[Federal Register Volume 61, Number 83 (Monday, April 29, 1996)]
[Proposed Rules]
[Pages 18780-18864]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-10096]




[[Page 18779]]


_______________________________________________________________________

Part II





Environmental Protection Agency





_______________________________________________________________________



40 CFR Part 260, et al.



Requirements for Management of Hazardous Contaminated Media; Proposed 
Rule

Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / 
Proposed Rules

[[Page 18780]]



ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 260, 261, 262, 264, 268, 269 and 271

[FRL-5460-4]
RIN 2050-AE22


Requirements for Management of Hazardous Contaminated Media 
(HWIR-Media)

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: As part of the President's regulatory reform initiative, the 
United States Environmental Protection Agency (EPA) is proposing new 
regulations for contaminated media, including contaminated soils, 
ground water, and sediments, that are managed during government-
overseen remedial actions. The proposed rule would address contaminated 
media that are currently subject to regulation as ``hazardous waste'' 
under the Resource Conservation and Recovery Act (RCRA). The rule's 
purpose is to develop more flexible management standards for media and 
wastes generated in the course of site cleanups.
    To accomplish the objective, the proposal would establish modified 
Land Disposal Restrictions (LDR) treatment requirements, and modified 
permitting procedures for higher-risk, contaminated media that remain 
subject to hazardous waste regulations; and give EPA and authorized 
States the authority to remove certain lower-risk, contaminated media 
from regulation as ``hazardous wastes'' under most of Subtitle C of 
RCRA. Under this proposal, many contaminated media management units 
would be relieved from the obligation to comply with Minimum 
Technological Requirements (MTRs). The State-authorization procedures 
for RCRA program revisions would be simplified for this proposed rule; 
the Hazardous Waste Identification Rule (HWIR-waste); and the Revised 
Technical Standards for Hazardous Waste Combustion Facilities. Today's 
proposal also proposes to withdraw the regulations for corrective 
action management units (CAMUs). In addition, dredged material 
permitted under CWA or MPRSA would be exempted from Subtitle C.

DATES: Written comments on this proposal should be submitted on or 
before July 29, 1996.
    The Agency will hold a public hearing on this proposal on June 4, 
1996.

ADDRESSES: Commenters must send an original and two copies of their 
comments referencing docket number F-96-MHWP-FFFFF to: (1) If using 
regular US Postal service mail: RCRA Docket Information Center, Office 
of Solid Waste (5305W), U.S. Environmental Protection Agency 
Headquarters (EPA, HQ), 401 M Street, SW, Washington, D.C. 20460 or (2) 
if using special delivery, such as overnight express service: RCRA 
Docket Information Center (RIC), Crystal Gateway One, 1235 Jefferson 
Davis Highway, First Floor, Arlington, VA 22202. Comments may also be 
submitted electronically through the Internet to: RCRA-
D<a href="/cdn-cgi/l/email-protection#4f202c242a3b0f2a3f2e222e2623612a3f2e61282039"><span class="__cf_email__" data-cfemail="c3aca0a8a6b783a6b3a2aea2aaafeda6b3a2eda4acb5">[email protected]</span></a>. These comments should be identified by the 
docket number F-96-MHWP-FFFFF, and submitted as an ASCII file to avoid 
the use of special characters and encryptions.
    Please do not submit any Confidential Business Information (CBI) 
electronically. An original and two copies of CBI must be submitted 
under separate cover to: RCRA CBI Document Control Officer, Office of 
Solid Waste (5305W), U.S. EPA, 401 M Street, SW, Washington, D.C. 
20460.
    Public comments and supporting materials are available for viewing 
in the RCRA Information Center (RIC) located at Crystal Gateway One, 
1235 Jefferson Davis Highway, First Floor, Arlington, VA. The RIC is 
open from 9:00 a.m. to 4:00 p.m., Monday through Friday, excluding 
Federal holidays. To review docket materials, please 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 
will cost $.15/page.
    The June 4, 1996 public hearing will be held at the Key Bridge 
Marriott, located at 1401 Lee Highway, Arlington, VA 22209. The main 
switchboard number for the hotel is (703) 524-6400. Individuals 
interested in more complete directions or room reservations should 
contact the hotel directly. Registration for the hearing will begin at 
8:30 a.m.. The hearing will begin at 9:00 a.m. and end at 5:00 p.m. 
unless concluded earlier. Oral and written statements may be submitted 
at the public hearing. Time for the public hearing is limited; oral 
presentations will be made in the order that requests are received and 
will be limited to 15 minutes, unless additional time is available. 
Requests to speak at the hearing should be submitted in writing to: 
Carolyn Hoskinson (5303W) U. S. Environmental Protection Agency, 401 M 
Street, SW, Washington, D.C. 20460. Please clearly mark your request as 
a request to speak at the public hearing and include both the scheduled 
date of the hearing (June 4, 1996) and the docket number (F-96-MHWP-
FFFFF). Requests to speak may also be made on the day of the hearing by 
registering at the door; requests to speak by individuals who choose to 
register at the door on the day of the hearing will be granted in the 
order received, as time permits. Individuals are requested to provide a 
copy of their testimony for the record.

FOR FURTHER INFORMATION CONTACT: For general information, contact the 
RCRA Hotline at 1-800-424-9346 or TDD 1-800-553-7672 (hearing 
impaired). In the Washington metropolitan area, call 703-412-9810 or 
TDD 703-412-3323.
    For more detailed information on specific aspects of this 
rulemaking, contact Carolyn L. Hoskinson, Office of Solid Waste 
(5303W), U.S. Environmental Protection Agency, 401 M Street, SW, 
Washington, D.C. 20460, (703) 308-8626. For further information on 
EPA's development of the guidance document ``Best Management Practices 
for Soils Treatment Technologies,'' contact Subijoy Dutta (703) 308-
8608, (internet address: <a href="/cdn-cgi/l/email-protection#9df9e8e9e9fcb3eee8fff4f7f2e4ddf8edfcf0fcf4f1b3f8edfcb3faf2eb"><span class="__cf_email__" data-cfemail="2541505151440b5650474c4f4a5c6540554448444c490b4055440b424a53">[email protected]</span></a>). For further 
information on EPA's development of a guidance document for sampling 
and analysis, which is associated with today's proposal, contact James 
R. Brown (703) 308-8656, (internet address: 
<a href="/cdn-cgi/l/email-protection#a6c4d4c9d1c888ccc7cbc3d5d4e6c3d6c7cbc7cfca88c3d6c788c1c9d0"><span class="__cf_email__" data-cfemail="472535283029692d262a223435072237262a262e2b6922372669202831">[email protected]</span></a>).

SUPPLEMENTARY INFORMATION: The index is available on the Internet. 
Please follow these instructions to access the information 
electronically:

Gopher: gopher.epa.gov
WWW: http://www.epa.gov
Dial-up: (919) 558-0335

    This report can be accessed from the main EPA Gopher menu in the 
directory: EPA Offices and Regions/Office of Solid Waste and Emergency 
Response (OSWER)/Office of Solid Waste (RCRA)/Hazardous Waste/
Corrective Action/(HWIRMDIA).

FTP: ftp.epa.gov
Login: anonymous
Password: Your Internet Address
Files are located in /pub/gopher/OSWRCRA

    The official record for this action will be kept in paper form. 
Accordingly, EPA will transfer all comments received electronically 
into paper form and place them in the official record, with all of the 
comments received in writing. The official record is the paper record 
maintained at the address in ADDRESSES at the beginning of this 
document.

[[Page 18781]]

    EPA's responses to comments, whether written or electronic, will be 
printed in the Federal Register, or in a ``response to comments 
document'' placed in the official record for this rulemaking. EPA will 
not immediately reply to commenters electronically other than to 
clarify electronic comments that may be garbled during transmission or 
conversion to paper form.

Outline

    The information presented in this preamble is organized as follows:
I. Authority
II. Background
    A. Purpose and Context for Today's Proposed Rule
    B. Relationship to Previous Regulatory Initiatives
    1. Proposed Subpart S Corrective Action Requirements
    2. Final Rules for Corrective Action Management Units (CAMUs)
    3. Proposed Land Disposal Restrictions for Hazardous Soils
    4. Deferral of the Toxicity Characteristic for Petroleum 
Contaminated Media and Debris from Cleanup of Releases from Underground 
Storage Tanks (USTs)
    5. Suspension of the Toxicity Characteristic for Non-UST Petroleum 
Contaminated Media (proposed rule)
    6. Proposed Hazardous Waste Identification Rule (May 20, 1992)
    7. Relationship to CERCLA
    8. Relationship to HWIR-waste Rule (Dec. 21, 1995)
    9. Relationship to RCRA Legislative Reforms
    C. Origin of Today's Proposed Rule
III. EPA's Policy Objectives for the HWIR-media Rule
IV. Introduction and Overview of Today's Proposal and Alternatives to 
Today's Proposal
    A. Today's Proposed Approach
    B. Alternative Approaches Including Unitary Approach
    C. Relationship to HWIR-waste Rule
V. Section by Section Analysis
    A. General Provisions
    1. General Scope of Today's Proposal--Sec. 269.1
    2. Purpose/Applicability--Sec. 269.2
    3. Definitions--Sec. 269.3
    4. Identification of Media Not Subject to Regulation as Hazardous 
Waste--Sec. 269.4
    B. Other Requirements Applicable to Management of Hazardous 
Contaminated Media
    1. Applicability of Other Requirements--Sec. 269.10
    2. Intentional Contamination of Media Prohibited--Sec. 269.11
    3. Interstate Movement of Contaminated Media--Sec. 269.12
    C. Treatment Requirements
    1. Overview of the Land Disposal Restrictions
    2. Treatment Requirements--Sec. 269.30
    3. Constituents Subject to Treatment
    4. Nonanalyzable Constituents
    5. Review of Treatment Results--Sec. 269.33
    6. Management of Treatment Residuals--Sec. 269.34
    7. Media Treatment Variances--Sec. 269.31
    8. Request for Comment on Other Options
    9. LDR Treatment Requirements for Non-HWIR-media Soils
    10. Issues Associated with Hazardous Debris
    D. Remediation Management Plans (RMPs)
    1. General Requirements--Sec. 269.40
    2. Content of RMPs--Sec. 269.41
    3. Treatability Studies--Sec. 269.42
    4. Approval of RMPs--Sec. 269.43
    5. Modification of RMPs--Sec. 269.44
    6. Expiration, Termination, and Revocation of RMPs--Sec. 269.45
    E. Streamlined Authorization Procedures for Program Revisions (Part 
271)
    1. Statutory and Regulatory Authorities
    2. Background and Approach to Streamlined Authorization
    3. Streamlined Procedures--Sec. 271.21
    4. Authorization for Revised Technical Standards for Hazardous 
Waste Combustion Facilities
    5. Request for Comment on Application of Category 1 Procedures to 
Portions of HWIR-waste Proposal
    6. HWIR-media Specific Authorization Considerations--Sec. 271.28
    7. Effect in Authorized States
    8. Request for Comment on EPA's Approach to Authorization
    F. Corrective Action Management Units--Sec. 264.552
    G. Remediation Piles--Secs. 260.10 and 264.554
    H. Dredged Material Exclusion--Sec. 261.4
VI. Alternative Approaches to HWIR-media Regulations
    A. The Unitary Approach
    1. Overview of the Unitary Approach
    2. Legal Authority for the Unitary Approach
    3. LDRs Under the Unitary Approach
    4. The RAP Process Under the Unitary Approach
    5. State Authorization for the Unitary Approach
    6. Enforcement Authorities Under the Unitary Approach
    7. State Jurisdiction Under the Unitary Approach
    B. Hybrid Approach
    C. Key Elements of an HWIR-media Rule
    1. Scope of the Rule (Regarding Non-media Remediation Wastes)
    2. The Bright Line
    3. RAPs, RMPs, and RCRA Permits
    4. Request for Comment
VII. Effective Date of Final HWIR-media Rule
VIII. Regulatory Requirements
    A. Assessment of Potential Costs and Benefits
    1. Executive Order 12866
    2. Background
    3. Need for Regulation
    4. Assessment of Potential Costs and Benefits
    5. Regulatory Issues
    B. Regulatory Flexibility Analysis
    C. Paperwork Reduction Act

I. Authority

    These regulations are proposed under the authority of sections 
2002(a), 3001, 3004, 3005, 3006, and 3007 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. Secs. 6912(a), 6921, 6924, 6925, 6926, and 
6927.

II. Background

A. Purpose and Context for Today's Proposed Rule

    Since 1980, the Environmental Protection Agency (EPA) has developed 
a comprehensive regulatory framework under Subtitle C of RCRA that 
governs the identification, generation, transportation, treatment, 
storage, and disposal 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.
    The RCRA regulations constitute minimum national standards for 
management of hazardous wastes. In general, 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. In order to ensure an 
adequate level of protection nationally, the RCRA regulations have

[[Page 18782]]

been conservatively designed to ensure proper management of hazardous 
wastes over a range of waste types, environmental conditions, 
management scenarios, and operational contingencies.
    In the course of administering current RCRA regulations, to 
contaminated media generated during site cleanups, EPA and the States 
have recognized fundamental differences in both incentives and 
objectives for prevention- and cleanup-oriented programs. For example, 
the stringent treatment requirements established by RCRA land disposal 
restrictions (LDRs) have encouraged many generators to reduce the 
amount of hazardous waste they generate. On the other hand, when these 
requirements are applied in the context of site cleanup, they often 
provide a strong incentive to leave hazardous waste and contaminated 
media in place, or to select alternate remedies that will minimize the 
applicability of RCRA regulations. This can result in remedies that are 
less protective of human health and the environment. (See 54 FR 41566, 
October 10, 1989; 58 FR 8658, (February 16, 1993); and the information 
in the docket to today's proposed rule)).
    In the administration of remedial programs such as Superfund and 
the RCRA corrective action program, EPA and the States are already 
faced with an unacceptable situation that must be remedied while 
operating within the technical and practical realities of the site. 
Remedial actions generally receive intensive government oversight, and 
remedial decisions are made by a State or Federal Agency only after 
site-specific conditions have been thoroughly investigated. In 
contrast, prevention-oriented hazardous waste regulations are generally 
implemented independently by facility owner/operators through 
compliance with national regulatory requirements.
    In addition to differences in the incentives and objectives of 
cleanup- and prevention-oriented programs, EPA and the States recognize 
that frequently there are significant differences between ``as-
generated'' process wastes and contaminated media or other remediation 
wastes. For example, contaminated media are often physically quite 
different from as-generated wastes. Contaminated soils often contain 
complex mixtures of multiple contaminants, and are highly variable in 
their composition, handling, and treatability characteristics. For this 
reason, treatment of contaminated soils can be particularly complex, 
involving one or a series of custom-designed treatment systems. As-
generated wastes, however, are usually more consistent in composition, 
since they are derived from specific known manufacturing processes.
    Historically, EPA and the States have sought to address the 
application of RCRA's prevention-oriented standards to remedial actions 
through a series of regulatory and policy directives. These policies 
aim at preserving RCRA's goal of protectiveness, while providing 
government regulators the flexibility and tools necessary to craft 
effective site-specific remedies. These include the ``Area of 
Contamination'' policy, the ``Contained-in'' policy, the presumption 
for LDR treatment variances for contaminated soils, and the regulations 
for Corrective Action Management Units and Temporary Units, which are 
discussed in section (V)(F) of this preamble. (See e.g., 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); section 
(V)(A)(4)(a) of today's preamble; 55 FR 8666, 8758-8760 (March 8, 
1990); ``Superfund LDR Guide #6A (2nd Edition) Obtaining a Soil and 
Debris Treatability Variance for Remedial Actions'' EPA/Superfund 
Publication: 9347.3-06FS (September 1990); ``Superfund LDR Guide #6B 
Obtaining a Soil and Debris Treatability Variance for Removal Actions'' 
EPA/Superfund Publication: 9347.3-06BFS (September 1990); and 58 FR 
8658 (February 16, 1993)).
    With the exception of the Corrective Action Management Unit 
regulations, EPA is not proposing that this rulemaking withdraw any of 
these policies or directives.
    Instead, EPA seeks to formally recognize the differences between 
as-generated waste and contaminated media, by creating a framework 
that: (1) Allows State and Federal regulators to impose site-specific 
management requirements on lower-risk contaminated media, and (2) 
modifies LDR treatment and other requirements that are applicable to 
higher-risk contaminated media. Since EPA proposes that higher-risk 
contaminated media remain subject to regulation as ``hazardous waste,'' 
management of these media would remain subject to most of the other 
applicable RCRA Subtitle C requirements.
    EPA has found that the administrative procedures associated with 
issuance of RCRA permits can often significantly delay cleanup actions. 
To relieve this problem, EPA is also proposing to streamline the 
administrative requirements for hazardous waste permits that are needed 
for government-overseen remedial actions. In addition, the proposal 
contains provisions for State authorization not only for today's 
proposal, but for all RCRA program revisions, specifically including 
the Revised Technical Standards for Hazardous Waste Combustion 
Facilities and the HWIR waste proposals. These are much more 
streamlined than the RCRA program's current procedures.
    In today's notice, EPA is also soliciting comment on an approach 
that would remove remediation wastes--defined broadly-- from the 
definition of solid waste, if they were managed under a State or EPA-
approved plan.
    In another matter, today's proposal would exclude dredged material 
from RCRA Subtitle C when it is managed according to a permit under CWA 
or MPRSA.
    Finally, EPA wishes to emphasize that this proposal and other 
alternatives discussed address only the management of wastes that are 
generated during cleanup actions--it does not consider issues 
associated with what wastes should be cleaned up, what the cleanup 
levels should be, or how remedies are selected. EPA believes that these 
and other ``how clean is clean'' issues are best determined by other 
State and Federal regulations and guidelines.
    Throughout the development of today's proposal, EPA has worked very 
closely with States as ``co-regulators,'' and the Agency believes that 
most States share the views and goals expressed in these pages by EPA.

B. Relationship to Previous Regulatory Initiatives

    As noted above, the need for an alternative regulatory scheme for 
management of contaminated media and remediation waste has been 
recognized for some time. In recent years, EPA has developed several 
regulatory initiatives to address that need. Today's proposal is 
intended to address the issues and problems discussed above in a 
single, comprehensive regulatory package. As such, it modifies and/or 
replaces many of the Agency's previous regulatory initiatives, as 
discussed below.
1. Proposed Subpart S Corrective Action Regulations
    In July 1990, EPA proposed comprehensive regulations to address the 
substantive and procedural requirements for implementing corrective 
actions at RCRA facilities under the authorities of RCRA sections 
3004(u) and 3004(v) (42 USC Secs. 6924(u),(v)). Commonly known as the

[[Page 18783]]

``Subpart S proposal,'' the proposal discussed various technical issues 
associated with site cleanup including ``action levels'', cleanup 
standards, remedy selection, points of compliance and other cleanup 
requirements. The Subpart S proposal has been the primary guidance for 
the RCRA corrective action program since its publication.
    In general, the Subpart S proposal contemplated that contaminated 
media would be subject to the same regulatory requirements that apply 
to as-generated wastes. Although EPA generally did not use the Subpart 
S proposal to address issues associated with contaminated media 
management, the Agency did introduce the concept of Corrective Action 
Management Units (CAMUs) and temporary units (TUs) as a means of 
providing some relief from the burdens that LDRs and other Subtitle C 
requirements can impose on cleanup activities. The CAMU concept is 
discussed more completely below, and in section (V)(F), of today's 
proposal.
    Today's proposal would establish a more definitive and 
comprehensive set of requirements for the management of contaminated 
media--and provide considerably more regulatory relief--than the 
Subpart S proposal would have in this area. Currently EPA is 
reexamining the Subpart S proposal, and working to finalize and/or 
repropose some of those regulations in approximately 18 months. As a 
precursor to the Subpart S rulemaking, the Agency is issuing an 
Advanced Notice of Proposed Rulemaking (ANPRM). One of the purposes of 
the ANPRM is to describe the relationship of the Subpart S initiative 
to other Agency initiatives, including today's proposal. The Agency 
expects that if finalized, the HWIR-media rules will be an essential 
complement to and an integral part of the final RCRA corrective action 
regulations.
2. Final Rules for Corrective Action Management Units (CAMUs)
    On February 16, 1993 EPA published final regulations for CAMUs and 
TUs (58 FR 8658). In essence, the CAMU concept provides considerable 
flexibility to EPA and implementing States to specify design, 
operating, and closure/post closure requirements for units used for 
land-based temporary storage, or for treatment of wastes that are 
generated during cleanup at an RCRA facility. The CAMU also specifies 
requirements for units that are used as long-term repositories for 
cleanup wastes. Decision criteria for the designation of CAMUs are 
specified in those rules. Most importantly, the placement of cleanup 
wastes into an approved CAMU does not trigger RCRA LDR requirements (40 
CFR 264.552 (a)(1)). Thus, appropriate treatment requirements can be 
specified by the overseeing Agency <SUP>1 on a site- and waste-specific 
basis. In addition, the CAMU rule provides that consolidation or 
placement of cleanup wastes into a CAMU does not trigger RCRA section 
3004(o) minimum technology requirements (MTRs) (40 CFR 264.552 (a)(2)).
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    \1\  Throughout this notice, EPA uses the term ``overseeing 
agency'' to mean either EPA or the State authorized for the HWIR-
media program. Most States are authorized for the RCRA base program, 
and so would be eligible, as appropriate, to receive authorization 
for the HWIR-media program if they chose to do so (for a discussion 
of authorization for LDRs under this proposal, see the State 
authorization discussion in this preamble). For those States not 
authorized for the RCRA base program, EPA would operate the HWIR-
media program in that State, just as it operates the rest of the 
RCRA program in that State. Also, EPA might run a cleanup program 
(e.g., RCRA Corrective Action or Superfund) in a State that receives 
authorization for the HWIR-media program. In that case, EPA would 
consult with or seek approval from the State, as appropriate, in 
order to approve the RMP. The Agency hopes that the EPA Regions and 
States will develop agreements regarding how this approval will take 
place.
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    The CAMU rule did not address, however, issues pertaining to the 
delay often caused by the need to obtain RCRA permits for cleanup 
actions. While the regulations provide relief from MTRs and LDRs, CAMUs 
must be approved by the same procedures used for approving other types 
of hazardous waste management units; i.e., through RCRA permits or 
permit modifications, or through orders.
    The CAMU rule received broad support from many affected 
stakeholders. Since its adoption, EPA and the States have been using 
the CAMU rule to provide appropriate regulatory relief for cleanups 
conducted under RCRA, CERCLA, and State cleanup authorities. Some 
parties, however, have expressed concern that, according to the rule, 
LDRs do not apply to wastes managed in a CAMU. They have questioned 
whether the rule provides too much discretion to EPA and the States, 
and whether this discretion could result in unacceptably lenient 
treatment requirements. On May 14, 1993 these parties filed a petition 
for review with the U.S. Court of Appeals for the District of Columbia 
Circuit which challenged both the legal and policy bases for the final 
CAMU rules. Environmental Defense Fund v. EPA, No. 93-1316 (D.C. Cir.).
    As part of the dialogue that prefaced the creation of the HWIR 
Federal Advisory Committee (discussed more fully in section C, ``Origin 
of Today's Proposed Rule''), the Agency agreed to reexamine the CAMU 
regulations in the context of developing this proposal, which is 
intended to be a broader, more comprehensive response to the problems 
in applying traditional RCRA Subtitle C standards to the management of 
remediation wastes. As discussed in detail elsewhere in this preamble 
(see section (V)(F)), today's proposal would supersede the CAMU 
regulations. A more detailed discussion of the relationship between 
today's proposal and the CAMU regulation is presented in section 
(V)(F).
3. Proposed Land Disposal Restrictions for Hazardous Soils
    On September 14, 1993 (58 FR 48092), EPA proposed the ``Phase II'' 
land disposal restriction regulations, which included provisions to 
establish constituent-specific treatment standards for soils 
contaminated with hazardous wastes. In that proposal, the Agency 
reiterated that combustion is not always the appropriate BDAT for 
soils, and proposed treatment standards tailored specifically to 
contaminated soils. The Agency acknowledged the limitations of the data 
available when the proposal was written regarding the levels that can 
be achieved by treating various matrices of contaminated soils with 
available technologies (58 FR 48092, 48125 (September 14, 1993)). 
Because of these uncertainties, the Agency outlined several options to 
establish treatment standards for contaminated soils. Two options 
described in the proposal's preamble would have based soil treatment 
standards on some multiplier of the universal treatment standards for 
hazardous wastes (which were included in the same proposal). Another 
proposed option was based on a simple 90% reduction standard. The Phase 
II proposal also contained provisions for codifying the RCRA 
``contained-in'' policy for soils. This policy, which is discussed in 
detail in section (V)(A)(4)(a) of this preamble, is based on the 
concept that environmental media (e.g., soils, ground water) that are 
contaminated with listed hazardous wastes or that exhibit a hazardous 
characteristic are not of themselves hazardous. However, these media 
must be regulated under Subtitle C because they contain hazardous 
wastes; conversely, once they are determined to no longer contain 
hazardous wastes, the media are generally no longer regulated under 
RCRA Subtitle C.
    EPA received a number of comments on the proposed soil treatment 
standards, many of which strongly urged the Agency to address LDR 
treatment standards for contaminated

[[Page 18784]]

soils and codification of the contained-in policy in the context of 
HWIR-media regulations, rather than as part of the LDR Phase II rule. 
The Agency agreed with those who commented, and in a subsequent Federal 
Register notice (58 FR 59976, November 12, 1993) announced its 
intention to use the HWIR-media rule as the vehicle for promulgating 
these standards. That notice also extended the deadline for comments 
and data concerning Phase II provisions for hazardous soils to March 
18, 1994. The Phase II final rule (minus the soil treatment standards) 
was promulgated on September 19, 1994 (59 FR 47980).
4. Deferral of the Toxicity Characteristic for Petroleum Contaminated 
Media and Debris From Cleanup of Releases From Underground Storage 
Tanks (USTs)
    On February 12, 1993, EPA published a proposal to defer the 
applicability of the toxicity characteristic (TC) rule for petroleum 
contaminated media and debris that are generated during underground 
storage tank cleanups. This was a follow-up proposal to the Agency's 
original temporary deferral, which was part of the final rulemaking for 
the toxicity characteristic (55 FR 11798, 11862, March 29, 1990). The 
Agency will be assessing studies to support a final decision as to 
whether UST petroleum contaminated media and debris should be regulated 
as hazardous wastes under RCRA Subtitle C. Today's proposal does not 
address whether or not this material should be regulated as hazardous 
waste; thus, the temporary exclusion described here will remain in 
effect until the Agency publishes a separate final rulemaking 
determination. (Note that because today's proposal does not address 
this issue, it does not reopen the comment period for the February 12, 
1993 proposal.)
5. Suspension of the Toxicity Characteristic for Non-UST Petroleum 
Contaminated Media (Proposed Rule)
    On December 24, 1992, EPA proposed to suspend temporarily the 
applicability of the toxicity characteristic (TC) to media contaminated 
with releases of petroleum from sources other than underground storage 
tanks. This proposal was developed in response to petitions from a 
number of States. Their contention was that exempting petroleum 
contaminated media from UST cleanups--while cleanup of petroleum 
releases from other sources (such as aboveground tanks) remained 
subject to Subtitle C--made little sense.
    In December 1992, EPA answered the States' petitions, and announced 
its intention to suspend the applicability of the toxicity 
characteristic to all petroleum contaminated media (57 FR 61542). The 
suspension would have taken effect only in States that certified that 
they had effective authorities and programs in place that could compel 
cleanup and regulate the management of such petroleum contaminated 
media in a protective manner. Also, the suspension would only apply to 
media generated during State or Federally supervised cleanup actions. 
EPA proposed that the suspension be effective for three years, during 
which time the Agency would conduct more thorough studies to determine 
whether or not--and how--petroleum contaminated media should be 
regulated under RCRA.
    After the proposed suspension was published, it became clear that 
many issues addressed in that proposal applied not only to media 
contaminated by petroleum releases, but also to the management of all 
types of contaminated media. The issues associated with judging the 
adequacy of State cleanup programs and whether such programs can ensure 
protective management of cleanup wastes outside of the Subtitle C 
system were also recognized as relevant to other regulatory initiatives 
involving State authorization under RCRA.
    Soon after the publication of the proposed suspension, the Agency, 
in concert with the States and other stakeholders, launched a major, 
comprehensive effort to address the regulation of contaminated media 
under Subtitle C. (See the following discussion of the HWIR-media 
rulemaking proposal). EPA and the others recognized that these more 
comprehensive HWIR-media rules would have to deal essentially with the 
same set of issues addressed in the proposed suspension for petroleum 
contaminated media. Thus, finalizing the proposed suspension would have 
required reaching decisions on a number of issues common to both rules.
    In effect, finalizing the TC suspension rule would have preempted 
the HWIR-media process in many respects. To preserve the process, and 
to avoid the redundancy of developing two regulations to address the 
same basic problems, EPA decided not to proceed with finalizing the TC 
Suspension. Instead, the Agency chose to address those issues in the 
broader context of the HWIR-media rulemaking process.
    The Agency believes that the flexibility introduced into Subtitle C 
requirements in today's proposal sufficiently addresses the issues 
raised under the proposed ``Suspension of the Toxicity Characteristic 
for Non-UST Petroleum Contaminated Media,'' and therefore believes that 
if the HWIR-media rule is finalized, it will not be necessary to 
finalize the TC suspension. The Agency requests comments on whether 
additional flexibility (beyond that provided for in today's proposal) 
is necessary for non-UST petroleum contaminated media.
6. Proposed Hazardous Waste Identification Rule (May 20, 1992)
    Shortly after the publication of the proposed TC suspension, the 
Agency completed a separate (but related) rulemaking proposal, commonly 
referred to as the Hazardous Waste Identification Rule (HWIR) (57 FR 
21450, May 20, 1992). This proposed rule was issued in response to the 
U.S. Court of Appeals, District of Columbia Circuit's vacature of the 
mixture and derived from rules (Shell Oil Co. v. EPA, 950 F.2d 741 
(D.C. Cir. 1991)), which were issued in 1980 as part of the original 
RCRA hazardous waste regulations. In that HWIR proposal, EPA outlined 
alternative regulatory approaches for establishing ``exit'' levels for 
hazardous wastes (i.e., concentration levels below which listed 
hazardous wastes would no longer be subject to Subtitle C 
jurisdiction). The primary focus of the HWIR proposal was on the 
``exit'' of as-generated hazardous wastes from the Subtitle C system. 
However, a separate portion of the proposal outlined conceptual 
approaches for revising Subtitle C requirements as they currently apply 
to the management of contaminated media (57 FR 21450, 21463, May 20, 
1992).
    The HWIR proposal received considerable interest. A number of 
commenters expressed strong concerns about the proposal as a whole, and 
the process that was used to develop it. Some of the concerns focussed 
on EPA's failure to consult with the States and the public prior to 
issuing the very complex and significant proposal. Because of process 
related issues, the strong views expressed by the States, and the 
importance of the rulemaking, EPA decided that a more deliberate and 
inclusive process was needed for developing the regulations. On October 
5, 1992 the Agency formally announced its intention to withdraw the May 
20, 1992 proposal, and start a series of discussions with various 
stakeholders to develop a new, carefully considered approach to 
crafting both exit levels for ``as-generated'' wastes and management 
standards for cleanup of contaminated media.

[[Page 18785]]

7. Relationship to CERCLA
    The rule being proposed today would be expected to have a 
significant impact at sites being addressed under CERCLA. Superfund 
sites generate large quantities of remediation waste, and compliance 
with RCRA requirements in the management of this waste has been a 
recurring concern. The substantive requirements of RCRA Subtitle C, 
including land disposal restrictions, apply to hazardous wastes at 
these sites, and permits are required for off-site actions.
    Under the approach proposed today, the flexibility being provided 
for management of remediation waste would be available to CERCLA 
responses. It should be noted, however, that CERCLA responses must 
comply with all ``applicable'' or ``relevant and appropriate'' 
requirements, both Federal and State. Therefore, until a RCRA 
authorized State is authorized for the HWIR-media rule, the State's 
existing RCRA regulatory system would be applicable (or relevant and 
appropriate) to Superfund actions in the State.
8. Relationship to HWIR-waste Rule (Dec. 21, 1995)
    See preamble section (IV)(C).
9. Relationship to RCRA Legislative Reform
    On March 16, 1995 the President committed to identify high cost, 
low benefit provisions of the Resource Conservation and Recovery Act 
(RCRA) for legislative reform. After an extensive stakeholder outreach 
process, the Administration selected two issues. The first issue for 
legislative reform, an exemption for certain low risk wastes from 
costly regulation under RCRA's land disposal restrictions program, was 
signed into law--the Land Disposal Flexibility Act--by the President on 
March 26, 1996.
    The second topic identified for legislative reform was the 
application of RCRA hazardous waste management requirements to cleanup 
wastes. The Administration currently is discussing with stakeholders 
and Congress the possible development of bipartisan legislation to 
expedite the safe and cost-effective management of cleanup wastes that 
are currently subject to RCRA hazardous waste management requirements. 
In addition to RCRA cleanup sites, the type of reform being discussed 
would benefit site cleanups under Superfund, Brownfields and State 
voluntary programs. EPA has requested comment on a range of 
alternatives to today's proposal that are consistent with the range of 
alternatives being discussed for legislative reforms.

C. Origin of Today's Proposed Rule

    In order to facilitate discussions with various stakeholders, EPA 
established a formal advisory Committee, chartered under the Federal 
Advisory Committee Act (FACA). Chaired jointly by the Director of the 
Office of Solid Waste and the Commissioner of the Oregon Department of 
Environmental Quality (representing the States as ``co-regulators''), 
the HWIR FACA Committee included representatives from industry, 
environmental organizations, the States, and other affected 
organizations.
    One of the initial decisions reached by the FACA Committee was to 
create separate sub-groups to address the two major components of the 
rule--the provisions for contaminated media, and the provisions for as-
generated wastes. Since then, these two efforts have proceeded in 
parallel, and have evolved into separate but obviously related 
rulemakings. A more complete description of the proceedings of the HWIR 
FACA Committee and subsequent deliberations of its two sub-groups can 
be reviewed in the Docket for this rule, and the HWIR-waste rule (60 FR 
66344-469, Dec. 21, 1995).
    In July 1993 the FACA Committee developed and approved a conceptual 
framework for the HWIR-media rule. Commonly referred to as the 
``Harmonized Approach,'' this framework embodied a number of 
compromises reached among the participants in the process. It was 
recognized by the Committee that the Harmonized Approach was only a 
conceptual outline for crafting a proposed HWIR-media rule, and that a 
number of important issues remained to be resolved. However, the 
participants agreed that EPA, in partnership with the States, should 
begin the formal rulemaking process with the objective of assessing the 
remaining issues, determining the viability of such a rule from a 
legal, technical, and policy standpoint, and if possible, developing a 
proposed rule that embodied the general concepts and directions 
outlined in that approach. Today's proposal represents the culmination 
of those efforts.
    It should be understood that this proposal, which is patterned 
after the Harmonized Approach, represents the Agency's best efforts to 
fulfill the directive of the HWIR FACA Committee. In developing the 
proposal it was necessary to make decisions on a number of important 
issues, some of which were not specifically addressed in the Harmonized 
Approach, including some issues that were not identified during the 
FACA process. The Agency recognizes that although tentative consensus 
was reached by the FACA Committee on the harmonized approach, it cannot 
be assumed that today's proposal will meet with the approval of all 
members of the Committee. In fact, some stakeholders have already 
expressed concerns with some of the specifics of today's proposal.
    It is the Agency's view that today's proposal would offer many 
benefits beyond the present regulatory situation. However, it is quite 
possible that other, different regulatory approaches could achieve the 
same objectives and levels of protection, and might offer other 
advantages in terms of simplicity, cost-effectiveness and/or ease of 
implementation. A discussion of possible alternative approaches to 
today's proposed rule is presented in sections IV and VI of this 
preamble.
    In any case, EPA in consultation with the States, will continue to 
seriously examine the strengths and weaknesses of the proposal 
presented in today's notice, and of the alternatives discussed. The 
Agency specifically requests comments on the approaches taken in 
today's proposed rule, and the specific strengths and weaknesses of the 
proposed options as well as the alternatives discussed in section VI of 
this preamble.
    Alternative regulatory approaches, and any advantages they may have 
in comparison to today's proposal, will be very carefully considered. 
The Agency is committed to issuing a final HWIR-media rule that 
achieves as much desirable regulatory relief as possible, that is 
protective of human health and the environment, and that can be easily 
understood and implemented.

III. EPA's Policy Objectives for the HWIR-Media Rule

    In developing today's proposal, EPA, in consultation with the 
States, identified several key policy objectives. These are discussed 
below.

Special Requirements Should Be Developed That Are Appropriate for 
Management of Contaminated Media

    As discussed above, based on their experiences overseeing and 
implementing environmental cleanups, EPA and the States believe that 
many of the current prevention-oriented regulations under RCRA are 
inappropriate for regulating the management of contaminated media. EPA 
and the States have found that these prescriptive standards can create 
disincentives for action, and constrain the range of options available 
to

[[Page 18786]]

environmental remediators. Thus, in order to better align the 
regulatory controls for the unique challenges associated with 
contaminated media, existing Subtitle C requirements should be modified 
to create a more flexible and common-sense regulatory system for 
management of contaminated media.

Requirements for Management of Contaminated Media Should Be Flexible 
and Should Reflect Actual Media Cleanup Site Conditions and the 
Characteristics of the Contaminated Media

    EPA and the States have found that cleanup of hazardous waste sites 
often requires regulators to make numerous site- and media-specific 
cleanup decisions that can be at odds with RCRA's uniform national 
standards. Although some may argue that applying uniform national LDR 
treatment standards and other national standards is appropriate for 
contaminated media, EPA is persuaded that for the most part, site-
specific flexibility is necessary to ensure the most effective 
management of these wastes. EPA further believes that EPA and/or State 
oversight of media management activities will ensure that this 
additional flexibility will not be abused.

State and Federal Cleanup Programs That Have Adequate Authorities and 
That Are Responsibly Administered Can and Should Be Relied Upon To 
Exercise Sound Professional Judgment in Implementing HWIR-Media 
Regulations

    For some time many States have been successfully operating cleanup 
programs under State authorities. These States have often completed 
cleanups at substantial numbers of sites, and have demonstrated a 
capability for overseeing technically complex cleanups while ensuring 
adequate protection of human health and the environment. Many of these 
programs are patterned after existing Federal programs such as CERCLA 
or RCRA corrective action. EPA is confident, therefore, that many 
States will be able to effectively implement these new regulations, and 
exercise sound judgment in making site-specific management decisions.

HWIR-Media Regulations Should to the Extent Possible Remove 
Administrative Obstacles To Expedite Cleanups, and Provide Incentives 
for Voluntary Initiation of Cleanup by Responsible Parties

    The obstacles posed by RCRA permit requirements for cleanups that 
involve on-site treatment, storage or disposal of contaminated media, 
and other cleanup wastes have been recognized for some time. EPA 
believes that today's proposal would provide considerable relief from 
these administrative obstacles. At the same time, adequate 
opportunities for public participation must be maintained. EPA believes 
that the new administrative procedures presented in today's proposal 
for remedial actions that would otherwise require traditional RCRA 
permits would meet the goal of streamlining the process, while 
maintaining opportunities for public participation.
    Because this proposal would provide considerable substantive relief 
(through more flexible management standards), and relief from 
administrative obstacles, EPA believes that the rule would have the 
additional benefit of stimulating voluntary initiation of cleanup 
actions by owners and operators of contaminated properties.

Authorizing States for HWIR-Media Regulations Should Be Streamlined and 
Simplified To Save Time and Resources

    The process for authorizing States for the RCRA Subtitle C program 
has been characterized by lengthy procedures, large resource 
expenditures, and detailed, line-by-line reviews of State authorization 
applications. The goal of these procedures has been to ensure before 
the State may receive authorization, that State programs are 
equivalent--in the strictest sense of the word--to the Federal program. 
EPA views the HWIR-media regulations as an opportunity to rethink the 
State authorization process, with the goal of creating a new approach 
that relies on less up-front review by EPA, a greater reliance on 
certification by States, and more credible and effective sanctions on 
States that do not effectively implement the regulations for which they 
are authorized. EPA expects that this new approach to State 
authorization will be applied to other parts of the RCRA program. If it 
is successful, the approach may become the template for the RCRA 
program as a whole. (This is discussed in more detail in section 
(V)(E).)

The Regulations Should Be Easy To Understand

    The RCRA Subtitle C program has been criticized by many for being 
overly complex and thus difficult to comply with. This rule is not 
intended to fix all of the program's complexities; however, a primary 
objective in creating this new regulatory framework for management of 
contaminated media was to ensure that the new regulations are as easy 
to understand--and implement--as possible.

IV. Introduction and Overview of Today's Proposal and Alternatives to 
Today's Proposal

A. Today's Proposed Approach

    Today's proposal would establish two new regulatory regimes for 
management of contaminated media that would otherwise be subject to 
regulation under the current RCRA Subtitle C regulations, if the media 
are managed under the oversight of EPA or an authorized State. The rule 
would establish a ``Bright Line''--a set of constituent-specific 
concentrations--to distinguish between those two regimes based on 
whether media are more highly contaminated, or contaminated at lower 
levels.
    Media which were contaminated with constituent concentrations below 
Bright Line values would be eligible to exit from Subtitle C regulation 
if the State or EPA determined that the media did not contain waste 
that present a hazard (i.e., hazardous waste). (See RCRA Sec. 1004(5)). 
Most management requirements for contaminated media that do not contain 
hazardous wastes would be specified by the overseeing Agency on a case-
by-case basis.
    Today's proposal also addresses application of the Land Disposal 
Restrictions (LDRs) to both hazardous and non-hazardous contaminated 
media. Hazardous contaminated media are environmental media that 
contain hazardous wastes or exhibit a hazardous characteristic and have 
not been determined, pursuant to Sec. 269.4, to no longer contain 
hazardous wastes. Non-hazardous contaminated media are media 
determined, pursuant to Sec. 269.4, not to contain hazardous waste. 
LDRs apply to media contaminated by hazardous wastes when the wastes 
were land disposed after the effective date of the applicable land 
disposal prohibitions. When the wastes that are contaminating the media 
were land disposed before the effective date of the applicable land 
disposal prohibitions, LDRs attach to the media when the media are 
removed from the land, unless the media have been determined not to 
contain hazardous wastes before they are removed from the land. Media 
subject to the LDRs must be treated to meet LDR treatment standards 
prior to placement, or re-placement, in a land disposal unit (except a 
no-migration unit). As stated above, media contaminated by hazardous 
wastes placed before the effective dates of the applicable land 
disposal prohibitions and determined to no-longer contain hazardous 
waste before they are removed from the land are not subject to the land 
disposal restrictions.

[[Page 18787]]

    In some cases, hazardous contaminated media may be determined to 
no-longer contain hazardous waste, but may remain subject to the land 
disposal restriction treatment standards. As discussed more completely 
later in today's preamble, this is based on the logic that, once 
attached, the obligation to meet land disposal restriction treatment 
standards continues even if a waste is no longer considered hazardous 
under RCRA Subtitle C.
    Under current regulations, media subject to the land disposal 
restriction treatment standards must meet the standards for the 
hazardous wastes contained (or, in some cases, formerly contained) in 
the media, that is, the same treatment standard the contaminating 
hazardous wastes would have to meet if they were newly generated. 
Today's proposal would modify the land disposal restriction treatment 
standards for media subject to the LDRs so that the treatment standards 
reflect the site-specific nature of cleanup activities and media 
treatment technologies and strategies more accurately and 
appropriately. Today's proposal also establishes new Media Treatment 
Variances to ensure that, when the generic LDR treatment standards are 
technically impracticable or inappropriate or, for contaminated media 
with all constituent concentrations below the Bright Line, when the 
statutory LDR standard can be met with less treatment than required by 
the generic LDR treatment standards, appropriate treatment will be 
required. When contaminated media determined by a State or EPA to no-
longer contain hazardous waste is still subject to the LDRs, today's 
proposal establishes a policy that site-specific Media Treatment 
Variances would be appropriate.
    Contaminated media that contain hazardous wastes would continue to 
be regulated as hazardous wastes, but certain Subtitle C requirements 
would be modified. Most importantly, the LDR treatment standards for 
media would be amended, to account for the highly variable 
characteristics of media (such as soils) that are mixed with hazardous 
wastes, and the technical uncertainties involved with treating such 
heterogeneous materials. One of the primary objectives of the proposed 
rule is to replace generic, national standards with more tailored and 
flexible requirements for contaminated media. The rule would establish 
a new mechanism for imposing these site-specific requirements--
remediation management plans (RMPs). These plans would be the vehicle 
for imposing (and enforcing) the new requirements, while ensuring 
public participation in the decision making process. An approved RMP 
would be required for both wastes that contain hazardous wastes and 
those determined not to contain hazardous wastes. Thus, the regulations 
would not be self-implementing--the increased flexibility allowed under 
the new rules would be available to owner/operators and other 
responsible parties only when there is sufficient government oversight 
to ensure that such flexibility is not abused.
    The use of RMPs should accelerate and streamline cleanup actions in 
several ways. First, an approved RMP would be considered a RCRA permit, 
eliminating the need to issue traditional, time-intensive RCRA permits 
for cleanup actions. Second, the procedures for reviewing and approving 
RMPs would be considerably less complex than those required for RCRA 
permits. Third, RMP's would not trigger the requirement for facility-
wide (and beyond facility boundary) corrective action requirements 
under Sec. 3004(u) and (v) of RCRA. Thus, the delays and other 
disincentives that have often been caused by the need to obtain a RCRA 
permit for certain cleanup activities should be significantly eased.
    It should be noted that certain types of remediation wastes, such 
as sludges, debris, and other non-media remediation wastes, would not 
be subject to the more flexible treatment standards specified in the 
proposal and could not exit from hazardous waste regulation through a 
contained-in determination. Such materials would be subject to the 
traditional Subtitle C regulations, including LDR requirements. 
However, RMPs could be used (at the discretion of the overseeing 
Agency) to address all types of remediation wastes.
    Today's proposal would also replace the current regulations for 
CAMUs, which were promulgated on February 16, 1993. New CAMUs could not 
be approved after the publication date of the final HWIR-media rule; 
however, existing CAMUs would be ``grandfathered'', and could continue 
operating for the duration of the remedial operations. For situations 
in which cleanup wastes are simply stored or treated in piles as part 
of cleanup activities, a new type of unit--a remediation pile--could be 
used without triggering LDRs and MTRs. A significant difference between 
the requirements for these remediation piles and the current CAMU 
requirements is that these piles would be only temporary and could not 
be used as a disposal option for remediation wastes. Remediation piles 
could only be used during the duration of the cleanup activities at the 
site.
    Another important feature of this proposal is it's new approach to 
authorizing States for the rule, which would be much more streamlined 
than existing authorization procedures. Under the new approach, States 
would certify that they have an equivalent program, and EPA would only 
do a very brief review prior to authorization, rather than a meticulous 
line-by-line review of the States' regulations to determine 
equivalence. Once authorized, EPA would monitor the State's 
implementation of the program. Ultimately, the Agency could revoke a 
State's authorization specifically for this rule, without having to 
revoke the State's entire RCRA program (as is currently the case).

B. Alternative Approaches Including Unitary Approach

    The Agency also solicits comments regarding alternative approaches 
to implementing the objectives of today's proposal. An alternative that 
was originally suggested by Industry stakeholders has received 
attention and support from many stakeholders. This alternative approach 
is commonly referred to as the ``Unitary Approach.<SUP>2'' The Unitary 
Approach would exempt all cleanup wastes (including contaminated media 
and non-media remediation wastes) from Subtitle C regulation if they 
meet certain conditions (the rule would thus be based on a conditional 
exclusion theory). The conditional exclusion requires that these 
remediation wastes be managed under an enforceable ``Remedial Action 
Plan'' or RAP approved by EPA or an authorized State program. The 
Unitary Approach would not include a Bright Line concept. All cleanup 
wastes would be subject to site-specific management requirements set by 
the overseeing Agency (EPA or State) in the RAP. EPA also believes that 
many of the key elements of different options and alternatives 
discussed in this proposal could be combined in different ways to 
construct an effective HWIR-media program. The following table 
illustrates three different combinations of the key elements, and is 
intended to facilitate comparison of options. A further discussion of 
alternative approaches and hybrids, is provided in section VI of the 
preamble to today's proposal.
---------------------------------------------------------------------------

    \2\  See letter from James R. Roewer, USWAG Program Manager, 
Utilities Solid Waste Activities Group, to Michael Shapiro, 
Director, Office of Solid Waste, EPA (September 15, 1995) in the 
docket for today's proposal.

[[Page 18788]]



                                                     Table 1                                                    
----------------------------------------------------------------------------------------------------------------
                                                                  Hybrid contingent                             
           Key elements                 Proposed option          management  option         Unitary approach    
----------------------------------------------------------------------------------------------------------------
Legal Theory.....................  Contained-in.............  Conditional Exclusion     Conditional Exclusion.  
                                                               for below the Bright                             
                                                               Line.                                            
Scope............................  Media only...............  All remediation wastes..  All remediation wastes. 
Bright Line......................  Bright Line--10<SUP>-3 and      Bright Line (a) (for      No Bright Line.         
                                    Hazard index of 10.        media) same as                                   
                                                               proposal, or (b)                                 
                                                               qualitative Bright                               
                                                               Line<SUP>1.                                           
Hazardous vs. Non-hazardous......  All media above Bright     All remediation wastes    All remediation wastes  
                                    Line are subject to        above Bright Line are     managed according to   
                                    Subtitle C; below is       subject to Subtitle C;    RAP or RMP are not     
                                    site- specific decision.   below (when managed       hazardous.             
                                                               according to RAP or                              
                                                               RMP) are not hazardous.                          
LDRs.............................  LDRs required for media    LDRs required for wastes  LDRs required for wastes
                                    where LDRs attaches <SUP>2.     where LDRs attaches <SUP>2.    where LDRs attaches.<SUP>3  
Permitting.......................  RMP serves as RCRA permit  RMP serves as RCRA        No requirement that RAP/
                                    for media that remain      permit for wastes that    RMP serve as RCRA      
                                    subject to Subtitle C.     are above the Bright      permit, since wastes   
                                                               Line; for wastes below    are not subject to     
                                                               the Bright Line, RMP      Subtitle C.            
                                                               does not have to serve                           
                                                               as RCRA permit.                                  
----------------------------------------------------------------------------------------------------------------
\1\ See discussion of qualitative Bright Line below.                                                            
\2\ See discussion of applicability of LDRs in section (V)(C).                                                  
\3\ See discussion of alternative option for LDR applicability in section (VI)(A)(3).                           

    The Agency believes that the alternative approaches provide more 
flexibility than today's approach, and requests comments on the Unitary 
Approach as an alternative to today's proposal, as well as other 
options that combine different key elements.

C. Relationship to HWIR-Waste Rule

    EPA recently proposed two approaches for exemptions from Subtitle C 
regulation that focus on listed hazardous wastes that are not 
undergoing remediation (60 FR 66344-469, Dec. 21, 1995). Under the 
``HWIR-waste'' proposal, listed wastes, wastes mixed with listed wastes 
and wastes derived from listed wastes would be eligible for exemption 
from Subtitle C where tests show that all hazardous constituents fall 
below one of the two sets of ``exit levels'' set out in the proposal.
    EPA's goal for the generic option was to identify levels of 
hazardous constituents that would pose no significant threat to human 
health or the environment regardless of how the waste was managed after 
it exited Subtitle C jurisdiction. EPA derived these exit levels by 
making reasonable worst case assumptions about releases from a variety 
of solid waste management units. The exit values are designed to be 
protective even if there is no further regulation or oversight by any 
Federal or State agency. Moreover, the proposal does not require any 
regulatory agency to review exit claims or make decisions as to whether 
an exit is warranted. As noted in that proposal, in addition to listed 
hazardous wastes, both contaminated media and wastes that do not 
contain media, but are undergoing cleanup, would be eligible to exit 
Subtitle C at these levels under this self-implementing process. 
However, since the exit levels do not account for site-specific factors 
that may exist at cleanup sites, large quantities of remediation wastes 
and contaminated media might not qualify for exit.
    The second set of exit levels proposed in the HWIR-waste notice is 
somewhat less conservative because risk reduction credit is given for 
the conditions of the exemption, thus, adhering to the overall risk 
protection goal. These levels, however, would be available only to 
waste handlers that comply with specified conditions for the management 
of the exempted wastes. (The proposed option has a condition 
prohibiting management in land application units.) The notice also 
describes and requests preliminary comments on several other options 
for conditional exemptions with more extensive conditions that would 
increase risk protection and would, presumably, yield even less 
conservative exit levels. One of these options described could allow 
regulatory agencies to calculate exemption levels for individual waste 
management facilities using site-specific data. Waste that exited under 
this option would be subject to the conditions of the exit, enforced 
through ordinary, periodic compliance inspections, as opposed to 
special site-specific oversight.
    Today's HWIR-media proposal, unlike the HWIR-waste generic option, 
does not seek to identify constituent concentrations that would be safe 
regardless of the manner in which the media is managed. Rather, it 
tries to distinguish between (1) contaminated media that are eligible 
to exit because it is likely that they can be managed safely under 
cleanup authorities outside of Subtitle C, and (2) media that contain 
so much contamination that Subtitle C management is warranted. For 
exempted media EPA is proposing to require that a regulatory agency 
make any appropriate site-specific decisions about the management of 
remediation wastes, and impose those decisions in an enforceable 
document. EPA also expects that States will conduct significant 
oversight of these requirements during the course of their remediation 
activities. This scheme provides for more extensive oversight than most 
of the conditional exemption options in the HWIR-waste proposal. 
Consequently, the ``Bright Line'' concentrations in this proposal (that 
identify media that are eligible for exclusion from Subtitle C) are not 
as conservative as either the generic or the proposed conditional 
exemption option in the HWIR-waste proposal. EPA anticipates that 
larger quantities of contaminated media will be eligible for exemption 
under this proposal than under the HWIR-waste proposal. (For a further 
discussion of the technical methodologies used for developing the HWIR-
waste exit levels and the HWIR-media Bright Line levels see section 
(V)(A)(4)(c) of today's preamble and the background documents for the 
two proposals in the docket.)
    Finally, this proposal, unlike the HWIR-waste proposal, provides 
additional flexibility for materials that remain subject to Subtitle C 
jurisdiction. For example, EPA is proposing special

[[Page 18789]]

permitting and land disposal restriction standards for proposed Part 
269. EPA believes this relief will increase environmental protection by 
reducing regulatory disincentives to cleanup.

