18780 Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules

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.

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: RCRADocket@epamail.epa.gov. 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:

dutta.subijoy@epamail.epa.gov). 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:

brown.jamesr@epamail.epa.gov).

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.
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules 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—§ 269.1

2. Purpose/Applicability—§ 269.2

3. Definitions—§ 269.3

4. Identification of Media Not Subject

to Regulation as Hazardous Waste—

§ 269.4

B. Other Requirements Applicable to

Management of Hazardous

Contaminated Media

1. Applicability of Other

Requirements—§ 269.10

2. Intentional Contamination of Media

Prohibited—§ 269.11

3. Interstate Movement of

Contaminated Media—§ 269.12

C. Treatment Requirements

1. Overview of the Land Disposal

Restrictions

2. Treatment Requirements—§ 269.30

3. Constituents Subject to Treatment

4. Nonanalyzable Constituents

5. Review of Treatment Results—

§ 269.33

6. Management of Treatment

Residuals—§ 269.34

7. Media Treatment Variances—

§ 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—§ 269.40

2. Content of RMPs—§ 269.41

3. Treatability Studies—§ 269.42

4. Approval of RMPs—§ 269.43

5. Modification of RMPs—§ 269.44

6. Expiration, Termination, and

Revocation of RMPs—§ 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—§ 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 HWIRwaste Proposal

6. HWIR-media Specific

Authorization Considerations—

§ 271.28

7. Effect in Authorized States

8. Request for Comment on EPA’s

Approach to Authorization

F. Corrective Action Management

Units—§ 264.552

G. Remediation Piles—§§ 260.10 and

264.554

H. Dredged Material Exclusion—

§ 261.4

VI. Alternative Approaches to HWIRmedia 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 Nonmedia 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. §§ 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 responseoriented. 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
18782 Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules

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 sitespecific 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 cleanupand 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 asgenerated 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 asgenerated 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 governmentoverseen 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

§§ 6924(u),(v)). Commonly known as the
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules 18783

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.

‘‘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 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)).

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
18784 Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules

soils and codification of the containedin 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 HWIRmedia 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 HWIRmedia 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.
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules 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 costeffective 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 ‘‘coregulators’’), 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, costeffectiveness 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 HWIRmedia 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
18786 Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules

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 sitespecific 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 § 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 § 269.4, to no

longer contain hazardous wastes. Nonhazardous contaminated media are

media determined, pursuant to § 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.
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules 18787

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.

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 sitespecific 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 § 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.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 sitespecific 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 HWIRmedia 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.
18788 Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules

TABLE 1

Key elements Proposed option Hybrid contingent management

option Unitary approach

Legal Theory ........... Contained-in ......................................... Conditional Exclusion for below the

Bright Line.

Conditional Exclusion.

Scope ...................... Media only ............................................ All remediation wastes ......................... All remediation wastes.

Bright Line ............... Bright Line—10¥3 and Hazard index

of 10.

Bright Line (a) (for media) same as

proposal, or (b) qualitative Bright

Line1.

No Bright Line.

Hazardous vs. Nonhazardous.All media above Bright Line are subject to Subtitle C; below is site- specific decision.All remediation wastes above Bright

Line are subject to Subtitle C; below

(when managed according to RAP

or RMP) are not hazardous.

All remediation wastes managed according to RAP or RMP are not hazardous.

LDRs ........................ LDRs required for media where LDRs

attaches 2.

LDRs required for wastes where LDRs

attaches 2.

LDRs required for wastes where LDRs

attaches.3

Permitting ................ RMP serves as RCRA permit for

media that remain subject to Subtitle

C.

RMP serves as RCRA permit for

wastes that are above the Bright

Line; for wastes below the Bright

Line, RMP does not have to serve

as RCRA permit.

No requirement that RAP/RMP serve

as RCRA permit, since wastes are

not subject to Subtitle C.

1See discussion of qualitative Bright Line below.

2See discussion of applicability of LDRs in section (V)(C).

3See 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 ‘‘HWIRwaste’’ 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 sitespecific 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 HWIRmedia 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
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules 18789

3Note that this only applies to hazardous

contaminated media; media exempt from Subtitle C

because of contained-in decisions (see § 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).

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—

§ 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 § 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 (§ 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 (§ 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.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.

The third provision (§ 269.1(c))

addresses the interplay between these

HWIR-media rules and other cleanuprelated laws and regulations.

