless one of the four exceptions in
Sec. 270.4(a) applies. Although the proposed rule did not contain this
provision, EPA requested comment on applying it at 61 FR 18815 of the
proposal.
One commenter expressed concern about EPA granting ``permit as a
shield'' to RAPs, arguing that the shield concept presumes that all
RAPs will be properly drafted, and that this presumption is
inappropriate, given the Agency's own acknowledgment, embodied in the
proposed rule's requirements for State HWIR-media program withdrawal,
that improper drafting may occur. Several other commenters, however,
stated that it is appropriate to specify that compliance with a RAP
constitutes compliance with RCRA.
The Agency agrees with these latter commenters. The Agency believes
that including this provision is necessary to provide facility owners
and operators with a measure of assurance that activities performed
under an approved RAP will be recognized by the Agency as satisfying
Subtitle C requirements for those activities expressly addressed and
permitted by the RAP. EPA articulated the rationale for a ``shield''
provision in the May, 19 1980 final rule, which established this
provision for permits (see 45 FR 33311). Specifically, EPA stated:
EPA believes that this ``shield'' provision is one of the
central features of EPA's attempt to provide permittees with maximum
certainty during the fixed terms of permits. . . . This new
provision gives a permittee the security of knowing that, if it
complies with its permit, it will not be enforced against for
violating some requirement of the appropriate Act [e.g. , RCRA]
which was not a requirements of the permit . . . EPA agrees that one
of the most useful purposes of issuing a permit is to prescribe with
specificity the requirements that a facility will have to meet, both
so that the facility can plan and operate with knowledge of what
rules apply, and so the permitting authority can redirect its
standard-setting efforts elsewhere. If all the 3004 standards were
fully enforceable against a permitted RCRA facility even though they
were not reflected in the permit (or, perhaps, not consistent with
it), facilities would be exposed to unavoidable uncertainty as to
the standing of their operations under the law. In addition, such a
provision would increase pressure on EPA and States to keep permit
conditions applicable to a given facility in a perpetual state of
re-examination. EPA's resources will at most be barely sufficient to
issue and renew RCRA permits, and review State permits, at the time
of their initial issuance and periodic renewal. EPA and States are
likely to make much better use of their resources if they restrict
examination of permits between issuance and renewal to monitoring
compliance and taking enforcement action where necessary.... [The
shield] now places the burden on permit writers rather than
permittees to search through the applicable regulations and
correctly apply them to the permittee through its permit. This means
that a permittee may rely on its . . . permit document to know the
extent of its enforceable duties.
With regards to the commenter who was concerned about granting
``permit as a shield'' to RAPs, EPA believes that the commenters
concerns are alleviated by the differences between the proposed and the
final rule. RAPs under the proposed rule performed a different function
from RAPs under the final rule. In the proposed rule, RAPs were the
vehicle for excluding remediation wastes from Subtitle C requirements
and instead imposed site-specific requirements on these wastes. The
commenter who was concerned about the permit as a shield provision may
have been concerned that a poorly written RAP might include site-
specific requirements for wastes excluded from Subtitle C that were not
protective of human health and the environment. Because today's final
rule does not exclude any wastes from Subtitle C requirements, that is
no longer a concern.
As mentioned above, Sec. 270.4(a) includes four exceptions to the
``shield'' provision. Specifically, the permit does not shield the
facility owner/operator from enforcement for requirements not included
in the permit which:
(1) Become effective by statute;
(2) Are promulgated under Part 268 of this chapter restricting the
placement of hazardous wastes in or on the land;
(3) Are promulgated under Part 264 of this chapter regarding leak
detection systems; or
(4) are promulgated under Subparts AA, BB or CC of Part 265 of this
chapter limiting air emissions.
With respect to the fourth exception, under Sec. 264.1080(b)(5) the
requirements in Part 264 Subpart CC do not apply to ``a waste
management unit that is used solely for on-site treatment or storage of
hazardous waste that is generated as the result of implementing
remedial activities required under the corrective action authorities of
RCRA sections 3004(u), 3004(v) or 3008(h), CERCLA authorities, or
similar Federal or State authorities.'' Therefore, remediation waste
management units permitted by RAPs will not be subject to Subpart CC
requirements. EPA expects that any of these four exceptions to the
shield, especially numbers (3) and (4), will often not be relevant to
activities taking place under RAPs.
Also, in the same way as for traditional RCRA permits, the shield
provisions cover only activities that are authorized by the RAP, not
any other hazardous waste management activities the facility owner/
operator may perform at the site. For example, if the RAP covers a
treatment unit, then activities performed in compliance with the RAP
requirements for that treatment unit are covered by the ``shield.''
However, if the operator decides to build and use a disposal unit
on-site that is not addressed in the RAP, the
[[Page 65890]]
operator must either obtain a modification to the RAP, or a traditional
RCRA permit for that new activity, or they will not be shielded from an
enforcement action under RCRA for operating that unit without a permit.
In no way does this provision be shield a facility owner or operator
from an enforcement action for a RCRA violation for any as-generated
waste management requirements (as those activities are excluded from
coverage under RAPs). Finally, because a RAP is simply a permitting
mechanism for managing remediation waste, but does not address cleanup
obligations, Sec. 270.4(a) does not shield a facility owner/operator
from cleanup obligations that apply to facilities subject to Federal or
State remedial authorities.
Section 270.4(b) and (c) address property rights, privileges, and
authorization of injury, invasion of rights, or infringement of State
or local law or regulations. Because the Agency received no adverse
comments on these provisions proposed at Sec. 269.40(f) and (g), and
because they were the same as Sec. 270.4(b) and (c) for traditional
RCRA permits, EPA is not creating new provisions specific to RAPs, but
is applying the identical Sec. 270.4(b) and (c) provisions to RAPs as
proposed.
Applying for a RAP
E. How do I Apply for a RAP? (Sec. 270.95)
The first step towards obtaining RAP approval is to apply for a
RAP. This section simply states that to apply for a RAP the owner/
operator must complete an application, sign it, and submit it to the
Director according to the requirements in part 270 Subpart H.
F. Who Must Obtain a RAP? (Sec. 270.100)
This requirement explains that if the site is owned by one person,
but the activities are operated by another person, then it is the
operator's duty to obtain a RAP, except that the facility owner must
also sign the RAP application. It mirrors the requirement for other
permits in Sec. 270.10(b). The operator is the person responsible for
the activity being permitted by the RAP, is the most familiar with the
proposed activity, and is therefore, the most reasonable choice for who
should be responsible for obtaining the RAP. The proposed rule stated
that ``the owner/operator must receive approval by the Director of a
Remediation Management Plan (RMP).'' The proposal did not distinguish
between the facility owner and operator, but the Agency believes that
this provision of today's rule will provide additional clarity about
who is responsible for obtaining a RAP.
G. Who Must Sign an Application for a RAP? (Sec. 270.105)
The proposed rule (at Sec. 269.43(b)) (like the final rule today)
required both the facility owner and operator to sign the application
for a RAP according to Sec. 270.11. Their signatures are meant to
certify that the information contained in the RAP application, to the
best of the signatory's knowledge and belief, is true, accurate, and
complete (see Sec. 270.11 (d)).
In response to the Agency's request for comment on whether
signatures of both the facility owner and operator should be required (
61 FR 18817), several commenters objected to the proposed requirement,
pointing out that in many instances one party may take a completely
passive role in the cleanup process. One commenter pointed out that the
current owner of a site may not have technical involvement in the
cleanup or may be unwilling to commit resources to the cleanup.
These commenters felt that it could obstruct or delay cleanup
efforts if both parties are required to sign the RAP application,
especially if the passive party was fearful of incurring liability by
signing. Other commenters felt that both parties should be required to
sign the RAP application (as is required for traditional RCRA permits)
as an indication that they both agree with the provisions in it. One of
these latter commenters pointed out that States still hold the facility
owner responsible for activities on his property regardless of whether
another party operates the site. This commenter felt that requiring the
facility owner to sign as well as the operator would signify that the
property owner is aware of the activities occurring on his property.
EPA has sympathy with commenters on this issue who argue that in
some cases owners may take a passive role, especially with respect to
how the remediation waste is managed. At the same time, EPA notes that,
under the statute, RCRA permits must be issued to both the owner and
the operator. EPA also believes that owners, as well as operators,
should ordinarily be responsible for the conduct of cleanup activities.
Finally, owners may know about activities on the property that the
operator is not involved in or aware of, and can provide valuable
information for the permit. To be sure, one of the prime justifications
for requiring the facility owner's signature on the permit--that the
facility owner is liable for facility-wide corrective action--does not
apply in this case. Nevertheless, the facility owner's signature is
generally important to confirm that the cleanup is proceeding with his
knowledge and approval, and to put the facility owner on notice of
potential liabilities. Where it is difficult to get a facility owner to
agree to a RAP, EPA may find that an enforcement action is more
appropriate than a permit.
As proposed (Sec. 269.43(b)), Sec. 270.105 in today's rule requires
the RAP application to be signed according to Sec. 270.11. The
requirements in Sec. 270.11(a) specify the appropriate person to sign
the RAP application in the case of a corporation, partnership, sole
proprietorship, municipality, State, Federal, or other public agency.
Section 270.11(b) requires that any reports required by the RAP be
signed by the person specified in Sec. 270.11(a) or a duly authorized
representative. Section 270.11(c) describes what to do if authorization
under Sec. 270.11(b) changes. Section 270.11(d) requires a person
signing a document under Sec. 270.11(a) or (b) to certify that the
documents were prepared under their direction, that the information is
accurate and complete, and that they understand the penalties of
submitting false information. EPA has provided that the facility owner
may choose an alternative certification under Sec. 270.11(d)(2) if the
operator certifies under Sec. 270.11(d)(1).
After reviewing comments on the respective role of the operator and
the land owner, EPA concluded that a less rigorous certification may be
appropriate for the land owner, if the operator is more familiar with
the cleanup activities than the facility owner. As explained earlier,
EPA expects that the operator will be preparing the RAP application and
will be familiar with its details. He will also be responsible for
carrying out the cleanup. Therefore, it makes sense to have the
operator provide the certification. At the same time, as a signatory to
the permit, the landowner remains jointly and severally liable with the
operator, and EPA retains the ability to enforce the terms of the RAP
against the landowner where this enforcement is appropriate in EPA's
discretion.
EPA believes that the less rigorous certification in
Sec. 270.11(d)(2) is appropriate because it continues to require the
facility owner to make appropriate inquiries and provide any
information he has about the property that will be the subject of the
RAP. Other than general comments on who should submit the permit
application, EPA did not receive comment on these requirements.
Therefore, with this one exception, EPA has finalized the requirements
as proposed.
[[Page 65891]]
H. What Must I Include in My Application for a RAP? (Sec. 270.110)
1. Description of the Specific Content Requirements
This subsection lists the specific pieces of information that the
owner/operator must include in a RAP application, and also requires the
facility owner/operator to submit any other information the Director
considers necessary. The information required under Sec. 270.110(a)
through (e) includes names and addresses, latitude and longitude of the
site, a map showing site location, and scaled drawings of the
remediation waste management site features and boundaries.
The proposal did not explicitly list in the ``Content of RMPs''
section the information required in the final rule under
Sec. 270.110(a) through (e). However, these details were suggested by a
commenter on the proposal. EPA expected that this information would
generally have been required under the proposed rule. Because the
information would be important in identifying the activities to be
authorized by a RAP, the information generally would either have been
included in the RAP application, or if not, would have been required by
the Director under the proposed Sec. 269.41(c)(10) (``other information
determined by the Director to be necessary'').
The Agency, however, agrees with the commenter that it should be
added as an express requirement, to avoid any unnecessary delay caused
by an applicant's failure to submit it in the first instance. In
addition, these information requirements are similar to the types of
information required under a Part A application in Sec. 270.13,
although better tailored to the remediation scenario.
New Sec. 270.110(f) requires the application to specify the
hazardous remediation waste to be treated, stored, or disposed of, to
estimate the quantity of waste to be managed, and to describe the
processes to be used for treating, storing, and disposing of the waste.
This provision finalizes appropriate aspects of what was required under
proposed Secs. 269.41 (c)(1) through (6).
Specifically, the proposed rule differs from the rule promulgated
today in that it required information regarding not only what under
today's rule constitutes ``hazardous remediation waste,'' but also what
constitutes ``non-hazardous contaminated media.'' The Agency has
eliminated references to ``non-hazardous contaminated media'' because,
as discussed more fully in preamble section II. E., EPA has decided not
to finalize any of the approaches from the proposal that would have
excluded remediation waste from Subtitle C, and had the RAP address
non-hazardous media. The Agency has therefore eliminated requirements
that were proposed to implement that portion of the proposed rule
(proposed Sec. 269.41(c)(1) and (3)).
Section 270.110(g) requires the facility owner/operator to submit
information to demonstrate that the remediation wastes will be managed
according to the applicable hazardous waste management requirements
found in Parts 264, 266 and 268. This provision finalizes the proposed
provision of Sec. 269.43(c)(2). Although many commenters would have
preferred all remediation wastes to be exempt from the Subtitle C
requirements, including Parts 264, 266 and 268, for the reasons
discussed earlier in this preamble, the Agency has decided not to
finalize either the Bright Line or Unitary approaches which would have
exempted remediation wastes from Subtitle C, and therefore, all
hazardous remediation wastes remain subject to these requirements.
This flexible requirement replaces the detailed, unit-specific
requirements in 40 CFR 270.14 through 270.27 that apply to traditional
RCRA permits, and which lay out the information required in a Part B
permit application. EPA has taken this more flexible approach, both
because of the wide variation in cleanup activities, and because of the
Agency's interest in streamlining the permit process for remediation
activities. In implementing current remedial programs, including CERCLA
and EPA's RCRA enforcement programs, the regulated community, the
regulators, and interested members of the public successfully work
together to develop enforceable remediation plans, and EPA believes
there is no need for the Agency at this point to mandate detailed
``information'' requirements for RAPs based on part B requirements.
Thus today's rule simply requires the RAP applicant to provide enough
information to demonstrate compliance.
Section 270.110(h) requires the RAP applicant to submit enough
information for the Director to comply with other Acts, as required for
traditional RCRA permits under Sec. 270.14(b)(20). In approving any
form of permit, the Director must comply with the requirements in other
applicable laws, and therefore, may need information from the RAP
applicant to determine the applicability of these other Acts. This was
not specifically discussed in the proposal, but where applicable, could
have been required under proposed Sec. 269.41(c)(10). The Agency
believes that making this requirement explicit will eliminate delays
that might result from any potential confusion on this point.
The wide variation in possible hazardous remediation waste
management that may take place under RAPs makes it difficult to
anticipate all of the Director's information needs. Therefore,
Sec. 270.110(i) requires the RAP applicant to submit any other
information the Director determines to be necessary for demonstrating
compliance with the provisions of Subpart H of part 270 or for
determining additional conditions necessary to protect human health and
the environment.
The first part of Sec. 270.110(i) was proposed at
Sec. 260.41(c)(10); because EPA received no comment on this provision,
it is finalized as proposed. The second part Sec. 270.110(i) about
information for determining additional conditions necessary to protect
human health and the environment simply makes express the Director's
authority to request information necessary to enable him to fulfill his
duty under the ``omnibus'' authority of RCRA section 3005(c) to include
conditions in permits necessary to protect human health and the
environment. This statutory provision is codified in today's rule at
Sec. 270.135(b)(4).
All of the information required under Sec. 270.110 forms the basis
for the Director's determination of whether or not to approve the RAP
application. The Agency expects RAPs to be more streamlined than
traditional permits and therefore expects that, as a general matter,
the information the facility owner/operator will need to submit for a
RAP application will be significantly less than is traditionally
required for a RCRA Part B permit application under Secs. 270.14
through 270.27. This is because the specific Part B requirements for
units, which are much more extensive that what is required by today's
rule, were designed with long-term operation of a TSDF in mind. This
operation is generally very different from the activities that take
place as part of a one-time remediation waste management activity.\10\
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\10\ It should be noted that EPA is also developing a proposal
to streamline (and in most cases eliminate) information requirements
for RCRA permits covering on-site storage or treatment of hazardous
waste in tanks or containers.
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Also, the Agency believes that, due to the wide range of activities
that might take place under a RAP, it is more appropriate to provide
flexibility so that the appropriate amount of information can be
determined by the site-specific action. RAPs may permit many different
[[Page 65892]]
types of activities, from on-site storage of investigation-derived
waste to treatment and permanent disposal under RCRA requirements. EPA
has allowed considerable flexibility in what information is required to
be submitted, to allow for the variation in the types of activities
being performed under a RAP, and the anticipated generally shorter
time-frames for remediation waste management activities.
2. Comments on the Contents of RAPs
Several commenters agreed with EPA's basic framework for the
contents of RAP applications. Commenters suggested additional
information that should be included in a RAP application if it were the
vehicle for determining when hazardous contaminated media could be
exempt from Subtitle C, but because the RAP is not serving that
function, those comments no longer apply. One commenter was concerned
that EPA would require information on management of wastes off-site,
but that information is not required in today's rule.
One commenter was concerned that the requirements to include
volumes of the waste being managed would require excessive site
characterization. However, the regulatory language in Sec. 270.110(f)
reads, ``an estimate of the quantity of these wastes,'' which is the
same language used for Part A permit applications in Sec. 270.13(j).
The purpose of this information is simply to provide an idea of the
scope of the operation, not to require an exhaustive site
characterization effort. EPA understands that the estimated volume of
waste to be managed may change significantly in the course of the
cleanup.
Another commenter noted that the different types of wastes
regulated under the proposed ``Bright Line'' approach made the contents
of RAPs overly complicated, but EPA is not finalizing that option in
today's rule, and so has eliminated that complication.
Several commenters asked that EPA allow the RAP to be coordinated
with other submittals of the same information, so that efforts need not
be duplicated to prepare numerous submittals. It is for precisely that
reason that EPA has allowed other documents (or parts of other
documents) to serve as parts or all of the RAP if they contain the
information and conditions necessary for RAPs, so that the facility
owner/operator does not have to duplicate efforts. This can be found at
new Sec. 270.125.
Finally one commenter suggested that EPA make it possible for a
facility owner/operator to incorporate ``presumptive remedies'' into
RAPs similar to the approach EPA developed in the CERCLA program. While
EPA is not addressing issues such as proper cleanup levels or remedies
under today's rule, EPA could develop a set of ``standard'' RAP
provisions to cover commonly encountered situations at sites managing
hazardous remediation wastes. These generic provisions could be
customized, as necessary, to address appropriate site-specific
considerations.
EPA believes that a ``generic RAP provisions'' approach can be
appropriate at RCRA sites, and it agrees this approach can
significantly streamline the development of new documents. EPA will
consider creating such a model as guidance for the HWIR-media rule.
However, in the meantime, EPA encourages States, or even large
companies with multiple sites, to develop model RAPs. For example,
commenters have told EPA that there are multiple, similarly
contaminated areas in Alaska involving petroleum product spills. EPA
believes that this may be an appropriate situation for regulated
industries, the State of Alaska, and EPA to work together to develop a
model RAP that would cover the situations frequently encountered in
Alaska with petroleum and other contaminants. Such a model RAP could be
used, with minor modifications to consider any unique, site-specific
circumstances, and would be faster to develop and approve if EPA, the
State, and the facility owner/operator had already agreed on the basic
principles in the model.
3. Contents of RAPs in the Proposal That Are Not Required in the Final
Rule
Several parts of the proposed ``RAPs contents'' requirements are
not included in the final rule. First, proposed Sec. 269.41(c)(8)
required facility owners and operators to submit information that
describes planned sampling and analysis procedures. This requirement is
not necessary because waste analysis is required under today's rule at
Sec. 264.1(j)(2).
Proposed Secs. 269.41(c)(9) and 269.42(b) required facility owners
and operators to submit data from treatability studies and full scale
implementation of treatment systems to EPA. The Agency has not included
that requirement in the final rule. EPA proposed to require the
collection of treatability data so that it could set treatment
standards with reasonable confidence that those standards could be met
with available technologies, and to provide information on the
effectiveness of available technologies in treating different kinds of
contaminated media.
One of the proposed rule's goals was to provide data to ensure
appropriate future treatment requirements. To collect this data, the
proposed rule would have required owners and operators to submit data
to EPA upon completing remedial treatment (both full-scale as well as
treatability studies). EPA has decided not to mandate the collection of
treatability data for contaminated media as originally proposed. Since
the proposal, EPA has finalized new LDR treatment standards for
contaminated soils. EPA believes that those new standards are supported
by the available data and does not feel it is necessary to burden the
regulated community with the requirement to submit treatability data.
Treatability data is discussed more fully in the preamble to the LDR
Phase IV rule (63 FR 28556 (May 26, 1998)), in which EPA finalized the
soil treatment standards proposed in the HWIR-media proposal.
Also, in the proposed rule at Sec. 269.42(a), EPA proposed that
treatability studies that would require a RCRA permit could be
conducted under a RMP instead. The significant benefit of this
requirement was that those wastes in the treatability study could be
excluded from Subtitle C requirements under the RMP. Because RMPs no
longer serve that function, the remaining benefit would be the more
streamlined process for receiving RAP approval under the final rule
instead of a traditional permit.
As discussed throughout the RAPs section of today's rule, any on-
site treatment, storage or disposal of hazardous remediation waste that
would have otherwise required a RCRA permit may be authorized under a
RAP, which would include any treatability studies. Therefore, a
separate provision allowing treatability studies under a RAP is not
necessary.
EPA recognizes that treatability studies conducted off-site may
still confront the problem of needing a traditional RCRA permit, and
EPA will evaluate this and any remaining issues with regard to
treatability studies in the future.
In the preamble to the proposed rule at 61 FR 18817, EPA requested
comment on the limits on the existing Treatability Sample Exclusion
Rule (Sec. 261.4(e) and (f)), which exempts the generator of wastes for
treatability studies from 40 CFR Parts 261 through 263, and from
notification under RCRA Section 3010. The rule also exempts the
facility conducting the study from 40 CFR parts
[[Page 65893]]
124, 261-266, 268 and 270 and from notification under RCRA Section
3010. This exemption is currently limited to volumes of no more than
10,000 kg of media contaminated with non-acute hazardous waste, 1000 kg
of non-acute hazardous waste other than contaminated media, 1 kg of
acute hazardous waste, and 2500 kg of media contaminated with acute
hazardous waste for each process being evaluated for each generated
waste stream.
This exemption remains in effect for no more than 90 days after the
study is completed or one year (two years for bioremediation) after the
shipment of the same sample, whichever comes first. The Regional
Administrator may grant requests case by case for up to an additional
two years for treatability studies involving bioremediation. The
Regional Administrator may grant requests case by case for extensions
of the quantity limits for up to an additional 5000 kg of media
contaminated with non-acute hazardous waste, 500 kg of non-acute
hazardous waste, 2500 kg of media contaminated with acute hazardous
waste, and 1 kg of acute hazardous waste.
When EPA requested comment on whether it should amend the rule to
allow EPA to expand those limits on a site-specific basis; the Agency
received several comments. All comments favored giving site-specific
discretion to the Director to determine appropriate volumes of wastes
to be included in the treatability study, and to determine appropriate
timeframes. Despite the favorable comment, EPA is not including this
provision in the final rule. The Agency is reviewing more broadly the
issue of treatability studies and may consider more extensive relief at
a future date.
I. What if I Want to Keep This Information Confidential? (Sec. 270.115)
Some information required under Sec. 270.110 may be confidential
business information, such as the design of treatment units. This
provision simply requires the facility owner/operator to assert a claim
of confidentiality at the time the information is submitted, and EPA
will treat the information according to 40 CFR part 2 (Public
Information).
EPA has included this provision in the final rule, which is
substantially the same as Sec. 270.12 (with only minor changes meant to
make the regulation more readable), to allow the facility owner/
operator to protect this information. This provision was not discussed
in the proposal, but EPA has added it to allow for confidentiality in
the same way as with other permitting requirements, and to protect
legitimate confidential business information of RAP applicants.
J. To Whom Must I Submit My RAP Application? (Sec. 270.120)
This provision simply requires that the facility owner/operator
submit the RAP application to the Director. This was proposed at
Sec. 269.41(a). The ``Director'' is the EPA or State official
responsible for the RCRA hazardous waste management program in the
relevant State or Tribal lands, and is defined in Sec. 270.2.
K. If I Submit My RAP Application as Part of Another Document, What
Must I do? (Sec. 270.125)
To avoid duplicative processes, today's rule (Sec. 270.80(d))
allows RAPs to be a part of another document, such as a State cleanup
program's remedy selection document, or a workplan for a cleanup. In
many cases, the Agency expects RAPs to be issued at the time that a
site manager is selecting a remedy, which will often include a
mandatory process for including the public in the remedy selection
process, and completion of remedy decision documents, under a cleanup
program. Therefore, it would be a waste of time and resources to
require a separate RAP application. If the facility owner/operator is
preparing the other document(s), then today's rule, at new
Sec. 270.125, allows the facility owner/operator to submit the RAP
application as a part(s) of those documents. In this case, the rule
requires that the facility owner/operator identify the parts of the
document that make up the RAP application, so that the Director can
develop an appropriate draft RAP, and so the public can comment on it.
Often, however, it will be the Director who is preparing the other
documents, in which case, the facility owner/operator may choose to
submit a separate RAP application, and the Director may incorporate the
elements that make up the draft RAP into the other document(s) that he
is preparing prior to public comment.
1. Provisions From the Proposal That Are Not Included in the Final Rule
The proposed rule required that ``such [other] documents must be
approved by the Director according to procedures that allow equivalent
or greater opportunities for public involvement than those prescribed
in Sec. 269.43.'' This statement was confusing as to whether those
``other'' documents would be considered RAPs.
Any RAP application to receive approval as a RAP must follow the
authorized RAP procedures of the authorized State or EPA. However, EPA
expects that different States will apply for authorization of different
types of programs and processes to qualify as RAPs. Therefore, RAPs in
different States may look somewhat different, and the processes may
vary, but all RAPs must be approved under a program authorized for this
regulation.
Because this is already required under the State authorization
procedures, and therefore language in the RAPs section of the
regulations is not necessary, EPA has not included it in the final
rule. In addition, EPA intends it to be clear that the Director may do
more in the way of public involvement than is required under today's
rule and the facility owner/operator is certainly encouraged to do so.
However, that is always possible under RCRA authorized programs, and
again it is not necessary to include this statement in the RAPs
regulatory language.
As mentioned elsewhere, EPA has written the process for RAP
approval to be as flexible as possible so that approval of RAPs, be
they stand alone documents or parts of other documents, can be
integrated as smoothly as possible into other approval and public
comment procedures taking place at the site. EPA expects EPA Regional
and State programs implementing the RAP provisions to merge processes
at cleanup sites as much as possible to streamline the approval and
public participation processes. At the same time, since RAPs will be
issued under a Federally authorized program, and will be Federally
enforceable, it will be important for States to identify when
requirements are imposed under RAPs, and when they are imposed under
independent sate authority.
Getting a RAP Approved
L. What Is the Process for Approving or Denying My Application for a
RAP? (Sec. 270.130)
Section 270.130 specifies the basis upon which the Director will
determine whether to tentatively decide to either approve the RAP
application and therefore prepare a draft RAP, or to deny the RAP
application and therefore prepare a notice of intent to deny the RAP
application (``notice of intent to deny''). If the Director finds that
the RAP application includes all of the information required under
Sec. 270.110 (correct signatures, names addresses, maps, drawings,
specifications of the wastes; information to demonstrate compliance
with applicable part 264, 266 and 268 requirements; information
necessary for the Regional Administrator to carry out his duties
[[Page 65894]]
under Sec. 270.3; and other information specified by the Director) and
he determines that the information is in fact sufficient to show
compliance with the regulatory standards, then he will make a tentative
decision to approve the RAP application and prepare a draft RAP. If the
Director finds that the RAP application does not meet these criteria,
and if the facility owner or operator fails or refuses to correct any
deficiencies, then the Director will make a tentative decision to deny
the RAP application, and prepare a notice of intent to deny. The most
critical parts of the Director's determination is whether or not
operation according to the RAP will ensure compliance with applicable
Part 264, 266, and 268 requirements.
As with any permit, the Director may deny the RAP application
either in its entirety or in part. If the Director decides to either
approve or deny the RAP application, he will then solicit, consider,
and respond to public comments before making his final decision on the
RAP application. The Director's decision is called a ``tentative''
decision at this stage until he has solicited, considered, and
responded to public comments.
Because it is important for the regulated community, the
regulators, and the public to clearly understand the basis for the
Director's decision to approve or deny a RAP application, EPA has added
these provisions to provide clarity.
The proposed rule at Sec. 269.43(e) simply stated that ``[w]hen the
Director determines that a draft RAP is complete and adequately
demonstrates compliance with applicable requirements, the RMP shall be
approved according to the [certain specified] procedures.'' Today's
final rule provisions of Sec. 270.130 make express both what was meant
by ``complete and adequate,'' and the Agency's underlying assumption
that, like the traditional permit process, the RAP approval process
will be one of interaction between the applicant and the Agency. In
addition, the regulations allow the Director to tentatively deny the
RAP in whole or in part, where appropriate.
Thus, in a tentative permit decision, the Director would solicit
public comment both on the parts of the RAP that are tentatively
approved and on the parts that are tentatively denied.
As stated above, EPA expects the RAP approval process will be one
of interaction between the RAP applicant and the Director until the
Director is satisfied that he has enough information to tentatively
approve or deny the RAP application. Thus, the rule has been written to
make this expectation clear. Of course, the exact number of
opportunities the Director should provide to correct deficiencies will
depend on site-specific circumstances. The rule does make clear,
however, that some opportunity to correct deficiencies must be given
before a RAP application is denied.
M. What Must the Director Include in a Draft RAP? (Sec. 270.135)
Sections 270.135(a) and (b) specify the contents of a draft RAP. In
today's rule, EPA is allowing flexibility in the format for RAPs. EPA
expects that the RAP application will form the basis of the draft RAP.
EPA does not expect the regulatory agency to engage in a time-consuming
process of re-creating or re-formatting all of the information in the
RAP application. Generally, EPA believes that records of decision,
workplans, and other documents developed under existing cleanup
programs such as CERCLA and RCRA will provide good models for RAPs.
Under Sec. 270.135(a) and (b) the Director is required to include in
the draft RAP:
(1) The information from the RAP application discussed above
(Sec. 270.110(a)-(f)) (for example, name of the facility, ID number,
site boundaries, etc.); and
(2) Terms and conditions required under this section.
Section 270.135(b) specifies that RAPs must include:
(1) Terms and conditions necessary to ensure that the operating
requirements specified in the RAP comply with the applicable provisions
of parts 264, 266, and 268;
(2) Terms and conditions in Sec. 270.30;
(3) Terms and conditions for modifying, revoking and reissuing, and
terminating the RAP; and
(4) any additional terms and conditions necessary to protect human
health and the environment.
The Agency received no adverse comment on the proposed requirement
that RAPs include terms and conditions that ensure compliance with the
applicable provisions of Parts 264, 266, and 268 (proposed sections
269.40(b) and 269.41(c)(2)), and therefore today is finalizing this
requirement at Sec. 270.135(b)(i) with minor editorial changes. To
promote streamlining, however, the final rule also expressly allows
these requirements to be specified ``expressly or by reference.'' In
other words, when RAP conditions are based solely on what is required
by the regulations (that is, there is no need to establish site-
specific conditions), the RAP may either duplicate the text of the
requirements from the regulations in describing what is required under
the RAP, or may simply cite the applicable requirements. Of course,
many Subtitle C requirements, such as design requirements for CAMUs,
temporary units, and staging piles in Part 264, must be derived site-
specifically, and therefore, must be included in each individual RAP if
these units will be used.
The Agency did not specifically request comment on requiring the
terms and conditions in Sec. 270.30 to apply to RAPs. However, the
Agency believes these terms and conditions provide legal clarity on
such issues as ``duty to comply,'' ``duty to reapply,'' and
``inspection and entry,'' and will ensure effective implementation of
the RAP.
Therefore, EPA has added this requirement to RAPs at
Sec. 270.135(b)(2). Many of the conditions in Sec. 270.30 will not
apply to specific actions taken under a RAP. For example, if all
remediation waste is managed on-site under the RAP, then there will be
no requirement for manifests, and therefore the manifest discrepancy
report required under Sec. 270.30(l)(7) will not apply to that RAP.
Similarly, the monitoring requirements in Sec. 270.30(j) would apply
only to monitoring associated with units regulated under the RAP. It
would not apply to general site investigation or monitoring at the
cleanup site. In the future, EPA may further simplify these
requirements and revise them so they are tailored more specifically to
cleanup, and so that they provide greater flexibility.
Section 270.135(b)(3) requires the Director to include in the draft
RAP the procedures for modifying, revoking and reissuing, and
terminating the RAP, as is required under Secs. 270.175, 270.180 and
270.185. These procedures are discussed fully in the preamble sections
discussing the procedures for modification, revocation and reissuance,
and termination in Secs. 270.175, 270.180 and 270.185.
Finally, the requirement of Sec. 270.135(b)(4) for the Director to
include ``any additional terms or conditions necessary to protect human
health and the environment,'' is simply a codification of RCRA section
3005(c)(3), commonly referred to as RCRA's ``omnibus permit authority
provision.'' This provision allows the Director to add terms and
conditions necessary to protect human health and the environment as
concerns the activities expressly permitted under the RAP.
However, the Agency has also added a degree of specificity to this
provision in the final rule. Specifically, today's rule expressly
provides that these
[[Page 65895]]
additional terms or conditions include, ``any additional terms and
conditions ... necessary to respond to spills and leaks during use of
any units permitted under the RAP.''
The Agency added this provision to clarify that, although
remediation-only facilities are no longer subject to RCRA section
3004(u) facility-wide corrective action, they do not escape cleanup
responsibilities for the units permitted by the RAP. Because any units
permitted under a RAP will be subject to the applicable part 264
requirements and must be approved by the Director in the RAP, EPA
believes that most units will not experience problems with spills or
leaks, because they will be well designed and maintained.
Also, most units permitted under RAPs will be shorter term than
most units at operating TSDF, and so will be less likely to develop
leaks. However, if unlikely spills or leaks occur, these units are not
exempt from spill response and cleanup requirements specific to these
units. The omnibus provisions in Sec. 270.135(b)(4) provide an added
option for dealing with these events from activities permitted under
the RAP.
The RAP is not required to include information or conditions
related to cleanup levels, site investigation, remedy selection, or
similar requirements not specifically related to hazardous remediation
waste management subject to RCRA permitting.
New Sec. 270.135(c) provides that if the draft RAP is part of
another document, as described in Sec. 270.80(d)(2), the Director must
clearly identify the components of that document that constitute the
draft RAP. This is the same requirement for the Director as the earlier
requirement for the RAP applicant (in new Sec. 270.125), that if the
RAP applicant prepares the RAP application as part of another document,
he must identify the portions of the other document that make up the
RAP application. This simply allows for consolidation of documents when
other decisions, such as remedy selection, are occurring at the same
time as decisions on the RAP, and allows the Director to prepare only
one document instead of several. This approach was proposed at
Sec. 269.40(e)(2) and EPA did not receive any negative comments on this
procedure.
1. Provisions of the Proposal That Are Not Included in the Final Rule
The proposed rule also contained several additional requirements
for RAP terms and conditions that the Agency is not finalizing today.
First, during the development of the proposal, some of the FACA
Committee members expressed concerns that certain cleanup activities
may unintentionally cause additional contamination through cross-media
transfer of contaminants (that is, transfer of contaminants to clean
soil, air, and surface or ground water).
In response to these concerns, EPA proposed (at Sec. 269.41(c)(7))
to require the facility owner/operator to submit information that
demonstrates that any proposed treatment system will be designed and
operated in a manner that will adequately control the transfer of
pollutants to other environmental media. This aspect of the proposal
was important because the proposal exempted significant portions of
remediation waste from unit-specific standards.
However, in today's final rule all hazardous remediation wastes
remain subject to Subtitle C requirements, including those designed to
prevent cross media contamination (for example, the requirements in
Sec. 264.175 for tanks, Sec. 264.221 for surface impoundments, and
Sec. 264.251 for waste piles, covering such cross-media prevention
techniques as liners and covers, and controls to prevent migration into
groundwater or surface water). This requirement therefore is no longer
generally necessary and the Agency did not include it in the final
rule. In addition, the Director may address any remaining concerns
about cross-media transfer of contaminants related to the remediation
waste management activities permitted by the RAP under the Agency's
omnibus permitting authority, addressed above.\11\
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\11\ In addition to the existing regulatory requirements, since
proposal, EPA has developed the Best Management Practices (BMPs) for
Soil Treatment Technologies (EPA530-R97-007, May 1997) guidance
document on how to identify and minimize the potential for causing
cross-media contamination during implementation of cleanup
technologies for contaminated soils or solid media. The guidance
outlines the potential cross-media concerns for specific activities
and recommends approaches for preventing cross-media transfer of
contaminants. Its primary purpose is to prevent the cross-media
transfer of contaminants during implementation of contaminated soils
or solid media treatment technologies in compliance with applicable
State and/or Federal regulations.
This document does not replace any existing State or Federal
regulations or guidance. It was developed to support the HWIR-media
rule. The BMPs guidance was not developed for and should not be used
as a compliance guide for any particular set of cleanup standards,
but instead as a reference during implementation of those standards.
Similarly, BMPs are not meant as a selection tool for remedial
treatment technologies; they should be used during the
implementation stage of remedies once they are selected. The
facility owner/operator and the Director should consider whether
this guidance will provide helpful recommendations for the
remediation waste management taking place under the RAP.
---------------------------------------------------------------------------
In addition, Secs. 269.43(c) and (d) of the proposal allowed the
Director to add provisions to the RAP specifying the conditions under
which the owner/operator would manage media under a RAP, and
concentration levels below which the Director would no longer consider
the media to contain hazardous waste, and to add provisions (if
necessary) specifying when the Director would consider threats to human
health and the environment from the media to be minimized. These
provisions were based on the proposed rule's provisions that would
allow the Director to exempt hazardous contaminated media from Subtitle
C if it were below the proposed Bright Line levels (see proposed
Sec. 269.4, and preamble about the Bright Line at 61 FR 18794; about
the LDR requirements at 18804; and about treatability variances at
18810).
In some cases, under the proposal, the media would have been exempt
from most of Subtitle C, but remain subject to LDR treatment standards.
In those cases, the Director might specify minimize threat levels under
a treatability variance as an alternative LDR level (instead of
requiring treatment to the levels required in part 268). This approach
was finalized in the recent Phase IV Land Disposal Restrictions Rule
(63 FR 28556 (May 26, 1998)).
N. What Else Must the Director Prepare in Addition to the Draft RAP or
Notice of Intent to Deny? (Sec. 270.140)
Once the Director has prepared the draft RAP or notice of intent to
deny, Sec. 270.140(a) requires the Director to prepare a statement of
basis supporting the RAP decision. Section 270.140(b) requires the
Director to compile an administrative record and specifies the contents
of the administrative record for the draft RAP, which are:
(1) The RAP application and any supporting data;
(2) The draft RAP or notice of intent to deny;
(3) The statement of basis and all the documents cited in the
statement of basis; and
(4) Any other documents supporting the decision to approve or deny
the RAP.
Today's rule also provides that any documents which are readily
available to the public do not need to be physically included in the
administrative record as long, as these documents are specifically
referenced. This eliminates the need to unnecessarily copy documents
such as regulations and statutes, and other commonly available
documents, and to crowd each administrative record with
[[Page 65896]]
documents that can be easily found elsewhere.
The statement of basis and the administrative record are essential
to explain and document the basis for the Director's decision to
approve or deny the RAP, and if the RAP is appealed, they provide the
record for review by the Environmental Appeals Board or similar State
body. The information in the administrative record allows members of
the public to review the basis for the Director's decision in order to
participate in a meaningful way during the comment period. The
requirements for a statement of basis and administrative record are the
same as the requirements in Secs. 124.7 and 124.9 for other RCRA
permits, except that they have to be re-worded to be more readable.
The proposed rule did not allow for administrative appeals and did
not expressly require a statement of basis or compilation of an
administrative record. However, because (in response to public
comments) the final rule does allow for administrative appeals, as
discussed later, the statement of basis and administrative record are
essential to successful operation of the appeals process, and EPA has
therefore added them to the requirements for RAPs in today's final
rule.
New Sec. 270.140 (c) requires that information contained in the
administrative record be made available for public review upon request.
This ensures that the public can review all relevant documents in
preparing their comments on the draft RAP.
O. What Are the Procedures for Public Comment on the Draft RAP or
Notice of Intent to Deny? (Sec. 270.145)
1. A Description of the Requirements
Today's rule sets out procedures for reviewing and approving RAPs.
EPA considers public review and comment procedures an extremely
important part of the review and approval process for remedial
activities. EPA recognizes that remediation waste management activities
will vary greatly in scope and risk involved, and the Agency in turn
believes that public participation should vary depending on the scope
and risk involved with the remediation waste management taking place.
EPA expects that States that apply for authorization for today's rule
may request authorization for programs that vary somewhat from today's
requirements, and EPA wants to allow for flexibility in this process.
EPA expects States and Regions issuing RAPs to make appropriate
decisions about what levels of public participation are appropriate in
different situations. However, to receive authorization for RAPs,
States must at least require the minimum public participation
requirement mandated by RCRA section 7004(b) and must have requirements
equivalent to the other requirements in today's rule. For further
discussion of State authorization issues, see the State Authority
section of today's preamble.