V. Section-by-Section Analysis

A. General Provisions

1. General Scope of Today's Proposal--Sec. 269.1
    Today's proposal would establish a new Part 269 of 40 CFR, which 
would prescribe special standards for State or EPA-overseen cleanups 
managing contaminated media.
    In Sec. 269.1, today's proposed rule articulates several important 
provisions that apply generally to the Part 269 regulations, which are 
intended to clarify what these rules are intended to do. The following 
is a discussion of each of those provisions.
    The first provision (Sec. 269.1(a)) clarifies that the rules 
(except the provisions for RMPs, in Subpart D) would apply only to 
materials that would otherwise be subject to Subtitle C hazardous waste 
regulations. The rules would not expand the coverage of Subtitle C 
regulations, or otherwise cause wastes to be considered hazardous that 
have not been so regulated before. In other words, contaminated media 
would have to be hazardous by characteristic, or be contaminated with a 
listed hazardous waste to become subject to this rule's provisions. 
Other contaminated media--regardless of constituent levels--would not 
have to be managed as hazardous wastes, and therefore, would not fall 
under the scope of this rule.
    In discussions with various stakeholders, EPA has become aware that 
the ``coverage'' issue has been the source of some confusion. The rule 
has been perceived by some as applying to all media that might be 
managed as part of cleanup activities, rather than just those media 
that are currently subject to regulation as hazardous wastes. This 
provision is intended to clarify this point.
    The second provision (Sec. 269.1(b)) is intended to explain that 
today's proposal would only affect certain specific Subtitle C 
regulations as they apply to hazardous contaminated media (i.e., media 
that contain hazardous waste). The primary effect of Part 269 
concerning these media would be to replace the current LDR regulations 
(specified in Part 268) with modified treatment requirements, and to 
significantly streamline permit requirements. Other regulations that 
apply to treatment, storage, and disposal of hazardous wastes would 
continue to apply to hazardous contaminated media.<SUP>3 For example, 
if hazardous contaminated media were generated from cleanup 
activities--and subsequently stored in tanks or containers for greater 
than 90 days--the tanks and containers would have to comply with the 
Subparts I or J requirements of Part 264 (or Part 265, if at an interim 
status facility). Other Part 264 and 265 requirements would continue to 
apply in similar fashion.
---------------------------------------------------------------------------

    \3\ Note that this only applies to hazardous contaminated media; 
media exempt from Subtitle C because of contained-in decisions (see 
Sec. 269.4) would not be subject to any Subtitle C regulations 
except perhaps LDRs. (See discussion of LDRs in section (V)(C) of 
this preamble).
---------------------------------------------------------------------------

    The third provision (Sec. 269.1(c)) addresses the interplay between 
these HWIR-media rules and other cleanup-related laws and regulations. 
Specifically, it clarifies that remedy selection standards, other 
``how-clean-is-clean'' standards, and guidelines that are specified in 
cleanup statutes and/or regulations, would not be affected by these 
rules. EPA wishes to emphasize that the proposed HWIR-media rules would 
not affect which media or wastes at a site must be cleaned up, or how 
much contaminated media should be excavated. Such decisions are usually 
made according to Federal or State cleanup laws and regulations, most 
of which specify certain guidelines or criteria for determining how 
sites are to be cleaned up. Only after those decisions are made would 
these HWIR-media regulations come into play.
    The fourth provision (Sec. 269.1(d)) is meant to emphasize a very 
important point regarding the Bright Line, which is that the Bright 
Line values identified in the proposal are not designed as cleanup 
levels. As stated elsewhere in this preamble (see (V)(A)(4)(c)), the 
Bright Line concept has very little to do with setting cleanup levels 
or making other ``how-clean-is-clean'' decisions. Cleanup levels 
usually take into account various site-specific and contaminant-
specific factors, and are meant to ensure that risks from exposure to 
residual contamination are at acceptable levels. Bright Line 
concentrations would determine only whether the overseeing Agency has 
the discretion to conclude that media no longer contain hazardous 
waste, and therefore decide what management standards would apply to 
that media if generated during a cleanup. The use of Bright Line 
concentrations as cleanup levels would generally be inappropriate.
    The fifth, and final provision, (Sec. 269.1(e)) specifies that 
these rules would not be self-implementing. As explained elsewhere in 
this preamble, and in the proposed rule language (Sec. 269.1(e)), the 
provisions of Part 269 can only be implemented with oversight by EPA or 
an authorized State, by an approved Remediation Management Plan (RMP) 
or analogous document.
2. Purpose/Applicability--Sec. 269.2
    As described above, this rule would modify the existing Subtitle C 
requirements for the management of more highly contaminated media, and 
would, in effect, exempt lesser contaminated media (that are determined 
not to contain any hazardous waste, and are managed in accordance with 
an approved Remediation Management Plan (RMP)) from most RCRA Subtitle 
C requirements. For such less-contaminated media, EPA and the States 
would impose appropriate management requirements on a site- and waste-
specific basis, pursuant to authorities not reliant on the presence of 
RCRA hazardous waste.
    The Agency is proposing to promulgate these regulations in a new 
Part (Part 269) of Title 40 of the Code of Federal Regulations. Issuing 
the rules for contaminated media management in a readily identified, 
discrete part of the Subtitle C regulations should help to make them 
clearer and easier to understand for both regulators and the regulated 
community. Although an alternate approach was considered that would 
have promulgated the rules as a series of amendments and modifications 
to the existing Subtitle C regulations (Parts 260 to 271), EPA believes 
such an alternative would be more difficult to understand, and would 
add to the complexity of an already complex body of rules.
    Section 269.2 of today's proposal is intended to establish the 
general scope and applicability of these rules. As such, this part of 
the proposal addresses a number of important issues that were the 
subject of considerable debate during the FACA Committee process. The 
following is an explanation of how this proposal addresses those 
specific issues.
    Section 269.2 specifies that Part 269 (except Subpart D) would 
apply only to hazardous contaminated media, not to all cleanup wastes. 
Therefore, non-media remediation wastes (e.g., excavated drum waste) 
would be subject to the same regulatory requirements that apply to as-
generated hazardous wastes (with the exception of the Subpart D 
provisions for Remediation Management Plans). Likewise, hazardous 
debris under today's proposal would be subject to the existing LDR 
treatment standards

[[Page 18790]]

for debris, as well as other Subtitle C requirements.
    The question of which types of remediation wastes should be covered 
under the HWIR-media rule was one of the major issues left unresolved 
by the FACA Committee under the Harmonized Approach. Although all 
parties on the Committee agreed that hazardous contaminated media (as 
defined in Sec. 269.3--see ensuing preamble discussion) should be 
subject to this modified regulatory system, some groups argued that 
other types of remediation wastes, such as sludges, and other 
remediation wastes should also be covered by the rule. Those groups 
argued that separating media from non-media in this context is an 
artificial distinction that is inconsistent with the realities of 
managing wastes during cleanup operations. They contended that the 
rationale for modifying requirements for contaminated media applies 
equally to these non-media wastes (e.g., the presence of an overseeing 
agency, and disincentives for cleanup created by Subtitle C 
requirements). They maintained that the coverage of the rule should 
reflect the differences between cleanup- and prevention-oriented waste 
management, rather than create new categories of remediation wastes.
    Other parties involved in the FACA Committee argued strongly that 
the rule should be narrower in scope, and should include only the types 
of remediation wastes that are clearly different in nature from newly-
generated wastes. They said that because non-media remediation wastes 
(e.g., drummed wastes and sludges), are physically and chemically 
similar to as-generated hazardous wastes they should be subject to the 
same treatment standards and other requirements that apply to as-
generated wastes. The fact that such wastes are managed as a result of 
cleanup actions (those parties argued) does not mean that they should 
be subject to the more flexible rules for remediation waste proposed 
today.
    EPA decided to limit the scope of today's proposal to contaminated 
media for several reasons. First, the contained-in concept used in this 
proposal for exempting materials from Subtitle C only applies to media 
(and, as discussed below, debris). Thus, a different legal concept 
would have to be used to exempt other types of remediation wastes from 
Subtitle C. Further discussion of this issue is presented in section 
(VI)(A) of this preamble.
    Another reason for limiting the applicability of the rule to 
contaminated media is that the cost-benefit analysis prepared for this 
rule indicates that, on a national basis, contaminated media comprise 
approximately 80% of the total volume of material that is typically 
managed at Superfund (Federal and State) sites, RCRA corrective action 
sites, and voluntary cleanup sites. The rule would thus provide a 
considerable amount of regulatory relief, thereby removing the 
disincentive for cleanup this rule is designed to address. It can also 
be argued that the need for regulatory relief, particularly from LDR 
requirements, is more acute for contaminated media than other 
remediation wastes. This is because, as discussed in section (II)(A) of 
this preamble, they are often more complex to treat effectively, since 
there are often large, heterogeneous volumes of media, with numerous 
types of contaminants present, requiring multiple types of treatment 
technologies. In addition, this rule, if finalized, will constitute a 
major change in the way the covered materials are regulated under RCRA 
and will require a ``break-in'' period while regulators and the 
regulated community adjust to the new system. Therefore, it may be 
prudent to limit the rule to cover only contaminated media, at least 
until EPA and the States have established a track record in 
implementing this new regulatory system.
    By limiting the applicability of this proposed rule to contaminated 
media, EPA is not discounting the arguments of those who believe that 
the rule should be more expansive in scope. It is acknowledged that the 
rule as drafted may create complexities for site managers and 
regulators in distinguishing and separating media from other 
remediation wastes at a site, and then applying two different 
regulatory regimes to their management. The Agency also recognizes that 
at many cleanup sites, the issue of whether to pick up and manage 
remediation wastes or to leave them in place, involves old wastes, not 
media. The Agency has also found in the Cost/Benefit assessment for 
today's proposed rule that an alternative which would include all 
remediation wastes in the scope of this rule would provide 
significantly more cost savings than the proposed option. As discussed 
in section (VI)(A) of this preamble, the Agency is seriously 
considering applying the rule to all remediation wastes and 
specifically requests comments and factual data concerning whether it 
is appropriate to do so. Specifically, the Agency seeks comment on the 
benefits of including all cleanup wastes, and what types of 
implementation difficulties, if any, would be created by regulating 
hazardous contaminated media and other hazardous remediation wastes 
separately and how easy those problems are to overcome.
    Debris. A related issue concerning the scope of today's proposal is 
whether the substantive portions of the rule should cover hazardous 
debris.<SUP>4 Although the FACA Committee did not examine this question 
in detail, individual members of the committee, as well as several 
other stakeholders (including several States) have recently contended 
that the rule should include debris and should allow it to be addressed 
under the same modified regulatory scheme as for media. These parties 
argue that although under today's proposal, requirements for debris 
could be addressed in an RMP, separate management standards 
(particularly the LDR treatment standards) for debris can complicate 
cleanups by requiring physical separation of debris from non-debris 
remediation wastes, and requiring different treatment technologies, 
where debris and media often can be handled together without 
compromising environmental protection.
---------------------------------------------------------------------------

    \4\ Debris is defined in 40 CFR 268.2(g) as ``solid material 
exceeding a 60 mm particle size that is intended for disposal and 
that is: a manufactured object; or plant or animal matter; or 
natural geologic material. However, the following materials are not 
debris: any material for which a specific treatment standard is 
provided in Subpart D, Part 268, namely lead acid batteries, cadmium 
batteries, and radioactive lead solids; process residuals such as 
smelter slag and residues from the treatment of waste, wastewater, 
sludges, or air emission residues; and intact containers of 
hazardous waste that are not ruptured and that retain at least 75% 
of their original volume. A mixture of debris that has not been 
treated to the standards provided by Sec. 268.45 and other material 
is subject to regulation as debris if the mixture is comprised 
primarily of debris, by volume, based on visual inspection.'' 
Hazardous debris is defined in 40 CFR 268.2(h) as ``debris that 
contains a hazardous waste listed in Subpart D of Part 261 of this 
chapter, or that exhibits a characteristic of hazardous waste 
identified in Subpart C of Part 261 of this chapter.''
---------------------------------------------------------------------------

    Because this issue arose late in the preparation of today's 
proposed rule, EPA has decided, with a few exceptions,<SUP>5 not to 
include hazardous debris in the scope of today's proposal. However, 
should the Agency receive persuasive comments, it will consider 
including hazardous debris in the final rule.
---------------------------------------------------------------------------

    \5\ The exceptions are today's proposed regulations for 
remediation management plans and remediation piles, as discussed in 
the applicable sections of today's preamble.
---------------------------------------------------------------------------

    EPA requests comment on whether hazardous debris should be included 
in the final Part 269 rule and, if debris is included, the management 
standards or combinations of management standards (e.g., some 
combination of the existing Debris Rule standards and the standards for 
contaminated media proposed today)

[[Page 18791]]

that should be imposed. EPA requests that commenters address the 
distinctions, if any, which should be made between naturally occurring 
debris (e.g., gravel, tree roots) and man-made debris (e.g., crushed 
drums, sorbants). For example, should naturally occurring debris be 
included in the final Part 269 rule and subject to the same standards 
as contaminated media because it is often co-located with media? While 
these issues were specifically raised in the context of petroleum 
contaminated debris, EPA believes they are also applicable to debris 
more generally.
    Details associated with the potential application of today's 
proposed requirements for contaminated media to hazardous debris are 
discussed later in sections (V)(A)(4)(b) and (V)(C)(10) of this 
preamble.
    Oversight. Section 269.2(b) specifies that the regulations of Part 
269 would apply only to cleanup activities that are overseen by EPA or 
an authorized State agency, in accordance with an approved plan (i.e., 
a RMP). This limitation is a key feature of the proposal.
    As discussed earlier, remedial actions under RCRA, CERCLA, and 
other Federal and State cleanup programs are typically conducted with 
substantial government oversight. Often this occurs because the 
implementing agencies have decided to make many decisions relating to 
cleanup on a site-specific basis rather than promulgating generally 
applicable regulations. Agencies have preferred site-specific decision-
making in the area of cleanup because remedial management decisions are 
extremely complex, and because site-specific factors play very 
important roles in the design and implementation of protective 
remedies. It is the Agency's belief that the government agency 
overseeing a particular remedial action is generally best suited to 
make decisions concerning the management of the contaminated media from 
that site, because they would be most familiar with the site-specific 
conditions that would affect how the media should be properly managed. 
Thus, for the majority of media (i.e., those with all constituent 
concentrations below the Bright Line), today's proposal would allow EPA 
or the State to impose site-specific standards in lieu of most of the 
current Subtitle C requirements.
    In many States, several cleanup programs are operated by different 
programs or agencies of the State government. It is the intention of 
the Agency to authorize for this rule, State RCRA programs that have 
incorporated the rule and plan to rely on companion authorities that 
are not reliant on the presence of hazardous wastes for jurisdiction 
(e.g., State solid waste laws, or State Superfund laws, and RCRA 
corrective action authority at TSDFs), and that are capable of assuring 
sound media management decisions for media determined to no longer 
contain hazardous wastes. EPA would then allow those States to 
determine which companion authority(s) should be used to define media 
management requirements at any specific site. Likewise, management 
standards for media determined to no longer contain hazardous wastes 
may be imposed, as appropriate, under Federal cleanup programs, such as 
Superfund or RCRA corrective action.
    Since these proposed Part 269 regulations and appropriate site-
specific management standards for media determined to no longer contain 
hazardous wastes would be implemented and enforced on a site-by-site 
basis, some mechanism must be available for the overseeing Agency to 
document the site-specific requirements, and thus provide a means to 
enforce compliance with those requirements. The proposal specifies that 
these rules will only apply when EPA or an authorized State approves a 
remediation management plan for the site. The requirements that 
contained-in decisions and appropriate non-Subtitle C management 
standards must be included in RMPs would also serve the very important 
purpose of providing the information necessary for the Agency to 
monitor whether an authorized State is implementing the HWIR-media rule 
in a protective manner (e.g., whether the State is making protective 
contained-in determinations). As discussed more fully in section (V)(E) 
below, today's proposal would allow EPA to withdraw a State's HWIR-
media authorization if the Agency determines that the State is not 
managing the contaminated media addressed by the rule in a protective 
manner.
    An approved RMP may also constitute a RCRA permit in cases where 
such permits are required specifically for cleanup activities. Further 
discussion of RMPs is presented elsewhere in this preamble.
    Sec. 269.2(c) is designed to make clear that this rule does not 
expand the applicability of Subtitle C requirements to any materials 
for which Subtitle C would otherwise not apply. Materials and 
activities that are not already subject to Subtitle C would not be 
required to begin complying with Subtitle C standards. For example, if 
a site owner managed hazardous contaminated media under the 90-day 
accumulation provision of 40 CFR 262.34, this rule would not require 
him to obtain a RCRA Part B permit or a RMP. Similarly, if a site owner 
treats hazardous contaminated media in situ (i.e., without triggering 
the RCRA Land Disposal Restrictions), this rule would not subject him 
to the proposed media-specific LDR standards in Part 269.
3. Definitions--Sec. 269.3
    Section 269.3 defines several important new terms that are unique 
to Part 269 <SUP>6. These terms are defined here, rather than in 
Sec. 260.10 (where most of RCRA's regulatory terminology is defined), 
for the sake of convenience, and to emphasize that these are terms that 
would be specific only to this portion of the hazardous waste 
regulations. Of course, the definitions in Sec. 260.10 would apply to 
Part 269 as well. The following is a discussion of each new term.
---------------------------------------------------------------------------

    \6\ The term ``Director'' as used in today's proposed rule means 
``Director'' as defined currently in 40 CFR 270.2. The HWIR-waste 
proposal (60 FR 66344-469, Dec. 21, 1995) would move that definition 
to 260.10, in which case the 260.10 definition would be sufficient 
to define ``Director'' for purposes of today's proposal. For that 
reason, today's rule does not propose a definition for ``Director.''
---------------------------------------------------------------------------

    Bright Line Constituent. Today's proposal specifies the following 
definition:

    Bright Line constituent means any constituent found in media 
that is listed in Appendix A of this Part, and which is: (1) The 
basis for listing of a hazardous waste (as specified in Appendix VII 
of 40 CFR Part 261) found in that media; or (2) a constituent which 
causes the media to exhibit a hazardous characteristic.

    This definition would be used to establish which constituent 
concentrations in the media must be measured against Bright Line 
concentrations, which in turn would determine whether the Director has 
the discretion to decide that the media do not contain hazardous waste. 
The Agency considered several approaches for defining this term, 
including defining it to include any constituent that: (1) May be 
present in the media, (2) may be present in the media and originated 
from hazardous waste, or (3) may be present in the media, originated 
from hazardous waste, and was a constituent that either formed the 
basis for the waste's hazardous waste listing or caused the media to 
exhibit a hazardous characteristic.
    The Agency rejected the first option because it could be over 
inclusive; i.e., there could be concentrations of constituents in the 
media that exceed Bright Line concentrations, but did not originate 
from hazardous waste (e.g.,

[[Page 18792]]

naturally occurring constituents). Since under the contained-in 
principle, media are only regulated under Subtitle C because they 
contain hazardous waste, this approach could inappropriately extend the 
reach of the Subtitle C regulations.
    EPA chose the third option over the second reasoning that the use 
of the same constituents that have caused the wastes in the media to be 
regulated as hazardous form a sound basis for deciding whether those 
same media should be eligible to be ``deregulated.'' The sole purpose 
of the Bright Line is to determine whether the media should be eligible 
for a contained-in determination; the conclusion that all Bright Line 
constituents are below the Bright Line does not necessarily determine 
that the media no longer contain waste. If the media contain other 
constituents of concern, the Director could, where appropriate, use the 
constituents as the basis for denying a request that the media be 
determined to no longer contain hazardous wastes.
    At some point in the site-cleanup process it would be necessary to 
determine which constituents in the media are Bright Line constituents. 
For media that exhibit a hazardous characteristic, the Bright Line 
constituents should be readily identified (i.e., by chemical analysis). 
For media contaminated with listed hazardous wastes, Appendix VII to 40 
CFR Part 261 lists the constituents that were the basis for listing the 
waste as hazardous.
    The Agency recognizes that identifying the presence of listed 
wastes (and thus the Bright Line constituents) in media is not always 
simple. It has been the Agency's longstanding policy that in cases 
where the origin of the contaminants is unknown, the lead agency may 
assume that contaminants in media did not originate from listed 
hazardous wastes. (See e.g., 55 FR 8666, 8758, March 8, 1990, and 53 FR 
51394, 51444, (December 21, 1988)). It is generally the responsibility 
of the owner/operator or responsible party to make a good faith effort 
to determine whether hazardous constituents in media have originated 
from listed hazardous wastes. If the origin of constituents in media 
cannot be determined, and the media do not exhibit a hazardous 
characteristic, then the media would not be subject to Subtitle C 
regulations in the first place.
    Although Bright Line constituents may help to determine the 
regulatory status of media they would not necessarily be the only 
constituents subject to LDR treatment standards. A discussion of how 
LDR standards would be applied to hazardous waste constituents in 
hazardous contaminated media is presented in section (V)(C) of this 
preamble.
    The tables in Appendix A specify concentrations for 100 
constituents for which verified human health effects data were 
available to the Agency at the time of the proposal's publication. 
These constituents are also the ones most commonly found in 
contaminated media at Superfund sites. EPA expects that Bright Line 
concentrations for additional constituents will be available before 
publication of the final Part 269 rules. However, it is likely that for 
some time Appendix A will be an incomplete list. Comment is invited as 
to whether this list should be updated, as data become available, to 
include as many constituents as possible, or whether for purposes of 
this regulation it is acceptable to have a Bright Line list that does 
not specify levels for every constituent that might be found at a 
cleanup site.
    In cases where constituents are present in media but are not among 
those listed with concentration values in Appendix A to Part 269--the 
Director would have the discretion (but not the obligation) to specify 
site-specific or State-wide Bright Line concentrations. The Director's 
discretion to decide whether media contained hazardous wastes is 
unconstrained with respect to these constituents.
    For constituents that do not have established Bright Line 
concentration values, EPA believes it would generally be appropriate to 
use similar assumptions to those used to establish the current Bright 
Line concentrations. The technical background documents which describe 
the assumptions, equations, and models used to set the Bright Line 
numbers are in the docket for today's rule.
    Additional discussion of the Bright Line concept is presented in 
section (V)(A)(4)(c) of this preamble, including information on the 
specific numbers in Appendix A and how they were calculated. The Agency 
requests comments on this definition of Bright Line constituents. In 
particular, the Agency seeks comments on the approach of defining 
Bright Line constituents as those constituents that caused the waste to 
be hazardous in the first place. For example, would it make more sense 
to define Bright Line constituents as any constituents for which LDR 
treatment would be required? (Constituents that would be required to be 
treated for LDR are discussed in section (V)(C)(3) below.) This 
approach may be appropriate, since the owner/operator would already be 
addressing these constituents for LDR purposes. The Agency requests 
comments on approaches for making contained-in decisions for 
constituents that do not have levels specified in Appendix A.
    Hazardous contaminated media. Today's rule proposes the following 
definition of hazardous contaminated media:

    Hazardous contaminated media means media that contain hazardous 
wastes listed in Part 261 Subpart D of this chapter, or that exhibit 
one or more of the characteristics of hazardous waste defined in 
Part 261, Subpart C of this chapter, except media which the Director 
has determined do not contain hazardous wastes pursuant to 
Sec. 269.4 of this Part (non-hazardous contaminated media).

    This definition would be used to identify media that remain subject 
to regulation as hazardous wastes under RCRA Subtitle C.
    Media. Today's rule proposes the following definition of media:

    Media means materials found in the natural environment such as 
soil, ground water, surface water, and sediments; or a mixture of 
such materials with liquids, sludges, or solids which is inseparable 
by simple mechanical removal processes and is made up primarily of 
media. This definition does not include debris (as defined in 
Sec. 268.2).

    This definition is intended to include a broad range of naturally 
occurring environmental media that may become contaminated with 
hazardous wastes. Debris has not been included in this definition, for 
reasons cited in the earlier discussion of debris, section (V)(A)(2), 
although, as discussed in that section, EPA solicits comments on 
whether it should be. However, hazardous debris or other remediation 
wastes may be managed in remediation piles (see discussion of proposed 
Sec. 264.554), and could be addressed in a remediation management plan 
under today's proposal.
    Media Remediation Site. Today's rule proposes the following 
definition of media remediation site:

    Media remediation site means an area contaminated with hazardous 
waste that is subject to cleanup under State or Federal authority, 
and areas that are in close proximity to the contaminated area at 
which remediation wastes are being managed or will be managed 
pursuant to State or Federal cleanup authorities (such as RCRA 
corrective action or CERCLA). A media remediation site is not a 
facility for the purpose of implementing corrective action under 
Sec. 264.101, but may be subject to such corrective action 
requirements if the site is located within such a facility (as 
defined in Sec. 260.10).

    EPA also proposes to amend the definition of facility in 
Sec. 260.10 to

[[Page 18793]]

exclude media remediation sites (except those located at a TSDF).
    The concept of a media remediation site is new in the RCRA context, 
although it is similar to the ``on-site'' concept that is defined in 
the Superfund program. Traditionally, RCRA has focused on 
``facilities'' for purposes of applying hazardous waste regulations. 
These are generally properties where industrial operations manage 
hazardous wastes that they have generated, or where commercial 
hazardous waste treatment, storage, and/or disposal operations are 
conducted. For purposes of implementing corrective actions under 
Sec. 3004 (u) and (v) and 3008(h), a facility is defined (see 
Sec. 260.10) as ``all contiguous property under the control of the 
owner or operator'' where hazardous wastes are managed.
    Applying this concept of a facility to cleanup actions can be 
problematic in some cases, particularly where cleanup activities are 
being conducted on property that was never before regulated under RCRA 
(e.g., land that became contaminated before RCRA regulations were 
promulgated). Under the current regulations, if the cleanup activities 
at such a site require a RCRA permit, the site would become a 
``facility'' for RCRA purposes, and corrective action requirements 
would apply to all contiguous property that is under the control of the 
owner or operator. This has created disincentives for cleanups at 
properties not heretofore regulated under RCRA. For example, obtaining 
a permit can be a time- and resource-intensive undertaking, and the 
facility-wide corrective action requirements that attach once the 
permit is issued can also deter cleanups. Since a media remediation 
site would not be considered a facility for RCRA purposes, a RMP issued 
for the cleanup activities at the site would not trigger any of the 
RCRA corrective action requirements mandated by RCRA Sec. 3004 (u) and 
(v).
    EPA believes that using the concept of a media remediation site in 
applying Part 269 regulations, instead of calling them RCRA facilities, 
is sensible and consistent with the RCRA statute. The HWIR FACA 
Committee also supported this approach. As originally conceived, RCRA 
facilities were generally properties whose owners and operators were 
engaged in ongoing hazardous waste management. Requiring corrective 
action for such facilities (both facility-wide and beyond the facility 
boundary) was seen as a quid pro quo; i.e., one of the costs of doing 
business for those engaged 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 incidental to performing an act that is 
environmentally beneficial (i.e., cleaning up a site). Viewing cleanup 
sites as traditional hazardous waste facilities (and thus imposing 
additional cleanup responsibilities) can have the effect of penalizing 
those who wish to clean up their properties.
    EPA does not believe that Congress intended for RCRA to create 
obstacles like this one to cleaning up contaminated sites. Under 
Sec. 3004(u) of RCRA, the corrective action requirement applies to ``a 
treatment, storage, or disposal facility seeking a permit.'' This 
clearly refers to facilities that need permits because they are in the 
business of hazardous waste management. In the Agency's opinion, sites 
that only conduct hazardous waste management incidental to cleanup 
activities are not the types of facilities to which Congress intended 
to apply the Sec. 3004 (u) and (v) facility-wide (and beyond the 
facility boundary) corrective action requirements.
    In some cases, a media remediation site could be part of an 
operating (or closing) RCRA hazardous waste management facility that is 
already subject the Sec. 3004 (u) and (v) corrective action 
requirements; in those cases, identifying an area of the facility as a 
media remediation site would not have any effect on the corrective 
action requirements for that site or the rest of the facility. The only 
advantage to designating part of a RCRA-regulated facility as a media 
remediation site would be that more streamlined permit procedures (for 
RMPs--see Sec. 269.43) could be used for that part of the facility.
    Under the proposed definition, a media remediation site would be 
limited to the area that is contaminated and subject to cleanup, and 
adjacent areas that are used for managing remediation wastes as part of 
cleanup activities. Areas that are remote from the contaminated site 
would not be eligible to be media remediation sites. For example, if 
remediation wastes were generated from a site and subsequently 
transported off-site for treatment or disposal, the treatment/disposal 
sites could not be considered media remediation sites. These off-site 
units would be subject to regulation as RCRA facilities for permitting 
and corrective action purposes.
    Of course, units used to manage non-hazardous remediation wastes 
(including non-hazardous contaminated media--e.g., media determined not 
to contain hazardous waste), would not need to comply with Subtitle C 
regulations, nor would such units need RCRA permits. In other words, if 
the Director determined that media did not contain hazardous waste, 
units used for subsequent management of the media (on or off site) 
would not be subject to permitting or other Subtitle C requirements.
    EPA considered the option of allowing certain off-site areas to be 
considered media remediation sites, such as sites dedicated to managing 
only remediation wastes, and sites where only remediation wastes from a 
specific cleanup site were managed. These options could provide 
significant advantages. For example, excavating wastes from a site 
located in a floodplain, and staging those wastes in a more secure 
location away from the floodplain, prior to ultimate disposal could be 
a reasonable remedy. As proposed, the off-site staging area could not 
be considered a media remediation site--it would have to be permitted 
as a traditional hazardous waste storage facility. The Agency 
recognizes that allowing the use of RMPs at off-site staging facilities 
might be more streamlined than requiring RCRA permits. However, an 
option that would allow off-site areas to be considered media 
remediation sites (or to be permitted under RMPs) could be more 
complicated to administer. The Agency does not want to restrict off-
site management of remediation wastes, but simply to ensure that these 
off-site locations are adequately overseen. The Agency requests 
comments on allowing off-site areas to be regulated as media 
remediation sites under Part 269, and any specific requirements or 
limitations that should be imposed on off-site media remediation sites.
    Today's proposal would allow the Director to include areas in close 
proximity to contaminated land that is being cleaned up as part of a 
designated media remediation site. This would allow the site managers a 
limited amount of room for conducting cleanup operations outside the 
area that is actually contaminated. For example, cleaning up a lagoon 
full of sludges might involve constructing and operating a treatment 
unit at the site; in many cases, it might be impractical or impossible 
to locate the treatment unit within the lagoon. This provision would 
require some judgment on the part of regulators responsible for 
defining the boundaries of a media remediation site. EPA solicits 
comments on this provision, and on the more general question of how 
expansive the definition should be, and what types of operations or 
areas should be included or excluded.

[[Page 18794]]

    Non-hazardous contaminated media. Today's rule proposes the 
following definition of non-hazardous contaminated media:

    Non-hazardous contaminated media means media that are managed as 
part of cleanup activities and that the Director has determined do 
not contain hazardous wastes (according to Sec. 269.4), but absent 
such a determination would have been hazardous contaminated media.

    This definition is intended to encompass any media that would have 
been subject to RCRA Subtitle C management requirements but the 
Director determined that they do not contain waste that presents a 
hazard (i.e., hazardous waste) based on controls in a RMP. (See 
discussion in section (V)(A)(4)(a) of this proposal). This definition 
is intended to differentiate non-hazardous contaminated media from 
media which would never have been subject to Subtitle C in the first 
instance (e.g., soil that was never contaminated with hazardous waste.)
    Under today's proposal, management of non-hazardous contaminated 
media would nevertheless be subject to control and oversight from EPA 
or an authorized State. As discussed in section (V)(A)(4)(a), in order 
for hazardous contaminated media to be designated non-hazardous 
contaminated media, the Director would need to specify any appropriate 
management controls in an approved RMP. Since the intent of this rule 
is not to expand the reach of RCRA Subtitle C requirements, ``never 
contaminated soil'' would not be subject to the requirements set forth 
in this part for non-hazardous contaminated media.
    Inherent in this definition is the idea that, even though these 
media would not be regulated as hazardous wastes, they might 
nevertheless be ``contaminated'' enough to be of some concern to the 
overseeing agency's site cleanup decisions. In fact, most of the media 
that are generated and managed as part of cleanups would likely be 
eligible to be considered non-hazardous, according to the results of 
the Regulatory Impact Analysis prepared for this proposed rule.
    Remediation Management Plan (RMP). Today's rule proposes the 
following definition for Remediation Management Plan:

    Remediation Management Plan means the plan which describes 
specifically how hazardous and non-hazardous contaminated media will 
be managed in accordance with this Part. Such a plan may also 
include, as allowed under Subpart D of this Part, requirements for 
other remediation wastes and any other (non-Part 269) requirements 
applicable to hazardous contaminated media.

    The requirements of today's proposal depend on a responsible 
overseeing agency (EPA or an authorized State) to approve and monitor 
compliance with many site-specific decisions regarding the management 
of hazardous contaminated media. The RMP would provide the 
documentation of the plan and relevant information to demonstrate 
compliance with applicable requirements. A unique aspect of the RMP is 
that there could be several different kinds of RMPs. Since hazardous 
and non-hazardous contaminated media would be managed under any number 
of Federal and State programs, the Agency believes that it would be 
unnecessarily burdensome to require a fixed form of documentation, as 
long as the required information is adequately included or described in 
the documents already being used by the programs that implement the 
remedial activities. In other words, this rule would allow any 
enforceable document containing the information required to be included 
in a RMP if it also goes through at least the minimum public 
participation requirements in proposed Sec. 269.43.
    Sediment. Today's proposal specifies the following definition for 
sediments:

    Sediment is the mixture of assorted material that settles to the 
bottom of a water body. It includes the shells and coverings of 
mollusks and other animals, transported soil particles from surface 
erosion, organic matter from dead and rotting vegetation and 
animals, sewage, industrial wastes, other organic and inorganic 
materials, and chemicals.
    This definition is from EPA's Office of Water's document from June 
1993, entitled ``Selecting Cleanup Techniques for Contaminated 
Sediments,'' EPA 823-B93-001, p. xiv, which is available in the docket 
to today's proposal. For further discussion of how the proposal would 
affect management of contaminated sediments, see sections (V)(A)(4)(c) 
and (V)(H) of this preamble.
    Soil. Today's proposal specifies the following definition of soil, 
for the purpose of implementing Part 269 regulations:

    Soil means unconsolidated earth material composing the 
superficial geologic strata (material overlying bedrock), consisting 
of clay, silt, sand, or gravel size particles (sizes as classified 
by the U.S. Soil Conservation Service), or a mixture of such 
materials with liquids, sludges, or solids which is inseparable by 
simple mechanical removal processes, and is made up primarily of 
soil.

    This definition was originally proposed in the September 14, 1993 
Phase II LDR proposal (58 FR 48092, 48123). It would allow regulators 
to distinguish between soils, debris, and other remediation wastes by 
judging the results of simple, in-situ mechanical removal processes to 
separate the materials. These processes would include pumping, 
dredging, or excavation by backhoe, or other devices.
    This approach would eliminate requirements for chemical analysis of 
soil, to differentiate between waste, soil and debris (e.g., 
considering such things as soil particle size, elemental composition of 
the soil, or other properties that might distinguish soil from other 
remediation wastes). The Agency is not proposing that owner/operators 
or the Director distinguish more precisely than specified in today's 
proposal between waste, soil, or debris--through a chemical analysis or 
other tests--since these approaches would be difficult to develop, 
support, and administer. Specifically, a basis for chemical analysis or 
other tests has not been developed, and implementation of this approach 
would most likely not be beneficial. Instead it would simply delay the 
progress of remedial actions. The Agency specifically solicits comments 
on this proposed definition for soil, and this type of approach for 
classifying mixtures of soil and other materials.
4. Identification of Media Not Subject to Regulation as Hazardous 
Waste--Sec. 269.4
    Section 269.4 specifies that, as long as media do not contain 
Bright Line Constituents that are at or above Bright Line 
concentrations, the Director may determine if those media contain 
hazardous wastes. If not, the Director may determine that the media 
would not be subject to most RCRA hazardous waste management 
requirements.<SUP>7 This does not mean, however, that management of 
those media would be unrestricted. Instead, the rule would require EPA 
or the State to impose appropriate management requirements in an 
approved RMP, using authorities that do not depend on the presence of 
hazardous wastes (i.e., general cleanup authorities as provided in 
Federal or State cleanup statutes).
---------------------------------------------------------------------------

    \7\ The exception is, in some cases, the requirement to comply 
with the land disposal treatment standards. (See discussion in 
(V)(C).)
---------------------------------------------------------------------------

    The Agency is imposing this condition on decisions that media no 
longer contain hazardous wastes, because the proposed rule, as 
discussed below, would allow those decisions to be made where media may 
be more highly contaminated than media the Agency has traditionally 
deemed to no longer contain hazardous waste. If, for some reason, a RMP 
were terminated prior to completion of a remedy, those

[[Page 18795]]

media would again become subject to Subtitle C regulation. 
Understanding the role of the Bright Line and the contained-in 
principle is essential to understanding how today's proposal would 
work. Both the contained-in principle and the Bright Line are explained 
below.
    a. The contained-in principle in today's proposed rule background. 
The contained-in principle is the basis for EPA's longstanding policy 
regarding the application of RCRA Subtitle C requirements to mixtures 
of environmental media (e.g., soils, ground water, sediments) and 
hazardous wastes. This concept has been discussed previously in several 
Agency directives and in several RCRA rulemakings. (See, e.g., 58 FR 
48092, 48127 (September 14, 1993)). In today's proposed rule the Agency 
is expanding this concept as the basis for allowing EPA or an 
authorized State to exempt certain contaminated media from the 
stringent, prevention-oriented RCRA regulations for hazardous waste 
management that previously would have applied.
    The contained-in concept was originally developed to define the 
regulatory status of environmental media that are contaminated with 
hazardous wastes. The mixture rule at 40 CFR 261.3(a)(2)(iv) states 
that ``a mixture of solid waste and one or more [listed] hazardous 
wastes'' constitutes a listed waste itself (emphasis added). Similarly, 
the derived-from rule at 40 CFR 261.3(c)(2)(i) provides that ``a solid 
waste generated from the treatment, storage, or disposal of a hazardous 
waste'' is a hazardous waste (emphasis added).
    Since media are not solid wastes, these rules do not apply to 
mixtures of media and hazardous wastes. However, two other regulations 
subject contaminated media to Subtitle C requirements. Under 40 CFR 
261.3(c)(1) a ``hazardous waste will remain a hazardous waste'' unless 
and until certain specified events occur. Under 40 CFR 261.3(d)(2) a 
``waste which contains'' a listed waste remains a hazardous waste until 
it is delisted. Together these regulations provide for continued 
regulation of hazardous wastes even after they are released to the 
environment and mingled with media.
    The U.S. Court of Appeals for the District of Columbia Circuit 
upheld this interpretation of Secs. 261.3(c)(1) and (d)(2) in Chemical 
Waste Management Inc. v. EPA, 869 F.2d 1526, 1538-40 (D.C. Cir. 1989), 
and EPA has explained the policy and its regulatory basis in numerous 
preambles and letters. (See 53 FR 31138, 31142, 31148 (Aug. 17, 1988); 
57 FR 21450, 21453 (May 20, 1992) (inadvertently citing 40 CFR 
261(c)(2) in lieu of Sec. 261.3(d)(2)); memorandum from Marcia E. 
Williams, Director, EPA Office of Solid Waste, to Patrick Tobin, EPA 
Region IV (Nov. 15, 1986); letter from Jonathan Z. Cannon, EPA Acting 
Assistant Administrator, Office of Solid Waste and Emergency Response, 
to Thomas Jorling, Commissioner, New York Department of Environmental 
Conservation (June 19, 1989); and letter from Sylvia K. Lowrance, 
Director, EPA Office of Solid Waste, to John Ely, Enforcement Director, 
Virginia Department of Waste Management (Mar. 26, 1991). Under the 
contained-in policy, media contaminated with listed hazardous wastes 
are not wastes themselves, but they contain hazardous wastes and must 
therefore be managed as hazardous wastes until they no longer contain 
the waste. This concept is based on the idea that at some point (e.g., 
at some concentration of hazardous constituents) the media would no 
longer contain the hazardous waste, or be subject to RCRA Subtitle C 
regulations.
    Because the regulations that serve as the basis for the contained-
in policy are part of the ``base'' RCRA program that was in effect 
prior to 1984, the Agency has taken the position that EPA or the State 
agency authorized to administer the ``base'' RCRA regulations may 
determine whether media contain listed wastes. Decisions that media no 
longer contain listed hazardous wastes (or ``contained-in'' decisions) 
have typically been made on a case-by-case basis, according to the 
risks posed by the contaminated media. The Agency has not issued any 
definitive guidance or regulations for determining appropriate 
contained-in levels; however, EPA Regions and States have been advised 
that conservative, health-based levels derived from direct exposure 
pathways would clearly be acceptable as ``contained-in'' levels. (See 
memorandum from Sylvia K. Lowrance to Jeff Zelikson, Region IX, 
(January 24, 1989)). It has been the common practice of EPA and many 
States to specify conservative, risk-based levels calculated with 
standard conservative exposure assumptions (usually based on 
unrestricted access), or site-specific risk assessments.
    With regard to mixtures of media and characteristic wastes, EPA has 
often stated that media are regulated under RCRA Subtitle C if they 
exhibit a hazardous waste characteristic. (See 57 FR 21450, 21453, (May 
20, 1992)). But, since media generally are not wastes, they become 
regulated when they have been contaminated with solid or hazardous 
wastes and the resultant mixture exhibits a characteristic. EPA has 
also taken the position that contaminated media cease to be regulated 
as hazardous waste when sufficient quantities of hazardous constituents 
are removed so that the mixture ceases to exhibit a characteristic 
<SUP>8 (57 FR 21450, 21453, May 20, 1992).
---------------------------------------------------------------------------

    \8\ Recent developments under the RCRA land disposal 
restrictions (LDRs) may suggest a qualification to this latter 
point. (See discussion of LDRs in section (V)(C) of today's 
preamble.)
---------------------------------------------------------------------------

    The contained-in concept in today's proposed rule. One of the 
primary objectives of today's proposal is to remove lower risk 
contaminated media from Subtitle C jurisdiction so that more 
appropriate, site-specific management requirements can be specified by 
the overseeing Agency. For the purpose of this rulemaking EPA has 
chosen to use the contained-in concept as the basis for allowing these 
materials to be exempted from Subtitle C requirements. In formulating 
the proposal, the Agency considered alternative concepts that might be 
provided under the RCRA statute that would produce the same or similar 
exemption. Those concepts are discussed in section (VI)(A)(2) of this 
preamble.
    Today's proposal would allow two separate regulatory regimes to be 
applied to the management of contaminated media under EPA or State-
approved cleanups. For media determined to contain hazardous wastes, 
modified LDR treatment standards would apply, as would other applicable 
Subtitle C requirements. For media determined not to contain hazardous 
wastes, Subtitle C requirements would generally not apply, and the 
State or EPA would have considerable discretion in applying appropriate 
management standards.
    The proposed rule would limit an overseeing agency's discretion to 
make site-specific decisions that media no longer contain wastes by 
specifying ``Bright Line'' concentration levels. Media that are 
contaminated below Bright Line concentrations would be eligible for 
contained-in decisions by the overseeing Agency. However, Bright Line 
concentrations would not constitute an automatic exemption from 
Subtitle C; rather, they would represent the concentration below which 
the State or EPA might determine that media do not contain hazardous 
waste.
    As described below, EPA believes it would generally be acceptable 
to make a decision that media do not contain hazardous waste at the 
Bright Line concentrations specified in today's proposal. However, the 
proposed rule is

[[Page 18796]]

designed to provide for site-specific discretion in making such 
decisions. Thus, it is possible that some States might choose to 
specify--on a site-specific basis, more broadly as a matter of policy, 
or in regulations--contained-in levels that are lower (i.e., more 
stringent) than the Bright Line concentrations specified in today's 
proposal. Moreover, States can be more stringent than the Federal 
program, and adopt lower Bright Line concentrations.
    In applying the contained-in concept, today's proposed rule does 
not distinguish between media that are contaminated with listed 
hazardous wastes, and media that exhibit a hazardous waste 
characteristic. In both cases, it is the concentration levels of the 
individual hazardous constituents in the media that determine how the 
media will be regulated under Part 269. The origin of the constituents 
(i.e., listed wastes or characteristic hazardous wastes) is irrelevant 
in comparing measured levels in the media with Bright Line 
concentrations and/or contained-in concentrations.
    EPA sees no reason to apply the Bright Line concept differently to 
media contaminated with listed hazardous wastes and media that exhibit 
a hazardous characteristic. In either case the media could presumably 
be contaminated with the same types of hazardous constituents, at 
similar concentrations, that would present similar potential risks if 
mismanaged. Thus, applying these rules differently, depending on how 
the media came to be regulated as hazardous, would be unnecessary and 
artificial, and would further complicate how these rules would be 
implemented in the field.
    EPA recognizes that today's rule could have the effect of excluding 
from Subtitle C regulation some media that until now have been 
considered hazardous--i.e., media that exhibit a hazardous waste 
characteristic, with constituent concentrations below the Bright Line 
and EPA or the State makes a determination that the media no longer 
contain hazardous waste (often based on protective management 
controls). However, EPA believes that there is no compelling 
environmental rationale for not including such media in Part 269 
regulation. The risk presented even by characteristic wastes is 
dependent on site-specific circumstances. Therefore, because today's 
proposal would require the Director to impose any management controls 
on contaminated media that are necessary to protect human health and 
the environment, whether the media is contaminated with listed or 
characteristic waste is unimportant.
    Under today's proposed rule, contained-in decisions would be 
documented in the site's approved Remediation Management Plan (RMP). If 
an approved RMP expires or is terminated, the provisions of today's 
proposal would no longer apply. Therefore, all contaminated media that 
are addressed in the RMP (i.e., media that are contaminated both above 
and below contained-in concentrations) would again prospectively be 
subject to the ``base'' Subtitle C regulations. For example, if a 
cleanup of contaminated soil was half completed when a RMP was 
terminated or expired, the half that was completed in compliance with 
the RMP while it was in effect, would continue to be considered to be 
in compliance. For example, if contaminated soil was determined not to 
contain hazardous waste, and was disposed of in a Subtitle D landfill 
according to the requirements of the RMP, that Subtitle D landfill 
would not be considered retroactively to have accepted hazardous 
wastes. The half of the cleanup that was not completed when the RMP was 
terminated or expired, however, would have to be completed 
prospectively in compliance with the non-Part 269 Subtitle C 
regulations.
    Effect of contained-in decisions under today's rule. Once the 
overseeing Agency has made a decision that media with constituents at 
certain concentrations no longer contain hazardous wastes (i.e., ``a 
contained-in decision''), the media would no longer be regulated as 
hazardous wastes under Federal RCRA regulations (Sec. 261.4(g) and 
Sec. 269.4(a)).<SUP>9 The Agency requests comments, however, on whether 
the Agency should exempt the media instead, only if it were managed in 
compliance with the provisions of the RMP. The Agency did not propose 
this approach primarily because it could be unduly harsh, since any 
violation, no matter how minor, would result in a reversion to Subtitle 
C. However, this approach could be incorporated into RMPs on a case-by-
case basis, where the Director could specify in the RMP the 
provision(s) who's violation would result in a reversion to Subtitle C 
regulation. (See discussion below).
---------------------------------------------------------------------------

    \9\ The Agency notes, however, that by explicitly providing in 
Sec. 261.4 that decisions under Part 269 that media no longer 
contain hazardous waste are not subject to most Subtitle C 
regulations, EPA would not intend to affect in any way the authority 
of EPA and authorized States to make contained-in decisions outside 
of the HWIR-media context.
---------------------------------------------------------------------------

    A contained-in decision for wastes at a cleanup site would not, 
however, eliminate the Administrator's authority to require the owner/
operator (or other responsible parties at sites not regulated by RCRA) 
to conduct remedial actions for media that do not contain hazardous 
wastes. Specifically, Federal cleanup authorities under RCRA section 
3004(u) at TSDFs, section 7003, and CERCLA authorities, authorize the 
Agency to require cleanup of a broad spectrum of hazardous constituents 
and/or hazardous substances, however, the presence of hazardous 
waste(s) in media is not a requirement for exercising those 
authorities. Many State cleanup authorities have similar provisions.
    Decision factors for contained-in decisions. Because the Agency 
does not want to constrain site-specific decision-making, today's 
proposed rule would not mandate specific factors for making contained-
in decisions, but would allow the Director to base these decisions on 
appropriate site-specific factors. However, EPA requests comments on 
whether decision factors should be codified for making contained-in 
decisions. EPA believes that the Bright Line concentrations will 
generally be acceptable for contained-in decisions; however, decision 
factors could help authorities determine, on a site-specific basis, 
what types of management controls (see discussion below), if any, would 
make the Bright Line concentrations appropriate concentrations at which 
to make contained-in decisions. Decision factors could also aid in 
determining other appropriate levels at which to make contained-in 
decisions.
    Given the multiplicity of different types of sites, EPA requests 
comments on what decision factors, if the Agency decided to include 
them in the final rule, would ensure consistent decision-making, and 
yet keep the process efficient and flexible. Although EPA does not 
believe it would be appropriate to do a risk assessment at every site, 
particularly if the cleanup is of a relatively simple nature, the 
Agency does believe that the following factors (adapted from the LDR 
proposal for hazardous soils) contain the types of information that may 
be appropriate (depending on the specific circumstances at a given 
site) to consider in making contained-in decisions:

--Media properties;
--Waste constituent properties (including solubility, mobility, 
toxicity, and interactive effects of constituents present that may 
affect these properties);
--Exposure potential (including potential for direct human contact, and 
potential for exposure of sensitive environmental receptors, and the

[[Page 18797]]

effect of any management controls which could lessen this potential);
--Surface and subsurface properties (including depth to groundwater, 
and properties of subsurface formations);
--Climatic conditions;
--Whether the media pose an unacceptable risk to human health and the 
environment; and
--Other site or waste-specific properties or conditions that may affect 
whether residual constituent concentrations will pose a threat to human 
health and the environment.

    Most of these factors were proposed in the LDR proposal for 
hazardous soil (58 FR 48092, September 14, 1993) as decision factors 
that might be considered by the Director in making contained-in 
decisions. If the proposal for hazardous soil had been finalized, it 
would have codified the contained-in principle for hazardous soil. 
Today's suggested factors differ from those in the hazardous soil 
proposal in one significant respect. The Agency has determined that it 
may be appropriate, when assessing ``exposure potential,'' to consider 
site-specific management controls imposed by the Director that limit 
potential exposures of human or environmental receptors to media. The 
Agency made this change because EPA believes that States overseeing 
cleanups might determine that media that would have traditionally been 
considered to contain hazardous waste (e.g., media that contained 
listed wastes and posed an unacceptable risk under traditional exposure 
scenarios) no longer presented a hazard (and thus did not contain 
``hazardous'' waste), based on site-specific management controls 
imposed by the Director.
    This position is based upon EPA's understanding that RCRA provides 
EPA and the States the discretion to determine that a waste need not be 
defined as ``hazardous'' where restrictions are placed on management 
such that no improper management could occur that might threaten human 
health or the environment. (See definition of hazardous waste at RCRA 
section 1004(5)(B)). The HWIR-waste proposal included a full discussion 
of the legal basis for this position. For the sake of clarity, it is 
repeated below (60 FR 66344-469, Dec. 21, 1995).
    EPA's original approach to determining whether a waste should be 
listed as hazardous focused on the inherent chemical composition of the 
waste, and assumed that mismanagement would occur, causing people or 
organisms to come into contact with the waste's constituents. (See 45 
FR 33084, 33113, (May 19, 1980)). Based on more than a decade of 
experience with waste management, EPA believes that it is inappropriate 
to assume that worst-case mismanagement will occur. Moreover, EPA does 
not believe that worst-case assumptions are compelled by statute.
    In recent hazardous waste listing decisions, EPA identified some 
likely ``mismanagement'' scenarios that are reasonable for almost all 
wastewaters or non-wastewaters, and looked hard at available data to 
determine if any of these are unlikely for the specific wastes being 
considered, or if other scenarios are likely, given available 
information about current waste management practices. (See the 
Carbamates Listing Determination (60 FR 7824, February 9, 1995) and the 
Dyes and Pigments Proposed Listing Determination (59 FR 66072, December 
22, 1994)). Further extending this logic, EPA believes that when a 
mismanagement scenario is not likely, or has been adequately addressed 
by other programs, the Agency need not consider the risk from that 
scenario in deciding whether to classify the waste as hazardous.
    EPA believes that the definition of ``hazardous waste'' in RCRA 
section 1004(5) permits this approach to hazardous waste 
classification. Section 1004(5)(B) defines as ``hazardous'' any waste 
that may present a substantial present or potential hazard to human 
health or the environment ``when improperly * * * managed.'' EPA reads 
this provision to allow it to determine the circumstances under which a 
waste may present a hazard and to regulate the waste only when those 
conditions occur. Support for this reading can be found by contrasting 
section 1004(5)(B) with section 1004(5)(A), which defines certain 
inherently dangerous wastes as ``hazardous'' no matter how they are 
managed. The legislative history of Subtitle C of RCRA also appears to 
support this interpretation, stating that ``the basic thrust of this 
hazardous waste title is to identify what wastes are hazardous in what 
quantities, qualities, and concentrations, and the methods of disposal 
which may make such wastes hazardous.'' H. Rep. No. 94-1491, 94th 
Cong., 2d Sess.6 (1976), reprinted in, ``A Legislative History of the 
Solid Waste Disposal Act, as Amended,'' Congressional Research Service, 
Vol.1, 567 (1991) (emphasis added).
    EPA also believes that section 3001 gives it flexibility in order 
to consider the need to regulate as hazardous those wastes that are not 
managed in an unsafe manner (section 3001 requires that EPA decide, in 
determining whether to list or otherwise identify a waste as hazardous 
waste, whether a waste ``should'' be subject to the requirements of 
Subtitle C). EPA's existing regulatory standards for listing hazardous 
wastes reflect that flexibility by allowing specific consideration of a 
waste's potential for mismanagement. (See Sec. 261.11(a)(3) 
(incorporating the language of RCRA section 1004(5)(B)) and 
Sec. 261.11(c)(3)(vii) (requiring EPA to consider plausible types of 
mismanagement)). Where mismanagement of a waste is implausible, the 
listing regulations do not require EPA to classify a waste as 
hazardous, based on that mismanagement scenario.
    Two decisions by the U.S. Court of Appeals for the District of 
Columbia Circuit provide potential support for the approach to defining 
hazardous waste, in Edison Electric Institute v. EPA, 2 F.3d 438, (D.C. 
Cir. 1993) the Court remanded EPA's RCRA Toxicity Characteristic 
(``TC'') as applied to certain mineral processing wastes because the TC 
was based on modeling of disposal in a municipal solid waste landfill, 
yet EPA provided no evidence that such wastes were ever placed in 
municipal landfills or similar units. This suggests that the Court 
might approve a decision to exempt a waste from Subtitle C regulation 
if EPA were to find that mismanagement was unlikely to occur. In the 
same decision the Court upheld a temporary exemption from Subtitle C 
for petroleum-contaminated media because such materials are also 
subject to Underground Storage Tanks regulations under RCRA Subtitle I. 
The court considered the fact that the Subtitle I standards could 
prevent threats to human health and the environment to be an important 
factor supporting the exemption. Id. At 466. In NRDC v. EPA, 25 F.3d 
1063 (D.C. Cir. 1994) the Court upheld EPA's finding that alternative 
management standards for used oil promulgated under section 3014 of 
RCRA reduced the risks of mismanagement and eliminated the need to list 
used oil destined for recycling. (The Court, however, did not consider 
arguments that taking management standards into account violated the 
statute because petitioners failed to raise that issue during the 
comment period.)
    The Agency believes, therefore, that EPA and the States may 
consider site-specific management controls when making contained-in 
decisions pursuant to proposed Part 269. EPA believes that this 
approach is especially appropriate in the Part 269 context, because of 
the significant level of oversight generally given to cleanup actions. 
Management controls that are tailored to site-specific

[[Page 18798]]

circumstances and imposed in enforceable documents, and State or EPA 
oversight of cleanup activities, would ensure that the site-specific 
management controls that the Director relied upon in making each 
contained-in decision would continue to be implemented. In addition 
(although EPA is not proposing to require it as a federal matter), 
States may want to consider making such contained-in decisions 
conditional; i.e., media would only be considered nonhazardous so long 
as they were managed in the manner considered by the Director in making 
the contained-in decision. Deviations (any, or specific ones) would 
result in a reversion to Subtitle C regulation.
    EPA specifically requests comments on the following: (1) Should the 
Agency specify a list of criteria to consider; (2) should the Agency 
prepare decision factors as guidance; (3) should the Agency promulgate 
decision factors as part of the final rule; (4) are the above decision 
factors appropriate for making these decisions; (5) if so, should the 
criteria listed above be more or less specific regarding the conditions 
that would allow or preclude contained-in decisions; (6) are there 
other factors the Director should consider when making contained-in 
decisions, in addition to those listed above; and (7) should there be 
fewer factors to consider?
    b. Issues associated with hazardous debris. When EPA promulgated 
land disposal treatment standards for hazardous debris, it also 
codified the contained-in principle for debris contaminated with listed 
hazardous waste. (See 57 FR 37194, 37221, (August 18, 1992)). At the 
time EPA codified the contained-in principle for hazardous debris, it 
was the Agency's practice to make contained-in decisions at ``health-
based,''\10\ levels, thus a decision that debris no longer contain 
hazardous waste would clearly also constitute a ``minimize threat'' 
determination for purposes of RCRA section 3004(m). Therefore, 
contained-in decisions under 40 CFR 260.3(f)(3) also eliminate the duty 
to comply with the land disposal restriction requirements of 40 CFR 
Part 268. EPA requests comments on whether the contained-in principle 
codified for hazardous debris is adequate or whether the contained-in 
policy should be applied to debris in the same way today's proposed 
rule applies it to hazardous contaminated media. For example, should 
contained-in decisions for debris incorporate the Bright Line concept? 
If a Bright Line is established for debris, should it be the same as 
the Bright Line in today's proposed rule for hazardous contaminated 
media or would some other Bright Line values or methodology be more 
appropriate for debris? Are there issues associated with requiring that 
debris be tested to determine if it has constituent concentrations 
greater than Bright Line concentrations? Is testing routinely too 
complicated for debris matrices? Should contained-in decisions for 
debris be based on determinations made for media co-located with the 
debris (i.e., if debris were located in the same area as media that was 
determined not to contain hazardous wastes, should the debris be 
presumed not to contain hazardous wastes)? Similarly, if debris is 
located in the same area as media that have constituent concentrations 
less than Bright Line concentrations, should the debris be presumed to 
also be below the Bright Line?
---------------------------------------------------------------------------

    \10\ See memoranda discussed in section (V)(A)(4)(a) of today's 
preamble.
---------------------------------------------------------------------------

    Alternatively, should the Director be able to make contained-in 
decisions, as they are described in today's proposed rule, without 
application of the Bright Line to debris (as we are proposing for 
sediment? (See preamble (V)(A)(4)(c)). If allowed, should these 
contained-in decisions replace the existing contained-in decisions 
available for debris or should the existing contained-in decisions be 
maintained with non-Bright Line contained-in decisions (as discussed in 
today's proposed rules addressing sediments--see preamble (V)(A)(4)(c)) 
available for debris managed under a RMP? Are other combinations of the 
existing debris contained-in decision provisions and the contained-in 
decision provision for media in today's proposed rule appropriate?
    While today's proposed rule does not include changes to the 
existing contained-in principle as applied to debris contaminated with 
listed hazardous waste, EPA could include revisions to the standard in 
response to public comment. Issues associated with hazardous debris and 
the possibility of including debris in the final Part 269 rules are 
also discussed in sections (V)(C)(10) and (V)(A)(2) of today's 
preamble.
    c. The Bright Line. One of the key features of the ``Harmonized 
Approach'' developed through the FACA process was the concept of a 
``Bright Line.'' The Bright Line would divide contaminated media into 
two different categories, which would be subject to two different 
regulatory regimes. Although straightforward in concept, the Agency has 
found it challenging to establish a set of numbers to serve this 
purpose.
    As conceived by the FACA Committee, and presented in Appendix A to 
today's proposal, the Bright Line is a set of constituent-specific, 
risk-based concentration levels. In agreeing on a Bright Line approach, 
the FACA Committee anticipated that a substantial proportion of 
contaminated media would fall below the Bright Line, and thus be 
eligible, at the Director's discretion, for flexible, site-specific 
requirements (non-Subtitle C) set by the overseeing Agency. At the same 
time, the FACA Committee agreed that the Bright Line should ensure that 
very highly contaminated media (traditionally considered ``hot spots'') 
be subject to uniform national protective standards (e.g., treatment). 
EPA believes that the Bright Line values presented in today's proposal 
are a reasonable attempt to balance both of these important objectives.
    As originally conceived, the Bright Line was intended to represent 
in some manner the relative risk posed by contaminated media. Simply 
put, media contaminated above Bright Line concentrations should pose 
higher risks than media below the Bright Line under a given exposure 
scenario. Since the Bright Line is only an indicator of relative risk, 
the levels should not be interpreted as representing what is protective 
or ``clean.'' The actual risk of any particular contaminated medium 
depends on the circumstances by which human or environmental receptors 
may be exposed to the medium. EPA wishes to emphasize that Bright Line 
concentrations are not cleanup levels. The Bright Line simply is a 
means of identifying which regulatory regime may be appropriate for the 
contaminated media at a cleanup site.
    The Agency believes that the management of contaminated media would 
be conducted in a protective manner under either of the regulatory 
schemes that would be established by the rule. The underlying 
assumption is that managing contaminated media under the HWIR-media 
rule would eliminate significant exposures to humans or ecological 
receptors. This is because the overseeing agency's presence ensures 
that media will be managed in a way that directly addresses the risk 
posed by site-specific circumstances. Thus, protection of human health 
and the environment can be ensured by applying either the national 
standards for media that contain hazardous waste, or the site-specific 
standards specified by the overseeing agency for media, which the 
overseeing agency has determined do not contain hazardous waste, based 
on the proposed management standards

[[Page 18799]]

identified in the RMP. Thus, in establishing Bright Line 
concentrations, EPA finds it reasonable to consider the potential 
effect of different sets of Bright Line concentrations in terms of the 
proportional volumes of media that would fall above and below the 
Bright Line. EPA believes that unless a substantial amount of 
contaminated media are eligible for site-specific decision-making, the 
disincentives for clean-up will not be eliminated (therefore resulting 
in greater overall risk to human health and the environment).
    Thus, EPA's goal was to develop Bright Line concentrations that 
would remove a significant amount of contaminated media from Subtitle C 
jurisdiction, while ensuring that ``hot spots'' would remain subject to 
mandatory national standards. In deciding how to determine such levels, 
the Agency considered several approaches that included selecting 
concentrations based solely on volume. This approach, however, was 
rejected because there was no way to account for the relative degree of 
risk posed by different constituents. In other words, because some 
constituents are more hazardous than others at the same concentration, 
a Bright Line based purely on volume would not account for this 
difference.
    EPA, therefore, wanted to set Bright Line concentrations for 
different constituents at different levels in order to account for this 
variance in relative risk. In order to do this, EPA needed to consider 
a potential exposure scenario that would account for the difference in 
relative risk of these different constituents. Because risk occurs only 
when there is a chance of exposure, at least one set of exposure 
assumptions would be necessary to establish the Bright Line.
    Since one of the goals of the Bright Line was to identify the most 
highly contaminated media, the FACA Committee recommended using 
10<SUP>-3 as a benchmark for setting the Bright Line. Therefore, the 
Bright Line values in Appendix A were based on a 10<SUP>-3 risk level 
for carcinogenic constituents (using the assumptions described above), 
and a health index of 10 for non-carcinogens, (that is, 10  x  the 
concentration at which adverse health effects occur) according to 
certain exposure assumptions. This approach is consistent with the 
Superfund Principle Threats concept which uses 10<SUP>-3 as a factor to 
identify the principle threats at Superfund sites.
    Describing the Bright Line theory was relatively easy compared with 
determining Bright Line concentrations for all media which would be 
subject to today's Part 269 proposal. Today's rule proposes to define 
soil, ground water, surface water, and sediments as media. However, the 
potential exposure assumptions that could be used to determine Bright 
Line concentrations vary for different types of media. Therefore, EPA 
established two sets of Bright Line values, one for soils, and one for 
ground water and surface water.
    Today's proposed rule does not include Bright Line numbers for 
contaminated sediments. The amount of sediment that is classified as 
RCRA hazardous is very low. Thus, EPA proposes that site-specific 
contained-in decisions be made for hazardous contaminated sediments. 
The Agency requests comments on whether to develop a Bright Line 
specifically for contaminated sediments. The Agency also requests 
comments on whether it would be appropriate to use the Bright Line for 
soil for sediments.
    Bright Line concentrations for soils. In setting the Bright Line 
for soils, EPA chose to use exposure scenarios and assumptions that 
were developed for the Superfund Soil Screening Levels (SSLs), because 
that effort used standard risk scenarios that have been widely used and 
accepted by the Agency (and by many States). The SSLs were developed 
for a purpose different from the Bright Line; <SUP>11 however, the 
exposure scenarios used in that effort are good indicators of relative 
risk for developing Bright Line values.
---------------------------------------------------------------------------

    \11\ Superfund Soil Screening Levels (SSLs) were developed as a 
screening tool to determine when further investigation is necessary 
at Superfund sites. Because the SSLs are intended to be 
conservative, and trigger investigation whenever prudent, they are 
set at a 10<SUP>-6 level for carcinogens. For more information on 
SSLs, call David Cooper (703) 603-8763.
---------------------------------------------------------------------------

    The SSLs are based on three human exposure scenarios; direct 
contact ingestion, inhalation, and drinking contaminated ground water. 
Each scenario is based on a specific set of assumptions for such things 
as body weight, frequency of exposure, daily intake rates, and other 
factors. The inhalation pathway also uses certain models to calculate 
wind dispersion and the uptake of airborne contaminants by human 
receptors.
    Today's proposed Bright Line numbers for soils are based on only 
two of those human exposure scenarios--direct contact ingestion and 
inhalation. The Bright Line value for each constituent is based on 
whichever pathway yields the more conservative (i.e., lower) 
concentration. EPA recognizes that protection of ground water is one of 
RCRA's major goals and that many of the Subtitle C design and operating 
standards were developed to protect ground water resources. Therefore, 
EPA considered the possibility of using the ground water exposure 
pathway in setting Bright Line concentrations for soils. However, the 
migration of contaminants from soils to ground water is fundamentally 
site-specific, and influenced by a number of site-specific factors such 
as depth to ground water; soil porosity; carbon content and other soil 
characteristics; amount of rainfall; solubility of the contaminants; 
and numerous other site- and constituent-specific conditions. The 
Agency has found less variability in fate and transport potential for 
inhalation and ingestion exposures in residential settings.
    EPA is reluctant to use a greatly simplified ground water model 
that would not take any site-specific or constituent-specific factors 
into account. In order to address concerns posed to ground water on a 
more appropriate site-specific basis, EPA prefers to allow for 
consideration of ground water risks in making site-specific decisions 
regarding either the contained-in decision and/or the site-specific 
management requirements. Given the overseeing Agency's discretion to 
determine these standards on a site-specific basis, and given that EPA 
believes that site-specific decisions are most appropriate for ground 
water risk decisions, the Agency has proposed that the ground water 
exposure pathway should not be considered in setting the national 
Bright Line values for soils. Finally, EPA proposes two considerations 
to overlay the soil Bright Line numbers. EPA proposes to cap the Bright 
Line values at 10,000 ppm, equivalent to 1% of the volume of the 
contaminated media. EPA believes that it is reasonable to classify 
media as highly contaminated if 1% of the volume of media is 
contaminated with a particular constituent. Therefore capping the 
Bright Line at 10,000 ppm is consistent with the intention that the 
Bright Line distinguish between highly contaminated and less 
contaminated media. The second cap on the soil Bright Line values is 
the saturation limit (Csat). EPA believes it is sound science to 
compare the concentrations developed through the inhalation and 
ingestion risk scenarios to the actual concentration that could 
physically saturate the soil. If the Csat was lower than the 
concentrations from the inhalation or ingestion scenarios, EPA set the 
Bright Line concentration at the Csat. For further details on specific 
assumptions and methodologies used to

