[Federal Register Volume 65, Number 163 (Tuesday, August 22, 2000)]
[Proposed Rules]
[Pages 51080-51135]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-20534]
[[Page 51079]]
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Part III
Environmental Protection Agency
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40 CFR Parts 260, 264, and 271
Amendments to the Corrective Action Management Unit Rule; Proposed Rule
Federal Register / Vol. 65, No. 163 / Tuesday, August 22, 2000 /
Proposed Rules
[[Page 51080]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 260, 264, and 271
[FRL-6850-3]
RIN 2050-AE77
Amendments to the Corrective Action Management Unit Rule
AGENCY: Environmental Protection Agency.
ACTION: Proposed rule.
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SUMMARY: In today's action, the Agency is proposing amendments to the
regulations governing Corrective Action Management Units (CAMUs)
concerning: the types of wastes that may be managed in a Corrective
Action Management Unit (CAMU), the design standards that apply to
CAMUs, the treatment requirements for wastes placed in CAMUs,
information submission requirements for CAMU applications, responses to
releases from CAMUs, and public participation requirements for CAMU
decisions. In addition, today's proposed amendments would
``grandfather'' certain categories of CAMUs and create new requirements
for CAMUs used only for treatment or storage (i.e., those in which
wastes will not remain after closure). Today's action also requests
comment on a potential change to the staging pile regulations. Finally,
today's action proposes an approach to state authorization that would,
as part of this rulemaking, grant ``interim authorization'' for today's
amendments to most states currently authorized for the CAMU rule and
would expedite the authorization process for states authorized for
corrective action but not the CAMU rule. Today's proposed amendments
are intended to make clearer the Agency's general minimum expectations
for CAMUs and to make the CAMU process more consistent and predictable,
as well as more explicit for the public.
DATES: EPA will accept public comment on this proposed rule until
October 23, 2000.
ADDRESSES: Those persons wishing to submit public comments must send an
original and two copies of their comments referencing EPA docket number
F-2000-ACAP-FFFFF to: RCRA Docket Information Center (5305W), U.S.
Environmental Protection Agency Headquarters (EPA)(5305G), Ariel Rios
Building, 1200 Pennsylvania Avenue NW., Washington, DC, 20460. Hand
deliveries of comments, including courier, postal and non-postal
express deliveries, should be made to the Arlington, VA address below.
Comments may also be submitted electronically through the Internet
to: [email protected]. Comments in electronic format should also
identify the docket number F-2000-ACAP-FFFFF. All electronic comments
must be submitted as an ASCII file avoiding the use of special
characters and any form of encryption. Commenters should not submit
electronically any confidential business information (CBI). 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,
Ariel Rios Building, 1200 Pennsylvania Avenue NW., Washington, DC
20460.
Public comments and supporting materials are available for viewing
in the RCRA Docket Information Center (RIC), located at Crystal Gateway
I Building, First Floor, 1235 Jefferson Davis Highway, Arlington, VA.
The RIC is open from 9 a.m. to 4 p.m., Monday through Friday, excluding
federal holidays. To review docket materials, it is recommended that
the public make an appointment by calling (703) 603-9230. The public
may copy a maximum of 100 pages from any regulatory docket at no
charge. Additional copies cost $0.15 per page. The Proposed Rule is
also available electronically. See the Supplemental Information section
below for information on electronic access.
FOR FURTHER INFORMATION CONTACT: For general information, contact the
RCRA Hotline at (800) 424-9346 or TDD (hearing impaired) (800) 553-
7672. In the Washington, DC metropolitan area, call (703) 412-9810 or
TDD (703) 412-3323. For more detailed information on specific aspects
of today's action, contact Bill Schoenborn, U.S. Environmental
Protection Agency (5303W), Ariel Rios Building, 1200 Pennsylvania Ave.,
NW., Washington, DC 20460, at (703) 308-8483, or e-mail:
[email protected].
SUPPLEMENTARY INFORMATION:
Customer Service
In developing the Proposed Rule, we tried to address the concerns
of all our stakeholders. Your comments will help us improve this
regulatory action. We invite you to provide different views on options
we propose, new approaches we have not considered, new data,
information on how this regulatory action may affect you, or other
relevant information. Your comments will be most effective if you
follow the suggestions below:
Explain your views as clearly as possible and why you feel
that way.
Provide solid technical and cost data to support your
views.
If you estimate potential costs, explain how you arrived
at the estimate.
Tell us which parts you support, as well as those you
disagree with.
Provide specific examples to illustrate your concerns.
Offer specific alternatives.
Refer your comments to specific sections of the notice.
Make sure to submit your comments by the deadline in this
notice.
Be sure to include the proposal name, date, and docket
number with your comments.
Copies of today's proposal, titled Amendments to the
Corrective Action Management Unit Rule, are available for inspection
and copying at the EPA Headquarters library, at the RCRA Docket (RIC)
office identified in ADDRESSES above, at all EPA Regional Office
libraries, and in electronic format at the following EPA Web site:
http://www.epa.gov/osw/special.htm. Printed copies of the proposal and
related documents can also be obtained by calling the RCRA/Superfund
Hotline at (800) 424-9346 or (703) 412-9810.
The index and some of the supporting materials are available on the
Internet. Follow these instructions to access the information
electronically:
WWW: http://www.epa.gov/epaoswer/....
FTP: ftp.epa.gov
Login: anonymous
Password: Your internet address
Files are located in /pub/epaoswer.
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, which will also
include all comments submitted directly in writing. The official record
is the paper record maintained at the address in ADDRESSES at the
beginning of this document.
EPA responses to comments, whether the comments are written or
electronic, will be published in a notice in the Federal Register or in
a response to comments document placed in the official record for this
proposed rulemaking. EPA will not immediately reply to commenters
electronically other than to seek clarification of electronic comments
that may be garbled in transmission or during conversion to paper form.
Outline
The contents of today's document are listed in the following
outline:
I. Authority
[[Page 51081]]
II. Background
A. Purpose and Context for Today's Proposed Rule
1. Corrective Action Management Units (CAMUs)
B. Why is EPA Proposing Today's Amendments?
C. Approach to Publishing Today's Proposed Amendments
III. Section by Section Analysis
A. Grandfathering CAMUs (Sec. 264.550)
B. Eligibility of Wastes for Management in CAMUs
(Sec. 264.552(a))
1. As-Generated vs. ``Cleanup'' Wastes
2. Wastes Managed During Closure
3. Wastes in Intact or Substantially Intact Containers, Tanks,
or Other Non-Land-Based Units. (Sec. 264.552)
4. Limited Use of ``As-Generated'' Waste in CAMUs
C. Discretionary Kickout (Sec. 264.552(a)(2))
D. Information Submission (Sec. 264.552(d))
1. Availability of Information
2. Ability to Seek Additional Information
3. Commercial Chemical Products
4. Alternate Approach to Proposed Sec. 264.552(d)(3)
5. Interpretation of Existing Sec. 264.552(d)
E. Liquids in CAMUs (Sec. 264.552(a)(3))
1. Sec. 264.314(f) Demonstration
F. Amendments to Design Standards For CAMUs
1. Liner Standard (Sec. 264.552(e)(3))
a. Alternate Liner Designs (Sec. 264.552(e)(3)(ii))
2. Cap Standard (Sec. 264.552(e)(6)(iv))
a. Alternate Cap Design (Sec. 264.552(e)(6)(iv)(B))
3. Releases to Groundwater (Sec. 264.552(e)(5))
G. Proposed Approach to Treatment
1. Identification of ``Principal Hazardous Constituents'' (PHCs)
(Sec. 264.552(e)(4))
a. Constituents Subject to PHC Analysis (Sec. 264.552(e)(4)(ii))
b. Proposed PHC Standard (Sec. 264.552(e)(4)(i))
c. Approach to Identifying PHCs
d. Identifying Carcinogenic PHCs Posing a Risk via Inhalation or
Ingestion
e. Identifying Non-Carcinogenic PHCs Posing a Risk via
Inhalation or Ingestion
f. Waste to Groundwater Pathway
g. Designation of Other PHCs
2. Treatment Standards (Sec. 264.552(e)(4)(iii))
a. National Minimum Treatment Standards
b. Debris
c. CAMU-Eligible Wastes Exhibiting the Characteristics of
Ignitability, Corrosivity, or Reactivity
d. How is 90% Reduction Assessed?
e. Use of the TCLP to Assess Treatment
3. Adjustment Factors to the Treatment Standard
(Sec. 264.552(e)(4)(v))
a. Adjustment Factor A. Technical Impracticability
(Sec. 264.552(e)(4)(v)(A))
b. Adjustment Factor B. Consistency with Site Cleanup Levels
(Sec. 264.552(e)(4)(v)(B))
c. Adjustment Factor C. Community Views
(Sec. 264.552(e)(4)(v)(C))
d. Adjustment Factor D. Short-Term Risks
(Sec. 264.552(e)(4)(v)(D))
e. Adjustment Factor E. Engineering Design and Controls
(Sec. 264.552(e)(4)(v)(E))
(1). Assessment of Long-Term Protection Offered by the Unit
f. Adjustment Factor E(1). Treatment That is Substantially Met
(Sec. 264.552(e)(4)(v)(E)(1))
(1). Very Low Mobility
(2). Substantially Met
g. Adjustment Factor E(2). Use of Cost-effective Treatment
(Sec. 264.552(e)(4)(v)(E)(2))
(1). What is ``Cost-Effective Treatment?
(2). What Does a Review of Appropriate Treatment Technologies
Constitute?
(3). What Does it Mean That Cost-Effective Treatment is ``Not
Reasonably Available?''
(4). Adjustment Factor E(2)(i). Subtitle C Standards
(Sec. 264.552(e)(4)(v)(E)(2)(i))
(5). Adjustment Factor E(2)(ii). Cost Effective Treatment
Reasonably Available (Sec. 264.552(e)(4)(v)(E)(2)(ii))
(6). Adjustment Factor E(2)(iii). Cost-Effective Treatment is
not Reasonably Available (Sec. 264.552(e)(4)(v)(E)(2)(iii))
(7). Liner Standards for Adjustment E(2)(iii)
4. Request for Comment on Treatment Standard Approach
5. Treatment Within a Reasonable Time (Sec. 264.552(e)(4)(vi))
6. Assessing Compliance with the Treatment Requirement
(Sec. 264.552(e)(4)(vii))
H. Constituents At Or Below Remedial Levels (Sec. 264.552(g))
I. Treatment and/or Storage Only CAMUs (Sec. 264.552(f))
1. Current CAMU Regulations for Treatment and/or Storage Only
CAMUs
2. Staging Pile Standards
3. Proposed Standards for Treatment and/or Storage CAMUs
J. Grandfathering CAMUs (Secs. 264.550 and 264.551)
1. Documentation of ``Substantially in the Approval Process''
K. Public Participation (Sec. 264.552(h))
L. Additional Requirements (Sec. 264.552(i))
IV. Relationship Between Today's Proposed Action and Other
Regulatory Programs
A. Impact of Today's Amendments
V. How Would Today's Proposed Regulatory Changes be Administered and
Enforced in the States?
A. Applicability of Federal Rules in Authorized States
B. Authorization of States for Today's Proposal
C. Interim Authorization-By-Rule for States Currently Authorized
for the CAMU Rule
1. Description of the Basis for Interim Authorization-By-Rule
2. Eligibility of States for the Proposed Interim Authorization-
By-Rule Process
3. Interim Authorization Process Time Line
4. Expiration of Interim Authorization
5. Conditional Interim Authorization
D. Authorization of States Currently Authorized for Corrective
Action, but not the Existing CAMU Rule
1. Content of a State's Application for Final Authorization
2. Authorization Approach for States That Adopt the CAMU
Regulations by Reference or Verbatim
VI. Effective Date
VII. Conforming Changes (40 CFR Subpart S, Secs. 260.10,
264.551(a)(1)(i), 264.552(a)(1)(i))
VIII. Analytical and Regulatory Requirements
A. Planning and Regulatory Review Executive Order 12866
1. Economic Analysis Background and Purpose
a. Framework for the Analysis.
b. Baseline Case Description
c. Post-Regulatory Case Description
d. Incremental Impacts
2. CAMU Administrative Approval Costs Assessment
3. Assessment of the Incremental Impacts Related to the
Treatment and Unit Design Provisions, and to the Treatment and/or
Storage Only CAMU Provisions
a. Treatment and Unit Design Standards Implemented in the
Baseline
b. Treatment and Unit Design Provisions in the Post-Regulatory
Case
c. Incremental Impacts Associated with Proposed Treatment and
Unit Design Provisions
d. Incremental Impacts Associated with the Treatment and/or
Storage Only CAMU Provisions
4. Assessment of the Incremental Change in the Number of CAMUs
Approved
a. Grandfathering Window
b. Post Promulgation Equilibrium
5. Assessment of the Total Impacts for the Proposed Amendments
to the CAMU Rule
B. Regulatory Flexibility Act (RFA) as Amended by the Small
Business Regulatory Enforcement Fairness Act (SBREFA)
1. Methodology to Assess Small Entity Impacts
a. Framework for the Analysis
b. Methodological Approach for SBREFA Analysis
c. Examination of Existing CAMUs for Small Entity Status
d. Significant Impact Screen of Facilities for Which Size Was
Undetermined
2. The Impacts Estimated on Small Entities
C. Paperwork Reduction Act
D. Unfunded Mandates Reform Act
E. National Technology Transfer and Advancement Act
F. Consultation and Coordination with Indian Tribal Governments
(Executive Order 13084)
G. Protection of Children from Environmental Health Risks and
Safety Risks (Executive Order 13045)
H. Federalism (Executive Order 13132)
I. Environmental Justice Strategy (Executive Order 12898)
I. Authority
These regulations are proposed under the authority of sections
1006, 2002(a), 3004, 3005(c), 3007 and 3008(h) of the Solid Waste
Disposal Act, as amended by the Resource Conservation and Recovery Act,
as amended by the Hazardous and Solid Waste Amendments of 1984.
[[Page 51082]]
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. These regulations center
around two broad objectives: to prevent releases of hazardous wastes
and constituents through a comprehensive set of management requirements
(commonly referred to as hazardous waste ``cradle-to-grave''
requirements); and to minimize the generation of hazardous wastes and
to promote their legitimate reuse and recycling. The hazardous waste
regulations constitute minimum national standards for management of
hazardous wastes and are generally oriented towards ``prevention'' of
releases, rather than ``response'' to releases. In general, they apply
consistently 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 been conservatively designed to ensure proper
management of hazardous wastes over a range of waste types,
environmental conditions, management scenarios, and operational
contingencies.
During cleanup of contaminated sites,\1\ the regulations for the
management of hazardous wastes apply to cleanup wastes and contaminated
media that meet the definition of hazardous waste under RCRA. EPA has
long recognized that the incentives and objectives for the hazardous
waste prevention and cleanup programs differ fundamentally. For
example, the stringent treatment requirements established by the RCRA
land disposal restrictions (LDRs) have encouraged many generators to
reduce the amount of hazardous waste they generate. On the other hand,
when the LDR requirements are applied in the context of site cleanup,
they can act as a disincentive to excavate wastes for cleanup.
Similarly, the hazardous waste unit standards and permitting
requirements can also act as disincentives to cleanup. Finally, there
may be significant physical and chemical differences between ``as-
generated'' wastes and cleanup wastes that affect their ability to
undergo treatment.
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\1\ The term ``site'' is used in this proposal as a general term
connoting properties where cleanups are taking place.
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It has been EPA's experience, therefore, that application of the
regulations developed for as-generated industrial hazardous wastes, in
particular LDRs and minimum technical requirements (MTRs), to cleanup
wastes often presents remediation project managers with only two
choices: to pursue the legal option of capping or treating cleanup
wastes in place, thereby avoiding the LDR and certain other management
requirements; or, excavating the cleanup waste and treating it to the
full extent required by the LDR requirements and disposing of the waste
in compliance with the as-generated hazardous waste disposal unit
requirements. EPA has found that this situation has created an
incentive at certain cleanup sites to select less permanent remedies
that involve leaving the cleanup wastes in place. (For a fuller
discussion of this issue, see the preamble discussions accompanying the
Land Disposal Restrictions Phase IV rule, 63 FR 28556, 28603-28604 (May
26, 1998), Clarification of the LDR Treatment Variance Standard (the
``environmentally inappropriate'' variance, Sec. 268.44(h)(2)(ii), 62
FR 64504, 64505-64506 (December 5, 1997)), and the HWIR-Media rule, 63
FR 65874, 65876-65878 (November 30, 1998), and sources cited therein).
EPA has developed extensive policies and regulations to address the
special circumstances of hazardous cleanup wastes. These regulations
and policies are designed to preserve RCRA's goal of protectiveness,
while providing oversight agencies the flexibility and tools necessary
to develop effective site-specific remedies, including remedial
alternatives that are intermediate between the two choices described
above (i.e., between leaving cleanup wastes in place or managing such
wastes as if they were as-generated industrial wastes). These include,
among other policies and regulations, the 1993 ``Corrective Action
Management Unit'' (CAMU) regulation, which is the subject of today's
proposed amendments; the ``area of contamination'' policy; the
``contained-in'' policy; the ``phase IV'' treatment standards for
contaminated soils; and the regulations for ``temporary units.''
Descriptions of these and other policies and regulations, including
references, are included in the October, 1998 Memorandum, ``Management
of Remediation Waste Under RCRA,'' EPA530-F-98-026, which is in the
docket for today's proposed rule. In addition, since this memorandum
was issued, EPA promulgated the HWIR-media rule, which addresses
permitting and other issues related to management of hazardous
remediation waste that results from cleanup actions (63 FR 65874
(November 30, 1998)), and the post-closure rule, which encourages the
integration of RCRA closure and cleanup actions (63 FR 56710 (October
22, 1998)). The HWIR-media rule is described later in this section.
Today's proposed amendments to the CAMU rule would leave these
policies and regulations untouched, except, of course, the provisions
of the CAMU rule being amended.
1. Corrective Action Management Units (CAMUs)
On February 16, 1993, EPA published final regulations for CAMUs (58
FR 8658). The CAMU rule provides considerable flexibility to EPA and
implementing States to specify design, operating, and closure/post
closure requirements for on-site units used for storage, treatment and
disposal of hazardous wastes and media containing hazardous waste that
are managed during cleanup. The CAMU rule sets forth decision criteria
for the designation of CAMUs that are protective of human health and
the environment. The CAMU rule defined wastes (``remediation wastes'')
that would be eligible for management in a CAMU. Importantly, under the
CAMU rule, consolidation or placement of remediation waste into an
approved CAMU is not considered ``land disposal'' and therefore does
not trigger RCRA land disposal restriction (LDR) requirements
(Sec. 264.552(a)(1)). Thus, appropriate treatment requirements can be
specified by the overseeing Agency 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) (Sec. 264.552(a)(2)) for
hazardous waste unit design. As a result, the CAMU rules provide
significant regulatory relief and flexibility for cleanup.
The CAMU rule has received broad support from many affected
stakeholders. At the time of promulgation of the CAMU rule, however,
the rule was challenged. On May 14, 1993, a petition for review was
filed with the U.S. Court of Appeals for the District of Columbia
Circuit. Environmental Defense Fund v. EPA, No. 93-1316 (D.C. Cir.).
The Petitioners were concerned, among other things, with the provisions
stating that LDRs, MTRs and other Part 264 and 265 RCRA
[[Page 51083]]
unit requirements do not apply to CAMUs.
Prior to this challenge to the CAMU rule, EPA created the Hazardous
Waste Identification Rule (HWIR) Federal Advisory Committee (discussed
in the proposed Requirements for Management of Hazardous Contaminated
Media (HWIR-Media) preamble, 61 FR 18780 (April 29, 1996)). As part of
the dialogue that prefaced the creation of this committee, which
included representatives from environmental groups, regulated industry,
the waste management industry, states and EPA, EPA agreed to re-examine
the CAMU regulations in the context of developing regulations (the
HWIR-Media regulations) to address the management of hazardous
remediation waste during cleanups. The litigation to the CAMU rule was
stayed pending the outcome of this rulemaking process. In April 1996,
EPA proposed the HWIR-media rule, which was a comprehensive proposal
addressing the management of hazardous remediation waste. In this
notice, EPA proposed to withdraw the 1993 CAMU rule with the reasoning
that the proposed rule would offer much of the same flexibility as that
available under the CAMU rule, but with a more comprehensive and
detailed approach to addressing remediation waste issues.
On November 30, 1998, EPA published the final HWIR-Media rule (63
FR 65874). Because, among other things, of fundamental disagreement
with the proposal expressed by various commenters, and concerns
expressed by EPA after considering stakeholder comments, EPA decided to
promulgate only selected elements of the HWIR-media proposal, rather
than a more comprehensive set of standards. In addition, because the
specific provisions finalized in the HWIR-media rule do not address the
basic concerns that the 1993 CAMU rule addresses, EPA chose to leave
the CAMU regulations in place, rather than to withdraw the regulations,
as had been proposed.
Following publication of the final HWIR-media rule and EPA's
decision not to withdraw the 1993 CAMU rule, EPA and the Petitioners to
the CAMU rule entered into discussions in an effort to settle the CAMU
litigation. During these discussions, EPA obtained feedback from the
regulated community and the states to help inform the settlement
process. On February 11, 2000, EPA and the Petitioners reached
settlement on the CAMU litigation (the settlement was filed with the
U.S. Court of Appeals for the District of Columbia Circuit, and is
included in the docket for today's rulemaking). The settlement calls
for EPA to propose amendments to the existing CAMU rule by August 7,
2000, and to issue a final rule by October 8, 2001. While not part of
the settlement, EPA expressed its intentions at the time of settlement
to include in the proposal provisions for expediting state
authorization of these amendments (see February 11, 2000 ``Note to
Correspondents,'' in the docket for today's rule). Potential amendments
to the 1993 rule outlined in the settlement include treatment and
design standards specific to CAMUs and the wastes therein and
modifications to the definition of wastes that are eligible for
management in CAMUs.
Following the approaches outlined in the settlement,\2\ EPA is
proposing in today's notice to amend the 1993 CAMU rule. This notice
seeks comment only on the amendments proposed today; EPA is not
reopening for comment any aspects of the 1993 rule not addressed by
today's proposed amendments (e.g., the provisions of the rule stating
that wastes placed in CAMUs are not subject to LDRs and that CAMUs are
not units subject to MTRs). EPA will carefully consider any comments
that are submitted in response to today's proposal. Procedures for
submitting comments to EPA are described above in the section titled
ADDRESSES.