EPA is finalizing its proposal to require the use of the statutory
public participation requirements in RCRA section 7004(b). Thus, if the
Director makes a tentative decision to approve or deny the RAP
application, he must:
Send notice to the facility owner/operator of his decision
with a copy of the statement of basis (Sec. 270.145(a)(1);
Publish that decision in a major local newspaper of
general circulation (Sec. 270.145(a)(2);
Broadcast his decision over a local radio station
(Sec. 270.145(a)(3);
Send a notice of his intent to approve or deny the RAP to
each unit of local government having jurisdiction over the area in
which the site is located, and to each State agency having any
authority under State law with respect to any construction or
operations at the site (Sec. 270.145(a)(4).
This was proposed at Sec. 269.43(e)(1)(i) and (ii).
Section 270.145(b) requires that this notice provide the public
with the opportunity to submit written comments on either the draft RAP
or the notice of intent to deny within no fewer than 45 days. This was
proposed at Sec. 269.43(e)(1)(ii).
Section 270.145(c) specifies the information requirements for the
notice, which are:
(1) The name and addresses of the office processing the RAP
application;
(2) The name and address of the RAP applicant and the site or
activity;
(3) A description of the activity;
(4) The name, address, and phone number of a person from whom
interested persons may obtain further information;
(5) A description of the comment procedures and other procedures by
which the public may participate;
(6) If a hearing is scheduled, the date, time, location, and
purpose of the hearing;
(7) If a hearing is not scheduled, a statement of procedures to
request a hearing;
(8) The location of the administrative record and times when it
will be open for public inspection; and
(9) Additional information the Director considers necessary or
proper.
These requirements ensure that the public will have enough
information to participate in a meaningful way in the comment process.
The proposed rule required the same procedures. Proposed
Sec. 269.43(e)(1)(i) required notice according to the procedures of 40
CFR 124.10(d) for the contents of the notice. In the final rule, EPA
has incorporated applicable requirements in Sec. 124.10(d) directly
into the regulations for RAPs (with non-substantive changes made to
incorporate the requirements into today's readable format) to avoid
potentially confusing cross-referencing.
Section 270.145(d) requires that if within the comment period the
Director receives written notice of opposition to his decision to
approve or deny the RAP and a request for a hearing, the Director must
hold an informal public hearing. The Director may also determine on his
own initiative that a hearing is appropriate. The hearing must include
an opportunity for any person to present written or oral comments.
Whenever possible, the Director must:
Schedule the hearing at a location convenient to the
nearest population center to the remediation waste management site;
Give notice again in the newspaper and on the radio and to
the local government including the information described above; and
(1) Reference the date of any previous public notices relating to
the RAP application;
(2) Include the date, time, and place of the hearing; and
(3) Provide a brief description of the nature and purpose of the
hearing, including procedures.
Again, these hearing requirements are identical to what was
proposed at Sec. 269.43(e)(2), but with minor editorial changes to
increase readability. These requirements are also required under RCRA
section 7004(b).
2. Commenters Requested More Flexibility
Several commenters requested additional flexibility in the public
participation process under today's Sec. 270.145 requirements.
Commenters suggested that RAPs for media that were excluded from
Subtitle C should not have to follow the RCRA statutory public
participation requirements. Today's rule does not exempt any hazardous
remediation waste from Subtitle C, so RAPs always must serve as RCRA
permits and must follow the RCRA statutory requirements for permits.
Commenters specifically mentioned the 45-day comment period, the
requirement to hold a hearing if one is requested, and the requirement
to send a copy of the RAP to each State
[[Page 65897]]
agency having any authority under State law with respect to any
construction or operations at the site. Commenters generally suggested
that EPA should allow flexibility in how public participation was
performed, depending on the activities taking place at the site.
However, under today's rule, RAPs constitute RCRA permits, and
therefore, the statute mandates certain very specific public
participation activities in RCRA section 7004(b) including the 45-day
comment period, hearings, and sending copies of the RAP to State
agencies. EPA has limited any additional specificity (for example, the
requirements for the contents of a notice in Sec. 270.145(c)) of
today's rule to information or procedures necessary for smooth
implementation of those statutory requirements, and has not included
other procedural requirements, such as Secs. 124.31-124.33.
The requirements in Sec. 270.145(a)(2), (3), (4), (b) and (d) are
direct requirements from section 7004 of RCRA. The only requirements
that EPA has added beyond the statutory requirements are:
For the Director to send a notice of his decision to the
RAP applicant (Sec. 270.145(a)(1));
The content requirements for the public notice of the RAP
decision (Sec. 270.145(c)); and
The content requirements for the public notice for any
hearings (Sec. 270.145(d)(1)-(3)).
EPA believes that it is important to notify the RAP applicant of
the Director's decision, and for public notices to include sufficient
information about RAP decisions and public hearings to allow meaningful
public participation. This is why EPA has added these few requirements
to the statutory minimum procedures, and these requirements are the
same as the equivalent requirements for traditional RCRA permits. It
is, however, the Agency's policy on public participation to stress the
importance of appropriate public participation in environmental
decision-making.
EPA has acknowledged repeatedly that the Agency believes that the
RCRA statute is overly prescriptive in its definition of public
participation requirements for RCRA permits applying to remediation-
only sites. Indeed, cleanups under EPA's own Superfund program--which
provides a full and extensive opportunity for public participation--
might not meet all of the RCRA statutory standards. Ideally, EPA would
provide significantly greater latitude for State programs in today's
rule; however, the Agency believes it is constrained by the statute.
For this as well as other reasons, the Administration is supporting
legislative reform of RCRA specific to remediation waste.
P. The Importance of Public Involvement in the RAP Process
It is EPA's policy to encourage public involvement early and often
in the permitting process, in its remediation programs, as well as in
other Agency actions. EPA intends this rule, and its implementation, to
be consistent with that policy.
EPA also recognizes that existing State and Federal authorities
provide for public involvement through widely varying processes. EPA,
in crafting today's rule, intends to provide enough procedural
flexibility so that States will not have to either modify their public
involvement policies, or duplicate their efforts towards public
participation in order to comply with slightly different requirements
under today's rule.
EPA recognizes that meaningful public participation means that all
potentially affected parties have an opportunity to participate early
in the process and have ample time to participate in the remediation
waste management decisions. Today's rule establishes the minimum
procedures for public involvement--public notice and opportunity for
comment when the authorized regulatory agency makes a preliminary
decision to either approve or deny a draft RAP. EPA wishes to encourage
involvement of the public throughout the remediation waste management
process. EPA also believes that particular situations may warrant more
than these minimum requirements.
In general, the level of public involvement will depend on the
action--for example, the Agency may simply provide the minimum required
opportunity for public comment on a proposed RAP for on-site storage of
waste with low levels of contamination before it is removed, but may
provide higher levels of involvement when a RAP includes treatment of a
large quantity of remediation waste or on-site waste disposal. For
these reasons, EPA believes that public involvement should be tailored
to the needs at the site, and has therefore provided necessary
flexibility in this rule.
Some cases may warrant more than notice and opportunity for
comment. The Director or the facility owner/operator may choose to
voluntarily take additional steps beyond what is required in today's
regulations when additional involvement is warranted. In some cases,
meaningful public notice may include bilingual notifications,
publication of site fact sheets or of legal notices in city or
community newspapers (or other media, such as radio, church
organizations, and community newsletters) at key milestones in the
remediation waste management decision process. Existing forums of
communication, such as regular community meetings and electronic
bulletin boards can be used to provide regular progress reports on
remediation waste management activities.
The idea of different levels of public involvement is not new. EPA
has long recognized that the level of public involvement should be
determined by the action taking place. As an example of EPA's
recognition that different activities warrant different levels of
public participation, in a final rule dated September 28, 1988 (53 FR
37936), EPA promulgated regulations to govern modification of permits.
Those regulations established different levels of public involvement
depending on the significance of the permit modification.
Class 1 modifications, which apply to minor changes to permits,
require minimal public involvement. The permittee must send a notice of
the permit modification to all persons on the facility mailing list,
and to the appropriate units of State and local government. Interested
persons may request review of these permit modifications.
Class 2 permit modifications require increased public involvement,
and Class 3 modifications, for major modifications to permits, require
far more extensive involvement of the public--publication in a local
newspaper, a public meeting, and a public comment period. To assist
facility owners and operators in implementing the rule, EPA classified
different activities as Class 1, 2, or 3 modifications, based on the
significance of the action in Appendix 1 to Sec. 270.42. These
different classes of permits show that EPA has long agreed that
different levels of public participation are appropriate for different
activities.
EPA has also issued guidance on public involvement which may, as
appropriate, be used as guidance in implementing today's rule (see the
RCRA Public Participation Manual, September, 1996, EPA 530-R-96-007).
This manual provides guidance on addressing public participation in the
permit process, including permitting and enforcing corrective action
activities. The manual emphasizes the importance of cooperation and
communication and highlights the public's role in providing valuable
input. It stresses the importance of early and meaningful involvement
of the
[[Page 65898]]
public in Agency activities, and of open access to information.
In addition to the manual, EPA fully encourages the Director and
the RAP applicant to consider, as appropriate, The Model Plan for
Public Participation, developed by the Public Participation and
Accountability Subcommittee of the National Environmental Justice
Advisory Council (a Federal Advisory Council to the U.S. Environmental
Protection Agency) when taking actions that would benefit from
additional public involvement beyond what is required in today's rule.
The Model Plan encourages public participation in all aspects of
environmental decision making. It emphasizes that communities,
including all types of stakeholders, and regulatory agencies should be
seen as equal partners in any dialogue on environmental justice issues.
The model also recognizes the importance of maintaining honesty and
integrity in the process by clearly articulating goals, expectations,
and limitations.
Most recently, the Agency issued the Enhanced Public Participation
Rule (60 FR 63431 (December 11, 1995)), which amended 40 CFR parts 124
and 270 to provide for public participation earlier in the permitting
process, and expanded public access to information throughout the
permitting process and the operational lives of facilities. It requires
the person associated with the facility, usually the facility operator,
to notify the public before applying for a permit under Sec. 124.31.
The Agency encourages using this rule, as appropriate, as guidance
for cleanups that require a RAP, especially when there is a highly
toxic or large volume of remediation waste. Where a cleanup involves
treating, storing or disposing of hazardous remediation waste and a RAP
is issued, public participation on the RAP should generally be folded
into the broader strategy for encouraging public involvement in the
cleanup. EPA encourages regulators and facility owners/operators
implementing the provisions of today's final rule to refer to these
regulations and guidance documents as guidance in developing
appropriate public participation activities for individual RAPs.
Q. How Will the Director Make a Final Decision on My RAP Application?
(Sec. 270.150)
1. A Description of the Requirements
Section 270.150(a) requires the Director to consider and respond to
any significant comments raised during the public comment period, or
during any hearing on the draft RAP or notice of intent to deny.
Section 270.150(b) and (c) require that, when the Director has
responded to all significant comments and revised the RAP as
appropriate and has determined whether the RAP includes all the
required information and terms and conditions, he must issue a final
decision on the RAP application, and notify in writing the RAP
applicant and all commenters on the draft RAP or the notice of intent
to deny. This was proposed at Sec. 269.43(e)(4), on which the Agency
received no adverse comment.
Section 270.150(d) specifies that if the Director's final decision
is that his tentative decision to deny the RAP application was
incorrect, he will withdraw the notice of intent to deny and proceed to
prepare a draft RAP. This is the same as the approach taken for
traditional RCRA permits (see Sec. 124.6(b)), and the Agency sees no
reason to deviate from that approach in today's rule.
Under new Sec. 270.150(e), when the Director issues his decision,
he must include reference to the procedures for appealing the decision.
Because appeals were not provided for in the proposed rule, this is a
new requirement EPA has added to the final rule. This is the same
requirement as for permits under Sec. 124.15(a), and EPA did not see
any reason to differ from these existing requirements for permits.
New Sec. 270.150(f) requires that, before issuing the final RAP
decision, the Director compile an administrative record that includes
the information from the administrative record from the draft RAP and
also:
(1) All comments received;
(2) Tapes or transcripts of hearings;
(3) Written materials submitted at hearings;
(4) Responses to comments;
(5) New material placed in the record since the draft RAP was
issued;
(6) Other documents supporting the RAP; and
(7) The final RAP.
This section again repeats that material readily available need not
be included. This is the same as for the administrative record for
draft RAPs and also for traditional RCRA permits.
Section 270.150(g) requires that the administrative record must be
made available for review by the public upon request.
As described for the administrative record for the draft RAP, EPA
believes that express requirements for compiling administrative records
are essential for successful hearing of appeals, and because appeals
were not permitted in the proposal, EPA did not include this
requirement in the proposal. However, an administrative record is now a
necessary part of today's final rule. The elements of the
administrative records for RAPs are the same as those required for
traditional RCRA permits under Sec. 124.18. EPA believes that the same
information that is necessary to understand the decision-making on a
traditional RCRA permit is also appropriate for RAPs.
2. Comments on the Proposed Requirements
The proposed rule requirement for the Director to consider and
respond to any significant comments, and to modify the RAP as
appropriate, was at Sec. 269.43(e)(3). (The final rule uses the word
``revised'' instead of ``modified'' to avoid confusion with
Secs. 270.170 and 270.175 pertaining to post-issuance modifications.)
Several commenters were concerned that the Director would unilaterally
modify RAPs due to public comments without consulting with the facility
owner or operator. They asked that EPA require the Director to consult
or negotiate with the facility owner or operator before making
modifications due to public comment. One commenter explained that
changes resulting from public comment may substantially increase the
cost of compliance, or otherwise significantly affect the facility's
ability to complete remedial actions, in which case the facility would
have no choice but to comply, or suspend remedial activities while
seeking judicial review. Commenters were also concerned that any action
that requires approval from the Agency takes a very long time to get
approved. The commenter asked for EPA to limit the Director's review
period to 60 days, and if the Director had not acted on the RAP within
60 days, the RAP would go into effect automatically.
EPA considers open communication with the facility owner/operator
important to successful implementation of the RCRA program. EPA
encourages Regional offices and States implementing today's rule to
discuss, when appropriate, any revisions that may be made to the RAP in
response to public comment with the facility owner/operator before
making them. The Agency has not added this as a requirement to the
approval process, however. An overriding objective of today's rule is
to eliminate unnecessary process from the regulations. The Agency
believes that a mandatory consultation process such as that suggested
by the commenter is unnecessary because today's rule, unlike the
proposal, provides for appeal of the Director's final decision to EPA's
Environmental Appeals Board. Facility
[[Page 65899]]
owner/operators who are unhappy with changes made in response to public
comment will have ample opportunity, at that time, to convince the
Agency to change the contested provisions.
EPA has also decided not to limit the amount of time the Director
has to review and approve RAPs so that if the Director does not act,
the RAP becomes effective. EPA does not believe that the Agency would
be fulfilling its statutory obligation to ensure compliance with RCRA
requirements if RAPs could become effective without an affirmative
decision from the Director (see RCRA section 3005). In addition, this
would be especially problematic because under new Sec. 270.90, the RAP
generally serves as a shield against enforcement, and therefore the
Director must make an affirmative decision that the RAP will ensure
compliance with the applicable Subtitle C requirements before the RAP
can become effective.
Commenters also asked that the facility owner or operator be
required to provide copies of all documents he is required to maintain
during the remedial activity into a local library to allow for public
review. EPA encourages any steps the Director can take to facilitate
meaningful public involvement, but again has chosen to limit actual
regulatory requirements in an effort to maintain a more flexible
process. EPA already requires the Director to make the administrative
record available under both Secs. 270.140(c) and 270.150(g). In
addition, the Director can require the facility owner/operator to set
up an information repository as a part of the RAP under the terms and
conditions imposed at Sec. 270.135, if the Director considers a
repository appropriate. We believe these authorities allow the full
range of options to assure easy public access to information so that
meaningful public involvement can occur.
The requirement for the Director to make a determination at
Sec. 270.150(b) and (c) was proposed at Sec. 269.43(e)(4), and stated
``When the Director determines that the RMP adequately demonstrates
compliance with all applicable requirements. . . .'' The requirements
in Sec. 270.150 of today's final rule clarify what the proposal meant
by ``all applicable requirements.''
The proposed rule did not expressly outline the procedures if the
Director decided to deny a RAP. This was an oversight. To correct that
oversight, EPA has made denial procedures for RAPs equivalent to
approval procedures for RAPs.
R. May the Decision To Approve or Deny My RAP Application Be
Administratively Appealed? (Sec. 270.155)
The Agency had originally proposed to eliminate administrative
appeals (that is, to the EPA Environmental Appeals Board) because EPA
felt that allowing facility owner/operators to proceed directly to
judicial review (if necessary) after the Director's decision on the RAP
would streamline the process. However, numerous commenters did not
believe that this particular part of the proposal resulted in any
beneficial streamlining. Commenters expressed an interest in being able
to avoid expensive and time-consuming judicial proceedings by first
requesting an administrative appeal. Also, one commenter pointed out
that in instances where the RAP applicant is a Federal agency, the
judicial review process is not available because Federal administrative
agencies are unable to seek judicial review of final actions of other
Federal administrative agencies. No commenters wrote to support EPA's
proposal to not provide for appeals.
The Agency agrees with these commenters that allowing for further
review within the Agency will, in many cases, help avoid time-consuming
and costly litigation. Because, in the remediation setting, this is
time and money better spent on cleanups, the Agency has decided in this
final rule to provide for administrative appeals for RAPs. Thus, the
procedure in new Sec. 270.155 requires facility owner/operators to
follow the procedures of Sec. 124.19 for appeals. The only difference
between the process EPA requires for RAPs, and the traditional
Sec. 124.10 requirements is that when the Director gives public notice
of appeals decisions for RAPs, (under Sec. 124.19(c)), he will follow
the RAPs public participation procedures in Sec. 270.145 instead of
those in Sec. 124.10, which are used to give public notice of appeals
decisions for traditional RCRA permits.
Sections 270.155(a)(1)-(3) include requirements for what the public
notice of the appeal must include, which are: (1) the briefing schedule
for the appeal; (2) a statement that any interested person may file an
amicus brief with the Environmental Appeals Board; and (3) the
appropriate information from Sec. 270.145(c), such as the name and
address of the remediation waste management site and a description of
the proposed activities.
The requirements under Sec. 270.155(a)(1) and (2) for what to
include in the public notice already appear in Sec. 124.19(c), but are
repeated in Sec. 270.155 for clarity. Section 124.19(c) also specifies
that public notice of appeals decisions will be given as provided in
Sec. 124.10. However, EPA has specified in today's rule that public
notice of appeals decisions for RAPs will follow the procedures of
Sec. 270.145, and will contain the information from Sec. 270.145 (c),
instead of Sec. 124.10.
For clarity, new Sec. 270.155(b) repeats the requirement in
Sec. 124.19 that exhausting the administrative appeals procedure of
Sec. 124.19 is a prerequisite to judicial review under RCRA section
7006(b). This is the same requirement as in place for traditional RCRA
permits under Sec. 124.19(e), and EPA saw no reason to differ from the
current requirements.
S. When Does My RAP Become Effective? (Sec. 270.160)
Section 270.160 states that the RAP is effective 30 days after the
Director has notified the facility owner and operator and all
commenters that he approves the RAP. This is the same as the effective
dates for traditional RCRA permits. The 30-day period allows time for
parties to appeal the Director's final decision before the RAP is
effective. EPA stated in the preamble to May 19, 1980 rulemaking, when
these provisions for permits were promulgated, that the 30 days ``is a
necessary part of a party's right to request an evidentiary hearing.''
Under Sec. 270.160(a), the Director may specify a later effective
date in the final RAP decision if he feels that a longer time is
necessary to allow facility owners and operators more time to come into
compliance with the new requirements, or knows of other necessary
reasons for a later effective date.
Section 270.160(b) specifies that if a RAP has been appealed, and
the appeal is granted, conditions of the RAP will be stayed according
to the provisions of Sec. 124.16, pending the outcome of the appeal.
The Director may identify which conditions of the RAP are severable,
and therefore are not stayed. However, the provisions that are appealed
and any provisions that are not severable from the appealed provisions
will be stayed.
Section 270.160(c) specifies that the RAP may become effective
immediately if no commenters requested a change from the draft RAP.
This is because if no one requested a change, then no one would have
the right to an appeal. Only parties who comment on the draft RAP may
request appeal.
The proposed rule did not specify effective dates for RAPs. This
was an oversight EPA has corrected in today's final rule. These
effective date requirements are the same as those currently required
for traditional RCRA permits under Sec. 124.15(b), and EPA saw
[[Page 65900]]
no reason to differ from these existing requirements.
T. When May I Begin Physical Construction of New Units Permitted Under
the RAP? (Sec. 270.165)
Section 270.165 specifies that the RAP applicant cannot begin
physical construction of new units before receiving a finally effective
RAP. This is the same as the requirements for traditional RCRA permits
at Sec. 270.10(f)(1).
How May My RAP be Modified, Revoked and Reissued, or Terminated?
U. After My RAP Is Issued, How May It Be Modified, Revoked and
Reissued, or Terminated? (Sec. 270.170)
Plans for remedial actions sometimes need to be modified, revoked
and reissued, or terminated. Often, modifications, revocations and
reissuances, or terminations are necessary as new information becomes
available. To retain reasonable flexibility in the remedial process--
where it is difficult to predict all contingencies, and where different
State programs may have different existing requirements for when plans
need to be modified, revoked and reissued, or terminated--today's rule
(as did the proposal), does not include specific procedures for RAP
modification, revocation and reissuance, or termination but requires
the Director to specify these procedures in the RAP. This provides
authorized State or Federal programs the ability to allow
modifications, revocations and reissuances, and terminations when and
how they would fit efficiently into the State or Federal program.
Today's rule at Sec. 270.170 requires (the same as the proposal) that
the Director include these procedures in the RAP, and also requires
that these procedures provide for public review and comment if there is
a ``significant'' change in the management of hazardous remediation
waste at the site, or in circumstances which otherwise merit public
review and comment. This was proposed at Sec. 269.44(a) and is
consistent with EPA's preference for involving the public in important
decisions.
While commenters agreed with this general approach, two commenters
asked for clarification on what constitutes a ``significant''
modification. EPA expects the Director to consider examples such as
changes in treatment processes, use of new units, or activities that
would require Class 2 or 3 modifications in Appendix 1 to Sec. 270.42
as ``significant'' modifications (see also Sec. 270.42(d)(2)). EPA
expects that activities that would require Class 2 or 3 modifications
would generally be the same kinds of activities that would be
considered ``significant'' in this case. However, because activities
that take place at cleanup sites are so often influenced by the site-
specific factors that affect the management of remediation wastes at
each site, EPA has decided not to put any limits into the regulatory
language defining a ``significant'' change. This allows the Director
full discretion to determine what constitutes ``significant'' for any
given site.
The proposed regulatory language explaining which modifications
should include public participation included modifications that were
``major or significant.'' EPA considers ``major'' and ``significant''
to mean the same thing in this instance--and so has eliminated that
redundancy by limiting the final rule to the term ``significant.''
Proposed Sec. 269.44 referred only to modifications and not to
revocation and reissuance, which was an oversight. Proposed Sec. 269.45
included revocation with expiration and termination. The requirements
for both proposed sections were the same, stating that the Director
would specify procedures for these actions. EPA has decided to move the
requirement to specify procedures for all these activities into one
section (Sec. 270.170) because the same requirement applies to all of
these activities, that the Director must specify procedures for
modification, revocation and reissuance, and termination in the RAP.
Today's final rule also allows the Director to specify these
modification, revocation and reissuance, or termination procedures
individually or to incorporate them by reference. EPA expects that
State programs may already have or may develop standard modification
and revocation and reissuance procedures. EPA intended for the proposed
rule language, which simply stated that the ``Director shall specify .
. . procedures,'' to allow States having existing procedures to
incorporate these procedures by reference, but the final rule language
makes that explicit. EPA believes that incorporating already approved
procedures by reference can save time and controversy in preparing and
approving RAPs.
Section 270.170 also specifies that if your RAP has been
incorporated into a traditional RCRA permit, then the RAP will be
modified, revoked and reissued, or terminated according to the
applicable traditional RCRA permit requirements. Of course, the
Director may, as appropriate, specify in the RAP additional grounds or
procedures, at his discretion. This is conforming change to make this
requirement consistent with Sec. 270.85(c), which allows RAPs to be
incorporated into traditional RCRA permits.
V. For What Reasons May the Director Choose To Modify My Final RAP?
(Sec. 270.175)
Today's rule specifies at Sec. 270.175 that the Director may
determine on his own initiative that a modification is necessary. New
Secs. 270.175(a) (1)-(8) specify the causes that justify a Director-
initiated modification. The only cause specified in the proposal for
Director initiated modifications was ``new information which indicates
that such modification may be necessary to ensure the effective
implementation of remedial actions at the site'' (see 61 FR 18854). The
Agency received no adverse comment on limiting the Director's
discretion in this area. However, the Agency has decided to clarify the
causes for Director-initiated modifications in today's RAPs regulations
to include the same causes for Director-initiated modifications as for
traditional RCRA permits under Secs. 270.41 and 270.43. EPA believes
this is an outgrowth of the proposed requirement, and responds to
commenters' concerns that the Director had too much discretion as to
when he could modify RAPs.
As discussed above, the proposed rule allowed the Director to make
``unilateral'' modifications based on ``new information which indicates
that such modification may be necessary to ensure the effective
implementation of remedial actions at the site.'' Commenters expressed
concern about what they saw as the Director's too-broad discretion to
make ``unilateral'' modifications. In response to these comments,
today's final rule requirements for ``causes'' adds more specificity to
what that ``new information'' may be.
Section 270.175(b) allows the Director to modify the RAP as
necessary to ensure the facility continues to comply with the currently
applicable requirements of parts 124, 260-266 and 270 when he reviews a
RAP for a land disposal facility every five years, as is required under
Sec. 270.195. This same requirement applies to traditional RCRA permits
under Sec. 270.41(a)(5).
Also to protect the facility owner/operator, at new Sec. 270.175(c)
the Agency has included the provision that applies currently to
traditional RCRA permits which specifies that the Director will not
reevaluate the suitability of the location of the facility at the time
of RAP modification. This would cause too
[[Page 65901]]
much disruption to facility operations. The location will be evaluated
once when the RAP is initially approved, but once approved it will not
be reevaluated unless new information or standards indicate that a
threat to human health or the environment exists that was unknown at
the time of RAP issuance.
W. For What Reasons May the Director Choose To Revoke and Reissue My
Final RAP? (Sec. 270.180)
The Agency has specified in new Sec. 270.180(a) causes for when the
Director may modify or revoke and reissue a RAP. Again, these causes
are the same as those for permits under the current regulations at
Secs. 270.41 and 270.43, and are intended to provide assurance to the
facility owner/operator security that they can operate in compliance
with their permit without fear that their permit will be modified
without a good cause.
EPA explained its original reasoning for promulgating causes for
Director-initiated modifications and revocation and reissuances of
traditional RCRA permits at 45 FR 33314 (May 19, 1980). That preamble
stated that ``EPA has rewritten the permit modification section . . .
to provide greater certainty to permittees during the period when they
hold permits and thereby make it easier to make business decisions and
obtain financing . . . Normally, a permit will not be modified during
its term if the facility is in compliance with the conditions of the
permit. The list of causes for modifying a permit is narrow; and absent
cause from this list, the permit cannot be modified.'' In that notice,
EPA also explains the specific rationale for each of the causes for
Director-initiated modifications, revocations and reissuances, which
are the same causes as allowed in today's rule. EPA included the same
protection for owners and operators when RAPs are revoked and reissued
at Sec. 270.180(b) as is provided for when RAPs are modified at
Sec. 270.175(c). That is that the Director will not reevaluate the
suitability of the location of the facility at the time of RAP
revocation and reissuance. The reasons for this protection are
discussed above at Sec. 270.175(c).
X. For What Reasons May the Director Choose To Terminate My Final RAP,
or Deny My Renewal Application? (Sec. 270.185)
Unlike in the proposed rule, the Agency has decided to retain the
requirements in Sec. 270.43 for causes for permit termination. Thus in
new Sec. 270.185, EPA cites the three reasons from Sec. 270.175 why
RAPs may be terminated. They are that:
(1) The facility owner/operator violates the RAP;
(2) The facility owner/operator did not fully disclose or
misrepresented information during the application process; or
(3) The activity authorized by the RAP endangers human health or
the environment, and can only be remedied by termination.
The Agency believes it is appropriate to retain these requirements
for RAPs because they specify the basis of what EPA believes should be
potential grounds for termination, while providing assurances of
certainty to the facility owner/operator by limiting the reasons the
Director may terminate the RAP. The proposed rule did not specify
detailed reasons for why RAPs could be terminated, but simply left that
up to the Director to specify in the RAP.
Y. May the Decision To Approve or Deny a Modification, Revocation and
Reissuance, or Termination of My RAP Be Administratively Appealed?
(Sec. 270.190)
Section 270.190(a) states that any commenter on the modification,
revocation and reissuance or termination, or any participant in any
hearings on these actions, may appeal the decision to modify, revoke
and reissue or terminate a RAP to the Environmental Appeals Board,
using the same procedures as those used for appealing the original RAP
decision in Sec. 270.155. Appeals of approvals of modifications,
revocation and reissuances, and terminations of traditional RCRA
permits follow the same process as appeals of original permit
decisions. EPA has decided that it will be easiest to understand if
RAPs follow the same construct as traditional RCRA permits. Also,
modifications of RAPs could possibly include significant changes in the
remediation waste management activities at the remediation waste
management site, and so the right to appeal these decisions is
important to the facility owner/operator and to the community.
Section 270.190(b) specifies that denials of requests for RAP
modification, revocation and reissuance or termination may be
informally appealed, and Sec. 270.190(c) sets out the procedures for
informal appeals which are that: (1) The person appealing the decision
must send a letter to the Environmental Appeals Board; (2) the Board
has 60 days to act; and (3) if the Board does not take action within 60
days, the appeal will be considered denied.
In the May 19, 1980 final rule which created the Sec. 124.5
requirements for informal appeals, EPA explained the Agency's rationale
in this way: ``EPA rejected comments urging that modification denials
be appealable through the same agency procedures as permit issuance or
denial. Departures from the cycle of permit issuance and periodic
examination should not be encouraged in such a manner. If encouraged,
they could keep many permits in a state of perpetual reexamination thus
impeding the control program being implemented.'' EPA has chosen to
apply the same process for RAP modification, revocation and reissuance
and termination denials as applies to the same decisions for
traditional RCRA permits. This process for informal appeals is the same
as the process for informal appeals of denials of requests for permit
modification, revocation and reissuance and termination in
Sec. 124.5(b), except that it has been re-written to be more readable.
EPA sees no reason why the processes should differ.
Section 270.190(d) states that this appeal is a prerequisite to
judicial review of these actions. This same requirement applies to
traditional RCRA permits under Secs. 124.19(e) and 124.5(b).
Of course, because the proposal did not allow for appeal of RAPs,
it also did not allow for appeal of RAP modification, revocation and
reissuance, or termination. However, the Agency has provided these
provisions in response to commenters' requests, as more fully discussed
in the preamble section for Sec. 270.155 entitled ``May the decision to
approve or deny my RAP application be administratively appealed?''
Z. When Will My RAP Expire? (Sec. 270.195)
As with all RCRA permits, Sec. 270.195 requires (as proposed at
Sec. 269.45) that RAPs have a maximum life of 10 years, and that RAPs
that permit land disposal units be reviewed every five years. This
requirement is a statutory requirement under RCRA section 3005(c)(3).
Of course, in many cases, remedies will be short-term; in those cases,
the RAP would specify a shorter term than the 10-year maximum. The
Agency did not receive any adverse comment on this requirement.
AA. How May I Renew my RAP if It Is Expiring? (Sec. 270.200)
Like the rule for traditional RCRA permits (see Sec. 270.10(a)),
today's rule provides that the procedures for renewing RAPs (new
Sec. 270.200) are the
[[Page 65902]]
same as the procedures for issuing RAPs. The proposed rule's silence on
this issue was an oversight.
BB. What Happens if I Have Applied Correctly for a RAP Renewal, But
Have Not Received Approval by the Time My Old RAP Expires? (
Sec. 270.205)
The same as Sec. 270.51 provides for traditional RCRA permits, new
Sec. 270.92(e) provides assurances to the facility owner/operator by
stating that an expiring RAP remains in effect until a new RAP is
effective, as long as a timely application has been submitted and,
through no fault of the facility owner/operator, the Director has not
issued an effective RAP before the previous RAP expires. This will
ensure that remediation waste management will not be interrupted
because the Director was unable to renew the RAP before the previous
RAP expired. Again, EPA did not specify requirements in the proposed
rule for this situation, but is expressly including these requirements
in today's rule to ensure effective implementation.
Operating Under Your RAP
CC. What Records Must I Maintain Concerning My RAP? (Sec. 270.210)
As discussed above, the administrative record for RAPs must be kept
by the Director under Secs. 270.140 and 270.150. Under new
Sec. 270.210, however, the facility owner or operator is required to
keep records of all data used to complete the RAP application and any
supplemental information that is submitted for at least 3 years from
the date the application is signed, and any operating and/or other
records the Director requires the facility owner/operator to maintain
as a condition of the RAP.
This language is included to remind the facility owner/operator
that recordkeeping and reporting requirements may be imposed under the
Director's authority to impose ``terms and conditions necessary to
ensure that the operating requirements specified in your RAP comply''
with applicable requirements (Sec. 270.135). Although the Agency
proposed that all recordkeeping and reporting requirements would be set
on a site-specific basis (see 61 FR 18817), the Agency is including
these requirements in today's rule to avoid unnecessary disputes each
time a RAP is issued. In addition, the facility owner/operator must
comply with recordkeeping requirements from the applicable Part 264
requirements.
The requirements in new Sec. 270.210 are the same as those for
traditional RCRA permits required under Sec. 270.10(i), except that
they have been reworded to be more readable. In the May 19, 1980 notice
where EPA first promulgated the Sec. 270.10(i) requirements, EPA
justified the requirement saying that ``[t]he recordkeeping
requirements are necessary to support any subsequent EPA enforcement
action for false reporting'' (45 FR 33300 (May 19, 1980)).
Several commenters supported EPA's proposal to allow the Director
to set all recordkeeping and reporting requirements site-specifically
in the RAP. However, two commenters requested that EPA require the
owner/operator to maintain certain records in all cases. One requested
that EPA require the facility owner/operator to maintain records about
waste that is shipped off-site for management to provide EPA the
ability to track the waste if a non-hazardous determination was found
to be inappropriate. Another commenter suggested requiring the facility
owner/operator to maintain a copy of the RAP, testing results, and
manifests and/or bills-of-lading for wastes moved off-site.
All of these comments were based on the premise that EPA was
allowing some contaminated media to be exempted from Subtitle C
requirements. However, in today's rule, all hazardous remediation
wastes remain subject to Subtitle C, including the requirements for
manifests, which should alleviate the concerns of the two commenters
who recommended requiring manifests. Also, all hazardous remediation
wastes remain subject to the applicable requirements in Part 264, some
of which require the facility owner/operator to maintain certain
records.
In addition to those requirements, EPA decided it was appropriate
to require the same recordkeeping requirements for RAPs as are required
for traditional RCRA permits under Sec. 270.10(i). These provisions
require the facility owner/operator to maintain records of data used to
prepare the RAP application and supporting documents. EPA believes that
these requirements sufficiently respond to the concerns raised by the
two commenters.
DD. How Are the Time Periods in the Requirements of This Subpart and My
RAP Computed? (Sec. 270.215)
Although the proposal did not discuss this issue, to avoid
unnecessary disputes over the computation of time, EPA has decided to
add new Sec. 270.215, which keeps the provision at Sec. 124.20
clarifying how time periods specified in the permitting rules will be
computed. Specifically, Sec. 270.215(a) specifies that any time period
scheduled to begin on the occurrence of an act or event must begin on
the day after the act or event. Section 270.215(b) specifies that any
time period scheduled to begin before the occurrence of an act or event
must be computed so that the period ends on the day before the act or
event. Section 270.215(c) specifies that if the final day of any time
period falls on a weekend or legal holiday, the time period shall be
extended to the next working day. Finally, Sec. 270.215(d) specifies
that whenever a party or interested person has the right or is required
to act within a prescribed period after the service of notice or other
paper upon him or her by mail, 3 days must be added to the prescribed
term. The regulatory language includes examples to make these
requirements easier to understand.
EE. How May I Transfer My RAP to a New Owner or Operator?
(Sec. 270.220)
The Agency has decided to apply the same requirements to RAPs
(under new Sec. 270.220) that Sec. 270.40 requires for traditional RCRA
permits. This requires that if the ownership or operational control of
the facility changes, the RAP must be modified or revoked and reissued
to reflect this change. Again, although this was not proposed, the
Agency added it to ensure that the appropriate person is responsible
for activities permitted under the RAP.
Note, however, that a change in facility ownership or operational
control should not be considered a ``significant'' change; the
regulations for traditional RCRA permits in Sec. 270.40 allow a change
in facility ownership to be made as a Class 1 modification to a permit,
which is not a significant change.
Like Sec. 270.40, new Sec. 270.220 requires the new facility owner
or operator to submit a revised RAP application no later than 90 days
before the scheduled change, and requires a written agreement for the
date for transfer of RAP responsibility, and includes requirements for
Part 264, Subpart H, Financial requirements. The requirement to submit
the revised RAP application to the Director 90 days before the change
allows adequate time to revise the RAP before the change occurs, makes
clear when facility ownership or operational control is transferred,
and ensures that a responsible person will be fulfilling the Part 264,
Subpart H, financial responsibility requirements for the facility at
all times. These requirements in new Sec. 270.220 are identical to the
requirements in Sec. 270.40, except that they have been rewritten to be
more readable and to use the words ``RAP'' and ``remediation waste
management site'' instead of ``permit'' and ``facility.''
[[Page 65903]]
FF. What Must the State or EPA Region Report About Non-compliance With
RAPs? (Sec. 270.225)
Section 270.225 requires the State or EPA Region implementing RAPs
to report to the EPA Regional Administrator or to EPA headquarters,
respectively, on noncompliance with RAPs according to Sec. 270.5. The
proposed rule did not explicitly include this permitting requirement,
which is currently imposed for traditional RCRA permits. However,
without soliciting comment on this issue more explicitly, EPA is
reluctant to eliminate this requirement for RAPs.
Obtaining a RAP for an Off-site Location
GG. May I Perform Remediation Waste Management Activities Under a RAP
at a Location Removed From the Area Where the Remediation Wastes
Originated? (Sec. 270.230)
New Sec. 270.80(a) states that a RAP may only be issued for the
area of contamination where the remediation wastes to be managed under
the RAP originated and areas in close proximity to the contaminated
area, except as allowed in limited circumstances under this section.
This limitation was originally included in the definition of
remediation waste management site in the proposal for today's rule.
Many commenters addressed this limitation in their comments. One
commenter argued that managing remediation waste away from the area of
contamination might be the most environmentally protective option in
some cases. For example, permafrost in many areas in Alaska means that
surface water is abundant and floodplains are extensive, so if the area
of contamination were in these areas, it would be more environmentally
protective to treat, store, or dispose the remediation waste at a more
suitable, possibly remote, location. Other commenters suggested that it
would be environmentally beneficial to locate remediation waste
management sites away from the area of contamination if the
contaminated area were located in a potable well field or over a sole-
source aquifer.
One commenter raised the point that ``pipelines and other
industries that operate facilities on extensive linear rights-of-way
frequently must deal with historical contamination of soils at
multiple, noncontiguous locations, many of which may be extremely
remote. In these instances, it is most cost-effective to establish a
centralized remediation site, rather than to carry out remedial
treatment at each site of original deposition. This allows the remedial
treatment to be carried out at a location selected for characteristics
to minimize exposure to sensitive environments and to resident human
populations.''
Other commenters pointed out that some large facilities may limit
public access, and that plant services and equipment, such as waste
water treatment plants and paved areas for staging may be far away from
the contaminated areas. These commenters suggested expanding the
definition to include, if necessary, the entire facility boundary (that
is, areas under common ownership) to allow the use of an area that may
be several miles away, but better suited or safer for remedial
functions, yet contained within the perimeter of the facility's
security fence.
Another commenter raised the point that contaminated areas are
often located in areas of a site remote from utilities such as
electricity, steam, roadways, etc., and that it would be reasonable to
allow these remediation wastes to be managed in other areas of the site
where these utilities were available. Finally, the Department of Energy
(DOE) commented that there are locations where space is limited, and
the remediation site needs to be expanded to a location that is removed
from general employee access, and that at large sites with multiple
areas of contamination, it might be most efficient to consolidate those
wastes into one centralized management area within the boundaries of
the facility.
The Agency proposed to limit media remediation sites to the ``area
of contamination'' and ``areas in close proximity'' to ensure adequate
oversight of the waste management activities, to ensure that the
process was streamlined, and to reduce administrative complications.
Many commenters considered EPA's concerns and also added additional
potential concerns that locations away from the area of contamination
might become contaminated in the course of waste management, that
surrounding communities might be affected by this waste management, and
that these might be long-term actions which might not be desirable to
the surrounding community.