[[Page 18800]]

determine the Bright Line values for soils, see Appendix A-1.
    The Agency also considered several alternatives for establishing 
exposure assumptions for soil Bright Line numbers. These alternatives 
are discussed below. Estimates of the impacts of each alternative (in 
terms of volumes of media exempted) are all based on a 10<SUP>-3 risk 
for carcinogens, and a health index of 10 for non-carcinogens (that is 
10 x  the concentration at which adverse health effects occur).
    Alternative #1--Bright Line for soils based on inhalation, 
ingestion, and migration to ground water. In addition to inhalation and 
ingestion pathways, this alternative would use a generic model to 
derive soil levels that, given certain fate and transport assumptions, 
would result in transfer of contaminants in the soils to ground water 
at or below drinking water standards (i.e., maximum concentration 
levels, or MCL's). EPA did not choose this alternative primarily 
because of the site-specific variability of calculating ground water 
exposure scenarios (as discussed above). In addition, this approach 
would result in Bright Line numbers that were considerably lower than 
those in the proposed option. The Agency estimated that under this 
alternative, approximately 50 percent of contaminated media would fall 
below the Bright Line, compared to 70 to 75 percent under the proposed 
option.
    Alternative #2--Bright Line for soils based on inhalation and 
ingestion pathways, with concentrations calculated on a site-specific 
basis for the soil-to-ground water pathway. This option would yield 
Bright Line numbers that would approximate more closely ground water 
risks for each site. However, it would have the disadvantage of 
requiring considerable data gathering and analysis simply to calculate 
Bright Line concentrations, and these concentrations would obviously 
differ from site to site. This contradicts the idea of the Bright Line 
as ``bright''--i.e., an easily referenced set of numbers that can be 
applied in a standard fashion. However, since Bright Line numbers would 
vary widely across the range of cleanup sites, volume estimates for 
this alternative are not possible to calculate.
    Alternative #3--Bright Line numbers for soils based on a 
multipathway analysis. Under this alternative, numerous exposure 
pathways would be considered for each constituent, and Bright Line 
concentrations would be set for the most conservative pathway (i.e., 
the pathway that resulted in the lowest concentration level). In some 
respects this approach would be consistent with the multipathway 
approach being used in the HWIR proposed rule for as-generated wastes 
(60 FR 66344-469, Dec. 21, 1995). However, the Bright Line is intended 
for a very different purpose than the ``exit levels'' being developed 
for that proposed rule. For instance, the exit levels in the HWIR-Waste 
rule (discussed in section (II)(B) of this preamble) generally assume 
that exited wastes will not be subject to any management requirements, 
whereas this proposal assumes that these wastes will be managed 
protectively under State/EPA oversight. In addition, the resulting 
Bright Line values would be much lower than those proposed today, thus 
much less media would be regulated ``below the line.''
    Bright Line concentrations for ground water and surface water. 
Today's proposed rule also establishes Bright Line values specifically 
for contaminated ground water. (See Appendix A-2 and discussion below). 
As with contaminated soils, highly-concentrated, contaminated ground 
water would be subject to specific national management standards, while 
less-contaminated ground water could be managed according to site-
specific requirements imposed by the State or EPA.
    To set Bright Line concentrations for ground water and surface 
water (Appendix A-2), EPA used standard exposure assumptions for human 
ingestion of contaminated water. EPA believes that it is appropriate to 
use the same Bright Line values for surface water and ground water. And 
for the same reasons discussed above for soils, the Agency believes a 
multi-pathway approach, or ``actual risk'' approach is not necessary 
for setting Bright Line concentrations for ground water and surface 
water.
    EPA has used the same philosophical approach for the ground water/
surface water Bright Line as it has used for soils, by analyzing 
relative risk and relying on the oversight of authorized States or EPA 
to ensure that hazards are addressed on a site-specific basis. In 
addition, EPA used a 10,000 ppm cap for the ground water/surface water 
Bright Line, just as for the soil Bright Line. This is explained in the 
soil Bright Line section of the preamble. Finally, if the 
concentrations from the ingestion of contaminated water were below the 
detection limits for that constituent in water (the EQC), EPA set the 
Bright Line at the EQC. More details on the specific assumptions and 
methodologies used to determine these concentrations are included in 
Appendix A-2.
    Issues common to both sets of Bright Line numbers. In developing 
today's proposed Bright Line concentrations, some stakeholders said 
that EPA would need to calculate a number of additional direct and 
indirect pathways to evaluate the relative risks of contaminated media 
completely. The stakeholders also said that the Agency would need to 
predict risks to ecological receptors (i.e., plants and animals) as 
well as human health risks. EPA, however, does not believe that 
evaluation of additional pathways is necessary. The pathways selected 
already provide a sufficient basis for distinguishing relatively lower-
risk contaminated media from relatively higher-risk media. The 
evaluation of other pathways and receptors would be important and, in 
some cases, necessary if the Bright Line represented ``safe'' levels of 
contamination. As explained above, however, the Bright Line serves no 
such purpose. It merely identifies which of two regulatory schemes 
would apply to certain contaminated media. If site-specific factors 
demonstrate that a decision that media no longer contain hazardous 
wastes, would be inappropriate, then the overseeing agency has the 
discretion not to make such a determination.
    Some stakeholders have voiced concerns about the land use 
assumptions that were used to set the Bright Line. The SSLs used 
residential land use assumptions; therefore, residential land use 
assumptions form the basis for the proposed Bright Line for soils. EPA 
recognizes that the residential land use assumptions that underlie the 
ingestion and inhalation exposure pathways used for today's Bright Line 
values for soil may be inappropriate for managing risks at many sites 
that would be subject to these HWIR-media regulations. However, since 
the purpose of using risk assessment to develop the Bright Line is to 
differentiate between the relative risks of constituents, and not to 
establish the risks posed at specific sites, either residential or 
industrial assumptions would have been equally appropriate. Since the 
Agency's residential risk assessment methodology is more developed than 
the industrial methodology, the Agency chose to use residential 
assumptions for developing the Bright Line. The Bright Line for ground 
water and surface water does not include assumptions about land use. 
(See discussion above).
    Request for comment. EPA solicits comments on the approaches used 
to develop today's proposed Bright Lines. The Agency also requests 
comment on the alternatives described above, as well

[[Page 18801]]

as any other possible approaches to developing the Bright Line.
    In addition, EPA requests comments on whether it is necessary to 
have a Bright Line at all. If there were no Bright Line, all media 
would be eligible for contained-in decisions by the overseeing agency 
on a site-specific basis. Alternatively, the ``unitary approach,'' 
discussed in section VI of this preamble, would eliminate the Bright 
Line, and instead would exempt all cleanup wastes managed under a RMP 
from Subtitle C requirements.
    Technical methodology. As discussed above, the technical 
methodologies used in calculating Bright Line concentrations for soil 
ingestion and inhalation are those that were used to develop ``soil 
screening levels'' for contaminated sites (59 FR 67706, December 30, 
1994). In the proposed soil screening level guidance, values for the 
soil-to-ground water pathway would generally be calculated with data 
derived from site-specific factors and conditions, although generic 
values for this pathway would be presented in situations where site-
specific data were unavailable. These technical methods and formulae 
are available for review in the docket for this rulemaking, and in the 
docket for the soil screening level proposal since they support both 
rules.
    EPA requests comments on the methods, formulae, and technical 
underpinnings used for this rulemaking. Comments could include 
information on particular constituents that could change proposed 
Bright Line concentrations, information that may be used to determine 
Bright Line numbers for constituents that currently do not have Bright 
Line numbers. Commenters should keep in mind that the Agency's 
objective is to provide regulatory relief by encouraging contaminated 
media with a lower degree of risk to exit from Subtitle C regulation--
provided that adequate safeguards exist to protect human health and the 
environment.
    EPA has often found it necessary to propose sets of risk-based 
numbers to address contaminated media, for example; Subpart S action 
levels, (55 FR 30798, July 27, 1990), Superfund Soil Screening Levels 
(see below), and today's proposed rule. Since the Agency's 
understanding of risk assessment and the science surrounding risk based 
numbers is constantly developing, EPA has realized that almost as soon 
as risk-based numbers are published, they can become outdated. As a 
very current example, today EPA is proposing Bright Line concentrations 
based, in part, on the Superfund Soil Screening Levels (EPA/9355.4-
14FS, EPA/540/R-94/101 PB95-963529 (December 1994)). After today's 
proposed Bright Line concentrations were calculated, but before this 
proposal was published, some of the technical inputs used to calculate 
the Superfund Soil Screening levels were adjusted in response to public 
comments (e.g., volatilization factors, cancer slope factors, etc.). 
EPA did not have time to recalculate the Bright Line concentration 
before publishing them.
    In response to this problem, EPA requests comment on alternatives 
to keep the Bright Line concentrations up-to-date with the most current 
Agency risk information and policies (e.g., adjustments to the Soil 
Screening levels,<SUP>12 changes in reference doses or cancer slope 
factors in the IRIS or HEAST databases). For purposes of comment on 
this proposal, EPA will update the Bright Line calculations and place 
them in the docket for this rule.
---------------------------------------------------------------------------

    \12\ The Soil Screening Guidance has addressed this problem by 
publishing the methodology as the guidance itself, and only 
providing the actual concentrations as examples in the appendix to 
the guidance.
---------------------------------------------------------------------------

    EPA believes it might be appropriate, instead of promulgating 
actual Bright Line concentrations in the final rule, to promulgate the 
methodology that could be used to develop constituent-specific 
concentrations, in Appendix A to this rule, and to provide guidance on 
appropriate sources for needed underlying risk-based information. EPA 
believes it might then be appropriate for States to update their lists 
of Bright Line concentrations on a regular basis, such as every six 
months, to remain current with developments in risk information. As an 
alternative, EPA believes it may be appropriate for States and/or EPA 
to calculate new Bright Line concentrations for each new RMP at the 
time it is proposed for public comment. In any case, the Bright Line 
concentrations being used under a RMP must be stated in the RMP, and 
available during public comment on the RMP. The Agency requests comment 
on these alternatives, and any other suggestions for keeping Bright 
Line concentrations up-to-date.
    The Agency also recognizes the problems of trying to comply with a 
``moving target.'' A cleanup could be completed or underway using a 
certain set of Bright Line concentrations that could then change. EPA 
believes it might be appropriate to protect those past and on-going 
cleanup operations from the requirement to change course mid-way, or to 
revisit completed remediation waste management under a RMP which used 
outdated Bright Line concentrations. In the Superfund program, 
requirements that are revised or newly promulgated after the ROD is 
signed must be attained only when EPA determines that these 
requirements are ARARs and that they must be met to ensure that the 
remedy is protective (40 CFR 300.430(f)(1)(ii)(1)). Another alternative 
could be a shield such as is provided for RCRA permits in 40 CFR 270.4, 
which could specify that compliance with a RMP would equal compliance 
with RCRA. EPA requests comments on this protection issue, and how best 
to achieve it.
    Relationship of the HWIR-media Bright Line to the HWIR-waste exit 
levels. As described earlier in this preamble (in section (IV)(C)) the 
objectives for the HWIR-waste exit levels and the HWIR-media Bright 
Line are different. The HWIR-waste exit levels are intended to identify 
levels of hazardous constituents that would pose no significant threat 
to human health or the environment regardless of how the waste was 
managed after it exited Subtitle C jurisdiction. The HWIR-media Bright 
Line levels are simply intended to distinguish between (1) contaminated 
media that are eligible to exit Subtitle C because it is likely that 
they can be managed safely under cleanup authorities outside of 
Subtitle C, and (2) media that contain so much contamination that 
Subtitle C management is warranted. Because of these different 
objectives, EPA developed the two proposals using different 
methodologies. For the soil Bright Line, HWIR-media used a calculation 
based on ingestion and inhalation of soil at 10<SUP>-3 cancer risk, and 
a hazard index of 10 for non-carcinogens. For the non-wastewater HWIR-
waste exit level (which is most readily comparable to the soil Bright 
Line), EPA used an analysis that evaluates exposures from multiple 
pathways to identify those pathways that may result in a 10<SUP>-6 
cancer risk and hazard index of 1 for non-carcinogens. EPA then 
selected the most limiting pathway, (most conservative), as the exit 
criteria. EPA believed that the HWIR-waste levels would be more 
conservative than the HWIR-media concentrations. However, upon a recent 
comparison of the two sets of numbers, some HWIR-waste exit levels are 
at higher concentrations (less conservative) than the HWIR-media Bright 
Line concentrations. In the comparison of those concentrations, EPA 
determined that for about 27% of the HWIR-media Bright Line 
concentrations of chemical constituents for soil, the HWIR-waste exit 
levels for non-wastewater were higher.
    A similar result was found when EPA compared the HWIR-media

[[Page 18802]]

groundwater/surface water Bright Line concentrations to the HWIR-waste 
wastewater exit levels. In that case, EPA used direct ingestion of 
groundwater resulting in a cancer risk of 10<SUP>-3 and hazard index of 
10 for non-carcinogens to calculate the HWIR-media Bright Line. For the 
HWIR-waste wastewater exit level, EPA again analyzed multiple pathways 
to identify those that would result in a cancer risk of 10<SUP>-6 and a 
hazard index of 1 for non-carcinogens and then selected the most 
limiting pathway as the exit criteria. For approximately 20% of the 
HWIR-media Bright Line concentrations for groundwater/surface water the 
HWIR-waste concentrations for wastewater were higher.
    One of the practical concerns that arises from this difference in 
concentrations is this: if contaminated media is below the HWIR-waste 
exit levels, then that media is eligible for exit under that rulemaking 
just like any other hazardous waste. Therefore, if the HWIR-media rule 
specified that media at concentrations below the HWIR-waste exit levels 
were still ``above the Bright Line'' and not eligible for a contained-
in determination, the two rules would be inconsistent. EPA recognizes 
that this inconsistency must be addressed before promulgation of these 
two final rules, and requests comments on how to resolve this issue. A 
preliminary description of the primary differences in the methodologies 
follows.
    One of the most significant differences between the HWIR-waste and 
the HWIR-media methodologies is that the HWIR-waste methodology was 
designed to calculate an acceptable concentration at which as-generated 
waste and treatment residuals could exit the Subtitle C system. A part 
of that methodology assumed that exited wastes might be managed in such 
a way as to contaminate soils and groundwater, and calculated the 
potential risk to receptors from the contaminated soil or groundwater. 
Therefore, the HWIR-waste analysis models fate and transport between 
the original waste and the contaminated media, assuming some loss of 
concentration due to many factors, such as: partitioning of 
constituents to air, soil, and water; losses of contaminant mass 
through biodegradation; bioaccumulation through the food chain; and 
volatilization, hydrolysis, and dispersion of contaminants during 
transport. The HWIR-media methodology begins at the point where soils 
and groundwater are already contaminated. Therefore, the HWIR-media 
Bright Line did not incorporate fate and transport considerations to 
calculate the Bright Line concentrations, but assumed the receptor was 
in direct contact with the contaminated media.
    Specific comparison of soil Bright Line to non-wastewater exit 
levels. If contaminated soil were managed under the HWIR-waste 
proposal, the soil would be subject to the exit criteria for non-
wastewaters. That is why EPA compared the soil Bright Line to the non-
wastewaters exit level. For this analysis, the HWIR-media Bright Line 
for soil based on ingestion or inhalation was compared with the exit 
criterion for non-wastewater identified as the most limiting pathway 
(e.g., soil ingestion, fish ingestion) in the HWIR-waste proposal. 
Thus, the analysis was not necessarily a comparison of exit criteria 
and Bright Lines for similar exposure pathways.
    The analysis indicated that for 27 of the HWIR-media Bright Line 
constituent concentrations for soil, the proposed Bright Line 
concentration was lower than the exit criterion for HWIR-wastes for 
non-wastewater. Of these constituents, six of the lower proposed Bright 
Line concentrations are lower because the HWIR-media number was 
intentionally ``capped'' at 10,000 parts per million. EPA decided to 
propose a 10,000 ppm cap, equivalent to 1% of the volume of the 
contaminated media, (as discussed above) because EPA believes that it 
is reasonable to classify media as highly contaminated if 1% of the 
volume of media is contaminated with a particular constituent. 
Therefore capping the Bright Line at 10,000 ppm is consistent with the 
intention that the Bright Line distinguish between highly contaminated 
and less contaminated media. The HWIR-waste proposal did not propose to 
cap the exit levels because it was not intended to differentiate wastes 
based on higher vs. lower concentration, but instead to differentiate 
based on risk factors.
    For 12 of the 27 constituents, HWIR-media Bright Lines are 
established at soil saturation limits (Csat) that are less than the 
corresponding HWIR-waste exit level. EPA believes it is sound science 
for a rule establishing soil concentrations to compare the 
concentrations developed through the inhalation and ingestion risk 
scenarios to the actual concentration that could physically saturate 
the soil. If the Csat was lower than the concentrations from the 
inhalation or ingestion scenarios, EPA set the Bright Line 
concentration at the Csat. The HWIR-waste proposal (since it is 
proposed for as generated wastes, not soils) did not propose to cap the 
exit levels at the soil saturation limit.
    For the other nine of the 27 constituents, differences in the 
results can be attributed to several factors related to the underlying 
assumptions of the methodologies used to calculate the criteria.<SUP>13 
These include the fate and transport differences discussed above, and:
---------------------------------------------------------------------------

    \13\ If the HWIR-media proposed Bright Line concentrations were 
updated to reflect the updated Soil Screening levels, as discussed 
above, two of these nine remaining constituents would have higher 
HWIR-media Bright Line concentrations than HWIR-waste exit levels.

--Receptors. Although many of the exposure assumptions (e.g., exposure 
duration, exposure frequency, ingestion rate) are common to the 
analyses, there are still significant differences in the location of 
the receptors that will affect the exit criteria. The HWIR-media Bright 
Lines are based on an exposure scenario in which a resident lives 
directly on the contaminated media and ingests contaminated soil or 
inhales particulate and volatile emissions. The HWIR-waste exit levels 
consider several exposure scenarios; however, none are directly 
comparable to the HWIR-media exposure scenario. These exposure 
scenarios include an off-site resident, an adult off-site resident, a 
child off-site resident, an adult and child on-site 10 years after site 
closure, and an on-site worker.
--Sources. The HWIR-media Bright Lines for soil ingestion and 
inhalation exposure pathways are based solely on contaminated soils and 
assume that the soil is an infinite source. The HWIR-waste non-
groundwater non-wastewater exposure pathways consider three sources: 
land application units, waste piles, and ash monofills. Waste piles and 
ash monofills are assumed to be infinite sources; however, the land 
application units are assumed to be finite sources. This assumption may 
result in higher (less conservative) exit criteria under HWIR-waste.

    A comparison of the toxicity benchmarks indicates that the HWIR-
media Bright Lines and the HWIR-waste exit levels generally start with 
the same toxicity benchmark (all but three chemicals for oral ingestion 
and all but four chemicals for inhalation use the same toxicity 
benchmarks). Thus, the apparent discrepancies in the criteria can be 
attributed to the significant differences in the fate and transport 
modeling of the chemicals in the HWIR-process waste analysis, the 
receptors evaluated, and assumptions related to the sources (as 
described above).

[[Page 18803]]

    Specific comparison of Groundwater/Surface Water Bright Line to 
wastewater exit levels. If contaminated groundwater were managed under 
the HWIR-waste proposal, the groundwater would be subject to the exit 
criteria for wastewaters. That is why EPA compared the groundwater/
surface water Bright Line to the wastewaters exit level. For this 
analysis, the HWIR-media Bright Line for groundwater/surface water 
based on ingestion of groundwater was compared with two options for the 
exit criterion for wastewater for the HWIR-waste proposal, one based on 
toxicity benchmarks and one based on toxicity benchmarks and MCLs.
    The analysis indicated that 38 constituents had higher proposed 
HWIR-waste exit criteria than proposed HWIR-media Bright Line 
concentrations.<SUP>14 For one of these 38 constituent, only the MCL 
option for the HWIR-waste exit level was higher. For four of the 38 
constituents, only the toxicity benchmark only option for the HWIR-
waste exit level was higher. None of these 38 constituents were 
affected by the HWIR-media 10,000 ppm cap, and there is not a 
saturation limit cap on the HWIR-media groundwater/surface water Bright 
Line.
---------------------------------------------------------------------------

    \14\ If the HWIR-media proposed Bright Line concentrations were 
updated to reflect current updated risk information, as discussed 
above, two of these 38 constituents would have higher HWIR-media 
Bright Line concentrations than HWIR-waste exit levels.
---------------------------------------------------------------------------

    Similar to the comparison of the HWIR-media soil Bright Line to the 
HWIR-waste non-wastewater exit levels, the HWIR-media groundwater/
surface water Bright Line and the HWIR-waste wastewater exit levels use 
different methodologies, and therefore produce different results. 
Again, a key difference between the two sets of concentrations is the 
use of fate and transport modeling. The HWIR-waste proposal assumes 
some loss through fate and transport, whereas the HWIR-media 
methodology assumes direct ingestion of the contaminated groundwater 
(more details on the two methodologies can be found in the dockets for 
the two proposed rules).
    Request for comments. Because of the above comparisons, EPA has 
determined that for some constituents, because the HWIR-media 
methodology was more conservative than the HWIR-waste methodology, that 
conservatism outweighed the fact that the HWIR-media risk target 
(10<SUP>-3 for limited pathways) was less conservative than the HWIR-
waste risk target (10<SUP>-6 for multiple pathways). Therefore some of 
the HWIR-waste exit levels, which were intended to be more conservative 
overall than the HWIR-media Bright Line, are set at higher 
concentrations. As described above, EPA recognizes that these 
discrepancies must be resolved before promulgation of the two proposed 
rules. For further detail on the methodologies used to develop the 
HWIR-media Bright Line, Soil Screening Levels and the HWIR-waste exit 
levels, see the docket for the two proposed HWIR rules. EPA requests 
comments on how to resolve these issues.

B. Other Requirements Applicable to Management of Hazardous 
Contaminated Media

1. Applicability of Other Requirements--Sec. 269.10
    The purpose of today's proposed rule would be to modify the 
identification, permitting, management, treatment, and disposal 
requirements for contaminated media. It is not intended to replace the 
entire scope of Subtitle C requirements as they relate to media. For 
that reason, many existing Subtitle C requirements would continue to 
apply to remedial actions conducted in accordance with this Part. 
Specifically, 40 CFR Parts 262-267 and 270 would continue to apply when 
complying with this Part, except as specifically replaced by the 
provisions of this Part. In addition, when treating media subject to 
LDRs according to the treatment standards in Sec. 269.30, the following 
provisions of Part 268 would continue to apply` Secs. 268.2-268.7 
(definitions, dilution prohibition, surface impoundment treatment 
variance, case-by-case extensions, no migration petitions, and waste 
analysis and recordkeeping), Sec. 268.44 (treatment variances), and 
Sec. 268.50 (prohibition on storage). Again, the Agency does not intend 
to recreate all of the Subtitle C requirements, but in this case only 
replace certain requirements themselves as they relate to hazardous 
contaminated media.
2. Intentional Contamination of Media Prohibited--Sec. 269.11
    EPA recognizes that promulgation of standards for hazardous 
contaminated media that are less onerous than the requirements for 
hazardous waste may create incentives for mixing waste with soil or 
other media to render the waste subject to these provisions. The Agency 
expressly proposes to prohibit this behavior (Sec. 269.11).
    EPA recognizes, however, that sometimes it is necessary to have 
some mixing of contaminated media for technical purposes to facilitate 
cleanup. That mixing is not the prohibited mixing referred to here. 
This prohibition specifically includes the intent to avoid regulation. 
If the intent of the mixing is to better comply with the regulations 
that would apply to the wastes prior to mixing, then it would not be 
prohibited under this clause. The Agency requests comments on whether 
further safeguards, in addition to this proposed provision and the 
civil and criminal enforcement authorities of RCRA, are needed to 
ensure that no attempts are made to mix wastes with media to take 
advantage of the reduced requirements of the proposed HWIR-media rule.
3. Interstate Movement of Contaminated Media--Sec. 269.12
    EPA recognizes that media that would be exempted under today's 
rule, but that previously would have been managed as hazardous wastes, 
would be transported to and through States that were not the overseeing 
agency for the remedial action that generated those media. Therefore, 
the Agency designed the interstate movement requirements of proposed 
Sec. 269.12 to ensure that receiving (consignment) States--or States 
through which media would travel--could approve the designation that 
the media is not hazardous before they accepted the media for transport 
or disposal.
    The default in these requirements is that the media must be managed 
as Subtitle C waste in the receiving or transporting State if the 
receiving or transporting State has not been notified of the 
designation as non-hazardous, or if the receiving or transporting State 
does not agree with the determination. Receiving and transporting 
States would also have to be authorized for this Part in order to 
approve these decisions in their States. If a receiving or transporting 
State agrees to the redesignation, then the media may be managed as 
non-hazardous.
    EPA requests comments on these interstate movement requirements, 
specifically on any implementation concerns with this approach, and any 
suggestions to ease implementation. Several people have expressed 
concern about notifying the States through which the media would be 
transported, but not ultimately disposed. The Agency believes that it 
may be appropriate to limit notification requirements to the States 
ultimately receiving the media. EPA also feels that it would be 
necessary to limit the designation of media as non-hazardous only to 
States that are authorized for this Part. The Agency believes that this 
would be necessary because the authority to make these contained-in 
decisions is an integral element for authorization for this Part. EPA 
believes

[[Page 18804]]

that it may be appropriate to allow States not authorized for this Part 
to simply approve another authorized States' decision that the media 
are not hazardous. The Agency requests comments on these issues.

C. Treatment Requirements

1. Overview of the Land Disposal Restrictions
    The Hazardous and Solid Waste Amendments (HSWA) to the Resource 
Conservation and Recovery Act (RCRA), enacted on November 8, 1984, 
largely prohibit land disposal of hazardous wastes.<SUP>15 Once a 
hazardous waste is prohibited from land disposal, the statute provides 
only two options: comply with a specified treatment standard prior to 
land disposal, or dispose of the waste in a unit that has been found to 
satisfy the statutory no migration test (referred to as a ``no 
migration'' unit) (RCRA section 3004(m)). Storage of waste prohibited 
from land disposal is also prohibited, unless the storage is solely for 
the purpose of accumulating the quantities of hazardous waste that are 
necessary to facilitate proper recovery, treatment, or disposal (RCRA 
section 3004(j)). For purposes of the land disposal restrictions, land 
disposal includes any placement of hazardous waste into a landfill, 
surface impoundment, waste pile, injection well, land treatment 
facility, salt dome formation, salt bed formation, or underground mine 
or cave (hereafter referred to as ``placement'') (RCRA section 
3004(k)).
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    \15\  The LDR requirements are not cleanup requirements; LDR 
treatment standards do not trigger removal, exhumation, or other 
management of contaminated environmental media; however, other 
applicable requirements, such as State or Federal cleanup 
requirements, could trigger such actions which, in turn, could 
trigger LDR requirements.
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    Not all management of hazardous waste constitutes placement for 
purposes of the LDRs. EPA has interpreted ``placement'' to include 
putting hazardous waste into a land-based, moving hazardous waste from 
one land-based unit to another, and removing hazardous waste from the 
land, managing it in a separate unit, and re-placing it in the same (or 
a different) land-based. Placement does not occur when waste is 
consolidated within a land-based unit, when it is treated in situ, or 
when it is left in place (e.g., capped). (See 55 FR 8666, 8758-8760, 
(March 8, 1990) and ``Determining When Land Disposal Restrictions 
(LDRs) Are Applicable to CERCLA Response Actions,'' EPA, OSWER 
Directive 9347.3-O5FS, (July 1989)).
    Congress directed EPA to establish treatment standards for all 
hazardous wastes restricted from land disposal at the same time as the 
land disposal prohibitions take effect. According to the statute, 
treatment standards established by EPA must substantially diminish the 
toxicity of the waste or substantially reduce the likelihood of 
migration of hazardous constituents from the waste so that short- and 
long-term threats to human health and the environment are minimized 
(RCRA section 3004(m)(1)). In Hazardous Waste Treatment Council v. EPA, 
886 F.2d 355 (D.C. Dir. 1989), Cert. Denied 111 S.Ct 139 (1990), the 
court held that section 3004(m) allows both technology- and risk-based 
treatment standards, provided that technology-based standards are not 
established ``beyond the point at which there is not a `threat' to 
human health or the environment.'' id. at 362 (i.e., beyond the point 
at which threats to human health and the environment are minimized) (59 
FR 47980, 47986, September 19, 1994). Hazardous wastes that have been 
treated to meet the applicable treatment standard may be land disposed 
in land disposal facilities that meet the requirements of RCRA Subtitle 
C (RCRA section 3004(m)(2)).
    Congress established a schedule for promulgation of land disposal 
restrictions and treatment standards for all hazardous wastes listed 
and identified as of November 8, 1984 (the effective date of the HSWA 
amendments) so that treatment standards would be in effect, and land 
disposal of all hazardous waste that did not comply with the standards 
would be prohibited, by May 8, 1990 (RCRA section 3004(g)). For some 
classes of hazardous wastes, Congress established separate schedules: 
for certain hazardous wastes identified by the State of California 
(``California List''), Congress directed EPA to establish treatment 
standards and prohibit land disposal by July 8, 1987; for hazardous 
wastes containing solvents and dioxins, Congress directed the Agency to 
establish treatment standards and prohibit land disposal by November 8, 
1986. (RCRA sections 3004(d) and (e)). For wastes listed or identified 
as hazardous after the HSWA amendments (referred to as ``newly 
identified wastes''), EPA must establish treatment standards and land 
disposal prohibitions within six months of the effective date of the 
listing or identification (RCRA section 3004(g)(4)). Under current 
regulations, environmental media containing hazardous waste are 
prohibited from land disposal unless they are treated to meet the 
treatment standards promulgated for the original hazardous waste in 
question (i.e., the same treatment standard the contaminating hazardous 
waste would have to meet if it were newly generated). (See 58 FR 48092, 
48123, (September 14, 1993)).
    The land disposal restrictions generally attach to hazardous 
wastes, or environmental media containing hazardous wastes, when they 
are first generated. Once these restrictions attach, the standards 
promulgated pursuant to section 3004(m) must be met before the wastes 
(or environmental media containing the wastes) can be placed into any 
land disposal unit other than a no migration unit. In cases involving 
characteristic wastes, the D.C. Circuit held that even elimination of 
the property that caused EPA to identify wastes as hazardous in the 
first instance (e.g., treating characteristic wastes so they no longer 
exhibit a hazardous characteristic) does not automatically eliminate 
the duty to achieve compliance with the land disposal treatment 
standards. (Chemical Waste Management v. U.S. EPA, 976 F.2d 2,22 (D.C. 
Dir. 1992), cert. denied, 113 S.Ct 1961 (1993).) The Agency has 
examined the logic of the Chemical Waste decision and concluded that 
the same logic could arguably be applied in the remediation context; 
i.e., a determination that environmental media once subject to LDR 
standards no longer contain hazardous wastes may not automatically 
eliminate LDR requirements. While the Chemical Waste court did not 
specifically address the remediation context, the Agency believes it 
may be prudent to follow the logic the court applied to characteristic 
wastes, and has developed today's proposal accordingly.
    It is important to note that the land disposal restrictions apply 
only to hazardous (or, in some cases, formerly hazardous) wastes and 
only to placement of hazardous wastes after the effective date of the 
applicable land disposal prohibition--generally May 8, 1990 for wastes 
listed or identified at the time of the 1984 amendments, or six months 
after the effective date of the listing or identification for newly 
identified wastes.<SUP>16 In other words, the duty to comply with LDRs 
has already attached to hazardous wastes land disposed (``placed'') 
after the applicable effective dates, but not to hazardous wastes 
disposed prior to the applicable effective dates. Accordingly, 
hazardous

[[Page 18805]]

wastes disposed prior to the effective date of the applicable 
prohibition only become subject to the LDRs if they are removed from 
the land and placed into a land disposal unit after the effective date 
of the applicable prohibition. (See 53 FR 31138, 31148, (August 17, 
1988) and Chemical Waste Management v. US EPA, 86 9 F.2d 1526, 1536 
(D.C. Cir. 1989)), ``treatment or disposal of [hazardous waste] will be 
subject to the [LDR] regulation only if that treatment or disposal 
occurs after the promulgation of applicable treatment standards.'') 
Similarly, environmental media contaminated by hazardous wastes placed 
before the effective dates of the applicable land disposal restrictions 
does not become subject to the LDRs unless they are removed from the 
land and placed into a land disposal unit after the effective dates of 
the applicable restrictions.
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    \16\ A detailed listing of when the land disposal prohibitions 
took effect for individual hazardous wastes can be found in 40 CFR 
Part 268, Appendix VII.
---------------------------------------------------------------------------

    The land disposal restrictions do not attach to environmental media 
contaminated by hazardous wastes when the wastes were placed before the 
effective dates of the applicable land disposal prohibitions. If these 
media are determined not to contain hazardous wastes before they are 
removed from the land, then they can be managed as non-hazardous 
contaminated media and they're not subject to land disposal 
restrictions. For example, soil contaminated by acetone land disposed 
(``placed'') in 1986 (prior to the effective date of the land disposal 
prohibition for acetone) and, while still in the land, determined not 
to contain hazardous waste, is not subject to the land disposal 
restrictions.<SUP>17 This is consistent with the Agency's approach in 
the HWIR-waste rule, where it indicates that LDRs do not attach to 
wastes that are not hazardous at the time they are first generated (60 
FR 66344, December 21, 1995).
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    \17\ Similarly, soil contaminated by acetone placed in a solid 
waste management unit in 1986, but leaked into the soil at some 
point after 1986, is not subject to the land disposal restrictions 
provided that, while the soil is still in the land, the Director 
determines it does not contain hazardous wastes. LDRs would not 
attach because, in this case, it is the initial placement of 
hazardous waste that determines whether there is a duty to comply 
with LDRs.
---------------------------------------------------------------------------

    Since application of the land disposal restrictions is limited, in 
order to determine if a given environmental medium must comply with 
LDRs one must know the origin of the material contaminating the medium 
(i.e., hazardous waste or not hazardous waste), the date(s) the 
material was placed (i.e., before or after the effective date of the 
applicable land disposal prohibition), and whether or not the medium 
still contains hazardous waste (i.e., contained-in decision or not).
    Facility owner/operators should make a good faith effort to 
determine whether media were contaminated by hazardous wastes and 
ascertain the dates of placement. The Agency believes that by using 
available site- and waste-specific information such as manifests, 
vouchers, bills of lading, sales and inventory records, storage 
records, sampling and analysis reports, accident reports, site 
investigation reports, spill reports, inspection reports and logs, and 
enforcement orders and permits, facility owner/operators would 
typically be able to make these determinations. However, as discussed 
earlier in the preamble of today's proposal, if information is not 
available or inconclusive, facility owner/operators may generally 
assume that the material contaminating the media were not hazardous 
wastes. Similarly, if environmental media were determined to be 
contaminated by hazardous waste, but if information on the dates of 
placement is unavailable or inconclusive, facility owner/operators may, 
in most cases assume the wastes were placed before the effective date.
    The Agency believes that, in general, it is reasonable to assume 
that environmental media do not contain hazardous wastes placed after 
the effective dates of the applicable land disposal prohibitions when 
information on the dates of placement is unavailable or inconclusive, 
in part, because current regulations, in effect since the early 1980's, 
require generators of hazardous waste to keep detailed records of the 
amounts of hazardous waste they generate. These records document 
whether the waste meets land disposal treatment standards and list the 
dates and locations of the waste's ultimate disposition. With these 
records, the Agency should be able to determine if environmental media 
were contaminated by hazardous wastes and if they would be subject to 
the land disposal restrictions.
    In addition, EPA believes that the majority of environmental media 
contaminated by hazardous wastes were contaminated prior to the 
effective dates of the applicable land disposal restrictions. 
Generally, the contamination of environmental media by hazardous waste 
after the effective date of the applicable land disposal restriction 
would involve a violation of the LDRs, subject to substantial fines and 
penalties, including criminal sanctions. The common exception would be 
one-time spills of hazardous waste or hazardous materials. In these 
cases, the Agency believes that, typically, independent reporting and 
record keeping requirements (e.g., CERCLA sections 102 and 103 
reporting requirements or state spill reporting requirements) coupled 
with ordinary ``good housekeeping'' procedures, result in records that 
will allow the Agency to determine the nature of the spilled material, 
and the date (or a close approximation of the date) of the spill. The 
Agency requests comments on this approach and on any other assumptions, 
records, or standards of evaluation that would ensure that facility 
owner/operators would identify any contaminated media subject to land 
disposal restrictions properly and completely.
    Information on contained-in decisions should be immediately 
available since, generally, these determinations are made by a 
regulatory agency on a site-specific basis and careful records are 
kept.
2. Treatment Requirements--Sec. 269.30
    a. Approach to treatment requirements and recommendations of the 
FACA Committee. RCRA section 3004(m) requires that treatment standards 
for wastes restricted from land disposal, ``* * * specify those levels 
or methods of treatment, if any, which substantially diminish the 
toxicity of the waste or substantially reduce the likelihood of 
migration of hazardous constituents from the waste so that short-term 
and long-term threats to human health and the environment are 
minimized.'' A recurring debate through EPA's development of the land 
disposal restriction program has been whether treatment standards 
should be technology-based (i.e., based on performance of a treatment 
technology) or risk-based (i.e., based on assessment of risks to human 
health and the environment that are posed by the wastes). The Agency 
believes that both approaches are allowed. It has long been recognized 
that Congress did not directly address the questions of how to set 
treatment standards in the language of section 3004(m).\18\ In 
addition, Congress did not specifically address whether the LDR 
treatment standards for newly generated wastes and remediation wastes 
must be identical; the structure of RCRA's LDR provisions suggests that 
Congress believed that remediation waste may merit special 
consideration. (See, RCRA sections 3004(d)(3) and 3004(e)(3), which

[[Page 18806]]

provided a separate schedule for establishing LDR prohibitions and 
treatment standards for most remediation wastes).
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    \18\ See, e.g., 51 FR 40572, 40578 (November 7, 1986); Hazardous 
Waste Treatment Council v. US EPA, 886 F.2d 355, 361-3 D.C. Cir. 
1989); 55 FR 6640, 6641 (February 26, 1990). The legislative history 
of section 3004(m) is likewise inconclusive. See discussion of the 
legislative history at 55 FR 6640, 6641-6642 (February 26, 
1990)''[a]t a minimum, the [legislative history shows] that Congress 
did not provide clear guidance on the meaning of `minimize 
threats'.''
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    EPA's preference would be to establish generic nationwide risk-
based treatment standards that represent minimized threats to human 
health and the environment in the short- and long-term. However, the 
difficulties involved in establishing risk-based standards for 
contaminated media on a generic nationwide basis are formidable \19\, 
due, in large part, to the wide variety of site-specific physical and 
chemical compositions encountered during cleanups in the field. In the 
absence of the information necessary to develop generic, risk-based 
standards for contaminated media, the Agency is proposing generic 
standards using a technology-based approach and, for lower-risk media 
subject to the LDRs, provisions for site-specific, risk-based minimize 
threat determinations. (See discussion of Media Treatment Variances, 
below).
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    \19\ The Agency has proposed a rule that would define hazardous 
constituent concentrations below which certain wastes will no longer 
be listed or identified as ``hazardous'' under RCRA Subtitle C. (60 
FR 66344-469 (December 21, 1995)). In some instances, these 
concentrations may also serve as risk-based LDR treatment standards. 
The Agency can set risk-based LDR treatment standards for certain 
as-generated hazardous wastes (and not for hazardous contaminated 
environmental media) because the Agency has significantly more 
information on as-generated wastes streams and as-generated waste 
streams are typically more homogeneous that contaminated 
environmental media waste streams.
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    Technology-based standards achieve the objective of minimizing 
threats by eliminating as much of the uncertainty associated with 
disposal of hazardous waste as possible. For this reason, technology-
based standards were upheld as legally permissible so long as they are 
not established ``beyond the point at which there is not a ``threat'' 
to human health or the environment.'' (See, Hazardous Waste Treatment 
Council v. EPA, 886 F.2d 355, 361-64 (D.C. Cir. 1989),cert. denied 111 
S.Ct. 139 (1990), page 362; see also (55 FR 6640, 6642, February 26, 
1990)).
    Today's proposed regulations would modify the land disposal 
restriction treatment standards for contaminated media so that they 
reflect appropriate treatment technologies and strategies for 
environmental media, and the site-specific nature of cleanup activities 
more accurately. When non-hazardous contaminated media is still subject 
to LDRs (e.g., because hazardous wastes contaminating the media were 
land disposed (``placed'') after the effective date of the applicable 
LDR prohibition, or because the media were determined to still contain 
hazardous wastes when removed from the land), today's proposal would 
establish, as a policy matter, a presumption for site-specific LDR 
treatment variances. This approach is consistent with the 
recommendations of the FACA Committee, which agreed that the land 
disposal treatment standards for ``as-generated'' wastes are not 
generally appropriate for contaminated environmental media, and that 
higher-risk media should be subject to generic national standards while 
requirements for lower-risk media should be determined on a site-
specific basis in the context of agency-overseen cleanups.
    b. Proposed treatment standards for contaminated media (1) 
Applicability. Hazardous contaminated media are environmental media 
that contain hazardous waste or that exhibit a hazardous characteristic 
and have not been determined, pursuant to Sec. 269.4, to no longer 
contain hazardous wastes. Non-hazardous contaminated media are 
environmental media that have been determined, pursuant to Sec. 269.4, 
not to contain hazardous wastes. Media contaminated by hazardous wastes 
placed after the effective date of the applicable land disposal 
prohibition must be treated to meet LDR treatment standards before it 
is placed into a land disposal unit. In this case, the land disposal 
restrictions attach because hazardous waste was originally land 
disposed--placed--after the effective date of the applicable land 
disposal prohibition and the standards of section 3004(m) were never 
met. Likewise, hazardous contaminated media removed from the land after 
the effective date of the applicable land disposal restriction and 
placed into a land disposal unit, must be treated to meet LDR treatment 
standards. The land disposal restrictions attach in this case because, 
although the hazardous waste was not restricted from land disposal when 
first disposed, it has subsequently been prohibited from land disposal 
and, therefore, if removed from the land after the effective date of 
the applicable prohibition, cannot be placed into a land disposal unit 
until it meets the standards of RCRA section 3004(m). As discussed 
earlier in today's preamble, once the land disposal restrictions 
attach, the standards of section 3004(m) must be met before the wastes 
(or environmental media) may be placed into any land disposal unit 
other than a no migration unit, elimination of the property that cause 
the waste to be hazardous (e.g., deciding, pursuant to Sec. 269.4, that 
a given environmental medium no longer contains hazardous waste) does 
not automatically mean the wastes have complied with RCRA section 
3004(m). <SUP>20
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    \20\  Of course, if the environmental media is determined not to 
contain hazardous wastes before it is removed from the land, the 
land disposal restrictions and duty to comply with RCRA section 
3004(m) do no attach, because no placement of hazardous waste will 
occur after the effective date of the applicable land disposal 
prohibition. In addition, if contaminated environmental media are 
determined not to contain solid or hazardous waste (i.e., it's just 
media) it would not be subject to any RCRA Subtitle C standard, 
including LDRs.
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    (2) Today's proposal. In today's proposed rule, EPA would, (1) 
establish generic, technology-based treatment standards for higher-risk 
contaminated media subject to the LDRs (i.e., hazardous contaminated 
media) and, (2) for lower-risk contaminated media subject to the LDRs 
(i.e., non-hazardous contaminated media), establish, as a policy 
matter, a presumption for site-specific LDR treatment variances. The 
treatment standards proposed today would only apply when media subject 
to the LDRs are managed under a RMP. For hazardous contaminated media 
other than soils (e.g., groundwater and sediments), the proposed rule 
would require treatment to meet the LDR treatment standards applicable 
to the hazardous wastes contained in the media. (See Sec. 269.30(f)). 
For example, ground water contaminated with a commercial chemical 
product such as acetone (hazardous waste number U002) would have to be 
treated to the standards specified in Part 268 for acetone.
    For hazardous contaminated soils, the proposed rule would establish 
alternative soil-specific LDR standards. Proposed Sec. 269.30(e) would 
require that, generally, soils be treated so that the concentrations of 
constituents subject to treatment are reduced by 90 percent with 
treatment capped at 10 times the Universal Treatment Standard. If 
treatment of a given constituent to meet the 90 percent reduction 
standard would result in reducing constituent concentrations to less 
than 10 times the UTS, treatment beyond 10 times the UTS would not be 
required. For non-metal contaminants, total concentrations of 
constituents subject to treatment would have to be reduced by at least 
90 percent from their initial concentrations (or 10 times the Universal 
Treatment Standard, whichever is higher). For metal contaminants, the 
90 percent standard would apply either to the total concentrations of 
metals (for treatment technologies that remove metal contaminants), or 
to the concentrations of the metals in leachate as measured using the 
TCLP (for solidification-type treatment technologies). In addition to

[[Page 18807]]

treating for constituents subject to treatment, for soil that is 
hazardous because it exhibits the characteristics of ignitability, 
corrosivity, or reactivity, the Agency proposes to require treatment 
until the soil no longer exhibits the characteristic.
    (3) Justification for soil-specific LDRs. EPA believes that it is 
appropriate to set soil-specific LDR standards because the soil matrix 
often poses distinct treatment issues. Specifically, the Part 268 
Universal Treatment Standards that would otherwise apply to soil 
subject to the LDRs are based, in large part, on incineration for 
organics and high temperature metal recovery (HTMR) for metals. 
Although incineration and HTMR are highly effective technologies, their 
selection was based on treatment of concentrated, as-generated 
hazardous wastes, and they are not generally appropriate for the large 
volumes of low and moderately contaminated soil typically encountered 
during site remediation. Thus, the Agency believes that technology-
based standards for contaminated soil should not rely exclusively on 
incineration or HTMR and that, in many cases, innovative (i.e., non-
combustion) technologies will be more appropriate (See 55 FR 8666, 
8760-8761, (March 8, 1990) and 58 FR 48092, 48125, (September 14, 
1993)). While the Agency believes that soil is, in most cases, most 
appropriately treated using non-combustion technologies, data gathered 
for the Phase II Soil proposal do not demonstrate conclusively that the 
Universal Treatment Standards can be met using technologies other than 
combustion; therefore, EPA is proposing the alternative soil treatment 
standards discussed today at levels somewhat above UTS levels.
    (4) Application of soil-specific LDRs to other media. EPA 
considered applying the alternative 90% or 10 times the UTS treatment 
standard to hazardous contaminated media other than soils, but decided 
not to because there is little information available to the Agency to 
indicate that the LDR treatment standards that currently apply to these 
other media are inappropriate, or otherwise pose the same type of 
technical challenges as they do for soils. In individual cases where 
the existing UTS standards is inappropriate, the Director would be able 
to use the proposed Media Treatment Variance procedures outlined below 
to set alternative LDR treatment standards for these other media.
    (5) Request for comments. EPA requests comments and data on the LDR 
treatment standards that would be established by today's proposed 
regulations. The Agency is especially interested in comments which 
document that the current LDR treatment standards are appropriate or 
inappropriate for hazardous contaminated media other than soils (e.g., 
groundwater, sediments), or are otherwise compatible or incompatible 
with the remediation context. The Agency is also interested in comments 
which document whether the proposed LDR treatment standards for 
contaminated soils are achievable using technologies appropriate at 
remediation sites.
    c. Detailed analysis of proposed treatment standards for hazardous 
contaminated soils.  EPA first proposed LDR treatment standards 
specific to hazardous contaminated soil in the LDR Phase II Rule (58 FR 
48092, September 14, 1993). In the Phase II Rule, EPA requested comment 
on three options for soil treatment standards: Option 1 was 90% 
treatment provided treatment achieved concentrations at least equal to 
or less than one order of magnitude above the Universal Treatment 
Standard (90% and 10 times UTS); Option 2 was treatment to one order of 
magnitude above the Universal Treatment Standard (10 times UTS); and 
Option 3 was 90% treatment with no ceiling value (90%). Commenters on 
the Phase II proposal strongly supported the 10 times UTS treatment 
standard,<SUP>21 indicating that they thought it would be easy to 
implement, provide for appropriate levels of protection, and be 
achievable using a range of treatment technologies. Available data 
supports the achievability of the 10 times UTS standard, 91% of the 
data pairs in EPA's Soil Treatability Database were treated to 10 times 
UTS using non-combustion technologies such as biological treatment, 
thermal desorption, and dechlorination. Commenters also supported 
various combinations of the 90% reduction and 10 times UTS standards, 
including the 90% or 10 times UTS approach proposed today.
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    \21\ Of the 34 comments received, 14 supported 10 times the UTS; 
6 supported 90% and 10 times the UTS; 4 supported 90%; 6 supported 
other combinations of 90% and 10 times the UTS, including the 
combination proposed today; and 4 supported other options.
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    Ultimately, EPA has chosen to propose the approach it believes will 
provide the most flexibility to overseeing agencies and facility owner/
operators. Providing for flexibility in the management requirements for 
contaminated media is one of EPA's goals for the HWIR-media rulemaking. 
While EPA agrees with some of the comments on the Phase II proposal and 
believes that many facility owner/operators will be able to achieve the 
10 times UTS treatment standard using non-combustion soil treatment 
technologies, the Agency does not have information to show that 10 
times UTS will be necessary to fulfill the requirements of RCRA section 
3004(m) at all sites. In addition, the data pairs in EPA's Soil 
Treatment Database are primarily from bench and pilot schedule studies 
and may not reflect the ``potentially problematic soil matrices and 
varying contaminant levels'' likely to be encountered in the field (58 
FR 48092, 48124, September 14, 1993). Finally, the FACA committee 
agreed on a 90% treatment standard for contaminated media with 
constituent concentrations above Bright Line concentrations. Therefore, 
the Agency believes it is appropriate to also allow for 90% reduction. 
As discussed below, the Agency believes compliance with either standard 
fulfills the requirements of RCRA section 3004(m). EPA intends to use 
the treatability data it receives pursuant to the requirements in 
proposed Sec. 269.41(c)(9) and Sec. 269.42(b) to fill in gaps in the 
data on which the proposed standards are based, and intends to amend 
the standards if appropriate.
    EPA acknowledges that because the 90% reduction standard does not 
guarantee any particular final constituent concentrations, it may 
increase the chance, in individual cases, that soil treatment standards 
will not be appropriate to the site or might not meet the statutory 
standard. To address this concern, the Agency has built a ``safety 
net'' into the proposed soil treatment standards in today's 
regulations, by allowing the Director to specify more stringent soil 
treatment standards that are based on site-specific factors when he/she 
finds that the 90% or 10 times the UTS treatment standard does not 
``minimize threats'' (e.g., where initial concentrations of hazardous 
constituents in the media are abnormally high). (See Sec. 269.32.)
    In developing the LDR treatment standards proposed today for 
hazardous contaminated soils and the standards discussed in the Phase 
II proposal, the Agency did not use its normal approach to setting 
technology-based LDR standards. In setting LDR treatment standards, the 
Agency generally examines available treatment data and sets a standard 
based on the ``best'' of the demonstrated available technologies 
(``BDAT''). The Agency typically finds a technology to be 
``demonstrated'' when the data show that it can operate at the required 
levels, and ``available'' when, among other things, it is commercially 
available and provides ``substantial''

[[Page 18808]]

treatment. The Agency's selection of the ``best'' of these technologies 
is generally based on a statistical evaluation of the treatability 
data. (See 51 FR 40572, 40588-40593 (Nov. 7, 1986).) Instead of this 
standard approach, the Agency selected options that could be achieved 
by available technologies and that would result in the 
``substantia[l]'' reductions mandated by RCRA section 3004(m) to 
develop the standards proposed today.
    The Agency believes that RCRA allows this alternative approach to 
implementing section 3004(m). Specifically, RCRA Sec. 3004(m) does not 
require the use of ``BDAT'' to implement a technology-based approach. 
In fact, as the D.C. Circuit has specifically recognized, section 
3004(m) need not be read ``as mandating the use of the best 
demonstrated available technologies (BDAT) in all situations.'' 
Chemical Waste Management, Inc. v. US EPA, 976 F.2d 2, 15 (D.C. Cir. 
1992). Instead, any substantial treatment method that ``minimizes'' 
threats according to the statutory objectives is permissible. 
Id.<SUP>22 In other instances the Agency chose a BDAT approach because 
it believed that applying BDAT standards best served the Congressional 
objectives when the LDR requirements for as-generated wastes were 
enacted (55 FR 6640-6643, February 26, 1990).
---------------------------------------------------------------------------

    \22\ The legislative history of section 3004(m) supports the 
reading that the legislative preference expressed for ``BDAT'' could 
be achieved using something less than only the ``best'' 
technologies:
    The requisite levels of [sic] methods of treatment established 
by the Agency should be the best that has [sic] been demonstrated to 
be achievable. This does not require a BAT-type process as under the 
Clean Air or Clean Water Acts which contemplates technology-forcing 
standards. The intent here is to require utilization of available 
technology in lieu of continued land disposal without prior 
treatment. It is not intended that every waste receive repetitive or 
ultimate levels of [sic] methods of treatment * * *
    130 Cong. Rec. S. 9178 (daily ed. July 25, 1984) (statement of 
Sen. Chaffee) [emphasis added].
---------------------------------------------------------------------------

    The policy considerations that argue for BDAT as the basis for 
technology-based standards for as-generated wastes do not, however, 
support a BDAT approach in the remediation context. EPA has long 
maintained that setting BDAT standards for newly generated wastes best 
fulfilled the Congressional goal of reducing the amount of wastes 
ultimately disposed on the land (55 FR 6640, 6642, February 26, 1990); 
RCRA section 1003(6). While this may be true for newly generated waste 
not yet disposed, such standards do not further this goal in the 
remediation context. As discussed in section (II)(A) of this preamble, 
current standards can create disincentives to excavation, and more 
protective management of wastes already disposed of on the land, 
because excavation of contaminated media for the purposes of treatment 
may trigger LDRs. Site decision makers are often faced with the choice 
of either capping or treating the wastes in place (to avoid LDRs), or 
excavating and triggering the costly BDAT treatment standards. This 
situation creates an incentive to leave wastes in place, a result 
obviously not contemplated by Congress in enacting LDRs. For a fuller 
discussion of this issue, see 54 FR 41566-41569, (Oct. 10, 1989). EPA 
has justified BDAT standards based in part on the fact that imposing 
them would create an incentive to generate less of the affected waste 
in the first instance. (See Steel Manufacturers Association v. EPA, 27 
F.3d 642, 649 (D.C. Cir. 1994) (upholding the LDR standard, in part, 
because it minimized the amount of waste that would be generated)). In 
the remediation context the waste is already in existence, therefore, 
such ``waste minimization'' is not an issue. Typically, the threats to 
human health and the environment that the land disposal restrictions 
were intended to address are better controlled through excavation and 
management of remedial wastes and such action should therefore be 
encouraged, not discouraged.
    Accordingly, EPA believes that it is appropriate to set LDR 
standards for soil subject to the LDRs based on something less than the 
``best'' demonstrated available technologies, so long as those 
standards encourage the development of more permanent remedies and 
result in the ``substantia[l]'' reductions contemplated by section 
3004(m). The Agency believes that the 90% or 10 times the UTS standard 
proposed today will, by providing flexibility to cleanup decision 
makers, encourage the development of more permanent remedies. The 
Agency also believes that the 90% or 10 times the UTS standard 
represents a level of treatment that will, in general, 
``substantially'' diminish the toxicity of the wastes or substantially 
reduce the likelihood of migration of hazardous constituents from the 
wastes so that short- and long-term threats to human health and the 
environment are minimized. Among other things, the Agency looks to the 
percentage of constituents removed, destroyed, or immobilized when 
deciding whether treatment is ``substantial'' (51 FR 40572, 40589, 
November 7, 1986). On this basis, the Agency believes that the 90% 
component is clearly substantial. Since EPA has previously determined 
that the UTS standards result in ``substantial'' treatment, the Agency 
believes that a standard one order of magnitude higher should be 
considered substantial when addressing matrices that can be 
significantly more difficult to treat.
    d. Application of proposed treatment standards to media which no 
longer contain hazardous waste. In some cases, contaminated media with 
constituent concentrations below the Bright Line will be determined to 
no longer contain hazardous waste, but may remain subject to the land 
disposal treatment requirements. As discussed earlier in today's 
preamble, EPA's analysis in this proposal is based on the logic that 
once the land disposal restrictions attach to hazardous wastes (or 
environmental media that contain hazardous wastes) the standards of 
section 3004(m) must be met before the wastes can be land disposed in 
any unit other than a no migration unit. Once attached, the obligation 
to meet land disposal restriction treatment standards continues even if 
a waste is no longer considered hazardous under RCRA Subtitle C (e.g., 
by eliminating a hazardous characteristic, or, in the case of an 
environmental medium, by making a contained-in decision <SUP>23).
---------------------------------------------------------------------------

    \23\  Of course, as discussed earlier in today's preamble, if 
soils were contaminated by hazardous waste prior to the effective 
date of the applicable land disposal prohibition and a contained-in 
decision was made prior to removal of the contaminated material from 
the land, the land disposal restrictions and the duty to treat to 
LDR treatment standards would not attach in the first instance. 
Since the Agency believes most environmental media contaminated by 
hazardous waste were contaminated prior to the effective date of the 
applicable land disposal restrictions, the Agency believes instances 
where contaminated environmental media is determined to no longer 
contain hazardous waste but remains subject to the LDR requirements 
will be few.
---------------------------------------------------------------------------

    In these cases, EPA believes that it will generally be appropriate 
to use the additional opportunities for Media Treatment Variances 
proposed in Sec. 269.31 to establish site-specific LDR treatment 
requirements based on risk. While the Agency is proposing generic 
technology-based treatment standards for higher-risk environmental 
media (i.e., hazardous contaminated media); EPA continues to believe 
that LDR treatment standards for lower-risk contaminated media (i.e., 
media determined not to contain hazardous wastes) are best addressed on 
a site-specific basis. This belief was supported by the FACA Committee, 
which said that lower-risk media should be exempt from the land 
disposal restrictions, and addressed on a site-specific basis in the 
context of agency-overseen cleanups.
    Media Treatment Variances are discussed in more detail in section 
(V)(C)(7) of today's preamble. Most of these variances are also 
available for higher-risk media, the difference is a

[[Page 18809]]

matter of assumptions. The Agency believes that lower-risk media that 
remain subject to the LDRs (i.e., media determined to no longer contain 
hazardous waste) should be addressed on a site-specific basis in the 
context of an Agency overseen cleanup and, because they present less 
risk, should, as a policy matter, be afforded additional flexibility. 
Therefore, treatment variances are presumed to be appropriate and are 
encouraged for these media. It is presumed that hazardous contaminated 
media will be treated to meet generic, nationwide treatment standards, 
although a variance may be appropriate in individual circumstances 
based on site-specific conditions.
    e. More stringent treatment standards--Proposed Sec. 269.32. As 
discussed above, because of the great diversity among cleanup sites--in 
terms of the contaminated media's properties; the exposure potential; 
size; topography; climate, and many other factors--EPA believes that it 
is appropriate to provide for situations where meeting the proposed 
treatment standards for hazardous contaminated media may be 
insufficient to meet RCRA section 3004(m)'s requirements that ``* * * 
threats to human health and the environment are minimized.'' For 
example, a site might be located in a particularly sensitive 
environmental setting (e.g., over a shallow aquifer used for drinking 
water), where large volumes of contaminated soil containing high 
concentrations of highly-mobile, toxic constituents will be excavated, 
treated, and disposed on-site. In order to minimize the potential for 
releases from the on-site landfill over the long-term, it could be 
appropriate to require some type of treatment that is more stringent 
than the standards proposed in Sec. 269.30. While EPA believes these 
situations would be rare, it is sensible to explicitly give overseeing 
Agencies the authority to impose more stringent LDR treatment 
requirements when they believe them necessary in order to meet the 
intent of RCRA section 3004(m). Because these decisions would be made 
on the record during the RMP approval process, they would be subject to 
notice and comment. Any final Agency decision to impose more stringent 
standards would be subject to challenge during the RMP review and 
approval process.
    f. Cross-media transfer. Paragraph (h) of proposed Sec. 269.30 
specifies that the technologies employed in meeting any treatment 
standard for contaminated media must be designed and operated in a 
manner that would control the transfer of contaminants to other media. 
This general standard is intended to eliminate from consideration any 
technology, such as uncontrolled air stripping, that would remove 
contamination from one medium by simply contaminating another. For a 
discussion of the Agency's tentative position concerning at what point 
cross-media transfers of constituents from land-based units could 
result in an invalidation of that unit as a treatment unit, see 60 FR 
43654, 43656, (August 22, 1995). In addition, in conjunction with this 
rulemaking effort, EPA is developing guidance on controlling cross-
media transfer of contaminants for a wide range of soil treatment 
technologies. The Agency plans to issue this guidance prior to or in 
conjunction with the final HWIR-media rulemaking. Further information 
on this guidance may be obtained from Subijoy Dutta in the Office of 
Solid Waste at (703) 308-8608.
3. Constituents Subject to Treatment
    EPA is proposing that hazardous contaminated media be treated for 
each UTS constituent that originated from the contaminating hazardous 
waste, and that is subject to the treatment standard for such hazardous 
waste as it was generated (hereafter ``constituents subject to 
treatment'') (Sec. 269.30(g)). For contaminated media other than soil 
(e.g., groundwater, sediments), treatment would be required for each 
constituent subject to treatment with concentrations above the UTS. For 
contaminated soil, treatment would be required for each constituent 
subject to treatment with concentrations greater than 10 times the UTS.
    EPA believes it is appropriate to link LDR treatment requirements 
to the contaminating hazardous waste because, under the contained-in 
principle, environmental media only become subject to hazardous waste 
management requirements because they contain hazardous waste. The duty 
to treat, therefore, should only attach to those constituents for which 
treatment would have been required if the wastes were not contained in 
environmental media.
    EPA is proposing to apply the definition of constituents subject to 
treatment to environmental media contaminated by both listed and 
characteristic wastes. Under the proposed rule, if environmental media 
were contaminated only by listed hazardous wastes (or mixtures of 
listed hazardous wastes and solid wastes) treatment would be required 
solely for Part 268 ``regulated hazardous constituents'' in these 
wastes (identified in the table entitled ``Treatment Standards for 
Hazardous Wastes'' at 40 CFR 268.40). If environmental media exhibit a 
characteristic, treatment would be required for the characteristic 
constituent (in the case of TC wastes) or the characteristic property 
(in the case of ignitable, reactive, or corrosive wastes), and for all 
constituents listed in Sec. 268.48 ``Table UTS--Universal Treatment 
Standards'' present in the media. As stated above, this approach, in 
essence, incorporates the rule for characteristic wastes that requires 
treatment of all ``underlying hazardous constituents''; underlying 
hazardous constituents are those constituents for which the Agency has 
promulgated Universal Treatment Standards (except for zinc and 
vanadium) that can reasonably be expected to be present in the wastes, 
and that are present in concentrations exceeding the UTS levels (or, 
for contaminated soil, ten times the UTS level). (See 40 CFR 268.2(i); 
40 CFR 268.40(e); 60 FR 11702, (March 2, 1995); and discussion of 
underlying hazardous constituents at (59 FR 47980, 48004, (September 
19, 1994)).
    The Agency requests comments on the scope of the constituents that 
would be subject to treatment under today's proposed approach. For 
example, should background concentrations of naturally occurring 
hazardous constituents be explicitly evaluated when identifying 
constituents that are subject to treatment? Would it be more 
appropriate, as was suggested in the Phase II proposal (58 FR 48092, 
48124, September 14, 1993), for the Agency to make all constituents 
present (even in media containing listed wastes) above UTS levels (or 
for contaminated soil, 10 times UTS levels) subject to treatment? Are 
there other ways to address the scope of constituents subject to 
treatment?
    The Agency notes that ``Bright Line constituents'' and 
``constituents subject to treatment'' are two different sets of 
constituents. Under today's proposal, the Bright Line does not define 
the applicability of LDR treatment requirements or the constituents 
subject to treatment in media subject to the LDRs. Contaminated 
environmental media that contains one or more hazardous constituents at 
concentrations greater than Bright Line concentrations would be 
ineligible for a contained-in decision and would become subject to the 
requirements for hazardous contaminated media, including LDR treatment 
requirements. Once subject to LDR treatment requirements, contaminated 
media would have to be treated to the generic, technology-based 
treatment standards for all constituents subject to treatment, 
including those below the Bright Line.