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\2\ Note that this settlement agreement does not require that
the Agency promulgate today's proposed amendments as final
regulations. Instead, it provides that the Petitioners agree to seek
dismissal of their petitions for review if (among other things) the
Agency finalizes amendments of substantially the same substance as
those outlined in the settlement agreement.
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B. Why Is EPA Proposing Today's Amendments?
Today's proposed amendments would more specifically define the
wastes eligible for management in CAMUs, establish minimum treatment
requirements for such wastes, and set minimum technical standards for
CAMUs. This is a departure from the 1993 rule, which took a more
``performance-based'' approach to addressing these issues, and left the
details of what was necessary to protect human health and the
environment to the Regional Administrator to determine based on site-
specific circumstances. It was EPA's view in 1993 that this approach
would bring more efficiency and speed to cleanups by replacing the more
prescriptive RCRA requirements designed primarily for ``process''
wastes (also known as ``as-generated'' wastes) with an approach that
allows site-specific decision-making regarding treatment and technical
requirements for cleanup wastes \3\ managed in on-site units. EPA chose
not to impose prescriptive standards tailored to cleanup wastes managed
in CAMUs out of a concern that individual sites might present
circumstances not contemplated at the time of the promulgation of the
rule. EPA feared that such standards might therefore pose a barrier to
sensible protective cleanup solutions, engendering the kinds of
disincentives to cleanup that the CAMU rule was designed to address.
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\3\ The term ``cleanup waste'' is used in today's proposal to
express the general concept of wastes that are derived from cleanup.
It is not meant as a term of art, nor is it meant to supersede the
terms ``remediation waste,'' which is defined at Sec. 260.10, or
``CAMU-eligible waste,'' which is proposed in today's notice. EPA
uses this term in today's preamble when using either ``remediation
waste'' or ``CAMU-eligible waste'' would be confusing in the
discussion context, given the defined nature of these terms.
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The Agency believes that the CAMU rule has worked well in practice,
resulting in remedies that are protective of human health and the
environment. However, as discussed above, the Agency was sued on the
rule upon issuance. As described above, at the time the CAMU rule was
promulgated and the Petition for Review filed, the Agency was engaged
in the HWIR-Media process aimed at developing a more comprehensive
regulatory approach to addressing how cleanup wastes should be
regulated under RCRA (see discussion of HWIR-Media FACA process and
rulemaking above). EPA and Petitioners therefore agreed it was
reasonable to stay the CAMU litigation pending the outcome of that
process. As explained above, the HWIR-Media rule did not result in the
type of comprehensive RCRA regulatory reform that would have eliminated
the need for the CAMU rule; therefore, the Agency was faced with the
decision of whether to proceed with the CAMU litigation or enter into
settlement discussions more directly focused on the CAMU rule.
The Agency decided to enter into settlement discussions and
ultimately entered into a settlement agreement that forms the basis for
today's amendments and will potentially resolve Petitioner's claims.
EPA's decision to enter this settlement was based on a desire to avoid
the risks of litigation (and the great disruption such litigation could
mean for existing and planned cleanups) and to remove the ``litigation
cloud'' that has deterred the use of CAMUs in the field,\4\ as well as
on a
[[Page 51084]]
belief that the proposals negotiated during the settlement process were
reasonable.
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\4\ See General Accounting Office report, ``Remediation Waste
Requirements Can Increase the Time and Cost of Cleanups,'' October,
1997, which is included in the docket for today's rule and discussed
in HWIR-Media rule preamble at 63 FR 65874, 65921 (November 30,
1998).
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EPA believes that the approach set out in today's proposed rule
provides a sound framework for CAMU decision-making. The Agency
recognizes the benefits of including minimum standards in a rule of
this nature; i.e., such standards can make the process more consistent
nationally, and the results more predictable, as well as more explicit
for the public. Such standards can also make implementation of the rule
less vulnerable to mistakes or abuse. However, the Agency did not want
to include more detailed standards if they would result in potentially
limiting the usefulness of the rule, thereby delaying or inhibiting
cleanups. This is the concern that led the Agency to adopt the largely
performance-based rules in 1993.
The Agency believes the proposed amendments achieve an appropriate
balance. The detail added is sufficient for providing minimum national
standards that realize the benefits outlined above, but is not overly
prescriptive such that it would so minimize site-specific flexibility
that the CAMU rule would no longer act to remove the disincentives to
cleanup that can be created by application of RCRA's land disposal
restrictions and minimum technical requirements. Today's proposal
reflects the fact that eight years into the CAMU program, and 16 years
into the corrective action program, the Agency is now in a much better
position than it was in 1993 to define regulatory minimums for
hazardous cleanup waste management units (that are used for wastes
regulated as hazardous under RCRA) that would result in the benefits
outlined above, without sacrificing the site-specific flexibility that
is often critical in the cleanup scenario.
In developing today's proposal, and in negotiating the CAMU
settlement, the Agency was able to analyze many of the CAMUs that have
been implemented over the past eight years both by reviewing the
records for such CAMUs and by talking with the Agency staff responsible
for overseeing the CAMU decisions, as well as with representatives from
states and industry that have experience in both cleanup and
implementing CAMUs (the section in today's preamble titled, ``Planning
and Regulatory Review Executive Order 12866'' describes the sample of
CAMUs used in the analysis of existing CAMUs). The Agency then was able
to measure this information against potential standards for
applicability at all CAMUs, and against standards that are already in
wide use in other waste management unit programs (e.g., the Subtitle C
and D programs). The Agency was able to tailor potential standards for
CAMUs by identifying circumstances where it might be appropriate to
depart from potential minimum standards either on a national or site-
specific basis. Identification of these circumstances where flexibility
could be built into selection of the appropriate standards was critical
to the Agency. EPA believes it is crucial to ensure that any minimum
national standards be consistent with the thinking processes of site
decision makers who have implemented the existing CAMU rule so as not
to recreate the disincentives to cleanup that the Agency sought to
remove with the 1993 rule. In addition, in considering potential
standards, EPA was mindful of the high degree of oversight associated
with CAMU decisions. As explained more fully below, as a result of this
process, the Agency believes that it has identified minimum standards
that are appropriate for most CAMUs and that accommodate the site-
specific complexities encountered at cleanup sites. Indeed, EPA
believes that the vast majority of the existing CAMUs could have been
approved with few or no changes under today's proposed revisions. The
Agency therefore believes that if the amendments are finalized as
proposed, the CAMU rule will continue to play an important role in
removing disincentives to cleanup that can be caused by application of
RCRA's hazardous waste management requirements for as-generated wastes
to cleanup wastes, while making the CAMU process more consistent and
predictable, as well as more explicit for the public.
The Agency specifically seeks comment on the Agency's conclusions
regarding whether the proposed rules would realize the benefits of
increased regulatory detail without reinstating the disincentives to
cleanup the CAMU rule was originally meant to address. In particular,
the Agency seeks comment on the Agency's view that the vast majority of
existing CAMUs could have been approved with few or no changes under
today's proposed revisions (see the ``Economic Analysis of the Proposed
Amendments to the CAMU Rule,'' and the ``CAMU Site Background
Document,'' available in today's docket).
C. Approach to Publishing Today's Proposed Amendments
In proposing today's amendments, the Agency has published the
entire text of the CAMU rule as it would appear if today's amendments
were finalized. EPA took this approach for the sake of clarity. EPA
recognizes that it could be difficult for readers of today's proposal
to construct the complete rule, as amended by today's proposal, if EPA
were simply to publish the amendments by themselves, as EPA typically
does when it proposes to modify existing regulations. In addition, to
further aid the reader, the Agency has placed a ``redline/strikeout''
version of the CAMU regulations in the docket for today's rulemaking.
This document indicates exactly where changes to the current rule are
being proposed.
EPA believes this approach to publishing today's regulatory
amendments will be clearer than simply publishing the proposed
amendments. However, it is important to note that EPA is not seeking
comment on CAMU regulatory provisions that are simply repeated from the
1993 rule and are not subject to potential modification by today's
proposed amendments.
Note that in many cases, the Agency proposes to incorporate, with
appropriate changes, existing requirements from other parts of the RCRA
regulations into the CAMU rule. In reviewing today's proposal,
commenters may wish to examine the preambles and other supporting
materials in the rulemaking dockets for those requirements to help
determine whether such existing requirements make sense for the CAMU
rule.
III. Section By Section Analysis
A. Grandfathering CAMUs (Sec. 264.550)
EPA is proposing provisions in today's notice that would allow
certain CAMUs to continue to be implemented pursuant to the current
rules under which they were approved or planned (i.e., such CAMUs would
be ``grandfathered''). Grandfathering of CAMUs is discussed in detail
in Section J of today's preamble. EPA has included this discussion at
the end of the section by section analysis in order to ensure that
readers of today's proposal have the proper context for these proposed
provisions.
B. Eligibility of Wastes for Management in CAMUs (Sec. 264.552(a))
In today's rule, EPA is proposing to modify the regulation that
defines which wastes may be managed in a CAMU. Under the current CAMU
rule, the definition of ``remediation waste'' at Sec. 260.10 defines
the types of wastes that may be managed in a CAMU. This definition
(originally promulgated in the 1993 CAMU rule and modified in the
[[Page 51085]]
HWIR-media rule (63 FR 65874 (November 30, 1998)) also serves as the
definition for wastes that may be managed pursuant to a Remedial Action
Plan (or ``RAP'') (under Part 270, Subpart H), that may be stored in a
staging pile (Sec. 264.554), or that are subject to a site-specific
treatment variance from the land disposal restriction standards under
Sec. 268.44(h)(2)(ii) (the ``environmentally inappropriate'' variance).
EPA is proposing to modify the definition governing the types of
wastes that can be managed in a CAMU, and is not proposing to change,
or to otherwise take comment on, the definition of remediation waste as
it is applied outside of the CAMU rule. To avoid any confusion on this
issue, EPA is proposing to change the name of waste eligible for
management in CAMUs from ``remediation waste'' to ``CAMU-eligible
waste,'' and to include the definition of CAMU-eligible waste in the
CAMU regulations at Sec. 264.552. Note that for CAMUs that would be
subject to today's proposed amendments (i.e., that are not
grandfathered), EPA is proposing a conforming change to the definition
of corrective action management unit currently in Sec. 260.10, changing
``remediation wastes'' to ``CAMU-eligible wastes'' such that the
definition would read as follows: ``Corrective action management unit
(CAMU) means an area within a facility that is used only for managing
CAMU-eligible wastes for implementing corrective action or cleanup at
the facility.'' In addition, EPA is proposing to remove this definition
from Sec. 260.10 and to place it directly in the CAMU regulations at
Sec. 264.552(a). This change is discussed in more detail in the section
below on ``Conforming Changes.''
EPA is proposing three changes to the existing CAMU rule that
relate to what materials may be managed in CAMUs: (1) Clarifying
regulatory language to better distinguish between as-generated and
cleanup wastes; (2) a provision preventing certain waste in containers
and other non-land based units from being managed in CAMUs; and, (3) a
provision allowing non-hazardous as-generated wastes to be placed in
CAMUs when they are used to facilitate treatment or the performance of
the CAMU.
While the first change listed above is a regulatory change to the
specific definition of CAMU-eligible wastes, it is intended merely as a
clarification of how EPA generally distinguishes between as-generated
versus cleanup wastes. It does not represent a departure from how EPA
has generally distinguished or will distinguish between these two
categories of wastes in other contexts (i.e., the distinction being
made in today's proposal generally holds true in the context of the
current remediation waste definition). Conversely, the second proposed
regulatory change listed above results in a departure from current
definitions (under the 1993 CAMU rule) and interpretations, and narrows
the universe of cleanup wastes that are eligible for management in a
CAMU. As a result of the second change, the remediation waste
definition would be broader than the proposed CAMU-eligible waste
definition. The third proposed regulatory change is necessary to
address an effect that would be caused by the first change described
above--without the third proposed change, a current practice involving
the use of non-hazardous as-generated waste during cleanup would be
prevented. Each of these proposed changes is discussed below.
1. ``As-Generated'' vs. ``Cleanup'' Wastes.
The existing regulatory definition of ``remediation waste'' in
Sec. 260.10, as amended in the HWIR-media rule (63 FR 65874 (November
30, 1998)), limits remediation waste to wastes, media and debris that
``are managed for implementing cleanup.'' The preamble to the 1993 rule
explains what was generally meant by this definition: ``[t]oday's
definition of remediation waste excludes ``new'' or as-generated wastes
(either hazardous or non-hazardous) that are generated from ongoing
industrial operations at a facility'' (58 FR 8658, 8664 (February 16,
1993). EPA believes that the intent of this definition, particularly
when read in conjunction with the 1993 preamble discussion outlining
how the rule generally addresses ``as-generated'' wastes, is very
clear: remediation waste includes only wastes that are managed for the
purpose of cleanups, and CAMUs thus cannot generally be used to manage
``as-generated'' wastes (which, because they are process wastes, are
not generally ``managed for implementing cleanup,'' but are typically
managed for the purposes of ultimate disposal). These as-generated
wastes are also referred to as ``new'' or ``process'' wastes. In
response to requests that the current definition be clarified to better
reflect the intent to distinguish between as-generated and cleanup
wastes, EPA is proposing to add the following clarifying language from
the preamble of the 1993 rule, quoted above, to the regulatory
definition of CAMU-eligible waste: ``As-generated wastes (either
hazardous or non-hazardous) from ongoing industrial operations at a
site are not CAMU-eligible wastes.'' As discussed below, EPA is also
proposing certain limited exceptions from this new general prohibition
in the regulatory language to preserve legitimate cleanup practices
that would otherwise be eliminated by adding this language to the
regulation. More specifically, EPA is proposing to allow an exception
to be made when non-hazardous as-generated wastes are placed in a CAMU
where such waste is being used to facilitate treatment or the
performance of a CAMU.
The Agency does not intend for this additional language to result
in any change in how the Agency currently distinguishes between as-
generated and ``cleanup'' waste (for purposes of a CAMU determination,
or remediation waste determination made for RAPs, staging piles or in
use of the ``environmentally inappropriate'' LDR treatment variance);
it is simply an attempt to better define the original intent of the
regulations in the regulatory language itself. ``As-generated''
continues to have the meaning that it did in 1993. For example,
hazardous wastes from ongoing industrial processes managed in a
routinely operating hazardous waste landfill would be ``as generated''
wastes. Soil that has become contaminated by leachate from this
landfill, however, would be CAMU-eligible because it is not ``as-
generated'' waste. Similarly, EPA has not changed what the Agency means
by ``from ongoing industrial operations.'' This phrase includes not
only wastes produced during commercial operations, but also any wastes
that are produced during the management of such wastes. For example,
hazardous sludges periodically removed from Subtitle C regulated
surface impoundments (e.g., during normal waste management routines)
are considered ``from ongoing industrial operations,'' not wastes from
cleanup, and therefore would not be ``CAMU-eligible.''
EPA believes that placement of the 1993 preamble text into the
regulations will make the distinction between as-generated and cleanup
wastes clearer. This proposed amendment inserts the existing 1993 CAMU
preamble language directly into the regulation with minor edits,\5\
preserving and clarifying the
[[Page 51086]]
intent of the original definition. In today's proposal, EPA is seeking
comment on the appropriateness of moving this particular preamble
language into the rule, but is not reopening for comment the issue of
whether CAMUs should routinely be used for the treatment or disposal of
as-generated wastes. Today's amendments would also not change the
eligibility of non-hazardous cleanup wastes for management in a
CAMU'such wastes would remain CAMU-eligible.
---------------------------------------------------------------------------
\5\ The Agency did not include the word ``new,'' as in ``new or
as-generated'' that appears in the preamble language at issue
because it is redundant. The Agency also added the phrase ``are not
CAMU-eligible'' to the end of the preamble phrase to establish the
proper context for the proposed regulatory text.
---------------------------------------------------------------------------
As stated above, EPA seeks comment on the addition of this 1993
preamble to the CAMU regulation itself. In particular, the Agency
requests comment on whether the terms ``as-generated waste'' and ``from
ongoing industrial operations at a site'' are helpful in clarifying
what wastes would not be considered ``managed for implementing
cleanup.'' The Agency also requests comment on whether moving such
language from preamble to the regulatory definition in the Code of
Federal Regulations would have any unintended effects. In other words,
would moving this preamble statement describing what types of wastes
will not generally be considered ``managed for implementing cleanup''
into the regulatory language eliminate actual or potential practices
where it might be an appropriate cleanup approach to place as-generated
wastes in a CAMU? EPA has identified and addressed one such
circumstance, described more fully below; that is where nonhazardous
as-generated wastes are used to facilitate treatment or the performance
of the CAMU. Are there other such circumstances? For example, the
Agency limited the one circumstance provided for in today's proposal to
nonhazardous as-generated waste, because that was the only common,
legitimate practice brought to its attention during discussions with
stakeholders. Are there circumstances where hazardous as-generated
wastes are also legitimately used during cleanup? In arguing that the
Agency should provide for certain practices, the Agency asks that
commenters also state how such practices should be addressed in the
final rule. For example, should the Agency provide a specific
regulatory exception to cover the circumstance?
2. Wastes Managed During Closure
During the course of the Agency's discussions with stakeholders, it
became apparent that there is a need for further guidance on when
wastes associated with closure of non-permanent hazardous waste units
are ``managed for implementing cleanup'' and therefore eligible for
management in a CAMU. In the 1993 preamble, the Agency clearly
indicated that some wastes managed during RCRA closure of land-disposal
units would be eligible for management in a CAMU (58 FR 8658, 8666
(February 16, 1993)). That discussion was premised on the Agency's view
that waste removed during RCRA closure at closed or closing permanent
land disposal units are wastes ``managed for implementing cleanup.''
``Closed or closing'' units are those that have received their final
volume of waste. ``Permanent land disposal units'' are those for which
the regulations provide a closure in place option (e.g., landfills,
surface impoundments and land treatment units). In the case of
permanent disposal units, EPA considers closure by removal to be
cleanup, because the regulations provide an option for closure with
wastes in place. In addition, the Agency believes that the ability to
place such wastes in CAMUs promotes the Agency's objective of
encouraging the removal and/or treatment of wastes during closure of
RCRA units. EPA believes that the CAMU regulations provide an incentive
for companies to manage such wastes as part of a cleanup, rather than
to leave the wastes in place, where appropriate.
Waste ``managed for implementing cleanup,'' on the other hand, does
not typically include waste removed during RCRA closure of non-
permanent land-based units, such as waste piles. EPA does not generally
consider closure of a waste pile or other non-permanent land-based unit
to be ``cleanup.'' Removal of wastes from waste piles and from similar
land-based storage units is part of the normal course of operation of
the unit; these types of units are not intended as the final resting
place for wastes. Therefore, EPA believes it would typically be
inappropriate to consider removal of wastes from these non-permanent
land-based units to be ``cleanup.'' ``Typically'' is intended to
indicate the Agency's ability, for example, at abandoned facilities, to
place waste found in old piles or similar units in a CAMU, because once
they are abandoned, management of wastes they contain is for the
purpose of implementing a cleanup.
3. Wastes in Intact or Substantially Intact Containers, Tanks, or Other
Non-Land-Based Units (Sec. 264.552)
EPA is proposing at Sec. 264.552(a)(1)(ii) to further modify the
regulations defining the wastes that are eligible for management in a
CAMU. This provision would prohibit management in a CAMU of wastes that
would otherwise meet the description in Sec. 264.552(a)(1)(i) (i.e.,
they are materials ``managed for implementing cleanup'') but are found
during cleanup in intact or substantially intact containers, tanks, or
other non-land-based units, with certain exceptions that are described
below. An example of an ``other non-land-based unit'' would be a
containment building under Part 264, Subpart DD or Part 265, Subpart
DD. Under today's proposal, neither these containers, tanks or other
non-land-based units, nor the wastes in them, would be eligible for
management in CAMUs. ``Found during cleanup'' is meant to refer to
wastes being addressed in the context of cleanup, as opposed to as-
generated waste that may also be stored at a site undergoing cleanup.
The issue of whether CAMUs should be used to manage containerized
waste that would otherwise be considered ``managed for implementing
cleanup'' (e.g., abandoned drums) was raised during discussions with
stakeholders. These stakeholders gave the opinion that because such
wastes are easily dealt with under Subtitle C requirements, they should
not be permitted to be managed in a CAMU. EPA is proposing today's
amendment because the Agency believes that these are not the types of
wastes for which RCRA is likely to produce the barriers addressed by
the CAMU rule. In addition to being easily managed under Subtitle C's
hazardous waste requirements, such units do not typically contain the
large volumes of waste typically found in land-based units, and in situ
management is not likely to be a viable remediation option. The Agency
also believes that, generally, overseeing agencies would not approve
direct disposal of substantially intact drums in a CAMU. In most cases,
such drums would be sent off-site for treatment and disposal because
cleanup contractors are generally prepared to address drums by removing
and packaging them for off-site treatment or disposal. In fact, the
Agency's analyses of EPA's CAMUs to date show no evidence that
containerized waste was managed in CAMUs (see the ``CAMU Site
Background Document,'' available in today's docket). The Agency's
conclusions that containerized waste is unlikely to be managed in CAMUs
was also echoed by some members of the regulatory and regulated
communities during the stakeholder discussions. The Agency seeks
comment its conclusions regarding the anticipated management of
containerized waste during cleanups.
EPA is proposing that this exclusion from CAMU eligibility for
hazardous
[[Page 51087]]
wastes found during cleanup in containers, tanks, or other non-land-
based units be limited to ``intact'' or ``substantially intact'' units
only. Wastes found during cleanup in crumbling or unstable drums,
containers, and other non-land based units often cannot be readily
managed due to the likelihood of a release from the unstable unit, and
should be allowed to be managed in CAMUs. (EPA anticipates, however,
that in some cases, the decision will be made site-specifically to
manage such unstable units offsite, rather than in a CAMU.) The general
principle guiding determinations of what is ``substantially intact''
would be that ``substantially intact'' units, containers and tanks can
be removed without likelihood of a significant release; any minor
imperfections present would not prevent a unit from being considered
``intact.''
EPA is proposing two exceptions to the exclusion for CAMU-
eligibility for substantially intact or intact containers, tanks, or
other non-land-based units. The first exception is for cleanup wastes
that are first placed in the tanks, containers or non-land-based units
as part of cleanup. This provision is necessary to make clear that, if
cleanup wastes are removed from the land and placed temporarily in such
units, they would not become ineligible for management in a CAMU.
The second exception is specifically for buried containers (not
tanks or other units) that are excavated during the course of cleanup.