However, commenters also suggested solutions. Commenters suggested
that the Agency set up a preference for locating remediation waste
management sites in the area of contamination or areas in close
proximity, unless good justification could be made why other locations
would be preferable. In light of concerns about control over the
boundaries of a remediation waste management site, and community
involvement, commenters suggested that the RAP approval process would
provide the Director the opportunity to approve or deny the designation
of the boundaries of the remediation waste management site, would allow
the surrounding community to participate in the decisions for
activities that might affect them, and would provide the oversight to
ensure proper waste management.
EPA agrees that in some cases, such as the commenters have raised,
it may be preferable to designate alternative locations for remediation
waste management, and has added the special requirements under
Sec. 270.230 for performing remediation waste management activities at
a location removed from the area where the remediation wastes
originated, to respond to these comments. Section 270.230(a) and (b)
allow the facility owner/operator to request and the Director approve a
RAP for an alternative location if performing the remediation waste
management activities at such a location will be more protective than
managing the remediation in the area of contamination or areas in close
proximity. Section 270.230(c) specifies that a RAP for an alternative
location will be approved or denied according to the procedures and
requirements for RAPs in this Subpart.
EPA expressed concern about the possibility of contaminated areas
being located in floodplains in the proposal, and was persuaded by the
other examples provided by commenters such as permafrost areas, potable
well fields, and sole source aquifers. EPA agrees that it would not be
environmentally desirable to designate remediation wastes management
sites in these locations. EPA agrees that centralized treatment, in the
types of situations described by the commenters, may be environmentally
beneficial. The Agency does not want to inhibit the remediation of
contaminated properties.
The Agency has set specific requirements in Sec. 270.230(d) for
RAPs at alternative locations. First, EPA has specified in
Sec. 270.230(d)(1) that the RAP for the alternative location must be
issued to the person responsible for the cleanup from which the
remediation wastes originated. EPA wants to encourage environmentally
beneficial cleanups, but does not want to allow a commercial
remediation waste management facility to open as an ``alternative
location'' which is owned and operated exclusively by someone who is
not involved in the cleanup activities, and then be exempt from
facility-wide corrective action
[[Page 65904]]
requirements. Therefore this limitation ensures that the facility owner
or operator performing the cleanup activities be a permittee at the
remote location, as either the operator or the owner, or both. Of
course, others can also be permittees (for example, the land owner, if
not the same as the person performing the cleanup). For example, in the
situation discussed above where it may be more protective to remove
remediation wastes for management outside of a floodplain in Alaska,
the remote location may be owned by someone other than the person
responsible for the cleanup, such as the Federal government. In that
case, the person responsible for the cleanup and the Federal agency
responsible for the land would be the permittees for the remote
location.
Sections 270.230(d)(2) and (3) require that RAPs for alternative
locations are subject to the expanded public participation requirements
in Secs. 124.31, 124.32, and 124.33, and the public notice requirements
in Sec. 124.10(c). EPA has required this additional public
participation for these alternative locations to give the community
surrounding the alternative location ample opportunity to participate
in the decisions about managing remediation waste in their community.
Remediation waste management sites located in contaminated areas
will presumably be subject to extensive public participation as part of
the remedy selection process, and also the community will be receiving
the benefit that a contaminated area in their community will be cleaned
up. In alternative locations, the community would not be involved in
the process of selecting the remedy for the contaminated area, nor
would they be receiving the benefit of their community being cleaned
up. Therefore, EPA felt it was important to require this additional
public participation.
Section 270.230(d)(4) requires these alternative locations to
comply with the location standards of Sec. 264.18. Remediation waste
management sites located in areas of contamination cannot choose their
location. The area of contamination is already established, and
therefore it does not make sense to require these remediation waste
management sites to comply with the seismic location standard. However,
owners and operators of these alternative locations can choose the
location and so should comply with this standard.
Finally, Sec. 270.230(e) specifies that these alternative locations
are remediation waste management sites, and retain the benefits of
remediation waste management sites, that is, the exclusion from
facility-wide corrective action, and the application of the performance
standards in Sec. 264.1(j) instead of Part 264, Subparts B, C, and D.
EPA believes that the disincentives to cleanup would remain if EPA
required facility-wide corrective action for these alternative
locations, and so is keeping this exclusion the same as it applies to
other remediation waste management sites to eliminate disincentives to
cleanup. Also, the same reasons why the Sec. 264.1(j) performance
standards are more appropriate for remediation waste management sites
than Part 264, Subparts B, C, and D, also apply to why Sec. 264.1(j) is
more appropriate for these alternative locations than Part 264,
Subparts B, C, and D.
EPA believes that the requirements for the Director to approve the
designation of the remediation waste management site in the RAP or
other permit will assure that the location will be decided for the best
environmental reasons. Also, the RAP or other permit approval process
for designating the remediation waste management site will ensure that
the public has the opportunity to comment on the decisions of where to
locate the remediation waste management site.
Finally, the Agency wishes to make it clear that if an owner/
operator manages hazardous remediation wastes as part of cleanup on
their facility, and ships that waste off-site, then, of course, they
become a generator. Therefore, when they ship the waste off their
facility, including shipping it to a facility under an off-site RAP
under Sec. 270.230, they must comply with the applicable requirements
for generators, such as manifesting and transportation requirements.
If an owner/operator will be treating, storing, or disposing both
on-site and off-site (in a way that triggers the requirement for a
permit in Sec. 270.1), the owner/operator must get a separate RAP (or a
traditional RCRA permit) for both the on-site and the off-site
activities. Only the off-site RAP, however, is subject to Sec. 270.230.
HH. Comparison of the RAPs Process to That for Traditional RCRA Permits
The procedures for approving RAPs in today's rule are more
streamlined than the requirements for traditional RCRA permits. EPA
expects that RAPs will most often be developed concurrently with the
cleanup's remedy selection process. Most cleanup programs contain a
remedy selection process requiring the Director's approval and public
participation. (As discussed in the State authorization section of this
preamble, a program without the required RAP public participation
provisions will not be authorized to implement today's rule.)
As described elsewhere in today's preamble, EPA has intentionally
constructed the RAP requirements to allow enough flexibility to
integrate them with remedy selection requirements. EPA expects remedy
selection and RAP approval will most often occur together, and
therefore has designed the RAPs process to allow this. EPA expects
joint issuance of RAPs and remedy selection documents that will be
significantly more streamlined than separate permitting and remedy
selection processes and will still maintain meaningful public
involvement.
In addition to general streamlining, there are eight specific steps
in the traditional permitting process that EPA has eliminated for RAPs.
First, and perhaps most significantly, in an effort to
better tailor the RAPs requirements to the cleanup setting, the content
requirements for RAP applications (from Sec. 270.110) are significantly
less than those required in a RCRA Part B permit application.
Second, Sec. 124.3(c) requires a ``completeness check''
for traditional permits, which EPA does not require for RAPs. Instead,
for RAPs, new Sec. 270.130 describes the finding that the Director will
make to determine whether to tentatively approve or deny a RAP
application. Obviously, if the Director feels that a RAP application is
incomplete, the Director will communicate with the RAP applicant to
fill in any gaps, but it is not a specific additional step in the
process.
Third, EPA has removed the facility mailing list
(Sec. 124.10(c)(1)(ix)) requirements; and
Fourth, has reduced the Director's public notice
requirements under Sec. 124.10(c)(1). (For RAPs, the Director must send
notices to local and State agencies as required under RCRA 7004(b), and
to the RAP applicant.)
Fifth, EPA is not requiring a pre-application public
meeting and notices (Sec. 124.31); nor
Sixth, public notice at the application stage
(Sec. 124.32); nor
Seventh, the requirements for an information repository
(Sec. 124.33) at remediation waste management sites, but encourages the
Director and the RAP applicant to conduct these activities where
appropriate.
Eighth and finally, the procedural requirements for
modification and termination, revocation and reissuance are much more
flexible for RAPs than for traditional RCRA permits. Today's
[[Page 65905]]
rule allows the Director to specify these requirements site-
specifically in the RAP, instead of the EPA-promulgated requirements
such as in Secs. 270.41, 270.42, and 270.43. EPA expects that many
States will have established procedures in their remedial programs for
modifying, terminating and revoking and reissuing RAPs. EPA is allowing
for any of these State requirements as long as they meet the threshold
requirements of including an opportunity for public participation
whenever significant modifications are made (see Sec. 270.170).\12\
---------------------------------------------------------------------------
\12\ Note that by complying with the public participation
requirements for RAPs, a facility owner/operator may not have
automatically fulfilled all applicable public participation
requirements for corrective action, closure/post-closure, or any
other cleanup-related activities that require public participation
and the facility owner/operator needs to remain cognizant of these
separate public participation requirements.
---------------------------------------------------------------------------
V. Requirements Under Part 264 for Remediation Waste Management
Sites (Sec. 264.1(j))
In the proposed rule at Sec. 269.40(b), EPA proposed that media
remediation sites (finalized in today's rule as remediation waste
management sites) would be subject to the applicable provisions of part
264 except Subparts B (General Facility Standards) and C (Preparedness
and Prevention). Subparts A and D-DD would continue to apply unchanged,
at least for wastes above the Bright Line. EPA proposed this approach,
as one option, because the unit specific standards of part 264 provided
ready-made standards to ensure protection of human health and the
environment. However, EPA recognized that part 264 standards other than
those in Subparts B and C also may not be appropriate and solicited
comment on which, if any, other provisions of part 264 should not apply
to media remediation sites (61 FR 18814). EPA also requested comment on
the ``Unitary Approach'' that would remove all part 264 standards for
remediation wastes.
After examining public comments on this part of the proposal, EPA
has decided to finalize a somewhat different approach from what was
proposed. Specifically, today's rule at Sec. 264.1(j) provides that
remediation waste management sites must comply with all parts of part
264 except Subparts B, C, D (Contingency Plan and Emergency
Procedures), and Sec. 264.101.\13\ In place of the requirements in
Subparts B, C, and D, however, EPA is finalizing performance standards
based on the general requirement goals in these sections.\14\ These new
standards eliminate the specific requirements of Subparts B, C, and D,
which for two reasons can be inappropriate for remediation-only sites.
Either the requirements were not specifically designed for the
treatment, storage, and disposal activities during cleanups, or they
are likely to duplicate or conflict with requirements imposed under the
remedial authority compelling cleanup.
---------------------------------------------------------------------------
\13\ Note that Sec. 264.1080(b)(5) already includes an exemption
from Subpart CC for certain wastes that are generated as the result
of implementing remedial activities.
\14\ Of course, facilities other than remediation-only
facilities must comply with Subparts B, C, and D.
---------------------------------------------------------------------------
Thus, the provisions finalized today ensure that the concerns
addressed by these provisions will be addressed by the Director in the
permit or RAP, without requiring specific conditions that may be
inappropriate. At the same time, EPA has chosen not to amend the unit-
specific standards of Part 264 for remediation waste, although the
Agency continues to believe a more extensive revision of these
requirements is appropriate. The applicability of Sec. 264.101 is
discussed in section VII. of this preamble.
A. Comments on Applying Part 264 Standards to Remediation Waste
Management Sites
Many commenters, arguing for the Unitary Approach, suggested that
Part 264 standards should not apply to remediation waste management,
and that regulatory Agencies overseeing cleanup should have broad
flexibility in imposing conditions on specific units.
Other commenters suggested more narrowly that several of the
specific Part 264 management provisions included in the HWIR-media
proposal are unnecessary for managing remediation wastes under a RAP.
The earlier commenters argued that these requirements were clearly
intended for the long-term management of hazardous waste at facilities
which manage these materials on an on-going basis, whereas many
cleanups are short-term and do not lend themselves to these restrictive
provisions. These commenters argued that more flexibility is necessary
to allow cleanups to take place quickly and to proceed unencumbered by
regulatory provisions more appropriate for the risks posed by managing
hazardous ``as-generated'' process wastes.
Specifically, several commenters suggested that the Agency should
allow the Director to waive specific requirements from Part 264 or make
site-specific adjustments under appropriate site-specific
circumstances.
Part 264, Subpart E
Commenters specifically mentioned Part 264, Subpart E, requirements
for manifesting, and commented that these requirements should not apply
to wastes managed on-site. One commenter stated that manifesting
requirements were not appropriate for all corrective action activities
and that specific manifesting requirements should be set out in the RAP
for that site. EPA disagrees; the Agency believes that manifesting is
no less important when hazardous wastes are being transported off-site
in the remedial context than in the as-generated waste context, and so
these requirements continue to apply to hazardous remediation wastes.
However, manifests are not required when wastes are managed on-site.
Part 264, Subpart F
Another commenter stated that Subpart F Secs. 264.90-264.100
groundwater monitoring and corrective action requirements should not
apply to remediation waste units, because that would lead to a
perpetual cycle of waste management activities. This commenter, in
EPA's view, has raised a complex and important issue. EPA believes
that, where a new land based unit is created as part of corrective
action, it should be handled as a landfill--subject to Subpart F
groundwater requirements (including Subpart F Sec. 264.100 corrective
action)--or as a CAMU, under which EPA establishes alternative site-
specific conditions to protect groundwater.
On the other hand, where an old regulated unit has released
hazardous constituents into the environment, and releases from the unit
are being addressed as part of a cleanup, EPA believes that Subpart F
requirements do not make sense (since these requirements were designed
primarily as preventive standards for units that had not yet had
releases into the environment); instead, remedial authorities like
CERCLA or RCRA 3004(u) are better suited for defining groundwater
monitoring and cleanup requirements at these units.
EPA's post-closure rule, which was promulgated on October 22, 1998
(63 FR 56710), is designed to allow integration of cleanup requirements
at closing regulated units into broader cleanup requirements at
specific sites, and may address the commenters' concerns. Areas of
contamination, which are not typically ``regulated units'' subject to
Subpart F or unit-specific RCRA requirements would be handled in a
similar fashion. The regulatory agency facing an area of contamination
would
[[Page 65906]]
base specific decisions on groundwater monitoring, cleanup levels, and
cover requirements on the remedial authorities being invoked, rather
than on RCRA Subpart F or other unit-specific requirements.
In summary, where a new land-based unit is created, EPA disagrees
with the commenter; in this case, current Part 264 standards (including
the CAMU) should continue to apply. But where an old or existing unit
is being addressed as part of a cleanup, EPA shares the commenter's
concerns. EPA believes that considerable flexibility already exists in
the RCRA regulations to address this situation, but the Agency also
acknowledges that further evaluation (including possible statutory
changes) is appropriate.
Part 264, Subpart G
Another commenter stated that Subpart G closure requirements could
be incorporated into the RAP, and therefore a separate closure plan or
permit would be redundant. EPA agrees with this commenter, and
throughout the RAPs section of today's preamble stresses the importance
of integrating processes and documents whenever possible and helpful.
EPA agrees that, if closure requirements can be integrated into the
RAP, then two separate documents will not be necessary.
At the same time, today's rule does not alter the way that Subpart
G or unit specific closure requirements apply to cleanup sites. Subpart
G and unit specific closure requirements apply to new units permitted
under a RAP, but not to areas of contamination, or to old units not
already subject to Subtitle C (for example, units where non-hazardous
wastes that subsequently became hazardous were disposed). This is how
closure requirements apply at any other regulated facility. Thus, if a
new landfill were created under a RAP in the course of a remediation,
it would be subject to Subpart G closure standards. Or, the Director
might approve a CAMU, which would provide greater flexibility than the
landfill closure standards.
Subpart G or unit-specific closure standards will not apply in
areas of contamination where new ``placement'' of hazardous wastes has
not occurred.\15\ Closure, and monitoring, at these units or areas will
be a remedial issue, to be addressed under the remedial authority under
which the cleanup is being performed.
---------------------------------------------------------------------------
\15\ For a description of what constitutes ``placement'' in an
area of contamination, see the March 13, 1996 memorandum from
Michael Shapiro, Director, Office of Solid Waste, Stephen D. Luftig,
Director, Office of Emergency and Remedial Response, and Jerry
Clifford, Director, Office of Site Remediation Enforcement,
regarding ``Use of the Area of Contamination (AOC) Concept During
RCRA Cleanups.''
---------------------------------------------------------------------------
Part 264, Subpart H
Several commenters focused on Part 264, Subpart H, financial
assurance. They suggested that financial assurance for corrective
action has a very different purpose from the propose it has for
operating facilities. Also, they suggested that sites should be allowed
to set up site-specific plans for financial assurance, depending on the
specifics of the site and the activities taking place.
Today's rule, however, does not address financial assurance for
corrective action requirements, such as the ability to finance a
cleanup and meet remedy goals. It does not impose any additional
requirements for financial assurance for corrective action, beyond what
a facility may already be subject to under other authorities. Thus, at
a remediation-only site, today's rule would impose no financial
assurance for corrective action. However, if the site is located at a
facility subject to corrective action, then the financial assurance
requirements for the corrective action activities will still apply to
the full extent provided by this Subpart (that is, on a facility-wide
basis). That is, designation as a remediation waste management site
does not eliminate otherwise applicable financial assurance
requirements.
At the same time, however, EPA has chosen to retain the unit-
specific financial assurance requirements for third-party liability and
closure. EPA recognizes that the very detailed nature of the Agency's
current requirements in these areas may constrain some State programs,
and that in some cases it may be better for the environment if marginal
facility owners are allowed (or required) to proceed with cleanup, even
if they cannot secure financial assurance mechanisms. (In this case, an
enforcement mechanism may be preferable to a permit mechanism.) EPA,
however, did not solicit, or receive, sufficient comment in this area
to change the current requirements. Thus, remediation units permitted
under a RAP will remain subject to the unit-specific RCRA financial
assurance requirements for third-party liability and closure.
Part 264, Subparts I, J, K, L, M, N, and O
One commenter suggested that the requirements in 40 CFR part 264,
Subparts I, J, K, L, M, N, and O, be specifically incorporated into
RAPs only as necessary. The commenter suggests that they might not be
necessary for managing low-risk media. However, EPA is not finalizing
the Bright Line which would have distinguished between high- and low-
risk media. EPA agrees that these requirements only need to be
incorporated into the RAP if they apply to units being permitted under
the RAP.
Part 264, Subpart BB
Finally, one commenter suggested dividing Subpart BB into three
tiers:
(1) Subpart BB would not apply to actions that would take place for
a shorter time than one year;
(2) The Director would apply Subpart BB, as appropriate, to actions
that would take between one and three years; and
(3) Subpart BB would apply in its entirety for actions taking
longer than three years. Again, EPA has chosen not to amend the unit
specific standards of part 264 for remediation waste, although the
Agency continues to believe a more extensive revision of these
requirements is appropriate.
EPA believes that it will be extremely rare for the Part 264,
Subpart BB, requirements to apply to units managing remediation waste.
The Subpart BB requirements only apply to units managing wastes with
organic concentrations of at least 10 percent by weight. EPA believes
that concentrations at that high a level are rarely found in
remediation wastes. Also, if the Director determines that the Subpart
BB requirements do apply, but are not appropriate for a particular
cleanup site, the Director can designate the unit as a temporary unit.
That allows the Director to modify the unit-specific standards as
appropriate in cleanup situations. However, temporary units may only be
used for a limited period of time.
B. EPA's Response to These Comments
The Agency agrees with the many commenters who pointed out that
more flexibility is desirable for many cleanups, but does not believe
at this point that a blanket exemption from Part 264 is appropriate. In
the first place, certain requirements (for example, MTRs for landfills)
are imposed by statute, and EPA does not believe the Agency has the
authority to eliminate them in today's rule. In addition, EPA does not
believe the Agency has fully aired the issues for public comment. For
example, EPA is not convinced that secondary containment is needed for
tanks in all remedial situations. However, EPA did not solicit comment
specifically on this issue, and the Agency is not prepared today to
finalize amendments to the current regulations.
[[Page 65907]]
At the same time, EPA believes that the current regulations already
provide significant flexibility in remedial contexts. Secondary
containment, for example, is not necessarily required for tanks or
other units used in remediation if they were approved as temporary
units under Sec. 264.553. Innovative technologies can often be
permitted under the flexible standards of Subpart X. As discussed
earlier, the CAMU regulations provide flexibility for land-based units,
as do staging piles, which are promulgated in today's rule and
discussed elsewhere in this preamble.
On the question of air emissions, raised specifically by one
commenter, EPA notes that the temporary unit standards allow the
Director to develop alternative operating standards for temporary tanks
and containers managing remediation waste (which would include
alternative standards to Subpart BB; if they applied). And furthermore,
EPA has explicitly exempted on-site remedial activities under EPA or
State cleanup authorities from Subpart CC standards. Thus, while EPA
believes that further review and tailoring of the current technical
permitting standards for remediation waste is appropriate, the Agency
also concludes that considerable flexibility already exists.
C. EPA Is Providing Relief From Part 264, Subparts B, C, and D
On the other hand, in today's rule, EPA is amending the general
facility standards of Subparts B, C, and D to provide greater
flexibility for owner/operators of remediation waste sites. Instead of
the current, detailed requirements in these Subparts, persons managing
remediation waste sites will be able to meet general performance
standards. These performance standards define the facility requirement,
such as ``inspect the facility . . . often enough to identify problems
in time to correct them,'' but allow considerable flexibility to the
regulator in determining how an owner/operator will meet those
standards. The Agency believes that the basic goals of Subparts B, C,
and D continue to be important, but also EPA believes that the
protection desired under Subparts B, C, and D can be achieved at
remediation waste management sites by applying the performance
standards of today's rule.
Flexibility in applying many of these substantive requirements is
important because of the wide variety of remediation waste management
activities that may be permitted under a RAP, everything from managing
small volumes of investigation-derived wastes, to remediating large
volumes of contaminated soils, or treating highly concentrated
remediation wastes. Also, some activities permitted under RAPs may be
very short-term actions, and yet some may involve multi-year treatment
of remediation wastes at a large remediation waste management site. The
following paragraphs describe the flexibility EPA is providing for
general RCRA facility standards in Sec. 264.1(j).
The opening sentences of Sec. 264.1(j) provide for applicability of
these provisions instead of Sec. 264.10.
Section 264.1(j)(1)
Instead of Sec. 264.11, new Sec. 264.1(j)(1) requires the facility
owner/operator to obtain an EPA identification number. These
identification numbers are important to allow EPA and States to track
activities at facilities that generate hazardous wastes, whether as a
result of ongoing processes or during cleanup. This is a simple
procedure and can be done quickly. This standard is only different from
Sec. 264.11 entitled ``identification number,'' because of editorial
changes to enhance readability.
The requirements in Sec. 264.12 do not apply to remediation waste
management sites because they are requirements for receiving wastes
from foreign (Sec. 264.12(a)) and off-site (Sec. 264.12(b)) sources,
which will not occur at remediation waste management sites. (Owner/
operators are exempt from the Sec. 264.12(b) requirements when they are
also the generator. The only way an owner/operator can have a RAP at an
off-site location is if they are both the generator and the owner/
operator of the off-site location. Therefore, this requirement will
never apply to RAPs.)
Section 264.1(j)(2)
Instead of ``general waste analysis'' (Sec. 264.13), today's rule
requires a chemical and physical analysis of the hazardous remediation
waste under new Sec. 264.1(j)(2) , which at a minimum must contain all
the information needed to treat, store, or dispose of the waste
according to this part and part 268. The waste analysis must be
accurate and up to date.
This requirement mirrors the existing requirement in
Sec. 264.13(a)(1), which sets out the general goal of the waste
analysis requirement. However, this standard eliminates requirements
that:
(1) Were written with facilities engaged in the business of
hazardous waste operations in mind (for example, Sec. 264.13(a)(3),
which addresses analysis of wastes from unfamiliar off-site sources);
or
(2) Are likely to duplicate or conflict with requirements imposed
by the remedial authority at the site (for example, 264.13(b) to
develop an analysis plan that may duplicate testing done for site-
characterization and remedy selection).
EPA expects that waste analysis plans developed under a reliable
cleanup program, such as EPA's RCRA corrective action program or its
CERCLA program, will provide enough data to meet this requirement. EPA
emphasizes that waste analysis should be tailored to provide
information needed to manage cleanup wastes successfully. EPA does not
encourage analysis for analysis' sake.
Section 264.1(j)(3)
Instead of the ``security'' provision (Sec. 264.14), EPA has
promulgated a performance standard at Sec. 264.1(j)(3) to warn
potential intruders and to minimize the unauthorized entry of persons
or livestock onto the active portion of the remediation waste
management site. EPA allows an exemption from this requirement if the
facility owner or operator can show that this entry will not injure
these persons or livestock or cause violations of the requirements in
part 264.
For traditional RCRA permits, this requirement and the exemption
are at Sec. 264.14(a). However, Sec. 264.14(b) and (c) are very
detailed in exactly how to provide that security. EPA has determined
that, for remediation waste management sites, the performance standard
reasonably provides that the site will be secure, but allows
flexibility in achieving that goal. This takes into account the
different types of activities that may be taking place at remediation
waste management sites.
Section 264.1(j)(4)
Instead of the ``general inspection requirements'' ( Sec. 264.15),
EPA has promulgated a performance standard at Sec. 264.1(j)(4)
requiring facility owner/operators to inspect the facility often enough
to identify problems in time to correct them before a problem leads to
a human health or environmental hazard. This performance standard,
which is the same as the current permitting requirement, also:
Requires the facility owner/operator to take action
immediately if a hazard is imminent or has already occurred;
Is drawn from the language in Sec. 264.15(a) and (c);
Ensures that the facility owner/operator will make
appropriate inspections; but
Allows for flexibility in how these inspections will be
done.
EPA is not requiring the other parts of Sec. 264.15(b) and (d)
regarding a written schedule and log, but instead, new
[[Page 65908]]
Sec. 264.1(j)(12) and (13) require the facility owner/operator to have
a plan and records. EPA expects this approach will be more streamlined
than requiring a separate plan and record for each activity under
264.1(j).
Section 264.1(j)(5)
Instead of the ``personnel training'' requirements at Sec. 264.16,
EPA has promulgated Sec. 264.1(j)(5) requiring the facility owner/
operator to train personnel to perform their duties in a way that
ensures the facility's compliance with the requirements in this part,
and to respond effectively to emergencies. This performance standard is
derived from the requirements in Sec. 264.16(a)(1) and (3).
Training is important when personnel are dealing with hazardous
substances, not only to ensure proper precaution during normal
operations, but also to ensure that well-trained personnel are
available and can respond effectively in emergencies. This performance
standard requires training, but is flexible enough to cover a wide
range of reasonable programs. For example, where a site is subject to
Occupational Safety and Health Administration (OSHA) or similar
training standards for hazardous waste site workers, additional
standards probably will not be necessary. EPA does not want to create
duplicative requirements where training is already adequate.
EPA is not specifying all of the details of how to provide and keep
records of training as is required under Sec. 264.16(a)(2), (b), (c),
(d), and (e). EPA believes that each site will be very different and
require different intensities of training. Also, Sec. 264.1(j)(13) will
ensure proper records are maintained.
Section 264.1(j)(6)
Instead of the Sec. 264.17 ``general requirements for ignitable,
reactive, or incompatible wastes,'' EPA has promulgated the performance
standard at Sec. 264.1(j)(6). This standard requires facility owners
and operators to take precautions when managing ignitable, reactive and
incompatible wastes. This performance standard is similar to the
Sec. 264.17(a) and (b) requirements.
Because ignitable and reactive wastes can be highly dangerous
materials, and because different properties of different hazardous
wastes can cause explosions, toxic fumes, or other hazards if they
react with other incompatible materials, it is important to take
appropriate precautions when dealing with these wastes. EPA did not
include the specifics of how to separate wastes from potential sources
of ignition or reaction or what kinds of reactions to avoid or how to
document compliance. EPA believes that, due to the level of oversight
at cleanup sites, these precautions will be adequately addressed, and
recordkeeping will be addressed under new Sec. 264.1(j)(13).
Section 264.18(a) does not make sense for remediation waste
management sites, as contaminated areas are already located in a
certain location, and if the remediation waste management site must be
located in the area of contamination or areas in close proximity, there
is not much choice about where to locate the remediation waste
management site. Therefore, EPA has not included a performance standard
for remediation waste management sites instead of Sec. 264.18(a).
However, EPA expects facility owners and operators to do their best to
locate units a safe distance from faults whenever possible. EPA has
required compliance with this standard under Sec. 270.230(d)(4) when
alternative locations are approved for remediation waste management.
Section 264.1(j)(7)
Section 264.1(j)(7) is the same requirement as the provisions of
Sec. 264.18(b) for floodplains, but re-written to enhance readability.
Section 264.18(b) already provides some flexibility for locating within
a floodplain (provided certain mitigating design or operating criteria
are met). Today's performance standard allows the same flexibility.
Section 264.1(j)(8)
Section 264.1(j)(8) is the same requirement as Sec. 264.18(c) for
salt dome formations, salt bed formations, underground mines, and
caves. This is also a RCRA statutory requirement at RCRA Sec. 3004(b),
and is the same as that in Sec. 264.18(c), but is re-written to enhance
readability. EPA believes that it is unlikely that the situation
contemplated in this provision would arise during a remediation, but--
because the requirement is statutory--EPA included it in today's rule.
Section 264.1(j)(9)
Section 264.1(j)(9) requires the facility owner/operator to have a
construction quality assurance (CQA) program for all new surface
impoundments, waste piles (except staging piles), and landfill units at
the remediation waste management site according to the requirements in
Sec. 264.19. While this requirement is included under ``General
Facility Standards,'' EPA views the requirement as more akin to the
unit-specific, technical standards that appear later in Part 264.
Because EPA did not specifically solicit comment on the technical need
for these requirements in a remedial context, or the possibility of
more flexible alternatives, the Agency is not prepared at this point to
revisit them. Therefore, EPA (consistent with the Agency's decision to
leave Part 264 unit-specific requirements intact) has simply required
compliance with the existing requirements in Sec. 264.19. EPA notes,
however, that these requirements do not apply to CAMUs or to already
existing areas of contamination where waste is left in place.
Section 264.1(j)(10)
Section 264.1(j)(10) requires that, instead of Subpart C--
Preparedness and Prevention (Secs. 264.30 through 264.37) and Subpart
D--Contingency Plan and Emergency Procedures (Secs. 264.50 through
264.56), the facility owner/operator must have accident preparedness
and prevention procedures and a contingency and emergency plan. These
plans must: (1) ensure that the hazardous waste units at remediation
waste management sites are designed, constructed, maintained, and
operated to minimize the possibility of an emergency; and (2) minimize
hazards to human health or the environment from any emergencies from
treating, storing, and disposing of the hazardous remediation waste.
The performance standard embodies the requirements in Sec. 264.31
and Sec. 264.51. However, the Part 264, Subparts C and D, requirements
include considerable detail about preparing for and responding to
emergencies. In the cleanup scenario, this detail can become a problem
because of the wide variety of activities taking place. Detailed
requirements may be redundant with other cleanup requirements or simply
unnecessary in many cases. For example, the cleanup program overseeing
the remediation may already have procedures for notifying police, fire
departments, and emergency personnel. In this case, the specific
requirements in Part 264, Subparts C and D, would be redundant. Because
of the wide variety of activities that may be taking place at a
remediation waste management site, and the fact that these activities
may often be short-term, EPA is allowing considerable flexibility in
these preparedness requirements.
Section 264.1(j)(11)
New 264.1(j)(11) requires the facility owner/operator to designate
one or more employees as an emergency coordinator. This is the same
requirement as under Sec. 264.55. This requirement makes it possible to
implement the emergency
[[Page 65909]]
procedures in the contingency and emergency plan quickly and
efficiently. In any circumstance involving treating, storing, or
disposing of hazardous wastes, including hazardous remediation wastes,
an emergency coordinator facilitates an effective response.
Sections 264.1(j)(12) and (13)
New Sec. 264.1(j)(12) requires the facility owner/operator to have
and implement a plan or plans to meet the requirements in subparagraphs
(j)(2) through (j)(6) and (j)(9) through (j)(11). Thus, the facility
owner/operator must have a plan to address waste analysis, security,
inspection, training, waste compatibility, construction quality
assurance, and accident preparedness. Also, new Sec. 264.1(j)(13)
requires the facility owner/operator to maintain records documenting
compliance with subparagraphs (j)(1) through (j)(12).
In the existing Subparts B, C, and D, each of the individual
sections has requirements to have plans and keep records. New
Secs. 264.1(j)(12) and (13) streamline those requirements by requiring
only one plan and one set of records to cover the requirements instead
of several plans and sets of records. Note, however, that the owner/
operator is not limited to one plan; more than one plan would be
perfectly acceptable if that is more appropriate for the particular
site. These plans and records are necessary so that the Agency or the
public can inspect the facility's compliance with these requirements.
EPA believes that any well-managed remediation project will have plans
and records of this type, and the Agency does not anticipate that sites
with acceptable plans as part of their remedial activities will have to
reformat or rewrite these plans solely to meet the performance
standards of today's rule.
It is important to note that, in the same way as the current Part
264 standards apply to facilities, these new standards under
Sec. 264.1(j) apply at remediation waste management sites only to
hazardous remediation waste management units, not to units that are not
otherwise subject to Part 264 requirements, such as solid waste
management units, or exempt hazardous waste units. 16
---------------------------------------------------------------------------
\16\ Of course, solid waste management units are subject to
Sec. 264.101 corrective action requirements at facilities subject to
corrective action.
---------------------------------------------------------------------------
In the proposed rule, the requirements in Subparts B and C were
waived for media remediation sites (which in the final rule are
remediation waste management sites) under RAPs. There was no mention
that there could possibly be a media remediation site that was not
permitted by a RAP. Under the final rule, EPA acknowledges that there
may be remediation waste management sites that are permitted under a
traditional RCRA permit, and so has not specified that the new part 264
requirements for remediation waste management sites are limited to
those permitted under RAPs, but are available for all remediation waste
management sites.
The arguments for alternative standards still apply, even without
the limitation to RAPs. Remediation waste management sites will vary
greatly between the different types of remediation wastes and
activities taking place. They will be subject to cleanup requirements
under the programs requiring cleanup at these sites, and often cleanup
requirements and the traditional part 264 standards may be duplicative.
Therefore, today's rule makes these new part 264 performance standards
available for all remediation waste management sites.
VI. Application of RCRA Sections 3004(u) and (v), and Sec. 264.101
to Remediation Waste Management Sites (Sec. 264.101(d))
EPA proposed that the 3004(u) and (v) facility-wide corrective
action requirement (which is implemented through Sec. 264.101) would
generally not apply to facilities that obtain RMPs (see proposed
Sec. 269.40(d)). EPA has included in the final rule in Sec. 264.1(j)
that Sec. 264.101 does not apply to remediation waste management sites.
However, some remediation waste management sites may be part of a
facility that is subject to a traditional RCRA permit because that
facility also treats, stores, or disposes of hazardous wastes that are
not remediation wastes. The rule does clarify that in these cases,
Subparts B, C, and D, and Sec. 264.101 do apply to the facility subject
to the traditional RCRA permit. EPA also amended Sec. 264.101 to add a
paragraph (d) as follows: ``(d) This section does not apply to
remediation waste management sites unless they are part of a facility
subject to a permit for treating, storing or disposing of hazardous
wastes that are not remediation wastes.'' Subpart F Sec. 264.101
facility-wide corrective action does not apply to remediation waste
management sites. 17 This issue is more fully discussed in
today's preamble section on the definition of remediation waste
management site.
---------------------------------------------------------------------------
\17\ The exclusion of remediation waste management sites from
the definition of facility in today's rule is strictly limited to
the definition of facility for purposes of corrective action, which
is found in part (2) of the definition of facility. Remediation
waste management sites are not excluded from part (1) of the
definition of facility for other purposes.
---------------------------------------------------------------------------
VII. Staging Piles (Secs. 260.10 and 264.554)
A. Introduction and Background
Today's rulemaking establishes a new type of unit-- the staging
pile-- which will provide needed regulatory flexibility for the
facilitation of certain cleanup activities, while ensuring
environmentally protective results. A staging pile is an accumulation
of solid, non-flowing remediation waste (as defined today in 40 CFR
260.10) that is not a containment building and is used only during
remedial operations for temporary storage at a facility. Today's
regulations provide the Director with the authority to designate and
approve staging piles for the purpose of storing remediation waste. In
today's staging pile provisions, EPA has modified the remediation pile
concept proposed in the HWIR-media proposal on April 29, 1996 in
response to comments and also to correspond with other changes that
have been made to the rule since its proposal.
A goal repeated throughout today's final rule is the achievement of
environmental progress by facilitating the cleanup of as many
contaminated sites as possible. The physical, economic, and technical
limitations on the operation of a cleanup program often dictate that
remediation wastes be temporarily stored on-site prior to completion of
the remedial activity. The regulations establishing staging piles are
designed to provide greater flexibility for decision-makers to
implement protective, reliable, and cost-effective remedies. Staging
piles will allow short-term storage to occur under circumstances that
are protective of human health and the environment, without the
extensive set of prescriptive standards that may be required for units
in long-term use.
EPA believes that the additional flexibility provided by staging
piles will improve the ability of program implementors and facility
owner/operators to implement the most effective remedy for any given
facility. For example, the use of staging piles will facilitate short-
term storage of remediation wastes so that sufficient volumes can be
accumulated for shipment to an off-site treatment facility, or for
efficient on-site treatment. The Agency also anticipates, for example,
that staging piles will facilitate treatment technologies such as
chemical extraction by allowing on-site accumulation of sufficient
treatment
[[Page 65910]]
volumes. In addition, staging piles should be useful since they will
allow storage of wastes during the conduct of interim measures at a
facility, while decisions on the final remedy are being formulated.
Longer-term and more complex activities such as land-based treatment
and permanent disposal will not be allowed in staging piles. As
discussed more fully below, the Agency believes that these activities
are more properly conducted in CAMUs (Sec. 264.552, promulgated on
February 16, 1993; 58 FR 8658).
To facilitate the cleanup of sites contaminated with hazardous
waste, the Agency believes that it must remove some of the obstacles to
cleanup that exist in the RCRA Subtitle C program. These obstacles stem
from the Subtitle C program's structure as primarily a ``prevention
oriented'' program, with requirements that can act as a disincentive to
protective remedies in ``response-oriented'' programs and can limit the
flexibility of decision-makers to choose the most appropriate remedy at
a site. Although LDRs and MTRs, established in RCRA Section 3004 (m)
and (o) respectively, are appropriate to ensure proper ongoing
management or permanent disposal of hazardous industrial waste, these
sections of the statute often become a barrier to cleanup and overall
environmental protection when applied to remediation waste.
Under current regulations, waste piles are considered land disposal
units, and all hazardous wastes must therefore be treated to LDR
standards before being placed into a waste pile. Large volumes of waste
and contaminated media are often encountered during remedial actions
and, because LDR and MTR often create a disincentive to exhuming
hazardous remediation waste, EPA believes that allowing these wastes to
be temporarily stored in on-site piles without meeting LDR and MTR
standards will significantly further prompt remediation. Accommodating
the need for temporary storage in piles without imposing LDRs and MTRs
was also generally supported by the Committee authorized by the Federal
Advisory Committee Act (FACA), representing the interests of industry,
government and environmental groups, whose recommendations formed the
basis for the proposed rule. In addition, the overwhelming majority of
commenters that addressed the proposed remediation piles expressed
support for a new type of unit that would allow for temporary storage
in piles. A number of commenters emphasized that, even if EPA decided
to retain the CAMU regulation, piles would be useful as a reasonable
option for storage of materials awaiting transport or on-site
treatment. Although many of the commenters also supported treatment in
piles (which is not allowed under today's rule), the consensus of
commenters was that the ability to operate some kind of temporary pile
that would not trigger LDRs or MTRs would be beneficial to the remedial
process by promoting efficient cleanups. Not one of the commenters
disputed that LDRs and MTRs can be a barrier to increasing the rate and
quality of cleanups. It was with the backing of this consensus that
today's staging pile regulation was formulated.
Applying LDRs to temporary placement of remediation waste often
makes it impractical to store hazardous remediation wastes in a pile
pending its ultimate disposition, since this land placement generally
may not occur prior to treatment to LDR standards. This essentially
presents the remedial decision maker with three options:
Leaving remediation waste in place;
Storing it in a tank or container (or temporary unit, when
available) prior to further management;
Or seeking a CAMU.
Leaving waste in place is often an unsatisfactory solution due to
the potential for future risks to public health, an outcome that EPA
strives to discourage. Temporary unit or tank and container storage,
although sometimes preferable in cases where the volume of waste is not
particularly large, may cause delay and add complexity for sites with a
large volume of waste, while providing little, if any, additional
benefit to human health and the environment. CAMUs are also an option,
but they have proved to be administratively complex for relatively
short-term storage. The Agency therefore believes that the temporary
storage in staging piles, subject to regulatory imposition of site-
specific requirements and oversight, is preferable to the present
regime, which encourages the continuing, unmanaged presence of
remediation waste for an indefinite period of time.
Staging piles do not replace existing mechanisms that allow
remediation waste managers to tailor RCRA requirements to accommodate
site-specific circumstances. These include CAMUs, temporary units
(Sec. 264.553), treatability variances (Sec. 268.44), and the Area of
Contamination (AOC) policy.18 Rather, staging piles provide
an additional mechanism which may be used for short-term storage when,
for example, the AOC policy does not apply and tank, container, or
temporary unit storage is not feasible. Below is a comparison chart of
the units most applicable to today's rulemaking:
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\18\ Memorandum from Michael Shapiro, Director, Office of Solid
Waste, Stephen D. Luftig, Director, Office of Emergency and Remedial
Response, and Jerry Clifford, Director, Office of Site Remediation
Enforcement, EPA to RCRA Branch Chiefs and CERCLA Regional Managers
(March 13, 1996).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Type of unit Unit structure Kind of waste Time limit Management activities
--------------------------------------------------------------------------------------------------------------------------------------------------------
Staging Pile Sec. 264.554...... Pile............... Remediation Waste.. 2 years plus one Storage.