[[Page 18810]]

EPA requests comments on this approach. For example, should EPA allow 
site-specific minimized threat Media Treatment Variances (discussed 
below) for constituents subject to treatment that have initial 
concentrations below Bright Line concentrations and require compliance 
with the generic treatment standards only for constituents subject to 
treatment that have initial concentrations above Bright Line 
concentrations? How would this affect overseeing agencies that choose 
to set contained-in levels at concentrations more stringent than the 
Bright Line?
4. Nonanalyzable Constituents
    Some contaminated environmental media may contain constituents that 
do not have analytical methods. For media containing multiple organic 
constituents, some of which are analyzable and some of which are 
nonanalyzable, the Agency believes that treating the analyzable 
constituents to meet treatment standards should provide adequate 
treatment of any nonanalyzable constituents. As a general principle, 
the destruction of an analyzable organic surrogate constituent is an 
effective indicator for destruction of nonanalyzable organic 
constituents. The Agency is therefore not proposing treatment standards 
for nonanalyzable organic constituents found in hazardous contaminated 
media. The Agency requests comment on this approach as well as data on 
the degree to which non-analyzable organic constituents are treated 
when environmental media are treated for other organic contaminants. 
If, based on public comments, EPA should choose to regulate these 
constituents, the Agency could require treatment by specific 
technologies known to achieve adequate treatment of the constituent.
    In cases where contaminated environmental media are contaminated 
solely with nonanalyzable constituents, (i.e, media contaminated only 
by nonanalyzable U or P wastes), EPA proposes requiring treatment by 
the methods specified in Sec. 268.42 for those U or P wastes. For a 
list of U and P wastes, see 40 CFR 261.33. The Agency solicits comments 
on whether other technologies should be allowed for treatment of such 
media.
5. Review of Treatment Results--Sec. 269.33
    Once treatment under an approved RMP has been completed, the 
proposal would require the overseeing agency to review the treatment 
results and determine whether the treatment standard was achieved. If 
the treatment standard were not achieved, EPA proposes that the 
facility owner/operator would be required to: submit a new RMP that 
includes plans and procedures designed to re-treat the material, or 
submit an application for a Media Treatment Variance (if a variance is 
appropriate). The Director, at his/her discretion, could require that 
the owner/operator continue to treat the materials until the treatment 
standard is met, or grant a Media Treatment Variance.
6. Management of Treatment Residuals--Sec. 269.34
    Depending upon the type of treatment system used, residuals from 
the treatment of media under Part 269 could either be media (hazardous 
contaminated or otherwise) or wastes (hazardous or otherwise) that have 
been separated from the media being treated. Under the proposed rule, 
waste residuals would be managed according to applicable RCRA Subtitle 
C or Subtitle D requirements. Media residuals would remain subject to 
Part 269. This is consistent with the Agency's approach to residuals 
from treating hazardous debris. (See 57 FR 37194, 37240, (August 18, 
1992)). If media residuals from treatment of contaminated media meet 
the treatment standards, they can be disposed of in a Subtitle C land 
disposal facility. If those media have met their treatment standards 
and also no longer contain hazardous wastes, they are no longer subject 
to Subtitle C requirements and can be used, re-used, or returned to the 
land absent additional Subtitle C control. Under proposed Sec. 269.33, 
media residuals that do not meet the treatment standards would be re-
treated or, if appropriate, granted a Media Treatment Variance.
    The Agency requests comments on this approach and on whether 
regulatory standards for management of non-media treatment residuals 
are necessary under this Part. For example, should residuals from 
treating media using stabilization technologies (i.e., stabilized 
media) be considered waste residuals and subject to the applicable 
subtitle C or D standard? Should the Agency address, through 
regulations or guidance, the methods used to determine whether 
treatment residuals are media or non-media? For example, should the 
Agency use the approach it promulgated for treatment residuals from 
treatment of hazardous debris and require that media and non-media 
treatment residuals be separated using simple physical or mechanical 
means?
    Some treatment methods may distinctly separate hazardous wastes 
from contaminated media (e.g., carbon adsorption for groundwater). In 
these cases, each residual can be measured to certify compliance with 
the applicable land disposal restriction treatment standards. For other 
treatment technologies that may not as distinctly separate media from 
non-media residuals, it may be more difficult to determine which LDR 
treatment standards should be applied. For example, some treatment 
methods (e.g., combustion technologies) may result in destruction of 
the media treated, leaving only non-media residuals. In these cases, 
should the residuals be subject to the treatment standards for 
contaminating hazardous wastes (e.g., the Universal Treatment Standard) 
or the treatment standards for media (e.g., the 90% or 10 times the UTS 
alternative soil treatment standard proposed today).
7. Media Treatment Variances--Sec. 269.31
    This section provides a mechanism which the Director can use to 
establish alternative treatment standards for contaminated media 
subject to the land disposal restrictions. The Agency is proposing to 
allow variances from generic treatment standards in three situations: 
when the generic standard is technically impracticable, when the 
generic standard is inappropriate, or when the Director can 
demonstrate, based on site-specific circumstances, that lower levels of 
treatment ``minimize threats'' in accordance with the standard of RCRA 
section 3004(m). Each situation is discussed in more detail below.
    EPA encourages use of these procedures to establish site-specific 
LDR treatment standards for media that have been determined to no 
longer contain hazardous wastes but remain subject to LDRs. In 
addition, although EPA believes the generic, nationwide technology-
based treatment standards for hazardous contaminated media should be 
appropriate and achievable for the majority of media managed at cleanup 
sites, the Agency acknowledges that because of the wide range of soils 
and contaminants that may be encountered in the field, there may be 
situations where such standards would be inappropriate.
    Paragraphs (a) and (b) of Sec. 269.31 would list the situations 
under which the Agency believes a Media Treatment Variance would be 
appropriate. Paragraph (c) of Sec. 269.31 would provide the overseeing 
agency with the authority to request any information from the owner/
operator that may be necessary to determine whether a treatment 
variance should be approved, and paragraph (d) provides that an 
alternative treatment standard approved according to this

[[Page 18811]]

section may be expressed numerically, or as a specified technology.
    In order to ensure that the Media Treatment Variance provisions are 
not used simply to seek approval of an inferior technology or a poorly 
operated treatment system, Sec. 269.31(e) would specify that any 
technology used to meet an alternative standard would have to be 
operated in a manner that optimizes efficiency, and result in 
substantial reductions in the toxicity or mobility of the media's 
contaminants. For the reasons discussed above, any such technology 
would be required to control the cross-media transfer of constituents.
    The Media Treatment Variances in today's proposed rule are 
analogous to the existing site-specific treatment variances in Part 
268. (See Sec. 268.44(h)). EPA considered using Sec. 268.44(h) for 
contaminated media, but decided to propose media-specific variance 
provisions for three reasons. First, for clarity, EPA has made a 
conscious effort to develop the HWIR-media rules to operate as a 
complete system and minimize cross-references to other portions of the 
regulations. Second, EPA believes that including Media Treatment 
Variances will make it easier and less disruptive for states to adopt 
and implement the final HWIR-media rules. Third, EPA believes that it 
is valuable to propose regulations clarifying the circumstances under 
which media treatment variances are appropriate, especially in the case 
of the variance for a site-specific minimize threat determination. The 
Agency requests comments on the need for the specific Media Treatment 
Variances proposed today and the relationship of the proposed Media 
Treatment Variances to the existing site-specific variance procedures 
in Sec. 268.44(h).
    a. The generic technology-based treatment standard is technically 
impractical (Sec. 269.31(a)(1)). In some cases, an owner/operator may 
be able to demonstrate to the overseeing agency that achieving the 
generic LDR standard is technically impracticable. While EPA believes 
it will typically be possible to achieve the general standards using 
common remedial technologies (e.g., biological treatment, soil washing, 
chemical oxidation/precipitation, activated carbon, air stripping), the 
Agency recognizes that, in some cases, these technologies may not be 
able to meet the 90% or 10 times the UTS standard. For example, 
comparison of leachate concentrations from some metal-bearing wastes 
before and after stabilization or solidification may not indicate a 90% 
reduction (and may not be at concentrations below 10 times the UTS).
    b. The generic technology-based treatment standard is inappropriate 
(Sec. 269.31(a)(2)). Many site-specific circumstances could cause the 
generic treatment standard to be inappropriate. In some cases, the 
media to be treated may differ significantly from the material upon 
which the generic treatment standard was based. For example, the 
Universal Treatment Standards for water were based on treatment of 
industrial wastewater. In some situations facility owner/operators 
could be treating groundwater that poses unique treatability issues, 
and may merit an alternative treatment standard (e.g., groundwater that 
is highly saline or has high concentrations of other naturally 
occurring contaminants such as iron). In another example, treatment of 
soils contaminated by heavy chain polynuclear aromatics (PNAs) with 
non-combustion strategies may not be sufficient to meet the 10 times 
the UTS standard.
    In other cases, the generic treatment standard will be 
inappropriate because use of an alternative treatment standard would 
result in a net environmental benefit. For example, use of innovative 
treatment technology might result in substantial reductions in 
constituent concentrations in the near-term, while use of a more 
traditional treatment technology might eventually achieve the generic 
treatment standard but take twice as much time. For a discussion of 
EPA's position that a treatment standard may be deemed inappropriate 
when imposing it ``could result in a net environmental detriment.'' 
(See 59 FR 44684, 44687, (August 30, 1994)).
    c. Threats can be minimized with less treatment than the generic 
technology-based standard would require (Sec. 269.31(b)). As discussed 
earlier, EPA prefers to base land disposal restriction treatment 
requirements on risk. While information is not available to establish 
generic risk-based treatment standards for contaminated environmental 
media, EPA believes that adequate information may be available to 
establish site-specific, risk-based treatment standards. Using this 
variance, the Director would be able to make a site-specific, risk-
based determination of Sec. 3004(m) treatment requirements. In other 
words, the regulations would allow the Director to determine on a site-
specific basis, ``levels or methods of treatment, if any, which 
substantially diminish the toxicity of the waste or substantially 
reduce the likelihood of migration of hazardous constituents from the 
waste so that short-term and long-term threats to human health and the 
environment are minimized'' (RCRA section 3004(m)).
    EPA is proposing this site-specific approach to ensure appropriate 
levels of treatment, and to provide some relief from the generic LDR 
treatment standards where an examination of actual site circumstances 
demonstrates that the requirements of section 3004(m) may be met with 
lesser treatment than that required by the generic, technology-based 
standards proposed today. The Agency has long recognized that section 
3004(m) could be implemented on a risk basis, and that the risk 
approach often would require less treatment than the BDAT approach (51 
FR 1602, 1611, (January 14, 1986); 55 FR 6640, 6642, (February 26, 
1990); and Hazardous Waste Treatment Council v. US EPA, 886 F.2d 355, 
361 (D.C. Cir. 1989) (upholding the Agency's view that although 
permissible, risk-based treatment standards are not compelled by 
section 3004(m)).
    The Agency believes that a great number and variety of site-
specific factors would influence minimize threat determinations; 
therefore, it is not proposing generic decision criteria. In general, 
however, EPA believes that the decision factors for contained-in 
decisions discussed earlier would be appropriate. This is similar to 
the approach in the LDR Phase II proposal, in which the Agency 
expressed the view that when a regulatory authority determined that 
media no longer contain hazardous waste, the regulatory authority could 
also make a site-specific determination that threats had been 
``minimized'' (58 FR 48092, 48128, September 14, 1993).
    The Agency further believes the site-specific minimize threat 
variance would be particularly appropriate in situations when the 
Director would be able to determine that constituent concentrations 
greater than the proposed soil treatment standards minimize threats at 
a site because not providing such relief would result in a less 
protective remedy. Often, when excavation of environmental media would 
trigger the duty to comply with LDRs, the LDR treatment standards serve 
as a disincentive to excavation and treatment in the remediation 
context. In proposing the NCP, EPA discussed the effect that LDRs can 
have on CERCLA decision making:

    For wastes potentially subject to the LDRs, essentially only two 
options will generally be available--treatment to BDAT standards, or 
containment (including containment of wastes treated in situ). The 
range of treatment technologies between these two extremes that may 
be practical and cost-effective, and yield

[[Page 18812]]

highly protective environmental results, would not be available to 
decision makers. In some cases, given only these two remedial 
choices, decision makers may be pressured to select containment 
remedies that offer less permanence than treatment options that 
might otherwise be selected if the LDRs were not applicable (54 FR 
41566, 41568, (October 10, 1989)).

EPA has experienced the same effect in the RCRA closure program. (See 
54 FR 41566, 41568, (October 10, 1989)). ``EPA's experience with the 
RCRA closure program has shown that owner/operators, faced with the 
choice of using BDAT treatment, or no treatment or in situ treatment, 
have a strong incentive to choose the less costly option * * *, which 
may actually result in less effective long-term performance for many 
closed units'').
    While Congress did not address how to determine when threats are 
minimized in the remediation context, it obviously did not intend LDRs 
to act as a barrier to aggressive cleanup when enacting RCRA section 
3004(m). Therefore, the Agency believes that in cases presenting the 
dilemma outlined above, and where imposing a lesser standard would 
encourage more protective management of the media, it would be 
reasonable for the Director to decide that, because overall risks at 
the site would be significantly reduced, imposition of lesser LDR 
treatment requirements would minimize threats at that site; therefore, 
as a general rule, cleanup to health-based standards through 
implementation of an approved remedy in the context of an agency-
overseen cleanup can be presumed to minimize threats even when the 
remedy involves placement (or re-placement) of contaminated media which 
does not meet the generic, technology-based LDR treatment standards. 
The Agency notes that most Federal and State remedy selection criteria 
and cleanup procedures include independent requirements or preferences 
for treatment to ensure that remedies are protective over the long-
term, although such would not necessarily be to the generic, 
technology-based LDR treatment standards.
    Consistent with the recommendations of the FACA Committee, which 
agreed that higher-risk contaminated media should be subject to 
generic, nationwide standards, while lower-risk contaminated media 
should be addressed on a site-specific basis in the context of agency 
overseen cleanups, the Agency is proposing to limit the availability of 
the site-specific minimized threats variance to hazardous (or formerly 
hazardous) contaminated environmental media with all constituent 
concentrations below the Bright Line. For media that does not have a 
Bright Line (i.e., sediments) program implementors should consider the 
Bright Line risk levels and principles when determining if a site-
specific minimize threat variance is appropriate. Despite this 
limitation, the Agency believes that the site-specific, minimize threat 
determination will provide significant and appropriate relief since 
Agency experience has shown that the dilemma of choosing between 
capping and/or treating media in place or excavating and triggering 
inflexible LDR treatment standards is much more likely to present 
itself with less contaminated media (such as media in which all 
constituents are below the Bright Line) (54 FR 41566, 41567, October 
10, 1989). This is because an in situ option is much more likely to be 
acceptable under a remedial authority where wastes are not highly 
concentrated.
    EPA recognizes that there may be concerns regarding the ability of 
the overseeing agency to grant a treatment variance based on a site-
specific determination that threats are minimized. However, it should 
be noted that these decisions would go through the same notice and 
comment procedures as other substantive standards included in RMPs. Any 
concerns with risk-based treatment standards identified in a particular 
RMP could be raised during the comment period, and the overseeing 
agency would be required to address them when finalizing the RMP.
    EPA seeks comments on its approach to site-specific, minimize 
threat variances. For example, should EPA propose more specific 
standards for making minimize threat determinations? Should the Agency 
allow site-specific minimize threat variances for any constituent 
subject to treatment that has initial concentrations that are less than 
Bright Line concentrations even though other constituents in the same 
medium might have concentrations that are greater than Bright Line 
concentrations? Should EPA allow site-specific, minimize threat 
variances when constituent concentrations drop below Bright Line 
concentrations even if the generic, technology-based LDR treatment 
standards (i.e., 90% or 10 times the UTS) have not yet been achieved? 
Should EPA allow site-specific, minimize threat variances for 
constituents with initial concentrations that are greater than the 
Bright Line?
    EPA requests that commenters who support specific standards for 
minimize threat determinations suggest standards for EPA consideration, 
and address the application of these standards in the remediation 
context. Commenters who support minimize threat determinations for 
contaminated media with constituent concentrations above the Bright 
Line should address the relationship of these determinations to 
contained-in decisions (which, under today's proposed rule are not 
allowed for contaminated media with constituent concentrations above 
the Bright Line).
    The Agency also requests comments on whether it should attempt to 
provide explicit opportunities for site-specific minimize threat 
determinations outside of the HWIR-media context (e.g., add appropriate 
provisions for non-HWIR-media contaminated media to the current 
treatment variance rules at Sec. 268.44(h))? If so, should these 
determinations be limited to media with constituent concentrations 
below the Bright Line?
8. Request for Comment on Other Options
    Two of the Agency's stated policy objectives for the HWIR-media 
rule are to develop requirements that are appropriate for contaminated 
media and to remove administrative obstacles to expeditious cleanups 
where possible. EPA has struggled with these objectives in the context 
of LDR requirements. The applicability of land disposal treatment 
requirements depends, in part, on whether contaminated environmental 
media are determined to contain hazardous waste. Under today's proposed 
rule, contaminated environmental media that contain hazardous waste, 
are placed after the effective date of the applicable land disposal 
prohibition, and have concentrations of hazardous constituents above 
the Bright Line will always be subject to the LDRs because contained-in 
decisions are not allowed for contaminated environmental media with 
constituent concentrations above the Bright Line. For such contaminated 
environmental media with constituent concentrations below the Bright 
Line, overseeing agencies would have the discretion to make contained-
in decisions, as discussed in section (V)(A)(4)(a), above. Accordingly, 
in some cases, the LDRs might apply to contaminated environmental media 
with all constituent concentrations below the Bright Line (e.g., where 
the duty to comply with LDRs attached to the contaminating waste prior 
to the initial act of disposal), while in other cases they might not.
    While the Agency believes that today's proposed LDR requirements 
are consistent with the goals and objectives

[[Page 18813]]

of the HWIR-media rulemaking and would provide significant and 
appropriate relief from the LDR treatment requirements for as-generated 
wastes, it requests comments and suggestions that identify other 
options for developing appropriate land disposal restriction standards 
for contaminated media.
    The Agency is especially interested in comments that address 
environmental media with all constituent concentrations below the 
Bright Line. For example, the HWIR FACA Committee expressed the view 
that it would be appropriate, as a policy matter, to exempt 
contaminated media with constituent concentrations below the Bright 
Line from LDR treatment requirements when these media were subject to 
agency-overseen cleanups. Comments are therefore invited on how the 
Agency could attain this result consistent with the requirements of 
section 3004(m). For example, would it be appropriate for EPA to define 
contaminated soil and/or other contaminated environmental media (e.g., 
groundwater, sediments) as a separate LDR ``treatability group?'' 
Changes in treatability groups generally result when the properties of 
a waste that affect treatment performance have changed enough that the 
waste is no longer considered similar to those in its initial group. 
Each change in a waste's treatability group constitutes a new point of 
generation; if the waste is no longer considered ``hazardous'' at the 
time of the change (e.g., through a contained-in decision), LDRs would 
not attach even though the initial waste might have been subject to 
LDRs prior to the change in treatability group (55 FR 22520, 22660-
22662, June 1, 1990). The Agency notes that the treatability group 
approach could be Bright Line dependent (i.e., available only for 
contaminated media with all constituent concentrations below the Bright 
Line) or Bright Line independent (i.e., available for all contaminated 
media regardless of constituent concentrations).
9. LDR Treatment Requirements for Non-HWIR-media Soils
    In some cases, hazardous contaminated soils would not be subject to 
the alternative LDR treatment requirements in today's proposal. This 
will be the case in states that choose not to adopt the HWIR-media 
rules and may also occur at sites where cleanup occurs without direct 
agency approval (e.g., voluntary cleanup sites). The Phase II proposal 
would have modified the LDR treatment standards for all hazardous soils 
regardless of the presence of agency-oversight; however, under today's 
proposal, the alternative LDR soil treatment standards would only be 
available when applied by an overseeing agency through issuance of a 
RMP.
    Today's proposal would limit application of the alternative soil 
treatment standards proposed today because they were developed, in 
part, using the assumption that they would only be applied with agency-
oversight and, therefore, could be easily adjusted, either upward or 
down, to account for site-specific conditions. Nonetheless, the Agency 
requests comment on whether it would be appropriate to extend the 90%/
10 x UTS treatment standard proposed today to all hazardous 
contaminated soils, instead of limiting them to soils managed under an 
approved RMP. This would allow their use in States that do not seek 
authorization for this rule, or by facility owner/operators who wish to 
proceed with remedies ahead of formal agency approval of a RMP.
    Alternatively, should the Agency adopt soil treatment standards 
that are adjusted to account for the lack of State or Agency oversight 
over how they are administered? For example, should the Agency 
promulgate a 10 times the UTS only standard for non-HWIR-media 
hazardous soils? This would account for the fact that the ``safety-
net'' provided by proposed Sec. 269.32, which would allow the Director 
to impose more stringent treatment standards Director on a case-by-case 
basis, would not be applicable in the non-HWIR-media situation. Would 
some other combination of a greater percent reduction and lesser UTS 
multiplier be more appropriate?
10. Issues Associated With Hazardous Debris
    Earlier in the preamble for today's proposal, EPA requested comment 
on whether the substantive requirements of today's proposed rules 
should be applied to hazardous debris as defined in 40 CFR 268.2(h). 
Hazardous debris are currently subject to a specific set of LDR 
treatment standards, promulgated in the LDR Debris rule (57 FR 37194, 
37221, August 18, 1992).<SUP>24 In individual cases where the generic, 
national LDR treatment standards are not appropriate or un-achievable 
for certain hazardous debris, EPA and authorized states may grant site-
specific treatment variances using the procedures in 40 CFR 268.44(h).
---------------------------------------------------------------------------

    \24\ EPA is not now reopening the comment period on the LDR 
Debris Rule.
---------------------------------------------------------------------------

    The LDR treatment standards for hazardous debris promulgated in the 
LDR Debris Rule are generally expressed as generic, specified 
technologies, rather than constituent concentrations. While EPA 
believes that the technologies specified for debris treatment are 
generally compatible with most types of remedial activities, the Agency 
recognizes that applying different regulatory schemes at the same site 
(one for media and one for debris) may unnecessarily complicate 
cleanups and raise cleanup costs without a discernable environmental 
benefit.<SUP>25 In addition, the debris treatment technologies can be 
problematic in some instances, especially when the standard of 0.6 cm 
surface removal is applied to brick, cloth, concrete, paper, pavement, 
rock or wood debris treated with high pressure steam or water sprays.
---------------------------------------------------------------------------

    \25\ BP Exploration Alaska Inc estimated that managing hazardous 
debris in compliance with the existing 40 CFR 268.45 regulations, 
rather than including hazardous debris in on-going cleanups on 
similarly contaminated media, would cost $3,200-$6,000 a ton since 
Debris Rule treatment technologies are rarely used in remote Alaska 
areas.
---------------------------------------------------------------------------

    EPA requests comments on whether the current LDR treatment 
standards for hazardous debris remain appropriate or whether hazardous 
debris should, instead, be subject to treatment standards similar to 
the standards in today's proposed rule for contaminated media, or 
whether some combination of the standards would be most appropriate. 
For example, EPA could allow the Director to impose either the generic 
debris treatment technologies codified in the Hazardous Debris Rule or, 
if appropriate, specify site-specific LDR treatment standards (either 
as constituent concentrations or specified technologies) using the 
proposed site-specific, minimize threat Media Treatment Variance. Since 
under today's proposal, site-specific minimize threat Media Treatment 
Variances are only available for contaminated media with constituent 
concentrations less than Bright Line concentrations, EPA requests that 
commenters who support site-specific, minimize threat variances for 
debris address application of the Bright Line to debris. More 
generally, EPA requests comments on whether the variances provided for 
in 40 CFR 268.44(h) are sufficient to provide for appropriate 
management of hazardous debris or whether the Media Treatment Variances 
proposed today would be more appropriate.
    While today's proposed rule does not include changes to the 
existing LDR treatment standards and requirements for hazardous debris, 
EPA could include new LDR treatment standards or requirements in 
response to public comment. Issues associated with hazardous debris and 
the possibility of

[[Page 18814]]

including debris in the final Part 269 regulations are also discussed 
in sections (V)(A)(2) and (V)(A)(4)(b) of today's preamble.

D. Remediation Management Plans (RMPs)

1. General Requirements--Sec. 269.40
    Today's proposed rule provides for considerable site-specific 
decision making as to how contaminated media should be managed as part 
of remedial actions. This is particularly so in the case of media that 
are determined not to contain hazardous waste (on the condition that 
there is compliance with a RMP that would address any hazards), and 
thus would not be subject to any of the national, generic Subtitle C 
management standards. Today's proposal would provide a new 
administrative mechanism--RMPs--as the means for documenting, providing 
for public review and comment, and enforcing these site-specific 
requirements.
    Under the proposal, a RMP would be required (1) whenever hazardous 
contaminated media are managed according to Part 269, and (2) whenever 
a contained-in determination is made for non-hazardous contaminated 
media (i.e., contaminated media are determined by the Director to not 
contain hazardous wastes), and (3) whenever non-hazardous contaminated 
media are managed in accordance with site-specific management 
requirements prescribed by the overseeing Agency. Thus, any management 
of contaminated media that would need a permit according to 
Sec. 270.1--if Part 269 did not apply--would require a RMP.
    It should be understood that RMPs could also be used (if deemed 
appropriate by the Director) as the procedural/administrative vehicle 
for imposing management requirements, in addition to those required 
under Part 269, for any hazardous cleanup wastes under Part 264, and as 
requirements for management of non-hazardous cleanup wastes. The 
following are examples of the types of management requirements that 
could be imposed under a RMP, and the circumstances under which those 
requirements could apply. When applicable, a RMP must include 
requirements for management of:
    1. Hazardous contaminated media at the media cleanup site, imposed 
pursuant to Part 269;
    2. Hazardous contaminated media at the media cleanup site, imposed 
pursuant to applicable unit-specific provisions of Part 264 (e.g., 
standards for tanks, landfills, etc.);
    3. Hazardous contaminated media at a permitted, off-site hazardous 
waste management facility, imposed pursuant to the Part 269 LDR 
treatment standards;
    4. Other types of hazardous cleanup wastes (e.g., debris, sludges) 
that are managed in compliance with applicable provisions of this 
chapter;
    5. Non-hazardous contaminated media (i.e., media that have been 
determined by the Director to not contain hazardous wastes, in 
accordance with Sec. 269.4), that are managed either at a media cleanup 
site or elsewhere, in accordance with site-specific or other management 
requirements imposed pursuant to any applicable State or Federal 
management requirements, which do not require the presence of hazardous 
waste; and/or
    6. Other types of non-hazardous cleanup wastes that are generated 
from a media cleanup site and managed either at the site or elsewhere, 
in accordance with management requirements imposed pursuant to 
applicable State or Federal regulations.
    As explained above, RMPs would always be required whenever Part 269 
requirements are implemented, except when the cleanup is conducted 
under circumstances where a permit is not required, such as in CERCLA 
responses. In the case of CERCLA on-site removal or remedial actions, 
RMPs would not be required. Generally, however, a Record of Decision 
(ROD), or other CERCLA decision document, would specify the 
requirements for compliance with Part 269, if the remedy involved 
management of contaminated media.
    As mentioned already, the provisions of this rule would not waive 
or replace otherwise applicable provisions of Subtitle C. For example, 
if the cleanup will be taking place at an operating RCRA Treatment 
Storage or Disposal Facility (TSDF),<SUP>26 that TSDF would still need 
a traditional RCRA permit for its ongoing operations. If that facility 
wanted to conduct cleanup according to Part 269, the RCRA permit for 
the site could serve as the RMP, or the facility could have both a RMP 
and a RCRA permit. In addition, if hazardous waste management units are 
to be employed during the remedial activities, such units would have to 
be operated in compliance with the appropriate standards of 40 CFR Part 
264 (except Subparts B and C, for general facility standards and 
preparedness and prevention) for design; operation; closure and post-
closure; handling procedures; transportation, and inspection of units 
or equipment.
---------------------------------------------------------------------------

    \26\ i.e., hazardous waste management activities apart from the 
cleanup activities would require a RCRA permit. Although the part of 
the site where the remediation was taking place could be considered 
a ``media remediation site,'' the entire facility could not be 
considered a ``clean up only'' site, and therefore would be subject 
to applicable RCRA requirements, including permitting, and RCRA 
Secs. 3004(u) and (v) facility, and beyond the facility boundary, 
corrective action. (See definition of media remediation site in 40 
CFR 269.3, and preamble section (V)(A)(3)).
---------------------------------------------------------------------------

    The Agency is proposing this approach because the requirements of 
Subparts A and D-DD are appropriate to ensure safe, protective 
operation of such units for hazardous contaminated media, just as they 
are appropriate for new wastes. EPA is proposing not to require 
compliance with parts B and C because those sections were designed for 
long-term operating hazardous waste facilities, and not one-time 
cleanup actions. However, EPA recognizes that other 40 CFR Part 264 
standards may not be appropriate under certain site-specific 
circumstances. EPA solicits comments on what other, if any, provisions 
of 40 CFR Part 264 should not be applicable to management of hazardous 
contaminated media at media cleanup sites.
    The proposed requirements concerning RMPs (Subpart D) are the only 
provisions of Part 269 that could be applied to management of all types 
of hazardous cleanup wastes. EPA considered restricting RMPs to address 
only management of media. Under such an option, however, other types of 
cleanup wastes, such as debris and sludges, would require a permit--a 
second authorizing document under the RCRA permit requirements of Part 
270. The Agency does not propose to limit RMPs in this way, because 
RMPs are intended to expedite permitting and accelerate cleanups for a 
wide variety of sites, and because they can adequately address public 
participation concerns. As explained in section II of this proposed 
rule, the requirement to obtain RCRA permits for cleanups has often 
frustrated desirable cleanup activities. Thus, limiting RMPs to 
management of contaminated media would severely limit the relief that 
this rule is intended to provide.
    In addition, RMPs would be required only if cleanup wastes are 
managed in such a way that requires a RCRA permit, or to document 
contained-in decisions (that media do not contain hazardous waste), and 
the management requirements for the non-hazardous contaminated media. 
In many cases, hazardous cleanup wastes could be managed in such a way 
that does not trigger the requirement for a RCRA permit. An example 
would be a site where contaminated media are simply excavated and 
transported off-site to a permitted facility for treatment or

[[Page 18815]]

disposal. Another example would be treatment or storage in units that 
are exempt from permitting requirements, such as wastewater treatment 
units, or less than 90-day treatment or storage in tanks or containers. 
In summary, if absent proposed Part 269, a cleanup action did not 
require a RCRA permit under Sec. 270.1, and a RMP is not needed to 
document a contained-in decision, it would not need a RMP.
    Under proposed Sec. 269.40(e), a RMP could be a ``stand alone'' 
document, or as might often be the case, a part of a more comprehensive 
document prepared by the overseeing agency. An example of a 
comprehensive document would be an enforcement order that explains the 
overall remedy for a contaminated site. The order would specify the 
requirements for management of hazardous cleanup wastes, and other 
remedial requirements such as cleanup standards and source control 
requirements. The order's media management requirements would not 
necessarily have to be presented as a separate plan, so long as those 
requirements were clearly specified to enable public review and 
comment. On the other hand, an overseeing agency might prefer to issue 
a RMP for a cleanup site, and use the RMP as the vehicle for specifying 
other remedial requirements, in addition to those for waste management.
    Proposed Sec. 269.40(c) provides that RMPs may constitute RCRA 
permits for the purpose of satisfying permitting requirements under 
RCRA section 3005(c). RMPs are designed to streamline the 
implementation of remedial actions that need RCRA permits by requiring 
less extensive review and comment procedures than are required for RCRA 
permits. In addition, facility-wide corrective action requirements 
would not generally apply to RMPs. (See preamble discussion of media 
cleanup sites elsewhere in this proposed rule).
    Proposed Sec. 269.40 (f) and (g) specify that approval of a RMP 
would not convey any property rights, or any exclusive privilege of any 
sort, and that approval of a RMP does not authorize any injury to 
persons or property, or any invasion of other private rights, or any 
infringement of State or local laws or regulations. These statements 
were taken from RCRA permitting requirements. (See Sec. 270.4 (b) and 
(c)). EPA believes that these statements should apply in the same 
manner to RMPs as they do to RCRA permits.
    EPA believes it may also be appropriate to specify that compliance 
with a RMP during its term would constitute compliance, for purposes of 
enforcement, with Subtitle C of RCRA. This would be consistent with 40 
CFR 270.4(a) for RCRA permits. The Agency requests comments on this 
issue.
2. Content of RMPs--Sec. 269.41
    The purpose of a RMP is to document the requirements for the 
contaminated media that are being managed at the media cleanup site, 
and to justify these requirements. This documentation is necessary 
because it (1) defines the enforceable provisions that apply to 
contaminated media management activities; (2) provides information to 
the Director that is sufficient to determine that these actions will be 
conducted according to applicable provisions; and (3) provides 
sufficient information and opportunity for public comment through the 
public participation procedures in Sec. 269.43(e).
    Although RMPs may be required for the management of media that 
result from investigations and treatability studies, the Agency 
believes that the process and content requirements for such RMPs should 
be as streamlined as possible. In those cases, under the proposed rule 
it would only be necessary to include relevant information to determine 
that media management activities would be in compliance with the 
requirements of this Part, and other applicable requirements. This 
would ease the administrative burden on investigations and treatability 
studies, and therefore facilitate getting these activities underway at 
cleanup sites. EPA requests comments on whether this streamlining is 
appropriate, and whether more should be done to reduce the 
administrative burdens associated with investigations and treatability 
studies in regard to today's proposal.
    Since several different types of cleanup wastes may be managed 
under approved RMPs, the RMP must define what types of materials are 
being managed according to their requirements. For media that will be 
managed by the requirements of this Part, the proposed rule provides 
that information must demonstrate that the materials are indeed media, 
as defined in proposed Sec. 269.3. For hazardous contaminated media and 
other hazardous cleanup wastes that must be managed according to the 
substantive requirements under Subtitle C, information would be 
required to demonstrate what type of cleanup wastes would be managed in 
order to identify the applicable, substantive Subtitle C regulations. 
This information would be necessary to indicate that the planned 
remedial activities involving those materials would be in compliance 
with those substantive requirements. For non-hazardous contaminated 
media which would be managed according to applicable State/Federal 
requirements, the RMP would have to include enough information to allow 
the Director to determine that the media did not contain hazardous 
waste. Also, the RMP would have to show that the media would be managed 
in compliance with any applicable State/Federal requirements.
    It is important to demonstrate that the contaminated media being 
managed would meet the definition in the proposed Sec. 269.3, and that 
planned treatment of those media would meet the treatment requirements 
of this Part, if applicable. The RMP would have to provide any 
information on the media (or waste) characteristics, and the 
constituent concentrations that would affect how the materials should 
be treated and/or managed. Particularly, the RMP would have to provide 
information on initial concentrations of contaminants in the media so 
that the overseeing agency could determine when any applicable required 
treatment reductions are met. Also, some contaminants are treated more 
or less successfully with different types of technologies. Accordingly, 
this information could affect how those contaminants should be treated.
    Different management requirements could be more appropriate for 
different sites, depending on the volumes of hazardous contaminated 
media to be managed at the site. Therefore, EPA proposes that RMPs 
would be required to include information on the volumes of wastes and 
media to be managed.
    The RMP should also specify the types of treatment and management 
that will be used to treat the contaminated media under the RMP. With 
this information the Director could determine if other Subtitle C 
requirements would be applicable to that treatment, such as the 40 CFR 
Part 264 standards. The Director also could determine if the treatment 
would be conducted in a way that would be protective of human health 
and the environment.
    As discussed in the section ``Treatment Requirements for Hazardous 
Contaminated Media'' of today's proposed rule, EPA is concerned about 
the potential for remedial technologies to cause cross-media transfer 
of contaminants. For example, contaminants could be volatilized for 
removal from the soil, but releasing them to the air could then 
contaminate the air. Obviously, this would not accomplish the Agency's 
goal of actual cleanup of contaminants. Instead the

[[Page 18816]]

Agency proposes to control the potential of cross-media transfer by 
requiring that the RMP would include information on how the treatment 
system would be designed and operated so that the transfer of 
pollutants to other environmental media would be minimized.
    As discussed earlier, EPA is currently developing a set of guidance 
documents called Best Management Practices for Soils Treatment 
Technologies. These documents will provide guidance for controlling 
cross-media contamination from different categories of remedial 
technologies. This guidance will be made available for comment before 
it is finalized.
    In EPA's experience, accurate waste analysis is critical in 
selecting effective remedial waste management requirements. Thus, the 
proposed rule states that RMPs would include information on planned or 
completed sampling, and analysis procedures necessary to many aspects 
of the remedial actions, including: characterization, ensuring 
effective treatment, and demonstrating compliance with the treatment 
standard. In addition, the RMP would include quality assurance, and 
quality control procedures to validate the results of the sampling and 
analysis.
    The Agency is currently developing guidance on how to sample, test, 
and analyze contaminated media. This guidance would be used to 
characterize the contaminated media being managed in a way that EPA 
would generally consider adequate for compliance with this Part. This 
draft guidance is available for comment in the docket for today's 
proposal.
    EPA has found it necessary to collect treatability data for 
contaminated media so that it can set treatment standards with 
reasonable faith that those standards can be met with available 
technologies, and provide information on which technologies have 
accomplished what results on what kinds of contaminated media to 
potential users. Today's proposed rule would provide tremendous 
flexibility in LDR treatment standards because, among other things, of 
a lack of data regarding what treatment levels can actually be met in 
practice. One of the rule's goals is to provide data to ensure 
appropriate, future treatment requirements. In order to collect this 
much-needed data, the proposed rule would require that upon conclusion 
of implementation of remedial technologies (both full-scale as well as 
treatability studies), conducted under approved RMPs, data be submitted 
to EPA in the manner specified in Appendix B to this Part. (See 
Secs. 269.41(c)(9) and 269.42(b)). The Agency will make these data 
available to the public once they have been compiled into EPA's NRMRL 
treatability database. EPA proposes that data from treatability studies 
be submitted as soon as the treatability study (or studies) has been 
completed. Full-scale operating data would be submitted every three 
years, or after the cleanup has been completed, whichever is first.
    Treatability data. The National Risk Management Research Laboratory 
treatability database is available through the Alternative Treatment 
Technology Information Center (ATTIC) system or on disk at no charge 
from EPA. The ATTIC system provides access to several independent 
databases as well as a mechanism for retrieving full-text documents of 
key literature. The ATTIC system can be accessed with a personal 
computer and modem 24 hours a day, and no user fees are charged.
    To access the ATTIC system, set your PC communications software as 
follows:

Name: ATTIC
Number: (703) 908-2138
Baud Supported: Up to 14,400
Parity: N
Data Bits: 8
Stop Bits: 1
Terminal Emulations: ANSI, VT100
Duplex: Full

    For further information on the ATTIC system, please call the ATTIC 
Hotline at: (703) 908-2137, or contact the ATTIC Program Manager: 
Daniel Sullivan, U.S. EPA (MS 106), 2890 Woodbridge Avenue, Edison, NJ 
08837-3679, phone: (908) 321-6677, fax: (908) 906-6990.
    The Agency requests comments on whether this procedure and format 
will meet the goals of providing access to the public and regulated 
community about achievable treatment at cleanup sites, and whether it 
will provide adequate information to the Agency for the development of 
future rulemakings.
    For many reasons, the Director could decide that further 
information in the RMP is needed to determine compliance with this 
Part. If the Director does request further information (according to 
Sec. 269.41(c)(10)), the owner/operator shall revise the proposed RMP 
to include that information.
    Fostering innovative technologies. The Agency believes that 
environmental regulations and policies should promote, rather than 
inhibit, the innovation and adaptation of new technologies. By adopting 
such a strategy, environmental policy can promote both the economy and 
the environment by creating new industries, jobs, and a new capability 
to make environmental progress. We therefore are seeking comments on 
how this regulation can further innovative technology as well.
    In order to clarify what the Agency means by innovative technology 
in this case, the following is a definition from the White House 
``Bridge to a Sustainable Future'' document from April 1995. ``[A] 
technology that reduces human and ecological risks, enhances cost 
effectiveness, improves efficiency, and creates products and processes 
that are environmentally beneficial or benign. The word ``technology'' 
is intended to include hardware, software, systems, and services. 
Categories of environmental technologies include those that avoid 
environmental harm, control existing problems, remedied or restore past 
damage, and monitor the state of the environment.''
    One example of how this proposed rule attempts to foster innovative 
technologies is by creating a new media treatment variance. In cases 
where innovative technologies will be protective of human health and 
the environment, given site-specific conditions, a media treatment 
variance could set an alternative treatment standard using an 
innovative technology.
    The Agency requests comments on what specific regulatory or policy 
changes should be added to the rule to: (1) Increase incentives for 
innovative technologies; and (2) identify and reduce any existing 
barriers to innovative technologies. Specifically, the Agency requests 
comments on how RCRA requirements can be changed, in a manner 
acceptable to all concerned parties, to allow for rapid technology 
development.
    EPA solicits comments on the desirability of, and possible 
approaches for, tailoring regulatory requirements for technologies when 
the risk of a major system failure is impossible, remote, or without 
significant risk from unit operations commonly called ``soft landing 
technologies.'' For such technologies, particularly those that are in-
situ, a high level of regulatory control does not appear necessary. 
Certain ex-situ technologies such as soil washing also seem to present 
a minimal risk. EPA requests comments and suggestions specifically on 
how regulatory requirements could be tailored to ``soft landing'' 
technologies. For example, should RMPs for soft landing technologies 
have a more streamlined approval process than other RMPs; or should 
they be exempt from permitting requirements entirely; or should their 
requirements be tailored differently?

[[Page 18817]]

3. Treatability Studies--Sec. 269.42
    EPA recognizes that treatability studies are likely to be an 
important component of evaluation, selection, and application of LDR 
treatment technologies, especially for innovative technologies. Thus, 
it may be highly desirable or even necessary to generate site-specific, 
pilot-scale treatability information to support preparation of 
Remediation Management Plans (RMPs).
    In Sec. 269.42 of today's proposed rule, EPA proposes that 
treatability studies would be conducted subject to the discretion of 
the Director, and in accordance with appropriate provisions of 40 CFR 
269.41 and 269.43. (See discussion above). If a treatability study were 
going to be conducted under a RMP, the RMP would include information 
describing how the study would be conducted, including relevant design 
and operating parameters, information on waste characteristics, and 
sampling and analytical procedures.
    If applicable, the currently available Treatability Sample 
Exclusion Rule could be used for treatability studies; however, the 
rule might not cover all situations where relief for treatability 
studies is needed. EPA solicits comments on whether it would be 
preferable to revise the Treatability Sample Exclusion Rule (40 CFR 
261.4(e)-(f)) to allow site-specific decisions regarding quantities and 
time frames for treatability studies that have been conducted in 
support of activities covered by HWIR-media, or other cleanup projects.
    The Agency recently revised the Treatability Sample Exclusion Rule 
to allow up to 10,000 kg of contaminated media to be used in 
treatability studies without permits or manifests. In promulgating the 
revision, EPA was aware, based on comments received on the proposal, 
that the quantity limits were not always sufficient to allow 
treatability studies of appropriate scale, particularly for in-situ 
treatments. Because treatability studies in support of HWIR-media 
activities have the objective of improved remedial decision-making and 
cleanups, and would take place under regulatory oversight, EPA sees 
merit in facilitating appropriate scale studies, and requests comments 
on whether to allow the Director to determine, on a site-specific 
basis, to exempt waste under treatability studies when necessary in 
order to obtain effective treatability study results. The Director 
would be required to ensure, as always, that exempting the wastes would 
not pose a threat to human health and the environment. The Agency 
requests comments on any other approaches to effective treatability 
studies, and other issues related to this area.
4. Approval of RMPs--Sec. 269.43
    This section of the proposed rule sets out procedures for review 
and approval of RMPs. If, however, the overseeing Agency were using an 
alternative document as discussed above, and if the Agency had review 
and approval requirements for the document (that provide equivalent or 
greater opportunities for public review and comment), then those 
alternative procedures could be used. Examples of these procedures 
would be the RCRA permit, or the permit modification procedures in Part 
270. If necessary, the Director could also require further review and 
comment procedures.
    The proposed rule would require both the owner and operator to sign 
the draft RMP before submitting it to the Director for review and 
approval. The owner and the operator's signatures would certify their 
agreement to implement the provisions of the RMP if the RMP is approved 
as submitted. In the context of cleanups, EPA has found that, on 
occasion, either the owner or operator is unwilling to sign a permit 
application. For example, a property owner may be unwilling to sign, 
because of fear of liability, where a lessee is conducting a cleanup. 
EPA solicits comments on whether signatures of both the owner and 
operator are needed in every case.
    The Director could require modification or additional information 
that might be necessary for demonstrating compliance with the 
requirements of this Part. For example, to allow EPA and the States 
flexibility in using existing enforceable documents and procedures to 
comply with the requirements for RMPs, the Agency is not proposing 
national requirements in areas such as record keeping and reporting. 
EPA believes that the Director should specify any additional 
requirements that he/she determines necessary, (but that do not have 
national requirements specified in Part 269) in the RMP. The Agency 
requests comments on whether EPA should specify national requirements 
for record keeping and reporting, or any other requirements for RMPs.
    Once the Director determines that the draft RMP adequately 
demonstrates compliance with the requirements of this Part, he/she 
could add provisions to the proposed RMP that specify conditions under 
which the media must be managed, in accordance with this Part and other 
applicable provisions of Subtitle C. The Director could also add 
contained-in concentrations for media that would be managed under the 
RMP. If media that originally contain hazardous wastes were to be 
treated to a point at or below which they no longer would contain the 
wastes, then these levels would be necessary to define when the media 
no longer contain hazardous wastes.
    If the Director had established applicable State-wide contained-in 
concentration levels, or if all media at the site were to be managed as 
hazardous contaminated media, then such contained-in levels could 
simply be referenced in the RMP.
    The Director must also document site-specific minimize threat 
determinations or other treatment variances in the RMP if such a 
determination were made for the site in question. This would provide 
the public the opportunity to review and comment on both contained-in 
and minimize threat decisions.
    EPA considers public review and comment procedures to be an 
extremely important part of the review and approval process for 
remedial activities. The Agency intends for the procedures provided in 
this proposed rule to balance the need for public involvement with the 
need for fast and efficient approval of remedial activities.
    In essence, EPA is proposing to require the use of the minimum 
public participation requirements set out in RCRA section 7004(b). 
Thus, the first step in the proposed public review and comment 
procedures is for the Director to publish in a major local newspaper of 
general circulation, and broadcast over a local radio station his/her 
intention to approve the RMP. This notice would provide the public with 
the opportunity to submit written or oral comments, and would be 
required to specify the length of time that the public has to comment. 
The proposed rule specifies that the comment period shall be no shorter 
than 45 days. At this time, the Director would also be required to 
transmit a written notice of his/her intent to approve the RMP to each 
unit of local government having jurisdiction over the area in which the 
site was located, and to each State agency having any authority under 
State law with respect to any construction or operations at the site.
    The next step is an informal hearing. The Director could determine 
on his/her own initiative that a hearing is appropriate, or receive a 
request for a hearing. In either case the Director would be required to 
schedule a hearing to discuss issues relating to approval of the RMP. 
The hearing would provide the interested public an opportunity to 
present written or oral statements. The Director would be required, 
whenever

[[Page 18818]]

possible, to schedule the hearing at a location that is convenient to 
the site's nearest population center. The Director would be required to 
give notice again in the newspaper and on the radio of the hearing's 
date, time, and subject matter.
    After the comment period, and after the hearing (if one is held) 
the Director would be required to consider and respond to all 
significant written and oral comments (received by the deadline) on the 
proposed RMP. If the Director determines that it is appropriate, he/she 
may modify the RMP to accommodate the comments received.
    At that point, the Director would be required to determine if the 
RMP were adequate, and if it met the requirements of this Part. If so, 
he/she would be required to notify the owner/operator and all other 
commenters in writing that the RMP had been approved. Once the RMP had 
been approved, it would be an enforceable document, and a final Agency 
action (not subject to administrative appeals in Sec. 124.19 of this 
part).
    EPA requests comments on whether these public participation 
requirements are appropriate for RMPs. The Agency also requests 
comments on public participation requirements in the State 
Authorization section of this proposal. The Agency is proposing this 
approach to public participation for RMPs because RMPs can serve as 
RCRA permits if necessary; hence, the Agency is proposing to follow the 
statutory requirements for public participation for RCRA permits. The 
Agency also requests comments on whether there should be different 
levels of public participation if the media contain hazardous wastes, 
or if the Director determines that the media do not contain hazardous 
wastes. The Agency requests comments on whether there should be some 
flexibility in the public participation requirements based on the 
different types of activities that could be performed according to 
RMPs. See further discussion of this issue below in the State 
Authorization section (V)(E)(6)(b) of the preamble regarding essential 
elements for an HWIR-media program.
    Proposed Sec. 269.43(f) specifies that RMPs that require combustion 
of cleanup wastes at a media cleanup site would have to be approved 
according to the more rigorous procedures that are required for RCRA 
permits under Part 270. Technologies involving higher levels of energy 
input generally achieve higher levels of contaminant removal/
destruction, and may do so with greater consistency over a range of 
conditions. Nevertheless, higher energy systems potentially may have 
undesirable side-effects. As in the case of combustion, regulatory 
attention, including preliminary demonstrations of performance through 
trial burns, etc., has been found necessary to address these concerns.
5. Modification of RMPs--Sec. 269.44
    Plans for remedial actions sometimes need to be modified. Often, 
modifications are necessary as new information becomes available, or 
when unforeseen circumstances arise. In order to retain the most 
flexibility for overseeing Agencies that have their own requirements 
for modification of remedial plans, this rule proposes that the RMP 
specify procedures for any necessary modifications. The Agency believes 
that if the modifications include a major change in the management of 
hazardous contaminated media at the site, the modification procedures 
should provide opportunities for public review and comment.
6. Expiration, Termination, and Revocation of RMPs--Sec. 269.45
    In a similar manner as modifications to RMPs, EPA intends for the 
Director to specify in the RMP the procedures under which the RMP will 
expire, terminate, or be revoked. RMPs which constitute permits for 
land disposal facilities must be reviewed every five years to comply 
with the statutory requirements under RCRA section 3005(c)(3), and all 
RMPs which constitute RCRA permits must be renewed at least every 10 
years, if they will remain in effect longer than that, in order to 
comply with the statutory requirements under RCRA section 3005(c)(3).

E. Streamlined Authorization Procedures for Program Revisions (Part 
271)

1. Statutory and Regulatory Authorities
    Section 3006(b) of RCRA, 42 U.S.C. 6929(b), instructs EPA, after 
notice and opportunity to comment, to authorize State programs, unless 
the Agency finds that the State program is not equivalent to the 
Federal program, nor consistent with the Federal program, nor adequate 
in providing for enforcement. General standards and requirements for 
State authorization are set forth in 40 CFR Part 271. Following 
authorization, EPA retains the enforcement authorities of RCRA sections 
3008, 7003 and 3013, although the authorized State has primary 
enforcement responsibility. Pursuant to RCRA section 3009, 42 U.S.C. 
6929, States may choose to implement hazardous waste management 
requirements that are either more stringent or broader in scope than 
the Federal requirements. State requirements that are more stringent 
may be included in a State's authorized program; requirements that are 
broader in scope are not part of the authorized State program. \27\ 
(See 40 CFR 271.1(i)).
---------------------------------------------------------------------------

    \27\ More stringent State requirements are typically those which 
impose additional requirements on wastes or facilities that are 
already addressed by the Federal program. Broader in scope 
requirements are typically those that would address wastes or 
facilities not covered by the Federal program. The authorization 
status of a State's requirements does not in any way affect the 
ability of a State to enforce such requirements as a matter of State 
law.
---------------------------------------------------------------------------

2. Background and Approach to Streamlined Authorization
    EPA has been reviewing State authorization applications and 
authorizing State hazardous waste programs since the early 1980's. 
Currently 49 States and territories have received final authorization 
as defined in 40 CFR 270.2 for the base RCRA program.\28\ To varying 
degrees these same States and territories are also authorized to 
implement provisions promulgated under the Hazardous and Solid Waste 
Amendments of 1984 (HSWA). Many States have more than a decade of 
experience promulgating rules for and implementing authorized hazardous 
waste programs.
---------------------------------------------------------------------------

    \28\ In this context, the ``base'' RCRA program refers to 
authorization for all or part of the regulations promulgated by EPA 
prior to January 26, 1983.
---------------------------------------------------------------------------

    Once authorized, States are required to adopt and become authorized 
for new and revised Federal requirements that are more stringent than 
the authorized State program. (See 40 CFR 271.21). Since EPA regularly 
revises the RCRA regulations in response to statutory provisions, court 
ordered deadlines, evolving science, and changing Agency priorities, 
States continually submit program revisions to EPA for review and 
approval.
    Under the current authorization structure, all revisions to 
authorized State hazardous waste programs, including minor changes, are 
potentially subject to the same standards of application and receive 
the same level of EPA scrutiny. Preparation, review, and processing of 
these program revisions represent a significant resource commitment on 
the part of EPA and the States. Occasionally, States and EPA Regions 
can experience delays in authorization of State program revisions 
during which EPA and a State are jointly implementing many portions of 
the RCRA program. For example, in many States EPA is still implementing

[[Page 18819]]

regulations promulgated pursuant to the 1984 HSWA amendments. Any delay 
in authorization of State program revisions concerns EPA and State 
regulators, and can confuse the public and the regulated community who 
often must interact with both agencies for even routine inquiries 
(e.g., the status of a pending permit application or the compliance of 
a given hazardous waste management facility).
    EPA is continuously improving the administrative processes 
associated with authorization of State program revisions. Over the past 
years, improvements have been made through joint training of State and 
Federal authorization staff, increased emphasis on early EPA 
involvement in initial preparation of authorization applications, and 
delegation of the authority to grant authorization for program 
revisions to EPA Regional offices. EPA believes that the quality of 
State program revision applications has improved and therefore, EPA 
review and approval of these submittals has accelerated.
    Over the past two years, many EPA rulemaking workgroups (including 
the HWIR FACA Committee) began to discuss and/or develop streamlined 
authorization procedures specific to their rulemakings. Based on these 
discussions, EPA became concerned that some of the recently gained 
efficiencies in authorization processes could be lost if every new 
Federal rule contained its own specialized authorization procedures. 
EPA believes that promulgating specific authorization procedures for 
each new rule could force State and Regional authorization personnel to 
continually revise their application formats and review procedures. EPA 
is especially concerned since many States do not apply for 
authorization of new Federal regulations one rule at a time, but 
``cluster'' their authorization applications. Establishing slightly 
different authorization procedures for each new Federal rule might 
preclude clustering of program revisions, and actually slow 
authorization by forcing States and EPA Regions to prepare and process 
separate program revision applications for each new rule.
    To address this situation, and to further improve the authorization 
process, EPA developed two generic sets of streamlined procedures for 
the authorization of program revisions. The first set of streamlined 
procedures was proposed in the Phase IV proposal (60 FR 43654, August 
22, 1995); \29\ the second set is being proposed today. EPA believes 
that these procedures would formalize some efficiencies in the 
authorization of State program revisions piloted by some States and EPA 
Regions.
---------------------------------------------------------------------------

    \29\ EPA is not now reopening the comment period on the Phase IV 
proposal.
---------------------------------------------------------------------------

    In addition, EPA believes that, by using these new generic 
procedures, States and EPA Regions would continue to be able to cluster 
their authorization applications, and conduct successful reviews, by 
including all Category 1 rules in one authorization package, and all 
Category 2 rules in another authorization package. (See preamble 
(V)(E)(3) for discussion of Categories 1 and 2). States and EPA Regions 
could even choose to coordinate the submittal dates for these 
authorization packages. For example, the Category 2 application could 
be submitted prior to the Category 1 application. This would allow the 
EPA Region to include an authorization decision for both applications 
in one Federal Register notice.
    Through use of two sets of authorization procedures, EPA hopes to 
tailor the level of effort for preparation, review, and approval of 
revision applications to the significance of the program revision. Both 
new sets of procedures would significantly streamline authorization of 
program revisions. However, both would also provide for EPA review of 
State program revisions and maintain opportunities for public review 
and comment on EPA's proposed authorization decisions.
    In developing streamlined authorization procedures, EPA used three 
guiding principles. First, States are EPA's partners in environmental 
protection. Although EPA must maintain minimum national standards for 
hazardous waste management, the Agency recognizes that many States have 
sophisticated, and highly-developed programs for hazardous waste 
management and cleanup designed to meet their individual circumstances 
and priorities. Second, State programs do not have to be exactly the 
same as the Federal program to be equivalent. EPA review of State 
programs must focus on whether State programs would achieve the same 
results. (See S. Rept. 98-248 p. 62). Third, EPA should continue to 
promote the most efficient use of State and Federal authorization 
resources and take advantage of opportunities to streamline and 
otherwise encourage State authorization.
3. Streamlined Procedures--Sec. 271.21
    a. Phase IV proposal--Category 1. In the recent Phase IV Land 
Disposal Restrictions (LDR) proposal (60 FR 43654, August 22, 1995), 
EPA proposed a streamlined set of authorization procedures that would 
apply to certain routine changes to the LDR program, such as the 
application of treatment standards to newly identified wastes. The 
streamlined authorization procedures proposed with Phase IV have come 
to be known as Category 1 procedures for authorization of program 
revisions, or simply ``Category 1.''
    In the Phase IV proposal, EPA explained that the proposed 
streamlined authorization procedures would also be used for certain 
other revisions to the LDR program and could be considered for future, 
non-LDR, rules. EPA proposed the generic streamlined authorization 
procedures for Category 1 in the Phase IV proposal because many of the 
changes to the LDR program proposed in the Phase IV proposal exemplify 
the types of program revisions EPA believes should be addressed by 
Category 1. In general, EPA believes Category 1 authorization 
procedures would be appropriate for rules or parts of rules that do not 
change the basic structure of the authorized State program, or expand 
the State program into significant new areas or jurisdictions. For 
example, the application of LDR treatment standards to newly identified 
wastes and revisions to existing LDR treatment standards discussed in 
the Phase IV proposal would be additions of new wastes to an existing 
program, changes to numeric criteria, or improvements in existing 
procedures. These would have minimal effect on the basic scope or 
implementation of authorized State LDR programs.
    Since Category 1 authorization procedures are designed for rules or 
parts of rules that do not significantly change the way a State might 
implement its authorized program, EPA believes it is essential that the 
State first be authorized for the appropriate prerequisite program 
component. For example, the Phase IV proposal would allow use of 
Category 1 authorization procedures only in States already authorized 
for the LDR Third Third regulations (55 FR 22520, June 1, 1990) since 
the LDR Third Third rule essentially completed the framework of the LDR 
program. Interested individuals are encouraged to refer to the LDR 
Phase IV proposal at (60 FR 43654, August 22, 1995), for more 
information on Category 1 authorization requirements and procedures. 
Note that in today's proposed rule, EPA would reserve 40 CFR 271.21(h) 
for finalization of the generic Category 1 streamlined authorization 
procedures proposed in 40 CFR 271.28 of the LDR Phase IV proposal.