Such wastes cannot always be easily managed in accordance with
applicable Subtitle C requirements. In the case of above-ground
containers, the integrity of the containers can be generally assessed
by visual inspection, and, if they are ``substantially intact,'' the
containers will generally either already be in a state to be
transported or the waste within them can easily be handled in
accordance with Subtitle C requirements. In contrast, buried containers
will typically be much more difficult to assess and manage than those
found above ground. This provision, by allowing for the disposal in
CAMUs of buried containers that are excavated and managed as part of
the cleanup, would ensure that today's amendments regarding containers
would not create disincentives to excavate the container and its
contents. If such containers, and the wastes in them, are disposed in a
CAMU, they would of course be subject to all of the CAMU requirements,
including today's proposed prohibition against disposal of liquids in
CAMUs (discussed in more detail below). As a matter of practice, in
many cases, EPA anticipates that the remedy decision for the site will
include off-site management, under the full Subtitle C requirements, of
excavated containers containing hazardous wastes.
EPA seeks comment on whether the exception proposed for buried
containers should also apply to buried tanks that are excavated during
the course of cleanup. Buried tanks containing wastes or waste residue
are sometimes encountered during the course of excavating contaminated
areas or are found disposed in landfills. The practical difficulties
associated with assessing the integrity of buried containers and
managing the waste contained in such containers can also apply to
buried tanks. The ability to manage, in a CAMU, wastes from buried
tanks found in the ground or in landfills during cleanup, would ensure
that today's proposed amendments concerning tanks would not create
disincentives to excavate the tanks, and would allow for the potential
treatment of the wastes in a CAMU without having to meet the full
subtitle C management requirements for as-generated wastes. One reason
for considering this additional exception is that EPA believes it could
be difficult in burial situations to always distinguish between tanks
and containers; this is particularly so given the diversity of
structures that meet the RCRA definition of ``tank.'' Including tanks
as well as containers in this exception would remove this potential
practical difficulty. Under this option, EPA would not intend that the
contents of underground tanks being used to store waste or products
would be CAMU-eligible. The Agency seeks comment on these ideas,
including whether regulators can readily determine if specific tanks
are being used to store waste or products. The Agency seeks general
comment on whether the exception proposed for buried containers should
also apply to buried tanks that are excavated during the course of
cleanup, and whether the situations described above regarding buried
tanks excavated during a cleanup are encountered often enough to
warrant including them in the buried container exception.
EPA intends that the CAMU framework would provide for the cleanup
of ``historic wastes,'' and that today's amendments would not reinstate
the disincentives to cleanup of historic wastes addressed by the 1993
CAMU rulemaking. During stakeholder discussions, members of the
regulated community asked for clarification on the eligibility of
historic wastes left onsite at old facilities in units that arguably
could meet the definition of either a non-land-based unit or a
``tank.''
Under the proposed amendments, a historic waste would be CAMU-
eligible if it were found in a land-based unit. The most prominent
examples, that EPA is aware of, of historic wastes that would serve as
a good example of how this amended provision would work at historic
sites are ``gas holders'' at manufactured coal gas production
facilities that operated before 1950 (information on ``manufactured gas
plant'' (MGP) sites is included in the docket for today's rule).\6\ In
most cases, such historic units would be considered land-based units
under RCRA (e.g., old building foundations, which are analogous to
concrete vaults) and the waste would be CAMU-eligible. EPA is also
aware that some facilities have old units that have not been used in
decades, that would arguably meet the definition of a tank, and
therefore would potentially not be CAMU-eligible. If such a unit were a
tank, the rules would require that the unit be assessed to determine
whether it is substantially intact, before determining whether the
waste is CAMU-eligible. In some cases, given the age, construction, and
size of such units, it would be reasonable to assume that the units are
not substantially intact. As a result, the wastes removed from these
units would fit the exception described above and would be CAMU-
eligible.
---------------------------------------------------------------------------
\6\ EPA notes that the United States Court of Appeals for the
District of Columbia Circuit recently vacated the TCLP rule as it
applies to MGP wastes. Ass'n of Battery Recyclers, Inc. v. U.S. EPA,
208 F.3d 1047 (D.C. Cir. 2000). EPA retains this example (which was
included in the settlement agreement) to address situations where
MGP wastes are otherwise regulated as hazardous (e.g., MGP wastes
have been mixed with a listed hazardous waste) and because it
continues to provide useful guidance for similar scenarios at non-
MGP sites.
---------------------------------------------------------------------------
EPA seeks comment on all aspects of this proposed amendment. In
particular, the Agency solicits comment on the general approach of
excluding containers and other non-land based units managed during
cleanup from CAMU-eligibility and whether the exceptions EPA is
proposing are clear and make sense in light of commenters' experience.
4. Limited Use of ``As-Generated'' Waste in CAMUs
CAMUs are intended to be used for the management of cleanup wastes.
As a general matter, EPA does not believe it is appropriate for as-
generated wastes to be managed in CAMUs; this applies for non-
hazardous, as well as hazardous, as-generated waste (58 FR 8658, 8664
(February 16, 1993)). However, there are accepted practices where non-
hazardous as-generated wastes are used in cleanup remedies. As a result
of today's
[[Page 51088]]
proposed amendments, EPA does not seek to preclude such practices in a
CAMU.
Today's proposed amendment in the second sentence of
Sec. 264.552(a)(1)(i) adds regulatory language specifically prohibiting
placement of as-generated wastes in CAMUs. EPA does not intend, by
adding this language to the regulations, to prohibit the use of non-
hazardous as-generated waste in a CAMU when it is legitimately being
managed in a CAMU to facilitate treatment or the performance of the
CAMU. Therefore, EPA proposes the amendment at Sec. 264.552(a)(1)(iii)
which reads that ``notwithstanding paragraph (a)(1)(i) of this section,
where appropriate, as-generated non-hazardous waste may be placed in a
CAMU where such waste is being used to facilitate treatment or the
performance of the CAMU.''
The Agency is aware of two common practices that use non-hazardous
as-generated wastes to facilitate treatment of cleanup wastes or
facilitate the performance of disposal units. The first practice is to
use agents such as fly ash or cement kiln dust (CKD) as a stabilization
agent to reduce leaching of metals from metal-bearing wastes. The
second practice is to use similar agents to provide increased
structural stability for wastes, such as sludges obtained from
remediation, that do not have sufficient strength to bear their own
weight, or the additional weight of a cap, without risk of failure.\7\
These practices associated with use of cement kiln dust, fly ash and
coal combustion wastes are consistent with EPA's view in today's
proposal of facilitating treatment or performance of the CAMU. The
Agency seeks comment on today's proposed approach for addressing the
use of as-generated non-hazardous wastes in CAMUS.
---------------------------------------------------------------------------
\7\ EPA has recently proposed regulations which would classify
CKD as hazardous waste under certain circumstances (64 FR 45632,
August 20, 1999). As discussed in that proposal, EPA finds the use
of CKD as a stabilizer or solidification agent to be beneficial for
cleanups and would not regulate CKD wastes when they are used for
such purposes. The proposed CKD regulations would not prevent,
restrict, or regulate the use of CKD as a stabilizer or solidifying
agent during RCRA cleanups under sections 3004(u), 3004(v), and
3004(h), or when the EPA Region, or, authorized State agency finds
that the use of CKD in cleanups is protective of human health and
the environment. EPA has also determined that no additional
regulations are warranted for coal combustion wastes that are used
beneficially other than for mine-filling (see 65 FR 32214, May 22,
2000).
---------------------------------------------------------------------------
C. Discretionary Kickout (Sec. 264.552(a)(2))
RCRA Subtitle C regulations for as-generated wastes ensure that
such wastes are handled according to stringent national standards that
are designed to ensure protection of human health and the environment
and that create significant incentives for process changes to minimize
hazardous waste generation. Yet, as discussed above, these same
requirements, when applied to existing contamination problems, can
provide a strong incentive for leaving wastes in place or for selecting
remedies that minimize regulation under Subtitle C. EPA believes that
the CAMU regulations, including today's proposed amendments, remove
disincentives for clean-ups and allow for implementation of protective
remedies at cleanup sites.
It is EPA's intention that CAMUs continue to be a practical option
for facilities undergoing cleanup. However, some stakeholders expressed
concern that it is less expensive to manage wastes in CAMUs than to
manage waste in accordance with as-generated waste requirements, and
thus there is a potential incentive for facilities to mismanage as-
generated wastes such that they subsequently become eligible for
management in a CAMU. EPA does not want the CAMU regulations to create
any incentives for non-compliance, whether the non-compliance is
intentional to take advantage of alternate requirements in the CAMU
rule, or is the result of careless management practices (which could,
by example, thereby encourage others to ignore applicable
requirements). EPA expects all facilities to be aware of the applicable
regulations for managing as-generated wastes and to carefully adhere to
those requirements. Therefore, EPA is proposing a ``kick-out''
provision as part of today's amendments. This kick-out provision would
provide the Agency with discretion to disallow the management of CAMU-
eligible wastes in a CAMU, in appropriate circumstances, as discussed
below. EPA believes that this discretion would provide a balance
between facilitating cleanups with CAMUs and maintaining incentives for
waste minimization and proper waste management in the first instance.
Under today's proposal, the Regional Administrator would be
permitted to consider using the kickout provision where there was prior
non-compliance with fundamental waste management requirements that are
designed to prevent or minimize releases of hazardous waste.
Specifically, proposed Sec. 264.552(a)(2) would provide that: ``the
Regional Administrator may prohibit, where appropriate, the placement
of waste in a CAMU where the Regional Administrator has or receives
information that such wastes have not been managed in compliance with
applicable land disposal treatment standards of Part 268, or applicable
Part 264 or 265 unit design requirements, or that non-compliance with
other applicable RCRA requirements likely contributed to the release of
the waste.'' The word ``applicable'' before standards or requirements
refers to the applicability of the regulations at the time of disposal
of the wastes. ``Unit design requirements'' refers to substantive
design standards, such as the tank design standards under Sec. 264.192
or the design requirements for waste piles under Sec. 264.251.
Maintenance requirements, such as the owner/operator requirement to
inspect tanks under Sec. 264.195, are not ``unit design'' requirements.
Therefore, a violation of maintenance requirements would be considered
in the context of whether ``non-compliance with other applicable RCRA
requirements likely contributed to the release of the waste.'' The
standard of ``likely contribution'' is intended to address situations
where the kickout is being considered for non-compliance with
regulations other than the LDRs or unit design regulations.
In today's proposed kickout provision, EPA chose to include three
areas where prior non-compliance with waste management requirements
would allow the Regional Administrator to consider use of the kickout
provision; specifically, land disposal restrictions, part 264 or 265
unit design requirements, and other RCRA requirements where
noncompliance likely contributed to the release at issue. EPA addressed
these three areas differently. EPA chose to include both the LDR and
unit design provisions because they represent fundamental requirements
that are aimed at preventing or minimizing releases of hazardous waste.
They also represent provisions from which CAMUs provide potential
relief. Regarding the third part of this provision (pertaining to
``other'' RCRA requirements), because the relationship between a
release and non-compliance with other Subtitle C requirements may be
less obvious, EPA chose to propose a different approach (which requires
``likely contribution'') to identifying other instances where the
Regional Administrator may consider invoking the discretionary kickout.
As discussed above, this provision should help maintain the current
incentives for waste minimization and proper waste management. However,
this discretionary authority would not be exercised for each instance
of non-compliance with the requirements listed in proposed
Sec. 264.552(a)(2); the Agency does not believe it would be appropriate
[[Page 51089]]
to require the Regional Administrator to exclude such waste from
management in a CAMU in all instances where there had been prior non-
compliance. Under the proposed rule, in deciding whether to exercise
the discretion to disallow management in a CAMU, the Agency would
consider the significance of the violation, among other site-specific
factors. In cases where the entity seeking the CAMU is not the same
entity that mishandled the waste and is not affiliated with the entity
that mishandled the waste, EPA would generally not exercise its
discretion to disallow placement of those CAMU-eligible wastes in a
CAMU.
The proposed provision states that the Regional Administrator may
prohibit placement of wastes in the CAMU, under the discretionary
kickout provision, when the Regional Administrator ``has or receives''
relevant information about how the waste has been handled. The Agency
chose the phrase ``has or receives'' to reflect the common sources of
EPA's information at sites that use CAMUs. The Agency routinely has
information on the origin and management of cleanup wastes, obtained as
part of the cleanup process as the facility approaches the point where
a CAMU decision is being considered. For example, such information is
typically available from permit applications, cleanup investigation
reports, remedial workplans, enforcement actions, or from the general
public. In addition, the Agency ``receives'' relevant information
during the CAMU approval process. As discussed in the next section of
today's preamble, EPA is proposing, in addition to what is already
required at Sec. 264.552(d), to add specific information requirements
to the CAMU rule to make certain that EPA has sufficient information
for making determinations as to whether wastes are CAMU-eligible and
whether there is any apparent reason the Agency should disallow CAMU
management. EPA seeks comment on today's proposed approach for
addressing any potential incentives for mismanagement of as-generated
wastes due to the CAMU rule.
D. Information Submission (Sec. 264.552(d))
The current general requirement for information submission, at
Sec. 264.552(d), requires the owner or operator to submit sufficient
information to enable the Regional Administrator to designate a CAMU.
EPA proposes modifying the existing information requirement under
Sec. 264.552(d) to include submission of the specific information
listed under proposed Sec. 264.552(d)(1-3). The specific information
required would provide the Agency and the public with information on
the circumstances surrounding the origin and subsequent management of
the waste. The Agency would use this information for the purposes of
deciding whether the waste is CAMU-eligible and whether such waste was
mismanaged such that the ``kickout'' discretion should be considered.
The modifications in today's proposal are additions to the existing
general requirement, and add three specific information submission
requirements to directly address the proposed amendments pertaining to
CAMU eligibility. EPA is proposing that specific information must be
submitted (``unless not reasonably available'') on: ``(1) The origin of
the waste and how it was subsequently managed (including a description
of the timing and circumstances surrounding the disposal and/or
release) [provision Sec. 264.552(d)(1)]; (2) whether the waste was
listed or identified as hazardous at the time of disposal and/or
release [provision Sec. 264.552(d)(2)]; and (3) whether the waste was
subject to the land disposal requirements of Part 268 of this chapter
at the time of disposal and/or release [provision
Sec. 264.552(d)(3)].'' EPA is not proposing in the regulations a
specific level of detail associated with meeting this requirement. The
necessary level of information would be determined by the overseeing
agency on a site-specific basis, given the specific characteristics of
the site and wastes. As explained above, EPA is proposing to retain the
general information collection requirement at Sec. 264.552(d), and the
information submission required under this provision would not be
limited to the three specific types of information required under these
proposed amendments.
Proposed provision Sec. 264.552(d)(1) would add a specific
requirement for submission of information on the origin of the waste
and its subsequent management, where such information is reasonably
available (the concept of reasonable availability is discussed below).
The proposed language specifically emphasizes waste origins, which is
information the Agency needs to be able to distinguish between as-
generated and cleanup wastes. EPA seeks to ensure, at all CAMUs, that
reasonably available information on the history of the waste will be
available to the Regional Administrator and the public so that CAMUs
will be restricted to managing wastes resulting from cleanup.
The information that would be submitted in response to (d)(2) and
(3) relates specifically to whether the waste was designated as
hazardous and was subject to the land disposal restrictions at the time
of disposal and/or release. Regarding (d)(2), the Agency would use the
information provided to determine whether Subtitle C unit standards
applied at the time of the release. EPA took a slightly different
approach to (d)(3) because EPA believes that it would be appropriate
for the owner/operator to submit information on LDR applicability,
because the owner/operator would be most familiar with the
circumstances of waste management and would be in the best position to
explain whether the disposal and/or release was or was not subject to
the land disposal restrictions. The information requested in proposed
(d)(2) and (3) would be used by the Regional Administrator for deciding
whether such waste is one for which discretionary use of the kickout
provision should be considered.
EPA believes that the information that would be required in
Sec. 264.552(d)(1)-(3) on wastes potentially being placed in CAMUs will
generally be in the facility's or EPA's possession prior to the CAMU
approval process. Facilities typically seek the use of a CAMU in cases
where they have identified that they are managing hazardous cleanup
wastes, and are seeking a compliance alternative to the standards that
apply to management of hazardous as-generated wastes. Information on
the origin and historical management of wastes is routinely reported in
permit applications, RCRA Facility Assessments (RFAs), RCRA Facility
Investigations (RFIs) and other cleanup investigative reports, remedial
workplans, engineering reports and analyses of remedial alternatives
conducted prior to the determination to pursue a CAMU. If this
information was previously submitted to the same Agency, and it remains
timely and accurate, the owner/operator could simply identify where and
when the information had been previously submitted to the Agency, and
EPA would generally not expect the owner/operator to resubmit the
information as part of its submission under this requirement.
EPA seeks comment on today's proposed information submission
provisions. In particular, do they achieve the Agency goals for
obtaining the types of information necessary to make CAMU decisions? In
addition, EPA specifically seeks comment on the Agency's conclusion
that the information that would be required in Sec. 264.552(d)(1)-(3)
on wastes potentially being placed in CAMUs will generally
[[Page 51090]]
be in the facility's or EPA's possession prior to the CAMU approval
process.
1. Availability of Information
Today's amendments would provide that the information in proposed
Sec. 264.552(d)(1)-(3) must be submitted to the Agency unless it is
``not reasonably available.'' Under this standard, facilities would be
expected to have made or make a good faith effort to gather and provide
information meeting the submission requirements in Sec. 264.552(d)(1)-
(3). As stated above, EPA believes that most facilities will already be
in possession of information necessary to fulfill the requirements of
this provision and will be able to readily inform the Agency of the
information required under proposed Sec. 264.552(d). In instances where
this is not the case, EPA would expect most facilities to be able to
gather the information through existing site and waste-specific
information such as manifests, vouchers, bills of lading, sales and
inventory records, sampling and analysis reports, accident, spill,
investigation, and inspection reports, enforcement orders and permits.
Reasonably available information also would include information that
can be obtained from talking with knowledgeable current and former
employees, particularly where documentation is absent. Information that
is required to be developed and maintained under applicable statutes
and regulations would also be expected to be reasonably available.
EPA believes that the ``reasonably available'' standard is
appropriate, because it would allow for circumstances where, for
example, the contamination cannot be linked with specific waste
management activities that are historically associated with the
facility (e.g., characteristically hazardous soils not associated with
any hazardous waste unit at the facility). Where information responding
to the requirements in Sec. 264.552(d) is not reasonably available, the
facility could fulfill these information submission requirements by
informing the Regional Administrator on the extent of its knowledge
about the waste and releases.
For wastes that were disposed and/or released prior to the
enactment of the hazardous waste regulations or the land disposal
restrictions, the response to paragraphs (d)(2) and (3) would be to
indicate in the submission that the information submitted regarding the
origins of the waste in paragraph (d)(1) demonstrate that the wastes
were not regulated as hazardous or subject to the LDRs, because those
standards did not exist at that time.
2. Ability to Seek Additional Information
EPA is not proposing to alter the general approach to information
submission, which requires the owner or operator to submit sufficient
information to enable the Regional Administrator to designate a CAMU.
It is typical to have a series of back-and-forth discussions,
information exchanges, and requests for additional information
throughout the CAMU application process. For the purpose of determining
CAMU eligibility, the Agency would likewise, where appropriate, seek
information regarding waste history beyond that initially submitted
pursuant to Sec. 264.552(d). Where there are significant concerns
raised about the eligibility or past management of wastes from
submitted information, information already in the oversight agency's
possession, or from information brought to the Regional Administrator's
attention by a citizens group, the Agency would expect the Regional
Administrator to seek additional information regarding waste history.
3. Commercial Chemical Products
EPA believes that there could be potential confusion regarding how
Sec. 264.522(d) should be applied to P and U hazardous wastes which are
discarded (see 261.33) and are undergoing cleanup. The confusion arises
because commercial chemical products are not ``wastes'' until they are
discarded or intended to be discarded by being abandoned (or used as
fuels or in a manner constituting disposal when these are not their
normal manner of use). In this context, (d)(2) should be read as
``whether the disposal and/or release of the commercial chemical
product occurred before or after the associated listing.'' EPA believes
that this reading should make the intention of the original questions
clearer as applied to discarded commercial chemical products. For
(d)(3), the answer should be that the commercial chemical products were
not subject to LDRs because the LDR requirement for the associated
listing would not apply at the time of the spill.
4. Alternate Approach to Proposed Sec. 264.552(d)(3)
EPA seeks comment on an alternate approach to seeking information
under proposed Sec. 264.552(d)(3). Under this alternate approach,
provision (d)(3) would read as ``whether the disposal and/or release of
the waste occurred before or after the land disposal restriction
requirements of Part 268 of this chapter were in effect for the
associated listing.'' This alternate approach would request information
relating to an LDR regulation effective date, rather than information
on determining whether the waste was ``subject to'' LDR standards. EPA
has concerns that assessing whether waste was ``subject to'' certain
standards might become complicated for the owner or operator. EPA
anticipates that the date approach might be easier for owner/operators
to respond to, and would provide oversight agencies with relevant
information to understand the compliance history or to seek additional
information, if needed.
5. Interpretation of Existing Sec. 264.552(d)
During discussions with stakeholders, EPA became aware of potential
confusion regarding the use of the word ``criteria'' in the information
submission requirement at Sec. 264.552(d): ``The owner/operator shall
provide sufficient information to enable the Regional Administrator to
designate a CAMU in accordance with the criteria in Sec. 264.552.''
Although the Agency does not believe the confusion warrants a change in
the regulatory language, EPA is using today's proposal as an
opportunity to clarify its intent with regard to this provision.
Specifically, the word ``criteria'' was described in the 1993 preamble
as referring to the ``decision criteria specified in Sec. 264.552(c) as
they relate to the implementation of a CAMU at a given facility'' (58
FR 8671). The potential confusion regarding this phrase relates to
whether the information submission requirement is restricted to the
listed criteria under Sec. 264.552(c). As plainly required by
Sec. 264.552(d), EPA has always intended that this provision be read as
requiring information relating to all aspects of implementation of the
CAMU under Sec. 264.552, including, for example, implementation factors
that are not specifically referenced in Sec. 264.552(c), such as
information relating to the use of a regulated unit as a CAMU (under
Sec. 264.552(b)).