180-day extension
period.
CAMU Sec. 264.552.............. Designated Area or Remediation Waste.. None.............. Treatment, Storage, and/or Disposal.
Unit within a
Facility.
Temporary Unit Sec. 264.553.... Tank or Container Remediation Waste.. 1 year plus a 1 Treatment and/or Storage.
Storage Area. year extension
period.
Area of Contamin-ation.......... Land-based Area of Remediation Waste.. None.............. Storage, In-Situ Treatment, Disposal.
Contamination.
--------------------------------------------------------------------------------------------------------------------------------------------------------
B. A Summary of Principal Changes From the Proposal
1. Changes From the Proposal
The staging pile regulation promulgated today is based on the
remediation pile regulation proposed on April 29, 1996 in the HWIR-
media proposal. Today's regulation differs from the remediation pile
proposal in five main ways:
The name is changed;
Treatment in the pile is not allowed;
``Temporary'' is defined;
A more specific performance standard is added; and
[[Page 65911]]
The closure requirements are defined.
These changes, as well as other issues and responses to major
comments, are discussed below.
First, EPA changed the name from ``remediation piles'' to ``staging
piles'' to make it clear that these piles are to be used only for the
temporary storage of remediation wastes, and not for other remediation
activities such as treatment.
Second, the primary difference between the staging pile regulation
finalized today and the proposed remediation pile regulations is that
today's rule does not allow for treatment in the pile. The Agency
recognizes the effectiveness of many treatment approaches relying on
engineered piles, and does not wish to discourage their use, where
appropriate. At the same time, one commenter vigorously opposed
treatment in remediation piles. The Agency acknowledges that some forms
of ``treatment,'' (for example, air stripping, or in some cases,
biological treatment) may raise concerns with regard to air emissions.
Therefore, for today's rule, EPA has restricted treatment to units
other than staging piles, such as CAMUs. The CAMU decision criteria, as
applied through the overseeing agency designation process, provide a
way to ensure that the activities that occur in a CAMU have more
protective design and operating controls than what is called for in the
case of the short term, generally lower risk activities, allowed to
take place in staging piles. The CAMU regulation includes, for example,
a specific ground water monitoring requirement and an associated
performance standard (40 CFR 264.552(e)(3)). Furthermore, the
designation of a CAMU through a permit modification requires the more
extensive Class 3 procedures while today's staging pile regulation
requires Class 2.
In addition, the temporary unit regulation (Sec. 264.553,
promulgated on February 16, 1993; 58 FR 8658) allows for treatment, as
well as storage, of hazardous remediation waste in tanks or containers.
19 Like the CAMU rule, the regulations governing temporary
units are designed to address the risks posed by treatment in the
remedial setting. First, temporary units are containerized, rather than
land-based, and therefore generally pose less risk of releases or
cross-media transfer than do the land-based staging piles. In addition,
temporary units may only operate for one year unless they receive an
extension. The temporary unit extension, which can be granted once for
one year, can only be provided after a site-specific determination is
made by the Director that continued operation of the unit will not pose
a threat to human health and the environment and is necessary to ensure
timely and efficient implementation of remedial actions at the facility
(Sec. 264.553(e)). The temporary unit time limitation is more stringent
than the time limit provided in today's staging pile regulation. In
general, the relatively short amount of time allowed for treatment in a
temporary unit addresses the greater risk to human health and the
environment that may arise through treatment activities.
---------------------------------------------------------------------------
\19\ Using the temporary unit regulation, the Director imposes
alternative requirements, based on site-specific conditions, for
temporary tank or container units used for the treatment or storage
of remediation waste during a remedial action.
---------------------------------------------------------------------------
Third, unlike the proposal, the final rule defines the temporary
nature of staging piles as a two-year lifetime for the pile. At the end
of the operating term for the staging pile (which can be designated by
the Director as any amount of time up to two years), all hazardous
remediation waste and residues in the pile must be removed unless an
operating term extension (of up to 180 days) is granted by the
Director.
Fourth, the Agency believes that the process and analysis necessary
for the designation of a staging pile should be more straightforward
than that needed for a CAMU due to the lower level of potential risks
presented from the nature of activities that can take place in a
staging pile, and EPA has designed today's regulation accordingly.
Because staging piles are intended for the temporary storage of
remediation waste, they will complement CAMUs and temporary units by
providing program implementors and facility owners/operators with an
intermediate option to use in a number of circumstances, such as when
temporary units do not have the capacity for the chosen remedial
strategy, but a CAMU is not necessary.
A modest difference between the proposed remediation piles and the
staging piles promulgated today is that the Director will have more
than the temporary unit decision factors (as proposed) to guide the
establishment of design and operating criteria for a staging pile. In
response to commenters' requests, today's rule includes a more specific
performance standard, set out in Sec. 264.554(d)(1), which expands upon
the temporary unit decision factors to assist the Director in
determining appropriate staging pile design and operating standards
based on conditions at a particular site. This performance standard
will be discussed in detail in the section of this preamble dealing
with the staging pile performance criteria. The Agency's goal in
providing this performance standard is to ensure that the design
criteria used for a staging pile correspond to site- and waste-specific
characteristics. The proposed regulation for remediation piles included
only a reference to the decision factors for temporary units as a guide
to the Director in setting case-by-case standards for remediation
piles. Today's staging pile regulatory text includes language similar
to the temporary unit decision factors, as well as a performance
standard, both of which are incorporated directly into the regulation
to add more predictability and assurance of protectiveness into the
process of designating a staging pile. Clear expectations for
performance should provide a beneficial focus for both the program
implementor and the facility owner/operator.
Fifth, at the end of the staging pile's operating term or extension
period, the staging pile is subject to one of two sets of closure
requirements based on whether the staging pile has been located on
either a previously contaminated or a previously uncontaminated area of
the facility. If the pile has been located in an uncontaminated area of
the site, any remaining contamination (containment system components,
subsoils, etc.) must be decontaminated according to the clean closure
standard for waste piles in Sec. 264.258(a) and the closure performance
standard of Sec. 264.111. (For interim status facilities, the standards
to be used are located in Sec. 265.258(a) and Sec. 265.111.) On the
other hand, if the pile has been located on a previously contaminated
area of the site, all remediation waste, contaminated containment
system components, and structures and equipment contaminated with waste
and leachate must be removed or decontaminated within 180 days after
the expiration of the operating term of the staging pile. Also, the
facility owner/operator must decontaminate contaminated subsoils in a
manner and pursuant to a schedule that the Director determines will
protect human health and the environment. These closure requirements
were added to the final rule in response to comments pointing out that
despite mentioning that ``clean closure'' was a requirement in the
proposed rule preamble, the Agency had not included this language in
the rule text.
2. Consistent With the Proposal
In keeping with the proposal, staging piles will be able to accept
all types of solid, non-flowing remediation waste, rather than only
hazardous
[[Page 65912]]
contaminated media. Like CAMUs and temporary units, staging piles
cannot be used to manage hazardous waste from ongoing industrial
processes, commonly referred to as ``as-generated'' hazardous waste. In
addition, as proposed, a staging pile may be used only for the storage
of ``solid, non-flowing'' hazardous remediation waste. Flowing wastes
are inappropriate for staging piles because of the possibility of
releases and run-off of these wastes.
Also unchanged from the proposal is the provision that staging
piles will not be considered land disposal units and therefore
placement of remediation waste into a staging pile will not trigger
LDRs or applicable MTRs (RCRA section 3004(o). However, assuming the
waste is subsequently managed in a way that triggers these
requirements, LDRs and MTRs will ultimately apply to the remediation
waste.
C. What Is a Staging Pile? (Sec. 264.554(a))
Section 264.554(a) states that ``a staging pile is an accumulation
of solid, non-flowing remediation waste (as defined in 40 CFR 260.10)
that is not a containment building and is used only during remedial
operations for temporary storage at a facility. A staging pile must be
located within the contiguous property under the control of the owner/
operator where the wastes to be managed in the staging pile originated.
Staging piles must be designated by the Director according to the
requirements in this section.'' This provision includes the definition
of staging pile from Sec. 260.10 which is discussed in the definitions
section of this preamble. This provision also limits where the owner/
operator may locate a staging pile to within the contiguous property
under the control or the owner/operator. This limitation was originally
in the definition of remediation waste, however, as discussed in the
definitions section of this preamble, EPA believed this limit was more
appropriate in the regulatory text rather than in definitions. Finally,
this provision specifies that staging piles must be designated by the
Director according to this section. Without designation as a staging
pile, a pile will be considered a ``waste pile'' under Sec. 264.250,
and therefore subject to the requirements in that section (including
LDRs and applicable MTRs). Since today's staging pile regulation is not
self-implementing, the Director must incorporate the provisions for a
staging pile into a permit (either traditional permit or RAP), closure
plan, or order in which it is designated.
In keeping with the proposal, staging piles will be able to accept
all types of solid, non-flowing remediation waste, rather than only
hazardous contaminated media. Despite criticism from one commenter who
stated that only media should be allowed to be managed in a remediation
pile, not other forms of remediation waste, the Agency has retained
this approach because non-media wastes can be generated in very high
volumes creating remedial obstacles similar to those created by large
volumes of hazardous contaminated media. In support of the proposed
approach, another commenter argued that because contaminated media is
often ``found in the same shovel'' as sludges and debris it would be
both difficult and inefficient to attempt to regulate these
differently. At sites where this occurs, staging piles would likely not
facilitate an appropriate remedy if limited to accepting only media.
One commenter suggested that the Agency should encourage the
management of sludges and other non-media remediation wastes in tanks
and containers instead of piles. EPA believes that the Agency has at
least partially addressed the commenter's concern by limiting the use
of staging piles to non-flowing wastes. This restriction serves to
eliminate some sludges as well as other problematic wastes. EPA also
emphasizes that tanks and containers can provide important protection
in certain circumstances (for example, to address run-off concerns),
and the Agency recommends the use of these units where appropriate. At
the same time, EPA disagrees with the commenter's premise that a
waste's status as ``media'' or ``non-media'' is particularly relevant
to the kind of unit that waste should be stored in. The concentration
of hazardous constituents, their leachability, and their volatility are
far greater concerns. More generally, EPA believes that the decision on
which specific remediation unit is most appropriate at a given cleanup
depends on numerous site-specific factors, and that this decision
should be made through the site-specific permit process. EPA has issued
extensive guidance on the management of remediation waste, both under
RCRA and CERCLA (including the Best Management Practices Guidance
developed in conjunction with this rule), which site managers and
regulators can use in making their decision. EPA, however, has
concluded that more specific direction on this issue is not appropriate
or necessary in today's rule.
Finally, as mentioned above, the final rule provides that staging
piles may be used only for storage of remediation wastes. ``Treatment''
will not be permitted primarily for the reasons outlined in the ``A
Summary of Changes from the Proposal'' section of this preamble. To
summarize, treatment was a particularly sensitive issue for one
commenter and EPA acknowledges that treatment, in some cases--such as
air stripping--may involve higher levels of risks than typical storage.
Furthermore, treatment, especially biological treatment, is often a
long-term activity. Since staging piles are to be temporary, they will
not necessarily require fixed controls such as leachate collection and
removal systems, which are more appropriate for long-term use. Instead,
staging piles should be relatively easy to create and dismantle given
their temporary nature and to expedite remedial activities by providing
the opportunity for short-term storage. Given these considerations, EPA
has decided that treatment should occur in units that provide more
specific safeguards; that is, treatment units meeting 40 CFR Part 264
requirements, including those units specifically designed for treatment
in the cleanup context (for example, CAMUs and temporary units).
Although many commenters supported both treatment and storage in
temporary piles, no commenter suggested that, without including the
possibility of treatment, the piles would not facilitate the remedial
process. Rather, a number of commenters directly supported the need for
temporary storage of remediation waste in piles, without LDR or MTR
applicability, before subsequent management. One commenter specifically
stated that EPA should limit these piles to storage only, citing the
increased potential for emissions to the air and other pathways if
treatment were allowed. The Agency believes that today's staging pile
regulation adequately addresses the commenters' concerns.
D. How Is a Staging Pile Designated? (Sec. 264.554(b))
Staging piles are subject to a few key limitations. First, today's
rule specifies that the facility owner/operator may use a staging pile
to store hazardous remediation waste (or remediation waste otherwise
subject to LDRs) 20 only if you follow the standards and
design criteria the Director has designated for that staging pile. This
language is an outgrowth of the language proposed in Sec. 264.554(a),
which provided that a
[[Page 65913]]
remediation pile would only be used for the storage of remediation
waste based on design and operating standards the Director had
designated on a case-by-case basis. Both versions of this language make
it clear that remediation piles would not be self-implementing and
would have standards that must be designated by the Director. The
Agency received no adverse comments on this aspect of the proposal, and
so has only re-worded this requirement for readability in the final
rule.
---------------------------------------------------------------------------
\20\ For a discussion of situations where remediation wastes
that are no longer ``hazardous'' may nonetheless remain subject to
LDRs see 63 FR 28617-28620 (May 26, 1998).
---------------------------------------------------------------------------
Second, the final rule states that the Director must designate the
staging pile in either a permit or, at an interim status facility, in a
closure plan or order (consistent with Secs. 270.72(a)(5) and (b)(5)).
Consequently, staging piles can also be approved under a RAP as
finalized by today's rule in Part 270 (because a RAP is a form of a
permit). The proposed rule would have required remediation piles to be
designated in a ``permit or order'' (proposed Sec. 264.554(a)).
Commenters did not question this approach; however, today's rule
includes one clarifying change to the proposed regulatory language, as
well as an additional mechanism for designating a staging pile.
The Agency adds a clarifying change to today's final rule language
which specifies that staging piles may be designated in orders at
interim status facilities only. In the proposal, the Agency did not
specify when orders could be used to designate a staging pile. EPA
intended that the same mechanisms be used under today's rule to
designate staging piles as can be used under the current regulations to
designate other types of units. At most facilities, it is necessary to
receive a permit to implement hazardous waste management units.
However, at interim status facilities, units can be implemented
according to Secs. 270.72(a)(5) and (b)(5) when required under an
order. EPA, therefore, has included the language in the final staging
pile rule clarifying that orders may be used to designate a staging
piles at interim status facilities to be consistent with how other
types of units can currently be designated.
In today's rule EPA has included an additional mechanism--the
closure plan--for the designation of staging piles at interim status
facilities, since the Agency believes that staging piles will be useful
to facility owner/operators where remediation is conducted during the
closure of waste management units. EPA believes it is appropriate to
allow staging piles to be designated through closure plans since final
closure plans are enforceable and because the closure plan approval
process, both at permitted and interim status facilities, incorporates
sufficient public participation. In addition, EPA believes it is also
appropriate to make closure plans available for the approval of staging
piles at interim status facilities because an order may not always be
suitable. For example, the owner/operator of an interim status facility
may wish to conduct cleanup at a regulated unit and achieve closure by
removal even when he is not required to do so under an order. As part
of the closure, the facility owner/operator may find it most practical
to stage the removed waste in a pile, before it is moved to an on or
off-site treatment unit. In this case, the facility owner/operator can
include staging piles, if necessary for voluntary cleanup, into his
closure plan.
At a permitted facility, a closure plan is a part of the original
permit, and so is approved following the traditional permit approval
process. Modifications to closure plans are incorporated into permits
as permit modifications and follow the appropriate permit modification
procedures found in Sec. 270.42. Because staging piles require a Class
2 permit modification, as discussed in the ``How may my existing permit
(for example, RAP), closure plan, or order be modified to allow the use
of a staging pile?'' section of today's preamble, a staging pile
incorporated into a closure plan modification would also require at
least Class 2 procedures. Because staging piles can be approved through
permits, it follows that a staging pile can be designated in a closure
plan at a permitted facility. Nonetheless, EPA wanted to make this
clear, and therefore has explicitly stated that staging piles can be
designated in closure plans.
At interim status facilities, the process used to gain approval of
a closure plan also requires an opportunity for public notice and
comment. Specifically, these closure plans are approved according to
the requirements in Sec. 265.112(d). These requirements include the
opportunity, available through a newspaper notice, for the facility
owner/operator and the public to submit written comments on the closure
plan and request modifications to the plan within 30 days of the date
of the notice. In addition, the Director can hold a public hearing to
clarify any issues regarding the closure plan. Therefore, approved
closure plans can be used to designate staging piles under today's
rule.
The regulations regarding staging piles are expected to be
applicable or relevant and appropriate requirements (ARARs) for the
remediation of RCRA hazardous wastes at CERCLA sites. In these cases,
staging pile requirements would be incorporated into CERCLA decision
documents rather than permits, closure plans, or orders. This section
of the rule also includes language to make it clear that a staging pile
only need be designated in a permit (for example, a RAP), closure plan,
or order when hazardous remediation waste (or remediation waste
otherwise subject to LDRs) is being stored. Non-hazardous remediation
waste or remediation waste that is no longer subject to LDRs can, of
course, be stored in a pile without being designated as a ``staging
pile.''
The third provision of new Sec. 264.554(b) is the provision that
the Director must establish conditions in the permit, closure plan, or
order that comply with paragraphs (d)-(k) of the staging pile
regulation. This portion of the regulation simply serves to affirm that
the provisions of the staging pile regulation will be incorporated by
the Director into the designating mechanism for the pile.
E. What Information Must I Provide To Get a Staging Pile Designated?
(Sec. 264.554(c))
Section 264.554(c)(1) sets out the requirement that the facility
owner/operator must provide information to the Director that will
enable him to designate a staging pile according to the regulatory
requirements in today's rule. The Agency does not believe that the
evaluation of these performance criteria will generally involve
detailed quantitative analyses; the level of detail needed by the
Director to make decisions on appropriate design and operating criteria
will vary case-by-case depending on site-specific factors, such as
proximity to points of exposure, physical and chemical characteristics
of the waste, and hydrogeological conditions at the site. The Agency
anticipates that the information contained in the RCRA Facility
Investigation or an analogous document will contain most of the
information necessary to designate a protective staging pile. The
Agency's intention with this portion of the regulation is not to create
a burdensome reporting requirement, but rather to authorize the
Director to require sufficient information to enable him to designate a
staging pile.
Today's rule also requires a certification by an independent,
qualified, registered professional engineer for technical data, such as
design drawings and specifications, and engineering studies, unless the
Director determines, based on information provided by the facility
owner/operator, that this certification is not necessary to
[[Page 65914]]
ensure a staging pile that is protective of human health and the
environment (Sec. 264.554(c)(2)). This certification should be
incorporated into any documentation necessary for the permit, closure
plan, or order in which the staging pile is designated. The Agency's
intention is not to create an obstacle for the facility owner/operator,
but rather to provide assurance that the technical information is
accurate, has been prepared by technically competent personnel, and can
be relied upon by the Director. If the Director believes that this
certification is unnecessary, such as in a case where the staging pile
design is to be very simple due to a short term of storage or
relatively low constituent concentrations, the Director may waive the
need for the professional engineer certification. Finally, RCRA
Sec. 264.554(c)(3) enables the Director to request any additional
information that he determines is necessary to protect human health and
the environment. EPA expects that this provision will be used
infrequently, but considers it important to ensure that all pertinent
information is available to the Director when making a decision on
designating a staging pile or staging pile extension. Because this is
not intended to be a burdensome provision, the Director should restrict
any information request to that which is necessary to protect human
health and the environment. The Agency intends this portion of the
regulation to reinforce the Director's ability to request additional
information to ensure that, for example, staging piles are designed so
as to prevent or minimize releases of hazardous wastes and hazardous
constituents into the environment (Sec. 264.554(d)(1)(ii)).
Although an information requirement was not included explicitly in
the proposed remediation pile regulation, EPA believes that the
Director's need for information to designate a protective staging pile
was a principle embedded in the proposal. The proposed remediation pile
regulation was centered around providing, both the regulatory agency
and the facility, site-specific flexibility with the goal of matching
the risk-based regulatory requirements with the conditions at a
particular site. This flexibility can only be granted when there is an
exchange of accurate and sufficient information between the facility
and the regulatory agency. Moreover, under the proposal, the Director
could, of course, have denied a request to designate a remediation pile
if he did not have sufficient information to make a sound
protectiveness judgement, so his ability to obtain additional
information was implicit. Therefore, to clarify this expectation,
today's Sec. 264.554(c) explicitly defines what kind of information
must be provided to the Director to enable him to make the findings
mandated by the regulations.
F. What Performance Criteria Must the Staging Pile Satisfy?
(Sec. 264.554(d))
1. Performance Standards for Staging Piles (Sec. 264.554(d)(1))
Many commenters requested that the Agency avoid prescriptive
national standards that would not take into account site-specific
considerations and therefore would be likely to over or under estimate
the exact design and operating requirements needed at any given
facility. There were, however, persuasive comments suggesting that a
performance standard for staging pile design and operation is
necessary, in addition to the decision factors, to better guide the
program implementor and facility owner/operator in setting site-
specific design and operating criteria that will protect human health
and the environment. Consequently, today's rule finalizes a performance
standard that, in combination with a specific time limit for the piles,
will ensure that staging piles are protective without sacrificing the
flexibility that helps make staging piles an implementable option at
facilities.
The Agency proposed a standard for remediation piles that reads
``the Director may prescribe on a case-by-case basis design and
operating standards for such units that are protective of human health
and the environment.'' In response to comments suggesting a more
specific performance standard for staging piles, the Agency has
promulgated today's performance standard for staging piles. The staging
pile performance standard is based on the principles underlying the
staging piles provisions, as well as provisions that were already
included in the proposed remediation pile regulation. In designating
the performance standard the Agency looked to the standard in the CAMU
rule as guidance (Sec. 264.552(c)).
The performance standard finalized in today's rule
(Sec. 264.552(d)(1)) supplements the decision factors for temporary
units as proposed. The Agency believes that finalizing more than the
decision factors provides the designating authority with more complete
guidance for the establishment of protective design and operating
criteria. Under the rule, the decision factors are elements that must
be considered when establishing standards for the staging pile. The
performance standard is the Agency's overall requirement for the
construction and engineering of the unit. There were some commenters
that suggested the Agency promulgate specific technical requirements
for the staging piles. These comments appear to be based on the concern
that the proposed remediation piles, which allowed treatment and longer
term storage, did not have baseline standards. EPA believes that
today's staging pile regulation, which allows short-term storage only,
would not be improved by prescriptive standards due to the relatively
low risk posed by the piles and the requirement that the Director take
into account site-specific conditions in setting standards.
The performance standard for staging piles has three parts. First,
``the staging pile must facilitate a reliable, effective and protective
remedy.'' (Sec. 264.552(d)(1)(i)) Second, ``the staging pile must be
designed so as to prevent or minimize releases of hazardous wastes and
hazardous constituents into the environment, and minimize or adequately
control cross-media transfer, as necessary to protect human health and
the environment (for example, through the use of liners, covers, run-
off/run-on controls, as appropriate),'' (Sec. 264.552(d)(1)(ii)).
Finally, ``the staging pile must not operate for more than two years,
except when the Director grants an operating term extension under
paragraph (i) (entitled ``May I Receive an Operating Extension for a
Staging Pile?'') of this section. You must measure the two-year limit,
or other operating term specified by the Director in the permit,
closure plan, or order, from the first time you place remediation waste
into a staging pile. You must maintain a record of the date when you
first placed remediation waste into the staging pile for the life of
the permit, closure plan, or order, or three years, whichever is
longer,'' (Sec. 264.552(d)(1)(iii)).
Therefore, in designating a staging pile, the first consideration
of the Director will be whether the pile will facilitate the
implementation of a reliable, effective, and protective remedy
(Sec. 264.554(d)(1)(i)). This criterion is designed to require a site-
specific showing that the premise behind allowing for these piles (see
61 FR 18831) is satisfied at each site where they are used. By
including this criterion, the Agency is emphasizing that the goal of
today's staging pile regulation is not to undercut the protectiveness
of the existing Subtitle C regime, but rather to assist in the
execution of reliable, effective, and protective remedies.
The second criterion requires that activities associated with the
design and
[[Page 65915]]
operation of the staging pile must prevent or minimize releases of
hazardous wastes and hazardous constituents into the environment, and
minimize or adequately control cross-media transfer, as necessary to
protect human health and the environment (Sec. 264.554(d)(1)(ii)). This
portion of the performance standard is an outgrowth of the proposed
remediation pile regulation, because it simply adds specificity to the
proposed rule's requirement that the standards must be ``protective of
human health and the environment'' (proposed Sec. 264.554(a)) and that
the ``Director shall specify in the permit or order . . . any
requirements for control of cross-media contaminant transfer''
(proposed Sec. 264.554(d)). Section 264.554(d)(1)(ii) also builds upon
the fourth and sixth decision factors mentioned later in this section
of the preamble (Sec. 264.554(d)(2)(iv) and (vi) which require the
Director to consider the potential for releases from the unit and the
potential for human and environmental exposure when establishing
standards for the staging pile). A similarly worded performance
standard was suggested by one of the commenters on the proposal. The
Agency agrees with the commenter that it is advantageous to include a
provision directly in the performance standard for staging piles, as is
finalized in today's rule. The Agency emphasizes that minimizing or
adequately controlling cross-media transfer (for example, transfer to
air through volatilization or particulate matter) is vital to the
protectiveness of a staging pile.21
---------------------------------------------------------------------------
\21\ Consulting the Agency's Best Management Practices (BMPs)
for Soil Treatment Technologies (EPA530-R97-007, May 1997) guidance
document, which was developed to provide guidance on how to identify
and minimize the potential for causing cross-media contamination
during implementation of cleanup technologies for contaminated soils
or solid media, is recommended to assist in ensuring that this
portion of the performance standard is achieved.
---------------------------------------------------------------------------
This second criterion is also included to ensure that there will be
no unacceptable risks created by the storage of hazardous remediation
waste in a staging pile either during the remedial activities or
afterwards. Liners, covers, and run-off/run-on controls are all
examples of design stipulations that might be appropriate in specific
circumstances, and these examples have been included directly in the
regulation to assist the Director. These examples, however, are in no
way a definitive list of possible design stipulations that could be
included in the permit, closure plan, or order, nor would they always
be necessary. Depending on site-specific circumstances, ground water
and air monitoring equipment may also be appropriate to ensure adequate
attention to cross-media transfer from a staging pile. However, the
Agency anticipates that this monitoring equipment will often be
installed as part of the overall cleanup at the site rather than for
the staging pile itself. In addition to the type of substantive
standards and design criteria described above, the rule also allows the
Director to specify operating requirements for the staging pile by
providing that the Director must include ``standards.'' Examples of
these operating requirements include appropriate inspection schedules
and recordkeeping.
The Agency believes that the Director will be able to make a
determination of what design and operating requirements are necessary
to prevent or minimize releases from the staging pile based on
information from the facility owner/operator, site assessments, past
overseeing agency experience, and standard good engineering practices.
If the facility owner/operator does not provide the information
necessary for an informed decision to be made regarding what
requirements are protective, the staging pile should not be designated
by the Director.
One commenter suggested a ``no significant migration'' standard be
included in the rule. The Agency agrees that a staging pile should be
designed to prevent any significant additional migration of hazardous
waste and hazardous constituents. However, EPA did not include this
precise language in the final rule because EPA believes that the
requirement that a staging pile be designed so as to prevent or
minimize releases of hazardous waste and hazardous constituents into
the environment and minimize or adequately control cross-media transfer
will have an equivalent effect.
The final performance criterion (Sec. 264.554(d)(1)(iii)) limits
the use of staging piles to two years, unless a 180-day extension is
provided, and establishes a recordkeeping requirement. Refer to the
discussion later in this section on time limits for details of this
provision.
2. Decision Factors for Staging Piles (Sec. 264.554(d)(2)
In the proposal, EPA requested comment on whether to prescribe any
specific design or operating standards for remediation piles or to
allow the Director to establish requirements on a case-by-case basis
using the decision factors specified for temporary units. The Agency's
intent to use the slightly modified temporary unit decision factors, as
expressed in the proposal, received no negative comments and
consequently they are finalized in today's rule. The Agency continues
to believe that these decision factors are reasonable and will result
in sound decisions for staging pile design. Specifically, the rule
requires the Director to consider the following factors in establishing
the standards and design criteria for the staging pile:
(1) Length of time the pile will be in operation;
(2) Volumes of wastes to be stored;
(3) Physical and chemical characteristics of the wastes to be
stored in the unit;
(4) Potential for releases from the unit;
(5) Hydrogeological and other relevant environmental conditions at
the facility which may influence the migration of any potential
releases; and
(6) Potential for human and environmental exposure to potential
releases from the unit.
EPA believes that these considerations will help ensure that the
staging pile will be designed to protect human health and the
environment.
G. May a Staging Pile Receive Ignitable, Reactive, or Incompatible
Remediation Wastes? (Sec. 264.554(e))
The final rule contains a new provision, Sec. 264.554(e), that
addresses the handling of ignitable or reactive remediation wastes in a
staging pile. This new provision is a modification of Sec. 264.256, the
special requirements for ignitable and reactive wastes in a waste pile.
Section 264.554(e) prohibits placement of ignitable or reactive
remediation waste into a staging pile unless the waste is made non-
ignitable or non-reactive as these characteristics are defined in
Sec. 261.21 and Sec. 261.23, while also complying with Sec. 264.17(b)
(which lists reactions that precautions must be taken to prevent) or
the waste is managed in such a way that it is protected from materials
or conditions which may cause it to ignite or react. EPA expects that
non-flowing wastes encountered during cleanup will rarely be ignitable
or reactive.
When they are, however, they clearly require continuing protection
from conditions which may cause them to ignite or react. An important
factor to note is that mixing of wastes in a staging pile is relatively
common when storing large volumes of waste. Unless these wastes are
rendered non-ignitable or non-reactive, the facility owner/operator may
find it difficult to protectively manage these wastes in a staging
pile. Reactive wastes may be particularly difficult to manage since a
staging pile can be directly exposed to the
[[Page 65916]]
environment. The Agency will allow the management of ignitable or
reactive wastes in a staging pile, as long as the wastes are protected
from the material or conditions which may cause them to ignite or
react. The modification to Sec. 264.256 makes the provision applicable
to remediation waste in staging piles rather than hazardous waste in
waste piles and enhances its readability. Also, the language modified
from that of Sec. 264.256 does not allow waste to be treated, rendered,
or mixed immediately after placement in a staging pile, although this
language is included in the waste pile regulation (Sec. 264.256(a)).
Since treatment is not permitted in a staging pile, this portion of
the waste pile regulation was considered by the Agency to be
inappropriate and therefore was not included in today's rule.
H. How Do I Handle Incompatible Remediation Wastes in a Staging Pile?
(Sec. 264.554(f))
The final rule also contains a new provision, (Sec. 264.554(f)),
that deals with the handling of incompatible wastes in a staging pile.
This provision is a modification of Sec. 264.257, the special
requirement for incompatible wastes in waste piles. The modification
makes the provision applicable to remediation waste in staging piles
rather than hazardous waste in waste piles and enhances its
readability. The potential dangers from the mixing of incompatible
wastes include, but are not limited to, extreme heat, fire, explosion,
and violent reaction. Clearly, the potential impacts on human health
and the environment which could result from these conditions must be
avoided.
To this end, the regulation includes a provision that staging piles
should not contain incompatible wastes unless precautions are taken to
avoid the reactions listed in Sec. 264.17(b). The regulation also
states that if remediation waste in a staging pile is stored near
incompatible wastes, precautions must be taken to ensure that these
materials are protected or separated from one another. Finally, for the
same reasons as those provided above, today's regulation states that
remediation waste must not be piled on the same base where incompatible
wastes or materials were previously piled, unless the base has been
decontaminated sufficiently to ensure compliance with Sec. 264.17(b).
Although these provisions were not included in the proposed rule,
EPA believes that it is reasonable to include them in today's final
rule because the provisions do not create an additional regulatory
burden for either the Director or facility owner/operator. The Director
would normally examine the possibility of risk from ignitable,
reactive, or incompatible wastes being placed in a pile before
designating a pile, so these provisions simply serve to ensure that
this caution will be exercised in every case.
I. Are Staging Piles Subject to Land Disposal Restrictions (LDR) and
Minimum Technological Requirements (MTR)? (Sec. 264.554(g))
Like placement of remediation waste into CAMUs, placement of
remediation wastes into staging piles will not trigger RCRA LDRs.
Because staging piles are generally a subset of units that, absent
today's rule, would be CAMUs, this provision is based on the Agency's
view, fully explained in the preamble to the CAMU rule, that placement
into these units does not constitute ``land disposal'' under RCRA
section 3004(k) (See 58 FR 8658, 8662 (February 16, 1993)). As stated
in that preamble, EPA believes this interpretation is reasonable
``since remedial areas are not a listed regulatory unit under 3004(k),
because Congress recognized that the application of LDRs to remediation
wastes might require a different framework than that developed for the
application to as-generated wastes, and, . . . because the direct
application of preventive standards to remediation wastes is often
inappropriate and counterproductive.'' (See 58 FR 8662). Also, as
explained in the preamble to the CAMU rule, staging piles would not be
subject to the MTRs under section 3004(o), because the pile is not a
land disposal unit subject to those requirements.
J. How Long May I Operate a Staging Pile? (Sec. 264.554(h))
The remediation pile provisions, as proposed, did not set limits on
the amount of time that remediation waste could be in the pile, other
than to say that these piles would be ``temporary'' and only available
for use during remedial operations. The proposal requested comment on
whether time limits and renewals that prescribe the lifetime of
remediation piles should be set at the national level.
Only one commenter agreed with the proposal that EPA should not set
a specific limit, but instead allow the staging pile to operate
indefinitely.
All other commenters on this issue recommended that EPA set a
specific time limit for operation of staging piles. Suggestions ranged
from six months to three years, however, the majority of commenters
recommended two years. Several commenters also suggested that EPA allow
a limited extension of the time limit when necessary. Suggestions for
extensions ranged from six months to three years.
EPA has decided to impose a two-year time limit on staging piles,
with the opportunity to obtain a six month extension, when necessary.
EPA agrees with commenters who feel that there is a need to define
``temporary'' in the context of staging piles. The Agency also agrees
with commenters who argued that a two-year time limit is reasonable for
the staging piles and therefore has promulgated this limit in today's
rule. The Agency does not believe that staging piles should exist
indefinitely or with an undefined ``temporary'' lifetime because these
units might not be designed in a manner protective enough for the ``de
facto'' disposal that might occur. In other words, if ``temporary'' was
left as the only standard, the storage in staging piles could take
place for such a long period of time that the risks to human health and
the environment would be essentially equivalent to a disposal scenario,
which the staging piles standards in today's rule are not designed to
address. The Agency does not believe it is necessary to create
standards in today's rule to accommodate a long-term storage scenario
because long-term storage and disposal can be conducted in CAMUs and,
as discussed below, the operations the Agency intends to accommodate in
this rule--staging--can generally be conducted during the 2-year time
period.
EPA believes that a time limit that generally corresponds to the
length of time needed for staging or storage activities at a site is
appropriate. EPA consulted with program implementers at the Regional
and State level who agreed that 2 years was an appropriate limit for
staging piles.
In response to commenters' suggestions, EPA has decided to allow a
6-month extension for staging pile operation when necessary (see the
preamble discussion for Sec. 264.554(i)). EPA again consulted with
Regional and State program implementers who agreed that six months was
an appropriate amount of time to allow for an extension. As discussed
below in section K, EPA believes that six months provides an adequate
balancing of interests in providing flexibility while ensuring that
staging piles are indeed temporary.
In practice, a facility owner/operator could request, or the
Director could designate on his own initiative, a shorter lifetime for
a staging pile and consequently the Director could set design and
operating requirements that
[[Page 65917]]
would take into account this shorter period of storage. The Director is
encouraged to establish a duration shorter than two years, when
appropriate.
Longer-term use of a staging pile, however, is much more similar to
``disposal'' activities which provide a greater opportunity for
releases. As stated in the ``Summary of Principal Changes from the
Proposal'' section above, the Agency has concluded, for the purposes of
today's rule, that land-based treatment activities, long-term storage,
and permanent disposal are more appropriately addressed using the CAMU
provisions in Sec. 264.552.
One commenter suggested that a two-year time limit on staging piles
is also consistent with the limits on the storage of prohibited wastes
under Sec. 268.50, EPA's regulations implementing RCRA section
3004(j).22 In response to this comment, which highlighted
the relationship between the staging pile provisions and Sec. 268.50,
the Agency today is also amending Sec. 268.50 to expressly provide that
storage of hazardous wastes in approved staging piles is not subject to
the prohibition contained in that section (Sec. 268.50(g)).
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\22\ RCRA section 3004(j) provides that wastes prohibited from
land disposal may be stored ``solely for the purpose of the
accumulation of such quantities of hazardous waste as are necessary
to facilitate proper recovery, treatment or disposal.''
---------------------------------------------------------------------------
Section 268.50 provides that hazardous wastes prohibited from land
disposal may not be stored unless certain conditions are met. For
treatment, storage, or disposal facilities, those conditions are that
this storage takes place in tanks, containers or containment buildings
and is ``solely for the purpose of accumulation of such quantities of
hazardous waste as necessary to facilitate proper recovery, treatment,
or disposal.'' In addition, dates of accumulation generally must be
clearly marked and recorded.
EPA believes an express exemption from these requirements (as
opposed to amending them to add staging piles to the list of units in
which storage may conditionally take place) will eliminate the need for
regulatory agencies and site owner/operators to engage in unnecessarily
duplicative factual findings, because the concerns underlying the
requirements in Sec. 268.50 (that is, that storage of prohibited wastes
only occur ``as necessary to facilitate proper recovery, treatment, or
disposal'') will necessarily be satisfied during approval of the
staging pile. Specifically, as discussed above, by imposing a two-year
time limit on staging pile operation, today's rule is consistent with
the time limits in Sec. 268.50 (and, by way of analogy, the two-year
cap on case-by-case capacity variances under RCRA section 3004(h)(3)).
In addition, staging piles will only be used during remediation, a
process that is specifically designed to ``facilitate proper recovery,
treatment or disposal'' of wastes. The final staging pile rule
promulgated today will further ensure this result, since it
specifically requires that staging piles only be approved where they
will ``facilitate the implementation of a reliable, effective and
protective remedy.''
The final rule also makes clear that the operating term limit
(Sec. 264.554(h)) is to be measured from the initial placement of
remediation waste in a staging pile. The closure process must begin at
the end of the operating term or extension term (if approved by the
Director) for the staging pile. EPA believes that, to make this
requirement implementable, a record must be kept which defines the date
of initial placement of waste into the staging pile. Therefore, EPA has
included a provision in the staging pile performance standard
(Sec. 264.554(d)(2)(iii)) that requires that a record of initial
placement date be kept by the facility owner/operator for the life of
the permit, closure plan, or order or for three years, whichever is
longer. This will aid in the enforcement of staging pile time limits by
providing a specific date by which to measure how long remediation
waste has been stored in the pile. The three-year period used in
today's rule as the minimum period of record retention, is in keeping
with the recordkeeping requirement of ``at least three years'' found in
Sec. 270.30(j) (which outlines the monitoring and recordkeeping
regulations applicable to all permits) and a number of other
recordkeeping requirements in RCRA regulations (for example,
Sec. 262.40).
K. May I Receive an Operating Term Extension for a Staging Pile?
(Sec. 264.554(i))
In the proposal, the Agency requested comment on whether any time
limits placed on remediation piles should be renewable. In response, an
operating term extension period was suggested by a number of
commenters. Recommendations for the length of this extension period
varied from six months to three years. The Agency agrees with these
commenters in that it can be difficult to judge in advance the amount
of time that will be necessary to store remediation wastes in
furtherance of a remedy. EPA recognizes that in some cases unforeseen
circumstances may dictate that a staging pile remain in service beyond
the limit originally set in the permit, closure plan, or order. For
example, unexpectedly large volumes of waste may need to be handled to
complete the remedy, or the remedial process may be slowed by forces
beyond the control of the facility owner/operator or Director. An
extension would be appropriate, for example, when wastes being stored
in a staging pile are to be taken to an off-site facility, but that
facility no longer has the capacity, or is unwilling, to accept the
wastes. Consequently, today's rule includes a provision,
Sec. 264.554(i), that states the Director may provide one extension of
up to 180 days as a modification of the original permit, closure plan,
or order.
To justify to the Director the need for an operating term
extension, the facility owner/operator must provide sufficient
information to enable the Director to make a determination that
continued operation of the unit:
Will not pose a threat to human health and the
environment; and
Is necessary to ensure timely and efficient implementation
of remedial actions at the facility. In addition, the regulation states
that the Director may, as a condition of the extension, specify further
standards and design criteria in the permit, closure plan, or order, as
necessary to ensure protection of human health and the environment.
This language is based, in large part, on the time limit extension
language for temporary units, which provides a one-year extension
beyond a one-year operational limit (Sec. 264.553(e)). EPA believes
that this language is both appropriate and reasonable for staging
piles. The Agency believes that the language addresses the concerns of
commenters who suggested, among other things, that the extension should
be consistent with the extension in Sec. 264.553, especially since the
temporary unit extension provision can only be approved after a showing
that a time extension will not threaten increased environmental risk.