[[Page 18820]]

    b. Today's proposal--Category 2. In this proposed rule, EPA 
addresses authorization of program revisions that have significant 
impacts on State hazardous waste programs. EPA is proposing generic 
Category 2 authorization procedures today because we believe the HWIR-
media rule exemplifies the type of program revisions which could be 
addressed using the Category 2 procedures. In general, EPA believes 
that Category 2 authorization procedures would be appropriate for rules 
or portions of rules that address areas not previously covered by the 
authorized State program, or that substantially change the nature of 
the program.
    For example, implementation of the HWIR-media regulations proposed 
today would involve policy decisions for management of hazardous 
contaminated media. These policy decisions would likely affect the way 
States implement hazardous waste requirements at cleanup sites, and 
State HWIR-media programs would probably be significantly different 
from the States' previously authorized programs. As with the Category 1 
procedures discussed above, EPA believes it could be appropriate to 
require States to be authorized for certain rules prior to receiving 
authorization for certain Category 2 rules. For instance, a 
prerequisite for authorization of today's HWIR-media regulations would 
be final authorization as defined by 40 CFR 270.2 for the ``base'' RCRA 
program (the base RCRA program is defined in footnote #28 in (V)(E)(2) 
of today's proposed rule).
    The Category 2 authorization procedures proposed today consist of 
the following components: (i) Requirements for Category 2 revision 
applications; (ii) criteria to be used by EPA to determine if Category 
2 revision applications are complete; and (iii) procedures for EPA 
review and approval of Category 2 revision application. Each of these 
components is discussed in detail below.
    When developing the authorization procedures discussed today, EPA 
sought to balance its desire to recognize successful State performance 
and experience with the need to ensure adequate implementation of 
minimum Federal requirements. EPA requests comments on (1) whether the 
authorization procedures proposed today sufficiently recognize the 
sophistication of State programs, while maintaining an appropriate 
level of EPA review; (2) whether these provisions are appropriate for 
authorization of the HWIR-media regulations (alternative approaches to 
HWIR-media authorization and HWIR-media eligibility are discussed in 
section (V)(E)(6)(a) of today's proposed rule); (3) other types of 
regulations that these procedures could address; and (4) whether the 
development of generic sets of authorization procedures will preclude 
or inhibit clustering of program revision applications, thereby 
potentially slowing their authorization. EPA also requests comments 
from State, tribal, and territorial governments on the degree to which 
the authorization approach proposed today will streamline and create 
efficiencies in the preparation, review, and approval of revision 
applications.
    i. Requirements for Category 2 revision applications 
(Sec. 271.21(i)(1)). EPA is proposing that Category 2 revision 
applications include: (1) a certification by the State attorney general 
(or the attorney for State agencies that have independent legal 
counsel) that the laws and regulations of the State provide authority 
to implement a program equivalent to the Federal program; (2) a 
certification by the State program director that the State has the 
capability to implement an equivalent program and commits to 
implementing an equivalent program; (3) an update to the State/EPA 
Memorandum of Agreement (MOA) and/or State Program Description (PD) if 
necessary; and (4) copies of all applicable State laws and regulations 
showing that such laws and regulations are fully effective. EPA also 
proposes to allow States, at their discretion, to submit any additional 
information that they believe will support their revision application.
    State certifications (Sec. 271.21(i)(1)(i)). The State 
certifications should specifically address the Category 2 rule for 
which a State is seeking authorization, and include reference to State 
authorities and requirements that provide for a State program 
equivalent to the Federal program.
    The State attorney general's certification should include specific 
citations to the State laws and regulations that the State would rely 
on to implement an equivalent program. If appropriate, the attorney 
general's certification should include citations to judicial decisions 
that demonstrate that the State's laws and regulations provide for an 
equivalent program. All State laws and regulations cited in the State 
attorney general's certification must be fully effective at the time 
the certification is signed. Copies of all cited laws, regulations, and 
judicial decisions must be attached to the State's certification.
    In cases where authorization of a Category 2 rule is contingent on 
the State already being authorized for certain rules, EPA is proposing 
that the State attorney general's certification include certification 
that the State is authorized for the prerequisite requirements. 
Although information on a State's authorization status is, of course, 
available to EPA, the Agency believes that requiring that the State AG 
certification address prerequisite requirements would ensure that the 
State adequately considers these requirements when preparing the 
authorization application. In addition, States should note that 
existing regulations at 40 CFR 271.21(a) and (c) require an authorized 
State to keep EPA fully informed of any proposed changes to its basic 
statutory or regulatory authorities, its forms, procedures, or 
priorities, and to notify EPA whenever they propose to transfer all or 
part of the authorized program from the approved State agency to 
another State agency. Failure by an authorized State to keep EPA fully 
informed of changes to State statutes and regulations may affect 
authorization of that State's program revision applications.
    The State program director's certification should specifically 
address the State's intent and capability to implement an equivalent 
program. The State program director is the ``director'' as defined at 
40 CFR 270.2. If EPA has established essential elements for the rule in 
question, the State program director's certification must address each 
essential element individually. Essential elements are discussed in 
detail below. It may be helpful for the State to reference State 
policies, procedures, or other documents that support the State program 
director's certification. When referenced, these documents should be 
fully effective at the time of the certification, and copies must be 
attached.
    Essential elements (Sec. 271.21(i)(1)(ii). EPA could choose to 
promulgate essential program elements for any Category 2 rule. 
Essential elements summarize critical program components and/or 
implementation requirements. They would be intended to focus State and 
EPA resources on a review of critical program components to determine 
whether the State program will achieve the same results as the Federal 
program, rather than on line-by-line comparisons of State and Federal 
regulations. Essential elements could include regulatory provisions, 
and enforcement or capability considerations. EPA emphasizes that the 
purpose of essential elements is not to promote detailed or exhaustive 
re-

[[Page 18821]]

evaluations of authorized State programs. Instead, essential elements 
should be used by State and EPA Regions to ensure that all impacts of 
certain Category 2 program revisions have been identified and 
adequately considered. As discussed in section (V)(E)(3)(b)(iii) of the 
preamble below, EPA would give great deference to States in their 
certifications of programmatic intent and capability.
    EPA would establish essential elements as specifically as possible; 
however, because of the varying degrees to which States are authorized 
for the RCRA program and HSWA amendments, some essential elements could 
overlap with authorized requirements in some States. For example, one 
of the essential elements proposed today for the HWIR-media rule is 
``authority to address all media that contain hazardous wastes listed 
in Part 261 Subpart D of this chapter, or that exhibit one or more of 
the characteristics of hazardous waste defined in Part 261, Subpart C 
of this chapter.'' Some States that have already been authorized for 
various portions of the RCRA program, including the corrective action 
program, and the land disposal restrictions for hazardous debris. These 
States have already promulgated--and are using--appropriate rules for 
addressing media.
    If EPA promulgates essential elements for a particular rule, EPA 
proposes that the Director's certification would address each essential 
element individually. When State program components corresponding to an 
essential element have already been reviewed by EPA when authorizing a 
previous program revision, the Agency would not re-evaluate the State 
program component. In these cases, EPA would evaluate the essential 
element portion of the Director's certification only to verify that the 
State did, in fact, consider the essential element when deciding how it 
would implement the program revision at issue.
    EPA is not proposing that essential elements replace the 
authorization checklists currently used by States and EPA to document 
authorized State authorities. However, to ensure that work is not 
duplicated, future authorization checklists would incorporate any 
promulgated essential elements. EPA is proposing essential elements for 
the HWIR-media rule; these elements are discussed in section 
(V)(E)(6)(b) of the preamble to today's proposed rule.
    Update to the State/EPA Memorandum of Agreement and/or State 
Program Description (Sec. 271.21(i)(1)(iii)). EPA is proposing that the 
Category 2 revision application would include either updates to the 
State/EPA Memorandum of Agreement and Program Description or 
certification by the Director that such updates are not necessary. EPA 
believes that these updates or certifications must be required because 
Category 2 rules could affect the way a State implements its authorized 
program.
    Consequently, implementation of the proposed program revision could 
raise issues not addressed by the existing MOA or PD. For example, a 
State hazardous waste agency may choose to rely on another State agency 
(e.g., a State water control board) to implement some Category 2 rules. 
In these cases the State/EPA MOA and Program Description should be 
updated to reflect the various roles and responsibilities of the two 
State agencies, and to designate a lead agency for communications with 
EPA. (See 40 CFR 271.6). If an update to the State/EPA MOA is needed, 
it should be finalized and signed by the State and EPA before final 
authorization of the program revision.
    EPA does not believe authorization of Category 2 program revisions 
would routinely necessitate updates to State/EPA Memorandums of 
Agreement or Program Descriptions. In cases where the MOA already 
addresses issues such as routine State program monitoring, sharing of 
information, and procedures for State enforcement, Category 2 revisions 
could simply add additional requirements to those already implemented 
by the State agency, and updates would not typically be necessary. 
Similarly, when the State Program Description already addresses the 
setting of State priorities, organizational structures, and 
implementation strategies, and a Category 2 program revision only adds 
to RCRA requirements already implemented by the State agency, updates 
would not typically be necessary. In other cases, Category 2 program 
revisions--even those that would simply add to the RCRA requirements 
already implemented by a State--could have significant resource 
implications that should be addressed in an update to the State Program 
Description.
    ii. Completeness check (Secs. 271.21(i)(2) and 271.21(k)). When EPA 
receives a Category 2 revision application, the Agency would conduct a 
completeness check to determine if the application contains all of the 
required components. To be considered complete, Category 2 revision 
applications must include the State attorney general and Director 
certifications, any necessary updates to the State/EPA MOA and PD, and 
copies of all cited laws and regulations, as discussed above.
    The criteria for completeness checks of Category 2 revision 
applications would be essentially the same as those proposed in the 
Phase IV proposal for completeness checks of Category 1 revision 
applications. Like Category 1 revision applications, Category 2 
revision applications would be considered incomplete if: (1) Copies of 
the laws and regulations cited by the State in their certifications 
were not included; (2) the statutes and regulations cited by the State 
were not in effect; (3) the State was not yet authorized for any 
prerequisite regulations; or (4) the State certifications contain 
significant errors or omissions.
    EPA proposes to allow 30 days for the completeness check. When the 
Agency determines that a Category 2 revision application is incomplete, 
it will notify the State in writing. This written notification will 
specifically identify the application's deficiencies, and provide the 
State an opportunity to revise and re-submit its application. In cases 
where a State application was deemed incomplete because of minor errors 
or omissions, and the State and EPA are in agreement on correction of 
such errors, the Agency could choose to proceed with the review and 
approval process discussed below, emphasizing that final authorization 
of the State program would be contingent on agreed upon corrections to 
errors in the State application.
    iii. Review and approval (Sec. 271.21(i)(3)). Following 
determination that a Category 2 program revision application is 
complete, EPA would review the application as necessary to confirm that 
the State revisions are equivalent to applicable Federal rules. During 
this review, EPA could, for example, examine an update to the State/EPA 
Memorandum of Agreement, if one were submitted, to see if it addressed 
implementation roles. Similarly, EPA could review the State Director's 
certification of essential elements to learn more about how the State 
intended to implement the program revision.
    EPA proposes to allow a maximum period of 60 days, beginning when 
the Agency determines that a program revision application is complete, 
to consider the application, and to prepare a Federal Register notice 
requesting public comment on EPA's tentative authorization decision. 
Although EPA and the State may agree to a shorter or longer review 
period, EPA believes that it would be possible to confirm the 
revision's equivalence and prepare the

[[Page 18822]]

necessary Federal Register notice within 60 days.
    Through the initial authorization of the State program, EPA would 
have become familiar with the program, and with the laws and 
regulations of the State. In addition, through the existing procedures 
for EPA monitoring and oversight of authorized State programs, EPA 
would be familiar with a State's program priorities, implementation 
strategies, policies, and procedures. Therefore, authorization of 
program revisions should be a straightforward process, where EPA's role 
would be to confirm that the State has adequately considered 
implementation of the program revision at issue, and has appropriately 
certified that the State laws and regulations provide for a program 
equivalent to the Federal program. EPA emphasizes that the review of 
program revision applications that are provided for in proposed 40 CFR 
271.21(i)(3) should be used only to address the particular program 
revision at issue. Concerns EPA might have with parts of the State 
program that are already authorized should be addressed during EPA's 
monitoring and oversight of the State program.
    EPA believes that the exact level of review necessary to confirm 
that a State's revisions provide for a program equivalent to the 
Federal program would vary from State to State, and from rule to rule. 
For example, in cases where EPA is very familiar with the State program 
(e.g., in the case of HWIR-media, in a State authorized for corrective 
action), the review necessary for EPA to confirm equivalence would not 
be extensive. In other cases, a State may be proposing to implement a 
program revision using a non-hazardous waste authority, or a 
combination of authorities, and the level of review necessary for EPA 
to confirm equivalency could be more intensive. EPA has developed the 
Category 2 authorization procedures to allow States and EPA Regions the 
flexibility to establish the level of review necessary for a 
determination of equivalence, rather than presupposing that any given 
level of review would be appropriate in all States for all Category 2 
program revisions.
    EPA proposes to use the procedures for an immediate final rule (see 
40 CFR 271.21(b)(3)) to request comments on its tentative decision to 
approve or disapprove a Category 2 program revision. Immediate final 
rules, which are published in the Federal Register, provide a 30-day 
public comment period, and go into effect 60 days after publication 
unless significant adverse comment is received. An example of 
significant adverse comment would be comments demonstrating that the 
cited State authorities do not provide for an equivalent program. EPA 
believes that immediate final rules would typically be the most 
efficient way to publish and seek comments on its proposed program 
revision authorization decisions; however, the Agency and a State could 
agree to use a proposed/final Federal Register notice (as provided for 
under 40 CFR 271.21(b)(4)), if they believed such notice would be more 
appropriate to their circumstances.
    EPA's goal is to authorize State program revisions in a timely way. 
EPA is committed to working with State agencies to address any 
deficiencies or areas of confusion in State applications, and to 
support States as they develop their programs. EPA emphasizes that, 
when processing program revision applications, it would give great 
deference to the State in: (1) interpretation of State laws and 
regulations and the judgement that such laws and regulations provide 
for an equivalent State program; and (2) certifications of State intent 
and capability. As always, EPA encourages States to work closely with 
the Agency when developing revision applications. The Agency has found 
that this ``up front'' investment is often the most effective way to 
streamline authorization.
    c. Clarification of the meaning of the term ``Equivalent'' 
(Sec. 271.21(j)). EPA is taking this opportunity to clarify that the 
term ``equivalent'' means that the proposed State program is no less 
stringent than the Federal program. EPA hopes that this clarification 
allows States and Regions to efficiently focus authorization 
applications and review on the ability of the proposed State programs 
to meet the minimum national standards, rather than on line-by-line 
comparisons of State and Federal regulations. One of EPA's guiding 
principles in developing streamlined authorization procedures for 
program revisions was that State programs do not have to be exactly the 
same as the Federal program to be equivalent, and that EPA should focus 
its authorization review on environmental results.
    EPA is considering applying the definition of ``equivalent'' 
discussed above to all authorization decisions, including authorization 
of Category 1 program revisions, authorization of program revisions 
using the existing regulations, and final authorization as defined in 
40 CFR 271.3. If EPA decided to apply the definition of equivalent to 
all authorization decisions, the definition would be finalized in 40 
CFR 270.2. EPA requests comments on whether or not the definition of 
``equivalent'' discussed above should be applied to all authorization 
decisions and, if commenters believe that the clarification should be 
applied to all authorization decisions, whether or not the definition 
should be finalized in 40 CFR 271.21(j) or 40 CFR 270.2.
    d. Table of Authorization Categories (Sec. 271.21 Table 1). EPA is 
proposing to record rules or parts of rules eligible for Category 2 
authorization procedures and any prerequisite requirements in Table 1 
of 40 CFR 271.21. EPA believes that tabulating the different Category 2 
rules and their prerequisite requirements is the most effective and 
efficient way to present and maintain this information. If the 
procedures for Category 1 proposed in the LDR Phase IV proposal are 
finalized, the information proposed in Sec. 271.28(a) of that proposed 
rule, and any future Category 1 rules and prerequisite requirements, 
would be also presented in table form.
    e. Relationship of Category 1 and 2 procedures to existing 
authorization procedures for program revision, and request for comments 
on the need for a third Category. EPA believes that all revisions to 
authorized State hazardous waste programs required in the future could 
be appropriately addressed using either the Category 1 authorization 
procedures proposed in the LDR Phase IV proposal, or the Category 2 
authorization procedures proposed today. EPA believes that the Category 
1 and Category 2 procedures would be appropriate for all program 
revisions since each retains a level of EPA review appropriate to the 
program revision at issue, and incorporates an opportunity for the 
public to comment on EPA's proposed authorization decisions. Under this 
scenario, the existing program revision procedures in 40 CFR 
271.21(b)(1) would apply only to authorization of rules or parts of 
rules promulgated prior to finalization of the Category 1 and 2 
authorization procedures discussed today.
    Alternatively, EPA could retain the existing program revision 
procedures as Category 3, and use them to authorize major revisions to 
State hazardous waste programs (e.g., States authorized for the first 
time for land disposal restrictions). EPA requests comments on the need 
for a third authorization category and the types of revisions that 
might require that level of review. In addition, EPA is considering not 
changing the current program revision rules, and instead applying the 
streamlined authorization procedures discussed today and in the Phase 
IV proposal as guidance to authorization of existing rules. EPA 
requests comment on the degree to

[[Page 18823]]

which Category 1 and 2 authorization procedures should be used as 
guidance when implementing the current procedures for authorization of 
program revisions.
4. Authorization for Revised Technical Standards for Hazardous Waste 
Combustion Facilities
    Recently, EPA proposed Revised Technical Standards for Hazardous 
Waste Combustion Facilities published in the Federal Register on April 
19, 1996 at (61 FR 17358). In this document, EPA requested comment on 
whether the streamlined authorization procedures that were proposed on 
August 22, 1995, (see 60 FR 43654, 43686) should apply to States 
seeking authorization for this rule. Note that in today's proposed 
rule, those procedures are classified as Category 1.
    In requesting comment on the use of Category 1 procedures in the 
April 19, 1996 combustion standards proposal, EPA made a distinction 
among those States that would be approved to implement the final rule 
pursuant to 40 CFR Part 63, Subpart E (in the Clean Air Act (CAA) 
regulations), those States simply incorporating this rule into their 
RCRA regulations, and those States that would be seeking to implement 
the rule for the first time under RCRA authority. EPA continues to 
believe that the Category 1 procedures would be appropriate for those 
States that would be incorporating the combustion standards rule from 
an already approved State air program into the State RCRA program. 
However, EPA stated in the combustion proposal its belief that for all 
other States, the slightly more extensive authorization procedures 
developed as part of today's HWIR-media proposal would be most 
appropriate. This preference is based on the complexity and 
significance of the combustion standards rule, which substantially 
revises the performance standards for hazardous waste combustion 
facilities. EPA believes that the Category 2 procedures provide the 
benefits of streamlined authorization, while allowing a slightly longer 
period for EPA review.
    Because the Category 2 authorization procedure had not been 
proposed before the combustion standards rule was developed, EPA was 
unable to request comments on whether the proposed Category 2 
procedures should apply to the authorization of those States that did 
not incorporate by reference an approved State CAA program for the 
combustion standards rule. Thus, EPA is now taking the opportunity in 
today's notice to request this comment. EPA will consider comments made 
regarding today's notice when developing the final combustion standards 
rule.
5. Request for Comment on Application of Category 1 Procedures to 
Portions of HWIR-waste Proposal
    In the recent proposal to establish self-implementing exit levels 
for listed hazardous wastes, waste mixtures, and derived-from wastes 
(the HWIR-waste rule), EPA announced that it was considering the 
possibility of using streamlined authorization procedures for some 
portions of the exit rule. (See 60 FR 66344, 66411-12, (December 21, 
1995)). EPA has completed its initial evaluation of this issue, and is 
proposing today to apply the Category 1 procedures set forth in the LDR 
Phase IV rulemaking to major portions of the exit proposal.
    Specifically, EPA is proposing to allow States to use Category 1 
procedures for all portions of proposed 40 CFR 261.36 (the exit levels, 
requirements for qualifying for an exemption based on these levels, and 
the conditions for maintaining an exemption). However, EPA is proposing 
to restrict this option to States that have already obtained 
authorization for the pre-1984 base program, including the 1980 
Extraction Procedure Toxicity Characteristic. (Authorization for the 
1990 Toxicity Characteristic that replaced the EP rule would also be 
acceptable). The two toxicity characteristic rules closely resemble the 
exit proposal. All three rules require waste handlers to determine 
whether their wastes contain specified hazardous constituents in 
concentrations exceeding specified threshold levels. All three schemes 
also are self-implementing, requiring the waste handler to keep records 
but requiring no prior approval by Federal or State authorities. Thus, 
States that have been authorized for the base program have experience 
in drafting rules similar to the proposed exit rule. They also have 
significant experience in enforcing a self-implementing waste 
determination scheme that covers both organic and metallic waste 
constituents. Although the proposed exit scheme for listed waste 
involves many more constituents than either the EP or TC rule, EPA does 
not believe that increasing the number of constituents that waste 
handlers must evaluate would warrant, by itself, a detailed review of 
the State program.
    Neither the base program nor the 1990 Toxicity Characteristic 
include any conditions for maintaining an exit. The conditions proposed 
in Sec. 261.36, however, would be requirements for retesting, 
notification, and record keeping similar to requirements in the base 
program and the TC. Moreover, they would be easy to understand, and 
relatively easy to detect, if violated. Accordingly, EPA believes that 
the Category 1 procedures would be appropriate for these conditions. 
EPA requests comments on its proposal to allow use of Category 1 
procedures for all portions of Sec. 261.36. The proposed Category 1 
procedures are described in detail in the preamble to LDR Phase IV 
proposal at (60 FR 43654, 43687-88, August 22, 1995). Proposed 
regulatory text is set out at (60 FR 43654, 43698-99, August 22, 1995).
    EPA is also proposing to allow States that have obtained 
authorization for the Third Third LDR rule to use Category 1 procedures 
for the alternative ``minimize threat'' treatment standards in proposed 
revisions to Sec. 261.40 and proposed new Sec. 268.49. States that are 
already authorized for the basic framework of the LDR program are 
familiar with the type of rule changes needed, have adopted all or most 
of the underlying LDR program, and have experience in implementing and 
enforcing the rules. The minimize threat levels would merely be 
different numerical alternatives to some of the existing BDAT 
standards. No change to any other portion of the LDR program would be 
required.
    The December 1995 HWIR-waste proposal also contains an option for 
alternative, less restrictive exit levels based on constraining the 
type of management that the wastes will receive. Under this option, 
wastes with higher constituent concentrations would be exempted from 
Subtitle C control if they were not placed in land treatment units. EPA 
believes that this option may present significant new issues not 
previously addressed in the base program or any subsequent program 
revision. Consequently, EPA is not proposing to apply Category 1 
procedures to this portion of the waste exit proposal. Rather, EPA is 
proposing to allow States that wish to adopt this option to use the 
Category 2 procedures proposed in today's proposed rule. EPA requests 
comments on this proposal, and the alternative of allowing States to 
use Category 1 procedures for this ``management condition'' option.
6. HWIR-media Specific Authorization Considerations--Sec. 271.28
    During the development of today's proposed rule, EPA considered a 
number of authorization alternatives before deciding to propose the 
Category 2 authorization procedures discussed above. One approach would 
have based eligibility for final HWIR-media authorization on whether a 
State was

[[Page 18824]]

authorized to implement the corrective action regulations under RCRA 
section 3004(u). Under this approach, all HWIR-media authorization 
applications would have been prepared, reviewed, and approved using 
streamlined procedures,<SUP>30 but States that were not authorized for 
corrective action would have been granted HWIR-media authorization for 
a two-year provisional period. During this period, States would have 
been required to demonstrate their ability to implement an equivalent 
program.
---------------------------------------------------------------------------

    \30\ Although considered prior to development of the streamlined 
Category 1 and 2 authorization procedures discussed today, the 
streamlined procedures considered for HWIR-media authorization most 
closely resembled those proposed as Category 1 in the LDR Phase IV 
proposal.
---------------------------------------------------------------------------

    After careful consideration, EPA tentatively determined that lack 
of corrective action authorization should not prejudice a State's 
ability to receive prompt authorization for the HWIR-media program. 
Many States that are not authorized for corrective action nonetheless 
have highly-developed, sophisticated cleanup programs that they are 
using to address RCRA facilities, sometimes through work-sharing 
agreements with EPA Regions. EPA believes that it would be inefficient 
to require States to undergo a two-year provisional demonstration 
period, if EPA is already familiar with the State's program, and 
confident in the State's ability to make appropriate cleanup decisions. 
In addition, EPA was concerned that a provisional period approach would 
be cumbersome and confusing, because it would rely on two different 
procedures, and because it involved, for States authorized under this 
approach, a significant resource commitment. Instead, EPA decided to 
propose a single authorization approach using the streamlined Category 
2 process discussed above--not only for States authorized for 
corrective action, but for all States that have received final 
authorization for the ``base'' RCRA program. (See footnote #28, 
(V)(E)(2) of this preamble for a definition of the base RCRA program). 
This would allow almost all States to be eligible to use the 
streamlined Category 2 authorization procedures to their applications 
for HWIR-media authorization. An alternative approach to HWIR-media 
eligibility, where States proposing to use authorized hazardous waste 
authorities to implement an HWIR-media program would be authorized 
using the Category 1 authorization procedures, and all other States 
would be authorized using the Category 2 authorization procedures, is 
discussed in section (V)(E)(6)(a) of this preamble for today's proposed 
rule.
    Although EPA did not decide to propose that State authorization for 
HWIR-media be based, in part, on a State's corrective action 
authorization status, the Category 2 procedures proposed today would 
incorporate many of the streamlined procedures contemplated by the HWIR 
FACA Committee. EPA solicits comments on whether the alternative 
discussed above (predicating authorization for HWIR-media on corrective 
action authorization, and requiring non-corrective action authorized 
States to undergo a two-year provisional period) would be more 
appropriate to HWIR-authorization and therefore should be finalized in 
lieu of the approach proposed today. The Agency also requests comment 
on other alternatives that would differentiate between States which are 
authorized for RCRA corrective action, and those which are not.
    a. Eligibility for HWIR-media authorization. EPA proposes that 
authorization to administer an approved HWIR-media program would be 
made available only to those States that have received final 
authorization as defined in 40 CFR 270.2 to implement the base RCRA 
program (the base RCRA program is defined in footnote #28 in section 
(V)(E)(2) of today's preamble). Before granting a State final 
authorization, EPA would determine that the State in question had legal 
and administrative structures in place to implement an equivalent 
program, that the State program was consistent with the Federal program 
and other authorized State programs, and that the State had adequate 
enforcement authorities.
    EPA believes that final authorization would be an essential 
prerequisite to HWIR-media authorization because States that have 
received final authorization are allowed to decide that solid wastes 
met the definition of hazardous wastes. This authority includes the 
authority to make contained-in decisions that are a central element of 
the HWIR-media program. EPA believes that experience making hazardous 
waste decisions would be essential to a State's ability to make 
contained-in decisions for media with concentrations of hazardous 
constituents that are below the Bright Line. In addition, States that 
have received final authorization would have demonstrated capability in 
permitting, ground water protection, oversight, and enforcement of 
hazardous waste management requirements.
    States seeking authorization to implement the new HWIR-media LDR 
treatment standards and treatment variances must first have received 
final or interim authorization for the LDR program through the Third 
Third LDR rule (55 FR 22520, June 1, 1990). As discussed in the Phase 
IV proposal, EPA believes that the LDR Third Third rule established the 
general framework and infrastructure of the LDR program. Since the new 
LDR treatment standards and treatment variances rely on the existing 
infrastructure of the LDR program, EPA believes that it would be 
necessary for States to be authorized for the LDR Third Third rule 
before they could be authorized to implement those portions of the 
HWIR-media program. EPA requests comments on whether the Third Third 
LDR rule would be the appropriate prerequisite requirement for 
authorization of the changes to the LDR program proposed today. If 
commenters believe that the Third Third LDR rule is not appropriate, 
EPA requests suggestions for an alternative prerequisite (e.g., the LDR 
Solvents and Dioxins Rule, (51 FR 40572, November 7, 1986)).
    States that have not received final authorization or LDR 
authorization could seek HWIR-media authorization concurrently with, or 
subsequent to, those authorizations. Unauthorized States could work 
with EPA under cooperative agreements to implement the HWIR-media 
program, if interested.
    Alternative proposal for HWIR-media eligibility. Alternatively, EPA 
could allow States that are planning to use authorized hazardous waste 
authorities to implement the HWIR-media program to use the generic 
procedures for Category 1 for HWIR-media authorization, and reserve the 
generic Category 2 procedures for States proposing to implement the 
HWIR-media with non-authorized authorities (e.g., State Superfund-like 
authorities). This approach would allow streamlined authorization 
procedures to apply to almost all States by retaining the prerequisite 
of final RCRA base program authorization (rather than corrective action 
authorization), and would provide States proposing to use authorities 
familiar to EPA with the most streamlined procedures available.
    EPA requests comments on this alternative to HWIR-media 
authorization eligibility, and whether or not this approach should be 
finalized in lieu of the eligibility approach discussed above. EPA also 
requests general comments on the feasibility of determining 
authorization categories based on the type of authority a State 
proposes to use, rather than on the impact or significance of the 
program revision at issue.

[[Page 18825]]

    Authorization of tribes. EPA is currently developing a proposal to 
clarify the eligibility of tribes to receive authorization to 
administer their own hazardous waste programs. The proposal would 
discuss in detail existing RCRA authorities that EPA believes allow 
tribes to seek full or partial hazardous waste program authorization. 
If this proposal is finalized, any tribe that wishes to obtain final 
base RCRA program authorization would likewise be eligible for HWIR-
media authorization. Tribes that choose to receive only partial 
authorization would not be eligible to obtain HWIR-media authorization, 
since the scope of such a partial program would be limited. EPA 
believes that in order to adequately implement the HWIR-media program, 
a tribe (like a State) should receive final authorization to implement 
the base RCRA program.
    b. HWIR-media essential elements (Sec. 271.28(a)). EPA may choose 
to establish essential elements for any Category 2 rule. As discussed 
above (see preamble section (V)(E)(3)(b)(i)), the purpose of essential 
elements is to focus State and EPA resources on critical program 
components.
    EPA believes that essential elements would be especially important 
when authorizing States to implement the HWIR-media program because it 
anticipates that many States would seek authorization for HWIR-media 
using existing, non-RCRA, State authorities. For example, some States 
could choose to rely on State Superfund-like authorities that could 
address a broader universe of sites and/or wastes than the RCRA 
corrective action or HWIR-media programs, and provide considerable 
flexibility and discretion to State agencies in specification of 
cleanup requirements. Alternatively, some States could choose to rely, 
in part, on a program that is less comprehensive than the Federal HWIR-
media program. For example, a State could choose to rely on its 
pesticide management authorities to implement the HWIR-media program 
for media that were contaminated with pesticides. EPA believes that the 
HWIR-media essential elements would help State and Federal staff 
efficiently determine if these non-RCRA State authorities provide for 
equivalent State programs. EPA believes that the States' reliance on 
broad or flexible authority should not make approval of HWIR-media 
revision applications more difficult, as long as the State clearly 
provided for implementation of the HWIR-media program essential 
elements.
    EPA has identified the following essential elements for the HWIR-
media program:
    (i) Authority to address all media that contain hazardous wastes 
listed in Part 261, Subpart D of this chapter, or that exhibit one or 
more of the characteristics of hazardous waste defined in Part 261, 
Subpart C of this chapter.
    (ii) Authority to address the hazards associated with media that 
are managed as part of remedial activities and that the Director has 
determined do not contain hazardous wastes (according to Part 269), but 
would otherwise be subject to Subtitle C regulation. States that choose 
to make contained-in decisions only when concentrations of hazardous 
constituents in any given media are protective of human health and the 
environment, absent any additional management standards (i.e., eatable, 
drinkable concentrations), may receive HWIR-media authorization without 
certifying their ability to impose management standards on media that 
no longer contain hazardous waste.
    (iii) Authority to include, in the definition of media, materials 
found in the natural environment such as soil, ground water, surface 
water, and sediments, or a mixture of such materials with liquids, 
sludges, or solids that are inseparable by simple mechanical removal 
processes and made up primarily of media.
    (iv) Authority to exclude debris (as defined in Sec. 268.2) and 
non-media remediation wastes from the requirements of Part 269 (except 
those for Remediation Management Plans).
    (v) Authority to use the contained-in principle (or equivalent 
principles) to remove contaminated media from the definition of 
hazardous wastes only if they contain hazardous constituents at 
concentrations at or below those specified in Appendix A.
    (vi) Authority to require compliance with LDR requirements listed 
in Sec. 269.30 through Sec. 269.34.
    (vii) Authority to issue, modify and terminate (as appropriate) 
permits, orders, or other enforceable documents to impose management 
standards for media as described in essential elements 1-6 and 8 and 9.
    (viii) Requirements for public involvement in management decisions 
for hazardous and non-hazardous media as described in Sec. 269.43(e).
    (ix) Authority to require that data from treatability studies and 
full scale treatment of media that contain hazardous waste be submitted 
to EPA for inclusion in the NRMRL treatability database.
    The essential elements of HWIR-media programs are proposed in 40 
CFR 271.28(a).
    The preceding essential elements were developed for the proposed 
options included in today's proposed rule. If EPA chooses to finalize 
the alternatives discussed in this proposal, rather than the proposed 
options, then the essential elements will be revised to represent the 
final version of today's rule more accurately.
    The Agency requests comments on the essential elements proposed for 
HWIR-media authorization. The Agency also requests comments on whether 
essential elements in general should be promulgated as rules, or 
suggested as guidance only.
    Specifically, the Agency requests comment on the essential element 
(viii) for public participation. Many cleanups, particularly if they 
were short term, or involved wastes that would not remain on site, 
could warrant less public participation. For example, if a State agency 
were cleaning up spilled petroleum in soil, which exhibited the 
hazardous TC characteristic for benzene, and the remedy called for 
digging it up immediately for off-site treatment or disposal, should 
the Agency wait to clean up the site until it was in compliance with 
the public participation requirements described above? Should the final 
rule allow for different degrees of public participation depending on 
the nature of the activities being performed? Should EPA allow 
decisions to be made on a site-specific or case-specific basis about 
the level of public participation necessary?
    c. Monitoring of State HWIR-media programs and program withdrawal 
(Sec. 271.28(b)). The Agency is not proposing requirements for 
monitoring of State HWIR-media programs; however, a discussion of how 
EPA expects this monitoring should take place is included below. The 
procedures for partial program withdrawal discussed below were 
developed by the HWIR-media workgroup to complement the streamlined 
authorization procedures anticipated for HWIR-media.
    A number of changes have occurred since these procedures were 
developed. First, EPA has chosen to propose generic, streamlined 
authorization procedures rather than establish authorization procedures 
specific to the HWIR-media rule. (See the above discussion of Category 
1 and 2 program revision authorization procedures in section 
(V)(E)(3)). Second, the authorization procedures for the HWIR-media 
rule, while significantly streamlined from the existing procedures for 
authorization of program

[[Page 18826]]

revisions, include a level of EPA review not anticipated by the 
workgroup when monitoring and partial program withdrawal procedures 
were developed.
    EPA has also addressed the oversight and monitoring of authorized 
State programs more generally through a number of Agency workgroups and 
initiatives. EPA requests comments on the degree to which the 
monitoring procedures discussed below should be considered for 
application beyond the HWIR-media rule. In addition, EPA requests 
comments on whether partial program withdrawal would be feasible, and 
whether such a provision would be necessary.
    i. Monitoring of State HWIR-media programs. EPA believes that some 
monitoring of State programs is necessary to ensure that the 
considerable flexibility provided by today's proposed rule would be 
implemented in a way that is protective of human health and the 
environment. This was a particular concern to stakeholders during the 
development of today's proposed rule because it allows a more 
streamlined authorization for program revisions. For this reason, 
stakeholders were concerned that State programs might not receive 
sufficient up-front review prior to authorization to ensure that the 
program would be conducted protectively.
    EPA currently conducts routine monitoring of State programs in 
order to identify conflicting EPA and State priorities, or areas where 
the State program seems to be significantly at variance with Federal 
rules or guidance. The purpose of routine monitoring is not to direct 
the priorities or site-specific implementation decisions of any given 
State program, but to identify problematic trends in the program. 
Typically, the procedures for routine State program monitoring are 
specified in the State/EPA Memorandum of Agreement, the annual or 
biannual State/EPA Grant Workplan, or other written State/EPA 
agreements. Often, routine State program monitoring will include mid- 
and end-of-year State/EPA meetings, periodic oversight inspections, and 
review of State files or enforcement cases.
    EPA believes that most concerns regarding a State's implementation 
of its authorized HWIR-media program could be resolved through routine 
State program monitoring activities. If concerns regarding a State's 
HWIR-media program implementation cannot be resolved during routine 
monitoring, EPA would identify those concerns and propose options for 
resolution. Depending on the degree of EPA's concerns, the Agency would 
increase its monitoring of the State program accordingly. When serious 
concerns are identified, and when a State's failure to address these 
concerns adequately would cause significant risk to human health or the 
environment, EPA would warn the State, in writing, that the State's 
HWIR-media authorization could be withdrawn.
    Decisions to increase the monitoring of State programs could be 
made by EPA based on the Agency's own information, or based on 
information submitted by independent third parties who allege poor or 
inadequate performance by the State HWIR-media program. (See proposed 
40 CFR 271.28(d)). EPA would consider such allegations when making 
decisions about the level of program monitoring necessary in an HWIR-
media authorized State. Third party allegations are also discussed in 
the section of this preamble that addresses withdrawal of authorized 
State HWIR-media programs.
    ii. Program withdrawal (Sec. 271.28(b)). In the event that EPA and 
the State could not resolve their differences during program 
monitoring, EPA could choose to withdraw the State's HWIR-media program 
authorization. Program withdrawal would be for the HWIR-media portion 
of the State's authorization program only.
    EPA would not withdraw HWIR-media authorization without first 
providing the State an opportunity to address EPA's concerns using the 
monitoring discussed above. In addition, EPA would not withdraw HWIR-
media authorization without first giving the State clear, written 
warning that program withdrawal was imminent.
    EPA proposes that, in addition to program withdrawal initiated for 
cause by EPA, any person could petition EPA at any time to withdraw a 
State's HWIR-media program authorization based on allegations that the 
program fails to meet the minimum national standards for an HWIR-media 
program as set forth in 40 CFR 271.28(a), and discussed in today's 
proposal. Whenever such petitions are received, EPA would provide 
copies of the petition and all supporting documentation to the State 
and allow the State at least 30 days to respond. Following the State's 
response and any independent EPA investigation, EPA would respond to 
all third-party allegations in writing.
    When EPA determines that a State's HWIR-media program authorization 
should be withdrawn, EPA will publish its tentative decision to 
withdraw the State's HWIR-media program in the Federal Register, and 
provide the public, including the State, at least 60 days to review and 
comment on the tentative program withdrawal determination. If 
requested, EPA would also hold an informal public hearing. At the close 
of the review and comment period, EPA would publish its final decision 
regarding withdrawal of the State's HWIR-media program in the Federal 
Register. EPA's notice of final decisions would include responses to 
any significant comments received during the public review and comment 
period.
    Following withdrawal of a State's HWIR-media program, EPA would 
administer the HWIR-media program in that State using the Federal 
standards for HWIR-media, and Federal enforcement authorities. (See 
Sec. 271.28(c)). EPA believes it is important for HWIR-media program 
implementation to continue even in States that lose their HWIR-media 
program authorization because reverting to existing RCRA Subtitle C 
hazardous waste management requirements would disrupt and delay the 
cleanup process. In addition, since States that receive HWIR-media 
authorization would expect that management standards for contaminated 
media would be tailored to specific cleanup sites through the HWIR-
media process, EPA believes that it would be appropriate to continue 
implementation of the program for new cleanups even if a State's HWIR-
media program authorization is withdrawn. Otherwise, management 
standards could revert to the existing RCRA standards for hazardous 
waste once a State's authorization for HWIR-media was withdrawn; then, 
the State would no longer be able to approve Remediation Management 
Plans (RMPs) or make contained-in decisions for contaminated media. 
Remediation Management Plans that were approved by the State prior to 
the withdrawal of its HWIR-media program would remain in effect. 
However, EPA could use Federal enforcement authorities to impose 
additional management requirements in these RMPs as necessary to ensure 
protection of human health and the environment.
    d. HWIR-media authorization in States that can be no more stringent 
Than the Federal Program. Some States' statutes prohibit the 
promulgation of any rules that are more stringent than Federal RCRA 
regulations. EPA does not believe that such statutes would prohibit 
States from adopting and implementing any portion of Part 269, 
including decisions to continue regulation of media with constituent 
concentrations below Bright Line concentrations as hazardous. As 
proposed, this media management decision would be completely 
discretionary with the overseeing

[[Page 18827]]

agency. Consequently, it would be impossible to argue that a State that 
chooses to continue regulation of contaminated media under Subtitle C 
would be ``more stringent'' than the Federal RCRA program. As proposed, 
the Bright Line would not automatically reclassify media, even under 
the Federal RCRA program. Rather, it would act as a ``ceiling'' below 
which an agency overseeing cleanup of a site would have the authority 
and discretion to determine whether the media should continue to be 
managed as hazardous waste.
    States that could be no more stringent than the Federal program 
might, however, be required to adopt regulations equivalent to the new 
regulations for LDR treatment standards and media treatment variances 
and remediation piles. Since these new requirements would be less 
stringent than the existing requirements, a State that is prohibited 
from having more stringent regulations might be required to provide 
equivalent flexibility.
7. Effect in Authorized States
    Under section 3006 of RCRA, EPA may authorize qualified States to 
administer and enforce the RCRA program within the State. Following 
authorization, EPA retains enforcement authority under section 3008, 
3013, and 7003 of RCRA, although authorized States have primary 
enforcement responsibility.
    Prior to the Hazardous and Solid Waste Amendments of 1984 (HSWA), a 
State with final RCRA authorization administered the State hazardous 
waste program, in lieu of EPA administering the Federal program in that 
State. When new, more stringent, Federal requirements were promulgated 
or enacted, authorized States were required to update their hazardous 
waste programs within specified time frames to remain equivalent to the 
Federal program, as revised. States were not required to update their 
hazardous waste programs to conform to new Federal requirements that 
were less stringent than the authorized State program. New Federal 
requirements did not take effect in authorized States until the State 
adopted the requirements as State law and received authorization to 
implement the new requirements (in lieu of the Federal program).
    In the HSWA amendments of 1984, Congress specified that the new 
requirements enacted in the amendments and all implementing regulations 
promulgated by EPA would take effect immediately in authorized and non-
authorized States. (See RCRA section 3006(g); 42 U.S.C. 6926(g)). While 
States are still required to update their authorized hazardous waste 
programs to remain equivalent to the Federal program, EPA is directed 
to carry out HSWA requirements in authorized States until the State 
modifies its program, and receives final or interim authorization.
    Since EPA modifies portions of the Federal hazardous waste program 
enacted prior to the HSWA amendments and portions of the Federal 
program enacted by the HSWA amendments, there are different time frames 
by which revisions to the Federal RCRA program become effective in 
authorized States. New, more stringent, Federal regulations that are 
promulgated pursuant to the pre-HSWA program do not take effect in 
authorized States until the State modifies and updates its hazardous 
waste program. New, more stringent, Federal regulations promulgated 
pursuant to the HSWA amendments take effect immediately in authorized 
and non-authorized States, and are implemented by EPA until the State 
adopts the new requirements and revises its authorized program. New 
Federal regulations (HSWA and pre-HSWA program) that are considered 
less stringent than the existing Federal or authorized State programs 
are optional for States to adopt and do not go into effect unless and 
until States adopt them, and are authorized to implement the provisions 
in lieu of EPA (except for less stringent HSWA requirements that are in 
effect and implemented by EPA in unauthorized States, such as Alaska). 
To ensure that authorized State programs accurately reflect the Federal 
program, States are required to update their authorized hazardous waste 
programs to incorporate all more stringent Federal regulations within 
the time frames specified in 40 CFR 271.21(e).
    Today's proposal is promulgated in part pursuant to pre-HSWA 
authority, and in part pursuant to HSWA. The following sections of this 
proposed rule are proposed pursuant to pre-HSWA authority: (1) 
Codification of the contained-in policy for constituents lacking Bright 
Line concentrations; (2) Bright Line concentrations and decisions that 
media no longer contain hazardous waste; and (3) RMP issuance for 
management of remediation wastes that contain hazardous wastes. The 
following elements of today's proposal are proposed pursuant to HSWA 
and would be modifications to the existing HSWA program that would 
cause the Federal program to become less stringent: (1) LDR treatment 
requirements for hazardous contaminated soil addressed under new Part 
269; (2) new regulations for remediation piles; (3) media treatment 
variances; and (4) interpretations that RCRA section 3004 (u) and (v) 
do not apply to cleanup-only facilities. In today's proposal, 
revocation of the CAMU regulations would be more stringent than 
existing HSWA regulations.
    In general, today's proposal is less stringent than the existing 
Federal hazardous waste program and, therefore, optional for States to 
adopt. The sole exception is the proposed revocation of the CAMU 
regulations, which would be considered more stringent, and would thus 
require adoption by States within the time frames set forth in 40 CFR 
271.21(e). These time frames would provide that State modifications be 
made within one year of the date of the Federal program change, or 
within two years if State statutory amendments are necessary.
    Since the bulk of the HWIR-media program proposed today is less 
stringent than the existing Federal RCRA program, it would not be 
effective in authorized States unless and until the State chose to 
adopt it and become authorized. EPA believes that the relief provided 
by the HWIR-media program would significantly increase the speed and 
efficiency of cleanups. Therefore, States seeking authorization for a 
HWIR-media program would be encouraged to use their existing State 
enforcement authorities to provide for HWIR-media style relief while 
their authorization applications were being reviewed.
    a. Pre-HSWA requirements. The pre-HSWA requirements proposed today 
would be less stringent than the existing RCRA requirements. Because 
they would be less stringent, they would be optional for States to 
adopt, and would not take effect in authorized States unless and until 
the State adopted and became authorized for them. States with final 
authorization (or States seeking final authorization concurrently with 
this rule), that choose to obtain authorization for today's HWIR-media 
rule, would have to adopt requirements that were no less stringent than 
the requirements specified in Part 269. States that seek final program 
authorization after finalization of HWIR-media regulations could choose 
to apply for final program authorization without the HWIR-media 
program.
    b. HSWA Requirements. The HSWA requirements proposed today (with 
the exception of CAMU revocation) would relate to the Land Disposal 
Restriction (LDR) program, and would be less stringent than existing 
LDR requirements. They would be, therefore, optional in HSWA authorized 
States

[[Page 18828]]

and would not go into effect unless and until a State adopted and 
became authorized for them. Normally, less stringent HSWA requirements 
automatically take effect in non-HSWA authorized States. However, the 
Part 269 LDR treatment requirements would not take effect because they 
apply only to cleanup wastes addressed under a Part 269 program. Thus, 
they would become effective in non-HSWA authorized States only when 
such States obtain authorization to run a Part 269 program. States 
authorized for the LDR program that choose to obtain HWIR-media 
authorization, would have to adopt requirements that would be at least 
as stringent as the LDR requirements specified in Part 269. States that 
seek LDR authorization after promulgation of final HWIR-media 
regulations would have to adopt requirements no less stringent than the 
existing (non-Part 269) Federal LDR program, if they chose not to seek 
authorization for today's HWIR-media requirements.
    Media treatment variances. Under current regulations at 40 CFR 
268.44, EPA may grant waste- or site-specific variances from treatment 
standards in cases where it can be demonstrated that the treatment 
standard is inappropriate for the waste, or that the waste cannot be 
treated to specified levels, or treated by specified methods. Today's 
proposed rule would retain the availability of treatment variances in 
the implementation of the HWIR-media program, and establish HWIR-media 
specific treatment variance procedures for media managed under Part 
269. The Agency is clarifying today that States could seek 
authorization for both the site-specific treatment variance procedures 
in 40 CFR 268.44, and the HWIR-media specific treatment variance 
procedures proposed in Part 269. EPA is aware that some States, 
especially States that chose to adopt the Federal LDR program by 
reference, could have already received authorization to issue site-
specific LDR treatment variances under 40 CFR 268.44. Because there has 
been some confusion about this issue, and because EPA's current 
proposal would encourage States to become authorized for treatment 
variances, EPA requests the States to note in their HWIR-media program 
revision application, or other authorization application, or in 
official correspondence, whether or not they believe that they have 
been authorized for site-specific LDR treatment variances under 40 CFR 
268.44. EPA would then evaluate that aspect of a State submittal to 
confirm the State's authorization for treatment variances. EPA requests 
comments on this proposal, especially from States that believe they are 
already authorized to approve LDR treatment variances.
    CAMU revocation. EPA is proposing today to revoke the CAMU 
regulations at 40 CFR 264.552 and to ``grandfather'' CAMUs approved 
prior to the publication date of the final HWIR-media rule. Since 
revocation of the CAMU regulations would remove that option at the 
Federal level, even States that have adopted CAMU regulations as a 
matter of State law and/or become authorized for CAMUs would be blocked 
from approving new CAMUs by this date, when these more stringent 
Federal rules would go into effect. Of course, States could still use 
their CAMU regulations for non-hazardous wastes at their discretion, or 
for media that do not contain hazardous wastes (and that are not 
subject to LDRs).
    In order to ensure that requirements for ``grandfathered'' CAMUs 
remain enforceable, States that have already been authorized for the 
CAMU regulations, and that choose to grandfather CAMUs, should retain 
their CAMU regulations (for those grandfathered CAMUs) until those 
CAMUs have expired or are terminated. States would be required, 
however, to make clear that existing State CAMU regulations would not 
be used to grant any new CAMUs for management of Federally hazardous 
waste after the date of publication of the final HWIR-media rule.
    c. Examples. The following examples illustrate the effect of 
today's proposed rule in authorized States.

    Example One: The State has received final base program 
authorization but has not yet been authorized for the land disposal 
restriction program.
    Because the State has received final base program authorization, 
and the pre-HSWA HWIR-media regulations proposed today are less 
stringent than the existing program, the pre-HSWA HWIR-media 
regulations would not be effective in the State unless and until the 
State adopted and became authorized for them.
    Since EPA would still be implementing the LDR program in the 
State, the Part 269 LDR treatment requirements for hazardous 
contaminated media and treatment variances for contaminated media 
would be effective immediately upon approval of the State's HWIR-
media program, and would be implemented by EPA until the State 
received the necessary LDR program authorization. On the other hand, 
the new remediation pile provisions would become effective 
immediately in non-HSWA authorized States, because they are HSWA 
requirements that are not specific to the Part 269 program.
    Example Two: The State has received final base program 
authorization, and is also authorized for the land disposal 
restriction program through the Third Third LDR rule.
    Since the State has received final authorization and the pre-
HSWA HWIR-media regulations proposed today are less stringent than 
the existing program, the pre-HSWA HWIR-media regulations would not 
be effective unless and until the State adopted and became 
authorized for them, as discussed in example one. Similarly, since 
the State would be authorized for the land disposal restriction 
program, and the remediation pile provisions (which are considered 
HSWA provisions because they affect LDRs) proposed today are 
considered less stringent than the existing LDR program, the 
remediation pile provisions proposed today would not be effective in 
the State unless and until the State adopted and became authorized 
for them.
    For the less stringent Part 269 treatment standards, as 
explained in example one, these would not become effective in the 
State until the State chose to adopt a Part 269 program. Because the 
State would already be authorized for a sufficient LDR program, the 
State could also be authorized to run the LDR program of the HWIR-
media program.
    Example Three: The State is authorized for the corrective action 
management unit rule.
    The CAMU revocation provision proposed today is the only 
provision that is more stringent than the existing Federal RCRA 
program and, therefore, mandatory for States to adopt. In addition, 
because revocation of the CAMU regulations would remove that option 
at the Federal level, even States that have adopted CAMU regulations 
as a matter of State law would be blocked from implementing those 
regulations when more stringent Federal rules take effect (date of 
publication of final HWIR-media rule).
8. Request for Comment on EPA's Approach to Authorization
    EPA requests general comments on the approach to authorization 
outlined in today's proposal. In addition, as discussed above, EPA 
specifically requests comments that address the following issues and 
areas:
    a. The use of differential authorization procedures for State 
program revisions, and whether the Category 2 authorization procedures 
discussed today would sufficiently recognize the sophistication of 
State programs while maintaining an appropriate level of EPA review. 
EPA is specifically interested in the ability of these procedures to 
adequately address evaluation of a State's capability to implement any 
given program revision;
    b. The effect of differential authorization procedures, if any, on 
State's and EPA's ability to cluster authorization applications (i.e., 
the ability to prepare and review program revision applications that 
address more than one rule at the same time);
    c. Whether the Category 2 procedures discussed today would be 
appropriate for authorization of the HWIR-media regulations, and other 
types of

[[Page 18829]]

regulations which these procedures should address;
    d. The degree to which the authorization approach proposed today 
would, in practice, streamline and make preparation, review, and 
approval of State program revision applications more efficient;
    e. The use of essential elements to target authorization 
applications and review and whether essential elements should be 
specified in regulations or discussed in preambles as guidance;
    f. The need for a third authorization Category to address major 
revisions to State programs, the types of program revisions a third 
Category might address, and the potential requirements and procedures 
for a third Category;
    g. The degree to which the Category 1 and 2 authorization 
procedures discussed today should be applied as guidance when 
authorizing existing rules using the current program revision 
procedures;
    h. The clarification of the definition of equivalent, and whether 
the proposed definition should be used for all authorization decisions, 
or only for the Category 2 authorization decisions discussed in today's 
proposal;
    i. The use of Category 2 authorization procedures for authorization 
of those States not incorporating an approved State CAA program for the 
combustion standards rule by reference (as discussed in section 
(V)(E)(4) of today's preamble);
    j. The alternative approach to HWIR-media authorization discussed 
in section (V)(E)(6)(a);
    k. Whether final base-program authorization is the appropriate 
prerequisite requirement for authorization of the general HWIR-media 
program;
    l. Whether authorization for the LDR Third Third rule is the 
appropriate prerequisite requirement for authorization of the LDR 
portion of the HWIR-media rule;
    m. The alternative approach to HWIR-media eligibility that would 
allow States proposing to use previously authorized authorities to 
implement an HWIR-media program to use the Category 1 authorization 
procedures, discussed in section (V)(E)(6)(a);
    n. The approach to authorization of LDR treatment variances 
discussed in section (V)(E)(7)(b);
    o. The degree to which the monitoring procedures discussed today 
would conform to the program monitoring procedures currently in place;
    p. Whether the monitoring procedures discussed today are necessary, 
whether they should be codified for the HWIR-media rule, and whether 
they should be considered for application beyond the HWIR-media rule;
    q. The feasibility of partial program withdrawal and the necessity 
for such a provision;
    r. The proposed and alternative approaches to HWIR-media 
implementation following program withdrawal;
    s. The effect today's proposed approach to authorization might have 
on a State's desire to seek authorization for a State HWIR-media 
program; and
    t. Other suggestions for improvements to the authorization process.

F. Corrective Action Management Units--Sec. 264.552

    Today's proposed rule, at Sec. 264.552, would withdraw the existing 
regulations for Corrective Action Management Units (CAMUs), which were 
promulgated on February 16, 1993 (58 FR 8658). Today's proposal for 
Part 269 would replace much of the flexibility under the current CAMU 
regulations as they apply to contaminated media. EPA does not intend to 
withdraw the CAMU regulations without, at the same time, substituting 
one of today's options in its stead.
    States with existing CAMU regulations would need to come in for 
program revisions, to make their programs as stringent as the Federal 
program. Today's proposal would also grandfather CAMUs that have 
already been approved by EPA and the States, by the publication date of 
the final HWIR-media rule. The original CAMU rulemaking also included 
provisions for temporary units to be used for management of cleanup 
wastes. These provisions would not be affected under today's proposal, 
thus the Agency is not reopening these requirements for comment at this 
time.
    The CAMU rule was the Agency's initial attempt to resolve many of 
the problems that have been encountered by EPA and State cleanup 
programs in applying the prevention-oriented Subtitle C regulations 
(specifically, the land disposal restrictions (LDRs) and minimum 
technology requirements (MTRs)) to the management of cleanup wastes. 
The rule has allowed regulators to designate an area at a facility as a 
CAMU, and has specified that placement of cleanup wastes into a CAMU 
does not trigger LDR or MTR requirements that would otherwise apply. 
Because the rule was designed to provide flexibility to regulators for 
prescribing site-specific management requirements for cleanup wastes, 
the regulations do not prescribe specific standards for design or 
operation of CAMUs, or generic national treatment standards for cleanup 
wastes that are managed in CAMUs. Since its promulgation, the final 
CAMU rule has been used by EPA's Superfund program, the RCRA corrective 
action program, and other State cleanup programs. However, the actual 
number of CAMUs that have been approved to date is relatively small. 
EPA is aware of fewer than twenty CAMUs that have been approved.
    Some parties have argued that the CAMU rule allows regulators too 
much discretion in determining appropriate, site-specific management 
requirements for cleanup wastes. Those parties support the idea of 
having some type of minimum national LDR treatment standards for 
cleanup wastes (especially for sludges and other non-media wastes), 
rather than allowing regulators to specify treatment requirements on a 
case-by-case basis.
    When the HWIR-FACA Committee was initiated, EPA, and most of the 
State participants on the committee, agreed to consider whether the 
CAMU regulations should be modified or replaced with a different 
regulatory approach.
    The Agency is proposing to replace the existing CAMU regulations 
with today's proposed rule, except that it would retain existing CAMUs 
approved prior to publication of the final HWIR-media rule. The Agency 
believes that much of the site-specific flexibility provided in the 
CAMU rule has been preserved in this proposal, especially for less-
contaminated media. Further, the proposal would modify the minimum LDR 
treatment standards specified in the Part 269 regulations specifically 
to be more compatible with the realities of treating contaminated 
media. Today's proposal should also minimize potential disruptions to 
site cleanups that are planned or underway, since existing CAMUs 
approved prior to the publication date of a final HWIR-media rule could 
continue to operate until their cleanup activities are complete. (See 
discussion below.)
    At the same time, the Agency believes that the CAMU rule has been 
used successfully to expedite cleanups, and that it has provided much 
needed flexibility for remedial actions at RCRA corrective action and 
Superfund. Furthermore, replacing the CAMU regulations with today's 
HWIR-media rules could have a significant impact in some situations, 
particularly in remedies involving sludges and other non-media wastes. 
The proposal would cover only contaminated media, whereas all types of 
cleanup wastes can be managed in CAMUs. Actually, a number of the CAMUs 
that have already

[[Page 18830]]

been approved will be managing sludges from cleanups. Thus, the 
flexibility provided under the proposed HWIR-media rule would apply to 
a more limited spectrum of cleanup wastes. Sludges and other non-media 
cleanup wastes would be subject to the traditional hazardous waste 
regulations, including LDRs and MTRs. (See discussion in section 
(V)(A)(2) of this preamble.)
    Therefore, the Agency requests comments on what benefits might 
accrue if the CAMU rule were retained. (See letter from M. L. Mullins, 
Vice President-Regulatory Affairs, Chemical Manufacturers Association, 
to Michael Shapiro, Director, Office of Solid Waste, EPA (August 22, 
1995).) Specifically, the Agency requests comments on what the 
ramifications may be of failing to provide the degree of relief that 
the CAMU rule has provided. The Agency is also interested in ways that 
the CAMU might be modified to target the CAMU provisions on wastes that 
pose lower risks. For example, the Agency could incorporate a Bright 
Line approach in CAMU.
    Today's proposed rule would grandfather CAMUs that were approved 
before the publication date of this rule. Thus, an owner/operator who 
was conducting a cleanup that involved an approved CAMU would be able 
to continue using the unit until the cleanup is complete, under the 
terms of the permit or order. EPA believes that this provision is 
reasonable and would help avoid delays and disruptions to ongoing 
cleanup actions. In addition, EPA believes that not providing this type 
of grandfathering would raise important questions of fairness because 
they were approved according to the regulations in effect at the time, 
and because EPA has encouraged the use of CAMUs when the flexibility 
they provide is necessary to selecting and implementing sensible, 
protective remedies.
    EPA considered various grandfathering options for CAMUs, such as 
establishing a certain time limit (e.g., one year) for operating 
existing CAMUs after the Part 269 rules were promulgated. EPA does not 
believe that such a limitation would be necessary or desirable. Some 
remedies require several years to fully implement, and could be 
adversely affected if an existing CAMU had to cease operations. For 
example, risks of exposure to highly contaminated sites could continue 
for several more years while the regulators, owners, and operators 
negotiate a new site remedy, instead of implementing the CAMU remedy 
they had already agreed upon and determined would be protective. The 
CAMUs that have been approved to date have been a key factor in 
accelerating the cleanup process and allowing protective remedies to be 
implemented at considerable cost savings.
    If today's rule is finalized as proposed, States that have adopted 
the CAMU regulations would be required to revise these regulations 
after the publication of final HWIR-media regulations in order to 
remain as stringent as the Federal program. (Except when the State CAMU 
rules are as stringent as the current Federal program, for example, in 
requiring wastes to be treated to LDRs before being placed in a CAMU.) 
Of course, States would still be allowed to use the Area of 
Contamination (AOC) concept, which would not be changed by today's 
proposal (55 FR 8666, 8758-8760, March 8, 1990; and also the 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)). More 
discussion on State authorization for these HWIR-media rules is 
presented in section (V)(E) of this preamble.