E. Liquids in CAMUs (Sec. 264.552(a)(3))
EPA is proposing to add a general prohibition, at
Sec. 264.552(a)(3), against placement of liquids in CAMUs, with
exceptions for liquids that are associated with the remedy selected for
the waste. Specifically, EPA is adding four provisions as follows: (1)
``The placement of bulk or non-containerized liquid hazardous waste or
free liquids contained in hazardous waste (whether or not sorbents have
been added) in any CAMU is prohibited except where placement of such
wastes facilitates the
[[Page 51091]]
remedy selected for the waste;'' (2) ``The requirements in
Sec. 264.314(d) for placement of containers holding free liquids in
landfills apply to placement in a CAMU except where placement
facilitates the remedy selected for the waste;'' (3) ``The placement of
any liquid which is not a hazardous waste in a CAMU is prohibited
unless such placement facilitates the remedy selected for the waste or
a demonstration is made pursuant to Sec. 264.314(f);'' and, (4) ``the
absence or presence of free liquids in either a containerized or a bulk
waste must be determined in accordance with Sec. 264.314(c). Sorbents
used to treat free liquids in CAMUs must meet the requirements of
Sec. 264.314(e).'' Of course, under today's proposal, wastes containing
liquids that are placed in a CAMU in accordance with the proposed
provisions would remain subject to the CAMU requirements, including
today's proposed treatment standards.
These proposed changes essentially adopt the approach that has been
taken for hazardous waste landfills, into which the placement of
hazardous or non-hazardous liquids is prohibited (at Sec. 264.314), but
has been modified for incorporation into the CAMU rule.\8\ EPA believes
that the general basis for prohibiting placement of liquids in
landfills--that liquids fundamentally increase the risk of future
releases from a unit--applies equally to CAMUs. The Agency is not aware
of any instances of inappropriate introduction or disposal of liquids
in existing CAMUs, but believes that the proposed amendment will
clarify the Agency's long-standing policy on the general
inappropriateness of the disposal of liquids in long-term land disposal
units, including CAMUs.
---------------------------------------------------------------------------
\8\ In modifying Sec. 264.314 for potential application to
CAMUs, EPA did not include provision Sec. 264.314(a), which pertains
to disposal prior to 1985, because it would not apply to future
CAMUs.
---------------------------------------------------------------------------
EPA believes there will, however, be instances where it is
appropriate to add liquids or wastes containing liquids in CAMUs, when
such placement facilitates the remedy selected for the waste being
managed in the CAMU. For example, a common practice for management of
water-bearing industrial sludges or sediments is to de-water the
materials prior to final disposal or treatment. In another example,
soils or other contaminated materials can be subjected to a soil
washing remedy, either with water or solvents, to remove soluble
contamination. The remedy approved by the oversight agency would
specify final management of the residual water; typically, in these
examples, the residual liquids from de-watering or from soil washing
would be containerized and disposed offsite. Another example is
bioremediation of wastes, which frequently requires the addition of
water or liquid additives to facilitate the biological breakdown
process. Management of the CAMU might also require use of water or
leachate for dust suppression while the unit is operating or under
construction. To accommodate these reasonable clean-up waste management
approaches, the Agency has included an exception to the prohibition,
where placement of liquids into the CAMU ``facilitates the remedy
selected for the waste'' (Secs. 264.552(a)(i), (ii), (iii)).
EPA believes this proposed approach for allowing placement of
liquids in CAMUs is appropriate, because of the decision process for
CAMU designation, which includes, among other factors, an oversight
agency's assessment of the need for treatment of CAMU wastes.
1. Sec. 264.314(f) Demonstration
In today's proposal, for liquids that are not hazardous waste,
there is a prohibition against placement in a CAMU unless the placement
facilitates the remedy selected for the waste or, as in Sec. 264.314, a
demonstration is made pursuant to Sec. 264.314(f). Under this
demonstration, the Regional Administrator must determine that the only
reasonable alternative is placement in a landfill or unlined surface
impoundment which contains (or may be reasonably anticipated to
contain) hazardous waste, and that placement in the owner or operator's
landfill will not present a risk of contamination of any underground
source of drinking water (as that term is defined in Sec. 144.3). In
general, EPA believes that this demonstration under Sec. 264.314(f) for
hazardous waste landfills is also appropriate to apply to CAMUs; EPA
does not anticipate circumstances that differ for CAMUs that would
prevent the appropriate use of this provision.
F. Amendments to Design Standards for CAMUs
In today's notice, EPA is proposing amendments in three areas to
the existing design standards for CAMUs. For CAMUs in which wastes will
remain in place after closure, these changes would: establish a minimum
liner requirement for new, replacement or laterally expanded CAMUs;
provide minimum national design criteria for CAMU caps; and, require
notification for releases to groundwater from the CAMU and corrective
action of such releases as necessary to protect human health and the
environment. EPA believes that the greater specificity in today's
proposed amendments on technical standards for CAMU liners and caps is
reasonable and consistent to the extent appropriate with the approaches
undertaken in the Subtitle C and D programs for long-term disposal of
wastes. EPA believes that the groundwater monitoring provisions
proposed today would make clearer the Agency's expectation that
releases from CAMUs will be addressed as necessary to protect human
health and the environment. EPA also believes, that to maintain the
CAMU rule's ability to address disincentives to cleanup, today's
proposed amendments in these areas must allow for alternatives to the
standards to reflect the unique and site-specific circumstances
associated with long-term disposal of cleanup wastes; today's proposed
amendments were designed with that objective in mind. The proposed
amendments are described in the following sections.
1. Liner Standard (Sec. 264.552(e)(3))
In the existing CAMU rule, the fourth general decision criterion at
Sec. 264.552(c)(4) specifies that ``areas within the CAMU, where wastes
remain in place after closure of the CAMU, shall be managed and
contained so as to minimize future releases, to the extent
practicable.'' This standard, in conjunction with the closure and post-
closure provisions in Sec. 264.552(e), is intended to ensure that long-
term controls adequate to protect human health and the environment are
imposed for any wastes remaining within the CAMU. In practice, pursuant
to this standard, the Agency has made site-specific determinations that
liners should be employed at most new, replacement, or laterally
expanded CAMUs to minimize releases and control leachate (see the CAMU
Site Background Document in the docket for today's rule). The 1993
rule, however, does not have any explicit minimum liner requirement for
CAMUs where waste will remain in place after closure. Today's
amendments address the concern that the existing standards are not
sufficiently concrete to ensure that a liner will be used, as
appropriate, at all new, replacement, or laterally expanded CAMU units.
As stated above, the majority of existing CAMUs with new,
replacement, or laterally expanded units have been built with liners;
where liners were not used, there were legitimate reasons, related to
the cleanup, for that decision. The general practice of using liners in
these situations reflects good engineering standards and a preventive
approach that, along with other requirements imposed by the Regional
[[Page 51092]]
Administrator, provides long-term protection of human health and the
environment when wastes are left in place. EPA recognizes the concern
that the current standard is open-ended and might benefit from
increased detail to better ensure that liners will be used where
appropriate. EPA believes that, consistent with the Subtitle C program
for as-generated hazardous waste and the Subtitle D program, a liner
requirement and greater specificity on technical standards is
reasonable for new, replacement, or laterally expanded CAMUs where
waste will remain in place after closure. EPA, however, also believes
that any such requirement must allow sufficient flexibility for
alternatives to the standard, to reflect the unique and site-specific
circumstances associated with locating units at cleanup sites. As
described above in the section titled, Why is EPA Proposing Today's
Amendments?, the Agency crafted today's standard with this goal in
mind.
EPA is proposing a minimum national liner standard at
Sec. 264.552(e)(3)(i) that is modeled on the uniform design standard at
258.40(a)(2) for use in the municipal solid waste (Subtitle D) program
(see Solid Waste Disposal Facility Criteria, 56 FR 50978, October 9,
1991, and supporting materials (docket # F-91-CMLF-FFFFF).
The proposed liner requirement is only for application at CAMUs
that are new, replacement, or laterally expanded units. This approach,
which recognizes the practical issues of retrofitting existing units
(which, if required, could work as a disincentive to cleanup), is
consistent with that taken by Congress in RCRA for hazardous waste
landfills for as-generated wastes (under Sec. 3004(o)). ``New,
replacement, or laterally expanded'' is meant to have the same meaning
in today's proposal as in the Sec. 3004(o) context. Guidance on the
interpretation of ``new, replacement or laterally expanded'' units
already exists and has been placed in the docket for today's proposal.
Under today's proposal, unless the Regional Administrator approves
an alternate standard (as discussed below), the rule would require new,
replacement, or laterally expanded CAMUs to be constructed with a
composite liner and a leachate collection system that is designed and
constructed to maintain less than a 30-cm depth of leachate over the
liner. The rule would require the composite liner to consist of two
components: An upper flexible membrane liner (FML) with a minimum
thickness of 30-mil, and a lower component consisting of at least two
feet of compacted soil with a hydraulic conductivity of no more than
1x10-7 cm/sec. The rule would require FML components consisting of high
density polyethylene (HDPE) to be at least 60 mil thick and would
require the FML component to be installed in direct and uniform contact
with the compacted soil component. The FML and soil layer function
together to retard the migration of contamination into the subsoil. The
FML would provide a highly impermeable layer to maximize leachate
collection and removal; the compacted clay liner would adsorb,
attenuate and retard contamination in the event of FML liner failure.
The leachate collection system would remove liquids from the CAMU,
which reduces hydraulic pressure and the potential for migration of
leachate through the base of the CAMU.
EPA believes that the proposed standard would be an appropriate
national minimum standard for new, replacement, or laterally expanded
CAMUs, because it would be protective for a wide variety of waste and
site conditions. In fact, when liners have been installed at new,
replacement or expanded CAMUs under the existing regulations, a
Subtitle D-type liner is consistent with what has generally been
imposed by regulatory agencies in the absence of specific requirements.
The Subtitle D standards also have sufficiently detailed liner and
leachate collection provisions to be easily implemented, with the
advantage of already being in wide use. In crafting today's rule, the
Agency thought it made sense to model the amendments on existing
standards where appropriate and available, to avoid the implementation
issues that inevitably arise with the promulgation of a novel standard.
The other obvious model for a CAMU minimum requirement would be the
Subtitle C Part 264 liner requirements for new, replacement, or
laterally expanded land disposal units. The Subtitle C standard
requires, among other features, two synthetic liners, an underlying
three foot thick clay layer and two leachate collection systems (see
Sec. 264.301). This option, however, was rejected since it was these
standards that, in part, created the disincentive to cleanup meant to
be addressed by the CAMU rule.
It is important to note that the proposed rule would establish
``minimum'' national standards, which would allow for the approval of
additional features, where appropriate, to ensure protection of human
health and the environment. For example, at some existing CAMUs (see
the CAMU Site Background Document, available in today's docket),
additional groundwater protection features, such as use of slurry walls
or engineered inward hydraulic gradients, and features that meet the
requirements of the Subtitle C liner standards, have been required.
a. Alternate Liner Designs (Sec. 264.552(e)(3)(ii)). Both the
Subtitle C as-generated hazardous waste and Subtitle D regulations
contain provisions for the approval of site-specific alternatives to
the minimum liner standard under specific circumstances. These
provisions provide balance between specific minimum national standards
and the need to accommodate site-specific conditions. EPA believes
that, in the context of establishing CAMUs, there are additional
reasons to provide flexibility for alternate designs. Flexibility will
help to counter any incentives to leave wastes in place created by
minimum standards that might not be appropriate in a given
circumstance, and will allow for more economical and innovative designs
that will preserve cleanup resources while still being protective of
human health and the environment. In today's rule, EPA is proposing two
provisions that would allow the Regional Administrator to approve
alternate liner designs.
The first provision, proposed at Sec. 264.552(e)(3)(ii)(A), is
patterned on the statutory alternate liner standard for Subtitle C
units (at RCRA Sec. 3004(o)(2)), which is written into the Subtitle C
program for hazardous waste landfills at Sec. 264.301(d). Under this
provision, the Regional Administrator must find that ``alternate design
and operating practices, together with location characteristics, will
prevent the migration of any hazardous constituents into the ground
water or surface water at least as effectively as the [standard liner
and leachate collection system].'' This provision would allow for
alternative liner designs of equal technical performance, when
considered in conjunction with location characteristics, such as cases
where the CAMU is located in an area where it is unlikely that releases
would reach groundwater. EPA's underlying premise in proposing this
alternate liner provision for CAMUs is that designs of equal or
superior performance should be acceptable, and that the alternate
standard for Subtitle C liners, with its express allowance for
consideration of location characteristics, is equally appropriate for
CAMUs. Location characteristics are an essential consideration in
choosing cleanup remedies, including those involving CAMUs. EPA expects
this provision would provide flexibility for designs that take into
account local factors,
[[Page 51093]]
including state design protocols and availability of construction
materials.
The second alternate liner provision, proposed at
Sec. 264.552(e)(3)(ii)(B), would provide for flexibility in liner
design for CAMUs that are established in significantly contaminated
areas. With this provision, the Regional Administrator could specify
alternate designs if the CAMU is to be established in an area with
existing significant levels of contamination, and the Regional
Administrator finds that ``an alternative design, including a design
that does not include a liner, would prevent migration from the unit
that would exceed long-term remedial goals.'' For example, at some
highly contaminated facilities where contamination is pervasive
throughout the subsurface, and where either groundwater pump and treat
is predicted to be necessary for hundreds of years or high-level
subsurface soil contamination is expected to remain as a potential
source of groundwater contamination, a liner to reduce migration of
constituents from the CAMU into the highly contaminated subsurface
would not add a meaningful additional level of protection and would not
be the best use of remediation resources. Under this alternate
standard, potential migration from the CAMU, even if it is unlined,
must be consistent with the remedial goals at the site (for example,
not cause cleanup goals to be exceeded at locations where potential
receptors would be located). This approach is consistent in principle
with site-specific decisions sometimes made in the context of overall
remedies, such as where in-situ contamination is determined to require
a cap, but not excavation. For example, one existing CAMU, located at a
decades-old lead recycling facility, uses a CAMU for permanent disposal
of soils containing lead debris. The CAMU does not use a liner, due to
the high levels of existing contamination in the soils underlying the
CAMU and limited leaching potential of the soils, and it has a
perimeter slurry wall and groundwater extraction system that maintains
an inward hydraulic gradient within the slurry wall. EPA believes it
was reasonable to conclude, at this site, that a CAMU liner would not
add a meaningful additional level of protection to groundwater, given
the nature of the waste, engineering associated with the unit, and the
pervasive contamination underlying the unit.
EPA expects that this alternate provision would also be used when
land treatment is conducted in a CAMU. Land treatment is generally not
undertaken with the use of liners, because land treatment typically
requires that rainwater or introduced liquids percolate through the
waste and existing soil column. EPA expects that many land treatment
CAMUs would be existing units, which would not be subject to the
minimum liner standard proposed today. However, EPA expects that those
that are not existing units would typically be located in areas with
significant contamination, such that this alternate liner provision
could be potentially available and provide for a CAMU land treatment
unit without a liner. EPA seeks comment on whether EPA's assumption
that land treatment in CAMUs is appropriately accommodated in today's
proposal is correct, and if not, what changes would be necessary to do
so.
As discussed above, in creating the minimum standard for liners in
today's proposal, the Agency sought to provide a generally applicable
minimum standard that makes sense in most circumstances in the context
of cleanup, and to provide for site-specific flexibility in situations
where that standard might not make sense (e.g., where the standard
might create a disincentive to cleanup). Today's proposed standard also
would stand as a minimum, and additional requirements, such as further
reductions in liner permeability, could be required, as appropriate, at
some sites. The Agency requests comment on whether the standard
promulgated today satisfies these objectives. In particular, the Agency
seeks comment on whether there are situations where these standards
might act to discourage cleanup, and, if so, how the standards might be
modified to address those situations.
The Agency also specifically requests comment on the two provisions
for alternate liner standards. Do they sufficiently capture the
situations where the general minimum standard might not be appropriate?
Are there other ways to achieve similar results? For example, in lieu
of proposed Sec. 264.552(e)(3)(i), the Agency considered using the
alternative liner design provision for Subtitle D solid waste landfills
at 258.40(a)(1) \9\. As discussed below, the Agency is not proposing
this approach because it is keyed to a list of constituents that would
not be representative of those found at cleanup sites. However, it
might be possible to use the general approach of this provision to
develop an approach for CAMUs. Under the Subtitle D site-specific liner
standard, a demonstration must be made that an alternate design would
contain hazardous constituents such that constituent concentrations
(those listed in Table I of Subpart D, Part 258) will not be exceeded
in the uppermost aquifer at a relevant point of compliance, not to
exceed 150 meters from the waste management unit boundary. These
constituents represent those that are typically found in Subtitle D
landfill leachate. EPA believes that this list would not be
representative of the broader array of constituents found in CAMU-
eligible wastes from diverse industries and thus would not be
appropriate for use as a CAMU standard. EPA recognizes, however, that
at individual cleanup sites, the regulator typically identifies site-
specific constituents of concern from a groundwater perspective. EPA
also recognizes that site-specific points of compliance in groundwater
are typically established for these constituents. Therefore, EPA
believes that the same basic approach used in the alternate liner
standard for Subtitle D landfills, modified to incorporate site-
specific data, might be used at CAMUs as a means of setting minimum
alternate liner standards. EPA specifically requests comments on the
potential adoption of an alternate liner provision that is derived from
the Subtitle D alternate liner provision so that relevant site-specific
constituents are contained at a relevant point of compliance. The
Agency is also requesting comment on an alternative that would allow
alternative requirements if liner design and operating practices along
with site characteristics would prevent migration that meets long-term
remediation goals.
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\9\ In the August 20, 1999 proposed Standards for the Management
of Cement Kiln Dust (64 FR 45632), EPA proposed an alternate liner
provision (at proposed Sec. 259.30(c)) modeled on the
Sec. 258.40(a)(1) standard.
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2. Cap Standard (Sec. 264.552(e)(6)(iv))
In today's notice, EPA is proposing to add detail to the existing
requirement for capping of CAMUs closed with waste in place. The
existing regulation, at Sec. 264.552(e)(4)(ii)(B), requires capping of
CAMUs undergoing closure with wastes remaining in place, but does not
specify standards for such caps. EPA recognizes the concern that the
current standard is open-ended, and the current standard might benefit
from increased detail to better ensure that appropriate cap designs are
required. EPA believes that greater specificity on technical standards
for CAMU caps is reasonable and consistent with the approaches
undertaken in the Subtitle C and D programs for long-term disposal of
wastes. EPA, however, also believes that any such requirement must
allow
[[Page 51094]]
for alternatives to the standard to reflect the unique and site-
specific circumstances associated with long-term disposal of CAMU-
eligible wastes. As described in the introductory section to today's
proposed design standards, the Agency developed the alternative
standard with this goal in mind.
EPA is proposing at Sec. 264.552(e)(6)(iv) to use the existing
hazardous waste landfill cap standards at Sec. 264.310(a) as
performance criteria for CAMU caps. Under this proposed approach, the
cap must be designed and constructed to meet the following performance
criteria at final closure of the CAMU, unless an alternate cap design
(discussed below) is used: (1) Provide long-term minimization of
migration of liquids through the closed unit; (2) function with minimum
maintenance; (3) promote drainage and minimize erosion or abrasion of
the cover; (4) accommodate settling and subsidence so that the cover's
integrity is maintained; and (5) have a permeability less than or equal
to the permeability of any bottom liner system or natural subsoils
present. EPA believes that these are common-sense standards that are
consistent with basic engineering principles and with cap requirements
that have been established for existing CAMUs. These standards are also
well understood from their application in the field.
Although today's proposed performance criteria are taken from the
Subtitle C landfill standards, use of this standard would not generally
be expected to result in caps that look like Subtitle C caps
constructed on a new Subtitle C unit. This is because the permeability
of the cap under either scenario is set in relation to the liner--the
cap must be of equal or lower permeability than the liner. The minimum
national design standards for liners proposed in today's rule are for a
composite liner and leachate collection system, and apply only for new,
replacement, and laterally expanding units. Most CAMUs to date have
been established at existing units, in which the liner standard would
not apply. Existing units vary in their design and in the consequent
permeability of their bottom layer; as a result, a cap designed in
relation to the liner will not always look like a full Subtitle C cap.
The proposed minimum permeability standard for a cap can be met in
a variety of ways, including with systems that are designed to use the
water uptake capability of vegetation. As a result, it is not always
necessary for the cap to match the construction materials used in the
liner. Non-standard caps, such as those that use vegetation, should be
carefully designed and reviewed by the oversight agencies to satisfy
the design criteria. For more details on construction of alternate cap
designs, that are germane to Subtitle D or C-type caps, see the
preamble discussion in the July 1997 revised standards for municipal
solid waste landfills (62 FR 4708, 40710 (July 29, 1997)).
a. Alternate Cap Design (Sec. 264.552(e)(6)(iv)(B)). Two existing
CAMUs have been designed with caps that allow controlled infiltration
of rainwater through the cap into the waste to promote biodegradation
of the wastes in the CAMU. The design of such caps take into
consideration such factors as constituent concentrations, treatment
levels, and time-frames for biodegradation (see the CAMU Site
Background Document in the docket for today's rule). EPA believes that
such caps can promote greater long-term protection in the event of
failure of the unit, by facilitating the continued treatment of waste
after disposal. Such designs, however, would not meet today's proposed
cap performance criteria to ``provide long-term minimization of
migration of liquids through the closed unit'' and ``have a
permeability less than or equal to the permeability of any bottom liner
system or natural subsoils present.'' Therefore, in today's notice, EPA
is proposing an alternate cap standard at Sec. 264.552(e)(6)(iv)(B)
which would allow for alternate designs that facilitate treatment or
the performance of the cap. EPA believes that these standards would
allow for cap designs consistent with the above cited examples. EPA
also believes that any such design warrants careful review to ensure
that it is protective over the long-term and will meet cleanup goals
within a reasonable time frame.
EPA is aware of a CAMU under discussion for approval that would use
an existing biological land treatment unit to treat organically
contaminated wastes to below health-based levels. Treatment would be
complete at this unit when concentrations of constituents are at or
below health-based levels and the unit would be closed without a cap or
groundwater monitoring. EPA anticipates that other treatment
technologies, such as in situ methods, could effectively achieve the
same result of achieving treatment levels that are below health-based
levels applicable to the site. Under today's proposed amendments to the
cap standards, such CAMUs would be subject to the requirements for a
cap at the time of closure. However, the Agency is concerned that this
approach would not generally make sense in these cases where wastes in
the unit are treated to below health-based levels, just as a cap
requirement would not make sense when wastes derived from cleanup are
placed in CAMUs with constituent concentrations at or below protective
health based levels (see today's proposed provision at Sec. 264.552(g)
for such wastes that meet or exceed health based levels at the time
they are placed in CAMUs, discussed below in the section titled:
Constituents at or Below Remedial Levels). EPA therefore is seeking
comment on a modification to today's proposed cap standard at
Sec. 264.552(e)(6)(iv)(A) that would potentially address this concern.