Specifically, it clarifies that remedy

selection standards, other ‘‘how-cleanis-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 HWIRmedia regulations come into play.

The fourth provision (§ 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 contaminantspecific 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,

(§ 269.1(e)) specifies that these rules

would not be self-implementing. As

explained elsewhere in this preamble,

and in the proposed rule language

(§ 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—§ 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 lesscontaminated media, EPA and the States

would impose appropriate management

requirements on a site- and wastespecific 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, nonmedia 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
18790 Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules

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

§ 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.’’

5The exceptions are today’s proposed regulations

for remediation management plans and remediation

piles, as discussed in the applicable sections of

today’s preamble.

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 § 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 newlygenerated wastes. They said that

because non-media remediation wastes

(e.g., drummed wastes and sludges), are

physically and chemically similar to asgenerated 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 containedin 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.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.

Because this issue arose late in the

preparation of today’s proposed rule,

EPA has decided, with a few

exceptions,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.

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)
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules 18791

6The 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.’’

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 manmade 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 sitespecific 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-bysite 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.

§ 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 mediaspecific LDR standards in Part 269.

3. Definitions—§ 269.3

Section 269.3 defines several

important new terms that are unique to

Part 269 6. These terms are defined here,

rather than in § 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

§ 260.10 would apply to Part 269 as

well. The following is a discussion of

each new term.

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.,
18792 Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules

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 § 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

§ 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

§ 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

§ 264.101, but may be subject to such

corrective action requirements if the site is

located within such a facility (as defined in

§ 260.10).

EPA also proposes to amend the

definition of facility in § 260.10 to
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules 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 § 3004 (u) and (v) and 3008(h), a

facility is defined (see § 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 resourceintensive undertaking, and the facilitywide 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 § 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 facilitywide 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 § 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 § 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 § 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 § 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 nonhazardous 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.
18794 Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules

7The exception is, in some cases, the requirement

to comply with the land disposal treatment

standards. (See discussion in (V)(C).)

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 § 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

§ 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—§ 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.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).

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
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules 18795

8Recent 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.)

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, preventionoriented 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 §§ 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 § 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 8 (57 FR 21450, 21453,

May 20, 1992).

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
18796 Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules

9The Agency notes, however, that by explicitly

providing in § 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.

designed to provide for site-specific

discretion in making such decisions.

Thus, it is possible that some States

might choose to specify—on a sitespecific basis, more broadly as a matter

of policy, or in regulations—containedin 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 (§ 261.4(g)

and § 269.4(a)).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).

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 decisionmaking, 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 decisionmaking, 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
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules 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 sitespecific 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 § 261.11(a)(3) (incorporating the

language of RCRA section 1004(5)(B))

and § 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 sitespecific 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
18798 Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules

10See memoranda discussed in section

(V)(A)(4)(a) of today’s preamble.

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 containedin 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 ‘‘healthbased,’’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?

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 containedin decisions be maintained with nonBright 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 sitespecific 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
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules 18799

11Superfund 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¥6 level for carcinogens.

For more information on SSLs, call David Cooper

(703) 603–8763.

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 10–3 as

a benchmark for setting the Bright Line.

Therefore, the Bright Line values in

Appendix A were based on a 10–3 risk

level for carcinogenic constituents

(using the assumptions described

above), and a health index of 10 for noncarcinogens, (that is, 10 × 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 10–3 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; 11 however, the exposure scenarios

used in that effort are good indicators of

relative risk for developing Bright Line

values.

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 sitespecific, 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 siteand 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 sitespecific 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
18800 Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules

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¥3 risk for carcinogens,

and a health index of 10 for noncarcinogens (that is 10× 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 sitespecific 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 asgenerated 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, highlyconcentrated, 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
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules 18801

12The 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.

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 upto-date with the most current Agency

risk information and policies (e.g.,

adjustments to the Soil Screening

levels,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.

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 HWIRmedia 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¥3 cancer risk,

and a hazard index of 10 for noncarcinogens. 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¥6 cancer risk

and hazard index of 1 for noncarcinogens. 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
18802 Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules

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.

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¥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¥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 HWIRwaste 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 containedin 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 HWIRmedia 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, HWIRmedia 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.13 These include the fate and

transport differences discussed above,

and:

—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 offsite resident, an adult and child onsite 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 nonwastewater 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 HWIRmedia 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 HWIRprocess waste analysis, the receptors

evaluated, and assumptions related to

the sources (as described above).
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules 18803

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 HWIRmedia Bright Line concentrations than HWIR-waste

exit levels.