The Agency agrees with these comments, as well as with other commenters
who saw the need for an extension period to ensure that unexpected
circumstances will be accommodated by the staging pile regulations. The
Agency believes that the criteria that must be met before the Director
grants an extension of the operating term for a staging pile are
appropriate as they correspond to the overall goals of the staging pile
regulation.
The initial criterion, ensuring that continued operation of the
unit will not pose a threat to human health and the environment, is a
reasonable test to maintain the protective nature of the staging pile
despite the increased
[[Page 65918]]
storage time. The second criterion allows the Director to specify
further standards or design criteria for the staging pile if the
increased storage time requires more protective or different
specifications. EPA believes that it is unlikely that additional
standards will be necessary for only a 180 day extension; however, this
criterion will allow the Director to impose these standards in unusual
circumstances. One commenter stated that the temporary unit extension
provision ofSec. 264.553(e) was too prescriptive to be appropriate for
remediation piles. This commenter felt that any extension should be
approved or rejected based solely on site-specific considerations.
However, EPA believes that the criteria finalized today leave the
Director with ample discretion to consider site-specific factors in
making decisions on extensions, and yet place appropriate limits on
that discretion. The Agency also believes that limiting the number of
extensions to one of up to 180 days will reduce the potential
administrative burden that could be created by facility owner/operators
seeking multiple extensions for staging pile operations, as well as
ensuring that staging piles are indeed ``temporary.''
Furthermore, if the facility owner/operator or Director can
anticipate, before designating the staging pile, that additional time
will be necessary for staging activities, EPA recommends the use of a
CAMU instead of a staging pile. If the facility owner/operator and
Director are not able to anticipate that a CAMU will be preferable to a
staging pile, the option remains to designate an existing staging pile
as a CAMU through the CAMU approval process. This might require
modifications to the design of the staging pile to address the risk
posed by longer-term storage. Modifications necessary to designate a
CAMU from what was previously a staging pile might include leak
detection systems, run-off controls, air emissions controls, ground
water monitoring systems, and leachate collection systems. However, the
specific modifications will depend on the nature of the unit and the
future plans for it.
L. What Is the Closure Requirement for a Staging Pile Located in a
Previously Contaminated Area? (Sec. 264.554(j))
The preamble to the proposal stated that ``remediation piles would
be required to close by removal of all wastes (i.e. `clean close').''
This requirement, however, was not explicitly stated in the proposed
regulation. This created confusion with some commenters, who requested
that ``clean closure'' be defined and stated clearly in the final rule.
In response to these comments, explicit closure requirements are
included in today's rule. EPA foresees two scenarios applicable to
closure in which a staging pile might be designated: (1) in an area of
previous contamination, with remediation waste consolidated from non-
contiguous areas of contamination (designation of a staging pile is not
necessary if all the wastes are consolidated from within one area of
contamination, see discussion below); and (2) in an uncontaminated area
of the site. Consequently, the closure requirement is divided into two
parts: Sec. 264.554(j), which applies to staging piles designated at
contaminated areas of the site; and Sec. 264.554(k), which applies to
staging piles designated at uncontaminated areas of the site.
At closure of staging piles located in previously contaminated
areas, the final rule requires the facility owner/operator to ``remove
or decontaminate all remediation waste, contaminated containment system
components, and structures and equipment contaminated with waste and
leachate within 180 days after the expiration of the operating term of
the staging pile.'' The Agency included this provision, which contains
typical ``clean closure'' language (see Sec. 264.258(a)), to ensure
that closure of staging piles at facilities is completed in a safe and
protective manner, as well as within a reasonable time frame. The 180-
day time limit for removal and decontamination is an outgrowth of
comments made requesting that the Agency ensure that temporary piles
will indeed be temporary and of the intention expressed in the preamble
to the proposal to require clean closure, a process under the Agency's
regulations that must be complete within 180 days (Sec. 265.113). The
Agency believes that a 180-day period is reasonable, as well as
comparable to existing closure requirements in Parts 264 and 265.
The closure standard for staging piles designated in previously
contaminated areas differs from the typical clean closure standard in
the way that any contaminated subsoils created by the staging pile will
be addressed. 23 Today's standard, instead of simply
requiring ``removal or decontamination,'' specifies that the facility
owner/operator, ``must also decontaminate contaminated subsoils in a
manner, and pursuant to a schedule, that the Director determines will
protect human health and the environment.'' This change was made in
response to a commenter who identified the utility of considering the
closure of a pile as part of the ongoing remedial process at a site.
The Agency was persuaded by this comment to design a standard that
recognizes that staging piles will only be used in the cleanup context,
where the staging piles will likely be an intermediate step towards the
cleanup of a site. In addition, since the portion of the facility where
the staging pile will be located will have been previously
contaminated, it may be very difficult to distinguish this previous
contamination from residues that may have been left by the staging
pile. Therefore, in designing today's standard, the Agency felt it was
appropriate to include a standard that would allow any cleanup of soils
contaminated by the staging pile to be coordinated with the site
remedy, rather than addressed under a distinct set of resource-
intensive requirements.
---------------------------------------------------------------------------
\23\ Of course, EPA expects (and today's rule requires) that
staging piles located in previously contaminated areas will be
designed and operated in a manner that prevents or minimizes the
release of additional contaminants to the degree technically
practicable. A prime objective of remedial waste management is
preventing further releases that will require cleanup. Consequently,
EPA fully expects that at the majority of facilities that use
staging piles, no decontamination of subsoils will be necessary due
to the protective structure of the site-specific staging pile design
and operating standards. However, as with other units regulated
under Subtitle C, the Agency acknowledges the possibility that
residues can remain after all remediation waste is removed from the
pile and containment system components are decontaminated.
---------------------------------------------------------------------------
Because the final remedy at the site may not occur within 180 days
after the operating term of the staging pile expires, the closure
requirement does not include a time limit for this decontamination of
contaminated subsoils. It is the Agency's expectation that the
decontamination of any contaminated subsoils will be consistent with
the overall remedy at the site. The Agency expects that the Director
will often incorporate the schedule and cleanup levels for the chosen
remedy at the site as the closure standards for the staging pile in the
authorizing vehicle (for example, the RAP). By providing that
contaminated subsoils must be decontaminated ``in a manner, and
pursuant to a schedule, that the Director determines is necessary to
protect human health and the environment,'' the Agency believes it is
providing essential flexibility, while at the same time ensuring that
the use of a staging pile does not increase contamination where it was
located. The Agency believes that this design fulfills the goal of
protection of human health and the environment in these unique
circumstances.
[[Page 65919]]
M. What Is the Closure Requirement for a Staging Pile Located in an
Uncontaminated Area? (Sec. 264.554(k))
Under today's rule (Sec. 264.554(k)), staging piles located in
previously uncontaminated areas of the site must be closed according to
the closure requirement for waste piles in Sec. 264.258(a) as well as
the closure performance standard of Sec. 264.111 (or the requirements
in Sec. 265.258(a) and Sec. 265.111) within 180 days after the
expiration of the operating term of the staging pile (Part 265 is
applicable to staging piles designated at interim status facilities).
The Agency does not prefer the siting of staging piles in previously
uncontaminated areas of the facility, yet acknowledges that site
conditions may dictate such a siting (for example, to site the staging
pile outside of a floodplain or lagoon area). As stated above, the 180-
day time limit for removal and decontamination is, in part, in response
to comments made requesting the Agency to ensure that staging piles
would indeed be temporary. It should be noted that the reference to
``post-closure escape of hazardous wastes'' in the Sec. 264.111 and
Sec. 265.111 does not eliminate the need for clean closure of staging
piles. As stated in Sec. 264.258(a) and Sec. 265.258(a), all waste
residues, contaminated containment system components, contaminated
subsoils, and structures and equipment contaminated with waste and
leachate must be removed or decontaminated. The closure requirements
that a staging pile located in a previously uncontaminated area of the
site must fulfill should be included, according to currently applicable
procedures, directly into the permit, closure plan or order in which
the staging pile is designated to ensure a clear and enforceable
outcome.
N. How May My Existing Permit (for Example, RAP), Closure Plan, or
Order Be Modified To Allow Me To Use a Staging Pile? (Sec. 264.554(l))
The proposal did not specifically address the process for
designating a staging pile at an already permitted facility. EPA
anticipates that staging piles will most often be designated as part of
the approval of remedy selection at a site; and therefore, like
selection of the remedy, staging piles will generally be approved using
the Agency's permit modification procedures. To add certainty to this
process, today's rule specifically requires that incorporation of a
staging pile, or staging pile extension, into an existing permit be
conducted according to the Agency-initiated permit modification
procedures (Sec. 270.41) or the Class 2 permit modification procedures
under Sec. 270.42. The Agency believes that a Class 2 designation is
generally appropriate as it corresponds to the Class 2 permit
modification necessary for the approval of temporary units, a close
analogue to staging piles. If the Agency did not specify permit
modification procedures in today's rule, the procedure outlined in
Sec. 270.42(d) would have been necessary, requiring a Class 3
modification unless the modification requestor could have provided
information sufficient to support the requested classification. EPA
believes that it is preferable to explicitly state that Class 2
procedures should be used to designate a staging pile or staging pile
operating term extension, rather than default to Sec. 270.42(d)
procedures. Furthermore, the Class 3 modification procedures that would
be required under Sec. 270.42(d) are inappropriate for staging piles.
Class 3 permit modification procedures are designed for changes that
substantially alter the facility or its operations
(Sec. 270.42(d)(2)(iii)). EPA believes the additional requirements in
the Class 3 procedures would unnecessarily delay the process of
designating a staging pile, diminishing the ability of staging piles to
facilitate the remedial process. The subject of what permit
modification procedure to use when designating a staging pile did not
surface in the comments on the proposal.
Other than through a traditional permit modification, a staging
pile or staging pile operating term extension can also be designated
through modification of a RAP, closure plan, or order. As finalized by
today's rule, RAPs are a new type of permit in which staging piles can
be approved. Because traditional permit modification procedures are
available when incorporating a staging pile or staging pile operating
term extension into a traditional RCRA permit, EPA also believes it is
reasonable to allow staging piles and staging pile operating term
extensions, designated through a RAP, to be modified through RAP
modification procedures. Therefore, as stated in the staging pile
regulations at Sec. 264.554(l)(2), ``[t]o modify a RAP to incorporate a
staging pile or staging pile operating term extension, you must comply
with the RAP modification requirements under Secs. 270.170 and
270.175.'' Although this language was not used in the proposed
remediation pile regulation, it is an outgrowth of the RAP section of
the proposal to use the RAP modification procedures to incorporate
staging piles or staging pile operating term extensions, similar to the
way traditional permit modification procedures would be used.
In addition, modification of a closure plan to incorporate a
staging pile or staging pile operating term extension should proceed
according to the requirements in Sec. 264.112(c) at permitted
facilities or the requirements in Sec. 265.112(c) at interim status
facilities. As discussed in the ``How is a Staging Pile Designated?''
section of today's preamble, the closure plan is an additional
mechanism by which a staging pile can be designated. In keeping with
the use of closure plans, the Agency believes that the use of the
established closure plan modification procedures cited above is
reasonable.
Finally, modification of an order to incorporate a staging pile or
staging pile operating term extension must occur according to the terms
of the order and the applicable provisions of Sec. 270.72 (a)(5) or
(b)(5). Any inclusion will be governed by the standards promulgated
today and, as noted below, the Agency's policy on public participation
and corrective action orders should be followed.
The Agency received no comments on the proposal regarding the use
of these, or any other, modification procedures to designate a staging
pile or staging pile operating term extension.
O. Is Information About the Staging Pile Available to the Public?
(Sec. 264.554(m))
Section 264.554(m) requires the Director to document the rationale
for designating a staging pile or operating term extension for a
staging pile and to explain the basis for the designation. The
rationale for these decisions should be incorporated as part of the
Statement of Basis in a permit, closure plan or order modification.
Documentation of staging pile decisions is analogous to the
documentation the Agency currently makes to support the selection of a
remedy. Therefore, if a staging pile is incorporated as part of a final
remedy, this explanation would be incorporated into the Statement of
Basis for the remedy under a permit modification, closure plan or under
an order. The staging pile rationale, as determined by the Director,
will be available to the public through the appropriate public
participation process. This requirement was not included in the
proposal, but is intended simply to clarify and emphasize that staging
pile decisions must be documented and explained as part of the existing
notice and comment procedures for orders, permits, and closure plans.
EPA believes that documenting the designation rationale is necessary to
ensure that the public
[[Page 65920]]
has access to information relevant to the designation of a staging pile
which is both substantial and clear. The Agency believes that including
regulatory language to this effect is in keeping with EPA policy with
regard to the importance of meaningful public
participation.24
---------------------------------------------------------------------------
\24\ For more information see the September 1996 RCRA Public
Participation Manual, Chapter 4, EPA530-R-96-007.
---------------------------------------------------------------------------
Public participation during the staging pile designation process,
when implemented through the traditional (non-RAP) permit process, will
proceed as prescribed in the Class 2, or Agency initiated, permit
modification procedures. If the staging pile is designated in an order,
it is the Agency's current policy that the order provide a level of
public participation and comment comparable to that provided for in a
permit modification (see RCRA Public Participation Manual, Chapter 4;
and ``Corrective Action for Releases from Solid Waste Management Units
at Hazardous Waste Management Facilities; Proposed Rule,'' 61 FR 19432;
(19453-19454) (May 1, 1996)). Since a staging pile has been designated
as a Class 2 permit modification, these procedures should be used for
public participation under an order. Documentation should be made
available to the public through the order approval or order
modification process.
P. What Is the Relationship Between Staging Piles, Corrective Action
Management Units, and the Area of Contamination Policy?
The CAMU rule provides flexibility to EPA and implementing States
to specify site-specific design, operating, and closure/post closure
requirements for units used for land-based storage, or for treatment of
wastes that are generated during cleanup at a RCRA facility. The CAMU
regulations also specify requirements for units that are used as long-
term repositories for cleanup wastes. The proposed remediation piles
were intended to replace, to some extent, the flexibility that would be
lost if the CAMU rule was withdrawn and the use of CAMUs was no longer
available. However, as discussed more fully above, the Agency believes
that, although CAMUs are retained in today's rule, staging piles will
be a useful part of a remedial strategy in cases where waste is
temporarily staged during remediation.
The staging piles provisions in today's rule will not affect
current implementation of the AOC policy. The AOC policy is an
interpretation of the statutory RCRA term, ``land disposal'' (section
3004(k)). The AOC policy, first elucidated in the March 8, 1990
``National Oil and Hazardous Substances Pollution Contingency Plan
(NCP, 55 FR 8758-8760),'' equates dispersed areas of contamination with
RCRA landfills, and clarifies that hazardous wastes may be moved within
the AOC without triggering LDRs.25 The Agency anticipates
that staging piles will aid in situations in which the AOC policy does
not apply. For example, a staging pile will be a valuable option in
cases where a site has non-contiguous areas of contaminated soil, and
where waste is being staged in a pile within one of the areas prior to
further management. A staging pile will allow for consolidation of
remediation waste into the pile without triggering RCRA LDRs. In cases
where a facility owner/operator would like to consolidate remediation
waste within one area of contamination, this can be accomplished under
the AOC policy, and therefore a staging pile would not be necessary.
---------------------------------------------------------------------------
\25\ For more information consult the March 13, 1996 Memorandum:
``Use of the Area of Contamination (AOC) Concept During RCRA
Cleanups,'' from Michael Shapiro, Director Office of Solid Waste,
Stephen D. Luftig, Director, Office of Emergency and Remedial
Response, and Jerry Clifford, Director, Office of Site Remediation
Enforcement to RCRA Branch Chiefs and CERCLA Regional Managers.
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VIII. Corrective Action Management Units (CAMUs) (Sec. 264.552)
This final rule retains the regulations for Corrective Action
Management Units (CAMUs) promulgated on February 16, 1993 at
Sec. 264.552 (see 58 FR 8658).
The CAMU regulations allow EPA to impose site-specific standards
for on-site units used to manage remediation wastes. As discussed in
the preamble of that final rule, the CAMU regulations were adopted by
EPA to provide remedial decision-makers with flexibility to expedite
and improve remedial decisions by removing barriers to cleanup created
by RCRA hazardous waste requirements--specifically, the LDRs in Part
268 and the MTRs in Parts 264 and 265 applicable to land-based units .
As is discussed in the preamble to the CAMU rule, the Agency believed
(and still believes) that these Subtitle C requirements, when applied
to remediation wastes, can act as a disincentive to more protective
remedies, and can limit the flexibility of a regulatory decision maker
in choosing the most practicable remedy at a specific site (see 58 FR
8658 at 8660).
Under the final CAMU regulations, LDRs do not apply to CAMUs
because placement of remediation wastes into or within a CAMU does not
constitute land disposal of hazardous waste, and MTRs do not apply
because consolidation or placement of remediation wastes into or within
a CAMU does not constitute creation of a unit subject to MTRs (see 58
FR 8658 at 8661). The purpose of the CAMU regulations is to provide for
more and improved cleanup of wastes, thus, providing increased
protection of human health and the environment (see 58 FR 8658 at
8659).
While the CAMU regulations provided some flexibility to address the
problems described above, the April 29, 1996 HWIR-media proposal was
intended to be a more comprehensive response to the problems faced when
applying traditional RCRA Subtitle C standards to the management of
remediation wastes. In developing the HWIR-media proposal, EPA
evaluated the CAMU regulations in the context of the proposed
provisions and recognized that the proposed revisions to Part 269 in
the HWIR-media rule, if promulgated, would provide flexibility similar
to that provided by the CAMU regulations. EPA considered that the CAMU
regulations might not be necessary if the HWIR-media proposal was
promulgated, and thus the Agency proposed to withdraw the CAMU
regulations if the proposed revisions to Part 269 were promulgated. The
Agency noted in that preamble, however, that it did not intend to
withdraw the CAMU regulations without, at the same time, substituting
one of the two major options proposed in the HWIR-media proposal in its
stead. The preamble of the proposed HWIR-media rule made clear that the
Agency believed the CAMU regulations provided needed flexibility to
remediation sites, and that the Agency intended to withdraw the CAMU
regulations only if the site-specific flexibility provided in the CAMU
rule would be preserved by the final HWIR-media rule (see 61 FR 18780
at 18829).
When EPA promulgated the CAMU final regulations in 1993, the Agency
explained that, in implementing CAMUs, the Agency would have a
preference for ``treatment-based remedies'' and that ``long-term
reliability and protectiveness of remedial activities is directly tied
to effective treatment of wastes that pose future release threats''
(see 58 FR 8658 at 8670). In retaining the CAMU regulations, EPA does
not alter that long-standing position and further notes that it is
consistent with EPA's coordination and ``principle of parity'' between
RCRA and CERCLA cleanup activities (see Memorandum from Steven A.
Herman and Elliott P. Laws to RCRA/CERCLA Policy Managers,
[[Page 65921]]
September 24, 1996, entitled ``Coordination Between RCRA Corrective
Action and Closure and CERCLA Site Activities''). EPA considers the
CAMU requirements, and in particular Sec. 264.552(c)(6), as the
functional equivalents of CERCLA's expectation that treatment should be
used, whenever practicable, to address principal threats posed by a
site (see 40 CFR 300.430(a)(1)(iii)(A)). EPA continues to believe that
the implementation of the CAMU regulations, as described above,
enhances protection of human health and the environment.
While EPA recognized that the proposed HWIR-media rule would have
provided flexibility similar to that provided by the CAMU regulations,
EPA also recognized that the proposed rule applied to a more limited
spectrum of waste--the proposed rule covered only contaminated media,
whereas the CAMU regulations allowed all types of cleanup wastes to be
managed. Thus, when it proposed to withdraw the CAMU regulations, the
Agency also requested comment on what benefits might accrue if the CAMU
rule were retained, and on what the ramifications might be if the final
rule failed to provide the degree of relief that the CAMU rule has
provided.
A majority of commenters favored the retention of the CAMU
regulations. In many cases, commenters favored the retention of the
CAMU regulations, even if EPA promulgated extensive regulatory reforms
in this final rule. (Two commenters voiced their support for withdrawal
of the CAMU rules, but did not explain their specific objections). Many
commenters argued that EPA had failed to articulate a persuasive
rationale for removing the CAMU regulations.
Many commenters on the proposal to withdraw the CAMU regulations
believed that the CAMU regulations are important and should be retained
because the proposed HWIR-media rule would have been limited to
contaminated media. Commenters pointed out that contaminated debris,
remediation sludges, and other waste generated as part of corrective
action activities would not qualify for any site-specific flexibility
that might be provided by the final HWIR-media rule. Without the CAMU
regulations, commenters believed, the site decision makers would lose a
large amount of flexibility (that is, LDR/MTR relief). One commenter
pointed out that, because the HWIR-media proposal would only have
applied to contaminated media, withdrawing the CAMU regulations would
create a disincentive to remediation of non-media wastes. EPA agrees
with these commenters.
This final rule does not include the extent of additional
flexibility for remediation wastes that EPA anticipated when it
proposed to withdraw the CAMU provisions. As is discussed in section II
of this preamble, either the Bright Line or the Unitary approach of the
proposed rule would have exempted certain remediation wastes from
Subtitle C requirements (such as LDRs and MTRs), and subjected them,
instead, to site-specific requirements. Neither of those options is
promulgated in this final rule; thus, this type of flexibility is
currently available only to remediation wastes managed in CAMUs. EPA
believes this flexibility is vital to remove impediments to cleanup
imposed by certain Subtitle C requirements. For these reasons, EPA is
retaining the CAMU regulations in this final rule.
Since the promulgation of the CAMU regulations, just more than 30
CAMUs have been approved by the Agency. Though this small number might,
on its face, appear to indicate that CAMUs have not proved useful to
the regulated community, EPA believes, and commenters on the proposed
HWIR-media rule verified, that this number is misleadingly low. EPA
believes, and again commenters verified, that litigation on the CAMU
regulations 26 has resulted in uncertainty about the future
of CAMUs and, consequently, provides a disincentive to their use. Thus,
despite the low number of CAMUs approved to date, EPA continues to
believe that CAMUs provide a valuable tool to promote more and better
cleanup of remediation wastes.27 In fact, EPA expects that
the use of CAMUs will increase as more corrective action sites move to
the remedy selection phase, and the Agency strongly encourages States
who are the major implementers of the corrective action program, to
adopt and take advantage of this mechanism for cleanup.
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\26\ On May 14, 1993, a petition for review of the final CAMU
rule was filed with the U.S. Court of Appeals for the District of
Columbia Circuit (see Environmental Defense Fund v. EPA No. 93-1316
(D.C. Cir.)). Petitioners challenged both the legal and policy basis
for the final CAMU regulations. On October 27, 1994, the litigation
was stayed pending EPA's publication of a final HWIR-media rule, to
allow parties to determine whether the final rule would resolve
issues raised in the petition for review.
\27\ The October 27, 1994 stay of the CAMU litigation provided
that within 91 days after the final HWIR-media rule is published in
the Federal Register, the parties will inform the court whether they
intend to dismiss the petitions for review, enter into settlement
discussions, or proceed with the litigation. Thus, the litigation
should be resolved in the near future, thereby removing the
uncertainty surrounding implementation of the CAMU regulations.
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IX. Dredged Material Exclusion (Sec. 261.4(g))
A. What Is the Dredged Material Exclusion?
Today's final rule contains an exclusion from the definition of
hazardous waste for dredged material subject to a permit that has been
issued under section 404 of the Federal Water Pollution Control Act
Amendments of 1972 as amended by the Clean Water Act of 1977 (CWA) or
under section 103 of the Marine Protection, Research, and Sanctuaries
Act (MPRSA, also known as the Ocean Dumping Act).28 EPA
proposed this change to reduce potential overlaps between the CWA or
MPRSA and RCRA regulation of dredged material disposal. At present, if
dredged material proposed for disposal in the aquatic environment is
contaminated or suspected of being contaminated with hazardous waste,
the potential application of both RCRA Subtitle C regulations and
dredged material regulations under CWA or MPRSA complicates efficient
assessment and management of dredged material. Today's rule eliminates
the overlap of RCRA Subtitle C with the CWA and MPRSA programs by
excluding dredged material managed under a CWA or MPRSA permit from
RCRA Subtitle C, while ensuring an accurate and environmentally sound
evaluation of any potential impacts to the aquatic environment. This
exclusion will not alter existing practice significantly, but it
clarifies regulatory roles within EPA in an effort to avoid duplication
of administrative efforts and is authorized under RCRA section 1006.
---------------------------------------------------------------------------
\28\ ``Permit'' also includes the administrative equivalent of a
CWA or MPRSA permit for U.S. Army Corps of Engineers' civil works
projects.
---------------------------------------------------------------------------
The U.S. Army Corps of Engineers (``Corps'') and other entities
must dredge large volumes of sediment and other materials to maintain
navigable waterways, ports and marinas. Dredged material can be
mechanically or hydraulically dredged, and disposed of by barges or
pipelines into river channels, lakes, and estuaries. Of the total
amount of dredged material excavated, approximately one-fifth is
disposed of in the ocean at designated sites in accordance with section
103 of the MPRSA. Most of the remaining dredged material is discharged
into waters of the United States, either in open water, at confined
disposal facilities (CDFs), or for beneficial uses, which are all
regulated under the CWA. Any discharge of dredged material that
[[Page 65922]]
occurs in upland areas and has return flow to waters of the United
States is regulated under the CWA. However, if upland-disposed dredged
material were to have no return flow to waters of the United States, as
defined by CWA section 404, that dredged material would not be
regulated under the MPRSA or CWA, and is not, therefore, subject to the
exclusion under today's rule. 29
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\29\ Ground water flow is not considered return flow under CWA
section 404 unless there is a ``direct hydrogeological connection''
to a surface water body.
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B. Regulation of Dredged Material Under CWA and MPRSA
Section 404 of the CWA establishes a permit program to regulate the
discharge of dredged material into waters of the United States that is
administered by the Corps and EPA. Proposed discharges must comply with
the environmental criteria provided in 40 CFR part 230 to be authorized
by a CWA 404 permit. The EPA and Corps regulations under section 404
define dredged material as ``material that is excavated or dredged from
waters of the United States.'' In addition to such discharges as open
water disposal from a barge, the section 404 regulations specifically
identify the runoff or return flow from a contained land or water
disposal area into waters of the United States as a discharge of
dredged material. In most cases, this type of discharge occurs from a
weir and outfall pipe to drain water from a confined disposal facility,
including the water entrained with the solid portion of the dredged
material discharged at the site and from rainwater runoff.
The MPRSA regulates the management of material, including dredged
material, that will be dumped into ocean waters. Section 102 of the
MPRSA requires that EPA, in consultation with the Corps, develop
environmental criteria for reviewing and evaluating applications for
ocean dumping permits. Section 103 of the MPRSA assigns to the Corps
the responsibility for authorizing the ocean dumping of dredged
material, subject to EPA review and concurrence. In evaluating proposed
ocean dumping activities, the Corps is required to determine whether
these proposals comply with EPA's ocean dumping criteria (40 CFR parts
220-228).
C. Dredged Material and RCRA Applicability
RCRA regulates the management of hazardous wastes at treatment,
storage, and disposal facilities (TSDFs). Hazardous wastes are a subset
of solid wastes. A solid waste is considered hazardous for regulatory
purposes if it is listed as hazardous in RCRA regulations or exhibits
any of four hazardous waste characteristics: ignitability, corrosivity,
reactivity, or toxicity. Dredged material could trigger RCRA's Subtitle
C requirements by exhibiting any of the four characteristics or by
containing a listed hazardous waste. Environmental media (such as the
sediments which make up dredged material) is not itself waste, but is
sometimes contaminated with hazardous waste and must be managed as a
hazardous waste when it exhibits a characteristic or ``contains'' a
listed waste. These media would be subject to the RCRA requirements
applicable to the contaminated waste. As a practical matter, naturally
occurring sediments will not normally be associated with any specific
industrial waste stream, so as to ``contain'' listed waste.
Consequently, the most likely means by which dredged sediments could
become subject to RCRA Subtitle C regulation is by failing one of the
tests for characteristic hazardous waste. Given the nature of
sediments, they would be most likely to become subject to RCRA Subtitle
C if they fail toxicity testing (that is, Toxicity Characteristic
Leaching Procedure, or TCLP). In fact, dredged sediments from
navigational dredging projects very rarely, if ever, fail TCLP tests.
In all but a very small number of cases, RCRA has not been applied in
practice to proposed discharges of dredged material. Nevertheless, as
asserted by the commenters, the potential applicability of RCRA
Subtitle C requirements has been a concern at many dredging operations.
The Agency is confident that today's exclusion will promote
efficient handling of dredged material since future use of the TCLP
will not be necessary for dredged material subject to a permit issued
under CWA Section 404 or MPRSA Section 103. Specifically, today's rule
will eliminate the unnecessary expense and effort, currently borne by
the Corps and other entities, of applying the TCLP to large volumes of
dredged material. The Corps and other entities typically apply testing
procedures under CWA and MPRSA that are better suited to the chemical
and biological evaluation of dredged material disposed of in the
aquatic environment, where the vast majority of dredged material is
managed. These tests are specifically designed to evaluate effects such
as the potential contaminant-related impacts associated with the
discharge of dredged material into oceans and waterways of the United
States. Thus it is appropriate to assess and manage dredged material
under the aquatic testing and management protocols developed by the
Corps and EPA under the MPRSA and CWA.
D. Determination of Regulatory Jurisdiction
Today's rule establishes an integrated approach to the regulation
of dredged material disposal that will avoid duplicative regulatory
processes while ensuring an accurate, appropriate, and environmentally
sound evaluation of potential impacts to the environment. This approach
is authorized under section 1006(b) of RCRA, which states that ``the
Administrator * * * shall avoid duplication, to the maximum extent
practicable, with the appropriate provisions of * * * the Federal Water
Pollution Control Act (CWA), * * * the Marine Protection, Research and
Sanctuaries Act, * * *, and such other Acts of Congress as grant
regulatory authority to the Administrator.'' Section 1006(b) of RCRA
calls for the provisions of RCRA to be integrated with other statutes,
including the CWA and the MPRSA, to avoid duplication when the
integration ``can be done in a manner consistent with the goals and
policies expressed'' in RCRA and the other Acts. Applying the RCRA
Subtitle C program together with the CWA and MPRSA permitting programs
can be redundant and unduly burdensome, and may cause unnecessary
procedural difficulties (for example, by requiring duplicate permit
applications and procedures). It is also possible that the duplicative
nature of the programs could in fact increase environmental risks by
causing delays in proper disposal. The Agency believes that today's
rule is appropriate and consistent with the goals and policies in each
of these statutes.
The Agency believes that the CWA and MPRSA permit programs protect
human health and the environment from the consequences of dredged
material disposal to an extent that is at least as protective as the
RCRA Subtitle C program. These programs incorporate appropriate
biological and chemical assessments to evaluate potential impacts on
water column and benthic organisms, and the potential for human health
impacts caused by food chain transfer of contaminants. As improved
assessment methods are developed, they can be incorporated into these
procedures. The programs also make available appropriate control
measures (for example, 40 CFR 230.72) for addressing contamination in
each of the relevant pathways.
The Agency believes that RCRA Subtitle C coverage of dredged
material
[[Page 65923]]
disposal in the aquatic environment, whether or not this disposal is
considered to be ``land disposal'' under RCRA, is duplicative and
unnecessary when considered alongside the CWA and MPRSA coverage of
these activities. The overriding goal of each of the three statutory
programs is to protect human health and the environment, and the CWA
and MPRSA programs achieve this goal appropriately by addressing the
proposed aquatic disposal of dredged material.
The exclusion also applies in the case of a Corps civil works
project which receives the administrative equivalent of a CWA or MPRSA
permit, as provided for in Corps regulations. This regulatory language
refers to the fact that the Corps does not process and issue permits
for its own activities, but authorizes its own discharges of dredged or
fill material by applying the same applicable substantive legal
requirements, including public notice, opportunity for public hearing,
and application of the section 404(b)(1) guidelines or MPRSA criteria.
EPA has the authority to develop environmental guidelines and the
authority to prohibit or conduct further review of a proposed discharge
by the Corps, in the same manner as it can with a private permit
applicant. Thus, the exclusion in today's rule includes CWA and MPRSA
permits, as well as their administrative equivalents in the case of
Corps civil works projects.
E. Clarification of Future Practice
With the promulgation of today's rule, the regulation of dredged
material will generally proceed in one of the following two ways, with
the vast majority of activities expected to fall under the first
example:
1. If the dredged material is subject to a permit that has been
issued under CWA section 404 or MPRSA section 103, RCRA Subtitle C
requirements do not apply.
2. If the dredged material disposal is not subject to a CWA section
404 or MPRSA section 103 permit, RCRA Subtitle C requirements may
apply. (For example, if dredged material were to be disposed in upland
facilities with no runoff or return flow to waters of the United
States, this material would not be under the jurisdiction of the CWA or
MPRSA and therefore would be subject to RCRA Subtitle C if it meets the
definition of an RCRA hazardous waste.)
For dredged material covered by a CWA or MPRSA permit, the
combination of statute, Federal regulations, and Regional guidance,
along with the testing and management protocols that have been
developed jointly by EPA and the Corps, will be adequate to address
potential contaminant-related impacts in both ocean and inland waters.
Examples of the existing testing and management protocols include:
Evaluation of Dredged Material Proposed for Discharge in Waters of the
U.S.--Testing Manual (EPA-823-B-98-004) and Evaluation of Dredged
Material Proposed for Ocean Dumping--Testing Manual (EPA-503-B-91-001),
which contain current procedures on implementing the dredged material
testing requirements under the CWA and MPRSA respectively. The manuals
contain tiered evaluation systems that include, as appropriate:
physical analysis of sediment; chemical analysis of sediment, water,
and tissue; bioassay tests; and bioaccumulation tests of contaminant
impacts. EPA believes that CWA and MPRSA permits coupled with these
testing manuals and relevant Regional guidance will ensure the
protective management and discharge of dredged material.
F. Comments on the Dredged Material Exclusion
Comments from 18 sources mentioned the dredged material exclusion.
These sources included various industries and trade groups, as well as
federal and state agencies. These comments are included in the record
and are available for review in the RCRA docket. Commenters generally
supported the exclusion of dredged material from RCRA Subtitle C
regulation when the discharge is covered by a permit issued under the
CWA or MPRSA. There was also general concurrence among commenters that
this exclusion would avoid current unnecessary and duplicative
regulation under RCRA. The proposed dredged material exclusion received
only one comment that could be considered adverse. The comment was from
a state environmental agency and addressed only a portion of the
exclusion. The commenter stated that dredged material disposed upland
should not be excluded from RCRA Subtitle C requirements. EPA agrees
with this concern when there would be no return flow to waters of the
United States since, under these circumstances, CWA section 404 or
MPRSA 103 permits would not be issued. However, for the reasons
provided in today's rule, EPA does not agree with the commenter in
cases where there is return flow to waters of the United States and the
dredged material is subject to a permit under CWA section 404 or MPRSA
section 103. Moreover, the commenter provides no rationale as to why
dredged material disposed upland under a CWA section 404 or MPRSA
section 103 permit should not be excluded from the definition of
hazardous waste. Therefore, EPA has finalized the rule as proposed. In
addition to this comment, several commenters raised further issues that
are outlined and discussed below.
G. Dredged Material as a Solid Waste
The Agency proposed that the dredged material exclusion apply only
to the hazardous waste requirements of RCRA Subtitle C and not to the
solid waste requirements of RCRA Subtitle D. Today's final rule adopts
this approach as proposed.
Some commenters noted that the context and wording of the proposed
dredged material exclusion implied that all dredged material is solid
waste. They were concerned that excluding dredged material from the
definition of hazardous waste could be interpreted to mean that all
dredged material is inherently a hazardous waste, and consequently,
also a solid waste. They believe that is not the case, and asked EPA to
clarify this matter in the final rule.
EPA agrees with these comments. Nothing in the proposal or in
today's final rule is meant to imply that dredged material is always a
solid waste. Dredged material, which is media, may or may not contain a
RCRA solid or hazardous waste. Dredged material should not be assumed,
a priori, to contain a solid waste and today's rule does not expand the
scope of dredged material regulation under RCRA.
In cases where dredged material may be both a solid and a hazardous
waste, today's rule excludes these materials from the hazardous waste
requirements only. Two commenters requested that the dredged material
exclusion extend to all aspects of RCRA (that is, that dredged material
be excluded not only from hazardous waste requirements, but also from
solid waste requirements). EPA has not adopted this suggestion. While
EPA believes that excluding dredged sediments from Subtitle C
regulation is appropriate, the Agency is not persuaded that these
sediments should be excluded from all RCRA jurisdiction. It would be
inappropriate to extend the exclusion to Subtitle D because, in certain
circumstances, this exclusion would remove the ability of states to
exercise authority over dredged material under their RCRA Subtitle D
programs. (For example, in some States, State authorities preclude
State regulations from being more stringent than Federal regulations.)
Also, because there is no federal permit program for Subtitle D, state
and local authorities have well-established regulatory discretion in
the non-hazardous waste
[[Page 65924]]
arena, which the Agency does not wish to alter at this time.
Consequently, today's rule does not alter the existing abilities of
States and local authorities to regulate dredged material as a solid
waste under RCRA.
Furthermore, although certain dredged materials will no longer be
considered hazardous wastes under today's rule, this exclusion does not
affect whether dredged materials are considered solid wastes for the
purposes of RCRA section 7003. As advanced in the proposal, EPA may
take action under RCRA section 7003 to address the past or present
handling, storage, treatment, transportation or disposal of any solid
waste or hazardous waste that may present an imminent and substantial
endangerment to human health or the environment. This authority remains
intact, regardless of the Agency's decision to exclude dredged
materials from RCRA's hazardous waste provisions. Thus, this rule does
not diminish in any way the Administrator's authority to take action
under section 7003 in connection with dredged material. EPA believes
this authority provides an important backstop to the regulatory
authorities of the CWA and MPRSA. Emergency powers under these other
two statutes are different from and not co-extensive with RCRA section
7003 authority. Furthermore, many States have comparable authorities
over non-hazardous waste, which EPA does not wish to undercut.
In sum, the status of dredged material as potentially a solid waste
under RCRA is unchanged by today's rule. Where dredged material is (or
contains) both a solid and a hazardous waste and is subject to a permit
that has been issued under CWA section 404 or MPRSA section 103,
today's rule excludes it from RCRA's hazardous waste requirements, but
not from solid waste requirements.
H. Clarification of Terms Related to Dredged and Fill Material
Two commenters stated that transferring the term ``discharge of
dredged material'' from CWA section 404 regulations into the dredged
material exclusion regulation, as was done in the proposal, would
complicate the exclusion unnecessarily. EPA agrees with these comments.
The term ``discharge of dredged material,'' which was incorporated into
the proposed exclusion, is defined in 40 CFR 232.2 (and the Corps' 33
CFR 323.2) and includes descriptions of the scope of these discharges.
The definition also describes discharges that do not require a section
404 permit. Confusion could have resulted, for example, over whether
dredged sediments should be removed from RCRA regulation when they are
within the scope of a section 404 permit exclusion. The references to
this term and its definition have been removed from the rule to avoid
confusion and misinterpretation, and only the term ``dredged material''
(which is defined in 40 CFR 232.2 as ``material that is excavated or
dredged from the waters of the United States'') is used in the final
rule.
Similarly, EPA stated that the exclusion did not address ``fill
material''. The Agency's goal is to ensure that upland-derived fill
material is not eligible for the exclusion, but the language in the
proposal did not distinguish between dredged material used as fill and
fill material not excavated from waters of the U.S. The ``fill
material'' that is not included in the exclusion is any material that
does not meet the definition of dredged material. For example, dredged
material can be used as fill under a CWA 404 permit for beneficial
purposes, such as the creation of an underwater berm for erosion
control. EPA sees no reason to differentiate between dredged material
that is discharged for disposal and dredged material that is used as
fill, as long as both are subject to the CWA or MPRSA dredged material
permitting requirements.
As a result, as in the case of the term ``discharge of dredged
material,'' ``discharge of fill material'' and ``fill material'' are
not terms pertinent to the dredged material exclusion and therefore are
not included in today's regulatory language.
I. Normal Dredging Operations and the Exclusion
Two commenters recommended extending the exclusion to normal
dredging operations for navigation or flood control that are subject to
some form of federal regulation other than CWA or MPRSA permitting, in
particular when the dredged material would be disposed in upland
facilities with no return flow. EPA was asked to interpret RCRA section
1006(b) expansively to avoid regulatory duplication with the Rivers and
Harbors Act of 1899 (RHA, 33 U.S.C. 403) which regulates normal
dredging operations. However, section 1006(b) of RCRA requires EPA to
avoid duplication with Acts of Congress that grant regulatory authority
to the Administrator, and RHA does not grant regulatory authority to
the Administrator. Furthermore, the proposed rule's exclusion for
dredged material was premised only on the applicability of CWA or MPRSA
permitting, and the proposal did not request comments on expanding the
exclusion from RCRA Subtitle C for dredged material that is not subject
to CWA or MPRSA permits. Therefore, the Agency will limit the scope of
the exclusion to dredged material subject to a permit that has been
issued under CWA section 404 or MPRSA section 103, as proposed.