This modification would insert the phrase ``with constituent
concentrations above remedial levels or goals applicable to the site''
as follows: ``At final closure of the CAMU, for areas in which wastes
will remain after closure of the CAMU with constituent concentrations
above remedial levels or goals applicable to the site, the owner or
operator must cover the CAMU with a final cover designed and
constructed to meet the following performance criteria* * *''
The Agency requests comment on all aspects of the proposed cap
standard. In particular, the Agency requests comment on whether the
provision for alternate design adequately provides for cleanup
situations where deviation from the national minimum standard would be
appropriate.
3. Releases to Groundwater (Sec. 264.552(e)(5))
In today's notice, EPA is proposing a provision at
Sec. 264.552(e)(5) for the Regional Administrator to require
notification of releases to groundwater from the CAMU, and corrective
action of those releases, as necessary to protect human health and the
environment. The 1993 CAMU rule contains a provision for monitoring of
existing releases and potential releases from waste remaining in place
after closure. However, it does not include a provision specifically
providing for notification to the overseeing agency and corrective
action as necessary for releases to groundwater from CAMUs.\10\. In the
absence of today's proposed amendment, the RA has the authority, in
designating a CAMU (see Sec. 264.552(c)(2)), to include requirements to
notify the Agency and cleanup any releases, as necessary, that
[[Page 51095]]
emanate from CAMUs. In addition, if the CAMU authorizing document did
not include such requirements, the overseeing Agency would also have
authority under its cleanup authorities (e.g., Sections 3008(h) and
7003) to require corrective action if there were a release. The Agency
is proposing to add these requirements to stress the importance of
notifying the Regional Administrator of releases from CAMUs so that
prompt action may be taken to address them, where appropriate. Having
express corrective action requirements in (or incorporated in) the CAMU
authorizing document itself, as opposed to relying on issuance of
separate orders, will also accelerate the corrective action
process.\11\
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\10\ The preamble to the 1993 rule stated EPA's expectation that
the final Subpart S rulemaking would address the issue of when
groundwater remediation would be necessary. In October 1999, EPA
issued a Federal Register notice withdrawing the majority of that
proposal, including provisions pertaining to this issue (64 FR
54604).
\11\ Of course, if the CAMU incorporates a hazardous waste
regulated unit that is undergoing closure, corrective action to
address releases to groundwater may also be addressed under the
closure requirements for regulated units.
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The proposed amendment does not change the general performance
standard approach to groundwater monitoring for CAMUs, which does not
explicate the details of how and when corrective action relating to
groundwater contamination from the CAMU will be addressed at the site.
The Agency believes that decisions about when and how to clean up
groundwater should be made site-specifically in the broader context of
the overall site cleanup consistent with the Agency's approaches for
cleaning up groundwater in its remedial programs (see Corrective Action
for Releases from Solid Waste Management Units at Hazardous Waste
Management Facilities, Advance Notice of Proposed Rulemaking, at 61 FR
19432, 19461 (May 1, 1996); Presumptive Response Strategy and Ex-Situ
Treatment Technologies for Contaminated Ground Water at CERCLA Sites;
EPA 540/R-96/023, October 1996, available in the docket for today's
rule). Detailed specifications or performance standards to address
groundwater and corrective action would be included (or incorporated)
in the site permit or order, based on site-specific information and
conditions.
The proposed amendment requires ``notification'' as necessary to
protect human health and the environment in the event of releases to
groundwater from the CAMU. Monitoring and reporting (i.e.,
notification) frequencies are typically established site-specifically
in sampling and analysis plans, and reflect conditions at the site,
including such factors as degree of existing contamination, distance to
nearest groundwater well, groundwater flow rates, and statistical
sampling protocols. As with existing CAMUs, where site-specific
groundwater monitoring is required, EPA would expect that notification
requirements would be addressed site-specifically and the requirements
would be incorporated into appropriate authorizing mechanisms for CAMU
designation (e.g., in a sampling and analysis plan that is incorporated
into the permit or order).
G. Proposed Approach to Treatment
Treatment of hazardous waste is a critical element of the RCRA
hazardous waste management program. Treatment of hazardous wastes that
will be placed in ``land disposal units'' is governed by the Land
Disposal Restrictions (LDR) program, which sets standards for reduction
in toxicity and mobility of specific hazardous constituents. The focus
on treatment before land disposal in the RCRA program reflects EPA's
and Congress's recognition of the uncertainties that are associated
with long-term containment of wastes and the potential for containment
to fail and cause future problems.
In developing today's proposal, EPA considered the issue of what
level of treatment would be appropriate for CAMU-eligible wastes in the
context of the underlying issues that the CAMU rule is intended to
address. As EPA has described before, in implementing actual cleanups,
it is not always straightforward, possible, or reasonable to require
companies to excavate or remove existing cleanup wastes, especially in
light of the costs and practical issues associated with application of
the Subtitle C treatment and unit design requirements to the excavated
wastes, and where often a legally available cleanup option is to leave
wastes in place. As discussed in the May 26, 1998 final Phase IV Rule
(63 FR 28556, 28603), part of the benefit of the treatment standards
under Subtitle C for as-generated hazardous waste is that they create
an incentive to generate less of the affected waste. In the remedial
context, however, the waste is already in existence, and this
incentive, therefore, works against the goal of cleanup, which is often
to maximize (as appropriate) the amount of waste managed, in order to
remove the threats it poses. In the Agency's several attempts to
address these issues, the goal has always been to create a rule that
promotes more aggressive cleanups, i.e., those that result in
excavation and management, including an appropriate degree of
treatment. EPA believes that this approach generally results in more
permanent remedies.
The Agency addressed this issue with its original promulgation of
the CAMU rule, which removed the LDR and MTR requirements and replaced
them with a site-specific flexible framework to encourage removal,
excavation, treatment and final placement of wastes in CAMUs. In terms
of treatment, the current CAMU rule stresses the importance of
treatment for higher risk wastes with decision criterion
Sec. 264.552(c)(6), which requires that the CAMU ``enable the use, when
appropriate, of treatment technologies * * * to enhance the long-term
effectiveness of remedial actions by reducing the toxicity, mobility,
or volume of wastes that will remain in place after closure of the
CAMU.''
This provision was meant to reflect EPA's repeatedly expressed
preference in the cleanup context for treatment of higher risk wastes,
rather than excavation and containment of wastes without treatment
(note that the term ``higher risk'' wastes is used in a general sense
in this proposal to describe the Agency's policies, and does not define
a new class of wastes). This preference results from the same concerns
regarding the uncertainties associated with long-term containment
described above. The most detailed description of EPA's policy on
treatment and containment for the RCRA corrective action program can be
found in the 1996 Advance Notice of Proposed Rulemaking, Corrective
Action for Releases From Solid Waste Management Units at Hazardous
Waste Management Facilities (61 FR 19432, 19448 (May 1, 1996)). EPA
believes that CAMUs that have been approved to date reflect a
reasonable balance between treatment and containment, and more than
half of existing CAMUs have involved treatment of hazardous cleanup
wastes.
Today's proposal addresses concerns that the 1993 CAMU rule lacks
an explicit treatment requirement, which could result in the
implementation of CAMUs with waste that is insufficiently treated where
treatment is warranted. Stakeholders expressed the concern that a
treatment standard is particularly appropriate for hazardous cleanup
wastes, which, without management in a CAMU, would be subject to the
full LDR treatment requirements. EPA recognizes the concern that the
current standards are open-ended, and the current standards might
benefit from increased detail to better ensure that treatment will be
adequately considered by EPA and authorized state implementors. EPA
therefore believes that it is appropriate to propose an approach that
will ensure appropriate treatment of higher-risk hazardous cleanup
wastes that are permanently disposed in CAMUs. In the process of
[[Page 51096]]
developing today's proposal, EPA examined existing CAMUs and the type
and level of treatment that has been required under the existing rule.
Treatment has been used at more than 70% of existing CAMUs. EPA
believes that these were good decisions, and designed today's proposed
standards to accommodate these types of decisions. EPA's general
conclusion in comparing these existing CAMU decisions to today's
proposed amendments (see the CAMU Site Background Document in the
docket for today's rule) is that existing CAMU remedies involving
treatment would still require treatment under today's proposed
requirements, and similarly, that existing remedies not involving
treatment would also not involve treatment under today's proposed
requirements (either because there would likely be no PHCs identified
at the site, or because the Regional Administrator would likely have
determined that no treatment was required based on one of the
adjustment factors discussed below).
EPA believes that today's proposed approach would increase the
certainty that CAMU disposal decisions will require treatment of
hazardous wastes where it is appropriate to do so, while retaining the
flexibility needed to address site-specific circumstances that is
generally exercised in EPA's remedial programs. EPA also believes that
today's proposed treatment approach, by providing a general minimum
national standard, will have the added benefit of providing a benchmark
against which the public can review potential treatment decisions.
EPA's proposed approach to treatment for hazardous cleanup wastes
disposed in CAMUs is explained in detail in the following sections. In
general, EPA is proposing that the treatment requirement would apply to
wastes that are determined to contain ``principal hazardous
constituents'' (PHCs). The proposed requirement would limit treatment
for such waste to any principal hazardous constituents in the waste,
rather than to the full suite of constituents under the LDR program
that would otherwise be subject to treatment. As proposed, principal
hazardous constituents would be the primary ``risk-drivers'' in the
hazardous CAMU-eligible waste, and would be determined on a site-
specific basis as those constituents that pose a risk that is
substantially higher than the cleanup levels or goals at the site. EPA
is proposing standards that would require treatment of PHCs in the
waste in accordance with either of two approaches: (1) National minimum
treatment standards, adapted from the LDR Phase IV soil standards; or
(2) factors that allow for site-specific adjustment of the minimum
treatment levels in appropriate circumstances. Regarding the latter, in
identifying circumstances where it might be reasonable and appropriate
for the Regional Administrator to impose an adjusted treatment
standard, EPA considered the Agency's long-standing preference for
treatment of certain higher risk wastes, its experience in implementing
remedies in the RCRA corrective action program (and, most especially,
CAMUs that have been used to date), and its experience in implementing
the land disposal restrictions program, which allows for variances from
the LDR treatment standards (so long as the alternate treatment
standard continues to minimize threats posed by land disposal).
The Agency's goals in proposing these treatment requirements for
principal hazardous constituents are that they should provide a
meaningful level of treatment and be achievable, but should not be so
onerous as to discourage cleanup. The Agency believes that the proposed
treatment requirements satisfy these objectives.
1. Identification of ``Principal Hazardous Constituents'' (PHCs)
(Sec. 264.552(e)(4)
As described above, the treatment standards in today's proposed
rule would only apply to the primary risk drivers, ``principal
hazardous constituents'' (PHCs), in the cleanup wastes. This section of
today's preamble discusses the approach proposed today, at
Sec. 264.552(e)(4)(i), to identify the PHCs in hazardous CAMU-eligible
waste that would be subject to the proposed treatment requirements. As
described above, the 1993 CAMU rule currently requires, under
Sec. 264.552(c)(6), that the CAMU ``enable the use, when appropriate,
of treatment technologies * * * to enhance the long-term effectiveness
of remedial actions by reducing the toxicity, mobility, or volume of
wastes that will remain in place after closure of the CAMU.'' However,
the rule does not identify a standard approach or process for
identifying wastes or constituents that should be subject to treatment.
The general practice in addressing contamination at cleanup sites,
including those where CAMUs will be used, is to identify the presence
and concentrations of hazardous constituents in cleanup wastes and to
use this characterization information in conjunction with risk
estimates and site-specific factors to make remedial decisions,
including whether and to what extent to treat waste. For the reasons
outlined in the previous section, EPA is proposing to add greater
specificity to identification of constituents subject to treatment
requirements.
a. Constituents Subject to PHC Analysis (Sec. 264.552(e)(4)(ii)).
Since one of the primary benefits of the CAMU rule is to provide
appropriate relief from RCRA's LDR provisions, it is not EPA's
intention with today's proposed amendments to require treatment of more
constituents than would be required under the LDR program. In other
words, EPA does not intend to promulgate a treatment requirement for
solid wastes that would not, absent the CAMU rule, be subject to LDRs
if land disposed. Therefore, proposed Sec. 264.552(e)(4)(ii) would
require that in designating PHCs in hazardous CAMU-eligible waste, the
Regional Administrator must only consider those constituents that would
be subject to the LDR treatment requirements if the waste were placed
in a land-based unit other than a CAMU. Specifically, the list of
constituents would be as follows: for listed wastes (e.g., sludges),
``regulated hazardous constituents'' (see Sec. 268.40, Table
``Treatment Standards for Hazardous Wastes''); for characteristic
wastes, all ``underlying hazardous constituents'' (see Sec. 268.40(e),
Sec. 268.2(c)); for soil, ``constituents subject to treatment'' (see
Sec. 268.49(d)).
EPA expects that, under today's proposal, program implementors
would identify PHCs as part of the overall site remedial process.
Typically, during the site and waste characterization process and
during the assessment of remedial alternatives, owner/operators and
oversight agencies identify which wastes are hazardous, which wastes
warrant removal, and which constituents will be used to set site
cleanup levels. This process results in the identification of the
``risk-drivers'' at a site. EPA fully expects that this typical
characterization and analysis process, leading up to the decision to
consider the use of a CAMU, will reliably identify PHCs. Therefore, EPA
does not believe today's proposal would require greater
characterization than what already exists in well-designed cleanups.
EPA seeks comment on this conclusion.
b. Proposed PHC Standard (Sec. 264.552(e)(4)(i)). EPA is proposing
the following standard at Sec. 264.552(e)(4)(i) for the identification
of principal hazardous constituents: ``Principal hazardous constituents
are those constituents that the Regional Administrator determines pose
a risk
[[Page 51097]]
that is substantially higher than the cleanup levels or goals at the
site.'' EPA is proposing that: ``In general, the Regional Administrator
will designate as principal hazardous constituents: (1) Carcinogens
that pose a potential direct risk from ingestion or inhalation at the
site at or above 10-\3\; and, (2) Non-carcinogens that pose
a potential direct risk from ingestion or inhalation at the site an
order of magnitude or greater over their reference dose. (3) The
Regional Administrator will also designate constituents as principal
hazardous constituents, where appropriate, based on risks posed by the
potential migration of constituents in wastes to groundwater,
considering such factors as constituent concentrations, and fate and
transport characteristics under site conditions. (4) The Regional
Administrator may also designate other constituents as principal
hazardous constituents that the Regional Administrator determines pose
a risk to human health and the environment substantially higher than
the cleanup levels or goals at the site.'' These provisions are
discussed in detail below.
EPA believes that this is a reasonable standard for identifying
high risk wastes, and is generally consistent with EPA's ``principal
threats'' approach (use of the principal threats approach in the RCRA
corrective action program is discussed below in this section) and EPA's
emphasis on treatment of higher risk wastes. In making any
determination of whether PHCs are present in CAMU-eligible waste,
treatment of the waste could not be used to avoid a PHC determination
that would otherwise be made (e.g., by conducting such treatment prior
to examining constituent concentrations in the waste to determine
PHCs).
In order to identify higher risk constituents in hazardous CAMU-
eligible waste, the proposed PHC approach compares risks posed by the
constituents in the waste to the cleanup levels or goals established at
the site--i.e., levels of contamination that the oversight agency
believes are protective of human health and the environment. In cases
where PHCs are being designated, the CAMU will generally be a permanent
disposal unit located at the site (see discussion of non-permanent
CAMUs below, in the section titled ``Treatment and/or Storage Only
CAMUs''); it is therefore appropriate to consider risks from wastes
disposed of in the CAMU unit in the context of the cleanup standards
set for the site as a whole. By considering disposal risks in the site-
wide context, the proposed approach to designating PHCs would make use
of the process typically used by EPA or the authorized state for
establishing cleanup levels or goals at a site. Cleanup levels or goals
typically take into account such factors as reasonably anticipated land
use at the facility (e.g., residential, industrial or agricultural) and
exposure pathways of concern. At some sites, standard tables are used
to determine protective cleanup levels; at others, risk assessment
procedures are used to determine risks that are more tailored to the
site. In cases where CAMUs are under consideration prior to final
determination of tailored site-specific cleanup standards, EPA
anticipates that generally the Regional Administrator would, as
appropriate, use standard tables as a basis for determining PHCs. EPA
seeks comment on other approaches that could be used for designating
PHCs in circumstances where final determination of tailored site-
specific standards has not been made.
c. Approach to Identifying PHCs. EPA is proposing a general
approach at Sec. 264.552(e)(4)(i) for determining which constituents
``pose a risk to human health and the environment substantially higher
than the cleanup levels or goals at the site'' and should therefore be
designated PHCs. First, EPA is proposing that, ``In general, the
Regional Administrator will designate as principal hazardous
constituents: (1) Carcinogens that pose a potential direct risk from
ingestion or inhalation at the site at or above 10-\3\; and,
(2) non-carcinogens that pose a potential direct risk from ingestion or
inhalation at the site an order of magnitude or greater over their
reference dose.'' EPA believes that following this general approach in
the rule would typically result in identification of constituents with
risks that are ``substantially higher'' and thereby would screen out
constituents posing lower risks, and portions of waste with low
concentrations of higher risk constituents. Because there may be
situations where using this approach would be inappropriate (see
discussion below), EPA is not proposing that constituents meeting this
description be identified as PHCs in all cases. This proposed rule
would establish a general approach for how PHCs would be designated; as
a result, in instances where the Regional Administrator decides not to
identify constituents that would otherwise be identified as PHCs by
using this approach, EPA would expect the Regional Administrator to
explain that decision.
This general approach singles out risks to humans from ingestion
and inhalation of constituents. The Agency believes it is appropriate
to limit the circumstances where the rule identifies a specific risk
level that would generally represent a higher level of risk to
inhalation and ingestion, due to the greater variability and
uncertainties associated with establishing risks via other routes of
exposure. EPA and most states have ``look-up'' tables for soil
ingestion that are commonly used in conducting cleanups (the docket for
today's rule contains examples; note that the standard
10-\6\ values can be extrapolated to calculate
concentrations at 10-\3\ levels); EPA expects that these
tables would be used in PHC determinations (e.g., by extrapolating to
10-\3\ levels from the standard 10-\6\ values).
EPA also recognizes that such levels are sometimes also derived site-
specifically during the cleanup process, and would be appropriate for
making PHC determinations (again, by extrapolation). EPA anticipates
that numbers derived for potential ingestion of soil will generally
serve to identify PHCs. Inhalation numbers are less often the basis for
setting cleanup goals, and thus, because PHCs are determined with
reference to cleanup goals, EPA anticipates that numbers derived from
potential inhalation of contaminants will determine PHCs in a more
limited number of cases.
In assessing whether PHCs are present in cleanup wastes, EPA
expects that the concentrations present in the wastes would be compared
to cleanup levels or goals that assume that an individual is directly
exposed to the constituents in the waste; i.e., this comparison would
not account for any engineering controls associated with management of
the waste. This comparison would assume direct exposure assumptions,
consistent with site use as reflected by the site cleanup standards. As
described above, EPA and most states have look-up tables for cleanup
levels based on direct ingestion or direct contact with soils. Direct
exposure in the case of inhalation refers to the location where an
individual would be exposed under reasonable exposure assumptions (this
is consistent with how inhalation exposure is typically assessed in
cleanup programs). The comparison of levels in the waste to site levels
or goals would assume fate and transport of constituents only for
assessing the potential migration of constituents from waste into
groundwater or air, for the purpose of determining the risk posed by
direct exposure to the groundwater, or by inhalation of air at points
where receptors are located.
EPA expects that the assumption of direct exposure would be
maintained for the PHC determination, despite the
[[Page 51098]]
fact that CAMUs will be designed such that the wastes subject to
disposal will not be available for direct exposure when the CAMU is
complete because of engineering and/or institutional controls. As
explained more fully above, the intent of this approach is to protect
against potential direct exposure to higher risk constituents in the
event of failure of the long-term disposal unit.
EPA believes that today's proposed approach for identifying
constituents subject to the proposed treatment standard should be
readily implementable and provides a reasonable national minimum
standard. The approach is designed to be implemented within the context
of existing remedial programs and decision making. EPA seeks comment on
this conclusion.
d. Identifying Carcinogenic PHCs Posing a Risk via Inhalation or
Ingestion. The Agency generally sets site-specific risk goals for final
cleanup of carcinogenic constituents within the risk range of
10-\4\ to 10-\6\, with 10-\6\ being
the point of departure for establishing carcinogenic risk levels of
concern (e.g., see Corrective Action ANPR, at 61 FR 19450). Therefore,
EPA is proposing that carcinogenic constituents in CAMU-eligible waste
at concentrations that pose potential risks at or above the
10-\3\ level would generally be presumed to pose risks
``substantially higher than the cleanup levels or goals at the site,''
and would therefore typically be defined as principal hazardous
constituents. In the rare cases where the final cleanup goal for the
site falls at the upper end of the risk range (e.g., at
10-\4\), EPA believes that it would generally be appropriate
for concentrations in CAMU-eligible waste at or above the
10-\3\ level to still define principal hazardous
constituents, because of the high level of risk posed at concentrations
higher than the 10-\3\ level.
As discussed above, cleanup levels for sites can be set site-
specifically or can be obtained from standard tables (e.g., by
extrapolation of the standard 10-\6\ values). There may be
situations where concentrations in the CAMU wastes are greater than,
but near the 10-\3\ potential risk level. In such cases, the
Regional Administrator could look closely at such wastes in light of
the assumptions that underlie the 10-\3\ determination
(e.g., their chemical characteristics and site conditions) prior to
determining whether they were principal hazardous constituents. For
example, if a constituent posed risks close to a 10-\3\
level, based on conservative default assumptions (e.g, promulgated
state default tables or generic assumptions used to determine
bioavailability), and the underlying assumptions are not appropriate or
applicable at the site in question, the Regional Administrator could
apply more appropriate site-specific assumptions to determine whether
the constituents should be designated as principal hazardous
constituents.