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 HWIRmedia 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.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.

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 HWIRwaste methodology, that conservatism

outweighed the fact that the HWIRmedia risk target (10¥3 for limited

pathways) was less conservative than

the HWIR-waste risk target (10¥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—§ 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

§ 269.30, the following provisions of

Part 268 would continue to apply‘

§§ 268.2–268.7 (definitions, dilution

prohibition, surface impoundment

treatment variance, case-by-case

extensions, no migration petitions, and

waste analysis and recordkeeping),

§ 268.44 (treatment variances), and

§ 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—§ 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 (§ 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—§ 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 § 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
18804 Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules

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.

16A detailed listing of when the land disposal

prohibitions took effect for individual hazardous

wastes can be found in 40 CFR Part 268, Appendix

VII.

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.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)).

Not all management of hazardous

waste constitutes placement for

purposes of the LDRs. EPA has

interpreted ‘‘placement’’ to include

putting hazardous waste into a landbased, 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 longterm 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 technologyand 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.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
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules 18805

17Similarly, 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.

18See, 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’.’’

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.

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 nonhazardous 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.17This 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).

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 sitespecific basis and careful records are

kept.

2. Treatment Requirements—§ 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
18806 Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules

19The 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 asgenerated waste streams are typically more

homogeneous that contaminated environmental

media waste streams.

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.

provided a separate schedule for

establishing LDR prohibitions and

treatment standards for most

remediation wastes).

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 longterm. 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 sitespecific 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).

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 sitespecific 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 § 269.4, to

no longer contain hazardous wastes.

Non-hazardous contaminated media are

environmental media that have been

determined, pursuant to § 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

§ 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). 20

(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 sitespecific 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 § 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 § 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 nonmetal 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
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules 18807

21Of 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.

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,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.

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 § 269.41(c)(9) and § 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 § 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’’
18808 Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules

22The 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].

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.

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 § 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.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).

The policy considerations that argue

for BDAT as the basis for technologybased 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 23).

In these cases, EPA believes that it

will generally be appropriate to use the

additional opportunities for Media

Treatment Variances proposed in

§ 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 sitespecific 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
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules 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 § 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 § 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 § 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 crossmedia 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’’) (§ 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

§ 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.
18810 Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules

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 nonanalyzable 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 § 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—

§ 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—§ 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 § 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—§ 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 § 269.31

would list the situations under which

the Agency believes a Media Treatment

Variance would be appropriate.

Paragraph (c) of § 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
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules 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, § 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 § 268.44(h)).

EPA considered using § 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 § 268.44(h).

a. The generic technology-based

treatment standard is technically

impractical (§ 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

(§ 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 noncombustion 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 technologybased standard would require

(§ 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 sitespecific, risk-based treatment standards.

Using this variance, the Director would

be able to make a site-specific, riskbased determination of § 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, technologybased 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 sitespecific 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
18812 Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules

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 agencyoverseen 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 sitespecific, 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-HWIRmedia contaminated media to the

current treatment variance rules at

§ 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
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules 18813

24EPA is not now reopening the comment period

on the LDR Debris Rule.

25BP 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.

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×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 § 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).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).

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.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.

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 sitespecific, 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
18814 Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules

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 §§ 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)).

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—§ 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 § 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 § 269.4), that are

managed either at a media cleanup site

or elsewhere, in accordance with sitespecific 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),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.

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 sitespecific 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
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules 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 § 270.1, and a RMP is not needed

to document a contained-in decision, it

would not need a RMP.

Under proposed § 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 § 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 § 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 § 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—§ 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 § 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 § 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 § 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
18816 Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules

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

§§ 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 § 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 exsitu 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?
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules 18817

3. Treatability Studies—§ 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 § 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—§ 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 sitespecific 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
18818 Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules

27More 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.

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.

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 § 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 § 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 sideeffects. 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—§ 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—§ 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)).

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.

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
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules 18819

29EPA is not now reopening the comment period

on the Phase IV proposal.

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.