J. The Exclusion and Nationwide Permits
One commenter asked whether the proposed exclusion would not only
apply to project-specific individual permits issued by the Corps, but
also to general permits.30 The proposed rule and the
preamble implied to this commenter that the scope of the exclusion
includes only individually-issued permits. Although under today's rule
the exclusion applies to any dredged material subject to a section 404
permit and, therefore, would technically extend to Corps general
permits (those which allow for certain dredging activities without
requiring an individual application), it is important to note that it
is very unlikely that any dredged material suspected of being
contaminated would be authorized under a general permit. General
permits may not authorize discharges where contaminant-related impacts
are expected to be more than minimal, evaluated separately, as well as
cumulatively. However, in the unlikely event that these discharges are
authorized under a general permit, both the Corps and the appropriate
state regulatory agency retain the authority to impose individual
permit requirements or deny a permit to avoid impacts of concern.
Therefore, EPA believes that it is appropriate, and in keeping with the
logic of the proposal, to retain dredged material managed under CWA
section 404 general permits within the exclusion from RCRA Subtitle C.
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\30\ The Agency notes that there are no nationwide permits under
MPRSA that are applicable to dredged material, so the following
discussion is in the context of CWA section 404.
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X. State Authority (Sec. 271.1(j))
A. Applicability of Rules in Authorized States
Under section 3006 of RCRA, EPA may authorize qualified States to
administer and enforce the RCRA Subtitle C program within the State.
Following authorization, EPA retains independent enforcement authority
under sections 3008, 3013, and 7003 of RCRA to initiate an action,
although authorized States have primary enforcement responsibility. The
[[Page 65925]]
standards and requirements for authorization are found in 40 CFR part
271.
Prior to the Hazardous and Solid Waste Amendments of 1984 (HSWA), a
State with final authorization administered its hazardous waste program
instead of EPA administering the Federal program in that State. The
Federal requirements no longer applied in the authorized State, and EPA
could not issue permits for any facilities that the State was
authorized to permit. When new, more stringent Federal requirements
were promulgated or enacted, the State was obliged to enact equivalent
authority within specified time frames. New Federal requirements did
not take effect in an authorized State until the State adopted the
requirements as State law.
In contrast, under RCRA section 3006(g), (42 U.S.C. 6926(g)), new
requirements and prohibitions imposed by HSWA take effect in authorized
States at the same time that they take effect in unauthorized States.
Although the States are still required to update their hazardous waste
programs to remain equivalent to the Federal program, EPA is directed
to carry out HSWA requirements and prohibitions in authorized States,
including the issuance of permits implementing those requirements,
until the State is granted authorization to do so.
Authorized States are required to modify their programs only when
EPA promulgates Federal requirements that are more stringent or broader
in scope than existing Federal requirements. RCRA section 3009 allows
the States to impose standards more stringent than those in the Federal
program. See also, 40 CFR 271.1(i). Therefore, authorized States can,
but are not required to, adopt Federal regulations, both HSWA and non-
HSWA, that are considered less stringent. Less stringent regulations,
both HSWA and non-HSWA, do not go into effect in authorized States
until those States adopt them and are authorized to implement them.
B. Effect on State Authorization
Today's rule is promulgated, in part, pursuant to non-HSWA
authority and, in part, pursuant to HSWA. Requirements applicable to
Remedial Action Plans (RAPs) and the dredged material exclusion are
promulgated pursuant to non-HSWA authority. Therefore, these
requirements are effective on the effective date of this rule only in
those States without final authorization. They will become effective in
States with final authorization once the State has amended its
regulations and the amended regulations are authorized by EPA.
The requirements for staging piles are promulgated pursuant to
HSWA. Specifically, as discussed in the HWIR-media proposal (see 61 FR
18830-18831), the requirements relating to staging piles are based on
an interpretation of RCRA sections 3004(k) and (o). (See below for
details regarding implementation in authorized States.) Also, the
provisions exempting remediation waste only management sites from the
requirements in RCRA section 3004(u), namely Secs. 264.1(j) and
264.101(d), are promulgated under HSWA authority. The Agency is adding
these requirements to Table 1 in Sec. 271.1(j), which identifies
rulemakings that are promulgated pursuant to HSWA.
As noted above, authorized States are only required to modify their
program when EPA promulgates Federal standards that are more stringent
or broader in scope than the existing Federal standards. The standards
promulgated today (including those promulgated under HSWA authority)
are less stringent than the existing Federal standards. Therefore,
States are not required to modify their programs to adopt today's
rulemaking. However, EPA strongly encourages States to adopt the
provisions promulgated today, as the Agency believes that they will
increase the pace and efficiency of hazardous waste cleanups. The swift
authorization of States that have adopted provisions equivalent to
those promulgated today is a high priority for EPA.
1. Staging Piles
The implementation of the provisions regarding staging piles will
vary, depending on the authorization status of a particular State.
Although these provisions are promulgated under HSWA authority, they
are less stringent than the existing Federal provisions, namely the
Land Disposal Restrictions (LDR) and Minimum Technology Requirements
(MTR) that apply to waste piles. Thus, if a State is authorized for the
LDR and MTR provisions, EPA will not implement the provisions regarding
staging piles in that State, even where it is conducting a corrective
action. In some cases, however, a State that has LDR and MTR
authorization and has adopted the staging pile provision, but is not
yet authorized for staging piles may be able to implement its staging
pile provisions if, under State law, it has a waiver authority
comparable to the Federal authorities under RCRA section 7003 and
CERCLA section 121(e). (A State's waiver authority is discussed further
below.) If, prior to authorization for staging piles, the State
exercises this authority in a way that is consistent with today's
provisions regarding staging piles, EPA would not consider the State's
program to be less stringent than the Federal program. These approaches
should be used only to cover the transition period during which the
State amends its regulations and obtains formal authorization for the
staging pile provisions.
In those States that do not have authorization for the LDR and MTR
rules, EPA is responsible for implementing the provisions regarding
staging piles, because they are part of the Federal RCRA program
operating in these States. EPA will use the Federal procedures for the
implementation of the staging pile. For example, if the facility at
which the staging pile is to be located holds a RCRA permit, EPA will
modify the HSWA portion of the permit using the Federal permit
modification procedures. However, EPA will not implement the staging
pile provisions if this implementation is in conflict with a State's
hazardous waste program. In some cases, States may have adopted the LDR
or MTR provisions in their regulations, but may not have received
authorization from EPA. Thus, these provisions may be effective under
State law, preventing the implementation of the staging pile
provisions. To address this situation, to the extent permitted by EPA
regulations, EPA may modify its action so it is consistent with State
law, or structure its action to mirror existing State requirements
which allow waiver of the authorized State LDR and MTR provisions.
Alternately, the State may use an authority under its own laws to
provide a waiver.
C. Authorization for Today's Rule
In today's rule (as described later in the preamble), EPA
establishes streamlined procedures for authorizing States for routine
or minor program revisions of RCRA requirements. Streamlined
authorization procedures were a major feature of the HWIR-media
proposal, as well as several other recent regulatory proposals, and
they are a key feature of EPA's program to reinvent the RCRA State
authorization process.
The specific substantive provisions of today's rule, however, are
not eligible for these streamlined procedures. This is because EPA
considers today's rule to be fairly complex, and not part of a series
of routine rulemakings. For these reasons EPA disagrees with the
several commenters who wanted the abbreviated authorization procedures
promulgated today to apply to the authorization of the HWIR-media rule.
[[Page 65926]]
At the same time, EPA is placing a high priority on authorization of
States who seek to implement today's rule. The success of the
regulatory reforms in today's rule depends on its rapid adoption by the
program implementers, that is, the States. Furthermore, EPA intends to
use its existing discretion under 40 CFR 271.21(b), to follow the
streamlined procedure for the authorization of States which only adopt
Sec. 264.101(d) of today's rule. This provision eliminates Sec. 264.101
facility-wide requirements from RCRA permits or RAPs issued to
facilities not otherwise subject to facility-wide corrective action.
The streamlined authorization procedure and EPA's existing discretion
are discussed below.
Although today's HWIR-media rule is not eligible for the
streamlined authorization procedures, EPA believes that in most cases,
the authorization of States for this rule should be straightforward.
Today's rule, for the most part, does not change the current regulatory
standards for waste management, but merely streamlines procedures for a
particular category of waste (that is, remediation waste). Any State
currently authorized to implement RCRA hazardous waste regulations,
particularly those States authorized for the LDR program and for
corrective action, should have little difficulty becoming authorized
for today's rule, as long as the State adopts a program that meets the
minimum standards in today's rule.
EPA particularly emphasizes that, in authorizing States for the RAP
part of today's rule, it will not be judging the adequacy, the
stringency, or the resources of State clean-up programs. This is
because today's rule does not modify or alter in any way clean-up
requirements, but simply streamlines the permitting process for
management of hazardous remediation wastes.
EPA will be reviewing the State's regulations and program for
managing hazardous remediation waste to determine whether they are
equivalent to the standards promulgated in today's rule. If a State
program is already authorized to regulate hazardous waste under the
base RCRA program, there is every reason to presume it can adequately
regulate that same waste under a RAP or in a staging pile. The main
task for EPA will be to ensure that States, in providing relief for
remediation waste, meet the national minimum standards. EPA anticipates
that, in most cases, this will be a clear and simple standard for
States to meet, and authorization will be correspondingly expedited.
EPA also emphasizes that State programs seeking authorization must
be equivalent to and no less stringent than the program EPA will be
administering under today's rule. State programs, however, do not need
to be identical to the federal program. EPA included considerable
detail on procedural requirements in today's rule, because it will be
implementing the rule in unauthorized States. Thus, the Agency needed
to spell out permitting procedures, information requirements, and
similar provisions explicitly and in detail. Although some States may
choose to adopt these requirements verbatim or by reference, EPA
expects that other States will prefer to establish different procedures
(e.g., for RAP issuance or revisions, appeal rights, computation of
time periods, and similar requirements), analogous to the situation
regarding 40 CFR part 124 requirements such as administrative permit
appeals that States are not required to adopt for authorization (see
Secs. 270.155, 270.190, and 270.215). EPA stresses that State programs
will be eligible for authorization, as long as they comply with the
statutory minimum in areas like public participation, their
requirements apply equivalent (or more rigorous) procedures, they
provide for adequate enforcement, and they meet the substantive
standards of the federal regulations.
D. Authorization of State Non-RCRA RAP Authorities
In some instances, States may want to use as RAPs, enforceable
documents issued by a State program other than the State's authorized
RCRA program (see section IV of today's preamble for further
discussion). Enforceable documents containing hazardous remediation
waste management requirements that are not specifically issued through
EPA's or an authorized State's RCRA program are not considered to be
RAPs (this is, RCRA permits). Where a State wishes to use enforceable
documents issued under authorities other than State RCRA authorities to
implement hazardous waste remediation requirements, this will require
specific authorization review to determine whether the State has the
requisite implementation and enforcement authority and whether the
provisions are consistent and equivalent to those promulgated today. In
order to provide EPA with a basis for its authorization determination,
during the authorization process for this rule, the State should
specifically identify the enforceable documents it intends to use as
RAPs, as well as the State authorities under which they are issued. If
EPA approves the authorization, then the enforceable documents become a
part of the RCRA program and the State will have the discretion to use
such documents as RAPs. As part of RCRA, the RAP portion (i.e.,
hazardous remediation waste requirements and conditions) of the
enforceable document is enforceable pursuant to the State RCRA
enforcement authorities and by EPA pursuant to its independent RCRA
enforcement authority. 31
---------------------------------------------------------------------------
\31\ Nothing in either the State's authorized ``enforceable
document'' or in the State's law can restrict EPA's independent
authority to enforce the authorized RCRA program.
---------------------------------------------------------------------------
Elsewhere in this preamble, EPA discusses the appropriate level of
public involvement in site cleanups, given the need for flexibility to
do what makes sense in a given situation. Thus, States need to ensure
in particular, that any enforceable documents to be used as RAPs will
be developed through procedures that meet the public participation
requirements in Sec. 270.145; otherwise they will not meet the
standards for authorization. Further, the authorities used to issue
these documents must also ensure that hazardous waste is managed under
the appropriate standards of the hazardous waste program.
As noted earlier, nothing in today's rule limits or expands the
authorities States may already have to waive RCRA permit requirements,
consistent with EPA's authority in section 7003 of RCRA or section
121(e) of CERCLA. RCRA section 7003 allows EPA to order response
actions in the case of imminent and substantial endangerment to health
or the environment, ``notwithstanding any other provision in this
Act.'' An authorized State may use a comparable authority to authorize
activities consistent with today's rule. Similarly, where comparable
authority exists under a State Superfund program, the State may use
that authority. As explained in EPA guidance, the two preconditions to
allowing the use of this authority are that: ``(1) the State has the
authority under its own statutes or regulations to grant permit
waivers; and (2) the State waiver authority is used in no less
stringent a manner than allowed under Federal permit waiver authority,
for example, section 7003 of RCRA or section 121(e) of CERCLA.'' (See
the Memorandum, ``RCRA Permit Requirements for State Superfund
Actions'', from J. Winston Porter to Regional Administrators, Region I-
X (Nov. 16, 1987) (OSWER Dir. No. 9522.00-2).) A State cannot, however,
waive applicable Federal requirements. Thus, if a State is not
authorized to
[[Page 65927]]
implement a portion of the RCRA program in that State, the exercise of
the State's waiver authority does not waive the Federal portion of the
RCRA requirements. Also, EPA recognizes that many States have
enforcement authorities allowing them to compel corrective action at
interim status facilities comparable to EPA's section 3008(h)
authority. States with appropriate regulatory and enforcement authority
would be able to use these authorities in the same way EPA uses its
section 3008(h) authority, for example, to approve the use of a staging
pile outside the context of a RAP. As long as the authorized State
acted in a way that was consistent with Federal requirements, its
program would be considered to be as stringent as the Federal program.
XI. Abbreviated Authorization Procedures (Sec. 271.21(h))
EPA and States have recognized the need to improve the RCRA State
authorization procedures for many years. For example, in the 1990 RCRA
Implementation Study, the authorization process was identified as being
too slow and cumbersome. In response to these longstanding concerns,
the practices used by EPA and States have evolved over the years. The
purpose of these attempts has been to make the authorization process
operate more smoothly. Further, because Federal regulatory revisions
promulgated under non-HSWA statutory authority do not go into effect
until States have adopted them and received authorization, a more
speedy authorization process will enhance environmental protection.
In several notices published during the past three years, EPA has
proposed abbreviated authorization procedures intended to expedite the
review and approval of revisions to authorized State programs. In the
August 22, 1995, Land Disposal Restrictions (LDR) Phase IV proposal,
EPA proposed a procedure (subsequently called Category 1) for
authorizing minor or routine rules (see 60 FR 43654). This abbreviated
procedure would require an application that was reduced in scope and
composed of a statement from the State that its laws provide authority
that is equivalent to and no less stringent than EPA's regulations, and
a copy of those State statutes and regulations. After a complete
application was submitted, EPA would then conduct a speedy review, and
within 60 days after receiving an acceptable application, finish its
action by publishing a Federal Register notice. With this notice and
the associated public comment period, EPA would provide notice to the
public of authorization decisions in the same fashion as is currently
done. This procedure was proposed to apply to certain minor amendments
to the LDR program that had become a routine part of the LDR program.
EPA also requested comment on the future applicability of this
procedure.
EPA modified this proposal in the January 25, 1996, LDR Phase IV
supplemental proposal (see 61 FR 2338). EPA also proposed streamlined
procedures for the authorization of more significant rules in the April
29, 1996, HWIR-media proposal (see 61 FR 18818). This proposed
procedure was known as Category 2.
However, after carefully evaluating the comments received on these
proposals, as well as the Agency's goal of speeding up the State
authorization process, EPA has decided to promulgate abbreviated
authorization procedures based on the procedures proposed in the August
22, 1995, LDR Phase IV notice. Thus, EPA is not promulgating the more
extensive proposed Category 2 procedures from the HWIR-media proposal
and the modifications to the proposed Category 1 procedures outlined in
the January 25, 1996 LDR supplemental proposal. This preamble explains
the details of today's abbreviated procedures, and discusses EPA's
overall approach towards streamlining and improving the authorization
process for all State authorization revisions.
A. Existing Authorization Process
During the past 15 years, EPA has frequently amended the Federal
RCRA program by promulgating rulemakings to reflect statutory mandates,
court decisions, and technical and scientific progress. EPA Regions and
States have worked together to incorporate these regulatory amendments
into revised State hazardous waste programs. This has been accomplished
through the State adoption of rules equivalent to the Federal
rulemakings, and the subsequent authorization of States. The existing
regulations regarding the revision of a State's authorized program are
located in 40 CFR 271.21.
Authorization revision applications generally consist of a copy of
the State regulations, a revised Attorney General's (AG) statement, a
revised Program Description (PD), a revised Memorandum of Agreement
(MOA), or other documents EPA determines to be necessary (see 40 CFR
271.21(b)(1)). This provision does provide EPA with flexibility
regarding the content of authorization applications. However, all of
these components are generally submitted to EPA because the State
applications often cover Federal rulemakings promulgated during a
period of one to several years and therefore address significant
Federal rulemakings. This practice is based on provisions located in 40
CFR 271.21(e). These provisions set forth the concept of ``clustering''
rules, and established deadlines for State submission of applications.
Because State applications address Federal rulemakings promulgated
during a set period of time, it is common that these applications
contain analogous State rules that are both very minor and quite
significant.
Although the regulations in Sec. 271.21 contain only general
provisions regarding the EPA review and approval process, over time EPA
Regions and States have developed practices for the development and
review of State applications that vary according to the content of the
application, method of State adoption, and the individual approaches of
State and EPA staff. Of course, all of these practices are based on the
standards for review set forth in the RCRA statute, along with other
sections of 40 CFR part 271, and the content and nature of the
individual applications. Typically, the State provides a draft of its
application, including draft or proposed State regulations, to the EPA
Region for review and comment. After the Region submits comments back
to the State, the State addresses the comments, and prepares and sends
a final application to the EPA Region for review, comment if necessary,
and in most cases, approval through notice in the Federal Register as
an immediate final rule, also known as a direct final rule (see 40 CFR
271.21(b)(3)).
The authorization revision process as implemented does not
incorporate formal deadlines or time lines. Many factors have
contributed to the duration of the entire process, which EPA and States
have often characterized as being too lengthy. One factor is the size
and complexity of many revision applications. Another factor is the
time necessary for a State to conduct rulemakings to revise its
regulations, and to put together a complete application. Allowing EPA
review of draft or proposed State regulations may also lengthen the
process, even though it is particularly recommended in cases where
States find it difficult to amend regulations after they are first
promulgated.
B. Summary of Comments on the August 22, 1995 Proposal
EPA did not receive any adverse comments regarding the abbreviated
[[Page 65928]]
authorization procedures that were proposed in the August 22, 1995
notice. Some of these commenters wanted these procedures to apply to
the authorization of States for all Federal RCRA rulemakings, and not
just to rules that are minor in nature. Other commenters thought that
the procedures were appropriate for the authorization of minor rules
that would be promulgated in the future, or were already promulgated by
EPA. One commenter maintained that the procedures should not be applied
to authorizations involving rules that are significant, since the
necessary EPA review may involve State enforcement and technical
capability.
C. Basis and Rationale for Today's New Procedures
EPA has determined that, while the authorization processes that are
currently employed may be appropriate for the authorization of
significant changes to the RCRA program, a process that does not
include all the possible components of the application, and that
provides deadlines for certain actions is better suited for routine or
minor changes. As discussed in the August 22, 1995 proposal, routine or
minor rulemakings are those EPA rulemakings that do not change the
basic structure of the RCRA hazardous waste program, or expand the
program into significant new areas or jurisdictions. For example, a new
waste listing which amends 40 CFR part 261, a technical correction to a
previously promulgated rulemaking, or a rulemaking that is part of a
series of rulemakings where the basic regulatory authority has already
been established (and remains largely the same), could be considered a
minor or routine rulemaking and appropriate for the abbreviated
authorization process.
As already discussed, these rules would have a limited impact on
the implementation and scope of the RCRA program and therefore, the
minor or routine rulemakings do not significantly expand or change the
nature of existing State authorized regulatory authority. Further, such
rules have a negligible effect on the resources necessary to implement
the RCRA program, and do not have an effect on the intergovernmental
relationship between EPA and States. Thus, it is appropriate to have an
abbreviated authorization process for minor or routine rules to be used
by States that have already received authorization for the significant
parts of the RCRA program that are being revised, since those States
have demonstrated capability in both the administration and
implementation of those aspects of the program.
Additionally, an abbreviated authorization process is appropriate
since certain components of the normally submitted authorization
application (such as the MOA and PD) are affected only rarely by minor
or routine revisions. Rather, revisions to these components are usually
required in the authorization revision application for a set of rules
because of the presence of significant rulemakings, not the minor or
routine rules. Likewise, much of the time and effort expended on
reviewing and revising authorization applications is due to the
extensive changes to the RCRA regulations caused by significant
rulemakings.
Further, revisions to the PD or MOA should not be necessary
because, as already mentioned above, the minor or routine rules to
which today's new, abbreviated procedures apply do not have any
significant impact on the States' capability to implement the RCRA
program, and do not present any new issues for EPA-State coordination.
Also, due to the nature of these minor or routine rules, they should
not have an effect on State program consistency and the adequacy of a
State's enforcement program. Thus, EPA believes that today's procedure
will expedite the implementation of many minor or routine rulemakings,
and will enable EPA Regions and States, including the State Attorney
General's Office, to devote their resources towards efficient
authorization of more significant rules.
EPA has always had the discretion to implement authorization
procedures similar to those promulgated today without promulgating
regulations. For example, Sec. 271.21(b)(1) allows EPA to determine
what documents are necessary in a revision application, according to
the circumstances presented by each particular rule. Nonetheless, EPA
believes that this codification of procedures is useful for two
reasons. First, a codification will provide a consistent procedure for
States and EPA to use when processing an application for minor or
routine rules. Second, since these procedures will be included in the
CFR, all parties involved in the authorization process, including
States and the general public, will be aware of this alternative
procedure.
Section 3006(b) of RCRA establishes the legal standard for State
program approval. As detailed below, the application required in
today's procedure includes a statement that the State's regulations for
which the State is seeking authorization are equivalent to the Federal
regulations. EPA has concluded that this statement, coupled with the
review EPA conducts on these minor or routine rules as part of the
authorization process, will provide an adequate basis for EPA to make
its required findings and grant approval of a program revision under 40
CFR part 271.
D. Rule Listed in Table 1 to Sec. 271.21 to Which the Abbreviated
Procedure Applies
In new Table 1 to 40 CFR 271.21, EPA has listed the first rule for
which the new abbreviated procedure may be used. This rule is the
Universal Treatment Standards (UTS) in Secs. 268.40 and 268.48 that
were promulgated in the Phase II LDR rule (see 59 FR 47982, September
19, 1994). Note that States are not required to use the new procedures
in 40 CFR 271.21(h) when they seek authorization for this rule and
other rules that may be placed in Table 1 in the future.
Note that the August 22, 1995, notice proposed to use the
abbreviated procedures for the authorization of other LDR rules. These
rules were portions of the proposed Phase III LDR rule, and the Phase
IV LDR rule (which was split up into two final rules). These LDR
proposals have since been finalized (see 61 FR 15660, April 8, 1996,
for the Phase III LDR rule; 62 FR 26040, May 12, 1997 for the LDR rule)
on wood preserving wastes (part of the Phase IV; and 63 FR, 28556, May
26, 1998 for the Phase IV LDR rule). EPA has decided not to use today's
abbreviated procedures in 40 CFR 271.21(h) for the authorization of
these final rules. This is because these rules, in addition to the
routine modifications and additions to the LDR treatment standards,
made changes to the definition of solid waste and other aspects of the
RCRA program which affected its scope in a more significant manner.
Today's HWIR-media final rule is also not listed in Table 1 and
therefore, as explained earlier, the abbreviated authorization process
will not be used for its authorization. EPA considers today's HWIR-
media rule to be a significant rule because, for example, it provides
for a new type of permit mechanism and a new type of waste management
unit. Although EPA believes that today's rule will have many
environmentally beneficial effects, it involves several complex
regulatory concepts, and thus EPA believes the abbreviated procedures
are not appropriate for its authorization.
In the future, as EPA proposes rulemakings under RCRA, EPA will
also propose to list additional minor or routine rules in Table 1 to 40
CFR 271.21, to ensure that today's procedure
[[Page 65929]]
can be used for their authorization. These future proposed additions to
Table 1 will generally be in the same notice as the proposed minor or
routine rule. This action was supported by commenters to the August 22,
1995 proposal. Once public comment is received on the proposed listing
in Table 1, EPA will promulgate it as appropriate.
In the August 22, 1995 proposed rule, EPA discussed and requested
comment on the rules a State must be authorized for to use the
abbreviated process. In particular, EPA suggested that States should be
authorized for the LDR Third Third rule (see 55 FR 22520, June 1, 1990)
to use the new procedure for the LDR Phase II, III and IV rules, or the
designated parts of them. Based on the comments, EPA has concluded that
the proposed approach was reasonable. However, the prerequisite has
been modified so that it is more generally applicable, and easier to
understand and implement. Therefore, today's rule simply requires that
States be authorized for the part of the program that the routine rule
is amending. One example is a revision to an existing rule. Another
example is a new waste listing, which amends the list of hazardous
wastes in 40 CFR part 261. This prerequisite requirement is located in
Sec. 271.21(h)(5).
E. Use of Today's Abbreviated Procedure for the Authorization of
Previously Promulgated Rules
In today's rule, EPA explicitly identifies a portion of the Phase
II LDR rule as subject to the abbreviated authorization procedures.
However, EPA considers the development and review of an authorization
application that contains only this rule to be inefficient, and not
justified by the administrative resources that EPA and States would
expend to develop and review such a small application. This situation
would render today's new procedures largely ineffective in
accomplishing the goal of making the authorization process more
efficient, considering that authorization applications generally cover
a large number of Federal rulemakings, ranging in size from about 20 to
100 rules. Further, EPA does not believe that it should treat the
authorization of minor or routine rules in a different manner based
solely on when the rule was promulgated.
Section 271.21(b)(1) provides the Agency with the flexibility to
tailor the contents of a State's application to revise its
authorization. Thus, under this provision, EPA could require the same
information that is required to be in the State application under the
new requirements in Sec. 271. 21(h)(1). EPA also has the discretion to
review authorization applications in the same manner as promulgated in
today's abbreviated procedures. EPA has always had the ability to
commit to an expedited review of State applications. For example, EPA
has committed to conducting a speedy review of State applications for
several recent rules.
Since today's procedure continues to meet the review requirements
set forth in the RCRA statute and existing regulations, and EPA has
discretion under 40 CFR 271.21(b)(1) to appropriately tailor the
authorization application requirements and review schedules, EPA
intends to use the timetables and application requirements in today's
procedure for previously promulgated rules, as long as those rules are
minor or routine in nature and scope. EPA is developing guidance to
enable States and Regions to make speedy and proper decisions regarding
which previously promulgated rules should be included in an
authorization application that uses the abbreviated procedures. This
guidance will identify those previous rulemakings which EPA considers
to be minor or routine in nature. It will also identify those rules
that are not minor or routine, and for which the abbreviated procedures
will not be used. One example of such a rule is the Boilers and
Industrial Furnace rule, which establishes authority over a new and
complex area. This guidance will take into account the criteria EPA
will use to propose to list a new rule in Table 1, the considerations
discussed in the section regarding basis and rationale in today's
preamble, and EPA's previous experience in authorizing these existing
rules. This guidance will also consider how EPA's checklist guidance
that is contained in the annual State Program Advisories treats these
rules, since the guidance is widely used in those States that do not
incorporate the Federal regulations by reference. Copies of the
checklist guidance for all existing rules as well as other
authorization related guidance are located on the Internet (at: http://
www.epa.gov/epaoswer/hazwaste/state/index.htm). For example, many
technical corrections to significant rules, which on their own would be
considered minor, are included on the same checklist as the original
major rule. EPA does not think that States which use the checklist
guidance would separate out these technical corrections into a second
application because doing so would be difficult and inefficient. Thus,
these corrections would not be listed as minor in the guidance.
(However, if a State had already been authorized for the major rule,
and would prefer to seek an abbreviated process for the subsequent
technical corrections, EPA has the discretion to process it
accordingly.) EPA encourages States to discuss and coordinate upcoming
authorization applications with EPA Regions to determine the most
efficient approach to take regarding the submission of revision
applications in light of today's rulemaking.
It is important to note that this abbreviated process for the
authorization of minor or routine rules only addresses the procedures
for processing certain State authorization applications. Today's
procedure does not affect the continued responsibility of States to
inform EPA of changes to its basic statutory or regulatory authority
under 40 CFR 271.21(a). Likewise, today's rule does not affect EPA's
ability under 40 CFR 271.21(d) to request a supplemental Attorney
General's statement, program description, or other documents or
information as necessary.
Occasionally, EPA requests additional information from a State
under 40 CFR 271.21(d). A prime example is when a State uses non-RCRA
authorities to implement rule requirements. If a State were to use
alternative authorities to seek authorization for a rule that is
considered to be minor or routine, EPA would probably request
additional information from the State Attorney General. Further, where
a rulemaking would have a significant impact on the size of a State's
universe of regulated facilities, EPA may ask for a revised Program
Description and/or a revised MOA. Although EPA does not believe that
situations such as this will be common, States should be aware of these
and work with the EPA Region before an application is submitted, so
that issues regarding the contents and review requirements for an
application may be resolved.
F. Final Abbreviated Authorization Procedures
Today's rule amends 40 CFR 271.21 to create a new authorization
procedure in paragraph (h) of Sec. 271.21 that consists of an
abbreviated application and an expedited process. Note that this
procedure was originally proposed in a new Sec. 271.28, but then
paragraph (h) of Sec. 271.21 was reserved for this procedure in the
April 29, 1996, HWIR-media proposal. Likewise, in the proposal, the
rules for which this authorization procedure would be used were listed
in 40 CFR 271.28(a), but are now listed in new Table 1 to Sec. 271.21.
EPA believes
[[Page 65930]]
that this table format is easier to read than the proposed listing.
G. Authorization Application Requirements
The requirements for a State's abbreviated application are located
at 40 CFR 271.21(h)(1). These application requirements are essentially
unchanged from the August 22, 1995 proposal. This abbreviated
application does not require a revised Program Description, Memorandum
of Agreement, or Attorney General's Statement. Instead, the application
must include a statement from the State that the laws and regulations
of the State provide authorities that are equivalent to, and no less
stringent than the Federal authorities for which the State is seeking
authorization. The certification must include appropriate citations to
the specific statutes, administrative regulations and where
appropriate, judicial decisions. It must also include a copy of the
applicable State laws and regulations. The cited State statutes and
regulations must be lawfully adopted at the time the certification is
signed and fully effective by the time the program revisions are
approved. This statement may be signed by the signatory of the State
application. Although the Attorney General may sign this statement, the
signature of the Attorney General is not necessary for the
authorization of the minor rules subject to today's procedures. These
minor or routine rules do not affect the previously authorized legal
authority of the State to carry out its hazardous waste program. This
requirement is consistent with the provisions of the proposed rule,
which did not require the Attorney General to sign the statement. EPA
did not receive any negative comments on this aspect of the proposed
rule.
H. Procedures for Reviewing and Approving Applications
EPA expects that a concerted effort from both the EPA Regions and
States will be essential to meet the deadlines specified in new
Sec. 271.21(h). Thus, the Agencies should coordinate their efforts
before and after the State application is submitted. EPA encourages
States to submit applications in draft form where feasible. This will
make it easier for the State to incorporate any changes to its
application, and will reduce the frequency of errors in the final
application. States should note that high level signatures, such as
from the State Director, are not required for a draft application.
Further, to make the Regional review more efficient, States should
provide clear explanations regarding changes they have made to the
Federal regulations and provide a crosswalk between State and Federal
regulations.
Once the State submits an application to EPA, the Agency will
conduct an expedited review of the State's regulations. This review
will consist primarily of a check for completeness and errors within
the State regulations, such as LDR treatment levels that are above the
Federal levels (and thus are less stringent). EPA anticipates that
these errors will be rare because the rulemakings eligible for this
abbreviated procedure are not complex, and are easily adopted by the
State. This review will constitute the finding of equivalency required
by section 3006 of RCRA. Note that this procedure does not affect in
any way a State's ability to promulgate regulations more stringent than
the Federal regulations under section 3009 of RCRA.
Under Sec. 271.21(h)(2), EPA is required to notify the State within
30 days of receipt of the application if EPA determines that the
application, including the statement, is not complete or contains
errors. The reasons why EPA can determine that an application is not
complete are specified in Sec. 271.21(h)(3). These reasons are: (1)
Copies of applicable statutes or regulations are not included; (2) the
statutes or regulations relied on by the State to implement the program
revisions are not lawfully adopted or effective by the time the program
revisions are approved; (3) in the statement, the citations to the
specific statutes, administrative regulations and where appropriate,
judicial decisions are not included or incomplete; and (4) the State is
not authorized to implement the prerequisite RCRA rules as specified in
Sec. 271.21(h)(5). If EPA does find that an application is incomplete
or contains errors, EPA will summarize the deficiencies in the
completeness notice sent to the State under Sec. 271.21(h)(2).
After the State submits an application to the Region (either in
draft or final form), the EPA Region should discuss any questions and
concerns with State staff. One purpose of these discussions is to seek
clarification regarding the State's application, and to attempt to
resolve these questions and concerns. Thus, if EPA's questions and
concerns are resolved through these discussions, a completeness notice
may not be necessary since there would be no outstanding issues. EPA
Regions also should commit to conduct additional reviews only on
application components that are new or have changed since the previous
submission. EPA Regions will prioritize any comments submitted to the
States regarding a draft or final application, and will make
distinctions between those errors that cause a State's regulations to
be less stringent and need to be changed before the application can be
approved, and those that may be made at a State's discretion, such as
typographical errors. After addressing EPA comments, if any, the State
will then resubmit the application to EPA as a final application. Of
course, EPA encourages the States to seek clarification regarding any
of the Regional comments so they can be properly resolved before
resubmitting an application.
Under Sec. 271.21(h)(4), EPA will publish an immediate final rule
in accordance with the requirements in Sec. 271.21(b)(3), within 60
days of receiving a complete final application under paragraph (h)(2).
Thus, if EPA does not find any deficiencies in a State's final
application, this notice will be published within 30 days after EPA
completes its check. Likewise, if EPA finds deficiencies in a State's
application, this notice will be published within 60 days after receipt
of a new corrected application. This immediate final rule is the same
promulgation procedure used for other revision authorization decisions,
which provides the public the ability to comment on tentative EPA
authorization decisions before they become effective. The notice would
provide for a 30-day public comment period, and would normally go into
effect 60 days after publication unless an adverse comment is received
by EPA.
I. EPA's Decision To Not Promulgate Proposed Category 1 and 2
Procedures
In comments on the proposed Category 2 procedures, most commenters
supported the concept of improving the authorization procedures.
However, many commenters did not support the specific procedural
changes that would apply to the authorization of significant rules.
These commenters maintained that the proposed Category 2 procedures
were too complex and cumbersome, and did not address the underlying
interactions between EPA and States within the process. In addition,
the proposed procedures would not have affected the authorization
process for the dozens of previously promulgated rules for which States
are not authorized. Other commenters believed that the proposed
Category 2 procedures would amend the EPA review process and standard
of review in a way that was not consistent with the RCRA statutory
requirements. As a result of these comments, EPA has
[[Page 65931]]
further evaluated the existing barriers to accomplishing the goals of
the proposals. EPA has concluded that many of the barriers to the
authorization of significant rules involve the process of communication
and coordination between EPA and States that is more appropriately
addressed through guidance and other non-regulatory means. Therefore,
EPA is not finalizing the Category 2 procedures proposed in the HWIR-
media proposal. EPA is also not finalizing the modifications to the
proposed Category 1 procedures that were proposed in the January 25,
1996 notice (see 61 FR 2338). These modifications were opposed by
commenters.
J. Improvements to the Existing Authorization Process
EPA believes that the abbreviated procedures promulgated today will
help make the State authorization program more efficient. However, most
of the authorization work that confronts EPA and States will continue
to involve rules that are considered to be significant rules, which are
not affected by today's procedure. Examples of these rules include the
Boiler and Industrial Furnace rule, the Used Oil rule, and today's
HWIR-media rule. EPA believes that many of the coordination and
communication activities recommended for today's abbreviated process
should be applied to the development and review of all other
authorization applications. One example is the prioritization of
Regional comments that may be submitted to the State. Further, EPA
recommends that EPA Regions and States hold discussions throughout the
authorization process to foster closer coordination between the
agencies. For example, before a State develops an application, the
agencies should discuss what revisions to the MOA and PD may be
necessary, and any major changes to the regulations planned by the
State. These discussions can be used to produce an authorization
process time line that satisfies the needs of both agencies. This time
line should contain commitments by both the Region and State to provide
expeditious turn-around of comments on applications, revisions to
applications, and other correspondence. To meet these commitments,
Regions should set internal deadlines for review based on the size of
the application and the method a State uses to adopt the Federal
regulations. Finally, to avoid numerous submissions of the same
document, Regions should help the State develop acceptable language
when appropriate or desired by the State.
XII. Conforming Changes (Secs. 265.1(b), 268.2(c), 268.50(g),
270.11(d), and 270.42 Appendix I)
Section 265.1(b), which discusses the applicability of part 265 and
other standards at interim status facilities, is amended in today's
rule to incorporate 40 CFR 264.554 (staging piles requirements) into
the list of standards that apply to interim status facilities. Because
today's rule for staging piles includes part 264 requirements for
staging piles, but not part 265 requirements, EPA wanted to make this
conforming change to make it clear that staging piles can be used at
interim status facilities. The same conforming change was made in the
February 16, 1993 CAMU rule to incorporate CAMUs and temporary units
into the same provision for the same reason. The CAMU rule stated,
``heretofore, technical requirements for interim status facilities were
specified only under part 265. Therefore conforming changes are
necessary * * *''. The CAMU, temporary unit and staging pile provisions
are the only part 264 standards that apply to interim status
facilities. The CAMU rule also made a similar conforming change to
Sec. 264.3; however that change used the phrase ``40 CFR part 264
Subpart S,'' which includes the provisions for staging piles, so no
additional conforming changes to Sec. 264.3 are necessary.
The conforming change to Sec. 268.2(c) is a change to the
definition of land disposal. Because placement in a staging pile does
not constitute land disposal, it is necessary to make that clear in the
definition of land disposal. EPA made the same change for CAMUs in the
February 16, 1993 CAMU rule. The new language changes the definition to
read that ``land disposal means placement in or on the land, except in
a corrective action management unit or staging pile.'' For further
discussion of the applicability of land disposal restrictions to
staging piles, see the staging piles of today's preamble.
The conforming change to Sec. 268.50(g) makes it clear that storage
in a staging pile is not prohibited under the part 268 Subpart E
prohibitions on storage. A full discussion of this change can be found
in the staging piles of today's preamble.
The changes to Sec. 270.11(d) in today's rule offer an alternative
certification for land owners applying for a RAP at a remediation waste
management site. A full discussion of this change can be found in the
preamble discussion of Sec. 270.82(a) in today's preamble.
The changes to Appendix I of Sec. 270.42 specify which type (Class
1, 2, or 3) of permit modification is necessary for using staging piles
at closing facilities and for approval of staging piles or operating
term extensions at corrective action facilities. Both of these
activities require a Class 2 permit modification. This decision is
discussed further in the staging pile of today's preamble.
XIII. How Does Today's Rule Relate to Other EPA Regulations,
Initiatives and Programs?
A. Subpart S Initiative
EPA expects today's rule to complement activities being done under
the Subpart S Initiative. The Subpart S initiative is an effort to
identify and implement broad-based improvements to the corrective
action program, drawing upon more than ten years of experience in
program implementation. The Subpart S Initiative addresses such issues
as corrective action program priorities, use of administrative
flexibility in implementing corrective action, and development of
guidance and regulations for setting site-specific conditions in
permits and orders for investigating and remediating releases. The May
1, 1996 Advance Notice of Proposed Rulemaking (61 FR 19432) describes
the Subpart S Initiative in detail. Because the HWIR-media regulations
specifically address the management of remediation waste during site
clean up, they complement the broader Subpart S Initiative.
B. Suspension of the Toxicity Characteristic for Non-UST Petroleum
Contaminated Media and Debris
EPA had hoped that the more comprehensive reforms proposed in the
HWIR-media proposal would sufficiently address the issues raised in the
``Suspension of the Toxicity Characteristic for Non-UST Petroleum
Contaminated Media and Debris'' proposal. This proposal, generally
referred to as the ``Non-UST TC Suspension,'' was published on December
24, 1992 (57 FR 61542). EPA never finalized the Non-UST Suspension, but
stated in the HWIR-media proposal that finalization would not likely be
necessary because a final HWIR-media rule would solve the problems that
the Non-UST TC Suspension was intended to address. However, especially
in light of the more limited changes included in today's final rule,
EPA recognizes that additional reform may be needed for the cleanup of
non-UST petroleum contaminated media and debris.
States have developed petroleum response programs to respond to
petroleum contamination including contaminated media and debris.