The proposed rule's general approach to identifying carcinogenic
principal hazardous constituents in CAMU-eligible wastes is generally
consistent with the ``principal threats'' approach used by the
Superfund and RCRA corrective action programs. The principal threats
approach uses a 10-\3\ risk level for carcinogens as one
possible benchmark for identifying which wastes should generally be
designated as ``principal threat'' source material. More detail on the
principal threats approach can be found below, in the treatment section
of today's preamble, and in Sec. 300.430(a)(1)(iii)(A) and
Sec. 430(f)(1)(ii)(E) (the National Contingency Plan). See also, A
Guide to Principal Threats and Low Level Threat Wastes, OSWER Directive
9380.3-06FS, November 1991; Corrective Action for Releases From Solid
Waste Management Units at Hazardous Waste Management Facilities,
Advance Notice of Proposed Rulemaking, 61 FR 19432, 19448, (May
1,1996); Rules of Thumb for Superfund Remedy Selection, OSWER Directive
9355.0-69, August 1997. EPA requests comment on its proposed approach
to identifying carcinogenic principal hazardous constituents.
e. Identifying Non-Carcinogenic PHCs Posing a Risk via Inhalation
or Ingestion. For non-carcinogens, the Agency generally sets cleanup
goals for inhalation or ingestion not to exceed a hazard quotient of
one (for individual non-carcinogens). The hazard quotient is defined as
the estimated site-specific exposure (dose) over a specified period
divided by the reference dose for that substance derived for a similar
exposure period. A reference dose is an estimate of a daily exposure to
the general population of humans (including sensitive subpopulations)
that is likely to be without an appreciable risk of adverse effects
during a lifetime. Reference doses typically incorporate safety factors
(generally ranging from 10-1000) that address extrapolation of effects
from animal studies to humans and other sources of variability. Hazard
quotients are used as a measure of unacceptable exposure to non-
carcinogens that produce toxic endpoints other than cancer. The hazard
quotient is a comparison of a projected dose to a threshold dose above
which an adverse effect is anticipated; the magnitude of an adverse
effect is not always related directly to the magnitude of the hazard
quotient. While a hazard quotient of one for any single constituent is
generally considered acceptable, a quotient of greater than one may be
cause for concern. The Agency's Integrated Risk Information System
(IRIS) database has a more detailed description of reference doses and
hazard quotients (see www.epa.gov/IRIS). Therefore, EPA believes that
it is appropriate, as a general approach, to propose that constituent
concentrations in CAMU-eligible waste that are at 10 times the hazard
quotient or greater would pose risks substantially higher than the
cleanup levels or goals at the site, and would typically define
principal hazardous constituents. EPA requests comment on its proposed
approach to identifying non-carcinogenic principal hazardous
constituents.
f. Waste to Groundwater Pathway. Today's proposed rule also states,
at Sec. 264.552(e)(4)(i)(B), that ``the Regional Administrator will
also designate principal hazardous constituents, where appropriate,
based on risks posed by the potential migration of constituents in
wastes to groundwater, considering such factors as constituent
concentrations, and fate and transport characteristics under site
conditions.'' These site-specific factors would include those that
would potentially affect migration of constituents from waste in a CAMU
into groundwater, such as location of the CAMU, nature of the waste and
constituents (e.g., mobility), how the waste will be managed (e.g., the
type of unit that will be used and potential rates of liquid
percolation into and out of the unit), factors that affect transport of
constituents to groundwater, and beneficial use of groundwater. As a
general principle, in situations where cleanup is being conducted at
least in part because constituents in soil or waste pose a significant
potential threat through the groundwater pathway (e.g., based on fate
and transport modeling to potential receptors), and the cleanup waste
is excavated for disposal in a CAMU, the Regional Administrator would
be expected to strongly consider whether to designate such constituents
as PHCs if they are not otherwise designated.
This approach to designating PHCs based on risks from the waste to
groundwater pathway differs from the approach taken for inhalation and
ingestion in that it does not specify a generally appropriate risk
level that would typically define PHCs and it allows for consideration
of additional
[[Page 51099]]
circumstances that potentially affect exposure. This is because, given
the highly site-specific nature of the waste to groundwater pathway,
EPA believes that it is not appropriate to propose a standard method or
risk level for identifying PHCs based on this pathway. The migration of
constituents from soil or wastes to groundwater depends on a large
number of factors; as a result, the assessment of this pathway tends to
be highly dependent on site-specific factors, and involves more
underlying assumptions, than the assessment of risks from direct
ingestion or inhalation. As a result of this site-specific complexity,
and number of compounded underlying assumptions, standard default
tables designed for cleanup that have with soil cleanup numbers for the
soil to groundwater pathway tend to have very conservative default
concentrations that, if used for assessing potential PHCs under today's
proposed rulemaking, would not effectively ``screen out'' the lowest
risk constituents. These standard tables typically recognize that the
default levels can be overly conservative when applied at individual
sites by also providing methods or options for such numbers to be
developed through site-specific modeling (examples of state tables and
supporting information are included in the docket for today's
rulemaking). Accordingly, EPA is not proposing a general standard risk
level for identifying PHCs that pose a risk from waste to groundwater
out of concern that such an approach would have a high likelihood of
identifying constituents as PHCs that do not ``pose a risk to human
health and the environment substantially higher than the cleanup levels
or goals at the site'' (the PHC standard).
g. Designation of Other PHCs. As described above, EPA is proposing
an approach where the Regional Administrator designates as principal
hazardous constituents those constituents that pose a risk to human
health and the environment substantially higher than the cleanup levels
or goals at the site. EPA has proposed a general approach to
identifying principal hazardous constituents that emphasizes risks of
toxicity and carcinogenicity to humans from direct ingestion or
inhalation, and has highlighted the waste to groundwater pathway as
another basis to site-specifically designate PHCs. In addition, other
factors, such as ecological concerns, potential risks posed by dermal
contact, or constituent mobility might, on a site-specific basis, be
weighed in identifying principal hazardous constituents. For example,
the Regional Administrator could determine that constituents posing
risks less than 10-\3\ are principal hazardous constituents,
such as a highly mobile constituent posing a 10-\4\
potential risk at a site where protection of groundwater is an
especially significant concern. EPA therefore included a sentence in
the proposed rule language, directly after the discussion of these
specific pathways (proposed Sec. 264.552(e)(4)(i)(C), that is intended
to counter any implication that the pathways expressly discussed in the
rule language occupy the universe of risks that the Regional
Administrator should consider in appropriate circumstances. In
addition, even if constituents were not designated as PHCs, treatment
could be required through use of proposed Sec. 264.552(i) (see the
section below titled: Additional Requirements) or as otherwise selected
during the remedy selection process.
EPA requests comment on its proposed approach to addressing the
issue of designating principal hazardous constituents other than those
identified by the general approach.
2. Treatment Standards (Sec. 264.552(e)(4)(iii)).
As provided in Sec. 264.552(a)(1), wastes placed in CAMUs are not
subject to the land disposal restriction (LDR) standards. In today's
notice, EPA is proposing CAMU-specific treatment standards at
Sec. 264.552(e)(4)(iii) for waste determined to contain principal
hazardous constituents (PHCs). The proposed provisions would require
treatment of PHCs in the waste in accordance with either national
minimum treatment standards under proposed Sec. 264.552(e)(4)(iv) or
with alternate standards determined pursuant to proposed
Sec. 264.552(e)(4)(v) that allow for site-specific adjustment of those
minimum treatment levels. The proposed adjustment factors are designed
to ensure that the national minimum standards are not required where
they are inappropriate. The proposed adjustment factors are discussed
in detail in the next section of this preamble.
The treatment standard would apply only to CAMU-eligible wastes
that will be permanently disposed in the CAMU, and does not apply to
wastes placed in CAMUs that are used only for treatment or storage--
that is, CAMUs from which wastes will be removed at closure. Elsewhere
in today's notice, EPA is proposing separate amendments for CAMUs that
are used only for treatment or storage activities. Also, as discussed
later, treatment in permanent CAMUs or in CAMUs used for treatment and/
or storage only, can occur either before or after disposal in the CAMU.
a. National Minimum Treatment Standards. In today's notice, EPA is
proposing to extend the treatment standard established for hazardous
contaminated soil in the LDR Phase IV rule (Sec. 268.49; 63 FR 28556
(May 26, 1998)) to all CAMU-eligible wastes placed in CAMUs for
permanent disposal. Under today's proposal, the Phase IV soil standard
would apply to non-soil hazardous wastes, including sludges and debris
managed in CAMUs, as well as to soils containing hazardous waste. In
addition, for both soil and non-soil CAMU-eligible wastes, treatment
would only be required for PHCs, not for all hazardous constituents
that would be subject to treatment under the LDR requirements if the
wastes were managed in land-based units other than CAMUs.
The proposed treatment standard under Sec. 264.552(e)(4)(iv)
provides that CAMU-eligible waste that the Regional Administrator
determines contains principal hazardous constituents must meet the
following treatment standards (or must meet an adjusted level in
accordance with Sec. 264.552(e)(4)(v), as discussed in the next
section). The proposed standards for metals and non-metals would
require 90% reduction in PHCs in the waste or media, measured in total
constituent concentration for non-metals and for metals when a metal
removal technology is used, or as measured in leachate from the treated
waste, tested according to the Toxicity Characteristic Leaching
Procedure (TCLP), for metals. The rule would require that the 90%
reduction standard in PHCs must be met unless such treatment would
result in a concentration less than 10 times the Universal Treatment
Standard for that constituent; in such cases, treatment to10 times the
Universal Treatment Standard would be required. This standard, as used
in the Phase IV LDR regulations for contaminated soils, is commonly
referred to as ``90% capped by 10 x UTS;'' for details on
implementation of this standard, see the description in the Phase IV
preamble (63 FR 28605). The Universal Treatment Standards, which are
used in the hazardous waste land disposal treatment program, are
identified in Sec. 268.48 Table UTS.
EPA is also proposing, consistent with the Phase IV requirement,
that for waste exhibiting the hazardous characteristic of ignitability,
corrosivity or reactivity, the waste must meet the treatment standard
for metals or non-metals that are PHCs and also be treated to
[[Page 51100]]
eliminate any such hazardous characteristic that is present. EPA is
also proposing that principal hazardous constituents in hazardous
debris would have to be treated in accordance with Sec. 268.45, the
standard for debris containing hazardous waste, or by the proposed
methods or to the proposed levels established for CAMU-eligible wastes
containing metals or non-metals, whichever the Regional Administrator
determines appropriate. These provisions are discussed below in more
detail.
As discussed in the treatment overview section of this preamble,
the Agency's goal in designing these treatment requirements for
principal hazardous constituents is that they should provide a
meaningful level of treatment and be achievable, but should not be so
onerous as to discourage remediation. The Agency also sought to ensure
that it would not require treatment to levels significantly below those
that are necessary to protect human health and the environment. The
Agency is proposing to extend the Phase IV soil standards to CAMU-
eligible wastes, because, in conjunction with the proposed treatment
adjustment factors, they satisfactorily meet these objectives. The
Agency believes that the 90%/10xUTS standard would generally result in
meaningful treatment, since 90% is a substantial level of constituent
reduction or immobilization and ``10xUTS'' is a small increment over
constituent concentrations based on a very stringent ``Best
Demonstrated Available Technology'' (BDAT) standard. The Agency also
believes the proposed standards are achievable by means other than
combustion and will not discourage cleanup (see 63 FR 28556, 28603-4
(May 26, 1998)). The Phase IV soil standards were promulgated in part
because of the disincentive to cleanup posed by technical difficulties
of meeting treatment standards in soils without resorting to
combustion. The Agency demonstrated in the Phase IV rulemaking that the
``90% reduction capped at 10xUTS'' standard is generally achievable for
contaminated soils by methods other than combustion. In general, as
discussed in the Phase IV rule, soil contaminated with hazardous wastes
is more difficult to treat than hazardous wastes alone (63 FR 28556,
28603 (May 26, 1998)). Consequently, EPA believes that the treatment
standards proposed today will typically be achievable for non-soil
CAMU-eligible wastes by methods other than combustion. In situations
where this general finding regarding achievability does not hold, the
Agency is proposing an adjustment factor (discussed more fully below)
allowing the Regional Administrator to impose a different treatment
standard when achieving the proposed minimum treatment standards is
``technically impracticable.''
As discussed above, in determining minimum treatment standards, the
Agency, in addition to other goals, sought to ensure that it would not
require treatment significantly below levels that are necessary to
protect human health and the environment. EPA therefore is proposing a
factor to allow the Regional Administrator to adjust the standard
``where the levels or methods [established using the proposed treatment
standard] would result in concentrations of hazardous constituents that
are significantly above or below cleanup standards applicable to the
site.'' This adjustment factor, along with other adjustment factors
that are not directly tied to technical issues associated with the
proposed minimum standards, are discussed in more detail below.
The Agency seeks comment, in general, on today's proposed minimum
treatment standard for wastes determined to contain PHCs. In
particular, the Agency seeks comment on the conclusion that today's
standard will typically be achievable for non-soils managed in CAMUs.
b. Debris. In today's proposal, EPA is proposing to require the
current LDR hazardous debris treatment standard at Sec. 268.45 for
debris placed in CAMUs for permanent disposal (applied, however, only
to PHCs), and is also proposing, at Sec. 264.552(e)(4)(iv)(E), to also
allow treatment of debris using the standards applicable to other CAMU-
eligible waste, whichever the Regional Administrator deems appropriate.
Debris is defined under Sec. 268.2(g) as solid material exceeding 60 mm
in size that is intended for disposal and that is a manufactured
object, or plant or animal matter, or natural geologic material, that
is otherwise not excluded under the provisions of 268.2(g).
The Agency believes that the LDR debris standard at Sec. 268.45
will be appropriate for most debris waste streams containing PHCs that
are destined for disposal in a CAMU. Unlike the LDR standards for other
wastes, these standards were developed taking into consideration that
debris is frequently a cleanup waste, rather than an as-generated waste
(57 FR 37194, 37222 (August 18, 1992). However, there are site-specific
circumstances under which the Agency believes that it might be
appropriate for the option to be available for such debris to meet the
treatment standard for non-debris waste containing PHCs instead of that
at Sec. 268.45. For example, at some sites, debris is mixed with other
cleanup waste, and separation of the debris is difficult, expensive, or
would require setting up additional treatment processes. It may make
sense for the debris to remain mixed with the other cleanup waste that
will be placed in the CAMU and to go through the treatment process
designed for the other waste, provided that the treatment is capable of
accepting or treating the debris. For example, the remedy chosen for
metal-contaminated soil at a site might require the soil to be
processed in a pug mill prior to its being subject to solidification.
In this example, most of the soil to be treated is composed
predominantly of soil, with a batch of debris consisting of broken
cement pieces contaminated with metals. The soil treatment train might
effectively address the soil and debris components at the same time, as
well as any loads that predominantly contain debris. In the latter case
(loads that predominantly contain debris), if the cement were to be
treated under the Sec. 268.45 debris standards, the likely treatment
would involve separation of the soil from the debris, followed by
physical treatment, such as sandblasting, immobilization or chemical
extraction. In other cases, where debris is not mixed with other
cleanup waste, the debris might be adequately treated if it is included
in the treatment process associated with the non-debris waste. In
another example, contaminated organic matter, such as trees or boards,
might be amenable to shredding and mixing with soils undergoing
biodegradation, and achieve the 90%/10x UTS treatment requirement. In
any case, the decision to use such treatment would be made as part of
the overall remedy decision for the CAMU-eligible waste. The Agency
seeks comment, in general, on today's proposed approach for debris.
c. CAMU-Eligible Wastes Exhibiting the Characteristics of
Ignitability, Corrosivity, or Reactivity. EPA is proposing that any
CAMU-eligible wastes subject to today's treatment requirement for
metals and non-metals (i.e., that contains PHCs) must, if exhibiting
the hazardous characteristics of ignitability, corrosivity or
reactivity, also be treated to eliminate these characteristics. This
approach is an extension of the LDR Phase IV standards for soils where,
in addition to treatment of all underlying hazardous constituents,
characteristic soil must also be treated to remove the characteristic
property. EPA believes
[[Page 51101]]
removal of such characteristics is appropriate in ensuring a protective
CAMU, because not only do these characteristics pose a hazard if there
is direct exposure to the waste, but they can potentially affect the
integrity of the liner and other engineered systems of the unit. The
Agency seeks comment, in general, on today's proposed approach for
wastes that exhibit the hazardous characteristic of ignitability,
corrosivity or reactivity.
d. How is 90% Reduction Assessed? As discussed in the preamble to
the Phase IV rule, EPA would expect that under today's proposed rule,
normal soil characterization techniques and procedures for
representative sampling would be used to determine 90% reduction in
constituent concentrations (63 FR 28556, 28605 (May 26, 1998)). In the
context of the Phase IV rule, the Agency is developing guidance on
establishing and validating the 90% reduction levels for contaminated
soil. EPA intends to issue this guidance shortly as interim guidance,
with an opportunity for public comment. EPA views these issues as
equally pertinent to use of the 90% reduction standard for CAMU wastes,
and intends to recommend the same approaches for CAMU wastes (if the
Agency finalizes the 90%/10xUTS standard) when the guidance is
available. In general, when assessing whether 90% reduction has been
achieved, if the contaminating hazardous waste has a treatment standard
that is measured by total constituent concentrations (i.e., organics
and cyanide), then the 90% reduction would be measured using total
constituent concentrations. If the treatment standard for the
contaminating waste is measured by the TCLP (i.e., metals), then the
90% reduction would also be measured using the TCLP. Exceptions would
be if soils contaminated with metal constituents were treated using a
technology which removed, rather than stabilized metals. In such a
case, the 90% reduction would be measured using total constituent
concentrations.
The Agency seeks comment on today's proposed approach for assessing
constituent reduction after treatment.
e. Use of the TCLP to Assess Treatment. EPA is proposing that the
Toxicity Characteristic Leaching Procedure (TCLP) be used for assessing
whether the 90%/10xUTS standard under Sec. 264.552(e)(4)(iv)(B) and (C)
has been met for metals. The TCLP test was designed to model the
mobility of both organic and inorganic analytes present in liquid,
solid, and multiphasic wastes, and simulates leaching of industrial
solid waste (5%) with co-disposed municipal waste (95%) (see 55 FR
11798 (March 29, 1990)). Based on existing CAMUs and EPA's experience
more generally in its remediation programs, the Agency expects that co-
disposal of hazardous cleanup waste with municipal solid waste will not
generally occur in CAMUs. As a result, EPA believes that the TCLP may
not always be the most appropriate predictor of waste behavior in
CAMUs. In addition, the Agency believes that the circumstances
associated with disposal at a CAMU site will be well defined, and that
tests other than the TCLP might be better suited on a site-specific
basis to model the behavior of waste disposed in a CAMU unit. Of tests
currently available, a plausible alternative may be the Synthetic
Precipitation Leaching Procedure (SPLP; SW-846 Method 1312) which is
identical to TCLP (SW 846 Method 1311) but uses a weak, unbuffered
leaching fluid composed of nitric and sulfuric acids to simulate acid
rain instead of the acetic acid leaching medium used in the TCLP.
Information on the SPLP and other leaching procedures is available in
the docket for today's rule. Other testing approaches may become
available in the future. EPA is seeking comment on the appropriateness
of using tests other than the Toxicity Characteristic Leaching
Procedure (TCLP), including the SPLP, for assessing whether the 90%/
10xUTS standard under Sec. 264.552(e)(4)(iv)(B) and (C) has been met
for metals.
3. Adjustment Factors to the Treatment Standard (Sec. 264.552(e)(4)(v))
EPA is proposing standards at Sec. 264.552(e)(4)(v) (paragraph
``V'' in the following discussion) to provide the Regional
Administrator with the discretion, when certain site-specific
circumstances are present, to reduce or increase the minimum level of
treatment that would be established in Sec. 264.552(e)(4)(iv) (the
national minimum standards in paragraph ``IV''). Under the proposed
rule, any adjustment to treatment made when these circumstances are
present would be required to be protective of human health and the
environment. As discussed above, EPA believes that this approach
strikes a reasonable balance between minimum national standards and
flexibility to account for site and waste conditions that make meeting
the national treatment standard unachievable, unnecessary, or
inappropriate at the site in question.
As discussed in the introduction to the treatment section, in
identifying circumstances where it would be reasonable and appropriate
for the Regional Administrator to consider approving an adjusted
treatment standard, EPA considered the Agency's long-standing
preference for treatment of certain higher risk wastes, its experience
in implementing remedies in the RCRA corrective action program
(including where CAMUs are used), as well as its experience in
implementing the land disposal restrictions program, which sets
treatment standards primarily for as-generated wastes. The proposed
adjustments also reflect EPA's experience in overseeing cleanup
programs, and the recognition that cleanups are complex and varied, and
that there are legitimate circumstances when treatment to the levels
proposed as minimums in today's rule might not be appropriate, as well
as where the minimum standard does not adequately protect human health
and the environment.
In general, in determining adjustment factors, EPA sought to
identify circumstances where it may be appropriate to allow for reduced
treatment based on site circumstances. Of course, increased treatment
may always be required at individual facilities by oversight agencies
where it is considered necessary to protect human health and the
environment. However, some of the circumstances identified in the
adjustment factors that EPA is proposing today could be used to justify
additional treatment, as well as reduced treatment. EPA has explicitly
included the discretionary ability in the proposed regulations to
require more treatment on the basis of certain adjustment factors as a
reminder that additional treatment may be required in some
circumstances.
As noted above, the proposed rule would require that, where the
circumstances outlined in the adjustment factors are present, any
alternative treatment standard imposed must be ``protective of human
health and the environment.'' EPA included this provision as a reminder
that the overall CAMU decision must be protective of human health and
the environment, including where the Regional Administrator imposes an
adjusted level. An example of how this would be implemented is a site
where there are two technologies that are available to treat the CAMU
waste. Technology A, although it would technically meet the proposed
generic standards, presented an unacceptable risk to site workers
(e.g., because of risks of explosion). Technology B, on the other hand,
did not present that risk, but could only achieve a 75% reduction in
PHC concentrations. In this case, because the factors associated with
adjustment factor D (``short-term risks,''
[[Page 51102]]
discussed below) were present, the Regional Administrator could
consider an alternate standard; such standard could only be imposed
where the alternate level (75% reduction) was protective. EPA expects
that the Regional Administrator would undertake this assessment of
protectiveness of the alternate standard as part of the overall remedy
and CAMU decision process. In judging protectiveness of the alternate
standard, the Agency would expect the Regional Administrator to
consider, as appropriate, the characteristics of the waste, including
such factors as concentrations and mobility, how the wastes will be
managed (e.g., the type of unit), and site characteristics, such as
depth to groundwater and factors that affect fate and transport to
potential receptors. Note, as discussed below under adjustment factor
E, that protection offered by the engineering of the unit as the
initial basis for considering an alternate standard is limited to a
specific set of circumstances.
EPA is proposing the following five treatment adjustment factors at
Sec. 264.552(e)(4)(v), which can be used singly or in combination
(descriptions of these proposed factors and proposed regulatory
citations are given in the following discussion).