G. Remediation Piles--Secs. 260.10 and 264.554

    Today's rulemaking proposal would establish a new type of unit--
remediation piles--that would preserve needed flexibility for 
conducting certain types of cleanup activities. Proposed Sec. 260.10 
specifies the following definition:

    Remediation Pile means a pile that is 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 would appear in Sec. 260.10, where most of the RCRA 
hazardous waste regulatory definitions are codified, rather than in 
Sec. 269.3, which defines terms specific to the Part 269 regulations. 
This is because remediation piles would be able to accept all types of 
remediation wastes, rather than only hazardous contaminated media. As a 
result, remediation piles could be approved for remedial actions that 
are not regulated by Part 269.
    The primary reason for creating this new type of unit is that under 
current regulations, waste piles are considered land disposal units, 
and all hazardous wastes must be treated to LDR standards before being 
placed into the pile. Remediation piles, however, would not be 
considered land disposal units under this proposed rule; they are not 
listed in section 3004(k), (see discussion below); and these 
regulations clearly specify that they may be used only for temporary 
treatment or storage of cleanup wastes. For reasons noted below, the 
Agency believes that this type of unit, which would not trigger LDRs, 
would provide necessary flexibility in situations where application of 
the LDRs would create obstacles to common sense remedies.
    One of the principal goals of this proposed rule is to achieve a 
net environmental benefit by facilitating the cleanup of as many 
contaminated sites as possible. The Agency also believes that 
remediation piles would be necessary to facilitate the cleanup of many 
previously contaminated sites. The physical, economic, and technical 
limitations on the operation of a cleanup program could dictate that 
remediation wastes be temporarily stored and/or concentrated in a 
centralized location onsite prior to completion of the remedial 
activity. Similarly, once the wastes had been placed in a remediation 
pile it could be advantageous to begin some form of treatment or 
pretreatment to reduce the level of threat posed by the wastes prior to 
its ultimate disposal.
    Because of the potentially large volumes of contaminated media 
encountered during remedial action, prohibiting such wastes from being 
temporarily treated or stored in onsite piles (unless it met LDR 
standards) would be counterproductive since it would be a disincentive 
to the cleanup activities. The Agency believes that the temporary 
existence of a controlled activity using a remediation pile would be 
preferable to the continuing, unmanaged presence of contaminated media, 
and the resulting threat against human health and the environment, for 
an indefinite period of time. In endorsing the idea of remediation 
piles, the Agency is in no way authorizing the indefinite operation of 
the piles, or the use of them for permanent disposal. The obligatory, 
temporary nature of remediation piles is the primary difference between 
the piles and the previously used CAMUs.
    The design and operating requirements for remediation piles are 
specified in proposed Sec. 264.554. Although these provisions are being 
proposed in Sec. 264.554, remediation piles could also be approved 
under orders, and at interim status facilities. As explained above, 
placement of remediation wastes into a remediation pile would not 
trigger RCRA land

[[Page 18831]]

disposal restrictions, because such placement would not constitute 
``land disposal'' according to RCRA Sec. 3004(k)'s definition of land 
disposal. For a further discussion of the Agency's position that would 
be reasonable to interpret Sec. 3004(k) to exclude placement of 
remediation wastes into units used solely for cleanup purposes. (See 58 
FR 8658, 8662, (February 16, 1993)). The unit would also not be subject 
to minimum technology requirements (MTRs) under section 3004(o), since 
the pile would not be considered a land disposal unit subject to those 
requirements.
    Other types of piles (e.g., piles not used for cleanup purposes) 
would remain subject to the Subpart L requirements of Parts 264 and 
265, and wastes placed into such piles would be subject to LDRs. 
Additionally, the use of a remediation pile does not allow remediation 
wastes to be entirely exempt from the LDR requirements. Since 
remediation piles are temporary and not intended for disposal, all 
wastes being held in remediation piles must eventually meet LDRs at the 
time of their ultimate disposal.
    EPA's objective in proposing the concept of remediation piles in 
Part 264 rather than in Part 269 with the rest of the HWIR-media 
provisions is that the Agency wishes to encourage remedial action of 
contaminated sites by making the use of these units more widely 
available for those cleanups that are not mandated by RMPs under Part 
269, or include remediation wastes other than contaminated media.
    Remediation piles are intended to preserve flexibility for decision 
makers in situations where site cleanup involves the temporary storage 
or treatment of remediation wastes prior to disposal. Unlike CAMUs, 
remediation piles could not be used for disposal of wastes; remediation 
piles would be required to close by removal of wastes (i.e., ``clean 
close''), as do tanks, containers, and other types of hazardous waste 
storage and treatment units. As with the existing CAMU regulations, 
remediation piles would have to be located at the cleanup site, and 
could not be used to manage any wastes other than remediation wastes.
    The flexibility that would be provided by the proposal for 
remediation piles is currently available through use of the CAMU 
concept; such units would currently be considered CAMUs for regulatory 
purposes, and would be subject to the requirements of Sec. 264.552. The 
net effect of this proposal for remediation piles would thus be to 
preserve the existing flexibility and regulatory relief from LDRs and 
MTRs in situations involving the temporary placement of remediation 
wastes in piles. Although today's Part 269 proposal would provide some 
relief for these types of situations (particularly for below the Bright 
Line wastes), EPA believes that remediation piles would be useful in 
facilitating cleanups at a large number of sites.
    Because wastes and media volumes, and the expected duration of 
cleanup activities at cleanup sites all vary, EPA believes that the 
Director is best able to determine the site-specific conditions for the 
safe and effective operation of a remediation pile on a site-specific 
basis. Therefore, today's proposal for remediation piles does not 
prescribe any specific design or operating standards; the Director 
would establish such requirements on a case-by-case basis, using the 
decision factors specified for Temporary Units. (See Sec. 264.553(c)).
    EPA considered a more prescriptive approach that would have 
established certain minimum standards for remediation piles. For 
example, standards for liners could be specified in the regulation, as 
could standards for covers or other methods for controlling air 
emissions, and wind and water dispersal, or other design and operating 
standards. Comments are requested as to whether more national 
uniformity is necessary in the design and operation of remediation 
piles, or whether such decisions are more appropriately made on a site-
specific basis. Comments are also requested as to the types of minimum 
standards that should be applied to remediation piles (assuming such 
national standards are necessary), whether certain time limits or 
renewable time limits should be set for operating such units, and 
whether creating this new type of unit would be necessary at all.

H. Dredged Material Exclusion--Sec. 261.4

    In addition to the media management requirements discussed above, 
today's proposed rule contains a provision to clarify the relationship 
of RCRA Subtitle C to dredged material. Specifically, EPA today 
proposes to establish that dredged material disposed in waters of the 
United States in accordance with a permit issued under section 404 of 
the Clean Water Act (CWA) or in ocean waters in accordance with a 
permit issued under section 103 of the Marine Protection, Research, and 
Sanctuaries Act (MPRSA),<SUP>31 would not be subject to Subtitle C of 
the Resource Conservation and Recovery Act (RCRA)(Sec. 261.4(h)). This 
approach is authorized under RCRA section 1006, which calls for the 
Agency, in implementing RCRA, to avoid duplication with other Federal 
statutes.
---------------------------------------------------------------------------

    \31\ ``Permit'' also includes the administrative equivalent, a 
finding of compliance with the substantive requirements of the CWA 
or MPRSA, for U. S. Army Corps of Engineers' civil works projects 
authorized by Congress.
---------------------------------------------------------------------------

    At present, if dredged material proposed for disposal in the 
aquatic environment is contaminated or suspected of being contaminated, 
the potential application of both RCRA Subtitle C regulations, and 
dredged material regulations under CWA or MPRSA, complicates efficient 
assessment and management of potential environmental impacts. Today's 
proposal would eliminate the potential overlap of RCRA Subtitle C with 
the CWA and MPRSA programs by establishing an integrated regulatory 
scheme for dredged material disposal that ensures an accurate and 
environmentally sound evaluation of any potential impacts to the 
aquatic environment.
Dredged Material Regulation Under CWA and MPRSA
    Section 404 of the CWA establishes a permit program to regulate the 
discharge of dredged or fill material into waters of the United States 
that is jointly administered by the U. S. Army Corps of Engineers 
(Corps) and EPA. Proposed discharges must comply with the environmental 
criteria provided in 40 CFR Part 230 in order to be authorized. The EPA 
and Corps regulations under section 404 define dredged material as 
``material that is excavated or dredged from waters of the United 
States.'' Dredged material can be mechanically or hydraulically 
dredged, and disposed of by barges or pipelines into river channels, 
lakes, and estuaries. Today's proposal does not address ``fill 
material,'' such as that discharged to replace portions of the waters 
of the United States with dry land.
    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 (CDF), including the water entrained 
with the solid portion of the dredged material discharged at the site 
and from rainwater runoff. Impacts to uplands, as well as groundwater, 
air, and other endpoints, can be addressed within the section 404 
permitting process as potential impacts of a discharge of dredged 
material into waters of the U.S. However, in those cases where upland-

[[Page 18832]]

disposed dredged material has no return flow to waters of the United 
States, as defined by section 404, the dredged material is not 
regulated under the CWA, and therefore may be subject to RCRA Subtitle 
C, even under today's proposed regulatory revision.
    The MPRSA regulates the transportation 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 
such proposals comply with EPA's ocean dumping criteria (40 CFR Parts 
220-228).
Dredged Material Regulation Under RCRA
    RCRA (42 U.S.C. 6901 et seq.) regulates the assessment, cleanup, 
and disposal of solid and hazardous wastes under Subtitles D and C, 
respectively. 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.
    EPA regulations at 40 CFR Parts 270 and 124 set forth application 
requirements and procedures for issuing RCRA hazardous waste permits 
under RCRA Subtitle C. In developing a permit, the permitting authority 
considers the potential pathways of human and ecological exposures to 
hazardous wastes resulting from releases at the unit, and the potential 
magnitude and nature of those exposures. Permit conditions are 
established as necessary to achieve compliance with the standards and 
restrictions set forth in Parts 264 and 266 through 268 (and proposed 
269) (or the authorized State program). In addition, RCRA section 
3005(c)(3) authorizes the permit writer, on a site-specific basis, to 
add conditions to a permit that go beyond the applicable regulations 
where such additional requirements are necessary to protect human 
health and the environment (42 U.S.C. Sec. 6925(c)(3)).
    The specific requirements of RCRA Subtitle C that would otherwise 
apply to the disposal of dredged materials in the aquatic environment 
would differ depending on whether these activities were considered to 
be acts of ``land disposal'' as defined in RCRA Sec. 3004(k). If 
considered to be ``land disposal,'' a more extensive set of 
requirements under RCRA Subtitle C would apply, including land disposal 
restrictions treatment standards (Sec. 3004(m)) and minimum technology 
requirements (Sec. 3004(o)).
Clarification of Regulatory Jurisdiction
    EPA proposes to revise the RCRA regulations to provide that the 
discharge of dredged material to waters of the United States pursuant 
to a permit under section 404 of the CWA or to ocean waters pursuant to 
a permit under section 103 of the MPRSA would not be subject to RCRA 
Subtitle C requirements. Specifically, 40 CFR 261.4, which lists 
exclusions from the hazardous waste provisions of RCRA, would be 
amended by adding dredged material discharges covered by CWA or MPRSA 
permits (or authorized administratively in the case of Corps civil 
works projects) to the list of exclusions.
    This proposal would exclude dredged material disposal only from the 
requirements of Subtitle C, and would not exclude it from the 
requirements of Subtitle D. This exclusion would not diminish the 
authority of the Administrator to take action under section 7003 of 
RCRA to address situations of imminent hazard to human health or the 
environment. As noted above, upland disposal of dredged material with 
no return flow to waters of the United States (i.e., not regulated 
under section 404 of CWA) would not be subject to the exclusion, and 
therefore would still be subject to the requirements of RCRA Subtitle C 
as appropriate. Finally, management of dredged material not disposed of 
in waters of the United States in accordance with a permit issued under 
section 404 of the Clean Water Act (CWA), or not disposed of in ocean 
waters in accordance with a permit issued under section 103 of the 
Marine Protection, Research, and Sanctuaries Act (MPRSA), (e.g., 
dredged material managed for purposes of cleanup under RCRA corrective 
action or CERCLA), would not be eligible for this exclusion, and 
therefore, could be subject to RCRA Subtitle C requirements.
    Today's proposed rule would establish an integrated approach to the 
regulation of dredged material disposal that would avoid duplicative 
regulatory processes, while ensuring an accurate, appropriate, and 
environmentally sound evaluation of potential impacts to the aquatic 
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 such integration ``can be done in a manner consistent with the 
goals and policies expressed'' in RCRA and the other Acts.
    The Agency believes that the CWA and MPRSA programs described above 
fully protect human health and the environment from the consequences of 
dredged materials disposal. 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. They also make 
available appropriate control measures for addressing contamination in 
each of the relevant pathways. These programs are more fully described 
in support documents that are included in the record for this proposal 
and are available in the docket for today's proposed rule.
    The Agency believes that RCRA Subtitle C coverage of dredged 
materials 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 fully achieve this goal by addressing the 
proposed aquatic disposal of dredged material.
    Moreover, applying the RCRA Subtitle C program together with the 
CWA and MPRSA permitting programs might be unduly burdensome and cause 
unnecessary procedural difficulties--e.g., 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 proposal, which would divide coverage, would therefore be

[[Page 18833]]

appropriate and consistent with the goals and policies in each of these 
statutes. Accordingly, under RCRA Sec. 1006(b), today's regulatory 
proposal would be an appropriate way to integrate the CWA and MPRSA 
permitting schemes with the RCRA Subtitle C program.

VI. Alternative Approaches to HWIR-media Regulations

    EPA believes that the specific regulatory proposal that is 
presented in today's proposed rule is consistent with the objectives 
that EPA and the States had in mind for the HWIR-media rule. Those 
objectives are discussed in section III of this preamble. However, 
alternative approaches may offer significant advantages as well as 
disadvantages compared to today's proposed rule; some might be quite 
different from the proposal. EPA will continue to examine such 
alternatives, and invites commenters to address these fundamental 
issues in addition to providing comments on the specifics of the rule 
as proposed.
    As explained previously in this preamble, today's proposed rule was 
created expressly to reflect the concepts and directions identified in 
the ``Harmonized Approach'' developed by the FACA Committee. Thus, 
although a number of alternatives were identified and considered by EPA 
and other parties throughout the process of developing this proposal, 
adhering to the Harmonized Approach in many cases precluded certain 
alternative concepts from being included. In addition, not all 
controversial issues were resolved by the FACA Committee. In fact, some 
issues central to the framework of today's proposed rule provoked 
strong disagreement. The Agency specifically requests comments on 
alternatives in the areas where agreement was not reached.
    In EPA's view, a critical element both within the proposal and in 
the other alternatives identified in the preamble (e.g., the Unitary 
Approach) is the rationale used for exempting wastes from Subtitle C. 
Under today's proposed rule, implementing agencies would be able to 
allow lower-risk contaminated media to generally exit the Subtitle C 
system based on the contained-in principle (i.e., Subtitle C doesn't 
apply if EPA or a State determines that a medium doesn't contain wastes 
that present a hazard (hazardous wastes) based on site-specific 
circumstances or controls in a RMP). The legal theory supporting 
``conditional exclusions'' is broader than the contained-in theory, and 
need not be limited to contaminated media. The ``conditional 
exclusion'' theory is based upon EPA's understanding that RCRA provides 
EPA and the States the discretion to determine that a waste need not be 
defined as ``hazardous'' where restrictions are placed on management 
such that no improper management could occur that might threaten human 
health or the environment. (See definition of hazardous waste at RCRA 
section 1004(5)(B)). The HWIR-waste proposal included a full discussion 
of the legal basis for this position (60 FR 66344-469, Dec. 21, 1995). 
This theory is also discussed in section (V)(A)(4)(a). For the sake of 
clarity, it is repeated below.
    EPA's original approach to determining whether a waste should be 
listed as hazardous focused on the inherent chemical composition of the 
waste and assumed that mismanagement would occur causing people or 
organisms to come into contact with the waste's constituents. (See 45 
FR 33113, (May 19, 1980)). Based on more than a decade of experience 
with waste management, EPA believes that it is inappropriate to assume 
that worst-case mismanagement will occur. Moreover, EPA does not 
believe that worst-case assumptions are compelled by statute.
    In recent hazardous waste listing decisions, EPA identified some 
likely ``mismanagement'' scenarios that are reasonable for almost all 
wastewaters or non-wastewaters, and looked hard at available data to 
determine if any of these are unlikely for the specific wastes being 
considered, or if other scenarios are likely, given available 
information about current waste management practices. (See the 
Carbamates Listing Determination (60 FR 7824, (February 9, 1995)) and 
the Dyes and Pigments Proposed Listing Determination (59 FR 66072, 
(December 22, 1994)). Further extending this logic, EPA believes that 
when a mismanagement scenario is not likely, or has been adequately 
addressed by other programs, the Agency need not consider the risk from 
that scenario in deciding whether to classify the waste as hazardous.
    EPA believes that the definition of ``hazardous waste'' in RCRA 
section 1004(5) permits this approach to hazardous waste 
classification. Section 1004(5)(B) defines as ``hazardous'' any waste 
that may present a substantial present or potential hazard to human 
health or the environment ``when improperly * * * managed.'' EPA reads 
this provision to allow it to determine the circumstances under which a 
waste may present a hazard and to regulate the waste only when those 
conditions occur. Support for this reading can be found by contrasting 
section 1004(5)(B) with section 1004(5)(A), which defines certain 
inherently dangerous wastes as ``hazardous'' no matter how they are 
managed. The legislative history of Subtitle C of RCRA also appears to 
support this interpretation, stating that ``the basic thrust of this 
hazardous waste title is to identify what wastes are hazardous in what 
quantities, qualities, and concentrations, and the methods of disposal 
which may make such wastes hazardous.'' H.Rep. No. 94-1491, 94th Cong., 
2d Sess. 6 (1976), reprinted in ``A Legislative History of the Solid 
Waste Disposal Act, as Amended,'' Congressional Research Service, Vol. 
1, 567 (1991) (emphasis added).
    EPA also believes that section 3001 gives it flexibility in order 
to consider the need to regulate as hazardous those wastes that are not 
managed in an unsafe manner (section 3001 requires that EPA decide, in 
determining whether to list or otherwise identify a waste as hazardous 
waste, whether a waste ``should'' be subject to the requirements of 
Subtitle C.) EPA's existing regulatory standards for listing hazardous 
wastes reflect that flexibility by allowing specific consideration of a 
waste's potential for mismanagement. (See Sec. 261.11(a)(3) 
(incorporating the language of RCRA section 1004(5)(B)) and 
Sec. 261.11(c)(3)(vii) (requiring EPA to consider plausible types of 
mismanagement)). Where mismanagement of a waste is implausible, the 
listing regulations do not require EPA to classify a waste as 
hazardous, based on that mismanagement scenario.
    The Agency believes, therefore, that it may be appropriate for EPA 
and the States to consider site-specific management controls when 
making decisions that media and remediation wastes, managed pursuant to 
a RMP or RAP under the various alternatives to today's proposed rule, 
are exempt from Subtitle C. EPA believes that this approach may be 
especially appropriate in the Part 269 context, because of the 
significant level of oversight generally given to cleanup actions. 
State or EPA oversight of cleanup activities, and the requirements set 
out in the RMP for management controls that are tailored to site-
specific circumstances, could ensure that the site-specific management 
controls that the Director used as a basis for the ``conditional 
exclusion'' decision would continue to be implemented. EPA or States 
could specify that media exempted under ``conditional exclusions'' 
would only be considered nonhazardous so long as they were managed in 
the manner specified by the Director in the RAP or

[[Page 18834]]

RMP. Deviations (any, or specific ones) would result in a reversion to 
Subtitle C regulation.
    Using this legal theory could have several advantages in the 
context of an HWIR-media rule. For one, allowing all contaminated media 
or remediation wastes to exit from Subtitle C could avoid many of the 
complexities that come with regulation within the hazardous waste 
regulatory system. Overseeing agencies would have much more flexibility 
to prescribe inclusive, site-wide solutions for contaminated media, 
rather than a limited series of separate approaches. In particular, 
more types of cleanup wastes, such as old sludges, could be covered 
under the HWIR-media system. This would provide significantly greater 
relief, because many corrective actions address old wastes as well as 
contaminated media.
    Under the proposed rule, it would be entirely possible that cleanup 
wastes at the same site could be subject to as many as three different 
sets of regulatory requirements (for example, ``base'' Subtitle C 
regulations for non-media, modified Subtitle C regulations for media 
above the Bright Line, and site-specific requirements for media below 
the Bright Line). Using a conditional exclusion theory without dividing 
remediation wastes and media, and without dividing media above and 
below the bright line, could allow all cleanup wastes at a site to be 
covered under a single regulatory regime that would be more 
straightforward to implement, and easier to comply with and understand.
    A specific alternative, introduced earlier in this proposal, called 
the Unitary Approach, would take a different approach on a number of 
key elements from the proposed approach. The following sections present 
detailed discussions of (1) the Unitary Approach, (2) a hybrid 
conditional exclusion approach which would combine elements of both the 
Unitary Approach and the proposed approach and, (3) some of the key 
elements of these several alternatives that deserve careful 
consideration.

A. The Unitary Approach

1. Overview of Unitary Approach
    Under the Unitary Approach suggested by Industry (see letter from 
James R. Roewer, USWAG Program Manager, Utilities Solid Waste 
Activities Group, to Michael Shapiro, Director, Office of Solid Waste, 
EPA (September 15, 1995) in the docket to today's proposal) and 
discussed previously in section IV of this preamble, management of 
remediation wastes would proceed according to requirements set forth in 
an enforceable remedial action plan (RAP) approved by EPA or an 
authorized State. The RAP could be part of another document, for 
example, a CERCLA ROD, corrective action RFI workplan, etc. The non-RAP 
portions of the document might deal with other aspects of the 
investigation and cleanup not addressed in this proposed rule, such as 
the cleanup goals to be achieved, the extent of materials to be 
excavated during the cleanup, or the scope of the pre-cleanup 
investigation. This would be intended to avoid duplication and overlap 
with existing cleanup program requirements, while assuring that the RAP 
adequately described how remediation wastes will be managed 
protectively. In that manner, the RAP would be similar to the RMP in 
today's proposed rule.
    More than one RAP might be used during the course of a remediation. 
For example, one document might govern management of wastes from the 
investigation or pilot study phase, while another might be employed for 
the remediation phase. A RAP might also be prepared and submitted for 
approval to allow subsequent management as remediation wastes, of 
materials that were originally produced as ``hazardous wastes'' during 
remediation and that had previously been staged as such, for example, 
drill cuttings or produced ground water.
    Remediation wastes that would otherwise be hazardous wastes would 
not be subject to regulation as hazardous wastes when managed in 
accordance with an approved RAP. All hazardous remediation wastes 
managed during the cleanup, including during the investigation phases, 
would be eligible for management under a RAP. This is consistent with 
today's proposed approach for RMPs.
    Management standards for the remediation wastes would be set forth 
in the approved RAP. The management standards would be tailored to be 
protective of human health and the environment, as determined by the 
overseeing Agency. EPA or the authorized State could employ such 
standards as it deemed appropriate for the specific remediation wastes 
involved, the location where the remediation wastes would be managed, 
and the site-specific risk posed by the contemplated management 
approach. For example, the substantive standards of the RCRA 
containment building regulations might be suitable in a given 
situation, or local ground water considerations might make it advisable 
for particular treatment tanks to have secondary containment. In 
setting the standards for a given RAP, the overseeing agency could turn 
to existing State or federal standards or remediation waste management 
practice or experience appropriate for the wastes as managed during the 
remedial activities contemplated by the RAP.
    The RAP would have to describe how the wastes to be managed under 
it would be aggregated and stored, both on-site, and if applicable, 
off-site. The nature and effectiveness of any treatment methodologies 
to be used would need to be described as well. The specific method and 
location for disposal of any wastes or treatment residuals that would 
otherwise be required to be managed as hazardous waste would also be 
addressed. Of course, the option of simply managing a particular 
remediation waste as a hazardous waste would remain available and, in 
such an instance, that aspect of remediation waste management would not 
be addressed in the RAP subject to review and approval pursuant to this 
Part.
    In the Unitary Approach proposed by industry, RCRA treatment 
requirements and the land disposal restrictions would not apply to 
remediation wastes, and there would be no Bright Line concept ensuring 
that higher-concern wastes were managed under Subtitle C-like 
standards. EPA and overseeing States would have the authority to 
prescribe in RAPs whatever management and treatment standards they 
deemed appropriate; the only specific regulatory standard would be that 
remedies be protective of human health and the environment. EPA 
recognizes that this approach would give program implementers much 
needed flexibility in overseeing cleanups. In its economic analysis 
supporting today's rulemaking (discussed later in this preamble), EPA 
assumed that the costs of waste treatment would be comparable under 
both the proposed and the Unitary approaches, because the overseeing 
agencies in both cases would generally require some level of treatment 
where a remedy involved management of highly contaminated waste. EPA 
acknowledges that the specific language of the Unitary Approach, as 
proposed by industry, does not provide guidance on when treatment might 
be needed. EPA solicits comments on whether the Unitary Approach (if 
adopted) should include specific direction in this area, and what 
language might be appropriate. One approach would be to include a 
Bright Line with a presumption for treatment of wastes above the Bright 
Line. This approach, however, would raise the implementation 
difficulties discussed

[[Page 18835]]

elsewhere. Another approach would be to capture the same intent through 
more general and flexible regulatory language. For example, the rule 
might specify that the overseeing agency consider, and as appropriate 
require, waste treatment before land disposal, where the remediation 
waste might present a substantial risk, either because of high 
concentrations of hazardous constituents or because it could not be 
contained reliably over time. This language would not prescribe a 
specific approach in any given situation, but it would ensure that 
treatment was seriously considered where wastes presented significant 
risks and effective treatment was available.
2. Legal Authority for the Unitary Approach
    As discussed above (introduction to section VI), EPA believes that 
RCRA provides the Agency with the discretion to determine that wastes 
should not be defined as ``hazardous'' when mismanagement of the waste 
is not likely.
    If EPA were to finalize a rule similar to the one suggested in the 
Unitary Approach, which is based upon a ``conditional exclusion'' or 
``conditional exemption'' theory, the Agency would base the finding 
that mismanagement of the covered wastes and media is unlikely on the 
Agency's belief that States that are authorized for the HWIR-media 
program will set appropriate management standards, and provide an 
appropriate level of oversight of remedial actions, so as to ensure 
that such wastes are managed protectively. Specifically, EPA's 
conclusion that mismanagement is not likely would be based primarily on 
the rule's provisions for prior State program approval, public notice 
and comment on all RAPs, and ``streamlined'' State program withdrawal 
where a State is found not to be operating its HWIR-media program in a 
protective manner.
    The Agency requests comment on whether this conclusion would be 
appropriate.
3. LDRs Under the Unitary Approach
    Earlier in today's proposal, EPA discussed the applicability of the 
land disposal restrictions (LDRs) to contaminated media and requested 
comments on alternatives to the approach to the LDRs taken today. Under 
the Unitary Approach, remediation wastes (including contaminated media) 
addressed in a RAP would, as a general matter, be excluded from all 
RCRA Subtitle C requirements, including LDRs. The proponents of the 
Unitary Approach have not put forth a legal rationale to explain why 
LDRs would not continue to apply to hazardous wastes that are 
determined not to be hazardous after their point of generation. As was 
discussed in section (V)(A)(4) of this preamble, following the logic of 
the court in Chemical Waste Management v. EPA, 976 F.2d 2 (D.C. Cir. 
1992), elimination of a waste's ``hazard'' designation does not 
necessarily eliminate LDR obligations. Thus, for wastes that have 
entered the Subtitle C system, and for which LDRs have attached, a 
finding that such wastes are conditionally exempt from RCRA may not 
eliminate LDR obligations.
    If EPA were to promulgate a program modeled after the Unitary 
Approach, the Agency would likely address the residual LDR issue by 
applying the ``new treatability group'' approach to LDRs [instead of 
the approach proposed today]. As discussed earlier, changes in 
treatability group can result when the properties of a waste that 
affect treatment performance change enough so that the waste is no 
longer considered similar to the wastes EPA evaluated when it 
established the applicable LDR treatment standards. Each change in 
treatability group is a new point of generation for purposes of 
determining whether a waste is hazardous under RCRA Subtitle C. 
Therefore, if contaminated media were, by definition, considered a new 
treatability group under the LDR program, and, as discussed in the 
Unitary Approach, media addressed in a RAP is, by definition, not 
considered hazardous waste, media addressed in a RAP would not be 
subject to the LDR treatment standards. This would typically remove 
contaminated media addressed in a RAP from the duty to comply with the 
LDR requirements.<SUP>32
---------------------------------------------------------------------------

    \32\  The exception would be media that are still considered 
hazardous (e.g., because a RAP has not been issued) when removed 
from the land. In this case, the applicable LDRs would attach and 
the media would have to attain compliance with the standards of RCRA 
section 3004(m) even if it were later made subject to a RAP and 
therefore determined to no longer be hazardous.
---------------------------------------------------------------------------

    For remediation wastes other than media, as long as the wastes were 
not prohibited from land disposal when first placed (i.e., when first 
land disposed), the land disposal restrictions do not attach unless 
these wastes are still considered hazardous when they are removed from 
the land. Therefore, if, due to issuance of a RAP, such wastes were 
determined to be non-hazardous before they were removed from the land, 
the land disposal restrictions would not apply. This approach would 
remove most non-media remediation wastes addressed in a RAP from the 
duty to comply with LDR requirements.<SUP>33
---------------------------------------------------------------------------

    \33\  The exception would be non-media hazardous remediation 
wastes (e.g., sludges, hazardous debris) which were first land-
disposed (placed) after the effective date of the applicable land 
disposal prohibition.
---------------------------------------------------------------------------

    As discussed above, EPA has struggled with the application of LDR 
requirements in developing today's proposal. The Agency requests 
comments on alternative approaches to the LDR requirements which would 
support a program modeled after the Unitary Approach consistent with 
the requirements of RCRA section 3004(m). For example, since a program 
modeled after the Unitary Approach would not automatically release all 
remediation wastes from the duty to comply with the LDRs, should the 
Agency concurrently promulgate the other approaches to the LDRs 
proposed today?
4. The RAP Process Under the Unitary Approach
    To initiate the RAP process, the owner or operator of a facility at 
which the remediation would be conducted, would submit the proposed RAP 
to the Director. Upon receipt of the RAP, the Director would give 
public notice via local newspapers of the availability of the RAP and 
the opening of a minimum thirty-day comment period. If significant 
written opposition that also requested a hearing on the RAP were 
received during the comment period, an informal hearing might be held 
at a location in the vicinity of the facility at which the remediation 
would be conducted. Fifteen days advance notice of the hearing would 
have to be given. Not later than thirty days after the close of the 
public comment period or the conclusion of any informal hearing, 
whichever were later, the Director would have to inform the applicant 
in writing of whether the RAP satisfied the appropriate criteria. In 
the case of a denial, the Director must include a written statement of 
the reasons for denial. The Director's decision would be final Agency 
action for purposes of judicial review.
    Major modifications and terminations of RAPs would follow the same 
procedures. The Director could terminate the RAP for cause at any time. 
A ``for cause'' event could include noncompliance with RAP provisions, 
failure of a remediation waste treatment methodology to perform as 
expected, or some unexpected negative impact of a treatment technology, 
for example.

[[Page 18836]]

5. State Authorization for the Unitary Approach
    The Unitary Approach presented a proposal for State Authorization 
which was based on self-certification by States. EPA is not soliciting 
comment on this aspect of the Unitary Approach as proposed by Industry, 
because the Agency believes that there are statutory limitations to 
authorizing States by self-certification. If the Agency were to 
finalize the Unitary Approach, EPA would likely authorize States 
according to the process described in section (V)(E) of this proposal. 
EPA would adjust the essential elements described in that section in 
order to reflect the essential elements of the Unitary Approach, as 
opposed to today's proposed approach.
6. Enforcement Authorities Under the Unitary Approach
    As with the proposed approach, EPA would retain its remedial and 
enforcement authorities with respect to solid wastes and hazardous 
substances that are not hazardous wastes (e.g., section 7003 of RCRA 
and sections 104 and 106 of CERCLA). Furthermore, EPA would have 
authority to revoke a State's authorization for this program without 
revoking any other Subtitle C program authorization held by the State, 
in which case EPA would then oversee completion of any ongoing 
activities under RAPs previously approved by the State in question. In 
any instance where a remediation waste was not managed in accordance 
with the approved RAP an appropriate enforcement response could be 
initiated by the authorized State, or if the State was dilatory in that 
respect, by EPA. (As in the proposed approach, remediation wastes that 
were managed out of compliance with the RAP could lose their exemption 
from Subtitle C.)
7. State Jurisdiction Under the Unitary Approach
    Once a State has obtained authorization for this program, it would 
have authority to issue and oversee the contents and implementation of 
RAPs. Of course, that authority would extend only to management of 
remediation wastes within the authorized State. A State's authority 
with regard to RAP approval, however, would not run to wastes that 
would be managed in full accord with otherwise applicable hazardous 
waste management requirements. In other words, in the same way as in 
the proposed approach, if the owner or operator elected to manage 
hazardous wastes produced during remediation in full accord with 
otherwise applicable hazardous waste management requirements, there 
would simply be no need to seek redundant approval for such activities 
by means of RAP submission.
    Of course, a State's authority would not extend beyond its borders. 
Accordingly, if an entity managing remediation wastes wished to manage 
remediation wastes in a RAP in a State other than that in which the 
remediation would be conducted, it would be required to get approval 
from the other State for that portion of the RAP addressing management 
in that other State. If the entity managing the remediation wastes 
wished to manage them in accordance with the otherwise applicable 
hazardous waste management requirements of the other State, no RAP 
approval would be necessary from that State for those activities. (In 
this respect, the Unitary Approach is similar to today's proposed 
approach).
    As described above, all remediation wastes (including contaminated 
media, debris and non-media wastes) would be eligible for management 
under a RAP. Remediation waste might be defined, consistent with 
Sec. 260.10, as ``all solid and hazardous wastes, and all media 
(including groundwater, surface water, soils and sediments) and debris, 
which contain listed hazardous wastes or which themselves exhibit a 
hazardous characteristic, that are managed for the purpose of 
implementing cleanup. For a given facility or media remediation site, 
remediation wastes may originate only from within the facility or site 
boundary, but may include waste managed in implementing RCRA sections 
3004(v) or 3008(h) for releases beyond the facility boundary.'' This 
Unitary Approach would not have a Bright Line. Nor would this approach 
use a contained-in theory, but rather a conditional exclusion theory 
for excluding remediation wastes from the definition of hazardous 
wastes under Subtitle C.
    The Agency requests comments on the approach outlined above. In 
particular, the Agency requests comments on whether the Unitary 
Approach should be adopted as described, or whether some combination of 
the several approaches discussed in today's preamble would be more 
appropriate.

B. Hybrid Approach

    The Unitary Approach (discussed above) as an alternative to today's 
proposed rule would use a conditional exclusion theory to exempt all 
remediation wastes from Subtitle C regulation (except, in some cases, 
LDRs).
    A more limited use of a conditional exemption for the HWIR-media 
rule would be compatible with (i.e., would not preclude) most of 
today's proposed rule. There are, in fact, a variety of ways in which 
one might combine important features of today's proposed rule with the 
Unitary Approach. For example, the rule could retain a Bright Line 
provision to distinguish between higher-risk and lower-risk media and 
wastes. Under this kind of an alternative, wastes above Bright Line 
concentrations could remain subject to modified Subtitle C 
requirements, similar to the approach proposed today. Another option 
would be to have all above and below the Bright Line wastes and media 
exempt from Subtitle C, but subject to different alternative management 
requirements. Either way, the rule could prescribe alternative 
management standards that might be very similar to ``base'' Subtitle C 
standards, or to the modified LDR standards specified in the proposal 
for above the Bright Line media.
    The Agency also notes that a conditional exclusion approach could 
be implemented either on a national or site-specific basis. 
Specifically, as is urged by industry supporting the Unitary Approach, 
the Agency could make a generic determination that any remediation 
wastes managed according to a RAP that is issued by an approved program 
(subject to appropriate public participation requirements) would not be 
considered a hazardous waste under the RCRA program. Alternatively, the 
rule could leave that decision up to the overseeing agency on a site-
specific basis, thus requiring the regulator explicitly to make the 
determination that, because of the management conditions imposed, all 
or some part of the media and wastes at the site do not present a 
``hazard'' and thus should not be considered ``hazardous'' wastes. The 
Agency requests comment on which approach would be appropriate for 
implementing an HWIR-media rule based on a conditional exclusion 
theory.
    For purposes of illustration, one such approach could use a 
conditional exclusion to exempt all remediation wastes below a Bright 
Line from Subtitle C. (This approach is presented as the hybrid 
contingent management option in Table 1.) Under this approach, the rule 
would define a Bright Line, either as constituent concentrations, or 
qualitatively. Then, the rule could specify that if EPA or an 
authorized State determined that remediation wastes were below a Bright 
Line at a specific site, and site-specific management requirements were 
written into a RAP or RMP, then those remediation wastes would be 
exempt

[[Page 18837]]

from Subtitle C so long as they were managed in accordance with the 
provisions of the RAP/RMP. In this type of a HWIR-media program, LDRs 
would be required for remediation wastes where LDR attached. (See 
(V)(C)). Also, a RMP for remediation wastes that were above the Bright 
Line would have to be the equivalent of a RCRA permit, because those 
remediation wastes would be subject to Subtitle C.
    This hybrid option could have several advantages over the approach 
proposed today. This option would not set requirements for contaminated 
media that are different than those for other remediation wastes, which 
could simplify remedy decisions at cleanup sites. Also this option 
would eliminate the uncertainty of whether remediation wastes below the 
Bright Line would be subject to Subtitle C. The proposed approach 
allows the overseeing Agency to determine whether contaminated media 
below the Bright Line should be exempted from Subtitle C or not. Under 
this alternative option, remediation wastes below the Bright Line would 
be exempt from Subtitle C as long as they were managed in accordance 
with the RAP or RMP. Also, RAPs for wastes below the Bright Line could 
be simpler because they would not have to meet all the procedural 
requirements for RCRA permits.
    The Agency requests comments on this alternative approach, and on 
other alternatives that could be adopted to exempt remediation wastes, 
as appropriate, from Subtitle C regulation. In doing so, the Agency is 
particularly interested in comments on the key elements of an HWIR-
media rule discussed in the following section.

C. Key Elements of an HWIR-media Rule

    EPA believes that many of the key elements of the different options 
and alternatives presented in this proposal could be combined in 
different ways to construct an effective HWIR-media program. The 
following is a discussion of those key elements, and a table 
illustrating three different combinations of the key elements. This 
table is intended to facilitate comparison of options. EPA requests 
comments on the combinations of key elements as presented, or on other 
combinations.

                                                     Table 1                                                    
----------------------------------------------------------------------------------------------------------------
                                                                   Hybrid contingent                            
             Key elements                  Proposed option         management option         Unitary approach   
----------------------------------------------------------------------------------------------------------------
Legal Theory.........................  Contained-in...........  Conditional Exclusion    Conditional Exclusion. 
                                                                 for below the Bright                           
                                                                 Line.                                          
Scope................................  Media only.............  All remediation wastes.  All remediation wastes.
Bright Line..........................  Bright Line--10<SUP>-3 and    Bright Line (a) (for     No Bright Line.        
                                        Hazard index of 10.      media) same as                                 
                                                                 proposal, or (b)                               
                                                                 qualitative Bright                             
                                                                 Line*.                                         
Hazardous vs. Non-hazardous..........  All media above Bright   All remediation wastes   All remediation wastes 
                                        Line are subject to      above Bright Line are    managed according to  
                                        Subtitle C; below is     subject to Subtitle C;   RAP or RMP are not    
                                        site-specific decision.  below (when managed      hazardous.            
                                                                 according to RAP or                            
                                                                 RMP) are not hazardous.                        
LDRs.................................  LDRs required for media  LDRs required for        LDRs required for      
                                        where LDRs attaches**.   wastes where LDRs        wastes where LDRs     
                                                                 attaches**.              attaches***.          
Permitting...........................  RMP serves as RCRA       RMP serves as RCRA       No requirement that RAP/
                                        permit for media that    permit for wastes that   RMP serve as RCRA     
                                        remain subject to        are above the Bright     permit, since wastes  
                                        Subtitle C.              Line; for wastes below   are not subject to    
                                                                 the Bright Line, RMP     Subtitle C.           
                                                                 does not have to serve                         
                                                                 as RCRA permit.                                
----------------------------------------------------------------------------------------------------------------
* See discussion of qualitative Bright Line below.                                                              
** See discussion of applicability of LDRs in section (V)(C).                                                   
*** See discussion of alternative option for LDR applicability in section (VI)(A)(3).                           

1. Scope of the Rule (Regarding Non-media Remediation Wastes)
    The proposed rule would apply only to contaminated media. 
Therefore, as discussed in section (V)(A)(2) of this preamble, 
hazardous cleanup wastes that are not media (such as sludges or other 
wastes that have not been mixed with soils or ground water), would only 
be eligible under the proposal for the limited regulatory relief 
provided by the provisions allowing management in remediation piles and 
through remediation management plans. Otherwise, these remediation 
wastes would be subject to existing Subtitle C requirements.
    EPA recognizes that at many sites, cleanups involve excavating and 
managing large volumes of these non-media remediation waste materials. 
Therefore, the HWIR-media proposal is only a partial solution to the 
overall problem of regulating cleanups under RCRA Subtitle C. The 
Agency recognizes that excluding non-media from the HWIR-media rule 
coverage would leave in place many of the Subtitle C problems that 
arise in the course of cleanup. This issue was the subject of much 
discussion during the HWIR FACA process. As discussed above, today's 
proposed approach for resolution of this issue is linked to the 
contained-in theory that is used for exempting wastes from Subtitle C 
jurisdiction. Since the contained-in theory only applies to media that 
``contain'' or do not ``contain'' hazardous wastes, the theory cannot, 
by definition, be extended to non-media wastes. These wastes are 
regulated under Subtitle C not because they ``contain'' hazardous 
wastes, but because they are hazardous wastes.
    A conditional exclusion approach, like the Unitary Approach 
discussed above, would not make a distinction between media and non-
media remediation wastes. All remediation wastes would be eligible for 
relief.
    Because ``pure'' remediation wastes (i.e., those that have not been 
mixed with environmental media) are often similar--if not identical 
to--the ``as generated'' wastes for which the land disposal 
restrictions and other Subtitle C requirements were originally created, 
it has been argued that existing LDR and other requirements are more 
appropriate for management of these wastes than the HWIR-media 
requirements. To address this concern for the more concentrated wastes, 
the Agency could retain the concept of the Bright Line, for example, 
but determine that all remediation wastes above the Bright Line would 
be subject to the current national Subtitle C LDR standards, and all 
remediation wastes below the Bright Line would be eligible for a 
``conditional exclusion''

[[Page 18838]]

from Subtitle C requirements under a site-specific RAP or RMP. This 
alternative would be identical to today's proposed approach, except 
that it would include non-media remediation wastes, and rely on a 
conditional exclusion theory (see discussion below) to exclude wastes 
below the Bright Line from Subtitle C as opposed to the contained-in 
theory. The Agency requests comments on this and any other alternative 
approaches for the scope of today's proposed rule.
    Commenters should also review section (V)(A)(2) of today's preamble 
and Sec. 269.2 of today's proposed rule for a further discussion of the 
scope of the proposal, including a discussion of whether and how 
contaminated debris should be included in the rule.
2. The Bright Line
    The Bright Line concept originated as a compromise between those on 
the FACA Committee who favored setting uniform national standards for 
most, if not all, contaminated media, and those who favored a large 
degree of site-specific flexibility in the rule. In essence, the Bright 
Line serves to provide certainty that higher-risk media (if they are 
land disposed) would be treated to established national standards, 
while overseeing agencies would have considerable discretion in 
prescribing management standards for lower-risk media. This is 
conceptually similar to the ``principal threat'' concept that has been 
used in the Superfund program for several years (``A Guide to Principal 
Threat and Low Level Threat Wastes'' EPA/Superfund Publication: 9380.3-
06FS (November 1991) and 40 CFR 300.430(a)).
    In any case, distinguishing between higher- and lower-risk 
remediation wastes, and ensuring that the higher-risk wastes are 
handled according to certain minimum standards, has a number of 
positive aspects that are consistent with established Agency policies. 
However, reaching consensus on exactly how to calculate Bright Line 
concentrations is a considerable challenge. The Bright Line concept has 
something of a ``philosophical lightning rod'' among the various 
stakeholders.
    The Agency has proposed one method of calculating the Bright Line, 
but has analyzed three alternative methods for calculating the Bright 
Line in the ``Economic Assessment.'' The Agency used the Soil Screening 
Levels (SSLs) from Superfund as the basis for calculating the proposed 
Bright Line. The SSLs are set using a residential exposure scenario. 
The Agency has already received comments from stakeholders that the 
residential exposure setting is not an appropriate basis for 
calculating the Bright Line at many remediation sites. The Agency 
acknowledges that, by using certain exposure assumptions in determining 
the Bright Line, especially residential exposure assumptions, the 
actual risks posed by remediation wastes at the site could be, in some 
circumstances, significantly lower than the 10<SUP>-3 implied by the 
Bright Line. However, as discussed in section (V)(A)(4) the Bright Line 
is not intended to be an indication of actual risk, but is intended to 
reflect relative risks. Nonetheless, it is possible that setting the 
Bright Line in this way could lead to confusion, for example, in 
communicating to the public the actual risks posed by the site, and 
other similar problems. The 10<SUP>-3 level is used to determine which 
wastes would typically receive stringent oversight, including treatment 
according to national treatment standards, but it does not reflect 
actual risks at actual sites. An alternative approach would be to use 
industrial land use assumptions in setting Bright Line levels. At this 
time, however, EPA does not believe that there is enough consensus 
around a methodology for non-residential exposure scenarios (e.g., 
industrial exposure scenarios) that could be used as the basis for a 
national rulemaking. The Agency requests suggestions of widely accepted 
methodologies for determining non-residential exposure scenarios (e.g., 
industrial exposure scenarios). The Agency also requests comments on 
whether the Bright Line should be based on different exposure scenarios 
(e.g., industrial). If so, how should the appropriate scenarios for a 
site be determined? How should the methodology for assessing 
alternative exposure scenarios be developed or used? Finally, the 
Agency has received comments from stakeholders that 10<SUP>-3 may be 
too high of a risk for the Bright Line. The Agency requests comments on 
using alternative risk levels (such as 10<SUP>-4) to set the Bright 
Line.
    The Agency also requests comment on the alternative of setting a 
qualitative Bright Line. The rule could describe qualitatively what 
should constitute ``above the Bright Line'' wastes and ``below the 
Bright Line wastes.'' The overseeing agency approving the RMP or RAP 
could determine for each specific site whether wastes were above or 
below the Bright Line, and specify that in the RMP or RAP. For example, 
the rule could define ``above the Bright Line wastes'' as wastes that 
have unusually high concentrations compared to the rest of the 
remediation waste at the site, or wastes that are highly mobile, or 
highly toxic. If the overseeing agency evaluated those criteria and 
determined that remediation wastes at that site met those criteria, 
then those wastes would be required to be managed as ``above the Bright 
Line wastes.'' The Agency requests comments on the merits of 
promulgating a qualitative Bright Line.
    The combination of the Bright Line with the contained-in principle 
was of particular concern to the States. Although the Bright Line (as 
originally designed by the HWIR FACA Committee) was supposed to be a 
``bright,'' clear distinction between media regulated under national 
standards and media subject to site-specific requirements, the Agency 
(at the request of the States), decided to propose the Bright Line not 
as an automatic contained-in concentration, but as an upper limit (or 
``ceiling'') for contained-in determinations.
    The Agency requests comments on whether the Bright Line concept 
should be retained, or whether all contaminated media (or all 
remediation wastes) should be subject to the same set of standards.
3. RAPs, RMPs, and RCRA Permits
    The final key element of an HWIR-media program is whether the RAP 
or RMP must serve as a RCRA permit. Substantively, RAPs (discussed 
under the Unitary Approach) and RMPs (discussed under the proposed 
approach) serve the same purpose, but they differ in certain procedural 
respects. Under the proposed approach, some contaminated media and 
remediation wastes managed under RMPs would remain subject to Subtitle 
C. In those cases, RMPs must serve as RCRA permits for those wastes and 
media. Because all remediation wastes managed under RAPs under the 
Unitary Approach would be exempt from Subtitle C, RAPs need not serve 
as RCRA permits. Therefore, RMPs are proposed as meeting the minimum 
statutory requirements for public participation for RCRA permits, while 
RAPs are discussed as requiring even more simplified public 
participation requirements. Although neither the proposed approach nor 
the Unitary Approach propose to require it, it is EPA's expectation 
that in cases of extensive cleanups or significant on-site treatment, 
public participation procedures under either option would be more 
extensive than the statutory minimum. At the same time, the RAP 
approach would allow simplified procedures for routine responses (for 
example, removals) involving low concentration wastes.

[[Page 18839]]

4. Request for Comments
    EPA requests comments on all of these key elements of an HWIR-media 
rule. EPA also requests comments on different combinations of these 
elements, including, but not limited to, the combinations discussed in 
this proposal as the proposed approach, the Unitary approach and the 
hybrid option.

VII. Effective Date of Final HWIR-Media Rule

    Regulations promulgated pursuant to RCRA Subtitle C generally 
become effective six months after promulgation. RCRA section 3010 
provides, however, for an earlier, or immediate, effective date in 
three circumstances: (1) Where the industry regulated by the rule at 
issue does not need six months to come into compliance; (2) the 
regulation is in response to an emergency situation; or (3) for other 
good cause.
    Most of the rule proposed today would become effective within six 
months after promulgation. EPA is proposing, however, to make the CAMU 
rule withdrawal and ``grandfathering'' provisions, discussed in section 
(V)(F) above, effective upon publication. The basis for this decision 
is that the Agency does not believe that the regulated community 
requires six months to come into compliance with the CAMU withdrawal. 
Since all CAMUs approved at the time of publication of the final rule 
are ``grandfathered,'' withdrawal of the rule would not require any 
action on the part of those with approved CAMUs.
    The Agency requests comments on whether it would be appropriate to 
make the CAMU withdrawal immediately effective.

VIII. 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 this regulatory action is 
``significant.'' Significant regulatory actions must be assessed in 
detail and are subject to full OMB review under Executive Order 12866 
requirements. The order defines ``significant regulatory action'' as 
one that is likely to result in a rule that may:
    (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 proposed rule is a 
``significant regulatory action'' under part (a) and possibly part (d) 
above. These parts are discussed fully in Executive Order 12866. This 
proposed rulemaking action is subject to full OMB review under the 
requirements of the Executive Order. The Agency has prepared an 
``Economic Assessment of the Proposed Hazardous Waste Identification 
Rule for Contaminated Media,'' in support of today's action. A summary 
of this assessment is presented under section 4 below.
2. Background
    As discussed in section (V)(A)(4)(a) of this preamble, the Agency 
has determined that media which ``contain'' hazardous waste must be 
managed as hazardous waste until they no longer contain such waste. 
Under this approach, EPA Regions and authorized States determine, on a 
case-by-case basis, what media ``contain'' hazardous waste, and 
therefore must be managed as hazardous waste.
    RCRA Subtitle C regulatory requirements may be applied to 
contaminated media generated during several different types of site 
cleanups, including CERCLA remedial actions, State Superfund actions, 
RCRA corrective actions, RCRA closures, and voluntary cleanups. If 
contaminated media containing hazardous wastes are excavated in the 
process of site cleanup, they are required to be managed according to 
RCRA Subtitle C standards. These stringent requirements for excavated 
media, which often contain low levels of hazardous waste, have resulted 
in site cleanup decisions that effectively leave in place large volumes 
of contaminated media. As discussed in section (II)(A), EPA and the 
States have recognized that there are fundamental differences in the 
incentives and objectives for prevention-orientated versus cleanup-
orientated waste management programs. Today's proposal seeks to 
alleviate many of the disincentives currently associated with the 
application of traditional RCRA Subtitle C requirements to cleanup 
programs.
3. Need for Regulation
    Traditional RCRA Subtitle C management requirements for all 
excavated media containing any level of hazardous waste have resulted 
in less than optimal resource allocation. From a social perspective, 
too many resources are required to be devoted to the management of very 
low-risk media. This misallocation restricts availability of limited 
resources for use in other investments, including effective management 
of high-risk media and wastes. In addition, this disconnect between 
risk and management requirements creates disincentives for cleanup, 
impedes ongoing cleanup processes, and restricts the protective cleanup 
options available for consideration by the stakeholders. These 
unanticipated market distortions resulting from traditional RCRA 
Subtitle C management requirements for all excavated media containing 
any level of hazardous waste has convinced the Agency that reform is 
necessary. Through many discussions with stakeholders, particularly 
State and Federal cleanup programs, the Agency has determined that such 
reforms should provide meaningful regulatory structure and guidance 
designed to ensure safe management while, at the same time, providing 
site-specific flexibility that will help facilitate accelerated 
cleanups around the country. Particularly, as this proposal was 
designed specifically for the cleanup scenario, EPA believes that it 
will be better suited to the situations encountered at typical cleanup 
sites than some of the current regulations which are more appropriate 
for as-generated wastes. Specifically, EPA believes that reforms 
presented in today's proposal will facilitate more timely and less 
costly cleanups while maintaining protection of human health and the 
environment.
4. Assessment of Potential Costs and Benefits
    The Agency has prepared an ``Economic Assessment'' to accompany 
today's proposed rulemaking. This ``Economic Assessment'' has been 
submitted to the Office of Management and Budget in accordance with 
Executive Order 12866.
    a. Description of the HWIR-media proposal. HWIR-media will address 
an important limitation of the current RCRA Subtitle C program. The 
Subtitle C regulatory framework was designed primarily to ensure the 
safe cradle-to-grave management of currently generated hazardous 
wastes. Furthermore, the Subtitle C program

[[Page 18840]]

seeks to prevent releases, minimize generation, and maximize the 
legitimate reuse and recycling of hazardous waste. Subtitle C 
regulations contain detailed procedural and substantive management 
requirements that, when applied to the cleanup of contaminated media, 
often create incentives to leave this material in place or to select 
remedies that otherwise minimize the applicability of RCRA regulations. 
In addition, the level of regulation is not always commensurate with 
the risks posed by contaminated media. For example, media having very 
low levels of contamination are often regulated as hazardous waste 
under RCRA Subtitle C as a result of the contained-in policy.
    The proposed rule would revise existing RCRA Subtitle C regulations 
by creating a new decision process for identifying and managing 
contaminated media. Under this framework, a set of hazardous 
constituent concentration levels would constitute a ``Bright Line'' for 
separating higher and lower levels of contaminated media. One Bright 
Line is proposed for soil and a second Bright Line for ground water and 
surface water. The proposed rule does not include a Bright Line for 
sediments; instead, site-specific decisions alone would determine 
whether sediment contains hazardous waste. Media that contain levels of 
contamination above the Bright Line would be managed as ``hazardous 
contaminated media'' under revised Subtitle C standards. Contaminated 
media with all constituent concentrations below the Bright Line would 
be eligible for a determination by the EPA, or authorized State agency 
overseeing the cleanup, that the media do not contain hazardous waste.
    Today's proposal would also replace and withdraw the requirements 
for Corrective Action Management Units (CAMUs), simplify the state 
authorization procedures for RCRA program revisions, and streamline the 
permitting requirements for management of all types of remediation 
waste. Furthermore, the proposal would exempt from RCRA Subtitle C, 
dredged material permitted under the Clean Water Act or the Marine 
Protection, Research and Sanctuaries Act (MPRSA).
    b. HWIR-media options analyzed. Executive Order 12866 requires and 
assessment of reasonably feasible alternatives to the proposed 
regulatory option. The Agency analyzed several options for this 
``Economic Assessment.'' These options vary in two dimensions:
    (i) types of remediation waste eligible for exclusion from Subtitle 
C.<SUP>34 The options include either:

    \34\ Although, throughout this analysis, the Agency 
characterizes media determined to no longer contain, or wastes no 
longer considered hazardous, to be excluded or otherwise not subject 
to RCRA Subtitle C, as discussed in section (V)(C) of this Preamble, 
those wastes may nevertheless continue to be subject to LDRs.
---------------------------------------------------------------------------

--Contaminated media only (soils, non-navigational sediments, ground 
water, surface water), or
--All remediation waste (the above contaminated media plus old waste 
and debris); and

    (ii) partial or complete exclusion of such wastes from Subtitle C. 
The options include potential exclusion from Subtitle C regulation of 
either:

--Media with all constituent concentrations below a proposed Bright 
Line, or
--All media, regardless of the extent of contamination.

    The primary options analyzed are identified in Exhibit A below.

                  Exhibit A.--Primary Options Analyzed                  
------------------------------------------------------------------------
                                    Levels of contamination potentially 
                                    excluded from subtitle C regulation 
 Remediation wastes eligible for ---------------------------------------
            exclusion                                  Lower and higher 
                                      Lower risk       risk  (No bright 
                                    (bright line)*           line)      
------------------------------------------------------------------------
Contaminated Media Only.........  Proposed Bright     Conditional       
                                   Line Option         Exemption Option.
                                   (Proposed Rule).                     
All Remediation Waste...........  Expanded Bright     Expanded          
                                   Line Option.        Conditional      
                                                       Exemption        
                                                       Option** (Unitary
                                                       Approach).       
------------------------------------------------------------------------
* Three other Bright Line options were examined applying alternative    
  Bright Line concentrations. These findings are present in the Appendix
  to the full Economic Assessment, located in the RCRA Docket materials 
  for this Action.                                                      
** This option is similar to the ``Unitary Approach'' proposed by       
  industry.                                                             
Note: The Proposed Option contains no Bright Line for sediments. Only   
  site-specific determination is proposed for the cleanup of            
  contaminated sediments.                                               

    The Bright Line for contaminated soil under the proposed and 
expanded Bright Line options is defined for approximately one hundred 
hazardous constituents for which EPA has calculated Soil Screening 
Levels (SSLs). These SSLs are based on potential human health risk and 
were developed using risk equations and exposure assumptions specified 
in EPA's ``Risk Assessment Guidance for Superfund (RAGS).'' A lifetime 
cancer risk of 10<SUP>-6 for carcinogens and a hazard quotient of one 
for non-carcinogens was applied to determine the Soil Screening Levels 
(SSLs). The HWIR-media soil Bright Line levels were derived from the 
inhalation and ingestion pathways of the SSLs, and correspond to an 
excess lifetime cancer risk of 10<SUP>-3 for carcinogens and a hazard 
quotient of 10.
    The levels from the inhalation and ingestion pathways from the 
Superfund SSLs are multiplied by 10 if the constituent is a non-
carcinogen, and by 1,000 if the constituent is a carcinogen to achieve 
the target risk levels (referred to as the ``risk adjustment''). The 
Bright Line concentration is the lower of the risk-adjusted inhalation 
or soil ingestion-based levels. All Bright Line levels are capped at 
10,000 ppm and the lead Bright Line is set at 4,000 ppm. The 
Conditional Exemption Options (base and expanded) do not rely on Bright 
Line constituent contamination levels. All contaminated media or all 
remediation waste would be exempt from RCRA Subtitle C under these 
options. Rather than using the Bright Line to determine management 
regimes, site-specific Remediation Management Plans would specify the 
management standards.
    The Agency examined three alternative Bright Lines for the 
``Economic Assessment.'' The findings are presented in Appendix C to 
the full

[[Page 18841]]

``Economic Assessment,'' which is located in the docket for this 
action. The Bright Line for Alternative One (1) matches the proposed 
Bright Line but includes ground water leachate as an additional 
exposure pathway. The Alternative Two (2) Bright Line is based upon a 
compilation of the most stringent levels combining numbers from the 
Multipathway Analysis, constituent-specific ground water levels, and 
Exemption Quantitation Criteria (EQCs) for constituents without 
adequate analytical methods, or for which exit levels are below 
detection. The Alternative Three (3) Bright Line multiplies Soil 
Screening Levels for both carcinogens and non-carcinogens by 1,000, 
corresponding to a 10<SUP>-3 cancer risk and a hazard quotient of 
1,000, respectively. Appendix A of the full ``Economic Assessment'' 
provides the Bright Line levels for each constituent for the proposed 
Bright Line and the three alternative Bright Lines. Appendix C of the 
``Economic Assessment'' discusses the findings for Alternatives 1, 2, 
and 3.
    c. Data sources and methodology. The ``Economic Assessment'' of 
this proposed action analyzes the impact of HWIR-media options on the 
following types of remediation wastes: soils, sediments, ground water, 
old waste, and debris. Soils, sediments, and ground water are analyzed 
under the contaminated media only options (see Exhibit A), while old 
waste and debris are included under the all remediation waste options. 
Sludges at remediation sites frequently are found to be mixed with soil 
and sediment. These sludges are generally inseparable and occasionally 
indistinguishable from their host media. Such mixtures are included in 
the soil volumes analyzed under all options. Sludges were also found to 
be occasionally classified as old waste. Sludges identified in this 
manner are included in the old waste volumes examined under the all 
remediation waste options. The vast majority of media-like sludges, 
however, are believed to be generated from operating Subtitle C and 
Subtitle D surface impoundments and managed as hazardous waste. A 
sensitivity analysis presented in the Economic Assessment examines 
potential cost savings of applying the proposed Bright Line to sludges 
from these facilities. Data and analytical limitations have prevented 
an analysis of surface water impacts under the HWIR-media options.
    The ``Economic Assessment'' projects a full range of potential cost 
savings from HWIR-media options; it does not attempt to estimate the 
actual cost savings. EPA used this approach because of the substantial 
uncertainties affecting the implementation of HWIR-media, including (1) 
the extent of State adoption of the rule; (2) the impact of the 
existing corrective action management unit (CAMU) rule, which has been 
disrupted by litigation; and (3) the extent of voluntary use of the 
HWIR-media flexibility by remediation decision-makers. To simplify the 
analysis, the Economic Assessment first estimates high-end potential 
cost savings by assuming that (1) all States quickly adopt HWIR-media; 
(2) the CAMU rule is ineffective; and (3) less expensive management 
methods are chosen when available under HWIR-media. Sensitivity 
analyses are then developed that address the impacts of these 
assumptions, resulting in a broad range of potential economic impacts. 
The Agency recognizes that HWIR-media may stimulate a certain degree of 
accelerated cleanup activity and corresponding cost impacts immediately 
following promulgation but has not developed a sensitivity analysis for 
this potential scenario.
    For soil and sediment, EPA's analysis of potential cost savings of 
HWIR-media was conducted in six steps: (1) Develop an HWIR-media 
database of a sample of CERCLA remedial action and RCRA corrective 
action contaminated soil and sediment sites, detailing the amount of 
contaminated soil and sediment at each site and the maximum 
concentration of each hazardous constituent in each volume; (2) develop 
a basis for predicting the management technologies and costs for each 
site in the database under both the baseline and the HWIR-media 
options; (3) project the methods and costs of managing contaminated 
soil and sediment under the baseline of current Subtitle C requirements 
for the sample of sites in the HWIR-media database; (4) project the 
methods and costs of managing soil and sediment under the HWIR-media 
options for the sites in the database; (5) estimate the annual volume 
of soil and sediment to be remediated at all CERCLA remedial action, 
RCRA corrective action, RCRA closure, State superfund, and voluntary 
cleanup sites; and (6) estimate potential high-end aggregate cost 
savings by multiplying the changes in weighted average management costs 
under Steps 3 and 4 by the annual volumes from Step 5.
    The Agency compiled a soil and sediment database using available 
data reported in CERCLA Records of Decision (RODs) signed in Federal 
fiscal years 1989 through 1993, the Corrective Action Regulatory Impact 
Analysis, and supporting research. Management methods were assigned to 
particular volumes of contaminated soil and sediment in the HWIR-media 
database based on the type of hazardous constituents in the 
contaminated media, the concentration of these hazardous constituents, 
and the volume to be remediated. The baseline and HWIR-media 
contaminated soil and sediment volumes reflect the amount of 
contaminated media planned to be managed at cleanup sites under current 
regulations. This analysis assumes a baseline site characterization 
cost that remains unchanged under HWIR-media. Beyond this, the HWIR-
media analysis assumes that the unit or general area of contamination 
initially identified as containing constituents above the Bright Line 
will incur the cost of additional sampling and analysis costs. This is 
necessary to refine estimates of ``hot spot'' volumes and to 
distinguish between volumes above and below the Bright Line at specific 
sites. These incremental sampling and analysis costs are estimated at 
two dollars per ton for all soils and sediments. Volumes below the 
Bright Line will not incur these new costs. The Agency has not 
estimated the difference in implementation costs between the Bright 
Line and Expanded Bright Line options. The Expanded Bright Line option 
may result in lower incremental implementation costs because it avoids 
the need to separately characterize and manage contaminated media and 
other remedial wastes that are mixed together. Additional sampling and 
analysis costs are not incurred for volume partitioning under the no 
Bright Line option.
    The media volume and cost estimates developed in Steps 1 through 4 
above apply to a sample of RCRA and CERCLA facilities included in the 
HWIR-media database. The HWIR-media proposal, as written, will affect 
additional soil and sediment volumes from other actions, including RCRA 
closures, State Superfund sites, and voluntary cleanups. The baseline 
rate of contaminated soil and sediment generation for all potentially 
affected actions is estimated at 8.1 million tons annually for the 
period from 1996 through 2000. The results of the HWIR-media database 
analysis for the sample of sites were used to determine the fraction of 
annual contaminated soil and sediment volumes above and below the 
Bright Line and corresponding net cost impacts.
    The methodology used to estimate ground water volumes, costs, and 
cost savings differs from the methodology for contaminated soil and 
sediment because of the lack of site-specific data on volumes of 
contaminated ground water. The ground water analysis used data on

[[Page 18842]]

the hazardous constituents present at actual CERCLA ground water 
cleanup sites (contained in the HWIR-media database) combined with 
randomly generated ground water volume estimates that reflect the 
national distribution of contaminated ground water plume volumes. 
Cleanup cost data were based on an analysis using a modified version of 
EPA's Cost of Remedial Action (CORA) Model. For estimating potential 
ground water cleanup cost savings under HWIR-media, EPA developed a 
methodology consisting of two major components: (1) A Monte Carlo 
simulation that generates hypothetical sites and estimates cleanup 
volumes associated with different target contaminant concentrations; 
and (2) a costing component based on EPA's CORA Model.
    For the analyses conducted under the ``expanded'' options, old 
waste is defined as waste generated prior to the enactment of RCRA. The 
nationwide baseline volume generation of old waste under both RCRA and 
CERCLA is estimated at 1.8 million tons annually. This volume was 
estimated based on a comparison of the results of RCRA Corrective 
Action RIA analysis, HWIR-database results for RCRA soil, and database 
results for old waste at RCRA sites. Experts indicate that management 
methods for old wastes are typically similar to those for contaminated 
soil. Cost savings from HWIR-media, therefore, are estimated by 
applying the approach used for contaminated soils. Only the expanded 
options, which incorporate all remediation wastes into the HWIR-media 
analysis, address old waste.
    The expanded options, which incorporate all remediation waste, also 
address hazardous debris. EPA gathered information on the current and 
projected management of hazardous debris from past regulatory and cost 
impact analyses, supplemented by expert opinion and best professional 
judgment. Total baseline contaminated debris generation is estimated at 
0.36 million tons annually. The cost and economic impact analysis 
prepared for the Phase I Land Disposal Restrictions (LDR) rule for 
hazardous debris provided information on the amount of debris generated 
from cleanup activities, technologies used to manage the debris, and 
the projected average cost of treating debris under the baseline. EPA 
contacted several industry experts to discuss potential management 
practices under HWIR-media. The Agency also used the Corrective Action 
RIA for costs of Subtitle C and on-site disposal units, while the 
Subtitle D cost was derived from published sources.
    d. Findings. This section presents the key findings of the 
``Economic Assessment.'' The volumes of remediation wastes affected and 
associated net cost savings for the proposed option are presented. 
Findings for the primary alternatives are also presented. In addition, 
this section briefly summarizes key sensitivity analyses, non-monetary 
effects (both positive and negative), and industry impacts.
    i. Volume Impacts and Cost Savings Proposed and Expanded Bright 
Line Options. Exhibit B identifies the portion of remediation waste 
that is estimated to be above and below the Proposed Bright Line Option 
(Proposed Rule) and the Expanded Bright Line Option. Ground water is 
excluded from this summary because the volume of ground water treated 
under the baseline and under HWIR-media is a function of the treatment 
duration required to achieve target constituent concentrations. 
Therefore, the total volume of contaminated ground water cannot be 
simply divided into volumes above and below the HWIR-media Bright Line. 
The Agency, however, estimates that only about 5 percent of CERCLA 
ground water sites contaminated with HWIR-media constituents have 
constituent concentrations that are all below the Bright Line.