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 highlydeveloped 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—§ 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.
18820 Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules

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 (§ 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 (§ 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 (§ 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-byline 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-
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules 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

(§ 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

(§§ 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

(§ 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
18822 Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules

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 HWIRmedia, 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’’ (§ 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

(§ 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 § 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
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules 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 HWIRmedia 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 selfimplementing, 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 § 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 § 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 § 261.40 and

proposed new § 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—§ 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
18824 Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules

30Although 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.

authorized to implement the corrective

action regulations under RCRA section

3004(u). Under this approach, all HWIRmedia authorization applications would

have been prepared, reviewed, and

approved using streamlined

procedures,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.

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 HWIRmedia 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 worksharing 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 HWIRmedia 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 HWIRmedia on corrective action

authorization, and requiring noncorrective action authorized States to

undergo a two-year provisional period)

would be more appropriate to HWIRauthorization 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 HWIRmedia 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.
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules 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 HWIRmedia authorization. Tribes that choose

to receive only partial authorization

would not be eligible to obtain HWIRmedia 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

(§ 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 HWIRmedia 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 HWIRmedia 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 § 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

§ 269.30 through § 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 § 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 HWIRmedia 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

(§ 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 HWIRmedia rule, while significantly

streamlined from the existing

procedures for authorization of program
18826 Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules

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 sitespecific 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 HWIRmedia 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 (§ 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 HWIRmedia program authorization. Program

withdrawal would be for the HWIRmedia portion of the State’s

authorization program only.

EPA would not withdraw HWIRmedia 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 HWIRmedia 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

§ 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
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules 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 preHSWA 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 HWIRmedia 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 preHSWA 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 HWIRmedia 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
18828 Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules

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 HWIRmedia 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 HWIRmedia regulations proposed today are less

stringent than the existing program, the preHSWA 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
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules 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 HWIRmedia authorization discussed in

section (V)(E)(6)(a);

k. Whether final base-program

authorization is the appropriate

prerequisite requirement for

authorization of the general HWIRmedia 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 HWIRmedia eligibility that would allow States

proposing to use previously authorized

authorities to implement an HWIRmedia 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 HWIRmedia 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—§ 264.552

Today’s proposed rule, at § 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 HWIRmedia 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 HWIRmedia 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
18830 Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules

been approved will be managing sludges

from cleanups. Thus, the flexibility

provided under the proposed HWIRmedia 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—§§ 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

§ 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 § 269.3),

during remedial operations.

This definition would appear in

§ 260.10, where most of the RCRA

hazardous waste regulatory definitions

are codified, rather than in § 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 § 264.554.

Although these provisions are being

proposed in § 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
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules 18831

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.

disposal restrictions, because such

placement would not constitute ‘‘land

disposal’’ according to RCRA § 3004(k)’s

definition of land disposal. For a further

discussion of the Agency’s position that

would be reasonable to interpret

§ 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 § 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 § 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—§ 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),31 would not be subject to

Subtitle C of the Resource Conservation

and Recovery Act (RCRA)(§ 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.

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-
18832 Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules

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 sitespecific 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. § 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 § 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 (§ 3004(m)) and

minimum technology requirements

(§ 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
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules 18833

appropriate and consistent with the

goals and policies in each of these

statutes. Accordingly, under RCRA

§ 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 HWIRmedia 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 § 261.11(a)(3) (incorporating the

language of RCRA section 1004(5)(B))

and § 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
18834 Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules

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 nonmedia, 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
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules 18835

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.

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.

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 HWIRmedia 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.32

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.33

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.
18836 Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules

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

Key elements Proposed option Hybrid contingent management option Unitary approach

Legal Theory .......... Contained-in ......................................... Conditional Exclusion for below the

Bright Line.

Conditional Exclusion.

Scope ..................... Media only ............................................ All remediation wastes ......................... All remediation wastes.

Bright Line .............. Bright Line—10–3 and Hazard index of

10.

Bright Line (a) (for media) same as

proposal, or (b) qualitative Bright

Line*.

No Bright Line.

Hazardous vs. Nonhazardous.All media above Bright Line are subject to Subtitle C; below is site-specific decision.All remediation wastes above Bright

Line are subject to Subtitle C; below

(when managed according to RAP

or RMP) are not hazardous.

All remediation wastes managed according to RAP or RMP are not hazardous.

LDRs ...................... LDRs required for media where LDRs

attaches**.

LDRs required for wastes where LDRs

attaches**.

LDRs required for wastes where LDRs

attaches***.

Permitting ............... RMP serves as RCRA permit for

media that remain subject to Subtitle

C.