(A) Technical impracticability
(B) Consistency with site cleanup-up levels
(C) Community views
(D) Short-term risks
(E) Protection offered by engineering controls under specified
circumstances:
(E)(1): Treatment standard is ``substantially met'' and the PHCs
are of very low mobility
(E)(2): Treatment standard is not ``substantially met'' and cost-
effective treatment used, if reasonably available, and:
(E)(2)(i): Subtitle C liner and leachate collection system; or
(E)(2)(ii): Wastes are treated and PHCs are of very low mobility;
or
(E)(2)(iii): Wastes are not treated and PHCs are of very low
mobility and special liner requirements are met.
Note that the proposed treatment adjustment provision in paragraph
V provides that the Regional Administrator may adjust the treatment
``level or method'' in paragraph IV. In cases where the treatment under
paragraph IV is to the standard of 90%, capped at 10xUTS, the Regional
Administrator would be adjusting the ``level;'' in cases where the
treatment is to remove a hazardous characteristic, or is a method for
debris obtained from Sec. 268.45, the Regional Administrator would be
adjusting the ``method.''
a. Adjustment Factor A. Technical Impracticability
(264.552(e)(4)(v)(A)). EPA is proposing at
Sec. 264.552(e)(4)(iii)(B)(l) that the Regional Administrator may,
where appropriate, adjust treatment to a lower, but still protective,
level based on the technical impracticability of treatment in
accordance with the minimum standard in paragraph IV. In some cases, a
facility owner or operator may find that it is not technically
practicable to achieve specified treatment levels, or to conduct
meaningful treatment at all, because of factors relating to
technologies or cost. Some of the circumstances when these factors
would be appropriately considered as reasons for imposing an alternate
standard have been addressed in several contexts: in the land disposal
restrictions program for as-generated wastes, in the form of variances,
and in the remedial context, as technical impracticability
determinations or waivers. Factors of cost and technical capability are
also routinely discussed in the remedy decision process under Federal
and State cleanup programs in cases where regulatory treatment levels
are not required, but program implementors are seeking remedies that
provide the most appropriate balance among remedy selection factors.
Today's proposed adjustment factors borrow from these established
concepts and practices (primary references are cited below).
It is EPA's intention that proposed adjustment factor A would
include the concepts contained in the current ``unachievable'' LDR
variance, at Sec. 268.44(h)(1), and the ``technically inappropriate''
variance, at Sec. 268.44(h)(2)(i). The variance at Sec. 268.44(h)(1)
provides that the Administrator may approve a site-specific variance
from an applicable treatment standard if it is not physically possible
to treat the waste to the level specified in the treatment standard, or
by the method specified as the treatment standard (preamble discussion
of this variance is at 53 FR 31138, 31199 (August 17, 1988)). EPA
believes the underlying concept contained in this variance--that it is
appropriate to obtain a variance when it not physically possible to
meet a specified treatment level--is equally appropriate for use in
adjusting from today's proposed CAMU treatment standards. In
particular, attempting to require compliance with a standard that is
impossible to meet would likely result in less permanent containment
remedies that would not involve treatment.
The variance at Sec. 268.44(h)(2)(i), commonly referred to as the
``technically inappropriate'' variance, provides that the Administrator
may approve a site-specific variance from an applicable treatment
standard if it is inappropriate to require the waste to be treated to
the level specified in the treatment standard or by the method
specified as the treatment standard, even though such treatment is
technically possible. One example of a technically inappropriate
standard would be where it would result in ``combustion of large
amounts of mildly contaminated environmental media where the treatment
standard is not based on combustion of such media.'' The technically
inappropriate variance was promulgated August 17, 1988 (53 FR 31138,
31199 (August 17, 1988)) and is discussed further in the December 5,
1997 final rule issuing clarifying amendments to this variance (62 FR
64504 (December 5, 1997)). EPA believes the underlying concept
contained in this variance, that alternate treatment should be
considered when a prescribed treatment level or method is technically
inappropriate, is also equally appropriate for use in adjusting from
today's proposed CAMU treatment standards. Combustion of large volumes
of contaminated soil remains the primary example that EPA has in mind
for the use of this variance, although, as discussed in the Phase IV
LDR rule (63 FR 28556, 28603 (May 26, 1998)), EPA believes that the
90%/10xUTS standard, which is also applicable under today's proposal,
is achievable at most sites with non-combustion technologies. This fact
will likely reduce the number of circumstances where use of this
reasoning for imposing an alternate standard could be considered.
Regarding both of the above LDR variances, it is important to note that
EPA intends only to import the general concepts underlying the
variances, not the mechanics (i.e., specific demonstration and other
procedural requirements), into this adjustment factor. It is also
important to note that the CAMU designation process provides for
oversight and public involvement in the assessment of potential
adjustment factors.
EPA also intends that the proposed technically impracticable
adjustment factor would include the general concepts of ``technically
infeasible'' and ``inordinately costly'' that are used in the remedial
context. As explained in the Superfund National Contingency Plan (NCP)
preamble, technical impracticability in the Superfund context should be
based on
[[Page 51103]]
``engineering feasibility and reliability, with cost generally not a
major factor unless compliance would be inordinately costly'' (55 FR
8666, 8748 (March 8, 1990)). These concepts, which are also relevant to
the selection of remedies under the RCRA corrective action program, are
described further in the Corrective Action for Releases from Solid
Waste Management Units at Hazardous Waste Management Facilities,
Advance Notice of Proposed Rulemaking (61 FR 19432 (May 1, 1996)), and
in the ``Role of Cost in the Superfund Remedy Selection Process''
(Publication 9200.3-23FS, September 1996).
EPA seeks comment on its proposed approach to adjusting treatment
based on the technical impracticability of treatment in accordance with
the minimum requirements in paragraph IV.
b. Adjustment Factor B. Consistency with Site Cleanup Levels
(Sec. 264.552(e)(4)(v)(B)). EPA is proposing at
Sec. 264.552(e)(4)(v)(B) that the Regional Administrator may adjust
treatment to a higher or lower level in instances where the levels or
methods in paragraph IV would result in concentrations of hazardous
constituents that are significantly above or below cleanup standards
applicable to the site (established either site-specifically or
promulgated under state or federal law). As described below, this
comparison to cleanup standards would assume that there is direct
exposure of a receptor to the principal hazardous constituents in the
waste.
Typically, EPA or state regulators establish cleanup levels at
sites where a CAMU is under consideration. As discussed above, cleanup
levels incorporate various assumptions regarding exposure, and may be
based on residential, industrial or other uses. The objective in
setting cleanup levels is to ensure protection of human health and the
environment. In some cases, treatment of PHCs in the waste at these
sites to below the national minimum standard of 90% capped at 10xUTS
could result in concentration levels significantly below the cleanup
level. In such cases, the treatment required in paragraph IV would be
more than is necessary to ensure protection of human health and the
environment. Using proposed adjustment factor B, the Regional
Administrator could adjust the PHC treatment level to a level that does
not implicate the situation addressed by the adjustment factor (i.e.,
it is not significantly below the cleanup level or goal at the site).
This approach addresses similar concerns to those addressed by the
current ``site-specific minimize threat'' LDR variance (Section
268.44(h)(3)), which allows for a variance from the LDR treatment
requirement on the basis of a comparison to site-specific health-based
levels in certain circumstances (see 63 FR 28556, 28606-28608 (May 26,
1998)).
As discussed above, the Agency also believes it is important to
provide in the adjustment factors for cases where the concentration of
constituents that result from application of the generic minimum
standards remains significantly above site standards; in such cases,
the treatment levels that result from the application of the generic
levels in paragraph IV might not be sufficiently protective. For
example, it may be appropriate to adjust the treatment level under this
factor when the reasonably anticipated land use at the facility has
been determined to be residential and the initial concentrations are
sufficiently high, such that, when they are reduced by 90%, they remain
at levels that are significantly above the site cleanup levels.
As an implementation matter, EPA intends that the approach in using
this adjustment factor would be to compare levels that would be
attained through treatment to the generic standards to site cleanup
levels that would customarily be established for the site. EPA expects
that when applying this adjustment factor, comparisons would be to site
levels (either established site-specifically or promulgated under state
or federal law) that assume there is direct exposure of a receptor to
the constituents. As explained above, site-specific cleanup standards
are typically derived after consideration of factors that influence the
risk potential at the site, including fate and transport considerations
(e.g., in setting levels in soils that are protective of groundwater),
distinctions between residential, industrial and other types of land
use, and location of potential receptors. In the use of this adjustment
factor, however, protection offered by the engineering of the CAMU
itself would not be included in the calculation of adjusted treatment
standards. In other words, in determining whether imposition of the
generic standards would result in concentrations significantly above or
below cleanup standards, the Regional Administrator will compare the
risks associated with the site levels or goals based on direct
exposure, to the risks expected under the same direct exposure scenario
for levels that would be attained under the generic standards. This
direct exposure assumption is similar to that used in the current
``site-specific minimize threat'' LDR variance (Section 268.44(h)(3)).
Because the Agency believes cleanup programs routinely establish site
goals based on direct exposure scenarios (without consideration of the
engineered unit), the Agency did not specifically make the use of a
direct exposure scenario a condition in the adjustment factor B
language. The Agency requests comment on the accuracy of its beliefs as
to how cleanup programs set site goals or levels and whether there is
enough uncertainty to warrant an express requirement for use of direct
exposure assumptions in the regulations.
c. Adjustment Factor C. Community Views (Sec. 264.552(e)(4)(v)(C)).
EPA is proposing at Sec. 264.552(e)(4)(v)(C) that the Regional
Administrator may adjust treatment to a higher or lower level based on
the views of the affected local community on the treatment levels or
methods to be potentially employed to meet the generic treatment
standard in paragraph IV. At some sites, communities express concerns
regarding such factors as long-term reliability of remedies, worker
safety associated with technologies, cross-media transfer of
pollutants, and interference with their day-to-day lives (e.g., from
traffic, odors or noisy remedies). EPA anticipates that such community
concerns could, in many circumstances, appropriately provide the
impetus to either reduce or increase treatment. EPA believes that,
consistent with the remedy selection process for RCRA corrective action
and for CAMU determinations, the public should have the opportunity to
participate through the notice and comment process in the selection of
the treatment or remedy, which includes selection of treatment levels.
The public participation provisions of the CAMU rule, as they would
be amended under today's proposal (discussed in detail below) provide
for public input on all aspects of the CAMU decision for all CAMUs. EPA
believes it is reasonable to include public views as an explicit
criterion to justify adjustment from the treatment requirement where
appropriate, because, in the Agency's experience, treatment has been an
area of specific concern to the public. A notable example is local
concerns regarding the use of combustion technologies.
Under today's proposed amendments, the community would be given the
opportunity to weigh in on the treatment decision as part of the notice
and comment process when the CAMU is proposed, prior to its final
designation. In addition, at some sites, prior to proposal of the CAMU,
owners
[[Page 51104]]
or operators or the oversight agency may be aware of community concerns
associated with cleanup sites and would take these into account in
developing CAMU proposals. EPA seeks comment on its proposed approach
to adjusting treatment based on views expressed by the community on the
treatment levels or methods to be potentially employed to meet the
proposed generic treatment standard.
d. Adjustment Factor D, Short-Term Risks
(Sec. 264.552(e)(4)(v)(D)). EPA is proposing at
Sec. 264.552(e)(4)(v)(D) that the Regional Administrator may adjust
treatment to a higher or lower level based on the short-term risks
presented by the on-site treatment method necessary to achieve the
levels or treatment methods in the generic treatment standard in
paragraph IV. Certain technologies are capable of achieving treatment
levels but in doing so, may present unacceptable risks in the short
term to workers or the public. In other cases, the analysis necessary
to determine if the treatment standard has been met might present
unacceptable hazards, such as for soils containing explosive materials.
Short-term risks associated with remedies and proposed treatment
technologies are routinely considered during the remedy selection
process under the RCRA corrective action program and may form the basis
for determining that certain methods of treatment are not appropriate
(Corrective Action for Solid Waste Management Units (SWMUs) at
Hazardous Waste Management Facilities, Proposed Rule, 55 FR 30798,
30824 (July 27, 1990)). Today's proposed adjustment factor would allow
for the same considerations in the context of adjusting treatment
levels for principal hazardous constituents in CAMU-eligible wastes.
EPA seeks comment on its proposed approach to adjusting treatment based
on the short-term risks presented by the on-site treatment method
necessary to achieve the levels or treatment methods in the generic
treatment standard.
e. Adjustment Factor E. Engineering Design and Controls
(Sec. 264.552(e)(4)(v)(E)). EPA is proposing at
Sec. 264.552(e)(4)(v)(E) that the Regional Administrator may, under
certain defined circumstances, adjust treatment of CAMU-eligible waste
to an alternative level, or in some cases, to not treat at all, based
on the long-term protection offered by the engineering design of the
CAMU and related engineering controls. This adjustment factor defines
the circumstances, taken in the context of the facility setting, under
which the Regional Administrator could consider reducing the treatment
standard based on the features of CAMU design and related controls.
As described above, EPA's approach to treatment in today's proposal
reflects uncertainties associated with long-term reliability of
containment units. The most difficult issue discussed during
discussions with stakeholders was how to identify the circumstances
under which adjustments to treatment could be justified based on the
design of the CAMU alone (i.e., without other extenuating
circumstances, as provided for in the other adjustment factors). EPA
examined the Agency's past CAMU decisions, and Agency experience in the
land disposal restrictions (LDR) program and in overseeing the RCRA
corrective action program, and, based on this evaluation, is proposing
an adjustment factor which limits the situations where the Regional
Administrator may approve a reduced treatment standard, based on the
logic that the engineered design makes the generic treatment standard
inappropriate. EPA seeks comment on the appropriateness of these
factors and whether there are other circumstances where design of the
unit would warrant adjustment, on a site-specific basis, from the
generic treatment standard.
Today's proposal limits the consideration of the design of a unit
to justify a change from the generic treatment standard to two
scenarios: first, under factor E(1), situations where the generic
treatment standard has been ``substantially met;'' second, under factor
E(2), situations where the generic treatment standard has not been
``substantially met,'' but cost-effective treatment has been used,
unless, after review of appropriate treatment technologies, cost-
effective treatment is not reasonably available. In addition, for
adjustment factor E to be used, PHCs in the wastes generally must be of
``very low mobility,'' which, as is explained more fully below, EPA
believes is appropriate, because this adjustment factor relies on the
ability of engineering controls to contain waste. The exception to the
restriction to ``very low mobility'' constituents is adjustment
provision E(2)(i), where the wastes are to be disposed in a unit that
provides superior protection (i.e., meets the Subtitle C liner and
leachate collection requirements for new Subtitle C units). Finally,
factor E(2)(iii) allows protection offered by the engineering design of
the unit to justify a decision to require no treatment at all only for
very low mobility wastes where there is no cost-effective treatment
reasonably available; under these circumstances, proposed factor
E(2)(iii) includes specified unit design conditions or equivalent
protection to ensure a minimum level of protection for long-term
containment of the wastes.
The exact language in proposed adjustment factor E is repeated here
to assist the reader in following the discussion of each provision:
Sec. 264.552(e)(4)(v)(E) the long-term protection offered by the
engineering design of the CAMU and related engineering controls:
(1) where the treatment standards in 264.552(e)(4)(iv) are
substantially met and the principal hazardous constituents in the waste
or residuals are of very low mobility; or
(2) where cost-effective treatment has been used, or where, after
review of appropriate treatment technologies, the Regional
Administrator determines that such treatment is not reasonably
available, and:
(i) The CAMU meets the Subtitle C liner and leachate collection
requirements for new land disposal units at Sec. 264.301(c) and (d), or
(ii) The principal hazardous constituents in the treated wastes are
of very low mobility, or,
(iii) Where wastes have not been treated and the principal
hazardous constituents in the wastes are of very low mobility, and
either the CAMU meets the liner standards for new, replacement, or
laterally expanded CAMUs in paragraph (e)(3)(i) and (ii) of this
section, or the CAMU provides substantially equivalent protection.
In addition, to assist the reader with following this adjustment
factor, the following chart describes the potential availability of
proposed adjustment factor 264.552(e)(4)(v)(E):
----------------------------------------------------------------------------------------------------------------
If And if And if Then
----------------------------------------------------------------------------------------------------------------
Treatment standards in Sec. Cost-effective RA has not determined You may not consider
264.552(e)(4)(iv) are not treatment has not been that cost-effective adjusting based upon
substantially met. used. treatment is not the ``long term
reasonably available. protection offered by
the engineering design
of the CAMU and
related controls.''
[[Page 51105]]
Treatment standards in Sec. The PHCs in the waste ....................... You may consider
264.552(e)(4)(iv) are substantially are of very low adjusting based upon
met. mobility. the ``long term
protection offered by
the engineering design
of the CAMU and
related controls.''
Sec. 264.552(e)(4)(v)(
E)(1)
Cost-effective treatment has been The CAMU meets the ....................... You may consider
used. Subtitle C liner and adjusting based upon
leachate collection the ``long term
requirements for new protection offered by
land disposal units at the engineering design
Sec. 264.301(c) and of the CAMU and
(d). related controls.''
Sec. 264.552(e)(4)(v)(
E)(2)(i)
Cost effective treatment has been The PHCs in the waste ....................... You may consider
used. are of very low adjusting based upon
mobility. the ``long term
protection offered by
the engineering design
of the CAMU and
related controls.''
Sec. 264.552(e)(4)(v)(
E)(2)(ii)
The RA determines that cost-effective The CAMU meets the ....................... You may consider
treatment is not reasonably Subtitle C liner and adjusting based upon
available. leachate collection the ``long term
requirements for new protection offered by
land disposal units at the engineering design
Sec. 264.301(c) and of the CAMU and
(d). related controls.''
Sec. 264.552(e)(4)(v)(
E)(2)(i)
RA determines that cost-effective PHCs in the waste are Either the CAMU meets You may consider
treatment is not reasonably of very low mobility. or exceeds the liner adjusting based upon
available. standards for new, the ``long term
replacement, or protection offered by
laterally expanded the engineering design
CAMUs in paragraph of the CAMU and
(e)(3)(i) and (ii) of related controls.''
this section, or the
CAMU provides
substantially
equivalent or greater
protection.
Sec. 264.552(e)(4)(v)(
E)(2)(iii).
----------------------------------------------------------------------------------------------------------------
(1) Assessment of Long-Term Protection Offered by the Unit. When
the waste and site circumstances provided for in adjustment factor E
are present, the Regional Administrator would have the discretion to
adjust treatment based on the long-term protection offered by the
engineering design of the CAMU and related engineering controls when
such adjustment is protective of human health and the environment
(Sec. 264.552(e)(4)(v)). In general terms, such an assessment of long-
term protection would focus on the protectiveness offered by the unit
and any associated systems over the long-term, considering such
appropriate factors as unit reliability, characteristics of the waste
and constituents (e.g, mobility, concentrations, associated matrix),
and the geologic setting of the CAMU unit. This assessment would be
made in the context of the cleanup standards specific to the site. EPA
intends that the phrase ``engineering design of the CAMU and related
engineering controls'' would include the design of the unit itself
(e.g., presence and type of liner, leachate collection, cap), as well
as any associated engineering systems, such as slurry walls, systems
that produce inward hydraulic gradients in the vicinity of the unit,
French drains, associated pump and treat systems and groundwater
monitoring systems.
Along with looking at the unit that the waste will be disposed in,
any assessment of long-term protection in the context of adjustment
factor E (i.e., in the Regional Administrator's determination that an
alternate standard is protective of human health and the environment
under Sec. 264.552(e)(4)(v)) would include consideration of whether the
waste and constituents pose any potential for unacceptable releases
over the long-term. This consideration would include examination of
such factors as the concentration and mobility of the PHC constituents
in the disposal matrix and site environment, and how the wastes might
be affected by potential liquid infiltration into the unit.
f. Adjustment Factor E(1). Treatment That is Substantially Met
(Sec. 264.552(e)(4)(v)(E)(1)). With this provision, EPA is proposing
that the Regional Administrator may adjust treatment to an alternative
level based on the long-term protection offered by the engineering
design of the CAMU and related engineering controls where the generic
treatment standards are ``substantially met'' and ``the principal
hazardous constituents in the hazardous waste or residuals are of very
low mobility.'' EPA included this proposed provision to address
concerns raised by stakeholders that, in certain situations where the
generic minimum requirements will be substantially met, it might not
make sense to impose strict adherence to the minimum standard given the
level of protection offered by ``substantial'' compliance with the
treatment standards and the added protection offered by a specific CAMU
design. EPA's discusses the term ``substantially met'' in more detail
below.
(1) Very Low Mobility. EPA believes that consideration of
adjustment from the generic standard in paragraph IV where the
standards have been ``substantially met'' may be appropriate only in
cases where the principal hazardous constituents (PHCs) or residuals
are of ``very low mobility.'' The general concept embraced by ``very
low mobility'' is that, although PHCs of very low mobility may present
significant risks upon direct exposure, such constituents have very
little ability to migrate from the waste to receptors through media
such as air, soil or water at levels that are of concern to human
health and the environment. Under these circumstances, even if there is
an unanticipated failure of the unit, the constituents that have not
been as
[[Page 51106]]
aggressively treated will be those that have the least potential to
migrate to a receptor.
The ability of constituents to migrate is a function of the
physical and chemical properties of the constituents themselves, and of
site-specific conditions, including the nature of the waste that the
constituents are in, conditions associated with the unit itself and of
the media surrounding the CAMU unit. As a result, determination that a
constituent is of ``very low mobility'' is a site-specific
determination.
Given the site-specific nature and the complexity of determining
whether constituents are of very low mobility, the Agency does not
believe that it is appropriate to propose a quantitative approach for
designating a constituent as being of ``very low mobility.'' However,
the following examples serve to further illustrate the general concept
embodied in this proposed adjustment factor. One example of immobile
constituents are certain metals, such as lead, that have a strong
affinity for organic matter and can, under proper site conditions
(which are typically strongly affected by pH conditions), demonstrate
very low mobility. Another common example is polyaromatic hydrocarbons
(PAHs), such as benzo(a)anthracene and benzo(a)pyrene. PAHs can
reliably be considered non-mobile constituents (with the notable
exception of when the PAHs are concentrated to the extent that they are
in a free-phase--i.e., as non-aqueous phase liquids (NAPLs)--or when
they are dissolved in a mobile substrate, such as oil). PAHs can be
present as a direct result of historical industrial processes, or may
be found as a residuum of formerly more complex mixtures of organic
contamination that have been exposed to breakdown processes in the
environment, or as a result of applying biological treatment
technologies to the wastes. At some sites, such as petroleum
refineries, where PAHs can be found in high concentrations in old
refinery wastes and contaminated soils, PAHs tend not to be found in
significant concentrations in groundwater, because of their low
solubility and tendency to adhere to organic matter in soils and
sludges.