          Exhibit B.--Remediation Wastes Above and Below the Proposed and Expanded Bright Line Options          
                                             [Million tons per year]                                            
----------------------------------------------------------------------------------------------------------------
                                                                  Above bright line         Below bright line   
                   Media type                      Baseline  ---------------------------------------------------
                                                                 Volume      Percent       Volume      Percent  
----------------------------------------------------------------------------------------------------------------
Soil--CERCLA, State, and Voluntary.............         3.08         1.23           40         1.85           60
Soil--RCRA.....................................         4.56         0.46           10         4.10           90
Sediment--CERCLA...............................         0.14         0.04           25         0.10           75
Sediment--RCRA.................................         0.32         0.03           10         0.29           90
Proposed Bright Line Option....................         8.10         1.76           22         6.34           78
Old Waste--CERCLA..............................         0.65         0.24           37         0.41           63
Old Waste--RCRA................................         1.14         0.42           37         0.72           63
Debris.........................................         0.36                                                    
Expanded Bright Line Option....................        10.25         2.42           24         7.47          76 
----------------------------------------------------------------------------------------------------------------
Note: The above and below bright line estimates exclude debris. Representative constituent concentration data   
  for debris were unavailable.                                                                                  

    The total annual volume of soil and sediment subject to RCRA 
Subtitle C jurisdiction may decline by up to 78 percent under the 
proposed option. Subtitle C volume under the proposed option drops from 
the baseline of 8.10 million tons to 1.76 million tons annually. The 
addition of old waste and debris under the expanded Bright Line option 
increases the total annual Subtitle C baseline volume to 10.25 million 
tons annually, an increase of 27 percent. The total volume eligible for 
exclusion from Subtitle C increases 18 percent, going from 6.34 million 
tons to 7.47 million tons annually.
    The potential reduction in the volume of remediation waste managed 
under Subtitle C is the major reason for the cost savings of the 
Proposed HWIR-media Rule. Management procedures for remediation wastes 
below the Bright Line are substantially less costly due to less 
stringent requirements. In addition, treatment requirements for volumes 
above the Bright Line are modified, resulting in additional cost 
savings. The ``Economic Assessment'' estimates that about 84 percent of 
the potential cost savings of the proposed rule are from volumes below 
the Bright Line; the remaining savings are from volumes above the 
Bright Line.
    Exhibit C presents point estimates for high-end total cost savings 
potentially resulting from the HWIR-media Proposal. These estimates are 
presented by remediation waste type, for the Proposed and the Expanded 
Bright Line Options. The potential high-end aggregate nationwide cost 
savings under the Proposed Bright Line Option are

[[Page 18843]]

estimated at $1.2 billion, annually. This estimate is derived from an 
annual baseline management cost estimate of $2.4 billion, covering 
soil, sediment, and groundwater. Most of the savings under the proposed 
option, $1.1 billion, result from reduced RCRA and CERCLA soil 
management costs. The Expanded Bright Line Option has a baseline 
management cost estimate of $3.2 billion, annually. The management 
costs under this HWIR-media option are reduced to $1.6 billion, 
resulting in net cost savings of approximately $1.6 billion per year. 
All estimated cost savings are net of implementation costs for the 
affected volumes, as discussed under section (4)(c) above. Actual 
nationwide cost savings may be significantly less than high-end 
estimates presented here. As noted earlier, several factors may 
contribute to reduced savings, including: the extent of State adoption, 
the impact of existing CAMU rule, and the extent to which remediation 
decision-makers adopt the less expensive media management technologies 
available under HWIR-media.

         Exhibit C.--Estimated High-End Cost Savings Under the Proposed and Expanded Bright Line Options        
----------------------------------------------------------------------------------------------------------------
                                                                       Annual total cost                        
                                                              ---------------------------------- Net annual cost
                          Media type                                               HWIR-media        savings    
                                                                   Baseline         options                     
----------------------------------------------------------------------------------------------------------------
                                                                                Million Dollars                 
                                                                                                                
                                                              --------------------------------------------------
Soil--CERCLA, State, and Voluntary...........................            1,152              522        630 (55%)
Soil--RCRA...................................................              670              251        419 (63%)
Sediment--CERCLA.............................................               47               19         28 (63%)
Sediment--RCRA...............................................               52               22         30 (57%)
Ground Water--CERCLA.........................................              223              169         54 (24%)
Ground Water--RCRA Corrective Action.........................              281              213         68 (24%)
Proposed Bright Line Option..................................            2,425            1,196      1,229 (51%)
Old Waste--CERCLA............................................              165               85         80 (49%)
Old Waste--RCRA..............................................              290              149        141 (49%)
Debris.......................................................              294              203         91 (31%)
Expanded Bright Line Option..................................            3,174            1,633       \35\ 1,541
                                                                                                           (49%)
----------------------------------------------------------------------------------------------------------------
\35\ Inclusion of sludges increases this total to $1,732 million annually.                                      

    Conditional Exemption and Expanded Conditional Exemption (no Bright 
Line) Options. Volume impacts and potential net cost savings under the 
Conditional Exemption Options are difficult to estimate because these 
options do not establish specific Bright Line levels for contaminant 
concentrations, or any minimum treatment standards. Instead, the 
management of contaminated media (Conditional Exemption) or 
contaminated media and other remediation wastes (Expanded Conditional 
Exemption) would be determined by individual States or oversight 
agencies based on site-specific cleanup plans. Because of the lack of 
cleanup management standards or detailed guidance, States or oversight 
authorities may continue to follow current standards and cleanup 
decisions may be delayed or continue to be delayed. Thus, the 
conditional exemption options, despite increased flexibility, may 
actually achieve fewer cost savings than the Proposed Bright Line 
Option in the near term.
    Over time, however, States are likely to develop their own explicit 
standards and guidelines for cleanup decisions that may be roughly 
equivalent to the Bright Line scenario. Conversations with various 
State officials have indicated that contaminated media containing 
concentrations close to the proposed Bright Line levels would likely be 
managed as if it were above the Bright Line. Eventually, therefore, 
State standards may likely be set similar to the proposed Bright Line 
levels. This would result in similar cost savings for the Conditional 
Exemption Options, over the longer term. The Conditional Exemption 
Options do, however, allow more management flexibility than the Bright 
Line Options. The Agency is not able to predict how various factors 
will affect State selection of cleanup remedies under the Conditional 
Exemption Options. EPA, therefore, has no basis to believe that, over 
the long term, cost savings under the Conditional Exemption Options are 
likely to be significantly different compared to the Bright Line 
Options.
    ii. Sensitivity analyses. The ``Economic Assessment'' contains 
several sensitivity analyses, including analyses of three major 
analytical assumptions used to develop the baseline:

--all States quickly adopt and implement the HWIR-media Proposal;
--corrective action management units (CAMUs) and temporary units (TUs) 
are not used at any cleanup sites; and
--cleanup waste containing only a hazardous characteristic, in addition 
to media contaminated with listed hazardous wastes, are affected by 
HWIR-media.

    The Agency has also developed a table designed to illustrate the 
distinctions between the baseline and corresponding management costs 
and cost savings under alternative policy options and implementation 
scenarios. This table is presented under ``Other Sensitivity Analyses'' 
at the end of this section.
    State adoption. The options analyses presented above assume all 
States adopt, receive EPA authorization, and implement HWIR-media upon 
promulgation of the Final Rule. This scenario may not be completely 
realistic. Some States may not develop HWIR-media programs. 
Furthermore, programs that are developed are not likely to become 
effective immediately after the final rule is promulgated. These State 
programs will likely receive EPA authorization over a few years. In 
addition, States that do not adopt HWIR-media may influence program 
development and cleanup decisions in other States because of such 
factors as industry pressures, local or regional environmental issues, 
or public concerns and perceptions.
    California, Illinois, New Jersey, New York, and Pennsylvania are 
the major generators of contaminated media in the United States. These 
States, combined, generate roughly 35 percent of the total annual 
volume of contaminated media managed ex-situ in the nation. These

[[Page 18844]]

States may be more likely to develop HWIR-media programs than other 
States for several reasons. For example, generators located in these 
States may be large potential beneficiaries from the rule. In addition, 
these States are likely to have larger and better developed cleanup 
programs and resources, allowing for protective site-specific cleanup 
decisions, and oversight. If only these States adopt HWIR-media, total 
annual cost savings may be reduced by approximately 60 to 70 percent. 
This assumes the remediation waste types and contaminants in these 
States are representative of the national total.
    Another method for estimating the potential impacts of State 
adoption is a phased-in approach. Previous Agency-State interaction 
experience under RCRA indicates roughly 33 percent of the impacts of 
HWIR-media may begin accruing within one year after promulgation, 67 
percent after two years, and 100 percent after three years. Total cost 
savings under HWIR-media may correspond to such a phased-in scenario.
    Corrective Action Management Units (CAMUs). On February 16, 1993, 
the Agency published final regulations for corrective action management 
units (CAMUs) and temporary units (TUs). Under this action, placement 
of remediation wastes in an approved CAMU would not trigger land 
disposal restriction (LDR) requirements or minimum technology 
requirements (MTRs). Critics of this action brought suit against the 
Agency, challenging both the legal and policy basis for the CAMU Rule. 
The Agency has agreed to reexamine the CAMU regulations in the context 
of HWIR-media. Because of the litigation, the resulting limited use of 
CAMUs and the likely CAMU phase-out, the HWIR-media analysis assumed 
that CAMUs do not, and have never existed. Some CAMUs, however, 
currently exist and are grandfathered into the HWIR-media proposal. The 
Agency has conducted a sensitivity analysis, assuming the final 
``expanded'' CAMU is effective in the baseline, in an effort to analyze 
the potential maximum impact of the CAMU provision.
    There are some differences in the types of benefits achieved by 
CAMU and HWIR-media rules. This analysis assumes that the two rules 
achieve similar benefits for contaminated soils and sediments. The 
Agency's analysis in support of the final expanded CAMU Rule 
(``Regulatory Impact Analysis of the Final Rulemaking on Corrective 
Action Management Units and Temporary Units,'' Office of Solid Waste, 
U.S. EPA, January 11, 1993) estimated that the rule would reduce the 
volume of contaminated soil and sediment subject to LDR standards by 57 
percent for CERCLA volumes and 72 percent for RCRA volumes. Based on 
these percentages, the Agency estimates that potential soil and 
sediment cost savings HWIR-media would decline by approximately $640 
million or 52 percent if the final ``expanded'' CAMU rule was fully 
effective.
    Listed versus characteristic contaminated media. The proposed rule 
does not distinguish between media contaminated with listed hazardous 
wastes, and media that must be managed as hazardous waste because it 
exhibits a characteristic. In both cases, the concentration levels of 
individual hazardous constituents in the media determine how the media 
will be regulated under HWIR-media. Early HWIR-media discussions 
focused only on media contaminated with listed hazardous waste. A 
sensitivity analysis was conducted for CERCLA and RCRA contaminated 
soil volumes. This analysis indicates the potential net savings from 
the Proposed Bright Line Option may be reduced by up to 10 percent if 
characteristic only media volumes were removed from HWIR-media 
consideration.
    Other sensitivity analyses. Previous sensitivity analyses 
independently examined potential impacts on cost savings associated 
with limited state adoption, fully effective expanded CAMU, and 
characteristic contaminated media. This discussion compares the effects 
of limited state adoption, CAMU impacts under alternative 
implementation scenarios, and extends the analysis to the expanded 
Bright Line and no Bright Line (Unitary Approach) option. The purpose 
of this discussion is to present a direct comparison of impacts 
potentially associated with alternative policy options and 
implementation scenarios relevant to CAMU and HWIR-media.
    The HWIR-media analysis is difficult to compare to the CAMU cost 
savings analysis. There is wide variation in assumptions related to 
baseline treatments, affected facilities, remediation waste types and 
volumes, and the projected remediation time frame for each analysis. 
The relationship between CAMU and alternative HWIR-media options 
presented in this section should be considered for general comparative 
purposes only.
    Limited implementation of HWIR-media, as defined in this analysis, 
assumes HWIR-media adoption by the five states listed above. Limited 
implementation of CAMUs implies that only grand fathered CAMUs will 
operate. Aggressive implementation assumes 100 percent state adoption 
of HWIR-media and the final ``expanded'' CAMU rule. Total annual 
baseline management costs for HWIR-media affected remediation wastes, 
assuming full LDR compliance, are estimated at $3.52 billion (Exhibit 
D). This estimate covers RCRA and CERCLA soils and sediments, 
groundwater, old waste, debris, and sludges. Aggressive implementation 
of the expanded CAMU rule, covering all remediated waste except 
groundwater, would reduce this estimate to $2.67 billion, resulting in 
annual cost savings of approximately $0.84 billion. These savings were 
estimated to range from $1.20 to $2.00 billion in the January 11, 1993 
Regulatory Impact Analysis for CAMU. A significant reduction in the 
level of incineration applied in the baseline accounts for the majority 
of this difference. Furthermore, CAMU assumed accelerated clean-up 
(remediation) levels in the years immediately following rule 
promulgation. Data available to the Agency since completion of the CAMU 
analysis in 1993 have proven both of these factors to be significantly 
overestimated. Cost savings attributable to only the current in-place 
(grand fathered) CAMUs are estimated at $0.04 billion annually.
    The HWIR-media proposal and options reflect annual aggregate cost 
savings above and beyond the revised estimate for expanded CAMU. 
Aggressive implementation of the HWIR-media proposal, without CAMU 
consideration, is estimated to result in high-end cost savings of $1.23 
billion beyond the baseline for soils, sediments, and groundwater. 
These savings are reduced to approximately $0.43 billion under the 
limited implementation scenario. Annual cost savings with the inclusion 
of old waste, debris, and sludges under the Expanded Bright Line and 
Unitary options may range anywhere from $0.61 to $2.07 billion, 
depending upon the option and extent of state adoption.
    The Agency also examined the potential aggregate cost savings 
assuming both promulgation of HWIR-media, and retaining the expanded 
CAMU rule. Annual cost savings assuming full state adoption increase by 
approximately $0.59 billion beyond the HWIR-media proposal without 
CAMU. These incremental savings are derived from the inclusion of 
additional facilities previously unaffected by CAMU, plus an expanded 
media scope covering soils, sediments, and groundwater. With limited 
state adoption of HWIR-media, savings

[[Page 18845]]

increase by about $0.04 billion annually, derived only from 
groundwater. While not presented in Exhibit D, full implementation of 
the HWIR-media Unitary Approach option was found to provide no 
incremental savings beyond the expanded CAMU rule. The extent of 
implementation of both CAMU and HWIR-media has a significant impact on 
incremental and aggregate cost savings. Aggressive implementation of 
the HWIR-media proposal, combined with the final ``expanded'' CAMU, 
results in aggregate annual cost savings of $1.44 billion, or 
approximately 17 percent beyond the HWIR-media only scenario. Aggregate 
savings, while significantly lower overall, increase from $0.43 to 
$0.88 billion when the HWIR-media limited implementation scenario is 
combined with the final ``expanded'' CAMU.

  Exhibit D.--Estimated Remediation Waste Management Costs Under Alternative Policy Options and Implementation  
                                                    Scenarios                                                   
----------------------------------------------------------------------------------------------------------------
                                                                            Implementation Scenario             
                                                             ---------------------------------------------------
                                                                     Aggressive          Limited Implementation 
                                                                   Implementation      -------------------------
        Remediation waste baseline and policy option         --------------------------                         
                                                              Remediation               Remediation             
                                                                 waste         Cost        waste         Cost   
                                                               management    savings     management    savings  
                                                                 costs                     costs                
----------------------------------------------------------------------------------------------------------------
                                                                           Billion Dollars Per Year             
                                                                                                                
                                                             ---------------------------------------------------
Baseline <SUP>36 management costs: (no CAMU, no HWIR-media, all                                                      
 remediation waste).........................................         3.52  ...........         3.52  ...........
Policy option and impact from baseline: Corrective Action                                                       
 Management Units (CAMU)....................................         2.67      <SUP>37 0.84         3.48         0.04
HWIR-media bright-line Proposal: (no CAMU consideration)....         2.29         1.23         3.09         0.43
Aggregate Cost Savings: HWIR-Media Bright-Line proposal with                                                    
 expanded CAMU..............................................         2.08         1.44         2.63         0.88
HWIR-media expanded bright-line option: (no CAMU                                                                
 consideration).............................................         1.79         1.73         2.91         0.61
HWIR-media expanded no bright-line option (unitary                                                              
 approach): (no CAMU consideration).........................         1.45         2.07         2.79        0.73 
----------------------------------------------------------------------------------------------------------------
\36\ This baseline includes CERCLA cleanup volumes managed under the Area of Contamination (AOC) concept.       
  Current AOC management of RCRA volumes is believed to be negligible and is not included in this baseline.     
\37\ Updated data leading to significant revisions in baseline treatment methods, costs, volumes affected, and  
  remediation schedule have led the Agency to adjust this figure from earlier estimates.                        

    iii. Nonmonetary positive and negative effects. Currently, cleanup 
activities generating contaminated media containing a listed hazardous 
waste or exhibiting a hazardous characteristic are subject to the LDRs 
and MTRs when they involve placement of waste upon the land. When LDRs 
are triggered, contaminated media are subject to stringent and often 
costly treatment standards. Cleanup decision-makers, therefore, often 
prefer remedies that leave contaminated media in place in an effort to 
avoid triggering the LDRs. When MTRs are triggered by the creation, 
expansion, or replacement of landfills and surface impoundments 
managing hazardous waste, contaminated media are subject to technical 
standards for liner, cover, and leachate collection systems. Thus, 
cleanup decision-makers have, in the past, avoided consolidating or 
otherwise moving contaminated media during cleanup to bypass the MTRs.
    When the costs resulting from LDRs and MTR are incorporated into a 
cleanup decision many cleanups become economically infeasible. The 
Agency believes, however, that with the increased flexibility and 
corresponding cost savings under the HWIR-media Proposed Rule, facility 
and site managers will conduct more cleanups than are currently being 
performed. Several factors would provide incentives to perform cleanups 
if excessive LDR and MTR costs were not incurred. For example, cleaning 
up a site reduces future potential liability, increases the salability 
of the land, and may generate public good will. Exhibit E summarizes 
the anticipated changes in management methods under HWIR-media.

        Exhibit E.--Anticipated Incentives Created by HWIR-media        
------------------------------------------------------------------------
                                    HWIR-media                          
                                  incentives for    Reason for change or
   Baseline management plans      non-hazardous          no change      
                                      media                             
------------------------------------------------------------------------
No excavation or treatment      Manage in-situ or  LDRs either would not
 (e.g., containment).            ex-situ.           apply or would be   
                                                    more flexible and   
                                                    therefore a less    
                                                    costly ex-situ      
                                                    method may be       
                                                    chosen. Could also  
                                                    encourage in-situ or
                                                    on-site ex-situ     
                                                    management because  
                                                    HWIR-media lets a   
                                                    facility operate    
                                                    under a Remediation 
                                                    Management Plan     
                                                    instead of a more   
                                                    costly Part B permit
                                                    for in-situ or ex-  
                                                    situ treatment.     
Manage in-situ................  Manage ex-situ...  LDRs either would not
                                                    apply or would be   
                                                    more flexible and   
                                                    therefore a less    
                                                    costly (non-LDR) ex-
                                                    situ method may be  
                                                    chosen.             
Manage ex-situ................  None; would still  Previously preferred 
                                 choose ex-situ     ex-situ to in-situ  
                                 treatment.         or no treatment;    
                                                    ability to select a 
                                                    less costly ex-situ 
                                                    method under HWIR-  
                                                    media will not cause
                                                    shift from ex-situ  
                                                    management. May,    
                                                    however, choose a   
                                                    less expensive ex-  
                                                    situ method.        
------------------------------------------------------------------------


[[Page 18846]]


    Although HWIR-media will reduce the stringency of regulation for 
some media currently managed as hazardous waste, EPA does not expect 
any of the options to significantly increase risks to human health and 
the environment for two reasons. First, there is a built-in process to 
minimize these risks under the HWIR-media proposal, namely State or EPA 
oversight of cleanups through Remediation Management Plan review, 
approval, and oversight. Second, under all of the options considered, 
active management of contaminated media is likely to eliminate possible 
exposure pathways. Thus, the Agency believes that the potential for 
negative benefits, that is, potential increases in risk, is negligible. 
Thus, EPA's selection of a regulatory option is driven primarily by 
balancing option protectiveness, improved long-term effectiveness of 
cleanups, implementation issues, and overall cost savings.
    iv. Industry impacts. The economic impacts of HWIR-media will be 
distributed across industries that generate contaminated media and 
other remediation waste, as well as the environmental services industry 
which helps manage such contamination. All regulatory options will 
result in cost savings for generating industries and revenue losses, to 
some extent, for the commercial environmental services industry.
    Petroleum and coal products (SIC 29), chemicals and allied products 
(SIC 28), and fabricated metals products (SIC 34), are the major 
industries generating contaminated media that will be affected by HWIR-
media. Firms in these industries will be the main beneficiaries of cost 
savings from changes in cleanup practices. Total potential cost savings 
by industry, however, are estimated to represent less than 0.1 percent 
of each industry's aggregate annual revenues. Firm level impacts within 
affected industries are likely to be more diverse, depending upon the 
nature and extent of individual facility/firm cleanup responsibilities. 
Potential remedial action cost savings for an affected ``typical firm'' 
in the chemicals or fabricated metals industry are estimated to 
represent less than 2.0 percent of annual revenues.
    The initial HWIR-media cost savings associated with a particular 
cleanup or set of cleanups could range from a one-time event (for firms 
with a single unit), to a continuous stream over the next 15 to 20 
years for firms with multiple units/sites. These cost savings may help 
stimulate productive efficiencies, both on a micro- and macroeconomic 
level, depending upon how the cost savings are managed. Investment of 
the savings in the form of increased capital reserves, new capital 
purchases, or increased research and development may have long-term 
positive economic impacts on affected firms, and the general economy. 
Furthermore, much of the cost of most cleanup activities often falls on 
insurance companies. A reduction in projected remedial action costs as 
a result of HWIR-media may stimulate competitive insurance companies to 
lower premiums in an effort to expand market share.
    Unlike in the case of generators, the effect of any cost savings 
associated with this rule will be to reduce the revenue stream to firms 
in the commercial environmental services industry. These firms work for 
a variety of generators who schedule cleanups at different times in the 
future. HWIR-media will not, however, have a uniform impact on the 
entire industry. Instead, the impacts will vary across three distinct 
industry segments: (1) the solid waste management industry segment, 
which provides transportation and disposal services for non-hazardous 
waste and contaminated media, (2) the hazardous waste management 
industry segment, which provides transportation and disposal services 
for hazardous waste and contaminated media, and, (3) the cleanup 
services industry segment, which provides engineering and technical 
advice for management of hazardous wastes.
    The demand for the services of the solid waste management industry 
segment will increase under HWIR-media as more remediation wastes are 
disposed of in Subtitle D landfills. In contrast, the hazardous waste 
management industry segment could face a reduction in their revenue 
streams as smaller volumes are likely to be managed at commercial 
Subtitle C facilities. In addition, volumes that continue to be managed 
at such facilities may require less extensive treatment. The cleanup 
services industry segment is likely to incur reductions in their 
revenue streams under HWIR-media because over 95 percent of hazardous 
wastes and media are managed on-site. This implies that a large portion 
of projected cost savings to generators may translate into reduced 
revenues for this industry.
    These industry segments are not mutually exclusive. Many of the 
larger firms in the environmental services industry operate in more 
than one segment of the industry. In addition, the analysis does not 
consider the impact of HWIR-media in increasing the speed of cleanup 
and stimulating new cleanups, which will offset revenue losses.
    A decrease in demand for the services of the environmental services 
industry under HWIR-media will lower prices in the short-run as firms 
compete for the lower demand. At a lower price, however, services may 
be offered at a loss. Consequently, environmental services firms may 
exit the industry, consolidate, or decrease in size, and the supply of 
services may decline, until a new long-run equilibrium is reached.
5. Regulatory Issues
    Regulatory issues most pertinent to this proposed action include 
environmental justice and Federal unfunded mandates. Both of these 
issues are discussed below.
    a. 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 to incorporate environmental 
justice into its policies and programs. To address this goal, EPA 
examined the impacts of HWIR-media on low-income populations and 
minority populations. EPA concluded that HWIR-media will advance 
environmental justice, as follows:

--By encouraging the use of innovative treatment techniques, HWIR-media 
will reduce the number of hazardous waste incinerators that need to be 
located throughout the nation. This, in turn, will reduce the 
likelihood of an incinerator being sited in a low-income or minority 
community, thereby avoiding the negative public perceptions associated 
with incinerators.
--HWIR-media will 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 Superfund and other remediation 
resources to address additional sites. By encouraging excavation of 
contaminated media, the HWIR-media proposal 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

[[Page 18847]]

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.
--HWIR-media's public participation provisions will enable local 
residents and other members of the public to participate in the 
development and approval of Remediation Management Plans.

    The Agency believes that the oversight restrictions required under 
the HWIR-media proposal will ensure that increased human health risks 
to local communities are highly unlikely.
    b. Unfunded mandates. The Agency also evaluated the proposed HWIR-
media rule for compliance with the Unfunded Mandates Reform Act of 
1995. Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), P.L. 
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. Rather, 
State and tribal organizations are under no obligation to participate 
in the Part 269 program. In addition, promulgation of the HWIR-media 
rule, because it is considered generally 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 of 
sections 202 and 205 of the UMRA. Finally, EPA has determined that the 
proposed HWIR-media rule contains no regulatory requirements that might 
significantly or uniquely affect small governments. Specifically, the 
program is generally less stringent than the existing program and makes 
no distinctions between small governments and any potentially regulated 
party.

B. Regulatory Flexibility Analysis

    The Regulatory Flexibility Act of 1980 requires Federal agencies to 
assess whether proposed regulations will have a significant economic 
impact on a substantial number of small entities. EPA's ``Guidelines 
for Implementing the Regulatory Flexibility Act'' (May 1992), have 
determined that a Regulatory Flexibility Analysis (RFA) is required for 
all rulemakings, unless no impact is expected on any small entity. 
These guidelines further require the Agency to develop and consider 
alternatives that mitigate the impact of the rule on small entities. 
Furthermore, the Agency reserves the flexibility to tailor the level of 
effort devoted to an RFA based on the severity of a rule's anticipated 
impacts on small entities.
    The Agency has determined that today's proposed rule will not have 
a significant adverse economic impact on a substantial number of small 
entities. HWIR-media confers remediation waste management cost savings 
on the regulated community while imposing implementation costs in cases 
where firms voluntarily seek cost savings. Therefore, in cases where 
remediation wastes are managed in the same manner under any option as 
under the baseline, no additional costs will be incurred under HWIR-
media. If a different management method is used, a generator may have 
to incur additional implementation costs to obtain management cost 
savings. An economically rational generator, however, will change the 
management method and incur these additional implementation costs only 
if it is confident of obtaining net benefits, such as savings on 
remediation waste management.
    In summary, the rule will confer net benefits in situations where 
the generator changes the management method under HWIR-media or impose 
zero net costs in situations where the generator uses baseline 
management methods. Because HWIR-media is not expected to impose net 
costs on any small entities, the Agency has not considered options to 
mitigate the impacts of the proposed rule on such entities. A full 
discussion of HWIR-media in the context of small entities is presented 
in Chapter 6 of the ``Economic Assessment.''

C. Paperwork Reduction Act

    The information collection requirements in this proposed rule have 
been submitted for approval to the Office of Management and Budget 
(OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. An 
Information Collection Request (ICR) document has been prepared by EPA 
(ICR No. 1775.01) and a copy may be obtained from Sandy Farmer, OPPE 
Regulatory Information Division; U.S. Environmental Protection Agency 
(2137); 401 M Street, S.W., Washington, D.C. 20460 or by calling (202) 
260-2740. This Information Collection Request is titled ``Hazardous 
Waste Identification Rule for Contaminated Media'' (or ``HWIR-media'').
    The Agency has estimated the burden associated with complying with 
the requirements of this proposed rule. Included in that burden are 
estimates for industry respondents for complying with the specific 
requirements for: reading the regulations; media treatment variances; 
review of treatment results; content of RMPs; treatability studies; 
approval of RMPs; and expiration, termination and revocation of RMPs. 
For State respondents, the burden was estimated for interstate movement 
of contaminated media; and procedures for authorization of State 
hazardous waste programs.
    The Agency has determined that this collection of information is 
necessary to determine compliance with the requirements of this 
proposal. In addition, the Agency will use the data collected to 
determine if Federal treatment standards are appropriate and whether 
they should be revised in the future. Responses to the collection of

[[Page 18848]]

information will be required to obtain or retain a benefit. For 
industry respondents, that benefit would be the more flexible 
requirements for management of hazardous contaminated media proposed in 
this proposal, instead of having to comply with the current Subtitle C 
standards. For State respondents, adoption of this regulation is 
optional, and the benefit would be for receiving authorization for this 
regulation. Section 3007(b) of RCRA and 40 CFR Part 2, Subpart B, which 
define EPA'sgeneral policy on the public disclosure of information, 
contain provisions for confidentiality. EPA has tried to minimize the 
burden of this collection of information on respondents.
    The universe of respondents is expected to be sites conducting 
cleanup under: RCRA corrective action and closure; State and Federal 
CERCLA (or CERCLA-like) removal and remedial actions; and State 
voluntary cleanup programs which involve approval of RMPs. EPA 
estimates that the industry sites most likely to be affected by these 
requirements will be associated with the following SIC codes: 28 
(Chemical and Allied Products); 2911 (Petroleum Refining); 34 
(Fabricated Metal Products); and 3568 (Power Transmission Equipment).
    EPA estimates that the annual respondent burden hours will be: for 
industry 259,165; for States 3,058; for a total of 262,223. The annual 
costs will be: for industry $63,661,186; for States $88,387; for a 
total of $63,749,573. The average per response for industry respondents 
would be 121.2 hours, and the average per response for state 
respondents would be 174.3 hours. The frequency of response would be 
once. The number of industry respondents would be 2,139 per year, and 
State respondents would be 16 per year.
    EPA estimates total capital and start-up annualized over expected 
useful life to be: for industry $0.00; for states $0.00; total 
operation and maintenance to be: for industry $8.00; for States $8.00; 
and purchases of services to be: for industry $61,497; for States 
$0.00.
    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.
    Comments are requested 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. Send comments on the ``ICR for HWIR-
media'' to the Director, OPPE Regulatory Information Division; U.S. 
Environmental Protection Agency (2137); 401 M St., S.W., Washington, 
D.C. 20460; and to the Office of Information and Regulatory Affairs; 
Office of Management and Budget; 725 17th Street, N.W., Washington, 
D.C. 20503; marked ``Attention: Desk Officer for EPA.'' Include the ICR 
No. 1775.01 in any correspondence.
    Since OMB is required to make a decision concerning the ICR between 
30 and 60 days after April 29, 1996, a comment to OMB is best assured 
of having its full effect if OMB receives it by May 29, 1996. The final 
rule will respond to any OMB or public comments on the information 
collection requirements contained in this proposal.

List of Subjects

40 CFR Part 260

    Hazardous Waste.

40 CFR Part 261

    Hazardous Waste.

40 CFR Part 264

    Hazardous Waste.

40 CFR Part 269

    Administrative practice and procedures, Hazardous Waste, reporting 
and record keeping requirements.

40 CFR Part 271

    Administrative practice and procedure and Intergovernmental 
relations.

    Authority: These regulations are proposed under the authority of 
sections 2002(a), 3001, 3004, 3005, 3006, and 3007 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, 6926, and 6927.

    Dated: April 12, 1996.
Carol M. Browner,
Administrator.

    For the reasons set out in the preamble, 40 CFR Parts 260, 261, 
262, 264, 268, 270 and 271 are proposed to be amended, and Part 269 is 
proposed to be added as follows:

PART 260--HAZARDOUS WASTE MANAGEMENT SYSTEM: GENERAL

Subpart A--General

    1. The authority citation for part 260 continue to read as follows:

    Authority: 42 U.S.C. 6905, 6912(a), 6921-6927, 6930, 6934, 6935, 
6937, 6937, 6938, 6939, and 6974.

    1a. Section 260.1 is amended by revising paragraphs (a), (b) 
introductory text, (b)(1), (b)(2), (b)(3) and (b)(4) to read as 
follows:


Sec. 260.1  Purpose, scope, and applicability.

    (a) This part provides definitions of terms, general standards, and 
overview information applicable to Parts 260 through 269 of this 
chapter.
    (b) In this part:
    (1) Section 260.2 sets forth the rules that EPA will use in making 
information it receives available to the public and sets forth the 
requirements that generators, transporters, or owners or operators of 
treatment, storage, or disposal facilities must follow to assert claims 
of business confidentiality with respect to information that is 
submitted to EPA under Parts 260 through 269 of this chapter.
    (2) Section 260.3 establishes rules of grammatical construction for 
Parts 260 through 269 of this chapter.
    (3) Section 260.10 defines the terms which are used in Parts 260 
through 269 of this chapter.
    (4) Section 260.20 establishes procedures for petitioning EPA to 
amend, modify, or revoke any provision of parts 260 through 269 of this 
chapter and establishes procedures governing EPA's action on such 
petitions.
* * * * *
    2. Section 260.2 is amended by revising paragraph (a) and the first 
sentence of paragraph (b) to read as follows:


Sec. 260.2  Availability of information; confidentiality of 
information.

    (a) Any information provided to EPA under Parts 260 through 269 of 
this chapter will be made available to the public to the extent and in 
the manner authorized by the Freedom of

[[Page 18849]]

Information Act, 5 U.S.C. section 552, section 3007(b) of RCRA and EPA 
regulations implementing the Freedom of Information Act and section 
3007(b), part 2 of this chapter, as applicable.
    (b) Any person who submits information to EPA in accordance with 
parts 260 through 269 of this chapter may assert a claim of business 
confidentiality covering part or all of that information by following 
the procedures set forth in Sec. 2.203(b) of this chapter. * * *
    3. Section 260.3 is amended by revising the introductory text to 
read as follows:


Sec. 260.3  Use of number and gender.

    As used in parts 260 through 269 of this chapter:
* * * * *

Subpart B--Definitions

    4. Section 260.10 is amended by revising the first sentence, by 
removing the second sentence, and by adding paragraph (3) to the 
definition for ``facility'' and adding the definition for ``remediation 
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:
* * * * *
    Facility * * *
* * * * *
    (3) Notwithstanding paragraphs (1) and (2) of this definition, a 
media remediation site, as defined in Sec. 269.3, does not constitute a 
facility for the purposes of Sec. 264.101.
* * * * *
    Remediation Pile means a pile that is used only for the temporary 
treatment or storage of remediation wastes, including hazardous 
contaminated media (as defined in 40 CFR 269.3), during remedial 
operations.
* * * * *

Subpart C--Rulemaking Petitions

    5. Section 260.20(a) is amended by revising the first sentence to 
read as follows:


Sec. 260.20  General.

    (a) Any person may petition the Administrator to modify or revoke 
any provisions in Parts 260 through 273 of this chapter.
* * * * *

PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE

Subpart A--General

    6. The authority citation for part 261 continues to read as 
follows:
    Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, and 6933. 6a. 
Section 261.1(a)(1) is revised to read as follows:

Sec. 261.1  Purpose and scope.

    (a) * * *
    (1) Subpart A defines the terms ``solid waste'' and ``hazardous 
waste,'' identifies those wastes which are excluded from regulation 
under Parts 262 through 270 of this chapter and establishes special 
management requirements for hazardous waste produced by conditionally 
exempt small quantity generators and hazardous waste which is recycled.
* * * * *
    7. Section 261.4 is amended by adding paragraphs (g) and (h) to 
read as follows:


Sec. 261.4  Exclusions.

* * * * *
    (g) Non-hazardous contaminated media. Media that are managed as 
part of remedial activities and that the Director has determined do not 
contain hazardous wastes (according to 269.4), but would otherwise be 
hazardous contaminated media, are not hazardous wastes.
    (h) Dredged material discharged in accordance with a permit issued 
under section 404 of the Federal Water Pollution Control Act [33 U.S.C. 
Sec. 1344] or in accordance with a permit issued for the purpose of 
transporting material for ocean dumping under section 103 of the Marine 
Protection, Research, and Sanctuaries Act of 1972 [33 U.S.C. 1413] is 
not a hazardous waste. For purposes of this subsection, the following 
definitions apply:
    (1) The term ``dredged material'' has the same meaning as defined 
in 40 CFR 232.2.
    (2) The term ``dredged material discharged'' has the same meaning 
as discharge of ``dredged material'' as defined in 40 CFR 232.2.
    (3) The terms ``ocean'' and ``dumping'' have the same meaning as 
defined in 40 CFR 220.2.
    (4) The term ``permit'' means a permit issued by the U.S. Army 
Corps of Engineers (Corps) or approved State under section 404 of the 
Federal Water Pollution Control Act [33 U.S.C. Sec. 1344]; and/or a 
permit issued or by the Corps under section 103 of the Marine 
Protection, Research, and Sanctuaries Act of 1972 [33 U.S.C. 1413]; or 
in the case of a Corps civil-works project, the administrative 
equivalent of a permit, as provided for in Corps regulations (e.g., see 
33 CFR 336.1(b), 33 CFR 336.2(d), and 33 CFR 337.6).

Subpart C--Characteristics of Hazardous Wastes

    8. Section 261.20(b) is revised to read as follows:


Sec. 261.20  General.

* * * * *
    (b) A hazardous waste which is identified by a characteristic in 
this subpart is assigned every EPA Hazardous Waste Number that is 
applicable as set forth in this subpart. This number must be used in 
complying with the notification requirements of section 3010 of the Act 
and all applicable record-keeping and reporting requirements under 
parts 262 through 265 and parts 268 through 270 of this chapter.
* * * * *

Subpart D--Lists of Hazardous Wastes

    9. Section 261.30(c) is revised to read as follows:


Sec. 261.30  General.

* * * * *
    (c) Each hazardous waste listed in this subpart is assigned an EPA 
Hazardous Waste Number which precedes the name of the waste. This 
number must be used in complying with the notification requirements of 
section 3010 of the Act and certain record-keeping and reporting 
requirements under parts 262 through 265 and parts 268 through 270 of 
this chapter.
* * * * *

PART 262--STANDARDS APPLICABLE TO GENERATORS OF HAZARDOUS WASTE

    10. The authority citation for part 262 continues to read as 
follows:

    Authority: 42 U.S.C. 6906, 6912, 6922, 6923, 6925, 6937, and 
6938.

    10a. Section 262.11(d) is revised to read as follows:


Sec. 262.11  Hazardous waste determination.

* * * * *
    (d) If the waste is determined to be hazardous, the generator must 
refer to parts 261, 264 through 269 and part 273 of this chapter for 
possible exclusions or restrictions pertaining to management of the 
specific waste.

[[Page 18850]]

PART 264--STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE 
TREATMENT, STORAGE, AND DISPOSAL FACILITIES

    11. The authority citation for part 264 continues to read as 
follows:

    Authority: 42 U.S.C. 6905, 6912(a), 6924, and 6925.
    11a. Section 264.552 is amended by redesignating paragraphs (a) 
through (h) as paragraphs (c) through (j); and by adding new paragraphs 
(a) and (b) to read as follows:


Sec. 264.552  Corrective Action Management Units (CAMU).

    (a) Corrective Action Management Units may not be approved under 
this subpart after (date of publication of final rule).
    (b) A Corrective Action Management Unit that was approved according 
to the provisions of the subpart prior to (date of publication of final 
HWIR-media rule) remains subject to the requirements of this part.
* * * * *
    12. Part 264 is amended by adding new Sec. 264.554 to subpart S to 
read as follows:


Sec. 264.554  Remediation piles.

    (a) For piles that are used only for the temporary treatment or 
storage of remediation waste (including hazardous contaminated media as 
defined in 40 CFR 269.3) during remedial operations that are conducted 
in accordance with an approved permit or order, 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 
establishing case-by-case standards for remediation piles, the Director 
shall consider the decision factors for temporary units, as specified 
in Sec. 264.553.
    (b) Placement of remediation waste (including hazardous 
contaminated media) into a remediation pile designated in an approved 
permit or order shall not constitute placement in a land disposal unit 
for the purposes of section 3004(k) of RCRA.
    (c) Any remediation pile to which site-specific requirements are 
applied in accordance with paragraph (a) of this section shall be:
    (1) Located within the boundary of the facility or media 
remediation site (as defined in 40 CFR 269.3); and
    (2) Used only for the temporary treatment or storage of remediation 
wastes (as defined in 40 CFR 260.10).
    (d) The Director shall specify in the permit or order the design, 
operating, and closure requirements for any remediation pile, the 
length of time the remediation pile will be allowed to operate, and any 
requirements for control of cross-media contaminant transfer. 
Remediation piles shall not be permitted to operate beyond the time 
that remedial operations are completed.

PART 268--LAND DISPOSAL RESTRICTIONS

    13. The authority citation for part 268 continues to read as 
follows:

    Authority: 42 U.S.C. 6905, 6912(a), 6921, and 6924.

Subpart A--General

    13a. Section 268.1(b) is revised to read as follows:


Sec. 268.1  Purpose, scope and applicability.

* * * * *
    (b) Except as specifically provided otherwise in this part, Part 
261 of this chapter, or in cases where hazardous contaminated media are 
subject to treatment standards under Part 269 in this chapter, the 
requirements of this part apply to persons who generate or transport 
hazardous waste and owners and operators of hazardous waste treatment, 
storage, and disposal facilities.
* * * * *
    14. 40 CFR is amended by adding part 269 to read as follows:

PART 269--REQUIREMENTS FOR MANAGEMENT OF HAZARDOUS CONTAMINATED 
MEDIA

Subpart A--General Provisions

Sec.
269.1  Scope.
269.2  Purpose and applicability.
269.3  Definitions.
269.4  Identification of media not subject to regulation as 
hazardous wastes.

Subpart B--Other Requirements Applicable to Management of Hazardous 
Contaminated Media

269.10  Applicability of other requirements.
269.11  Intentional contamination of media prohibited.
269.12  Interstate movement of contaminated media.

Subpart C--Treatment Requirements

269.30  Minimum LDR treatment requirements for media.
269.31  Media treatment variances.
269.32  More stringent treatment standards.
269.33  Review of treatment results.
269.34  Management of treatment residuals.
Subpart D--Remediation Management Plans (RMPs)
269.40  General requirements.
269.41  Content of RMPs.
269.42  Treatability studies.
269.43  Approval of RMPs.
269.44  Modification of RMPs.
269.45  Expiration, termination, and revocation of RMPs.

Appendix A to Part 269--HWIR-Media Bright Line Numbers
Appendix A-1 to Part 269--Bright Line Numbers
Appendix A-2 to Part 269--Bright Line Numbers for Ground Water
Appendix B to Part 269--Submittal of Treatability Data

    Authority: 42 U.S.C. 6912(a), 6921, 6924, 6925, and 6926.

Subpart A--General Provisions


Sec. 269.1  Scope.

    (a) The provisions of this part apply only to contaminated media 
that would otherwise be subject to regulation as hazardous wastes under 
RCRA Subtitle C regulations. The only exception is Subpart D of this 
part, which applies to all remediation wastes, including contaminated 
media.
    (b) The provisions of this part modify and replace only certain 
specific Subtitle C regulations as they apply to the management of 
hazardous contaminated media. Other Subtitle C regulations that are not 
specifically addressed under this part will continue to apply to the 
management of hazardous contaminated media.
    (c) The provisions of this part apply only to the treatment, 
storage, transportation and disposal of hazardous contaminated media 
that is conducted pursuant to site remediation activities. This part is 
not intended to affect remedy selection decisions. This part is 
intended to affect only decisions regarding the management of hazardous 
contaminated media as part of cleanup activities.
    (d) The constituent concentration levels specified in Appendix A to 
this part are not cleanup levels, and the Environmental Protection 
Agency does not support their use as cleanup levels under Federal or 
State cleanup programs.
    (e) The provisions of this part are not self-implementing. They may 
be applied to specific remedial actions only as approved by EPA, or a 
State authorized for this part.


Sec. 269.2  Purpose and applicability.

    (a) The purpose of this part is to establish standards for 
management of hazardous contaminated media that are generated as part 
of remedial activities.
    (b) The provisions of this part apply to treatment, storage and 
disposal of hazardous contaminated media which is conducted in 
accordance with a Remediation Management Plan (RMP) approved by EPA or 
a State program authorized for this part.

[[Page 18851]]

    (c) The provisions of this part do not apply to non-media hazardous 
remediation wastes (except Subpart D) or to hazardous contaminated 
media that are not managed in a way that would otherwise subject the 
media to the requirements of this chapter.


Sec. 269.3  Definitions.

    For the purposes of this part, the following definitions apply:
    Bright Line constituent means any constituent found in media that 
is listed in Appendix A of this part, and that is:
    (1) The basis for listing of a hazardous waste (as specified in 
Appendix VII of 40 CFR Part 261) found in that media; or
    (2) A constituent that causes the media to exhibit a hazardous 
characteristic.
    Hazardous contaminated media means media that contain hazardous 
wastes listed in Part 261 Subpart D of this chapter, or that exhibit 
one or more of the characteristics of hazardous waste defined in Part 
261 Subpart C of this chapter, except media which the Director has 
determined do not contain hazardous wastes pursuant to Sec. 269.4 of 
this part (non-hazardous contaminated media).
    Media means materials found in the natural environment such as 
soil, ground water, surface water, and sediments, or a mixture of such 
materials with liquids, sludges, or solids which is inseparable by 
simple mechanical removal processes and is made up primarily of media. 
This definition does not include debris (as defined in 40 CFR 268.2).
    Media remediation site means 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 purpose 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).
    Non-hazardous contaminated media means media that are managed as 
part of remedial activities and that the Director has determined do not 
contain hazardous wastes (according to Sec. 269.4), but would otherwise 
be subject to Subtitle C regulation.
    Remediation Management Plan means the plan that describes 
specifically how hazardous contaminated media will be managed in 
accordance with this part. Such a plan may also include, where 
appropriate, requirements for other remediation wastes and any other 
(non-Part 269) requirements applicable to hazardous contaminated media.
    Sediment is the mixture of assorted material that settles to the 
bottom of a water body. It includes the shells and coverings of 
mollusks and other animals, transported soil particles from surface 
erosion, organic matter from dead and rotting vegetation and animals, 
sewage, industrial wastes, other organic and inorganic materials and 
chemicals.
    Soil means unconsolidated earth material composing the superficial 
geologic strata (material overlying bedrock), consisting of clay, silt, 
sand, or gravel size particles (sizes as classified by the U.S. Soil 
Conservation Service), or a mixture of such materials with liquids, 
sludges, or solids which is inseparable by simple mechanical removal 
processes and is made up primarily of soil.


Sec. 269.4  Identification of media not subject to regulation as 
hazardous wastes.

    (a) The Director may, as appropriate, determine that media which 
are generated and managed as part of remedial activities, and which 
would otherwise be subject to regulation under this chapter, do not 
contain hazardous wastes, provided that:
    (1) There are no Bright Line constituents (as defined in 
Sec. 269.3) in the media in concentrations equal to or greater than 
those specified in Appendix A of this part;
    (2) The basis for the decision that the media do not contain 
hazardous wastes is documented in a Remediation Management Plan (RMP) 
approved in accordance with Subpart D of this part; and
    (3) Appropriate requirements for the management of the media are 
specified in such RMP. Such materials will be considered non-hazardous 
contaminated media (as defined in Sec. 269.3).
    (b) [Reserved]

Subpart B--Other Requirements Applicable to Management of Hazardous 
Contaminated Media


Sec. 269.10  Applicability of other requirements.

    (a) Except where expressly indicated, for hazardous contaminated 
media that are regulated under this part, the applicable requirements 
of 40 CFR Parts 262-267 and 270 continue to apply to the treatment, 
storage, and disposal of hazardous contaminated media.
    (b) For hazardous contaminated media and non-hazardous contaminated 
media that remain subject to LDRs, the provisions of 40 CFR Part 268 do 
not apply, except for the following: 40 CFR 268.2 through 268.7 
(definitions, dilution prohibition, surface impoundment treatment 
variance, case-by-case extensions, no migration petitions, and waste 
analysis and recordkeeping), and 40 CFR 268.50 (prohibition on storage 
prior to land disposal). Compliance with these provisions of Part 268, 
and with the provisions of Subpart C of this part, shall constitute 
compliance with the provisions of section 3004(m) of RCRA.


Sec. 269.11  Intentional contamination of media prohibited.

    No generator, transporter, or owner or operator of a treatment, 
storage, or disposal facility shall in any way deliberately combine 
media and hazardous waste so as to become subject to the provisions of 
this part.


Sec. 269.12  Interstate movement of contaminated media.

    (a) Hazardous contaminated media and non-hazardous contaminated 
media that are transported out of the State in which they are generated 
are subject to the requirements of 40 CFR parts 262-268 and 270 outside 
of the originating State, unless:
    (1) The receiving State and any State through which the waste will 
be transported has been authorized to implement this part (or EPA is 
implementing this part in that State); and
    (2) The generating State notifies the authority implementing Part 
269 in the receiving State and any State through which the material 
will be transported of the plans to transport such media into or 
through that State and provides an opportunity to comment on the draft 
RMP setting out the basis for the classification of such media.
    (b) If a receiving State or a State through which such media are 
transported is authorized for this part 269, that State may determine 
that media originating in other States:
    (1) Contains hazardous waste and must be managed under Parts 261-
268 and 270 when in that State; or
    (2) Contains hazardous waste and must be managed under this part 
when in that State; or
    (3) Contains solid waste and must be managed under that State's 
solid waste or other applicable authorities; or
    (4) Contains no waste.

[[Page 18852]]

Subpart C--Treatment Requirements


Sec. 269.30  Minimum LDR treatment requirements for media.

    (a) The requirements of this subpart apply to the following 
materials when they are removed from the land, except as identified in 
paragraph (b) of this section:
    (1) Media subject to the requirements of this part as identified by 
Sec. 269.1(a), (including media that have been determined, pursuant to 
Sec. 269.4, to no longer contain hazardous wastes) when the waste 
contaminating the media was prohibited from land disposal at the time 
it was placed.
    (2) Media subject to the requirements of this part as identified by 
Sec. 269.1(a), (including media that have been determined, pursuant to 
Sec. 269.4, to no longer contain hazardous wastes) when the waste 
contaminating the media is prohibited from land disposal at the time 
the media is removed from the land. To identify the effective date of 
applicable land disposal prohibitions, see 40 CFR part 268, Appendix 
VII.
    (b) The requirements of this subpart do not apply to media 
identified by paragraph (a)(2) of this section when they are 
determined, pursuant to Sec. 269.4, not to contain hazardous wastes 
before they are removed from the land.
    (c) Media treatment standards must be specified in each RMP for all 
media identified by paragraph (a) of this section.
    (d) Prior to land disposal, media identified in paragraph (a) of 
this section must be treated according to the applicable treatment 
requirements specified in paragraphs (e) and (f) of this section unless 
a variance is given according to Sec. 269.31 (Media Treatment 
Variances), or the Director requires more stringent treatment standards 
according to Sec. 269.32.
    (e) (1) For soils, treatment must achieve the following standards 
for all constituents subject to treatment that are present in the soils 
at concentrations greater than 10 times the Universal Treatment 
Standard for the constituent(s):
    (i) For non-metals, 90 percent reduction in total constituent 
concentrations, except as provided by paragraph (e)(2) of this section.
    (ii) For metals, 90 percent reduction in constituent concentrations 
as measured in leachate from the treated media (tested according to the 
TCLP) or 90 percent reduction in total constituent concentrations, 
except as provided by paragraph (e)(2) of this section.
    (2) When treatment of any constituent subject to treatment to a 90 
percent reduction standard would result in a concentration less than 10 
times the Universal Treatment Standard for that constituent, 10 times 
the Universal Treatment Standard shall be the treatment standard. 
Universal Treatment Standards are identified in 40 CFR 268.48 Table 
UTS.
    (3) In addition to the treatment required by paragraph (e)(1) of 
this section, soils that exhibit the characteristic of ignitability, 
corrosivity, or reactivity must be treated by deactivation technologies 
which eliminate these characteristics.
    (4) In addition to the treatment requirements of paragraphs (e)(1) 
and (3) of this section, the following treatment is required for soils 
that contain nonanalyzable constituents:
    (i) Where the soil also contains analyzable constituents, treatment 
of those analyzable constituents to the levels specified in paragraph 
(e)(1) of this section; and
    (ii) For soils containing only nonanalyzable constituents, 
treatment by the method specified in Sec. 268.42 for the waste 
contained in the media.
    (f) For media other than soils, such as ground water and sediments, 
treatment must achieve the applicable part 268 treatment standard(s) 
for each constituent subject to treatment.
    (g) Constituents subject to treatment are:
    (1) For media identified by paragraph (a) of this section because 
they contain or contained wastes listed under part 261, subpart D of 
this chapter, the constituents identified as regulated hazardous 
constituents in the table ``Treatment Standards for Hazardous Wastes'' 
in Sec. 268.40 of this chapter for such waste; and
    (2) For media identified by paragraph (a) of this section because 
it exhibits a characteristic of hazardous wastes as defined by part 
261, subpart C of this chapter, any constituent listed in 40 CFR 
268.48, Table UTS--Universal Treatment Standards that is present in the 
media, except zinc and vanadium.
    (h) Treatment technologies employed in meeting these treatment 
standards must be designed and operated in a manner that controls the 
transfer of contaminants to other media.


Sec. 269.31  Media treatment variances.

    (a) The Director may approve a variance from a treatment 
standard(s) specified in Sec. 269.30, if the owner/operator 
demonstrates to the satisfaction of the Director that:
    (1) Compliance with the standard(s) is technically impracticable; 
or
    (2) Compliance with the standard(s) would require the use of a 
technology which is inappropriate for the media to be treated because 
the physical or chemical properties of media differ significantly from 
the media EPA examined in establishing the standard, or the standard is 
otherwise inappropriate for the hazardous contaminated media; or
    (b) For media containing all constituents at levels below those 
specified in Appendix A of this part, the Director may approve a 
variance from a treatment standard specified in Sec. 269.30 by 
specifying a level or method of treatment, if any, which substantially 
diminishes the toxicity of the waste or substantially reduces 
likelihood of migration of hazardous constituents from the waste so 
that short- and long-term threats to human health and the environment 
are minimized based on site-specific considerations.
    (c) The Director may request any additional information, including 
additional sampling and analysis, if necessary to evaluate a media 
treatment variance demonstration.
    (d) The Director may specify a media treatment variance as a 
numerical standard or as a specified treatment method or technology.
    (e) Technologies used to comply with media treatment variances must 
optimize efficiency, result in substantial reductions in toxicity or 
mobility of constituents, and control cross media transfer.
    (f) Proposed media treatment variances must be identified in RMPs 
and shall, at a minimum, be subject to the public participation 
requirements for RMPs specified in Sec. 269.43.


Sec. 269.32  More stringent treatment standards.

    For soil, the Director may require that constituents subject to 
treatment be treated to achieve standards more stringent than the 
standards specified in Sec. 269.30, if s/he determines that the 
treatment required under Sec. 269.30(e) and (f) would not substantially 
diminish the toxicity of the waste or substantially reduce the 
likelihood of migration of hazardous constituents from the waste so 
that short-term and long-term threats to human health and the 
environment are minimized, based on site-specific circumstances.


Sec. 269.33  Review of treatment results.

    If data indicate that the treatment standards specified in a RMP 
have not been met, the owner/operator shall:
    (a) Submit a new or modified RMP containing procedures for treating 
the media subject to treatment to compliance with the specified 
treatment standard; or

[[Page 18853]]

    (b) Submit an application for a media treatment variance under 
Sec. 269.31(a) (1) or (2); or
    (c) If appropriate, request that the Director specify a level or 
method of treatment, if any, that would meet the requirement of 
Sec. 269.31(b).


Sec. 269.34  Management of treatment residuals.

    (a) Treatment residuals from treating media identified by 
Sec. 269.30(a) shall be managed as follows:
    (1) Media residuals shall be subject to the standards of this part;
    (2) Non-media residuals shall be subject to the RCRA Subtitle C or 
D standards applicable to the waste contaminating the media before 
treatment.

Subpart D--Remediation Management Plans (RMPs)


Sec. 269.40  General requirements.

    (a) Before hazardous contaminated media may be managed according to 
the provisions of this part, the owner/operator must receive approval 
by the Director of a Remediation Management Plan (RMP), in accordance 
with the procedures in Sec. 269.43.
    (b) A RMP must be an enforceable document, and shall specify 
requirements for management of hazardous and non-hazardous contaminated 
media at a media remediation site, according to the provisions of this 
part and according to other applicable requirements of Subtitle C, 
including 40 CFR part 264 (except subparts B and C). A RMP may also 
incorporate requirements for the management of other remediation wastes 
at a media remediation site, in compliance with applicable provisions 
of part 264 of this chapter.
    (c) For remedial activities involving treatment, storage or 
disposal of remediation wastes that would require a RCRA permit under 
40 CFR 270.1, a RMP approved by the Director, and containing the 
necessary 40 CFR part 264 substantive requirements, shall constitute a 
RCRA permit for those activities, for the purposes of section 3005(c) 
of RCRA.
    (d) The corrective action requirements of sections 3004 (u) and (v) 
of RCRA do not apply to persons engaging in treatment, storage, or 
disposal of hazardous wastes solely as part of a cleanup action 
pursuant to a RMP.
    (e) A RMP may be:
    (1) A stand-alone document that addresses only the requirements of 
this part, and does not address other remedial activities or units; or
    (2) Included as part of a more comprehensive document that 
specifies requirements for compliance with this part, in addition to 
requirements for other remedial activities for the site. Such 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. Examples of such documents may include 
enforcement orders (that meet the minimum notice requirements of 
Sec. 269.43), RCRA permits or permit modifications issued to hazardous 
waste management facilities, or other similar remedial documents 
approved by the Director.
    (f) Approval of a RMP does not convey any property rights of any 
sort, or any exclusive privilege.
    (g) Approval of a RMP does not authorize any injury to persons or 
property or invasion of other private rights, or any infringement of 
State or local law or regulations.