RMP serves as RCRA permit for

wastes that are above the Bright

Line; for wastes below the Bright

Line, RMP does not have to serve

as RCRA permit.

No requirement that RAP/RMP serve

as RCRA permit, since wastes are

not subject to Subtitle C.

*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 Nonmedia 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 nonmedia 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’’
18838 Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules

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 containedin 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 § 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 sitespecific 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 10–3

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 10–3 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 10–3

may be too high of a risk for the Bright

Line. The Agency requests comments on

using alternative risk levels (such as

10–4) 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 sitespecific 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 HWIRmedia 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.
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules 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 HWIRMedia 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 asgenerated 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-tograve management of currently

generated hazardous wastes.

Furthermore, the Subtitle C program
18840 Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules

34Although, 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.

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, sitespecific 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.34The

options include either:

—Contaminated media only (soils, nonnavigational 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

Remediation wastes eligible for

exclusion

Levels of contamination potentially excluded from subtitle C regulation

Lower risk

(bright line)*

Lower and higher risk

(No bright line)

Contaminated Media Only ...................................................... Proposed Bright Line Option (Proposed

Rule).

Conditional Exemption Option.

All Remediation Waste ........................................................... Expanded Bright Line Option ................ Expanded 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¥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¥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
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules 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¥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 HWIRmedia, 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 HWIRmedia 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 HWIRmedia. 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 HWIRmedia 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 HWIRmedia 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 HWIRmedia 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 HWIRmedia 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
18842 Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules

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 HWIRmedia, 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, HWIRdatabase 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 HWIRmedia 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]

Media type Baseline

Above bright line Below bright line

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

EXHIBIT C.—ESTIMATED HIGH-END COST SAVINGS UNDER THE PROPOSED AND EXPANDED BRIGHT LINE OPTIONS

Media type

Annual total cost

Net annual cost

savings Baseline HWIR-media

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
18844 Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules

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

Remediation waste baseline and policy option

Implementation Scenario

Aggressive Implementation Limited Implementation

Remediation waste

management costs

Cost

savings

Remediation waste

management costs

Cost

savings

Billion Dollars Per Year

Baseline 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 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

36This 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 decisionmakers, 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 HWIRmedia.

EXHIBIT E.—ANTICIPATED INCENTIVES CREATED BY HWIR-MEDIA

Baseline management plans

HWIR-media

incentives for

non-hazardous media

Reason for change or no change

No excavation or treatment (e.g.,

containment).

Manage in-situ or ex-situ ............... LDRs either would not 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 choose ex-situ

treatment.

Previously preferred ex-situ to in-situ 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.
18846 Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules

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 onetime 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. HWIRmedia 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 HWIRmedia 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 lowincome 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 sitespecific 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 lowincome or minority communities.

This economic activity could take the

form of increased employment of

local community members at the
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules 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 HWIRmedia 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 costeffective 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 HWIRmedia 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 HWIRmedia 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
18848 Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules

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 startup 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:

§ 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:

§ 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
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules 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 § 2.203(b) of this

chapter. * * *

3. Section 260.3 is amended by

revising the introductory text to read as

follows:

§ 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:

§ 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 § 269.3,

does not constitute a facility for the

purposes of § 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:

§ 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:

§ 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:

§ 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. § 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. § 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:

§ 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:

§ 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:

§ 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.
18850 Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules

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:

§ 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 § 264.554 to subpart S to read as

follows:

§ 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

§ 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:

§ 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

§ 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.

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

§ 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 § 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 § 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 (nonPart 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.

§ 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 § 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

§ 269.3).

(b) [Reserved]

Subpart B—Other Requirements

Applicable to Management of

Hazardous Contaminated Media

§ 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, caseby-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.

§ 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.

§ 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.
18852 Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules

Subpart C—Treatment Requirements

§ 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 § 269.1(a),

(including media that have been

determined, pursuant to § 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 § 269.1(a),

(including media that have been

determined, pursuant to § 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

§ 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 § 269.31 (Media Treatment

Variances), or the Director requires more

stringent treatment standards according

to § 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 § 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 § 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.

§ 269.31 Media treatment variances.

(a) The Director may approve a

variance from a treatment standard(s)

specified in § 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 § 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 longterm 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 § 269.43.

§ 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

§ 269.30, if s/he determines that the

treatment required under § 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.

§ 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
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules 18853

(b) Submit an application for a media

treatment variance under § 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 § 269.31(b).