[[Page 65932]]
However, as stated by many States with these programs, if the wastes
must be managed as RCRA hazardous because they fail the TCLP test for
benzene (as is sometimes the case), then the applicable Subtitle C
requirements such as LDR, MTR and permitting delay the response
actions, significantly increase costs, and in some cases may act as a
disincentive to full cleanup. If remediation wastes, including
petroleum contaminated media and debris, had been excluded under either
the Bright Line or Unitary Approaches proposed in the HWIR-media
proposal, then those State programs may have been able to conduct
responses as they had planned, and the Non-UST TC Suspension may have
no longer been needed. However, today's HWIR-media rule does not
exclude any wastes from Subtitle C requirements, and although EPA is
streamlining the permitting process, it is still time consuming in
comparison to the fast response times needed by these State petroleum
response programs. EPA will continue to review the issues addressed in
the Non-UST TC Suspension proposal (and subsequently raised in comments
received on the proposed HWIR-media rule); however, the Agency is not
taking final action today on that proposal.
C. Deferral of Petroleum-Contaminated Media and Debris from Underground
Storage Tank Corrective Actions
Today's rule does not affect the temporary deferral from certain
portions of EPA's hazardous waste regulations of petroleum-contaminated
media and debris that are generated from underground storage tank
corrective actions that are subject to Subtitle I of RCRA. This UST
deferral was published on March 29, 1990 (55 FR 11862), and amended
later on June 29, 1990 (55 FR 26986). The deferral appears at 40 CFR
part 261.4(b)(10).
D. Hazardous Waste Identification Rule (HWIR-waste) (May 20, 1992, and
December 21, 1995)
Although today's rule and the HWIR-waste rule are often discussed
together, they are two separate rulemaking efforts on separate
schedules. Today's rule does not address, in any way, the key issue of
the HWIR-waste rule, which is at what point wastes and media should
exit the Subtitle C regulatory system. EPA will sign a new proposal for
HWIR-waste by October 31, 1999 and a final rule by April 30, 2001.
E. CERCLA
EPA expects that the provisions in today's rule applicable to
staging piles will provide the CERCLA program with more flexibility at
CERCLA sites where these provisions are ARARs. EPA does not expect the
new RAP provisions to have any effect on CERCLA sites, because CERCLA
sites do not require permits for on-site management of remediation
wastes. Likewise, because the dredged sediments exclusion will not
alter current practice significantly, EPA does not expect significant
impact from the new dredged material provisions on the CERCLA program.
Finally, today's streamlined State authorization procedures will have
no effect on the CERCLA program. In summary, EPA anticipates some
positive effect on the CERCLA programs from staging piles, but little
or no effect on the CERCLA program from the other provisions of HWIR-
media.
F. Legislative Reforms
While EPA believes today's rule will improve remediation waste
management and expedite cleanups, the Agency also recognizes that
additional reform is needed, especially for management of non-media
remediation wastes, such as remedial sludges, and to provide for more
tailored land disposal requirements, minimum technological
requirements, and address certain statutory permitting requirements.
The Agency considers today's rule to be a partial step, rather than a
full solution to the problems raised by the application of RCRA
Subtitle C requirements to remediation wastes. The Agency will continue
to participate in discussions on potential legislation to promote this
additional needed reform. If legislation is not forthcoming, the Agency
may reexamine its approach to remediation waste management and may take
additional administrative action.
G. Brownfields
Today's rule complements EPA's continuing efforts to address
Brownfields properties. The Agency defines Brownfields as abandoned,
idled, or under-used industrial and commercial facilities where
expansion or redevelopment is complicated by real or perceived
environmental contamination. In February 1995, EPA announced its
Brownfields Action Agenda, launching the first Federal effort of its
kind designed to empower States, tribes, communities, and other parties
to safely clean up, reuse, and return Brownfields to productive use. In
1997, to broaden the mandate of the original agenda, EPA initiated the
Brownfields National Partnership Agenda, involving nearly 20 other
Federal agencies in Brownfields cleanup and reuse. Since the 1995
announcement, EPA has funded Brownfield pilots and reduced barriers to
cleanup and redevelopment by clarifying environmental liability issues,
developing partnerships with interested stakeholders, and stressing the
importance of environmental workforce training.
As the Agency's Brownfield activities have increased, EPA and
stakeholders have recognized that the statutory and regulatory
hazardous waste management and permitting requirements under RCRA can
render the cleanup and reuse of Brownfields properties cost and time
prohibitive. In particular, certain RCRA requirements, written with
``end of pipe'' wastes in mind, may be unnecessarily burdensome when
applied to Brownfield cleanups. By streamlining the permitting process
and removing the requirement for facility-wide corrective action at
remediation-only facilities, today's rule should facilitate cleanup
activities. Reducing RCRA impediments to cleanup activities not only
addresses existing Brownfield sites by facilitating cleanups at these
sites, but also helps prevent the creation of future Brownfields by
encouraging proactive responses to site contamination during the
productive life of a facility.
H. Land Disposal Restrictions (Part 268)
EPA proposed revisions to the treatment standards for hazardous
contaminated soils first in the Phase II LDR rule, ``Land Disposal
Restrictions for Newly Identified and Listed Hazardous Wastes and
Hazardous Soils,'' 58 FR 48092, and again in the April 29, 1996 HWIR-
media proposal, 61 FR 18780. EPA finalized the soil treatment standards
in the final LDR Phase IV rule (63 FR 28556 (May 26, 1998).
XIV. When Will the Final HWIR-media Rule Become Effective?
Today's rule will become effective June 1, 1999.
XV. Regulatory Requirements
A. Assessment of Potential Costs and Benefits
1. Executive Order 12866
Under Executive Order 12866 (58 FR 51735, October 4, 1993), the
Agency must determine whether any proposed or final regulatory action
is ``significant'' and therefore, subject to Office of Management and
Budget (OMB) review and the requirements in the Executive Order. The
order defines ``significant regulatory action'' as one that is likely
to result in a rule that may:
[[Page 65933]]
(a) have an annual effect on the economy of $100 million or more,
or adversely affect, in a material way, the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
(b) create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(c) materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs, or the rights and obligations of
recipients thereof; or
(d) raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
The Agency has determined that today's final rule is a
``significant regulatory action'' because it raises ``novel legal or
policy issues'' as specified in (d) above. OPA has submitted this
action to OMB for review. Changes made in response to OMB suggestions
or recommendations are documented in the public record for this
rulemaking (see Docket # F-98-MHWF-FFFFF). The Agency has prepared an
economic assessment background document in support of today's final
rule which provides much greater detail than this preamble discussion
on the analysis of today's standards (``Economic Assessment of the
Final Hazardous Waste Identification Rule for Contaminated Media''). A
copy of that document can be found in the docket for today's rule; a
summary of this assessment is presented below.
2. Background
Today's rule addresses three main issues: dredged material
exclusion, staging piles, and remedial action plans (RAPs). Although
still believing there is a need for comprehensive regulatory reform of
remediation waste management requirements, the Agency has decided not
to go forward with the comprehensive regulatory changes which were
proposed in the April 29, 1996 HWIR-media Proposed Rule (61 FR 18780).
(Please see section II.E. for a full discussion of the basis for the
Agency's decision.) The economic assessment prepared in support of
today's rule addresses only the three main issues covered in the rule,
none of which were analyzed in the proposed rule economic assessment
due to their relatively small scale impacts compared with the other
proposed rule provisions. The response to comments document for today's
rule responds to comments received on the proposed rule economic
assessment, and is available in the docket for today's rule.
3. Need for Regulation
Today's rule provides relief from existing regulatory requirements
in three specific cases dealing with remediation and management of
wastes. The dredged material exclusion excludes from RCRA requirements
a portion of dredged material handled under CWA and MPRSA permits, and
thus provides clarity of regulatory jurisdiction and removes the
potential for duplicative effort. The staging pile provision allows for
temporary storage of remediation wastes in preparation for future
management. This temporary relief from the traditional requirements for
land placement provides potential cost savings and encourages
remediation of wastes. Additionally, the RAP provision allows for
remedial activities to occur under an expedited vehicle instead of the
customary RCRA permit requirements. Furthermore, use of this vehicle
does not invoke RCRA 3004(u) facility-wide corrective action
obligations; those facilities already under facility-wide corrective
action requirements which employ a RAP remain under these requirements.
Thus, today's rule represents a modest reform of the remediation waste
requirements, while maintaining protection of human health and the
environment.
4. Assessment of Potential Regulatory Costs
The economic assessment examines the cost impacts of the provisions
of today's rule. Benefits of the rule, in the form of human health and
environmental risk impacts, are not examined in this assessment. The
Agency believes, however, that these provisions will tend toward
greater protection of human health and the environment by promoting
more cleanups. Economic impacts to industries affected by today's rule
have not been estimated, as the rule provides an overall cost savings.
a. Methodology and Results for Estimating Regulatory Costs
i. Dredged Material Exclusion
The Agency did not assess impacts from the dredged material
exclusion in the proposed rule economic assessment, and provided a
qualitative assessment of the cost savings for this provision in the
final rule.
The Agency believes that this exclusion will result in minor
reductions of compliance costs with respect to current practices of
dredged material management. The Agency did not collect volume data on
dredged material management under RCRA. Therefore, no estimate of the
cost savings has been developed, although it is not expected to be
significant. In addition to the minor cost savings associated with this
provision, the exclusion may also decrease the potential for procedural
delays (caused by multiple permit applications) that delay timely waste
disposal.
ii. Staging Piles
The Agency did not assess the impacts of remediation piles (the
predecessor of staging piles in the proposed rule) in the proposed rule
economic assessment, and has not quantified the impacts from this
provision in today's final rule economic impact assessment. Because of
the narrow scope of the staging pile provisions and their significant
overlap with existing CAMU, temporary unit, and AOC provisions, the
Agency believes that this portion of the rule will likely have only
minor cost savings and economic impacts. As discussed earlier, in some
cases, staging piles may facilitate the short-term accumulation of
remediation wastes until a sufficient volume can be shipped to a
treatment or disposal facility or accumulated to implement cost-
effective on-site management. In these situations, the new provisions
will result in cost savings. The Agency, however, does not expect that
the use of staging piles will provide significant quantifiable cost
savings, and any savings realized must be evaluated in light of the
costs associated with obtaining staging pile approval (either through
an RCRA permit or a RAP). The staging pile provisions will, however,
not result in any increase in cost because their use is voluntary.
One alternative which the Agency has determined not to adopt in
today's final rule is to allow treatment in staging piles. Allowing
treatment would potentially increase the use of staging piles, making
them more beneficial in certain cases where a CAMU is not necessary for
disposal and a temporary unit does not provide enough management
flexibility. However, the Agency believes that these cases would be
relatively few, and that treatment is more appropriate in a CAMU, which
has design and operating standards to fit the requirements surrounding
treatment in a unit.
iii. Remediation Action Plans (RAPs)
This section of the preamble summarizes the methodology and results
for the cost assessment performed on the RAP provisions in today's
final rule. The Agency estimates
[[Page 65934]]
a total cost savings of between $5 million and $35 million per year for
the RAP provision. The Agency did not assess the impacts of RAPs in the
proposed rule economic assessment.
To evaluate this new provision, the Agency performed a quantitative
analysis focusing on the cost saving opportunities provided by RAPs to
unpermitted facilities which excavate contaminated media and send it
off-site for treatment. An additional savings is estimated to occur at
unpermitted facilities which are not currently undertaking remediation
due to requirements involved in RCRA permitting; however, this savings
has not been quantified.
Facilities permitted under RCRA, as well as interim status
facilities, are already under facility-wide corrective action
obligations, and would therefore be much less likely to shift to use of
RAPs given the relatively minor incremental savings of using a RAP over
obtaining a permit modification. Therefore, unpermitted facilities,
mainly from State and voluntary cleanups, were examined for a cost
savings impact from the RAP provisions. To calculate this savings, the
Agency: (1) Estimated the total number of unpermitted facilities
currently sending remediation waste off site in the baseline; (2)
determined the number of facilities in this group which will shift
current practices to take advantage of the RAP provision (that is, will
shift to on-site treatment); (3) projected an incremental cost savings
for this shift; and (4) applied it to the number of facilities
determined to shift to estimate the total cost savings for that group.
The cost savings was quantified as the reduction in transportation
costs for facilities which are estimated to no longer ship waste off-
site for treatment, and the reduction in treatment costs for those
facilities projected to shift from off-site ex-situ treatment in the
baseline to on-site in-situ treatment in the post-regulatory case. The
Agency estimated the number of States which already have permit-waiver
authority, and thus where the RAP provision is less likely to have a
significant impact; this figure was employed in determining the number
of facilities likely to be impacted.
The total number of facilities estimated to shift to use of RAPs is
between seven and 66 facilities, all of which currently (in the
baseline) treat excavated contaminated media off-site. The total cost
savings estimated for this group is between $5 million and $35 million
per year.
B. Executive Order 12898: Environmental Justice
Under Executive Order 12898, ``Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income
Populations,'' as well as through EPA's April 1995, ``Environmental
Justice Strategy, OSWER Environmental Justice Task Force Action Agenda
Report,'' and National Environmental Justice Advisory Council, EPA has
undertaken incorporation of environmental justice into its policies and
programs. EPA is committed to addressing environmental justice concerns
and is assuming a leadership role in environmental justice initiatives
to enhance environmental quality for all residents of the United
States. The Agency's goals are to ensure that no segment of the
population, regardless of race, color, national origin, or income bears
disproportionately high and adverse human health and environmental
effects as a result of EPA's policies, programs, and activities, and
all people live in clean and sustainable communities. To address this
goal, EPA considered the impacts of the HWIR-media final rule on low-
income populations and minority populations.
EPA has concluded that today's final rule will potentially advance
environmental justice causes. The HWIR-media final rule will
potentially assist in expediting site cleanups across the nation by
reducing the need for time-consuming permitting of on-site cleanup
activities, increasing the flexibility of decision-makers to respond to
site-specific conditions, and lessening administrative and regulatory
complications and delays. This may free remediation resources to
address additional sites. By encouraging excavation of contaminated
media, the HWIR-media final rule will expedite the restoration of sites
and lead to their beneficial use, which may result in new jobs and
increased economic activity in low-income or minority communities. This
economic activity could take the form of increased employment of local
community members at the cleanup sites; the sale and redevelopment of
sites for new economic activities; and new beneficial uses for
remediated properties, such as parks, transportation facilities, and
even hospitals.
C. Unfunded Mandates Reform Act
The Agency also evaluated the final HWIR-media rule for compliance
with the Unfunded Mandates Reform Act of 1995. Title II of the Unfunded
Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes
requirements for Federal agencies to assess the effects of their
regulatory actions on State, Local, and Tribal governments and the
private sector. Under section 202 of the UMRA, EPA generally must
prepare a written statement, including a cost-benefit analysis, for
proposed and final rules with ``Federal Mandates'' that may result in
expenditures to State, Local, and Tribal governments, in the aggregate
or to the private sector, of $100 million or more in one year. Before
promulgating a rule for which a written statement is needed, section
205 of the UMRA generally requires EPA to identify and consider a
reasonable number of regulatory alternatives and adopt the least
costly, most cost-effective or least burdensome alternative that
achieves the objectives of the rule. The provisions of section 205 do
not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including Tribal governments, it must have developed under
section 203 of the UMRA a small government Agency plan. The plan must
provide for notifying potentially affected small governments, enabling
officials of affected small governments to have meaningful and timely
input in the development of EPA regulatory proposals with significant
Federal intergovernmental mandates, and informing, educating, and
advising small governments on compliance with the regulatory
requirements.
Today's rule contains no Federal mandates (under the regulatory
provisions of Title II of the UMRA) for State, Local, or Tribal
governments or the private sector because the UMRA generally excludes
from the definition of ``Federal intergovernmental mandate'' duties
that arise from participation in a voluntary Federal program. HWIR-
media is a voluntary program as it applies to State, Local, and Tribal
governments. In addition, promulgation of the HWIR-media rule, because
it is considered less stringent than current requirements, is not
expected to result in mandated costs estimated at $100 million or more
to any State, Local, or Tribal governments, in any one year. Thus,
today's proposal is not subject to the requirements in sections 202 and
205 of the UMRA. Finally, EPA has determined that the proposed HWIR-
media rule contains no regulatory
[[Page 65935]]
requirements that might significantly or uniquely affect small
governments, and thus is not subject to the requirements in section 203
of the UMRA. Specifically, the program is generally less stringent than
the existing program and makes no distinctions between small
governments and any potentially regulated party.
D. Executive Order 12875: Enhancing the Intergovernmental Partnership
Under Executive Order 12875, EPA may not issue a regulation that is
not required by statute and that creates a mandate upon a State, local
or tribal government, unless the Federal government provides the funds
necessary to pay the direct compliance costs incurred by those
governments. If EPA complies by consulting, Executive Order 12875
requires EPA to provide to the Office of Management and Budget a
description of the extent of EPA's prior consultation with
representatives of affected State, local and tribal governments, the
nature of their concerns, copies of any written communications from the
governments, and a statement supporting the need to issue the
regulation. In addition, Executive Order 12875 requires EPA to develop
an effective process permitting elected officials and other
representatives of State, local and tribal governments ``to provide
meaningful and timely input in the development of regulatory proposals
containing significant unfunded mandates.''
This rule does not create a mandate on State, local or tribal
governments. The rule does not impose any enforceable duties on these
entities. It provides more flexibility for States to implement already-
existing requirements.
E. Regulatory Flexibility Act
Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601 et seq.,
as amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996) at the time the Agency publishes a proposed or final
rule, it must prepare and make available for public comment a
Regulatory Flexibility Analysis that describes the effect of the rule
on small entities. However, no regulatory flexibility analysis is
required if the Administrator certifies the rule will not have a
significant adverse impact on a substantial number of small entities.
The following discussion explains EPA's determination.
The Agency has determined that today's final rule will not have a
significant adverse economic impact on a substantial number of small
entities, because the rule is estimated to provide regulatory relief,
and will not impose any costs on the regulated community. (For the
analysis of impacts showing the relief nature of today's rule, see the
above economic assessment.) Therefore, no RFA has been prepared. Based
on the foregoing discussion, I hereby certify that this rule will not
have a significant adverse economic impact on a substantial number of
small entities.
F. Paperwork Reduction Act
The information collection requirements in this rule will be
submitted for approval to the Office of Management and Budget (OMB)
under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. An
Information Collection Request (ICR) document has been prepared by EPA
(ICR No. 1775.02) and a copy may be obtained from Sandy Farmer by mail
at OPPE Regulatory Information Division; U.S. Environmental Protection
Agency (2137); 401 M St., SW.; Washington, DC 20460, by e-mail at
farmer.sandy@epamail.epa.gov, or by calling (202) 260-2740. A copy may
also be downloaded off the Internet at http://www.epa.gov/icr. The
information requirements are not effective until OMB approves them.
The Agency has estimated the burden associated with complying with
the requirements in this proposed rule. Included in the ICR are the
burden estimates for the following requirements for industry
respondents: reading the regulations; for staging piles, applying,
keeping records, requesting extensions, closing, and incorporating into
permits; for general facility standards for remediation waste
management sites, obtaining an EPA identification number, performing
waste analysis, demonstrations for locating units in floodplains, and
contingency and emergency plans; for RAPs at permitted facilities, the
permit modification procedures; and finally, for RAP applicants, the
data in the RAP application, transfer of facility ownership, and
recordkeeping. Included also are the burden estimates for State
respondents for applying for abbreviated State authorization.
The Agency has determined that all of this information is necessary
to ensure compliance with today's rule. Specifically, the information
for staging piles is required to ensure that the design and operating
of staging piles will comply with all applicable regulations and will
be protective of human health and the environment, to ensure that
staging piles are operated within the two year limit, to ensure that
any requested extensions are necessary and will not threaten human
health and the environment, to ensure that staging piles are closed
according to the applicable regulations, and finally, to ensure that
permits are modified appropriately. The information for general
facility standards is necessary to ensure consistent and coordinated
identification of the site, to have adequate knowledge of the waste
being managed to ensure the appropriate waste management requirements
are complied with, and to be adequately prepared for contingencies and
emergencies. The information for RAPs is necessary to determine whether
the remediation waste management activities will comply with the
applicable regulatory requirements, to ensure smooth transfer of
facility ownership, and to ensure that facility owners and operators
have access to all relevant information regarding their RAP
application. The information for State respondents seeking
authorization is necessary to verify legal authorities and confirm that
the State requirements are no less stringent than Federal law.
All of the information required under today's rule is required only
when the respondent wishes to obtain a benefit such as a staging pile,
a RAP, or State authorization. Provisions already exist, such as other
units in part 264, and traditional RCRA permits whereby respondents
could perform the same functions allowed in staging piles and RAPs,
except that staging piles and RAPs may be more desirable because they
are more flexible and more appropriate for the cleanup scenario, so
respondents may voluntarily choose to obtain staging piles and RAPs
instead of other options, but they are not required to. Also, because
today's rule is less stringent than the existing RCRA regulations, it
is optional for States to adopt and seek authorization for this rule.
Therefore, States could choose not to adopt today's rule.
Section 3007(b) of RCRA and 40 CFR part 2, Subpart B, which define
EPA's general policy on the public disclosure of information, contain
provisions for confidentiality and apply to today's rulemaking.
EPA has tried to minimize the burden of this collection of
information in respondents. The universe of respondents is expected to
be sites conducting cleanup under State and Federal cleanup programs.
EPA expects that the industries most likely to be affected by these
requirements will be associated with the following SIC codes:
SIC Code Industry
2491 Wood preserving
2812 Alkalies and chlorine
2819, 2869 Industrial organic chemicals
[[Page 65936]]
2821 Plastics materials and resins
2879 Agricultural chemicals
2899 Chemical preparations
2911 Petroleum refining
3000 Rubber and miscellaneous plastics products
3089 Plastics products
3229 Pressed and blown glass
3316 Cold finishing of steel shapes
3339 Primary nonferrous metals
3341 Secondary nonferrous metals
3470 Metal services
3480, 3489 Ordnance and accessories
3482 Small arms ammunition
3568 General industrial machinery
3662 Communications equipment
3674 Semiconductors and related devices
3691 Storage batteries
3728 Aircraft parts and equipment
3764 Space propulsion units and parts
3792 Travel trailers and campers
3820 Measuring and controlling devices
3840 Medical instruments and supplies
4230 Trucking terminal facilities
4581 Airports, flying fields, and services
4953 Refuse systems
7210 Laundry, cleaning, and garment services
8221 Colleges and universities
9711 National security
EPA estimates the projected annual hour burden for industry
respondents will be 33,733 hours, and cost of $1,967,699. Total
estimates over three years are 101,199 hours and $5,903,097. EPA
estimates that State agency respondent will incur a total annual burden
of 886 hours and $22,410, which over three years would be 2,658 hours
and $67,230. EPA estimates that the annual Agency burden will be 5,726
hours and $176,899, which over three years would be 17,178 hours and
$530,697. As subsets of the above total costs, EPA estimates no annual
capital costs, and annual operation and maintenance costs for staging
piles and RAPs of $49,902, and for State authorization of $54. As a
subset of operation and maintenance, EPA estimates $750 each time a
responder purchases services for waste analysis, for a total of
$65,472. This is the only area where EPA expects purchase of services.
For complying with the requirements in the HWIR-media rule,
industry respondents are expected to spend an average of 13.7 hours per
year on recordkeeping requirements and 5.0 hours per year on reporting
requirements. State agency respondents are expected to spend no time on
recordkeeping, as there are no recordkeeping requirements for the
States, and 16.4 hours per year on reporting requirements.
EPA estimates that 1,805 sites are eligible for RAPs and staging
piles, and are assumed by EPA to be the universe of potential
responders. These 1,805 potential responders are expected to read the
regulations. EPA estimates that 90 responders per year will use staging
piles, and 66 responders per year will use RAPs. EPA estimates that 18
States per year will apply for authorization. Responders will only need
to respond once for each activity for staging piles, RAPs, or State
authorization.
Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a Federal agency. This includes the time
needed to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements;
train personnel to be able to respond to a collection of information;
search data sources; complete and review the collection of information;
and transmit or otherwise disclose the information.
An Agency may not conduct or sponsor, and a person is not required
to respond to a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations are listed in 40 CFR part 9 and 48 CFR chapter 15.
Send comments on the Agency's need for this information, the
accuracy of the provided burden estimates, and any suggested methods
for minimizing respondent burden, including through the use of
automated collection techniques to the Director, OPPE Regulatory
Information Division; U.S. Environmental Protection Agency (2137); 401
M St., SW.; Washington, DC 20460; and to the Office of Information and
Regulatory Affairs, Office of Management and Budget, 725 17th St., NW.,
Washington, DC 20503, marked ``Attention: Desk Officer for EPA.''
Comments are requested by December 30, 1998. Include the ICR number in
any correspondence.
G. National Technology Transfer and Advancement Act
Under section 12(d) of the National Technology Transfer and
Advancement Act, the Agency is directed to use voluntary consensus
standards in its regulatory activities unless to do so would be
inconsistent with applicable law or otherwise impractical. Voluntary
consensus standards are technical standards (for example, materials
specifications, test methods, sampling procedures, business practices,
etc.) that are developed or adopted by voluntary consensus standard
bodies. Where available and potentially applicable voluntary consensus
standards are not used by EPA, the Act requires the Agency to provide
Congress, through the Office of Management and Budget, an explanation
of the reasons for not using these standards.
EPA is not proposing any new test methods or other technical
standards as part of today's final rule. Thus, the Agency has no need
to consider the use of voluntary consensus standards in developing this
proposed rule.
H. Submission to Congress and the General Accounting Office
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A Major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
I. Executive Order 13045: Protection of Children from Environmental
Health Risks and Safety Risks
Executive Order 13045, entitled ``Protection of Children from
Environmental Health Risks and Safety Risks'' (see 62 FR 19885, April
23, 1997) applies to any rule that EPA determines: (1) is
``economically significant'' as defined under Executive Order 12866,
and (2) the environmental health or safety risk addressed by the rule
has a disproportionate effect on children. If the regulatory action
meets both criteria, the Agency must evaluate the environmental health
or safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency.
This final rule is not subject to E.O. 13045 because this is not an
``economically significant'' regulatory action as defined by E.O.
12866.
J. Executive Order 13084: Consultation and Coordination with Indian
Tribal Governments
Under Executive Order 13084, EPA may not issue a regulation that is
not
[[Page 65937]]
required by statute, that significantly or uniquely affects the
communities of Indian tribal governments, and that imposes substantial
direct compliance costs on those communities, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by the tribal governments, or EPA consults with those
governments. If EPA complies by consulting, Executive Order 13084
requires EPA to provide to the Office of Management and Budget, in a
separately identified of the preamble to the rule, a description of the
extent of EPA's prior consultation with representatives of affected
tribal governments, a summary of the nature of their concerns, and a
statement supporting the need to issue the regulation. In addition,
Executive Order 13084 requires EPA to develop an effective process
permitting elected and other representatives of Indian tribal
governments ``to provide meaningful and timely input in the development
of regulatory policies on matters that significantly or uniquely affect
their communities.''
Today's rule does not significantly or uniquely affect the
communities of Indian tribal governments. In addition, this rule
imposes no new requirements on owners and operators, but rather, allow
flexibility to regulators to implement requirements already in place.
Accordingly, the requirements in 3(b) of Executive Order 13084 do not
apply to this rule.
List of Subjects
40 CFR Part 260
Environmental protection, Administrative practice and procedure,
Confidential business information, Hazardous waste, Reporting and
recordkeeping requirements.
40 CFR Part 261
Hazardous waste, Recycling, Reporting and recordkeeping
requirements.
40 CFR Parts 264 and 265
Air pollution control, Hazardous waste, Insurance, Packaging and
containers, Reporting and recordkeeping requirements, Security
measures, Surety bonds.
40 CFR Part 268
Hazardous waste, Reporting and recordkeeping requirements.
40 CFR Part 270
Administrative practice and procedure, Confidential business
information, Hazardous materials transportation, Hazardous waste,
Reporting and recordkeeping requirements, Water pollution control,
Water supply.
40 CFR Part 271
Administrative practice and procedure, Confidential business
administration, Hazardous materials transportation, Hazardous waste,
Indians-lands, Intergovernmental relations, Penalties, Reporting and
recordkeeping requirements, Water pollution control, Water supply.
Authority: 42 U.S.C. 6912(a), 6921, 6924, 6926, and 6927.
Dated: November 2, 1998.
Carol M. Browner,
Administrator.
For the reasons set out in the preamble, title 40, chapter I of the
Code of Federal Regulations is amended as follows:
PART 260--HAZARDOUS WASTE MANAGEMENT SYSTEM: GENERAL
1. The authority citation for part 260 continues to read as
follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921-6927, 6930, 6934, 6935,
6937, 6938, 6939, and 6974.
2. Section 260.10 is amended by revising the introductory text; by
removing the definition for ``Corrective action management unit or
CAMU'; by revising the definitions for ``Miscellaneous unit'' and
``Remediation waste''; by adding paragraph (3) to the definition of
``Facility''; and by adding definitions in alphabetical order for
``Corrective action management unit (CAMU),'' ``Remediation waste
management site'' and ``Staging pile'' to read as follows:
Sec. 260.10 Definitions.
When used in parts 260 through 273 of this chapter, the following
terms have the meanings given below:
* * * * *
Corrective action management unit (CAMU) means an area within a
facility that is used only for managing remediation wastes for
implementing corrective action or cleanup at the facility.
* * * * *
Facility * * *
(3) Notwithstanding paragraph (2) of this definition, a remediation
waste management site is not a facility that is subject to 40 CFR
264.101, but is subject to corrective action requirements if the site
is located within such a facility.
* * * * *
Miscellaneous unit means a hazardous waste management unit where
hazardous waste is treated, stored, or disposed of and that is not a
container, tank, surface impoundment, pile, land treatment unit,
landfill, incinerator, boiler, industrial furnace, underground
injection well with appropriate technical standards under part 146 of
this chapter, containment building, corrective action management unit,
unit eligible for a research, development, and demonstration permit
under 40 CFR 270.65, or staging pile.
* * * * *
Remediation waste means all solid and hazardous wastes, and all
media (including groundwater, surface water, soils, and sediments) and
debris that contain listed hazardous wastes or that themselves exhibit
a hazardous characteristic and are managed for implementing cleanup.
Remediation waste management site means a facility where an owner
or operator is or will be treating, storing or disposing of hazardous
remediation wastes. A remediation waste management site is not a
facility that is subject to corrective action under 40 CFR 264.101, but
is subject to corrective action requirements if the site is located in
such a facility.
* * * * *
Staging pile means an accumulation of solid, non-flowing
remediation waste (as defined in this section) that is not a
containment building and that is used only during remedial operations
for temporary storage at a facility. Staging piles must be designated
by the Director according to the requirements of 40 CFR 264.554.
* * * * *
PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE
3. The authority citation for part 261 continues to read as
follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, 6924(y) and
6938.
4. Section 261.4 is amended by adding paragraph (g) to read as
follows:
Sec. 261.4 Exclusions.
* * * * *
(g) Dredged material that is not a hazardous waste. Dredged
material that is subject to the requirements of a permit that has been
issued under 404 of the Federal Water Pollution Control Act (33
U.S.C.1344) or section 103 of the Marine Protection, Research, and
Sanctuaries Act of 1972 (33 U.S.C. 1413) is not a hazardous waste. For
this paragraph (g), the following definitions apply:
(1) The term dredged material has the same meaning as defined in 40
CFR 232.2;
(2) The term permit means:
[[Page 65938]]
(i) A permit issued by the U.S. Army Corps of Engineers (Corps) or
an approved State under section 404 of the Federal Water Pollution
Control Act (33 U.S.C. 1344);
(ii) A permit issued by the Corps under section 103 of the Marine
Protection, Research, and Sanctuaries Act of 1972 (33 U.S.C. 1413); or
(iii) In the case of Corps civil works projects, the administrative
equivalent of the permits referred to in paragraphs (g)(2)(i) and (ii)
of this section, as provided for in Corps regulations (for example, see
33 CFR 336.1, 336.2, and 337.6).
PART 264--STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE
TREATMENT, STORAGE, AND DISPOSAL FACILITIES
5. The authority citation for part 264 continues to read as
follows:
Authority: 42 U.S.C. 6905, 6912(a), 6924, and 6925.
6. Section 264.1 is amended by adding new paragraph (j) to read as
follows:
Sec. 264.1 Purpose, scope and applicability.
* * * * *
(j) The requirements of subparts B, C, and D of this part and
Sec. 264.101 do not apply to remediation waste management sites.
(However, some remediation waste management sites may be a part of a
facility that is subject to a traditional RCRA permit because the
facility is also treating, storing or disposing of hazardous wastes
that are not remediation wastes. In these cases, Subparts B, C, and D
of this part, and Sec. 264.101 do apply to the facility subject to the
traditional RCRA permit.) Instead of the requirements of subparts B, C,
and D of this part, owners or operators of remediation waste management
sites must:
(1) Obtain an EPA identification number by applying to the
Administrator using EPA Form 8700-12;
(2) Obtain a detailed chemical and physical analysis of a
representative sample of the hazardous remediation wastes to be managed
at the site. At a minimum, the analysis must contain all of the
information which must be known to treat, store or dispose of the waste
according to this part and part 268 of this chapter, and must be kept
accurate and up to date;
(3) Prevent people who are unaware of the danger from entering, and
minimize the possibility for unauthorized people or livestock to enter
onto the active portion of the remediation waste management site,
unless the owner or operator can demonstrate to the Director that:
(i) Physical contact with the waste, structures, or equipment
within the active portion of the remediation waste management site will
not injure people or livestock who may enter the active portion of the
remediation waste management site; and
(ii) Disturbance of the waste or equipment by people or livestock
who enter onto the active portion of the remediation waste management
site, will not cause a violation of the requirements of this part;
(4) Inspect the remediation waste management site for malfunctions,
deterioration, operator errors, and discharges that may be causing, or
may lead to, a release of hazardous waste constituents to the
environment, or a threat to human health. The owner or operator must
conduct these inspections often enough to identify problems in time to
correct them before they harm human health or the environment, and must
remedy the problem before it leads to a human health or environmental
hazard. Where a hazard is imminent or has already occurred, the owner/
operator must take remedial action immediately;
(5) Provide personnel with classroom or on-the-job training on how
to perform their duties in a way that ensures the remediation waste
management site complies with the requirements of this part, and on how
to respond effectively to emergencies;
(6) Take precautions to prevent accidental ignition or reaction of
ignitable or reactive waste, and prevent threats to human health and
the environment from ignitable, reactive and incompatible waste;
(7) For remediation waste management sites subject to regulation
under subparts I through O and subpart X of this part, the owner/
operator must design, construct, operate, and maintain a unit within a
100-year floodplain to prevent washout of any hazardous waste by a 100-
year flood, unless the owner/operator can meet the demonstration of
Sec. 264.18(b);
(8) Not place any non-containerized or bulk liquid hazardous waste
in any salt dome formation, salt bed formation, underground mine or
cave;
(9) Develop and maintain a construction quality assurance program
for all surface impoundments, waste piles and landfill units that are
required to comply with Secs. 264.221(c) and (d), 264.251(c) and (d),
and 264.301(c) and (d) at the remediation waste management site,
according to the requirements of Sec. 264.19;
(10) Develop and maintain procedures to prevent accidents and a
contingency and emergency plan to control accidents that occur. These
procedures must address proper design, construction, maintenance, and
operation of remediation waste management units at the site. The goal
of the plan must be to minimize the possibility of, and the hazards
from a fire, explosion, or any unplanned sudden or non-sudden release
of hazardous waste or hazardous waste constituents to air, soil, or
surface water that could threaten human health or the environment. The
plan must explain specifically how to treat, store and dispose of the
hazardous remediation waste in question, and must be implemented
immediately whenever a fire, explosion, or release of hazardous waste
or hazardous waste constituents which could threaten human health or
the environment;
(11) Designate at least one employee, either on the facility
premises or on call (that is, available to respond to an emergency by
reaching the facility quickly), to coordinate all emergency response
measures. This emergency coordinator must be thoroughly familiar with
all aspects of the facility's contingency plan, all operations and
activities at the facility, the location and characteristics of waste
handled, the location of all records within the facility, and the
facility layout. In addition, this person must have the authority to
commit the resources needed to carry out the contingency plan;
(12) Develop, maintain and implement a plan to meet the
requirements in paragraphs (j)(2) through (j)(6) and (j)(9) through
(j)(10) of this section; and
(13) Maintain records documenting compliance with paragraphs (j)(1)
through (j)(12) of this section.
7. Section 264.73 is amended by adding paragraph (b)(17) to read as
follows:
Sec. 264.73 Operating record.
* * * * *
(b) * * *
(17) Any records required under Sec. 264.1(j)(13).
8. Section 264.101 is amended by adding paragraph (d) to read as
follows:
Sec. 264.101 Corrective action for solid waste management units.
* * * * *
(d) This does not apply to remediation waste management sites
unless they are part of a facility subject to a permit for treating,
storing or disposing of hazardous wastes that are not remediation
wastes.
[[Page 65939]]
9. Section 264.552 is amended by revising paragraph (a) to read as
follows:
Sec. 264.552 Corrective Action Management Units (CAMU).
(a) To implement remedies under Sec. 264.101 or RCRA 3008(h), or to
implement remedies at a permitted facility that is not subject to
Sec. 264.101, the Regional Administrator may designate an area at the
facility as a corrective action management unit, as defined in
Sec. 260.10, under the requirements in this section. A CAMU must be
located within the contiguous property under the control of the owner/
operator where the wastes to be managed in the CAMU originated. One or
more CAMUs may be designated at a facility.
(1) Placement of remediation wastes into or within a CAMU does not
constitute land disposal of hazardous wastes.
(2) Consolidation or placement of remediation wastes into or within
a CAMU does not constitute creation of a unit subject to minimum
technology requirements.
* * * * *
10. Section 264.553 is amended by revising paragraph (a) to read as
follows:
Sec. 264.553 Temporary Units (TU).
(a) For temporary tanks and container storage areas used to treat
or store hazardous remediation wastes during remedial activities
required under Sec. 264.101 or RCRA 3008(h), or at a permitted facility
that is not subject to Sec. 264.101, the Regional Administrator may
designate a unit at the facility, as a temporary unit. A temporary unit
must be located within the contiguous property under the control of the
owner/operator where the wastes to be managed in the temporary unit
originated. For temporary units, the Regional Administrator may replace
the design, operating, or closure standard applicable to these units
under this part 264 or part 265 of this chapter with alternative
requirements which protect human health and the environment.
* * * * *
11. New Sec. 264.554 is added to subpart S to read as follows:
Sec. 264.554 Staging piles.
This section is written in a special format to make it easier to
understand the regulatory requirements. Like other Environmental
Protection Agency (EPA) regulations, this establishes enforceable legal
requirements. For this ``I'' and ``you'' refer to the owner/operator.
(a) What is a staging pile? A staging pile is an accumulation of
solid, non-flowing remediation waste (as defined in Sec. 260.10 of this
chapter) that is not a containment building and is used only during
remedial operations for temporary storage at a facility. A staging pile
must be located within the contiguous property under the control of the
owner/operator where the wastes to be managed in the staging pile
originated. Staging piles must be designated by the Director in
according to the requirements in this section.
(b) When may I use a staging pile? You may use a staging pile to
store hazardous remediation waste (or remediation waste otherwise
subject to land disposal restrictions) only if you follow the standards
and design criteria the Director has designated for that staging pile.
The Director must designate the staging pile in a permit or, at an
interim status facility, in a closure plan or order (consistent with
Sec. 270.72(a)(5) and (b)(5) of this chapter). The Director must
establish conditions in the permit, closure plan, or order that comply
with paragraphs (d) through (k) of this section.
(c) What information must I provide to get a staging pile
designated? When seeking a staging pile designation, you must provide:
(1) Sufficient and accurate information to enable the Director to
impose standards and design criteria for your staging pile according to
paragraphs (d) through (k) of this section;
(2) Certification by an independent, qualified, registered
professional engineer for technical data, such as design drawings and
specifications, and engineering studies, unless the Director
determines, based on information that you provide, that this
certification is not necessary to ensure that a staging pile will
protect human health and the environment; and
(3) Any additional information the Director determines is necessary
to protect human health and the environment.
(d) What performance criteria must a staging pile satisfy? The
Director must establish the standards and design criteria for the
staging pile in the permit, closure plan, or order.
(1) The standards and design criteria must comply with the
following:
(i) The staging pile must facilitate a reliable, effective and
protective remedy;
(ii) The staging pile must be designed so as to prevent or minimize
releases of hazardous wastes and hazardous constituents into the
environment, and minimize or adequately control cross-media transfer,
as necessary to protect human health and the environment (for example,
through the use of liners, covers, run-off/run-on controls, as
appropriate); and
(iii) The staging pile must not operate for more than two years,
except when the Director grants an operating term extension under
paragraph (i) of this section (entitled ``May I receive an operating
extension for a staging pile?''). You must measure the two-year limit,
or other operating term specified by the Director in the permit,
closure plan, or order, from the first time you place remediation waste
into a staging pile. You must maintain a record of the date when you
first placed remediation waste into the staging pile for the life of
the permit, closure plan, or order, or for three years, whichever is
longer.
(2) In setting the standards and design criteria, the Director must
consider the following factors:
(i) Length of time the pile will be in operation;
(ii) Volumes of wastes you intend to store in the pile;
(iii) Physical and chemical characteristics of the wastes to be
stored in the unit;
(iv) Potential for releases from the unit;
(v) Hydrogeological and other relevant environmental conditions at
the facility that may influence the migration of any potential
releases; and
(vi) Potential for human and environmental exposure to potential
releases from the unit;
(e) May a staging pile receive ignitable or reactive remediation
waste? You must not place ignitable or reactive remediation waste in a
staging pile unless:
(1) You have treated, rendered or mixed the remediation waste
before you placed it in the staging pile so that:
(i) The remediation waste no longer meets the definition of
ignitable or reactive under Sec. 261.21 or Sec. 261.23 of this chapter;
and
(ii) You have complied with Sec. 264.17(b); or
(2) You manage the remediation waste to protect it from exposure to
any material or condition that may cause it to ignite or react.
