[Federal Register Volume 64, Number 194 (Thursday, October 7, 1999)]
[Proposed Rules]
[Pages 54604-54607]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-26070]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 264
[FRL-6452-9]
RIN 2050-AB80
Corrective Action for Solid Waste Management Units at Hazardous
Waste Management Facilities
AGENCY: Environmental Protection Agency.
ACTION: Partial withdrawal of rulemaking proposal.
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SUMMARY: The Environmental Protection Agency (EPA) is announcing our
decision to withdraw most provisions of the Notice of Proposed
Rulemaking (NPRM) for corrective action for solid waste management
units (SWMUs) at hazardous waste management facilities (also known as
the 1990 Subpart S proposal) published on July 27, 1990. The only
exceptions to this decision relate to two jurisdictional issues and
those elements of the proposed rule that were promulgated as a final
rule on February 16, 1993. The jurisdictional issues relate to the
definition of ``facility'' for corrective action purposes and the
question of who is responsible for corrective action when there is a
transfer of facility property. We plan to withdraw most of the proposed
rule because we have determined that such regulations are not necessary
to carry out the Agency's duties under sections 3004(u) and (v).
Additionally, attempting to promulgate a comprehensive set of RCRA
regulations at this time could unnecessarily disrupt the 33 State
programs already authorized to carry out the Corrective Action Program
in lieu of EPA, as well as the additional State programs currently
undergoing review for authorization. This decision will end uncertainty
related to this rulemaking for State regulators and owners and
operators of hazardous waste management facilities.
[[Page 54605]]
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-1999-CASW-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 you make an appointment by calling
(703) 603-9230. You 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 action, contact Barbara Foster, Office of Solid Waste
(5303W), U.S. Environmental Protection Agency, 401 M Street SW,
Washington, DC 20460 (703) 308-7057, e-mail address:
foster.barbara@epamail.epa.gov.
SUPPLEMENTARY INFORMATION: The index and the following supporting
materials are available on the Internet: (1) Letter from Mark Gordon,
Chair, ASTSWMO Corrective Action and Permitting Task Force, to Michael
Shapiro, January 9, 1997; (2) Memorandum from Steven A. Herman and
Elliott P. Laws to RCRA/CERCLA National Policy Managers entitled
Coordination between RCRA Corrective Action and Closure and CERCLA Site
Activities, September 24, 1996; (3) Memorandum from Elliott P. Laws and
Steven A. Herman to RCRA/CERCLA Senior Policy Managers entitled ``Use
of the Corrective Action Advance Notice of Proposed Rulemaking as
Guidance'', January 17, 1997; and (4) Letter from Mark Gordon, Chair,
ASTSWMO Corrective Action and Permitting Task Force, to EPA RCRA Docket
#F-96-CA2P-FFFFF, July 30, 1997. Follow these instructions to access
the information electronically:
WWW: http://www.epa.gov/correctiveaction
FTP: ftp.epa.gov
Login: anonymous
Password: foster.barbara@epamail.epa.gov
Files are located in /pub/epaoswer
I. Authority
The provisions of the 1990 proposed rule were proposed under the
authority of sections 1003, 1006, 2002(a), 3004(a), 3004(u), 3004(v),
3005(c) and 3007 of the Solid Waste Disposal Act, as amended by the
Resource Conservation and Recovery Act, as amended by the Hazardous and
Solid Waste Amendments of 1984, 42 U.S.C. 6902, 6905, 6912(a), 6924(a),
(u) and (v), 6925(c), and 6927.
II. Background
In the 1984 Hazardous and Solid Waste Amendments (HSWA) to the
Resource Conservation and Recovery Act (RCRA), Congress expanded EPA's
authority to address cleanup at permitted RCRA hazardous waste
management facilities by providing new corrective action authority
under RCRA sections 3004(u) and (v). Section 3004(u) requires that RCRA
regulations and permits require corrective action as necessary to
protect human health and the environment at facilities seeking a
permit. Section 3004(v) extended the requirement to releases beyond the
facility boundary. EPA codified this broad authority in RCRA section
3004(u) essentially verbatim at 40 CFR 264.90(a)(2), 264.101,
270.60(b), and 270.60(c) in a final rule published on July 15, 1985 (50
FR 28702). EPA later did the same for section 3004(v) on December 1,
1987 (52 FR 45785).1
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\1\ In the December 1, 1987 final rule, the Agency also
promulgated corrective action permit application requirements and
modified corrective action requirements for underground injection
wells.