§ 269.34 Management of treatment

residuals.

(a) Treatment residuals from treating

media identified by § 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)

§ 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 § 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 § 269.43.

Examples of such documents may

include enforcement orders (that meet

the minimum notice requirements of

§ 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.

§ 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 § 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

§ 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 §§ 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.

§ 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
18854 Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules

1EPA was unable to develop ground water Bright

Lines for nine constituents that lacked both an oral

reference dose and an oral slope factor.

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.

§ 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 onsite 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.

§ 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.

§ 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 § 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.1 The Bright Lines for both soil

and groundwater exposures are calculated

using a target risk of 10¥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.

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 HWIRmedia 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:
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules 18855

SSL

TR AT

ug mg EF ED

VF PEF

= × ×

× × × × +





 





365

1000

1 1

 days/yr

URF /

For non-cancer health effects:

SSL THQ AT

ED

RfC VF PEF

= × ×

× × + + 



 



 



 





365

1 1 1

 days/yr

EF

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:

SSL

TR AT

kg mg EF IF = × ×× × × −

365

10 6

 days/yr

SF /

For non-cancer health effects:

SSL THQ BW AT

kg mg EF ED IR

= × × ×









× × × × −

365

10 6

 days/yr

1

RfD

/

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¥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¥3 for carcinogens and RfD × 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¥6 ......................

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/m3)¥1 .............. specific.

VF=exposure frequency ................................................................................................................................... ................................ (mg/m3).

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.

m3/kg ..................... m3/kg.

6.79×108 ................ 6.79×108.

m3/kg ..................... m3/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¥6 .......................

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)¥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.
18856 Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules

APPENDIX A–1.—BRIGHT LINE NUMBERS FOR SOIL

CAS No. Constituent

Bright Line

for soil

(ppm)

Path Basis

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)anthracene

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 N.O.S.) ................................................................. 310 Ingest ....... Non-Cancer.

140–57–8 ................... Aramite

7440–38–2 ................. Arsenic (and compounds N.O.S.) .................................................................... 400 Ingest ....... Cancer.

7440–39–3 ................. Barium (and compounds N.O.S.) ..................................................................... 10000 Cap .......... Non-Cancer.

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
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules 18857

APPENDIX A–1.—BRIGHT LINE NUMBERS FOR SOIL—Continued

CAS No. Constituent

Bright Line

for soil

(ppm)

Path Basis

100–44–7 ................... Benzyl chloride

56–55–3 ..................... Benz[a]anthracene ........................................................................................... 900 Ingest ....... Cancer.

7440–41–7 ................. Beryllium (and compounds N.O.S.) ................................................................. 100 Ingest ....... Cancer.

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) phthalate ............................................................................... 210 Inhal ......... Csat.

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 N.O.S.) ................................................................. 390 Ingest ....... Non-Cancer.

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 N.O.S.) ................................................................ 3900 Ingest ....... Non-Cancer.

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 (Methylene Chloride) ............................................................ 7000 Inhal ......... Cancer.

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 isomers) ................................................................. 70 Ingest ....... Cancer.

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.
18858 Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules

APPENDIX A–1.—BRIGHT LINE NUMBERS FOR SOIL—Continued

CAS No. Constituent

Bright Line

for soil

(ppm)

Path Basis

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 N.O.S.) ........................................................................ 4000 Fixed.

108–31–6 ................... Maleic anhydride

7439–97–6 ................. Mercury (and compounds N.O.S.) ................................................................... 70 Inhal ......... Non-Cancer.

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 ..................... Naphthalene7440–02–0 ................. Nickel (and compounds N.O.S.) ...................................................................... 10000 Cap .......... Non-Cancer.

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 N.O.S.) ................................................................. 3900 Ingest ....... Non-Cancer.

7440–22–4 ................. Silver (and compounds N.O.S.) ....................................................................... 3900 Ingest ....... Non-Cancer.

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 (Bromoform) ........................................................................ 10000 Cap .......... Cancer.

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 (Chloroethene) ........................................................................... 2 Inhal ......... Cancer.

1330–20–7 ................. Xylenes ............................................................................................................. 320 Inhal ......... Csat.
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules 18859

APPENDIX A–1.—BRIGHT LINE NUMBERS FOR SOIL—Continued

CAS No. Constituent

Bright Line

for soil

(ppm)

Path Basis

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

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:

C

TR AT BW

IR EF ED = × × ×× × ×

365 days

SF

For non-cancer health effects:

C

RfD BW AT

IR EF ED = × × × × ×× ×

10 365 days

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 concentration in groundwater .............................................. Calculated (mg/l) ................ Calculated (mg/l).