(f) How do I handle incompatible remediation wastes in a staging
pile? The term ``incompatible waste'' is defined in Sec. 260.10 of this
chapter. You must comply with the following requirements for
incompatible wastes in staging piles:
(1) You must not place incompatible remediation wastes in the same
staging pile unless you have complied with Sec. 264.17(b);
(2) If remediation waste in a staging pile is incompatible with any
waste or material stored nearby in containers,
[[Page 65940]]
other piles, open tanks or land disposal units (for example, surface
impoundments), you must separate the incompatible materials, or protect
them from one another by using a dike, berm, wall or other device; and
(3) You must not pile remediation waste on the same base where
incompatible wastes or materials were previously piled, unless the base
has been decontaminated sufficiently to comply with Sec. 264.17(b).
(g) Are staging piles subject to Land Disposal Restrictions (LDR)
and Minimum Technological Requirements (MTR)? No. Placing hazardous
remediation wastes into a staging pile does not constitute land
disposal of hazardous wastes or create a unit that is subject to the
minimum technological requirements of RCRA 3004(o).
(h) How long may I operate a staging pile? The Director may allow a
staging pile to operate for up to two years after hazardous remediation
waste is first placed into the pile. You must use a staging pile no
longer than the length of time designated by the Director in the
permit, closure plan, or order (the ``operating term''), except as
provided in paragraph (i) of this section.
(i) May I receive an operating extension for a staging pile? (1)
The Director may grant one operating term extension of up to 180 days
beyond the operating term limit contained in the permit, closure plan,
or order (see paragraph (l) of this section for modification
procedures). To justify to the Director the need for an extension, you
must provide sufficient and accurate information to enable the Director
to determine that continued operation of the staging pile:
(i) Will not pose a threat to human health and the environment; and
(ii) Is necessary to ensure timely and efficient implementation of
remedial actions at the facility.
(2) The Director may, as a condition of the extension, specify
further standards and design criteria in the permit, closure plan, or
order, as necessary, to ensure protection of human health and the
environment.
(j) What is the closure requirement for a staging pile located in a
previously contaminated area? (1) Within 180 days after the operating
term of the staging pile expires, you must close a staging pile located
in a previously contaminated area of the site by removing or
decontaminating all:
(i) Remediation waste;
(ii) Contaminated containment system components; and
(iii) Structures and equipment contaminated with waste and
leachate.
(2) You must also decontaminate contaminated subsoils in a manner
and according to a schedule that the Director determines will protect
human health and the environment.
(3) The Director must include the above requirements in the permit,
closure plan, or order in which the staging pile is designated.
(k) What is the closure requirement for a staging pile located in
an uncontaminated area? (1) Within 180 days after the operating term of
the staging pile expires, you must close a staging pile located in an
uncontaminated area of the site according to Secs. 264.258(a) and
264.111; or according to Secs. 265.258(a) and 265.111 of this chapter.
(2) The Director must include the above requirement in the permit,
closure plan, or order in which the staging pile is designated.
(l) How may my existing permit (for example, RAP), closure plan, or
order be modified to allow me to use a staging pile? (1) To modify a
permit, other than a RAP, to incorporate a staging pile or staging pile
operating term extension, either:
(i) The Director must approve the modification under the procedures
for Agency-initiated permit modifications in Sec. 270.41 of this
chapter; or
(ii) You must request a Class 2 modification under Sec. 270.42 of
this chapter.
(2) To modify a RAP to incorporate a staging pile or staging pile
operating term extension, you must comply with the RAP modification
requirements under Secs. 270.170 and 270.175 of this chapter.
(3) To modify a closure plan to incorporate a staging pile or
staging pile operating term extension, you must follow the applicable
requirements under Sec. 264.112(c) or Sec. 265.112(c) of this chapter.
(4) To modify an order to incorporate a staging pile or staging
pile operating term extension, you must follow the terms of the order
and the applicable provisions of Sec. 270.72(a)(5) or (b)(5) of this
chapter.
(m) Is information about the staging pile available to the public?
The Director must document the rationale for designating a staging pile
or staging pile operating term extension and make this documentation
available to the public.
PART 265--INTERIM STATUS STANDARDS FOR OWNERS AND OPERATORS OF
HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
12. The authority citation for part 265 continues to read as
follows:
Authority: 42 U.S.C. 6905, 6906, 6912, 6922, 6923, 6924, 6925,
6935, 6936 and 6937, unless otherwise noted.
Sec. 265.1 [Amended]
13. Section 265.1(b) is amended in the first sentence by revising
``, and of 40 CFR 264.552 and 40 CFR 264.553,'' to read ``, and of 40
CFR 264.552, 264.553, and 264.554,''.
PART 268--LAND DISPOSAL RESTRICTIONS
14. The authority citation for part 268 continues to read as
follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921, and 6924.
15. Section 268.2 is amended by revising paragraph (c) to read as
follows:
Sec. 268.2 Definitions applicable in this part.
* * * * *
(c) Land disposal means placement in or on the land, except in a
corrective action management unit or staging pile, and includes, but is
not limited to, placement in a landfill, surface impoundment, waste
pile, injection well, land treatment facility, salt dome formation,
salt bed formation, underground mine or cave, or placement in a
concrete vault, or bunker intended for disposal purposes.
* * * * *
16. Section 268.50 is amended by adding new paragraph (g) to read
as follows:
Sec. 268.50 Prohibitions on storage of restricted wastes.
* * * * *
(g) The prohibition and requirements in this do not apply to
hazardous remediation wastes stored in a staging pile approved pursuant
to Sec. 264.554 of this chapter.
PART 270--EPA ADMINISTERED PERMIT PROGRAMS: THE HAZARDOUS WASTE
PERMIT PROGRAM
17. The authority citation for part 270 continues to read as
follows:
Authority: 42 U.S.C. 6905, 6912, 6924, 6925, 6927, 6939, and
6974.
Subpart A--General Information
18. Section 270.2 is amended by adding a definition for ``Remedial
[[Page 65941]]
Action Plan (RAP)'' in alphabetical order to read as follows:
Sec. 270.2 Definitions.
* * * * *
Remedial Action Plan (RAP) means a special form of RCRA permit that
a facility owner or operator may obtain instead of a permit issued
under Secs. 270.3 through 270.66, to authorize the treatment, storage
or disposal of hazardous remediation waste (as defined in Sec. 260.10
of this chapter) at a remediation waste management site.
* * * * *
Subpart B--Permit Application
19. Section 270.11 is amended by revising paragraph (d) to read as
follows:
Sec. 270.11 Signatories to permit applications and reports.
* * * * *
(d)(1) Any person signing a document under paragraph (a) or (b) of
this must make the following certification:
I certify under penalty of law that this document and all
attachments were prepared under my direction or supervision
according to a system designed to assure that qualified personnel
properly gather and evaluate the information submitted. Based on my
inquiry of the person or persons who manage the system, or those
persons directly responsible for gathering the information, the
information submitted is, to the best of my knowledge and belief,
true, accurate, and complete. I am aware that there are significant
penalties for submitting false information, including the
possibility of fine and imprisonment for knowing violations.
(2) For remedial action plans (RAPs) under subpart H of this part,
if the operator certifies according to paragraph (d)(1) of this
section, then the owner may choose to make the following certification
instead of the certification in paragraph (d)(1) of this section:
Based on my knowledge of the conditions of the property
described in the RAP and my inquiry of the person or persons who
manage the system referenced in the operator's certification, or
those persons directly responsible for gathering the information,
the information submitted is, upon information and belief, true,
accurate, and complete. I am aware that there are significant
penalties for submitting false information, including the
possibility of fine and imprisonment for knowing violations.
Subpart D--Changes to Permits
20. Appendix I to Sec. 270.42 is amended by adding new modification
D.3.g. and new modification N.3. to read as follows:
Sec. 270.42 Permit modification at the request of the permittee.
* * * * *
------------------------------------------------------------------------
Modifications Class
------------------------------------------------------------------------
* * * * *
D. Closure
* * * * *
3. Addition of the following new units to be used temporarily
for closure activities:
* * * * *
g. Staging piles............................................. 2
* * * * *
N. Corrective Action:
* * * * *
3. Approval of a staging pile or staging pile operating term
extension pursuant to Sec. 264.554......................... 2
------------------------------------------------------------------------
Subpart F--Special Forms of Permits
21. A new Sec. 270.68 is added to subpart F to read as follows:
Sec. 270.68 Remedial Action Plans (RAPs).
Remedial Action Plans (RAPs) are special forms of permits that are
regulated under subpart H of this part.
Subpart G--Interim Status
22. Section 270.73 is amended by revising paragraph (a) to read as
follows:
Sec. 270.73 Termination of interim status.
* * * * *
(a) Final administrative disposition of a permit application,
except an application for a remedial action plan (RAP) under subpart H
of this part, is made.
* * * * *
23-24. A new Subpart H is added to Part 270 to read as follows:
Subpart H--Remedial Action Plans (RAPs)
Sec.
270.79 Why is this subpart written in a special format?
General Information
270.80 What is a RAP?
270.85 When do I need a RAP?
270.90 Does my RAP grant me any rights or relieve me of any
obligations?
Applying for a RAP
270.95 How do I apply for a RAP?
270.100 Who must obtain a RAP?
270.105 Who must sign the application and any required reports for
a RAP?
270.110 What must I include in my application for a RAP?
270.115 What if I want to keep this information confidential?
270.120 To whom must I submit my RAP application?
270.125 If I submit my RAP application as part of another document,
what must I do?
Getting a RAP Approved
270.130 What is the process for approving or denying my application
for a RAP?
270.135 What must the Director include in a draft RAP?
270.140 What else must the Director prepare in addition to the
draft RAP or notice of intent to deny?
0270.145 What are the procedures for public comment on the draft
RAP or notice of intent to deny?
270.150 How will the Director make a final decision on my RAP
application?
270.155 May the decision to approve or deny my RAP application be
administratively appealed?
270.160 When does my RAP become effective?
270.165 When may I begin physical construction of new units
permitted under the RAP?
How May My RAP be Modified, Revoked and Reissued, or Terminated?
270.170 After my RAP is issued, how may it be modified, revoked and
reissued, or terminated?
270.175 For what reasons may the Director choose to modify my final
RAP?
270.180 For what reasons may the Director choose to revoke and
reissue my final RAP?
270.185 For what reasons may the Director choose to terminate my
final RAP, or deny my renewal application?
270.190 May the decision to approve or deny a modification,
revocation and reissuance, or termination of my RAP be
administratively appealed?
270.195 When will my RAP expire?
270.200 How may I renew my RAP if it is expiring?
270.205 What happens if I have applied correctly for a RAP renewal
but have not received approval by the time my old RAP expires?
Operating Under Your RAP
270.210 What records must I maintain concerning my RAP?
270.215 How are time periods in the requirements in this Subpart
and my RAP computed?
270.220 How may I transfer my RAP to a new owner or operator?
270.225 What must the State or EPA Region report about
noncompliance with RAPs?
Obtaining a RAP for an Off-site Location
270.230 May I perform remediation waste management activities under
a RAP at a location removed from the area where the remediation
wastes originated?
Subpart H--Remedial Action Plans (RAPs)
Sec. 270.79 Why is this subpart written in a special format?
This subpart is written in a special format to make it easier to
understand the regulatory requirements. Like other
[[Page 65942]]
Environmental Protection Agency (EPA) regulations, this establishes
enforceable legal requirements. For this Subpart, ``I'' and ``you''
refer to the owner/operator.
General Information
Sec. 270.80 What is a RAP?
(a) A RAP is a special form of RCRA permit that you, as an owner or
operator, may obtain, instead of a permit issued under Secs. 270.3
through 270.66, to authorize you to treat, store, or dispose of
hazardous remediation waste (as defined in Sec. 260.10 of this chapter)
at a remediation waste management site. A RAP may only be issued for
the area of contamination where the remediation wastes to be managed
under the RAP originated, or areas in close proximity to the
contaminated area, except as allowed in limited circumstances under
Sec. 270.230.
(b) The requirements in Secs. 270.3 through 270.66 do not apply to
RAPs unless those requirements for traditional RCRA permits are
specifically required under Secs. 270.80 through 270.230. The
definitions in Sec. 270.2 apply to RAPs.
(c) Notwithstanding any other provision of this part or part 124 of
this chapter, any document that meets the requirements in this section
constitutes a RCRA permit under RCRA section 3005(c).
(d) A RAP may be:
(1) A stand-alone document that includes only the information and
conditions required by this subpart; or
(2) Part (or parts) of another document that includes information
and/or conditions for other activities at the remediation waste
management site, in addition to the information and conditions required
by this subpart.
(e) If you are treating, storing, or disposing of hazardous
remediation wastes as part of a cleanup compelled by Federal or State
cleanup authorities, your RAP does not affect your obligations under
those authorities in any way.
(f) If you receive a RAP at a facility operating under interim
status, the RAP does not terminate your interim status.
Sec. 270.85 When do I need a RAP?
(a) Whenever you treat, store, or dispose of hazardous remediation
wastes in a manner that requires a RCRA permit under Sec. 270.1, you
must either obtain:
(1) A RCRA permit according to Secs. 270.3 through 270.66; or
(2) A RAP according to this subpart.
(b) Treatment units that use combustion of hazardous remediation
wastes at a remediation waste management site are not eligible for RAPs
under this Subpart.
(c) You may obtain a RAP for managing hazardous remediation waste
at an already permitted RCRA facility. You must have these RAPs
approved as a modification to your existing permit according to the
requirements of Sec. 270.41 or Sec. 270.42 instead of the requirements
in this Subpart. When you submit an application for such a
modification, however, the information requirements in
Sec. 270.42(a)(1)(i), (b)(1)(iv), and (c)(1)(iv) do not apply; instead,
you must submit the information required under Sec. 270.110. When your
permit is modified the RAP becomes part of the RCRA permit. Therefore
when your permit (including the RAP portion) is modified, revoked and
reissued, terminated or when it expires, it will be modified according
to the applicable requirements in Secs. 270.40 through 270.42, revoked
and reissued according to the applicable requirements in Secs. 270.41
and 270.43, terminated according to the applicable requirements in
Sec. 270.43, and expire according to the applicable requirements in
Secs. 270.50 and 270.51.
Sec. 270.90 Does my RAP grant me any rights or relieve me of any
obligations?
The provisions of Sec. 270.4 apply to RAPs. (Note: The provisions
of Sec. 270.4(a) provide you assurance that, as long as you comply with
your RAP, EPA will consider you in compliance with Subtitle C of RCRA,
and will not take enforcement actions against you. However, you should
be aware of four exceptions to this provision that are listed in
Sec. 270.4.)
Applying for a RAP
Sec. 270.95 How do I apply for a RAP?
To apply for a RAP, you must complete an application, sign it, and
submit it to the Director according to the requirements in this
subpart.
Sec. 270.100 Who must obtain a RAP?
When a facility or remediation waste management site is owned by
one person, but the treatment, storage or disposal activities are
operated by another person, it is the operator's duty to obtain a RAP,
except that the owner must also sign the RAP application.
Sec. 270.105 Who must sign the application and any required reports
for a RAP?
Both the owner and the operator must sign the RAP application and
any required reports according to Sec. 270.11(a), (b), and (c). In the
application, both the owner and the operator must also make the
certification required under Sec. 270.11(d)(1). However, the owner may
choose the alternative certification under Sec. 270.11(d)(2) if the
operator certifies under Sec. 270.11(d)(1).
Sec. 270.110 What must I include in my application for a RAP?
You must include the following information in your application for
a RAP:
(a) The name, address, and EPA identification number of the
remediation waste management site;
(b) The name, address, and telephone number of the owner and
operator;
(c) The latitude and longitude of the site;
(d) The United States Geological Survey (USGS) or county map
showing the location of the remediation waste management site;
(e) A scaled drawing of the remediation waste management site
showing:
(1) The remediation waste management site boundaries;
(2) Any significant physical structures; and
(3) The boundary of all areas on-site where remediation waste is to
be treated, stored or disposed;
(f) A specification of the hazardous remediation waste to be
treated, stored or disposed of at the facility or remediation waste
management site. This must include information on:
(1) Constituent concentrations and other properties of the
hazardous remediation wastes that may affect how such materials should
be treated and/or otherwise managed;
(2) An estimate of the quantity of these wastes; and
(3) A description of the processes you will use to treat, store, or
dispose of this waste including technologies, handling systems, design
and operating parameters you will use to treat hazardous remediation
wastes before disposing of them according to the LDR standards of part
268 of this chapter, as applicable;
(g) Enough information to demonstrate that operations that follow
the provisions in your RAP application will ensure compliance with
applicable requirements of parts 264, 266, and 268 of this chapter;
(h) Such information as may be necessary to enable the Regional
Administrator to carry out his duties under other Federal laws as is
required for traditional RCRA permits under Sec. 270.14(b)(20);
(i) Any other information the Director decides is necessary for
demonstrating compliance with this subpart or for determining any
additional RAP conditions that are necessary to protect human health
and the environment.
[[Page 65943]]
Sec. 270.115 What if I want to keep this information confidential?
Part 2 (Public Information) of this chapter allows you to claim as
confidential any or all of the information you submit to EPA under this
subpart. You must assert any such claim at the time that you submit
your RAP application or other submissions by stamping the words
``confidential business information'' on each page containing such
information. If you do assert a claim at the time you submit the
information, EPA will treat the information according to the procedures
in part 2 of this chapter. If you do not assert a claim at the time you
submit the information, EPA may make the information available to the
public without further notice to you. EPA will deny any requests for
confidentiality of your name and/or address.
Sec. 270.120 To whom must I submit my RAP application?
You must submit your application for a RAP to the Director for
approval.
Sec. 270.125 If I submit my RAP application as part of another
document, what must I do?
If you submit your application for a RAP as a part of another
document, you must clearly identify the components of that document
that constitute your RAP application.
Getting a RAP Approved
Sec. 270.130 What is the process for approving or denying my
application for a RAP?
(a) If the Director tentatively finds that your RAP application
includes all of the information required by Sec. 270.110 and that your
proposed remediation waste management activities meet the regulatory
standards, the Director will make a tentative decision to approve your
RAP application. The Director will then prepare a draft RAP and provide
an opportunity for public comment before making a final decision on
your RAP application, according to this subpart.
(b) If the Director tentatively finds that your RAP application
does not include all of the information required by Sec. 270.110 or
that your proposed remediation waste management activities do not meet
the regulatory standards, the Director may request additional
information from you or ask you to correct deficiencies in your
application. If you fail or refuse to provide any additional
information the Director requests, or to correct any deficiencies in
your RAP application, the Director may make a tentative decision to
deny your RAP application. After making this tentative decision, the
Director will prepare a notice of intent to deny your RAP application
(``notice of intent to deny'') and provide an opportunity for public
comment before making a final decision on your RAP application,
according to the requirements in this Subpart. The Director may deny
the RAP application either in its entirety or in part.
Sec. 270.135 What must the Director include in a draft RAP?
If the Director prepares a draft RAP, it must include the:
(a) Information required under Sec. 270.110(a) through (f);
(b) The following terms and conditions:
(1) Terms and conditions necessary to ensure that the operating
requirements specified in your RAP comply with applicable requirements
of parts 264, 266, and 268 of this chapter (including any recordkeeping
and reporting requirements). In satisfying this provision, the Director
may incorporate, expressly or by reference, applicable requirements of
parts 264, 266, and 268 of this chapter into the RAP or establish site-
specific conditions as required or allowed by parts 264, 266, and 268
of this chapter;
(2) Terms and conditions in Sec. 270.30;
(3) Terms and conditions for modifying, revoking and reissuing, and
terminating your RAP, as provided in Sec. 270.170; and
(4) Any additional terms or conditions that the Director determines
are necessary to protect human health and the environment, including
any terms and conditions necessary to respond to spills and leaks
during use of any units permitted under the RAP; and
(c) If the draft RAP is part of another document, as described in
Sec. 270.80(d)(2), the Director must clearly identify the components of
that document that constitute the draft RAP.
Sec. 270.140 What else must the Director prepare in addition to the
draft RAP or notice of intent to deny?
Once the Director has prepared the draft RAP or notice of intent to
deny, he must then:
(a) Prepare a statement of basis that briefly describes the
derivation of the conditions of the draft RAP and the reasons for them,
or the rationale for the notice of intent to deny;
(b) Compile an administrative record, including:
(1) The RAP application, and any supporting data furnished by the
applicant;
(2) The draft RAP or notice of intent to deny;
(3) The statement of basis and all documents cited therein
(material readily available at the issuing Regional office or published
material that is generally available need not be physically included
with the rest of the record, as long as it is specifically referred to
in the statement of basis); and
(4) Any other documents that support the decision to approve or
deny the RAP; and
(c) Make information contained in the administrative record
available for review by the public upon request.
Sec. 270.145 What are the procedures for public comment on the draft
RAP or notice of intent to deny?
(a) The Director must:
(1) Send notice to you of his intention to approve or deny your RAP
application, and send you a copy of the statement of basis;
(2) Publish a notice of his intention to approve or deny your RAP
application in a major local newspaper of general circulation;
(3) Broadcast his intention to approve or deny your RAP application
over a local radio station; and
(4) Send a notice of his intention to approve or deny your RAP
application to each unit of local government having jurisdiction over
the area in which your site is located, and to each State agency having
any authority under State law with respect to any construction or
operations at the site.
(b) The notice required by paragraph (a) of this section must
provide an opportunity for the public to submit written comments on the
draft RAP or notice of intent to deny within at least 45 days.
(c) The notice required by paragraph (a) of this section must
include:
(1) The name and address of the office processing the RAP
application;
(2) The name and address of the RAP applicant, and if different,
the remediation waste management site or activity the RAP will
regulate;
(3) A brief description of the activity the RAP will regulate;
(4) The name, address and telephone number of a person from whom
interested persons may obtain further information, including copies of
the draft RAP or notice of intent to deny, statement of basis, and the
RAP application;
(5) A brief description of the comment procedures in this section,
and any other procedures by which the public may participate in the RAP
decision;
(6) If a hearing is scheduled, the date, time, location and purpose
of the hearing;
(7) If a hearing is not scheduled, a statement of procedures to
request a hearing;
[[Page 65944]]
(8) The location of the administrative record, and times when it
will be open for public inspection; and
(9) Any additional information the Director considers necessary or
proper.
(d) If, within the comment period, the Director receives written
notice of opposition to his intention to approve or deny your RAP
application and a request for a hearing, the Director must hold an
informal public hearing to discuss issues relating to the approval or
denial of your RAP application. The Director may also determine on his
own initiative that an informal hearing is appropriate. The hearing
must include an opportunity for any person to present written or oral
comments. Whenever possible, the Director must schedule this hearing at
a location convenient to the nearest population center to the
remediation waste management site and give notice according to the
requirements in paragraph (a) of this section. This notice must, at a
minimum, include the information required by paragraph (c) of this
section and:
(1) Reference to the date of any previous public notices relating
to the RAP application;
(2) The date, time and place of the hearing; and
(3) A brief description of the nature and purpose of the hearing,
including the applicable rules and procedures.
Sec. 270.150 How will the Director make a final decision on my RAP
application?
(a) The Director must consider and respond to any significant
comments raised during the public comment period, or during any hearing
on the draft RAP or notice of intent to deny, and revise your draft RAP
based on those comments, as appropriate.
(b) If the Director determines that your RAP includes the
information and terms and conditions required in Sec. 270.135, then he
will issue a final decision approving your RAP and, in writing, notify
you and all commenters on your draft RAP that your RAP application has
been approved.
(c) If the Director determines that your RAP does not include the
information required in Sec. 270.135, then he will issue a final
decision denying your RAP and, in writing, notify you and all
commenters on your draft RAP that your RAP application has been denied.
(d) If the Director's final decision is that the tentative decision
to deny the RAP application was incorrect, he will withdraw the notice
of intent to deny and proceed to prepare a draft RAP, according to the
requirements in this subpart.
(e) When the Director issues his final RAP decision, he must refer
to the procedures for appealing the decision under Sec. 270.155.
(f) Before issuing the final RAP decision, the Director must
compile an administrative record. Material readily available at the
issuing Regional office or published materials which are generally
available and which are included in the administrative record need not
be physically included with the rest of the record as long as it is
specifically referred to in the statement of basis or the response to
comments. The administrative record for the final RAP must include
information in the administrative record for the draft RAP (see
Sec. 270.140(b)) and:
(1) All comments received during the public comment period;
(2) Tapes or transcripts of any hearings;
(3) Any written materials submitted at these hearings;
(4) The responses to comments;
(5) Any new material placed in the record since the draft RAP was
issued;
(6) Any other documents supporting the RAP; and (7) A copy of the
final RAP.
(g) The Director must make information contained in the
administrative record available for review by the public upon request.
Sec. 270.155 May the decision to approve or deny my RAP application be
administratively appealed?
(a) Any commenter on the draft RAP or notice of intent to deny, or
any participant in any public hearing(s) on the draft RAP, may appeal
the Director's decision to approve or deny your RAP application to
EPA's Environmental Appeals Board under Sec. 124.19 of this chapter.
Any person who did not file comments, or did not participate in any
public hearing(s) on the draft RAP, may petition for administrative
review only to the extent of the changes from the draft to the final
RAP decision. Appeals of RAPs may be made to the same extent as for
final permit decisions under Sec. 124.15 of this chapter (or a decision
under Sec. 270.29 to deny a permit for the active life of a RCRA
hazardous waste management facility or unit). Instead of the notice
required under Secs. 124.19(c) and 124.10 of this chapter, the Director
will give public notice of any grant of review of RAPs by the
Environmental Appeals Board through the same means used to provide
notice under Sec. 270.145. The notice will include:
(1) The briefing schedule for the appeal as provided by the Board;
(2) A statement that any interested person may file an amicus brief
with the Board; and
(3) The information specified in Sec. 270.145(c), as appropriate.
(b) This appeal is a prerequisite to seeking judicial review of
these EPA actions.
Sec. 270.160 When does my RAP become effective?
Your RAP becomes effective 30 days after the Director notifies you
and all commenters that your RAP is approved unless:
(a) The Director specifies a later effective date in his decision;
(b) You or another person has appealed your RAP under Sec. 270.155
(if your RAP is appealed, and the request for review is granted under
Sec. 270.155, conditions of your RAP are stayed according to
Sec. 124.16 of this chapter); or
(c) No commenters requested a change in the draft RAP, in which
case the RAP becomes effective immediately when it is issued.
Sec. 270.165 When may I begin physical construction of new units
permitted under the RAP?
You must not begin physical construction of new units permitted
under the RAP for treating, storing or disposing of hazardous
remediation waste before receiving a finally effective RAP.
How May my RAP be Modified, Revoked and Reissued, or Terminated?
Sec. 270.170 After my RAP is issued, how may it be modified, revoked
and reissued, or terminated?
In your RAP, the Director must specify, either directly or by
reference, procedures for future modifications, revocations and
reissuance, or terminations of your RAP. These procedures must provide
adequate opportunities for public review and comment on any
modification, revocation and reissuance, or termination that would
significantly change your management of your remediation waste, or that
otherwise merits public review and comment. If your RAP has been
incorporated into a traditional RCRA permit, as allowed under
Sec. 270.85(c), then the RAP will be modified according to the
applicable requirements in Secs. 270.40 through 270.42, revoked and
reissued according to the applicable requirements in Secs. 270.41 and
270.43, or terminated according to the applicable requirements of
Sec. 270.43.
Sec. 270.175 For what reasons may the Director choose to modify my
final RAP?
(a) The Director may modify your final RAP on his own initiative
only if one or more of the following reasons listed in this section
exist(s). If one or
[[Page 65945]]
more of these reasons do not exist, then the Director will not modify
your final RAP, except at your request. Reasons for modification are:
(1) You made material and substantial alterations or additions to
the activity that justify applying different conditions;
(2) The Director finds new information that was not available at
the time of RAP issuance and would have justified applying different
RAP conditions at the time of issuance;
(3) The standards or regulations on which the RAP was based have
changed because of new or amended statutes, standards or regulations,
or by judicial decision after the RAP was issued;
(4) If your RAP includes any schedules of compliance, the Director
may find reasons to modify your compliance schedule, such as an act of
God, strike, flood, or materials shortage or other events over which
you as the owner/operator have little or no control and for which there
is no reasonably available remedy;
(5) You are not in compliance with conditions of your RAP;
(6) You failed in the application or during the RAP issuance
process to disclose fully all relevant facts, or you misrepresented any
relevant facts at the time;
(7) The Director has determined that the activity authorized by
your RAP endangers human health or the environment and can only be
remedied by modifying; or
(8) You have notified the Director (as required in the RAP under
Sec. 270.30(l)(3)) of a proposed transfer of a RAP.
(b) Notwithstanding any other provision in this section, when the
Director reviews a RAP for a land disposal facility under Sec. 270.195,
he may modify the permit as necessary to assure that the facility
continues to comply with the currently applicable requirements in parts
124, 260 through 266 and 270 of this chapter.
(c) The Director will not reevaluate the suitability of the
facility location at the time of RAP modification unless new
information or standards indicate that a threat to human health or the
environment exists that was unknown when the RAP was issued.
Sec. 270.180 For what reasons may the Director choose to revoke and
reissue my final RAP?
(a) The Director may revoke and reissue your final RAP on his own
initiative only if one or more reasons for revocation and reissuance
exist(s). If one or more reasons do not exist, then the Director will
not modify or revoke and reissue your final RAP, except at your
request. Reasons for modification or revocation and reissuance are the
same as the reasons listed for RAP modifications in Sec. 270.175(a)(5)
through (8) if the Director determines that revocation and reissuance
of your RAP is appropriate.
(b) The Director will not reevaluate the suitability of the
facility location at the time of RAP revocation and reissuance, unless
new information or standards indicate that a threat to human health or
the environment exists that was unknown when the RAP was issued.
Sec. 270.185 For what reasons may the Director choose to terminate my
final RAP, or deny my renewal application?
The Director may terminate your final RAP on his own initiative, or
deny your renewal application for the same reasons as those listed for
RAP modifications in Sec. 270.175(a)(5) through (7) if the Director
determines that termination of your RAP or denial of your RAP renewal
application is appropriate.
Sec. 270.190 May the decision to approve or deny a modification,
revocation and reissuance, or termination of my RAP be administratively
appealed?
(a) Any commenter on the modification, revocation and reissuance or
termination, or any person who participated in any hearing(s) on these
actions, may appeal the Director's decision to approve a modification,
revocation and reissuance, or termination of your RAP, according to
Sec. 270.155. Any person who did not file comments or did not
participate in any public hearing(s) on the modification, revocation
and reissuance or termination, may petition for administrative review
only of the changes from the draft to the final RAP decision.
(b) Any commenter on the modification, revocation and reissuance or
termination, or any person who participated in any hearing(s) on these
actions, may informally appeal the Director's decision to deny a
request for modification, revocation and reissuance, or termination to
EPA's Environmental Appeals Board. Any person who did not file
comments, or did not participate in any public hearing(s) on the
modification, revocation and reissuance or termination may petition for
administrative review only of the changes from the draft to the final
RAP decision.
(c) The process for informal appeals of RAPs is as follows:
(1) The person appealing the decision must send a letter to the
Environmental Appeals Board. The letter must briefly set forth the
relevant facts.
(2) The Environmental Appeals Board has 60 days after receiving the
letter to act on it.
(3) If the Environmental Appeals Board does not take action on the
letter within 60 days after receiving it, the appeal shall be
considered denied.
(d) This informal appeal is a prerequisite to seeking judicial
review of these EPA actions.
Sec. 270.195 When will my RAP expire?
RAPs must be issued for a fixed term, not to exceed 10 years,
although they may be renewed upon approval by the Director in fixed
increments of no more than ten years. In addition, the Director must
review any RAP for hazardous waste land disposal five years after the
date of issuance or reissuance and you or the Director must follow the
requirements for modifying your RAP as necessary to assure that you
continue to comply with currently applicable requirements in RCRA
sections 3004 and 3005.
Sec. 270.200 How may I renew my RAP if it is expiring?
If you wish to renew your expiring RAP, you must follow the process
for application for and issuance of RAPs in this subpart.
Sec. 270.205 What happens if I have applied correctly for a RAP
renewal but have not received approval by the time my old RAP expires?
If you have submitted a timely and complete application for a RAP
renewal, but the Director, through no fault of yours, has not issued a
new RAP with an effective date on or before the expiration date of your
previous RAP, your previous RAP conditions continue in force until the
effective date of your new RAP or RAP denial.
Operating Under Your RAP
Sec. 270.210 What records must I maintain concerning my RAP?
You are required to keep records of:
(a) All data used to complete RAP applications and any supplemental
information that you submit for a period of at least 3 years from the
date the application is signed; and
(b) Any operating and/or other records the Director requires you to
maintain as a condition of your RAP.
Sec. 270.215 How are time periods in the requirements in this subpart
and my RAP computed?
(a) Any time period scheduled to begin on the occurrence of an act
or event must begin on the day after the act or event. (For example, if
your RAP
[[Page 65946]]
specifies that you must close a staging pile within 180 days after the
operating term for that staging pile expires, and the operating term
expires on June 1, then June 2 counts as day one of your 180 days, and
you would have to complete closure by November 28.)
(b) Any time period scheduled to begin before the occurrence of an
act or event must be computed so that the period ends on the day before
the act or event. (For example, if you are transferring ownership or
operational control of your site, and wish to transfer your RAP, the
new owner or operator must submit a revised RAP application no later
than 90 days before the scheduled change. Therefore, if you plan to
change ownership on January 1, the new owner/operator must submit the
revised RAP application no later than October 3, so that the 90th day
would be December 31.)
(c) If the final day of any time period falls on a weekend or legal
holiday, the time period must be extended to the next working day. (For
example, if you wish to appeal the Director's decision to modify your
RAP, then you must petition the Environmental Appeals Board within 30
days after the Director has issued the final RAP decision. If the 30th
day falls on Sunday, then you may submit your appeal by the Monday
after. If the 30th day falls on July 4th, then you may submit your
appeal by July 5th.)
(d) Whenever a party or interested person has the right to or is
required to act within a prescribed period after the service of notice
or other paper upon him by mail, 3 days must be added to the prescribed
term. (For example, if you wish to appeal the Director's decision to
modify your RAP, then you must petition the Environmental Appeals Board
within 30 days after the Director has issued the final RAP decision.
However, if the Director notifies you of his decision by mail, then you
may have 33 days to petition the Environmental Appeals Board.)
Sec. 270.220 How may I transfer my RAP to a new owner or operator?
(a) If you wish to transfer your RAP to a new owner or operator,
you must follow the requirements specified in your RAP for RAP
modification to identify the new owner or operator, and incorporate any
other necessary requirements. These modifications do not constitute
``significant'' modifications for purposes of Sec. 270.170. The new
owner/operator must submit a revised RAP application no later than 90
days before the scheduled change along with a written agreement
containing a specific date for transfer of RAP responsibility between
you and the new permittees.
(b) When a transfer of ownership or operational control occurs, you
as the old owner or operator must comply with the applicable
requirements in part 264, subpart H (Financial Requirements), of this
chapter until the new owner or operator has demonstrated that he is
complying with the requirements in that subpart. The new owner or
operator must demonstrate compliance with part 264, subpart H, of this
chapter within six months of the date of the change in ownership or
operational control of the facility or remediation waste management
site. When the new owner/operator demonstrates compliance with part
264, subpart H, of this chapter to the Director, the Director will
notify you that you no longer need to comply with part 264, subpart H,
of this chapter as of the date of demonstration.
Sec. 270.225 What must the State or EPA Region report about
noncompliance with RAPs?
The State or EPA Region must report noncompliance with RAPs
according to the provisions of Sec. 270.5.
Obtaining a RAP for an Off-Site Location
Sec. 270.230 May I perform remediation waste management activities
under a RAP at a location removed from the area where the remediation
wastes originated?
(a) You may request a RAP for remediation waste management
activities at a location removed from the area where the remediation
wastes originated if you believe such a location would be more
protective than the contaminated area or areas in close proximity.
(b) If the Director determines that an alternative location,
removed from the area where the remediation waste originated, is more
protective than managing remediation waste at the area of contamination
or areas in close proximity, then the Director may approve a RAP for
this alternative location.
(c) You must request the RAP, and the Director will approve or deny
the RAP, according to the procedures and requirements in this subpart.
(d) A RAP for an alternative location must also meet the following
requirements, which the Director must include in the RAP for such
locations:
(1) The RAP for the alternative location must be issued to the
person responsible for the cleanup from which the remediation wastes
originated;
(2) The RAP is subject to the expanded public participation
requirements in Secs. 124.31, 124.32, and 124.33 of this chapter;
(3) The RAP is subject to the public notice requirements in
Sec. 124.10(c) of this chapter;
(4) The site permitted in the RAP may not be located within 61
meters or 200 feet of a fault which has had displacement in the
Holocene time (you must demonstrate compliance with this standard
through the requirements in Sec. 270.14(b)(11)) (See definitions of
terms in Sec. 264.18(a) of this chapter);
Note to paragraph (d)(4): Sites located in political
jurisdictions other than those listed in Appendix VI of Part 264 of
this chapter, are assumed to be in compliance with this requirement.
(e) These alternative locations are remediation waste management
sites, and retain the following benefits of remediation waste
management sites:
(1) Exclusion from facility-wide corrective action under
Sec. 264.101 of this chapter; and
(2) Application of Sec. 264.1(j) of this chapter in lieu of part
264, subparts B, C, and D, of this chapter.
PART 271--REQUIREMENTS FOR AUTHORIZATION OF STATE HAZARDOUS WASTE
PROGRAMS
25. The authority citation for Part 271 continues to read as
follows:
Authority: 42 U.S.C. 6905, 6912(a), and 6926.
26. Section 271.1(j) is amended by adding the following entry to
Table 1 in chronological order by date of publication in the Federal
Register, to read as follows:
Sec. 271.1 Purpose and scope.
* * * * *
(j) * * *
[[Page 65947]]
TABLE 1.--Regulations Implementing the Hazardous and Solid Waste Amendments of 1984
----------------------------------------------------------------------------------------------------------------
Promulgation date Title of regulation Federal Register reference Effective date
----------------------------------------------------------------------------------------------------------------
* * * * * *
*
November 30, 1998.................. Hazardous Remediation Waste [Insert FR page numbers]... June 1, 1999.
Management Requirements
\5\.
* * * * * *
*
----------------------------------------------------------------------------------------------------------------
\5\ These regulations implement HSWA only to the extent that they apply to the standards for staging piles and
to Secs. 264.1(j) and 264.101(d) of this chapter.
27. Section 271.21 is amended by adding paragraph (h) and table 1
to the end of the section to read as follows:
Sec. 271.21 Procedures for revision of State programs.
* * * * *
(h) Abbreviated authorization revisions. This abbreviated procedure
applies to State Program revisions for the Federal rulemakings listed
in Table 1 of this section. The abbreviated procedures are as follows:
(1) An application for a revision of a State's program for the
rulemakings listed in Table 1 of this section shall consist of:
(i) A statement from the State that its laws and regulations
provide authority that is equivalent to, and no less stringent than,
the designated minor rules or parts of rules specified in Table 1 of
this section, and which includes references to the specific statutes,
administrative regulations and where appropriate, judicial decisions.
State statutes and regulations cited in the statement shall be lawfully
adopted at the time the statement is signed and fully effective by the
time the program revisions are approved; and
(ii) Copies of all applicable State statutes and regulations.
(2) Within 30 days of receipt by EPA of a State's application for
final authorization to implement a rule specified in Table 1 of this
section, if the Administrator determines that the application is not
complete or contains errors, the Administrator shall notify the State.
This notice will include a concise statement of the deficiencies which
form the basis for this determination. The State will address all
deficiencies and resubmit the application to EPA for review.
(3) For purposes of this section an application is considered
incomplete when:
(i) Copies of applicable statutes or regulations were not included;
(ii) The statutes or regulations relied on by the State to
implement the program revisions are not lawfully adopted at the time
the statement is signed or fully effective by the time the program
revisions are approved;
(iii) In the statement, the citations to the specific statutes,
administrative regulations and where appropriate, judicial decisions
are not included or incomplete; or
(iv) The State is not authorized to implement the prerequisite RCRA
rules as specified in paragraph (h)(5) of this section.
(4) Within 60 days after receipt of a complete final application
from a State for final authorization to implement a rule or rules
specified in Table 1 of this section, the Administrator shall publish a
notice of the decision to grant final authorization in accordance with
the procedures for immediate final publication in paragraph (b)(3) of
this section.
(5) To be eligible to use the procedure in this paragraph (h), a
State must be authorized for the provisions which the rule listed in
Table 1 to this section amends.
Table 1 to Sec. 271.21
------------------------------------------------------------------------
Federal Register
Title of regulation Promulgation date reference
------------------------------------------------------------------------
Land Disposal Restrictions Phase September 19, 1994 59 FR 47982
II--the Universal Treatment
Standards in Secs. 268.40 and
268.48 of this chapter only.
------------------------------------------------------------------------
[FR Doc. 98-30269 Filed 11-27-98; 8:45 am]
BILLING CODE 6560-50-P