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On July 27, 1990 (55 FR 30798), EPA published a NPRM detailing
substantive and procedural requirements under 40 CFR Part 264 Subpart S
to implement the corrective action program. The Agency promulgated a
few elements of the 1990 proposal on February 16, 1993 (58 FR 8658).
These elements included final provisions for Corrective Action
Management Units (CAMUs) and Temporary Units, and a definition of
``facility'' for corrective action. The remainder of the 1990 proposal
has not been made final. However, EPA and authorized States began using
the proposed rule and preamble as the primary guidance for the
corrective action program soon after it was published.
RCRA section 3006(g) called for the corrective action requirements
imposed by sections 3004(u) and 3004(v) to take effect in all States at
the same time they would take effect federally, regardless of the
State's authorization status. The statute further directed the Agency
to carry out those requirements until the State is granted
authorization to do so. To date, EPA has authorized 33 States to
implement the requirements of sections 3004(u) and (v) in lieu of EPA.
To determine whether the State program was ``equivalent'' to the
Federal program, EPA referred to the Federal regulations pertaining to
corrective action, the guidance provided by the 1990 Subpart S
proposal, and other Agency guidance.
On May 1, 1996 (61 FR 19432), the Agency published an ANPRM. In the
1996 ANPRM, EPA introduced its new ``Subpart S Initiative,'' which was
designed to identify and implement improvements to the protectiveness,
responsiveness, speed, and efficiency of the corrective action program.
The Agency also discussed corrective action implementation and the
evolution of the program since 1990, and set forth its goals and
strategy for the future of the corrective action program. The 1996
ANPRM provided guidance on areas of the program not addressed by the
1990 proposal, and replaced the 1990 proposal as the primary guidance
for much of the corrective action program (see memorandum from Elliott
P. Laws and Steven A. Herman to RCRA/CERCLA Senior Policy Managers
entitled ``Use of the Corrective Action Advance Notice of Proposed
Rulemaking as Guidance'', January 17, 1997, located in the docket for
this action). Finally, in the 1996 ANPRM, the Agency requested comment
on the future direction of the corrective action program, including
resolution of the 1990 proposal.
III. Decision To Withdraw the Majority of the Notice of Proposed
Rulemaking
As part of the Subpart S Initiative, the Agency assessed the issue
of whether to promulgate a final Subpart S rule (see 61 FR 19455-6
asking for comment on the appropriate ``balance between guidance/policy
documents and regulations'' for implementing RCRA corrective action
authorities). As was discussed in the ANPRM (see 61 FR 19432 at 19440),
the Agency has long recognized that no one approach to corrective
action is likely to be appropriate at all sites. The diversity of
facilities subject to RCRA corrective action, the degree of
investigation and subsequent corrective action necessary to protect
human health and the environment varies greatly across facilities.
Because of this, some facilities require no cleanup at all or only
minor corrective action, while others are as complex and highly
contaminated as sites on the CERCLA National Priorities List (Superfund
sites). Thus, in drafting the 1990 proposal, the Agency sought to
create a rule that, although it contained extensive procedures for
making corrective action decisions, would
[[Page 54606]]
accommodate the need to vary those procedures based on site-specific
circumstances. It has been the Agency's experience, however, that the
Subpart S proposal as guidance has, at times, been implemented
prescriptively and the intended flexibility underused. Commenters on
the ANPR echoed the Agency's assessment on this point.
Therefore, the Agency concluded, if we were to proceed with a final
rule instituting a comprehensive regulatory scheme for RCRA corrective
action, it would be appropriate to rethink the general approach to
writing a set of comprehensive regulations. In particular, since the
instances of program inflexibility could be attributed, at least in
part, to rule language that heavily emphasized standard processes for
making corrective action decisions, the Agency reasoned that it would
be appropriate to recraft the proposed RCRA regulations to take the
focus off process and place it on results.2
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\2\ For example, among the options considered by the Agency in
the 1996 ANPR was a ``performance standards'' approach (see 61 FR
19432 at 19456). Under this approach, the Agency would craft a rule
establishing performance standards or goals with very little detail
concerning procedures.