TR = Target excess lifetime cancer risk .......................................................... 10–3—1 70 years ................. —30 years.

AT = Averaging time ........................................................................................ 70 kg .................................. 70 kg.

BW = Body weight ............................................................................................. Constituent .........................

SF = Oral cancer slope factor .......................................................................... Specific ............................... Constituent.

RfD = Oral reference dose ................................................................................ (mg/kg/day)–1 ..................... Specific.

IR = Groundwater ingestion rate ..................................................................... ............................................ (mg/kg/day).

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

CAS No. Constituent

Groundwater

Bright Line

(mg/l)

Basis

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-trifluoroethane ................................................................................. 10000 Non-Cancer.

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 acid .................................................................................... 4 Non-Cancer.

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 (2,4-D) ........................................................................... 4 Non-Cancer.

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.
18860 Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules

TABLE TO APPENDIX A–2.—BRIGHT LINES FOR GROUNDWATER—Continued

CAS No. Constituent

Groundwater

Bright Line

(mg/l)

Basis

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 ..................................................................................................... (1)

110–80–5 ................... 2-Ethoxyethanol ................................................................................................................ 100 Non-Cancer.

91–59–8 ..................... 2-Naphthylamine ............................................................................................................... 0.1 Cancer.

79–46–9 ..................... 2-Nitropropane .................................................................................................................. (1)

88–85–7 ..................... 2-sec-Butyl-4,6-dinitrophenol (Dinoseb) ........................................................................... 0.4 Non-Cancer.

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 ............................................................................................................... (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 N.O.S.) ................................................................................. 0.1 Non-Cancer.

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 N.O.S.) .................................................................................. 0.02 Cancer.

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 N.O.S.) ................................................................................ 2 Non-Cancer.

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.
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules 18861

TABLE TO APPENDIX A–2.—BRIGHT LINES FOR GROUNDWATER—Continued

CAS No. Constituent

Groundwater

Bright Line

(mg/l)

Basis

74–95–3 ..................... Dibromomethane (methylene bromide) ............................................................................ 4 Non-Cancer.

75–71–8 ..................... Dichlorodifluoromethane ................................................................................................... 70 Non-Cancer.

75–09–2 ..................... Dichloromethane (Methylene Chloride) ............................................................................ 10 Cancer.

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, beta, gamma) ....................................................................... 0.005 Non-Cancer.

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.
18862 Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules

TABLE TO APPENDIX A–2.—BRIGHT LINES FOR GROUNDWATER—Continued

CAS No. Constituent

Groundwater

Bright Line

(mg/l)

Basis

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 N.O.S.) ................................................................................. 2 Non-Cancer.

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 ............................................................................................................................ (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 .............................................................................................................. (1)

75–69–4 ..................... Trichlorofluoromethane ..................................................................................................... 100 Non-Cancer.

126–72–7 ................... Tris(2,3-dibromopropyl)phosphate .................................................................................... 0.2 EQC Floor.

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.

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:

§ 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.

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

§ 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 selfimplementing 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 § 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 § 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 § 271.21

Program revision Prerequisite regulations Category

HWIR-media rule 40 CFR Part 269 (except 40 CFR 269.30–26934) ............................ Final authorization as defined in § 270.2 2

LDR treatment requirements for media 40 CFR 269.30–26934 ..................................... LDR Third Third Rule, 55 FR 22520 Jun.

1, 1990.

2

Site-specific LDR treatment variances 40 CFR 268.44 .................................................. LDR Third Third, 55 FR 22520 Jun. 1,

1990.

2

HWIR-waste rule (60 FR 66344–663469, December 21, 1995) ..................................... Final authorization as defined in § 270.2 2

Revised Technical Standards for Hazardous Waste Combustion Facilities April 19,

1996.

Final authorization as defined in § 270.2 2
18864 Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 / Proposed Rules

17. Add a new § 271.28 to subpart A

to read as follows:

§ 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

§ 271.22. When withdrawing a State’s

HWIR-media program authorization,

EPA will use the procedures of

§ 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 HWIRmedia program in the State. RMPs

issued by a State pursuant to its HWIRmedia 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]

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