Sec. 269.41  Content of RMPs.

    (a) A draft RMP submitted to the Director for approval must contain 
sufficient information to demonstrate to the Director that the proposed 
management activities for contaminated media at the site will comply 
with the requirements of this part. If a draft RMP is submitted as part 
of a more comprehensive document(s) (in accordance with 
Sec. 269.40(e)(2)), it may simply reference or otherwise identify where 
the information pertaining to part 269 requirements can be found in 
such document(s).
    (b) If a RMP will be used only for the management of investigation 
derived wastes or for treatability studies, the RMP need only include 
the relevant information necessary to determine that the investigation 
or treatability study will be conducted in accordance with applicable 
requirements. It may not be necessary to include all the information 
specified in paragraph (c) of this section.
    (c) The following information must be included in any RMP (except 
as specified in paragraph (b) of this section):
    (1) Information demonstrating that the materials to be managed in 
accordance with this part are media, as defined in Sec. 269.3.
    (2) If applicable, information identifying hazardous remediation 
wastes (other than hazardous contaminated media) which will be managed 
according to the RMP but not under the requirements of 40 CFR part 269, 
and specifying that management of those wastes will comply with the 
applicable requirements of 40 CFR parts 260 through 268.
    (3) If applicable, information identifying non-hazardous 
contaminated media, and specifying how such media will be managed.
    (4) Description of the remediation wastes to be managed in 
accordance with the RMP, including information on constituent 
concentrations, and other properties of media and wastes that may 
affect how such materials should be treated and/or otherwise managed.
    (5) Estimates of volumes of the hazardous contaminated media to be 
managed according to the provisions of this part;
    (6) Plans or proposals specifying the technology(s), handling 
systems, design and operating parameters to be used in treating 
remediation wastes prior to disposal, in accordance with applicable LDR 
standards of Secs. 269.30 through 269.34, or 40 CFR part 268, as 
applicable.
    (7) Information which demonstrates to the Director 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.
    (8) Information which describes planned sampling and analysis 
procedures necessary to characterize the wastes or media to be managed, 
to ensure effective treatment of the materials has occurred, and to 
demonstrate compliance with the treatment standard, including quality 
assurance and quality control procedures.
    (9) Agreement to submit data as specified in Appendix B of this 
part regarding treatment information from both treatability studies and 
full scale implementation of treatment systems conducted for the 
remedial activities under this RMP. Data from treatability studies 
shall be submitted as soon as the treatability study (or studies) has 
been completed. Full scale implementation data shall be submitted every 
three years, or after cleanup has been completed, whichever is first.
    (10) Other information determined by the Director to be necessary 
for demonstrating compliance with the provisions of this part.


Sec. 269.42  Treatability studies.

    (a) If the Director determines that a treatability study is 
necessary to determine the efficacy of a proposed treatment technology, 
and if conduct of the study requires a RCRA permit, the study may be 
approved under a RMP. In addition to the other requirements of this 
part, such RMPs shall specify how the study(s) will be conducted, 
including relevant data on system design and operating parameters, 
waste

[[Page 18854]]

characteristics, sampling, and, analytical procedures.
    (b) Upon conclusion of a treatability study conducted according to 
an approved RMP, data shall be submitted to (EPA Headquarters) in the 
manner specified in appendix B of this part.


Sec. 269.43  Approval of RMPs.

    (a) Draft RMPs shall be reviewed and approved according to the 
procedures specified in paragraphs (b) through (f) of this section. 
Alternative procedures which provide the same or greater opportunities 
for public review and comment may also be used, including the RCRA 
permit procedures of 40 CFR part 270, or the permit modification 
procedures of 40 CFR 270.41.
    (b) A proposed RMP shall be signed in accordance with 40 CFR 
270.11.
    (c) The Director may, if necessary, add provisions to a draft RMP 
specifying the conditions under which media will be managed pursuant to 
the RMP, and concentration levels below which media will be determined 
not to contain hazardous waste. Such provisions may not be necessary 
when:
    (1) The Director has established applicable State-wide contained-in 
concentration levels; or
    (2) All media to be managed at the site will be managed as 
hazardous contaminated media, therefore making contained-in levels 
unnecessary.
    (d) The Director may, if necessary, add provisions to a draft RMP 
specifying when threats to human health and the environment will be 
considered to have been minimized.
    (e) When the Director determines that a draft RMP is complete and 
adequately demonstrates compliance with applicable requirements, the 
RMP shall be approved according to the following minimum procedures. If 
appropriate, the Director may require additional review and comment 
procedures.
    (1) A notice of the Director's intention to approve the RMP shall 
be:
    (i) Published in a major local newspaper of general circulation and 
broadcast over a local radio station, according to the procedures of 40 
CFR 124.10(d); and
    (ii) Sent 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. The notice shall provide an opportunity for the 
public to submit written comments on the RMP within no fewer than 45 
days.
    (2) If within the comment period the Director receives written 
notice of opposition to the Director's intention to approve the RMP and 
a request for a hearing, the Director shall hold an informal hearing 
(including an opportunity for presentation of written and oral views) 
to discuss issues relating to the approval of the RMP. The Director may 
also determine independently that an informal hearing on the RMP is 
appropriate. Whenever possible, the Director shall schedule such 
hearing at a location convenient to the nearest population center to 
the site and give notice in accordance with paragraph (i)(1) of this 
section, of the date, time and subject matter of such hearing.
    (3) The Director shall consider and respond to any significant 
written or oral comments received by the comment deadline on the 
proposed RMP, and may modify the RMP based on those comments as 
appropriate.
    (4) When the Director determines that the RMP adequately 
demonstrates compliance with all applicable requirements, s/he shall 
notify the owner/operator, and all other commenters on the proposed 
RMP, in writing, that the RMP has been approved. The Director's 
approval of a RMP shall constitute final Agency action (not subject to 
the administrative appeals in 40 CFR 124.19).
    (f) For remedial actions involving on-site combustion of hazardous 
remediation wastes, the procedural requirements for issuance of RCRA 
permits (specified in 40 CFR Parts 124 and 270 shall at a minimum be 
followed for review and approval of RMPs.


Sec. 269.44  Modification of RMPs.

    (a) The Director shall specify in the RMP procedures for modifying 
the RMP. Such procedures must provide adequate opportunities for public 
review and comment on any modification that would result in a major or 
significant change in the management of contaminated media at the site, 
or which otherwise merits public review and comment.
    (b) The Director may unilaterally modify an approved RMP, through 
appropriate procedures for public review and comment, based on new 
information which indicates that such modification may be necessary to 
ensure the effective implementation of remedial actions at the site.


Sec. 269.45  Expiration, termination, and revocation of RMPs.

    The Director shall specify in an approved RMP the procedures under 
which the RMP will expire, be terminated or revoked. RMPs that pursuant 
to Sec. 269.40(c) constitute RCRA permits for the purposes of section 
3005(c), shall be for a fixed term, not to exceed 10 years, although 
they may be renewed. In addition, any such RMP for a hazardous waste 
land disposal facility shall be reviewed five years after date of 
issuance or reissuance and shall be modified as necessary to assure 
that the facility continues to comply with currently applicable 
requirements of RCRA sections 3004 and 3005. All RMPs which constitute 
RCRA permits must be renewed at least every 10 years (if they will 
remain in effect longer than that).

Appendix A to Part 269--HWIR-Media Bright Line Numbers

    Appendix A-1 presents the Bright Lines for soil for the 107 
HWIR-media constituents with Soil Screening Levels (SSLs). Appendix 
A-2 presents the Bright Lines for groundwater ingestion for 211 
HWIR-media constituents.<SUP>1 The Bright Lines for both soil and 
groundwater exposures are calculated using a target risk of 
10<SUP>-3 for carcinogens and RfD x 10 for non-carcinogens. For 
constituents that have both carcinogenic and non-carcinogenic health 
effects, the lower of the two Bright Lines is reported.
---------------------------------------------------------------------------

    \1\ EPA was unable to develop ground water Bright Lines for nine 
constituents that lacked both an oral reference dose and an oral 
slope factor.
---------------------------------------------------------------------------

Appendix A-1 to Part 269--Bright Line Numbers for Soil

    The Bright Lines for soil in Appendix A-1 are based upon SSLs 
presented in the Superfund Soil Screening Guidance, which is 
available in the docket for this proposed rule. SSLs have been 
developed for 107 HWIR-media constituents and are calculated using 
risk equations presented in EPA's ``Risk Assessment Guidance for 
Superfund (RAGS).'' SSLs are either based on exposure by direct soil 
ingestion or by inhalation of volatiles from soil. The SSLs for 
these two exposure pathways are calculated using different risk 
equations. In addition, since carcinogens and non-carcinogens pose 
different kinds of health effects, there are two separate equations 
for each exposure pathway, depending upon the carcinogenicity of the 
constituent. These equations for each pathway are presented below:

Inhalation of Soil Contaminants

    For cancer health effects:

[[Page 18855]]

[GRAPHIC] [TIFF OMITTED] TP29AP96.000


    For non-cancer health effects:
    [GRAPHIC] [TIFF OMITTED] TP29AP96.001
    
    The exposure assumptions used in the above risk equations for 
inhalation of soil contaminants are presented in Exhibit 1.

Ingestion of Soil Contaminants

    For cancer health effects:
    [GRAPHIC] [TIFF OMITTED] TP29AP96.002
    
    For non-cancer health effects:
    [GRAPHIC] [TIFF OMITTED] TP29AP96.003
    
The exposure assumptions used in the above risk equations for 
ingestion of soil contaminants are presented in Exhibit 2.
    The calculated soil screening values for both the inhalation and 
ingestion pathways correspond to a cancer risk level of 10<SUP>-6 
for carcinogens and a non-cancer hazard quotient of one for non-
carcinogens. The SSLs for cancerous and non-cancerous constituents 
are, therefore, multiplied by 1,000 and 10 respectively, so that the 
reported Bright Lines correspond to a target risk of 10<SUP>-3 for 
carcinogens and RfD  x  10 for non-carcinogens. All Bright Lines for 
soil are capped at 10,000 parts per million (ppm).
    The soil saturation limit (Csat) for a constituent is reported 
as the inhalation pathway SSL if the Csat is lower than the 
calculated SSL. Csats are not risk-adjusted (i.e., they are not 
multiplied by a factor of 10 or 1,000) when calculating Bright 
Lines. When the Csat is lower than the risk-adjusted SSL for the 
soil ingestion pathway, the Bright Line is set at the Csat. The soil 
Bright Lines for 17 constituents are set at their Csat.

                       Exhibit 1.--Exposure Assumptions Used To Calculate Soil Inhalation                       
                                             [Soil Screening Levels]                                            
----------------------------------------------------------------------------------------------------------------
                                                            Corresponding HWIR-media assumptions                
                                          ----------------------------------------------------------------------
                                                           Cancer                           Non-cancer          
----------------------------------------------------------------------------------------------------------------
SSL=soil screening level.................  calculated...........................  calculated.                   
TR=target excess lifetime cancer.........  (mg/kg)..............................  (mg/kg).                      
THQ=risk.................................  10<SUP>-\6\...............................  ..<SUP>............................
AT=target hazard quotient................  .....................................  1.                            
URF=averaging time.......................  70 years.............................  30 years.                     
RfC=inhalation unit risk factor..........  constituent..........................  ..............................
EF=inhalation reference..................  specific.............................  constituent                   
ED=concentration.........................  (ug/m\3\)<SUP>-\1\........................  specific.                     
VF=exposure frequency....................  .....................................  (mg/m\3\).                    
PEF=exposure duration....................  350 days/yr..........................  350 days/yr.                  
    soil-to-air volatilization...........  30 years.............................  30 years.                     
    factor...............................  constituent..........................  constituent.                  
    particulate emission factor..........  specific.............................  specific.                     
                                           m\3\/kg..............................  m\3\/kg.                      
                                           6.79 x 10\8\.........................  6.79 x 10\8\.                 
                                           m\3\/kg..............................  m\3\/kg.                      
----------------------------------------------------------------------------------------------------------------


                        Exhibit 2.--Exposure Assumptions Used To Calculate Soil Ingestion                       
                                             [Soil Screening Levels]                                            
----------------------------------------------------------------------------------------------------------------
                                                           Corresponding HWIR-media  assumptions                
                                          ----------------------------------------------------------------------
                                                           Cancer                           Non-Cancer          
----------------------------------------------------------------------------------------------------------------
SSL = soil screening level...............  calculated...........................  calculated.                   
TR = target excess lifetime cancer.......  (mg/kg)..............................  (mg/kg).                      
THQ = risk...............................  10<SUP>-6.................................  ..<SUP>............................
AT = target hazard quotient..............  .....................................  1.                            
BW = averaging time......................  70 years.............................  6 years.                      
SF = body weight.........................  .....................................  15 kg.                        
RfD = oral slope factor..................  constituent..........................  ..............................
IF = oral reference dose.................  specific.............................  constituent.                  
IR = age-adjusted soil ingestion.........  (mg/kg/day)<SUP>-1........................  specific.                     
EF = factor..............................  .....................................  (mg/kg/day).                  
ED = soil ingestion rate.................  114 mg-yr/kg-day.....................  ..............................
    exposure frequency...................  .....................................  200 mg/day.                   
    exposure duration....................  .....................................  350 days/yr.                  
                                           350 days.............................  6 years.                      
----------------------------------------------------------------------------------------------------------------


[[Page 18856]]



                                   Appendix A-1.--Bright Line Numbers for Soil                                  
----------------------------------------------------------------------------------------------------------------
                                                            Bright Line                                         
            CAS No.                     Constituent           for soil          Path                Basis       
                                                               (ppm)                                            
----------------------------------------------------------------------------------------------------------------
630-20-6.......................  1,1,1,2-Tetrachloroethane                                                      
71-55-6........................  1,1,1-Trichloroethane....          980  Inhal............  Csat.               
79-34-5........................  1,1,2,2-Tetrachloroethane          400  Inhal............  Cancer.             
79-00-5........................  1,1,2-Trichloroethane....          800  Inhal............  Cancer.             
76-13-1........................  1,1,2-Trichloro-1,2,2-                                                         
                                  trifluoroethane                                                               
75-34-3........................  1,1-Dichloroethane.......         9800  Inhal............  Non-Cancer.         
75-35-4........................  1,1-Dichloroethylene.....           40  Inhal............  Cancer.             
96-18-4........................  1,2,3-Trichloropropane                                                         
95-94-3........................  1,2,4,5-                                                                       
                                  Tetrachlorobenzene                                                            
120-82-1.......................  1,2,4-Trichlorobenzene...         2400  Inhal............  Non-Cancer.         
96-12-8........................  1,2-Dibromo-3-                                                                 
                                  chloropropane                                                                 
107-06-2.......................  1,2-Dichloroethane.......          300  Inhal............  Cancer.             
78-87-5........................  1,2-Dichloropropane......          110  Ingest...........  Cancer.             
122-66-7.......................  1,2-Diphenylhydrazine                                                          
542-75-6.......................  1,3-Dichloropropene......          100  Inhal............  Cancer.             
99-65-0........................  1,3-Dinitrobenzene                                                             
123-91-1.......................  1,4-Dioxane                                                                    
99999-04-0.....................  12378 PeCDFuran                                                                
58-90-2........................  2,3,4,6-Tetrachlorophenol                                                      
95-95-4........................  2,4,5-Trichlorophenol....        10000  Cap..............  Non-Cancer.         
93-76-5........................  2,4,5-                                                                         
                                  Trichlorophenoxyacetic                                                        
                                  acid                                                                          
88-06-2........................  2,4,6-Trichlorophenol....        10000  Cap..............  Cancer.             
120-83-2.......................  2,4-Dichlorophenol.......         2400  Ingest...........  Non-Cancer.         
94-75-7........................  2,4-Dichlorophenoxyacetic                                                      
                                  acid (2,4-D)                                                                  
105-67-9.......................  2,4-Dimethylphenol.......        10000  Cap..............  Non-Cancer.         
51-28-5........................  2,4-Dinitrophenol........         1600  Ingest...........  Non-Cancer.         
121-14-2.......................  2,4-Dinitrotoluene.......         1600  Ingest...........  Non-Cancer.         
95-80-7........................  2,4-Toluenediamine                                                             
606-20-2.......................  2,6-Dinitrotoluene.......          780  Ingest...........  Non-Cancer.         
823-40-5.......................  2,6-Toluenediamine                                                             
57117-31-4.....................  23478 PeCDFuran                                                                
99999-03-0.....................  2378 HpCDDioxins                                                               
99999-06-0.....................  2378 HpCDFurans                                                                
99999-02-0.....................  2378 HxCDDioxins                                                               
99999-05-0.....................  2378 HxCDFurans                                                                
99999-01-0.....................  2378 PeCDDioxins                                                               
1746-01-6......................  2378 TCDDioxin                                                                 
51207-31-9.....................  2378 TCDFuran                                                                  
95-57-8........................  2-Chlorophenol...........         3900  Ingest...........  Non-Cancer.         
126-99-8.......................  2-Chloro-1,3-butadiene                                                         
110-80-5.......................  2-Ethoxyethanol                                                                
91-59-8........................  2-Naphthylamine                                                                
79-46-9........................  2-Nitropropane                                                                 
88-85-7........................  2-sec-Butyl-4,6-                                                               
                                  dinitrophenol (Dinoseb)                                                       
91-94-1........................  3,3'-Dichlorobenzidine...         1000  Ingest...........  Cancer.             
119-90-4.......................  3,3'-Dimethoxybenzidine                                                        
119-93-7.......................  3,3'-Dimethylbenzidine                                                         
107-05-1.......................  3-Chloropropene                                                                
56-49-5........................  3-Methylcholanthrene                                                           
57-97-6........................  7,12-                                                                          
                                  Dimethylbenz(a)anthracen                                                      
                                  e                                                                             
83-32-9........................  Acenaphthene.............        10000  Cap..............  Non-Cancer.         
67-64-1........................  Acetone (2-propanone)....        10000  Cap..............  Non-Cancer.         
75-05-8........................  Acetonitrile (methyl                                                           
                                  cyanide)                                                                      
98-86-2........................  Acetophenone                                                                   
107-02-8.......................  Acrolein                                                                       
79-06-1........................  Acrylamide                                                                     
107-13-1.......................  Acrylonitrile                                                                  
309-00-2.......................  Aldrin...................           40  Ingest...........  Cancer.             
319-84-6.......................  alpha-HCH................          100  Ingest...........  Cancer.             
62-53-3........................  Aniline (benzeneamine)                                                         
7440-36-0......................  Antimony (and compounds            310  Ingest...........  Non-Cancer.         
                                  N.O.S.).                                                                      
140-57-8.......................  Aramite                                                                        
7440-38-2......................  Arsenic (and compounds             400  Ingest...........  Cancer.             
                                  N.O.S.).                                                                      
7440-39-3......................  Barium (and compounds            10000  Cap..............  Non-Cancer.         
                                  N.O.S.).                                                                      
71-43-2........................  Benzene..................          500  Inhal............  Cancer.             
92-87-5........................  Benzidine                                                                      
98-07-7........................  Benzotrichloride                                                               
50-32-8........................  Benzo(a)pyrene...........           90  Ingest...........  Cancer.             
205-99-2.......................  Benzo(b)fluoranthene.....          900  Ingest...........  Cancer.             
100-51-6.......................  Benzyl alcohol                                                                 

[[Page 18857]]

                                                                                                                
100-44-7.......................  Benzyl chloride                                                                
56-55-3........................  Benz[a]anthracene........          900  Ingest...........  Cancer.             
7440-41-7......................  Beryllium (and compounds           100  Ingest...........  Cancer.             
                                  N.O.S.).                                                                      
319-85-7.......................  beta-HCH.................          400  Ingest...........  Cancer.             
111-44-4.......................  Bis(2-chloroethyl) ether.          300  Inhal............  Cancer.             
39638-32-9.....................  Bis(2-chloroisopropyl)                                                         
                                  ether                                                                         
117-81-7.......................  Bis(2-ethylhexyl)                  210  Inhal............  Csat.               
                                  phthalate.                                                                    
75-27-4........................  Bromodichloromethane.....         1800  Inhal............  Csat.               
74-83-9........................  Bromomethane.............           20  Inhal............  Non-Cancer.         
71-36-3........................  Butanol..................         9700  Inhal............  Csat.               
85-68-7........................  Butyl benzyl phthalate...          530  Inhal............  Csat.               
7440-43-9......................  Cadmium (and compounds             390  Ingest...........  Non-Cancer.         
                                  N.O.S.).                                                                      
75-15-0........................  Carbon disulfide.........          110  Inhal............  Non-Cancer.         
56-23-5........................  Carbon tetrachloride.....          200  Inhal............  Cancer.             
57-74-9........................  Chlordane................          500  Ingest...........  Cancer.             
108-90-7.......................  Chlorobenzene............          940  Inhal............  Non-Cancer.         
510-15-6.......................  Chlorobenzilate                                                                
124-48-1.......................  Chlorodibromomethane.....         1900  Inhal............  Csat.               
67-66-3........................  Chloroform...............          200  Inhal............  Cancer.             
74-87-3........................  Chloromethane                                                                  
7440-47-3......................  Chromium (and compounds           3900  Ingest...........  Non-Cancer.         
                                  N.O.S.).                                                                      
218-01-9.......................  Chrysene.................        10000  Cap..............  Cancer.             
156-59-2.......................  cis-1,2-Dichloroethene...         1500  Inhal............  Csat.               
10061-01-5.....................  Cis-1,3-Dichloropropene                                                        
7440-50-8......................  Copper                                                                         
1319-77-3......................  Cresols                                                                        
98-82-8........................  Cumene                                                                         
57-12-5........................  Cyanide (amenable).......        10000  Cap..............  Non-Cancer.         
72-54-8........................  DDD......................         3000  Ingest...........  Cancer.             
72-55-9........................  DDE......................         2000  Ingest...........  Cancer.             
50-29-3........................  DDT......................         2000  Ingest...........  Cancer.             
2303-16-4......................  Diallate                                                                       
53-70-3........................  Dibenz(a,h)anthracene....           90  Ingest...........  Cancer.             
74-95-3........................  Dibromomethane (methylene                                                      
                                  bromide)                                                                      
75-71-8........................  Dichlorodifluoromethane                                                        
75-09-2........................  Dichloromethane                   7000  Inhal............  Cancer.             
                                  (Methylene Chloride).                                                         
60-57-1........................  Dieldrin.................           40  Ingest...........  Cancer.             
84-66-2........................  Diethyl phthalate........          520  Inhal............  Csat.               
56-53-1........................  Diethylstibestrol                                                              
60-51-5........................  Dimethoate...............                                                      
131-11-3.......................  Dimethyl phthalate                1600  Inhal............  Csat.               
122-39-4.......................  Diphenylamine                                                                  
298-04-4.......................  Disulfoton                                                                     
84-74-2........................  Di-n-butyl phthalate.....         1100  Inhal............  Csat.               
117-84-0.......................  Di-n-octyl phthalate.....        10000  Cap..............  Non-Cancer.         
115-29-7.......................  Endosulfan...............           40  Ingest...........  Non-Cancer.         
72-20-8........................  Endrin...................          230  Ingest...........  Non-Cancer.         
106-89-8.......................  Epichlorohydrin                                                                
141-78-6.......................  Ethyl acetate                                                                  
60-29-7........................  Ethyl ether                                                                    
97-63-2........................  Ethyl methacrylate                                                             
62-50-0........................  Ethyl methanesulfonate                                                         
100-41-4.......................  Ethylbenzene.............          260  Inhal............  Csat.               
106-93-4.......................  Ethylene dibromide                                                             
96-45-7........................  Ethylenethiourea                                                               
52-85-7........................  Famphur                                                                        
206-44-0.......................  Fluoranthene.............        10000  Cap..............  Non-Cancer.         
86-73-7........................  Fluorene.................        10000  Cap..............  Non-Cancer.         
50-00-0........................  Formaldehyde                                                                   
64-18-6........................  Formic acid                                                                    
110-00-9.......................  Furan                                                                          
58-89-9........................  gamma-HCH (Lindane)......          500  Ingest...........  Cancer.             
76-44-8........................  Heptachlor...............          100  Ingest...........  Cancer.             
1024-57-3......................  Heptachlor epoxide (a,b,g           70  Ingest...........  Cancer.             
                                  isomers).                                                                     
118-74-1.......................  Hexachlorobenzene........          400  Ingest...........  Cancer.             
608-73-1.......................  Hexachlorocyclohexane                                                          
77-47-4........................  Hexachlorocyclopentadiene           20  Inhal............  Non-Cancer.         
67-72-1........................  Hexachloroethane.........        10000  Cap..............  Cancer.             
70-30-4........................  Hexachlorophene                                                                
87-68-3........................  Hexachloro-1,3-butadiene.         1000  Inhal............  Cancer.             

[[Page 18858]]

                                                                                                                
193-39-5.......................  Indeno(1,2,3-cd)pyrene...          900  Ingest...........  Cancer.             
78-83-1........................  Isobutyl alcohol                                                               
78-59-1........................  Isophorone...............         3400  Inhal............  Csat                
143-50-0.......................  Kepone                                                                         
7439-92-1......................  Lead (and compounds               4000  Fixed............                      
                                  N.O.S.).                                                                      
108-31-6.......................  Maleic anhydride                                                               
7439-97-6......................  Mercury (and compounds              70  Inhal............  Non-Cancer.         
                                  N.O.S.).                                                                      
126-98-7.......................  Methacrylonitrile                                                              
67-56-1........................  Methanol                                                                       
72-43-5........................  Methoxychlor.............         3900  Ingest...........  Non-Cancer.         
78-93-3........................  Methyl ethyl ketone                                                            
108-10-1.......................  Methyl isobutyl ketone                                                         
80-62-6........................  Methyl methacrylate                                                            
298-00-0.......................  Methyl parathion                                                               
7439-98-7......................  Molybdenum                                                                     
108-39-4.......................  m-Cresol                                                                       
91-20-3........................  Naphthalene-                                                                   
7440-02-0......................  Nickel (and compounds            10000  Cap..............  Non-Cancer.         
                                  N.O.S.).                                                                      
98-95-3........................  Nitrobenzene.............          390  Ingest...........  Non-Cancer.         
62-75-9........................  N-Nitrosodimethylamine                                                         
86-30-6........................  N-Nitrosodiphenylamine...        10000  Cap..............  Cancer.             
621-64-7.......................  N-Nitrosodi-n-propylamine           90  Ingest...........  Cancer.             
10595-95-6.....................  N-Nitrosomethylethylamine                                                      
100-75-4.......................  N-Nitrosopiperidine                                                            
930-55-2.......................  N-Nitrosopyrrolidine                                                           
55-18-5........................  N-Nitroso-diethylamine                                                         
924-16-3.......................  N-Nitroso-di-n-butylamine                                                      
3268-87-9......................  OCDD                                                                           
99999-07-0.....................  Octachlorodibenzofuran                                                         
                                  (OCDF)                                                                        
152-16-9.......................  Octamethyl                                                                     
                                  pyrophosphoramide                                                             
95-48-7........................  o-Cresol.................        10000  Cap..............  Non-Cancer.         
95-50-1........................  o-Dichlorobenzene........          300  Inhal............  Csat.               
95-53-4........................  o-Toluidine                                                                    
56-38-2........................  Parathion                                                                      
608-93-5.......................  Pentachlorobenzene                                                             
82-68-8........................  Pentachloronitrobenzene                                                        
                                  (PCNB)                                                                        
87-86-5........................  Pentachlorophenol........         3000  Ingest...........  Cancer.             
108-95-2.......................  Phenol...................        10000  Cap..............  Non-Cancer.         
25265-76-3.....................  Phenylenediamine                                                               
298-02-2.......................  Phorate                                                                        
85-44-9........................  Phthalic anhydride                                                             
1336-36-3......................  Polychlorinated biphenyls         1000  Ingest...........  Cancer.             
23950-58-5.....................  Pronamide                                                                      
129-00-0.......................  Pyrene...................        10000  Cap..............  Non-Cancer.         
110-86-1.......................  Pyridine                                                                       
106-47-8.......................  p-Chloroaniline..........         3100  Ingest...........  Non-Cancer.         
106-44-5.......................  p-Cresol                                                                       
106-46-7.......................  p-Dichlorobenzene........        10000  Cap..............  Cancer.             
106-49-0.......................  p-Toluidine                                                                    
94-59-7........................  Safrole                                                                        
7782-49-2......................  Selenium (and compounds           3900  Ingest...........  Non-Cancer.         
                                  N.O.S.).                                                                      
7440-22-4......................  Silver (and compounds             3900  Ingest...........  Non-Cancer.         
                                  N.O.S.).                                                                      
93-72-1........................  Silvex (2,4,5-TP)                                                              
57-24-9........................  Strychnine and salts                                                           
100-42-5.......................  Styrene..................         1400  Inhal............  Csat.               
99-35-4........................  sym-Trinitrobenzene                                                            
127-18-4.......................  Tetrachloroethylene......        10000  Cap..............  Cancer.             
3689-24-5......................  Tetraethyl                                                                     
                                  dithiopyrophosphate                                                           
7440-28-0......................  Thallium                                                                       
108-88-3.......................  Toluene..................          520  Inhal............  Csat.               
8001-35-2......................  Toxaphene................          600  Ingest...........  Cancer.             
156-60-5.......................  trans-1,2-Dichloroethene.         3600  Inhal............  Csat.               
10061-02-6.....................  Trans-1,3-Dichloropropene                                                      
75-25-2........................  Tribromomethane                  10000  Cap..............  Cancer.             
                                  (Bromoform).                                                                  
79-01-6........................  Trichloroethylene........         3000  Inhal............  Cancer.             
75-69-4........................  Trichlorofluoromethane                                                         
126-72-7.......................  Tris(2,3-                                                                      
                                  dibromopropyl)phosphate                                                       
7440-62-2......................  Vanadium.................         5500  Ingest...........  Non-Cancer.         
75-01-4........................  Vinyl chloride                       2  Inhal............  Cancer.             
                                  (Chloroethene).                                                               
1330-20-7......................  Xylenes..................          320  Inhal............  Csat.               

[[Page 18859]]

                                                                                                                
7440-66-6......................  Zinc (and compounds              10000  Cap..............  Non-Cancer.         
                                  N.O.S.).                                                                      
----------------------------------------------------------------------------------------------------------------



Appendix A-2 to Part 269--Bright Line Numbers for Ground Water

    The Bright Lines for ground water in Appendix A-2 were 
calculated directly from risk equations in RAGS. Since carcinogens 
and non-carcinogens pose different kinds of health effects, two sets 
of risk equations and exposure assumptions are used to calculate 
Bright Lines for groundwater: For cancer health effects:
[GRAPHIC] [TIFF OMITTED] TP29AP96.004

    For non-cancer health effects:
    [GRAPHIC] [TIFF OMITTED] TP29AP96.005
    
    The exposure assumptions used in the above risk equations are 
presented in Exhibit 3. These exposure assumptions are consistent 
with those used to develop the SSLs. For constituents with 
calculated Bright Lines for ground water less than the detection 
limit, the groundwater Bright Line is set at the detection limit, as 
defined by the Exemption Quantitation Criteria (EQC). The ground 
water Bright Lines for 15 constituents are set at their EQC's.

                  Exhibit 3.--Exposure Assumptions Used to Calculate Ground Water Bright Lines                  
----------------------------------------------------------------------------------------------------------------
                                                              Corresponding HWIR-media assumptions              
                                               -----------------------------------------------------------------
                                                               Cancer                         Non-Cancer        
----------------------------------------------------------------------------------------------------------------
C                   =   Constituent             Calculated (mg/l)..................  Calculated (mg/l).         
                         concentration in                                                                       
                         groundwater.                                                                           
TR                  =   Target excess lifetime  10<SUP>-3--1 70 years...................  --30 years.                
                         cancer risk.                                                                           
AT                  =   Averaging time........  70 kg..............................  70 kg.                     
BW                  =   Body weight...........  Constituent........................  ...........................
SF                  =   Oral cancer slope       Specific...........................  Constituent.               
                         factor.                                                                                
RfD                 =   Oral reference dose...  (mg/kg/day)<SUP>-1......................  Specific.                  
IR                  =   Groundwater ingestion   ...................................  (mg/kg/day).               
                         rate.                                                                                  
EF                  =   Exposure frequency....  2 liters/day.......................  2 liters/day.              
ED                  =   Exposure duration.....  350 days, 30 years.................  350 days, 30 years.        
----------------------------------------------------------------------------------------------------------------


                              Table to Appendix A-2.--Bright Lines for Groundwater                              
----------------------------------------------------------------------------------------------------------------
                                                                        Groundwater                             
               CAS No.                          Constituent             Bright Line              Basis          
                                                                          (mg/l)                                
----------------------------------------------------------------------------------------------------------------
630-20-6............................  1,1,1,2-Tetrachloroethane.....       3          Cancer.                   
71-55-6.............................  1,1,1-Trichloroethane.........   (\1\)          ..........................
79-34-5.............................  1,1,2,2-Tetrachloroethane.....       0.4        Cancer.                   
79-00-5.............................  1,1,2-Trichloroethane.........       1          Non-Cancer.               
76-13-1.............................  1,1,2-Trichloro-1,2,2-           10000          Non-Cancer.               
                                       trifluoroethane.                                                         
75-34-3.............................  1,1-Dichloroethane............       0.9        Cancer.                   
75-35-4.............................  1,1-Dichloroethylene..........       0.1        Cancer.                   
96-18-4.............................  1,2,3-Trichloropropane........       2          Non-Cancer.               
95-94-3.............................  1,2,4,5-Tetrachlorobenzene....       0.1        Non-Cancer.               
120-82-1............................  1,2,4-Trichlorobenzene........       4          Non-Cancer.               
96-12-8.............................  1,2-Dibromo-3-chloropropane...       0.06       Cancer.                   
107-06-2............................  1,2-Dichloroethane............       0.9        Cancer.                   
78-87-5.............................  1,2-Dichloropropane...........       1          Cancer.                   
122-66-7............................  1,2-Diphenylhydrazine.........       0.1        Cancer.                   
542-75-6............................  1,3-Dichloropropene...........       0.1        Non-Cancer.               
99-65-0.............................  1,3-Dinitrobenzene............       0.04       Non-Cancer.               
123-91-1............................  1,4-Dioxane...................       8          Cancer.                   
99999-04-0..........................  12378 PeCDFuran...............       0.00001    Cancer.                   
58-90-2.............................  2,3,4,6-Tetrachlorophenol.....      10          Non-Cancer.               
95-95-4.............................  2,4,5-Trichlorophenol.........      40          Non-Cancer.               
93-76-5.............................  2,4,5-Trichlorophenoxyacetic         4          Non-Cancer.               
                                       acid.                                                                    
88-06-2.............................  2,4,6-Trichlorophenol.........       8          Cancer.                   
120-83-2............................  2,4-Dichlorophenol............       1          Non-Cancer.               
94-75-7.............................  2,4-Dichlorophenoxyacetic acid       4          Non-Cancer.               
                                       (2,4-D).                                                                 
105-67-9............................  2,4-Dimethylphenol............       7          Non-Cancer.               
51-28-5.............................  2,4-Dinitrophenol.............       0.7        Non-Cancer.               
121-14-2............................  2,4-Dinitrotoluene............       0.1        Cancer.                   
95-80-7.............................  2,4-Toluenediamine............       0.03       Cancer.                   
606-20-2............................  2,6-Dinitrotoluene............       0.1        Cancer.                   
823-40-5............................  2,6-Toluenediamine............      70          Non-Cancer.               
57117-31-4..........................  23478 PeCDFuran...............       0.000001   Cancer.                   
99999-03-0..........................  2378 HpCDDioxins..............       0.00005    Cancer.                   
99999-06-0..........................  2378 HpCDFurans...............       0.00005    Cancer.                   

[[Page 18860]]

                                                                                                                
99999-02-0..........................  2378 HxCDDioxins..............       0.000005   Cancer.                   
99999-05-0..........................  2378 HxCDFurans...............       0.000005   Cancer.                   
99999-01-0..........................  2378 PeCDDioxins..............       0.000001   Cancer.                   
1746-01-6...........................  2378 TCDDioxin................       0.0000005  Cancer.                   
51207-31-9..........................  2378 TCDFuran.................       0.000005   Cancer.                   
95-57-8.............................  2-Chlorophenol................       2          Non-Cancer.               
126-99-8............................  2-Chloro-1,3-butadiene........     (<SUP>1)                                    
110-80-5............................  2-Ethoxyethanol...............     100          Non-Cancer.               
91-59-8.............................  2-Naphthylamine...............       0.1        Cancer.                   
79-46-9.............................  2-Nitropropane................     (<SUP>1)                                    
88-85-7.............................  2-sec-Butyl-4,6-dinitrophenol        0.4        Non-Cancer.               
                                       (Dinoseb).                                                               
91-94-1.............................  3,3'-Dichlorobenzidine........       0.2        Cancer.                   
119-90-4............................  3,3'-Dimethoxybenzidine.......       6          Cancer.                   
119-93-7............................  3,3'-Dimethylbenzidine........       0.01       EQC Floor.                
107-05-1............................  3-Chloropropene...............     (<SUP>1)                                    
56-49-5.............................  3-Methylcholanthrene..........       0.01       EQC Floor.                
57-97-6.............................  7,12-Dimethylbenz(a)anthracene       0.01       EQC Floor.                
83-32-9.............................  Acenaphthene..................      20          Non-Cancer.               
67-64-1.............................  Acetone (2-propanone).........      40          Non-Cancer.               
75-05-8.............................  Acetonitrile (methyl cyanide).       2          Non-Cancer.               
98-86-2.............................  Acetophenone..................      40          Non-Cancer.               
107-02-8............................  Acrolein......................       7          Non-Cancer.               
79-06-1.............................  Acrylamide....................       0.1        EQC Floor.                
107-13-1............................  Acrylonitrile.................       0.2        Cancer.                   
309-00-2............................  Aldrin........................       0.005      Cancer.                   
319-84-6............................  alpha-HCH.....................       0.01       Cancer.                   
62-53-3.............................  Aniline (benzeneamine)........      10          Cancer.                   
7440-36-0...........................  Antimony (and compounds              0.1        Non-Cancer.               
                                       N.O.S.).                                                                 
140-57-8............................  Aramite.......................       3          Cancer.                   
7440-38-2...........................  Arsenic (and compounds N.O.S.)       0.05       Cancer.                   
7440-39-3...........................  Barium (and compounds N.O.S.).      30          Non-Cancer.               
71-43-2.............................  Benzene.......................       3          Cancer.                   
92-87-5.............................  Benzidine.....................       0.03       EQC Floor.                
98-07-7.............................  Benzotrichloride..............       0.007      Cancer.                   
50-32-8.............................  Benzo(a)pyrene................       0.01       Cancer.                   
205-99-2............................  Benzo(b)fluoranthene..........       0.1        Cancer.                   
100-51-6............................  Benzyl alcohol................     100          Non-Cancer.               
100-44-7............................  Benzyl chloride...............       0.5        Cancer.                   
56-55-3.............................  Benz[a]anthracene.............       0.2        Cancer.                   
7440-41-7...........................  Beryllium (and compounds             0.02       Cancer.                   
                                       N.O.S.).                                                                 
319-85-7............................  beta-HCH......................       0.05       Cancer.                   
111-44-4............................  Bis(2-chloroethyl) ether......       0.08       Cancer.                   
39638-32-9..........................  Bis(2-chloroisopropyl) ether..       1          Cancer.                   
117-81-7............................  Bis(2-ethylhexyl) phthalate...       6          Cancer.                   
75-27-4.............................  Bromodichloromethane..........       0.7        Cancer.                   
74-83-9.............................  Bromomethane..................       0.5        Non-Cancer.               
71-36-3.............................  Butanol.......................      40          Non-Cancer.               
85-68-7.............................  Butyl benzyl phthalate........      70          Non-Cancer.               
7440-43-9...........................  Cadmium (and compounds N.O.S.)       0.2        Non-Cancer.               
75-15-0.............................  Carbon disulfide..............      40          Non-Cancer.               
56-23-5.............................  Carbon tetrachloride..........       0.3        Non-Cancer.               
57-74-9.............................  Chlordane.....................       0.02       Non-Cancer.               
108-90-7............................  Chlorobenzene.................       7          Non-Cancer.               
510-15-6............................  Chlorobenzilate...............       0.3        Cancer.                   
124-48-1............................  Chlorodibromomethane..........       1          Cancer.                   
67-66-3.............................  Chloroform....................       4          Non-Cancer.               
74-87-3.............................  Chloromethane.................   (\1\)                                    
7440-47-3...........................  Chromium (and compounds              2          Non-Cancer.               
                                       N.O.S.).                                                                 
218-01-9............................  Chrysene......................       1          Cancer.                   
156-59-2............................  cis-1,2-Dichloroethene........       4          Non-Cancer.               
10061-01-5..........................  Cis-1,3-Dichloropropene.......       0.1        Non-Cancer.               
7440-50-8...........................  Copper........................      10          Non-Cancer.               
1319-77-3...........................  Cresols.......................      20          Non-Cancer.               
98-82-8.............................  Cumene........................      10          Non-Cancer.               
57-12-5.............................  Cyanide (amenable)............       7          Non-Cancer.               
72-54-8.............................  DDD...........................       0.4        Cancer.                   
72-55-9.............................  DDE...........................       0.3        Cancer.                   
50-29-3.............................  DDT...........................       0.2         Non-Cancer.              
2303-16-4...........................  Diallate......................       1          Cancer.                   
53-70-3.............................  Dibenz(a,h)anthracene.........       0.002      Cancer.                   

[[Page 18861]]

                                                                                                                
74-95-3.............................  Dibromomethane (methylene            4          Non-Cancer.               
                                       bromide).                                                                
75-71-8.............................  Dichlorodifluoromethane.......      70          Non-Cancer.               
75-09-2.............................  Dichloromethane (Methylene          10          Cancer.                   
                                       Chloride).                                                               
60-57-1.............................  Dieldrin......................       0.005      Cancer.                   
84-66-2.............................  Diethyl phthalate.............     300          Non-Cancer.               
56-53-1.............................  Diethylstibestrol.............       0.02       EQC Floor.                
60-51-5.............................  Dimethoate....................       0.07       Non-Cancer.               
131-11-3............................  Dimethyl phthalate............    4000          Non-Cancer.               
122-39-4............................  Diphenylamine.................       9          Non-Cancer.               
298-04-4............................  Disulfoton....................       0.01       Non-Cancer.               
84-74-2.............................  Di-n-butyl phthalate..........      40          Non-Cancer.               
117-84-0............................  Di-n-octyl phthalate..........       7          Non-Cancer.               
115-29-7............................  Endosulfan....................       0.02       Non-Cancer.               
72-20-8.............................  Endrin........................       0.1        Non-Cancer.               
106-89-8............................  Epichlorohydrin...............       0.7        Non-Cancer.               
141-78-6............................  Ethyl acetate.................     300          Non-Cancer.               
60-29-7.............................  Ethyl ether...................      70          Non-Cancer.               
97-63-2.............................  Ethyl methacrylate............      30          Non-Cancer.               
62-50-0.............................  Ethyl methanesulfonate........       0.02       EQC Floor.                
100-41-4............................  Ethylbenzene..................      40          Non-Cancer.               
106-93-4............................  Ethylene dibromide............       0.001      Cancer.                   
96-45-7.............................  Ethylenethiourea..............       0.03       Non-Cancer.               
52-85-7.............................  Famphur.......................       0.02       EQC Floor.                
206-44-0............................  Fluoranthene..................      10          Non-Cancer.               
86-73-7.............................  Fluorene......................      10          Non-Cancer.               
50-00-0.............................  Formaldehyde..................      70          Non-Cancer.               
64-18-6.............................  Formic acid...................     700          Non-Cancer.               
110-00-9............................  Furan.........................       0.4        Non-Cancer.               
58-89-9.............................  gamma-HCH (Lindane)...........       0.07       Cancer.                   
76-44-8.............................  Heptachlor....................       0.02       Cancer.                   
1024-57-3...........................  Heptachlor epoxide (alpha,           0.005      Non-Cancer.               
                                       beta, gamma).                                                            
118-74-1............................  Hexachlorobenzene.............       0.05       Cancer.                   
608-73-1............................  Hexachlorocyclohexane.........       0.05       Cancer.                   
77-47-4.............................  Hexachlorocyclopentadiene.....       3          Non-Cancer.               
67-72-1.............................  Hexachloroethane..............       0.4        Non-Cancer.               
70-30-4.............................  Hexachlorophene...............       0.1        Non-Cancer.               
87-68-3.............................  Hexachloro-1,3-butadiene......       1          Cancer.                   
193-39-5............................  Indeno(1,2,3-cd)pyrene........       0.1        Cancer.                   
78-83-1.............................  Isobutyl alcohol..............     100          Non-Cancer.               
78-59-1.............................  Isophorone....................      70          Non-Cancer.               
143-50-0............................  Kepone........................       0.02       EQC Floor.                
7439-92-1...........................  Lead (and compounds N.O.S.)...   (\1\)                                    
108-31-6............................  Maleic anhydride..............      40          Non-Cancer.               
7439-97-6...........................  Mercury (and compounds N.O.S.)       0.1        Non-Cancer.               
126-98-7............................  Methacrylonitrile.............       0.04       Non-Cancer.               
67-56-1.............................  Methanol......................     200          Non-Cancer.               
72-43-5.............................  Methoxychlor..................       2          Non-Cancer.               
78-93-3.............................  Methyl ethyl ketone...........     200          Non-Cancer.               
108-10-1............................  Methyl isobutyl ketone........      20          Non-Cancer.               
80-62-6.............................  Methyl methacrylate...........      30          Non-Cancer.               
298-00-0............................  Methyl parathion..............       0.09       Non-Cancer.               
7439-98-7...........................  Molybdenum....................       2          Non-Cancer.               
108-39-4............................  m-Cresol......................      20          Non-Cancer.               
91-20-3.............................  Naphthalene...................      10          Non-Cancer.               
7440-02-0...........................  Nickel (and compounds N.O.S.).       7          Non-Cancer.               
98-95-3.............................  Nitrobenzene..................       0.2        Non-Cancer.               
62-75-9.............................  N-Nitrosodimethylamine........       0.01       EQC Floor.                
86-30-6.............................  N-Nitrosodiphenylamine........      20          Cancer.                   
621-64-7............................  N-Nitrosodi-n-propylamine.....       0.01       EQC Floor.                
10595-95-6..........................  N-Nitrosomethylethylamine.....       0.01       EQC Floor.                
100-75-4............................  N-Nitrosopiperidine...........       0.02       EQC Floor.                
930-55-2............................  N-Nitrosopyrrolidine..........       0.04       Cancer.                   
55-18-5.............................  N-Nitroso-diethylamine........       0.02       EQC Floor.                
924-16-3............................  N-Nitroso-di-n-butylamine.....       0.02       Cancer.                   
3268-87-9...........................  OCDD..........................       0.0005     Cancer.                   
99999-07-0..........................  Octachlorodibenzofuran (OCDF).       0.0005     Cancer.                   
152-16-9............................  Octamethyl pyrophosphoramide..       0.7        Non-Cancer.               
95-48-7.............................  o-Cresol......................      20          Non-Cancer.               
95-50-1.............................  o-Dichlorobenzene.............      30          Non-Cancer.               
95-53-4.............................  o-Toluidine...................       0.4        Cancer.                   

[[Page 18862]]

                                                                                                                
56-38-2.............................  Parathion.....................       2          Non-Cancer.               
608-93-5............................  Pentachlorobenzene............       0.3        Non-Cancer.               
82-68-8.............................  Pentachloronitrobenzene (PCNB)       0.3        Cancer.                   
87-86-5.............................  Pentachlorophenol.............       0.7        Cancer.                   
108-95-2............................  Phenol........................     200          Non-Cancer.               
25265-76-3..........................  Phenylenediamine..............       2          Non-Cancer.               
298-02-2............................  Phorate.......................       0.07       Non-Cancer.               
85-44-9.............................  Phthalic anhydride............     700          Non-Cancer.               
1336-36-3...........................  Polychlorinated biphenyls.....       0.01       Cancer.                   
23950-58-5..........................  Pronamide.....................      30          Non-Cancer.               
129-00-0............................  Pyrene........................      10          Non-Cancer.               
110-86-1............................  Pyridine......................       0.4        Non-Cancer.               
106-47-8............................  p-Chloroaniline...............       1          Non-Cancer.               
106-44-5............................  p-Cresol......................   (\1\).                                   
106-46-7............................  p-Dichlorobenzene.............       4          Cancer.                   
106-49-0............................  p-Toluidine...................       0.4        Cancer.                   
94-59-7.............................  Safrole.......................       0.5        Cancer.                   
7782-49-2...........................  Selenium (and compounds              2          Non-Cancer.               
                                       N.O.S.).                                                                 
7440-22-4...........................  Silver (and compounds N.O.S.).       2          Non-Cancer.               
93-72-1.............................  Silvex (2,4,5-TP).............       3          Non-Cancer.               
57-24-9.............................  Strychnine and salts..........       0.1        Non-Cancer.               
100-42-5............................  Styrene.......................      70          Non-Cancer.               
99-35-4.............................  sym-Trinitrobenzene...........       0.02       Non-Cancer.               
127-18-4............................  Tetrachloroethylene...........       4          Non-Cancer.               
3689-24-5...........................  Tetraethyl dithiopyrophosphate       0.2        Non-Cancer.               
7440-28-0...........................  Thallium......................     (<SUP>1)                                    
108-88-3............................  Toluene.......................      70          Non-Cancer.               
8001-35-2...........................  Toxaphene.....................       0.08       Cancer.                   
156-60-5............................  trans-1,2-Dichloroethene......       7          Non-Cancer.               
10061-02-6..........................  Trans-1,3-Dichloropropene.....       0.1        Non-Cancer.               
75-25-2.............................  Tribromomethane (Bromoform)...       7          Non-Cancer.               
79-01-6.............................  Trichloroethylene.............     (<SUP>1)                                    
75-69-4.............................  Trichlorofluoromethane........     100          Non-Cancer.               
126-72-7............................  Tris(2,3-                            0.2        EQC Floor.                
                                       dibromopropyl)phosphate.                                                 
7440-62-2...........................  Vanadium......................       3          Non-Cancer.               
75-01-4.............................  Vinyl chloride (Chloroethene).       0.04       Cancer.                   
1330-20-7...........................  Xylenes.......................     700          Non-Cancer.               
7440-66-6...........................  Zinc (and compounds N.O.S.)...     100          Non-Cancer.               
----------------------------------------------------------------------------------------------------------------
<SUP>1 No Data.                                                                                                      



Appendix B to Part 269--Submittal of Treatability Data

    Both treatability data and full-scale operating data shall be 
submitted to EPA for entry into the National Risk Management 
Research Laboratory (NRMRL) treatability database system. Data from 
treatability studies shall be submitted as soon as the treatability 
study (or studies) has been completed. Full-scale operating data 
shall be submitted every three years, or after the cleanup has been 
completed, whichever is first.
    Data shall be submitted to: Chief, Site Management Support 
Branch,National Risk Management Research Laboratory,26 West Martin 
Luther King Drive,Cincinnati, Ohio 45268.
    A copy of the entire treatability/performance study should be 
submitted if possible. No particular format is required for 
presentation of the data; however, the following information must be 
included:

--Site/laboratory name and address
--Point of contact
--Technology (or technologies) used
--Chemicals of contamination
--Size of study (i.e., bench top, pilot plant, full scale)
--Volumes treated
--Description of study/abstract
--Beginning and ending concentrations
--Percent removal
--Analytical method
--Source matrix
--Any important operational parameters
--Any other information that the site feels is important

    Sites should be aware that any data submitted will be available 
to the general public through the NRMRL treatability database. Sites 
should not submit confidential business information (CBI) material.

PART 270--EPA ADMINISTERED PERMIT PROGRAMS: THE HAZARDOUS WASTE 
PERMIT PROGRAM

Subpart A--General Information

    15. The authority citation for part 270 continues to read as 
follows:

    Authority: 42 U.S.C. 6905, 6912, 6924, 6925, 6927, 6939, and 
6974.

    15a. Section 270.1 (a)(1) is revised to read as follows:

Sec. 270.1  Purpose and scope of these regulations.

    (a) Coverage. (1) These permit regulations establish provisions for 
the Hazardous Waste Permit Program under Subtitle C of the Solid Waste 
Disposal Act, as amended by the Resource Conservation and Recovery Act 
of 1976, as amended (RCRA), (Pub. L. 94-580, as amended by Pub. L. 95-
609 and by Pub. L. 96-482; 42 U.S.C. 6091 et seq.). They apply to EPA 
and to approved States to the extent provided in part 271 of this 
chapter. Other requirements can be found in Part 269 of this chapter.
* * * * *

[[Page 18863]]

PART 271--REQUIREMENTS FOR AUTHORIZATION OF STATE HAZARDOUS WASTE 
PROGRAMS

    16. The authority citation for part 271 continues to read as 
follows:

    Authority: 42 U.S.C. 6905, 6912(a) and 6926.

    16a. Section 271.21 is amended by revising paragraph (b) 
introductory text, (b)(1), (b)(2) and (e)(2) introductory text; by 
reserving paragraph (h) and by adding paragraphs (i), (j) and (k) and 
by adding a table to the end of the section to read as follows:


Sec. 271.21  Procedures for revision of State programs.

* * * * *
    (b) Revision of a State program shall be accomplished as follows:
    (1) The State shall submit a modified program description, Attorney 
General's Statement, Memorandum of Agreement, or such other documents 
as EPA determines to be necessary under the circumstances. Submittals 
to support Category 1 and Category 2 program revisions (as listed in 
Table 1) shall be in accordance with paragraph (i) of this section.
    (2) The Administrator shall approve or disapprove program revisions 
based on the requirements of this part and of the Act. In approving or 
disapproving program revisions, the Administrator shall follow the 
procedures of paragraph (b) (3) or (4) of this section. Procedures for 
review and approval of Category 1 and Category 2 program revisions (as 
listed in Table 1) shall be in accordance with paragraph (i) of this 
section.
* * * * *
    (e) * * *
    (2) Federal program changes are defined for purposes of this 
section as promulgated amendments to 40 CFR parts 124, 270, 260-269 and 
any self-implementing statutory provisions (i.e., those taking effect 
without prior implementing regulations) which are listed as State 
program requirements in this subpart. States must modify their programs 
to reflect Federal program changes and must subsequently submit the 
modifications to EPA for approval.
* * * * *
    (h) (Reserved).
    (i) Category 2 program revisions. Category 2 program revisions and 
prerequisite requirements are identified in Table 1 of this section. 
The procedures for authorization of Category 2 program revisions are as 
follows:
    (1) The State shall submit an application for authorization of 
Category 2 program revision(s). The State application shall include:
    (i) A certification by the State Attorney General (or the attorney 
for the State agency(ies) which have independent legal counsel) that 
the laws and regulations of the State provide adequate authority to 
implement a State program equivalent to the Federal program as listed 
in Table 1;
    (ii) A certification by the Director (as ``Director'' is defined in 
40 CFR 270.2) that the State intends to and has the capability to 
implement a State program equivalent to the Federal program. EPA may 
establish essential program elements for any Category 2 rule. When 
established, the Director's certification shall address each essential 
element individually.
    (iii) An update to the State/EPA Memorandum of Agreement (MOA) 
provided in Sec. 271.8 or a certification by the Director stating that 
the current MOA provides for adequate implementation of the program 
revision(s).
    (iv) An update to the Program Description provided in Sec. 271.6 or 
a certification by the Director stating that the current Program 
Description adequately addresses implementation of the program 
revision(s).
    (v) Copies of all cited State laws and regulations showing that the 
cited State laws and regulations are lawfully adopted and fully 
effective at the time the certifications are signed.
    (vi) At the State's discretion, any additional information which 
the State believes will support the application.
    (2) Within 30 days of receipt of a Category 2 program revision 
application, EPA will review the application to determine if it is 
complete. If EPA determines that the application is not complete, EPA 
will provide the State a concise written Statement of the deficiencies 
of the application.
    (3) Within 60 days of determining a Category 2 application is 
complete, EPA will review the application to determine whether the 
application describes a State program equivalent to the Federal program 
and follow the procedures of paragraph (b)(3) of this section for an 
immediate final rule to publish its decision to authorize or deny 
authorization of the program revision. The State and EPA may agree to a 
longer or shorter review period. The State and EPA may agree to use the 
procedures of paragraph (b)(4) of this section for a proposed/final 
rule.
    (j) For purposes of Category 2 program revisions, State programs 
will be considered equivalent to the Federal program if the laws and 
regulations cited by the State provide for a program no less stringent 
than the analogous Federal program.
    (k) For purposes of Category 2 program revisions, State 
certifications will be considered incomplete when:
    (1) Copies of cited statutes or regulations were not included;
    (2) The statutes or regulations cited by the State are not in 
effect;
    (3) The State is not yet authorized for certain RCRA rules 
specified as necessary before seeking authorization of the program 
revision at issue, as identified in Table 1;
    (4) The certification contains significant errors or omissions.

                                             Table 1 to Sec.  271.21                                            
----------------------------------------------------------------------------------------------------------------
                      Program revision                              Prerequisite regulations           Category 
----------------------------------------------------------------------------------------------------------------
HWIR-media rule 40 CFR Part 269 (except 40 CFR 269.30-       Final authorization as defined in Sec.            2
 26934).                                                       270.2.                                           
LDR treatment requirements for media 40 CFR 269.30-26934...  LDR Third Third Rule, 55 FR 22520 Jun.            2
                                                              1, 1990.                                          
Site-specific LDR treatment variances 40 CFR 268.44........  LDR Third Third, 55 FR 22520 Jun. 1,              2
                                                              1990.                                             
HWIR-waste rule (60 FR 66344-663469, December 21, 1995)....  Final authorization as defined in Sec.            2
                                                               270.2.                                           
Revised Technical Standards for Hazardous Waste Combustion   Final authorization as defined in Sec.            2
 Facilities April 19, 1996.                                    270.2.                                           
----------------------------------------------------------------------------------------------------------------


[[Page 18864]]


    17. Add a new Sec. 271.28 to subpart A to read as follows:


Sec. 271.28  Specific authorization provisions for an HWIR-media 
program.

    (a) The essential elements of an HWIR-media program are:
    (1) Authority to address all media that contain hazardous wastes 
listed in Part 261, Subpart D of this chapter, or that exhibit one or 
more of the characteristics of hazardous waste defined in part 261, 
subpart C of this chapter.
    (2) Authority to address the hazards associated with media that are 
managed as part of remedial activities and that the Director has 
determined do not contain hazardous wastes (according to 40 CFR 269.4), 
but would otherwise be subject to Subtitle C regulation. States that 
choose to make contained-in decisions only when the concentrations of 
hazardous constituents in any given media are protective of human 
health and the environment, absent any additional management standards 
(i.e., eatable, drinkable concentrations), may receive HWIR-media 
authorization without certifying their ability to impose management 
standards on media that no longer contain hazardous waste.
    (3) Authority to include, in the definition of media, materials 
found in the natural environment such as soil, ground water, surface 
water, and sediments, or a mixture of such materials with liquids, 
sludges, or solids that are inseparable by simple mechanical removal 
processes and made up primarily of media.
    (4) Authority to exclude debris (as defined in 40 CFR 268.2) and 
non-media cleanup wastes from the requirements of 40 CFR part 269 
(except the requirements for Remediation Management Plans).
    (5) Authority to use the contained-in principle (or equivalent 
principles) to remove contaminated media from the definition of 
hazardous waste only if they contain hazardous constituents at 
concentrations at or below those specified in appendix A of part 269 of 
this chapter.
    (6) Authority to require compliance with LDR requirements listed in 
40 CFR 269.30 through 269.34.
    (7) Authority to issue, modify and terminate (as appropriate) 
permits, orders, or other enforceable documents to impose management 
standards for media as described in essential elements 1-6 and 8 and 9.
    (8) Requirements for public involvement in management decisions for 
hazardous and non-hazardous media as described in 40 CFR 269.43(e).
    (9) Authority to require that data from treatability studies and 
full scale treatment of media that contain hazardous waste be submitted 
to EPA for inclusion in the National Risk Management Research 
Laboratory treatability database.
    (b) EPA may withdraw authorization of a State HWIR-media program 
whenever:
    (1) The State has failed to adequately address EPA concerns; or
    (2) The State's HWIR-media program does not provide authority for 
all of the HWIR-media program essential elements as set forth in this 
section; or
    (3) The State's HWIR-media program meets any one of the criteria 
for general program withdrawal as set forth in Sec. 271.22. When 
withdrawing a State's HWIR-media program authorization, EPA will use 
the procedures of Sec. 271.21(b)(4) for a proposed/final rule to 
provide notice of the proposed authorization decision.
    (c) Following withdrawal of a State's HWIR-media program, the State 
is barred from making contained-in decisions or from approving RMPs and 
EPA will implement the Federal HWIR-media program in the State. RMPs 
issued by a State pursuant to its HWIR-media program prior to program 
withdrawal will remain in effect; however, EPA may use its enforcement 
authorities to impose additional requirements on media managed pursuant 
to such RMPs, as necessary to protect human health and the environment.
    (d) Any person may, at any time, submit written information to EPA 
alleging inadequate State performance of an authorized HWIR-media 
program and EPA will consider such information when making decisions 
about the appropriate phase of monitoring for a State HWIR-media 
program. EPA will provide copies of all such written information to the 
Director and give the State at least 30 days to respond. Following 
receipt of the State's response, EPA will respond to all such 
information in writing. EPA and the State may agree to waive the 
opportunity for State response.

[FR Doc. 96-10096 Filed 4-26-96; 8:45 am]
BILLING CODE 6560-50-P

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