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Likewise, many commenters urged the Agency to reject the approach
of the 1990 proposal in favor of a more ``holistic'' and flexible
approach. However, commenters also urged the Agency not to go forward
with any final rule without first reproposing the entire program, to
provide opportunity for public comment on the overall approach. The
Agency agrees with commenters that, if we were to go forward with
regulations significantly different from the 1990 proposal, fairness
would dictate an additional round of public comment.
Therefore, before proceeding anew down the resource-intensive path
of promulgating a comprehensive rule, we decided it was appropriate to
reevaluate the pros and cons of proceeding with a comprehensive rule,
especially since the program has been conducted without one for 14
years, and the landscape of the RCRA corrective action program has
changed significantly over that time. Having engaged in this analysis,
we have decided not to promulgate a final rule for the corrective
action program at this time. Instead we will continue to rely on
existing regulations (including those provisions of the Subpart S
proposal already promulgated), supplemented by current and planned
guidance and enhanced training, to implement the corrective action
program. We chose this approach for several reasons.
First, one of our primary objectives for promulgating a
comprehensive rule in 1990 was to ``establish standards to which States
seeking authorization for RCRA section 3004(u) corrective action must
demonstrate equivalence'' (55 FR 30800). While it is true that detailed
regulations can make authorization determinations somewhat easier,
circumstances have changed in the years since publication of the
proposal. We now believe that it is not necessary to promulgate
additional regulations to review State programs. To date, EPA has
authorized 33 State programs to implement the corrective action program
in lieu of the Federal government. The authorization process consists
of extensive up-front review of State programs, using existing
regulations supplemented by existing guidance (including, most
recently, the ANPRM and portions of the 1990 proposal that were not
superceded) outlining what types of corrective action are generally
``necessary to protect human health and the environment.'' There have
been no legal challenges to these determinations, and EPA has not
instituted withdrawal proceedings for any State corrective action
program it has authorized. Thus, EPA has found in practice that the
current regulations, supplemented by current and planned guidance,
provide us an adequate foundation to authorize State programs, and that
additional regulations are not necessary at this time.
Second, we are concerned additional regulations might disrupt State
programs that are authorized to date. We recognize that new
regulations, whether detailed substantive and procedural or performance
standards, would, at least, raise the possibility of reanalysis of
these authorized State programs. This would create unnecessary
uncertainty in these programs that would very likely slow their
progress. Similar concerns have been expressed by the States (see
letter from Mark Gordon, Chair, ASTSWMO Corrective Action and
Permitting Task Force to RCRA Docket #F-96-CA2P-FFFFF, July 30, 1996,
located in the docket for this Federal Register notice). Given the
limited added benefit of additional regulations, we do not believe the
potential disruption to State programs is warranted.
Third, in addition to providing a basis for evaluating State
programs, another objective in promulgating a comprehensive corrective
action rule in 1990 was to establish national consistency in the
corrective action program. We have become increasingly aware that
corrective action sites differ in significant respects and that
consistent application of rules and standards at all sites is not
always appropriate. For areas of the program where consistency from
site-to-site is generally important (e.g., cleanup levels), we have
been successful in using guidance and training to promote appropriate
consistency. Thus, rather than issuing a rule to achieve consistency at
all sites, we believe it would be more appropriate to develop guidance
and training to promote consistency, where appropriate. Such guidance
and training would apply not only within the corrective action program,
but also with other cleanup programs as well (see memorandum from
Steven A. Herman and Elliott P. Laws to RCRA/CERCLA National Policy
Managers entitled Coordination between RCRA Corrective Action and
Closure and CERCLA Site Activities, September 24, 1996).
Fourth and finally, promulgation of a corrective action rule is not
necessary to ensure that affected parties have a chance to influence
our corrective action decisions. The comments we received on the 1990
proposal and the 1996 ANPRM have informed this decision, as well as the
content of Agency guidance and other initiatives undertaken (such as
the training initiative discussed in footnote 3). Perhaps more
important, however, is the fact that we provide RCRA owners and
operators and the public with ample procedures to raise any objections
(e.g., through permit appeals) to each decision the Agency makes with
respect to corrective action--whether it be the number of reports
required of the facility, the area and materials that are subject to
corrective action requirements, or the levels to which the facility
must be cleaned.
For the reasons stated above, we have decided to withdraw all of
the proposed rulemaking except for those provisions that already have
been made final and those provisions relating to two jurisdictional
issues--i.e., the definition of ``facility'' for corrective action
purposes, and provisions concerning corrective action responsibilities
upon transfer of facility property. More specifically we preserve the
discussions concerning these issues beginning at 55 FR 30808 (as
supplemented by additional discussion and request for comment in the
1996 ANPRM beginning at 61 FR 19442 and 19460, and any other relevant
discussions in either notice) and 55 FR 30845 and 30882 (as
supplemented by additional discussion and request for comment in the
1996 ANPRM at 61 FR 19463, and any other relevant discussions in either
notice). We have singled out these two
[[Page 54607]]
jurisdictional issues because, unlike others discussed in the 1990
proposal (e.g., definitions of release,3 hazardous waste or
hazardous constituents, and solid waste management unit), these are
issues about which the Agency expressed concern regarding the status
quo, or raised questions that have not been definitively addressed by
the Agency. (See e.g., 61 FR 19460--``EPA's definition of facility for
purposes of corrective action has been problematic in some situations''
and 61 FR 19463--``The 1990 proposal identified two options: requiring
the permittee to complete corrective action even on parcels sold to
others, and requiring the purchaser of the parcel to complete the
corrective action.'') We continue to believe that these issues should
be addressed.
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\3\ We believe it is important to emphasize in this action that
we continue to adhere to the 1996 ANPRM interpretations of the term
of ``release.'' In the 1996 ANPRM, we reiterated our longstanding
position on the definition of ``release'' for corrective action (see
61 FR 19442). There, we cited language from the preamble of the 1985
HSWA codification rule (50 FR 28702, July 15, 1985) stating that the
definition of ``release'' for corrective action should be at least
as broad as the definition of release under CERCLA--thus, EPA
interpreted the term ``release'' to mean ``any spilling, leaking,
pumping, pouring, emitting, emptying, discharging, injecting,
escaping, leaching, dumping, or disposing into the environment.'' In
the ANPR, we also cited language from the preamble of the 1990
proposal, stating that the definition of release also includes
abandoned or discarded barrels, containers, and other closed
receptacles containing hazardous wastes or constituents and that it
could include releases that are permitted under other authorities,
such as the Clean Water Act.
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Over the years, EPA has published a number of major corrective
action guidance documents and in 1990 proposed detailed corrective
action regulations (see 55 FR 30798, July 27, 1990.) As discussed in
the 1996 ANPRM, many of these documents, including the 1990 proposal,
continue to provide useful information and guidance for corrective
action implementation. However, the 1996 ANPRM updates our position on
many of the issues discussed in the 1990 proposal, and should be
considered the primary corrective action implementation guidance. In
addition, we intend to provide any necessary additional guidance to
assist program implementers. We believe that by focusing our resources
on developing guidance and training,4 rather than a final
rule, we can provide sufficient guidelines for the areas of the program
not governed by procedural regulations, but in a more flexible format.
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\4\ Some commenters suggested that the inflexibility of some
corrective action program implementers could be attributed, at least
in part, to the failure of implementers to use available
flexibility, rather than to limitations in the regulations and
guidance issued by the Agency. To address these concerns, the Agency
has launched an extensive training initiative, directed at EPA
Regions and the States, which should address this concern. The
training is designed to direct implementers to focus the corrective
action program on obtaining key results, rather than adherence to an
unnecessarily prescriptive process. The Agency believes that, by
better focusing on results, implementers will be better able to
prioritize investigation and remediation resources, and to utilize
innovative methods to achieve protective results effectively,
efficiently, and quickly.
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It should be noted that nothing in this action modifies or affects
those regulations promulgated to date to govern the corrective action
program. It also should be noted that the Agency may, at some time in
the future, decide that additional regulations would improve the
corrective action program. Should the Agency decide to promulgate
additional regulations on issues other than the jurisdictional issues
described in this action, however, we would propose them in the Federal
Register for public comment.
Dated: September 30, 1999.
Carol M. Browner,
Administrator.
[FR Doc. 99-26070 Filed 10-6-99; 8:45 am]
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