(2) Substantially Met. EPA interprets ``substantially met'' as
follows, for the purposes of this proposed adjustment factor. Some
treatment technologies will ``substantially,'' but not precisely,
attain 10 x UTS or 90% treatment of all principal hazardous
constituents in the waste. For example, the most appropriate technology
at a site for wastes containing organic contaminants that have low
migration potential (e.g., certain polyaromatic hydrocarbons) might be
biodegradation. This technology might come close to, but not achieve,
10 x UTS for the constituents with low migration potential. Given that
the contaminants have a low migration potential, the Regional
Administrator could assess site-specific factors that affect mobility,
including the geologic setting, precipitation and evaporation, and make
the determination that an alternate treatment standard based on this
technology would provide long-term protection of human health and the
environment. In another example, the treatment standards would be
substantially met where the overwhelming majority of constituents have
been treated to meet the treatment standards, but a very few immobile
constituents do not meet the standards.
g. Adjustment Factor E(2). Use of Cost-effective Treatment
(Sec. 264.552(e)(4)(v)(E)(2)). EPA is proposing at
Sec. 264.552(e)(4)(v)(E)(2) that the Regional Administrator may adjust
treatment to an alternate level based on the long-term protection
offered by the engineering design of the CAMU and related engineering
controls ``where cost-effective treatment has been used, or where,
after review of appropriate treatment technologies, the Regional
Administrator determines that such treatment is not reasonably
available.'' This proposed adjustment factor, when used to make an
adjustment from the generic treatment standard based on protection
offered by the unit, would require that cost-effective treatment be
used, if it is reasonably available. This approach addresses the
Agency's concerns regarding the uncertainties of long-term containment.
Adjustment factor E(2) contains three provisions that could
potentially be used (E(2)(i), (ii), and (iii)), depending on whether
cost-effective treatment is reasonably available. Adjustment factor
E(2)(i) would be available where the CAMU meets the Subtitle C liner
and leachate collection requirements for new land disposal units at
Sec. 264.552(e)(3). This factor would be available in cases where cost-
effective treatment is used and where the Regional Administrator
determines cost-effective treatment in not reasonably available.
Adjustment factor E(2)(ii) would be available where cost-effective
treatment is used, and the principal hazardous constituents in the
treated waste are of very low mobility. Adjustment factor E(2)(iii)
would be available where cost-effective treatment is not reasonably
available, the PHCs in the untreated wastes are of very low mobility,
and certain specified liner requirements have been met.
(1) What is ``Cost-Effective Treatment?'' The concept of ``cost-
effectiveness,'' as used in this proposed adjustment factor, would mean
that additional cost from potentially increased treatment should
provide a proportionate increase in protection by virtue of that
increased treatment. Under the proposed approach, EPA would intend that
any assessment of cost-effectiveness be made based on a reasonable
review of the costs and the effectiveness of the treatment and on best
professional judgement of the oversight agency. Of course, the Agency
does not intend that cost considerations would allow an unprotective
CAMU to be approved.\12\
---------------------------------------------------------------------------
\12\ As discussed in the 1996 corrective action ANPR, cost-
effectiveness is considered as a factor during corrective action
remedy selection to choose between alternative remedial options that
meet the protectiveness criteria for a remedy at the site. Used in
this context, cost-effectiveness does not equate to ``less
expensive,'' but is one of several factors used to guide remedy
selection (61 FR 19432, 19449 (May 1, 1996)).
---------------------------------------------------------------------------
(2) What Does a Review of Appropriate Treatment Technologies
Constitute? EPA is proposing under adjustment factor
Sec. 264.552(e)(4)(v)(E)(2), that any determination that cost-effective
treatment is not available would be made after a review of appropriate
treatment technologies. To meet this criterion, EPA would expect that
the level of effort would be similar to that typically used in the
remedy selection process when the oversight agency requires
identification of treatment technologies that are able to meet
specified levels as part of the remedy. The level of effort involved in
this review would be waste- and site-specific, depending on such
factors as the waste types, constituents present, and waste volumes. As
in all CAMU decisions, the review of appropriate treatment technologies
should be documented.
(3) What Does it Mean That Cost-Effective Treatment is ``Not
Reasonably Available?'' Today's proposed treatment adjustment factor
Sec. 264.552(e)(4)(v)(E)(2) contains the presumption that treatment
will be employed if it is reasonably available and cost-effective. In
theory, an individual treatment technology may appear to be cost-
effective and capable of achieving a treatment standard. However, if
such a technology is not ``reasonably available,'' the Agency does not
believe it would be appropriate to require the use of it. An assessment
of whether potential treatment
[[Page 51107]]
technologies are reasonably available for use is commonly conducted by
cleanup programs as remedial alternatives are considered. EPA intends
to use the general considerations used in the remedy selection process,
as appropriate, in considering whether treatment technologies are
``reasonably available'' under this adjustment factor. These
considerations include availability and timing of goods and services,
technical feasibility and reliability, and administrative feasibility.
(4) Adjustment Factor E(2)(i). Subtitle C Standards
(Sec. 264.552(e)(4)(v)(E)(2)(i)). This proposed provision, at
Sec. 264.552(e)(4)(v)(E)(2)(i), would allow the Regional Administrator
to consider adjusting treatment in cases where cost-effective treatment
will be used, if it is reasonably available, and the CAMU is
constructed to meet the liner and leachate collection requirements for
new, replacement, or laterally expanded Subtitle C units at
Sec. 264.301(c) and (d).
This provision of adjustment factor E is not limited to PHCs of
very low mobility. When PHCs are not of very low mobility, and
therefore have a greater chance of reaching a receptor if containment
fails, EPA believes it is appropriate to propose to require as a
minimum these Subtitle C liner and leachate collection standards,
because they offer a high degree of protection. When Subtitle C
compliant designs are used, EPA would generally expect such units to
provide adequate long-term protection. As discussed above, EPA is also
proposing performance criteria for caps, including the requirement that
the permeability of the cap be less than or equal to that of the liner
system, that would further add to the protectiveness provided by units
that meet the Subtitle C liner and leachate collection standards. In
addition, Subtitle C liner and leachate collection system designs are
well established from their use in the as-generated hazardous waste
program. EPA believes that they should therefore be readily
implementable for CAMUs, when their use is warranted.
As a general matter, EPA does not expect that CAMUs would typically
be constructed to meet the Subtitle C requirements for new units;
however, units meeting Subtitle C design standards could be appropriate
for CAMUs under site-specific circumstances, particularly where the
treatment requirements were reduced. To date, several existing CAMUs
have incorporated such design standards (see CAMU Site Background
Document, included in the docket for today's rule).
(5) Adjustment Factor E(2)(ii). Cost Effective Treatment Reasonably
Available (Sec. 264.552(e)(4)(v)(E)(2)(ii)). This proposed provision,
at Sec. 264.552(e)(4)(v)(E)(2)(ii)), would allow the Regional
Administrator to consider adjusting treatment based on unit design
where cost-effective treatment will be used and the PHCs in the waste
are of very low mobility. EPA provided for this adjustment factor to
address situations where cost-effective treatment is available for the
low mobility constituents, but the treatment will not meet or
substantially meet the generic treatment standards in paragraph IV (and
thus could not potentially use proposed adjustment factor E(1)).
EPA's justification for including the limitation to very low
mobility constituents in adjustment factor E(2)(ii) is consistent with
that described above for adjustment factor E(1), where the treatment
standards for very low mobility constituents are substantially met. The
Agency believes that it is reasonable for the Regional Administrator to
make such an adjustment where it can be found that the containment
system offers adequate protection, with the knowledge that, if there is
unexpected containment failure, the constituents have been treated to a
meaningful extent (although not to the generic minimum standards) and
are unlikely to reach a receptor because they are of very low mobility.
(6). Adjustment Factor E(2)(iii). Cost-Effective Treatment is Not
Reasonably Available (Sec. 264.552(e)(4)(v)(E)(2)(iii)). This
adjustment factor, proposed at Sec. 264.552(e)(4)(v)(E)(2)(iii), would
allow the Regional Administrator to potentially adjust treatment based
on unit design in cases where cost-effective treatment is not
reasonably available and the principal hazardous constituents in the
waste are of very low mobility. In this case, the CAMU would be
required to, at a minimum, be designed in accordance with the liner
standards proposed today for new, replacement, or laterally expanded
CAMUs in Sec. 264.552(e)(3) (that is, the modified Subtitle D
standards), or provide equivalent protection.
As discussed above, EPA is proposing that when PHCs in the waste
are of ``very low mobility,'' it may be appropriate, under several
circumstances, for the Regional Administrator to consider adjustment to
the treatment standards for CAMU wastes based on unit design. In the
two cases discussed above addressing low mobility PHCs (i.e., either
where the generic minimum treatment standards have been ``substantially
met,'' under adjustment factor E(1) or where cost-effective treatment
has been used, under adjustment factor E(2)(ii), EPA did not choose to
add further conditions on the CAMU unit itself. Additional conditions
are appropriate under E(2)(iii), however, because there would be no
treatment of PHCs. Although the very low mobility constituents are
unlikely to reach receptors, the risks to such receptors if there were
such exposure are greater because there has been no treatment. The
Agency therefore believes it would be appropriate to require an
additional measure of assurance regarding containment. The Agency
selected the standards proposed today for new CAMUs, or equivalent,
because EPA believes they would offer that greater assurance without
recreating disincentives to cleanup that the CAMU rule is meant to
address.
(7). Liner Standards for Adjustment E(2)(iii). The proposed minimum
liner requirement in adjustment factor Sec. 264.552(e)(4)(v)(E)(2)(iii)
can be met in two ways. The first is to meet the minimum liner standard
proposed today at Sec. 264.552(e)(3) for CAMU units that are new,
replacement, or lateral expansion units. The Sec. 264.552(e)(3)
standard has two provisions--a detailed composite liner standard
(proposed Sec. 264.552(e)(3)(i), based on the Subtitle D standards for
municipal solid waste landfills), and a provision with two options for
alternate designs (proposed Sec. 264.552(e)(3)(ii)(A) and (B)). These
provisions are described above in detail in the section titled Liner
Standard.
The second way to meet the minimum liner requirement under proposed
adjustment factor E(2)(iii), is to meet an alternate standard, provided
that ``the CAMU provides substantially equivalent protection'' to the
proposed liner standards at Sec. 264.552(e)(3). EPA intends that this
alternate standard would allow for the consideration of the entire CAMU
unit as well as location features in making a determination that the
CAMU provides ``substantially equivalent protection.'' For example, if
an existing unit without a liner were to be potentially used for a CAMU
under the conditions of this adjustment factor, the Regional
Administrator could examine the protectiveness offered by the CAMU
components (e.g., cap, groundwater monitoring, ancillary engineering
features), as well as mobility of constituents in the waste within the
unit (which will be very low), and geology associated with the unit, in
assessing equivalent protection. In another example, soils contaminated
with PAHs, with no cost-effective method of treatment reasonably
available, are proposed to be disposed in an existing unit with a liner
that does not meet the Sec. 264.552(e)(3) standards. Given the very low
mobility of these
[[Page 51108]]
constituents and the calculated infiltration rate of rainwater into the
unit, it might be calculated that only very low concentrations of
constituents would potentially migrate from the unit, that any
migration would be for a very short distance, and that the CAMU would
provide substantially equivalent protection to the liner standard under
Sec. 264.552(e)(3).
4. Request for Comment on Treatment Standard Approach
The Agency requests comment on the above approach to treatment and
adjustment factors in general. As described above, the adjustment
factors were designed to identify circumstances where requiring
compliance with the generic minimum standards might be inappropriate.
Has the Agency captured the appropriate range of circumstances? Do the
proposed factors appear flexible enough to address all such
circumstances?
Also, in crafting these factors, the Agency looked for guidance to
existing exceptions in the Agency's Subtitle C regulations that are
specific to cleanup wastes. In particular, the Agency examined the
cleanup-related treatment variance provisions in the LDR program and
incorporated some of the concepts there into today's proposed
adjustment factors (see discussion above). The Agency did not, however,
specifically incorporate the ``environmentally inappropriate'' variance
at Sec. 268.44(h)(2)(ii). This variance is meant to provide relief in
circumstances where imposition of an LDR standard would likely
discourage aggressive remediation. The Agency did not include a
comparable adjustment factor in today's proposal because the proposed
adjustment factors are intended to more specifically identify
circumstances that might, among other things, create that same
disincentive. The Agency requests comment on this conclusion.
5. Treatment Within a Reasonable Time (Sec. 264.552(e)(4)(vi))
In today's proposal, CAMU wastes can be treated prior to or after
placement in the CAMU. EPA is proposing, at Sec. 264.552(e)(4)(vi),
that treatment must be completed prior to, or within a ``reasonable
time'' after placement of the waste in the CAMU. During discussions
with CAMU stakeholders, the concern was raised that because the 1993
CAMU rule does not set a standard for the duration of treatment, a
remedy could in effect become sham treatment that might go on for many
years with little prospect of success. A primary example of post-
disposal treatment is biotreatment, which EPA expects would typically
achieve its goals within a single season, or at most, within a few
seasons. Under today's proposal, EPA would expect treatment to be
completed within months or years, not decades, except in very unusual
circumstances. Interpretations of ``reasonable time'' would be made
site-specifically in the context of the remedy selected for the waste.
The Agency seeks comment on its proposed approach to addressing when
treatment may be conducted within a CAMU.
6. Assessing Compliance with the Treatment Requirement
(Sec. 264.552(e)(4)(vii))
EPA has included a provision in today's proposed treatment
requirement at Sec. 264.552(e)(4)(vii) to allow, on a discretionary
basis, for the analysis of a subset, rather than the complete set, of
principal hazardous constituents present in the waste to assess whether
treatment standards have been met. EPA believes that it would not be
necessary in many cases to require analysis of all constituents being
treated to accurately assess whether the treatment standards have been
met for all constituents. EPA believes that this flexibility is
appropriate, where applicable on a waste-and site-specific basis, to
avoid unnecessary analysis, which can be expensive.
The strategy of analyzing a subset of constituents in cleanup
wastes to assess the efficacy of treatment is commonly used in
cleanups. This approach follows common-sense scientific principles and
involves consideration of such factors as difficulty of treatment, and
grouping of constituents with similar treatment properties. EPA has
included these two considerations in the proposed rule language. Of
course, in selecting the constituents to be used for analytical
purposes, the Regional Administrator would also consider the ability to
analyze the constituents.
A general strategy is to analyze, within a group of constituents
with similar treatment properties, the most difficult constituents to
treat, following the reasoning that treatment of the most difficult to
treat constituents will result in treatment of the other constituents
as well. For example, when wastes containing mixtures of organic
molecules are subjected to bioremediation, certain compounds tend to be
more recalcitrant and take longer to treat. It might be reasonable to
focus analysis on measurement of the compounds that are most resistant
to biodegradation to assess whether the treatment standard had been
met. Any determination that such a treatment analysis approach can be
used at a CAMU would be made by the oversight agency on a site-specific
basis, in consideration of factors such as those described above, and
would be documented in the decision document (e.g., workplan) and
incorporated into the permit or order. EPA seeks comment on allowing,
on a site-specific basis, for analysis of a subset of principal
hazardous constituents to assess whether treatment standards have been
met.
H. Constituents at or Below Remedial Levels (Sec. 264.552(g))
EPA is proposing, at Sec. 264.552(g), that ``CAMUs into which
wastes are placed where all wastes have constituent levels at or below
remedial levels or goals applicable to the site do not have to comply
with the requirements for liners at Sec. 264.552(e)(3)(i), caps at
Sec. 264.552(e)(6)(iv), groundwater monitoring requirements at
Sec. 264.552(e)(5) or the design standards at Sec. 264.552(f) for
treatment and/or storage-only CAMUs.'' The basic reasoning behind this
provision is that, if constituent levels in wastes placed in a CAMU are
at or below levels that are considered protective at the facility, it
is not necessary to require that the wastes be disposed within an
engineered unit or to have associated groundwater monitoring. Under the
current CAMU rule, the flexibility exists to make disposal decisions
consistent with this approach. However, because today's proposed
amendments would require minimum design requirements for CAMUs, EPA is
proposing provision Sec. 264.552(g) to retain this flexibility.
EPA anticipates that proposed Sec. 264.552(g) would be applicable
under circumstances where owners or operators seek a CAMU because,
without use of a CAMU, the RCRA land disposal restrictions would
continue to apply to the CAMU-eligible waste, even where the CAMU-
eligible waste is no longer otherwise considered hazardous. This would
occur, for example, in certain cases where a ``contained-in'' decision
(see discussion below) has been made because the hazardous constituents
are at concentrations below health-based levels, but the concentrations
remain above land disposal restriction treatment standards. EPA also
anticipates that proposed Sec. 264.552(g) would be used for ``non-
media'' (e.g., CAMU-eligible sludges) for which a contained-in
determination cannot be made.
EPA included ``at or'' before the word ``below'' in this proposed
provision because it is not always necessary to
[[Page 51109]]
treat ``below'' a goal to achieve the goal. In addition, EPA has
included the phrase ``where all wastes'' to make clear that if an
existing unit is used as a CAMU that has wastes with concentrations
above remedial levels or goals applicable to the site, this provision
would not be applicable, because, among other requirements, such a unit
should remain subject to today's proposed capping requirement at
Sec. 264.552(e)(6)(iv).
Today's proposed approach is consistent with the current
``contained-in'' policy, under which contaminated environmental media
(e.g., soil or water) are not considered to ``contain'' hazardous waste
when concentrations of hazardous constituents are below heath-based
levels appropriate to the site. The determination that contaminated
media do not contain hazardous waste is commonly referred to as a
``contained-in determination.'' A general description of the contained-
in policy, with references, is given in the October 1998 memorandum,
``Management of Remediation Waste Under RCRA'' (EPA530-F-98-026).
EPA seeks comment on its proposed approach to address situations
where wastes are placed in CAMUs with constituents at or below remedial
levels or goals applicable to the site.
I. Treatment and/or Storage Only CAMUs (Sec. 264.552(f))
In today's notice, EPA is proposing amendments that make
distinctions between CAMUs that are used for treatment and/or storage
activities only and CAMUs in which wastes will remain in place after
closure. Under today's proposal, treatment and/or storage only CAMUs
would not be subject to the treatment requirements or the minimum
technical standards for liners and caps (described above), with certain
exceptions for longer-term treatment or storage activities.
Specifically, EPA is proposing to replace certain provisions of the
CAMU rule with certain design, operating, and closure standards
provisions from the staging pile regulations at Sec. 264.554 (finalized
under the HWIR-media regulations (63 FR 65874 (November 30, 1998))),
for CAMUs that are used for treatment and/or storage only. Although
today's proposed treatment standards would not apply to CAMUs used for
treatment and/or storage only, the Regional Administrator would not be
prevented from requiring such treatment for waste in such a CAMU as
part of the overall CAMU or remedy decision.\13\
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\13\ Note that wastes managed in treatment and/or storage-only
CAMUs would not have to meet the treatment requirements for the
limited time while wastes are in the CAMU. For example, if such
wastes are subsequently managed off-site, they would be subject to
applicable LDRs. If they are subsequently managed in a permanent
CAMU at the site, they would be subject to the treatment
requirements proposed today for such units.
---------------------------------------------------------------------------
EPA believes it is necessary to propose amendments that are
specific to treatment or storage-only CAMUs. This is because today's
proposed amendments, discussed above, that provide for minimum
treatment and design requirements, were designed with the typical CAMU
in mind--that is, a CAMU that will be used for long-term, permanent
management of cleanup wastes. Without the provisions being proposed
here, the standards for permanent management would remove certain
flexibility that is present in the existing CAMU rule for treatment
and/or storage only activities. The design, operation and closure
standards that EPA is proposing to adopt from the staging pile
regulations are specifically tailored for shorter-term waste management
activities, and are therefore typically better suited for treatment
and/or storage only CAMUs, than are the proposed regulations that would
apply to long-term, permanent management.
1. Current CAMU Regulations for Treatment and/or Storage only CAMUs
Under the existing CAMU rule, the Regional Administrator may
approve CAMUs solely for the treatment and/or storage of cleanup
wastes. Many cleanups require non-permanent disposal waste management,
such as pre-treatment or staging of cleanup wastes prior to additional
management on- or off-site, or storage (for a longer period than
allowed under the staging pile regulation) prior to treatment in a non-
land-based unit. The existing CAMU rule does not contain standards that
are specific to non-permanent CAMUs. The CAMU designation factors at
Sec. 264.552(c) address the design, operation and closure of any CAMU--
those that are used for permanent waste disposal as well as CAMUs that
are used for treatment or storage activities only. The existing rule,
does, however, recognize the distinction between temporary and
permanent CAMUs in that several provisions apply solely to CAMUs where
waste remains in place after closure. For example, two of the CAMU
designation factors, (c)(4) and (c)(7), and certain closure standards
at Sec. 264.552(e)(4) apply solely to permanent CAMUs where waste
remains in place after closure.
2. Staging Pile Standards
EPA promulgated standards for staging piles on November 30, 1998
(63 FR 65874) at Sec. 264.554. Staging piles consist of accumulations
of solid, non-flowing remediation waste that is used only during
remedial operations for temporary storage at a facility. EPA
promulgated these standards to provide greater flexibility for the
protective storage of remediation wastes prior to completion of
remedial activities. Staging piles are subject to design, operation and
closure standards that were specifically designed with short-term waste
management in mind, and without extensive, prescriptive standards such
as are required for units involved in longer term use. Accordingly,
staging piles are restricted to an operating term of two years, unless
an extension of up to 180 days is approved. In addition, treatment is
not allowed in staging piles. As EPA explained in issuing the staging
pile regulations, owners or operators who sought to treat wastes in a
staging pile, or who needed to store wastes for more than two years,
could seek a CAMU (63 FR 65874, 65918 (November 30, 1998).
Under the current regulations, cleanups that necessitate storage
for more than the staging pile time limit, or that require treatment,
could do so under a CAMU (or use tanks or containers, which are
frequently not an economic option, as is discussed in the staging pile
preamble (63 FR 65874, 65908 (November 30, 1998))). However, today's
proposed standards for CAMUs where waste will remain in place after
closure would largely eliminate the CAMU as a practical option for
undertaking these treatment or storage only activities, unless special
provisions are proposed for treatment and/or storage only CAMUs. EPA
believes that certain provisions of the staging pile regulations,
supplemented as described below, are appropriate for this purpose.
3. Proposed Standards for Treatment and/or Storage CAMUs
Under today's proposed changes, CAMUs that are used for treatment
and/or storage only would be subject to the staging pile performance
criteria at Sec. 264.554(d)(1)(i)-(ii) and Sec. 264.554(d)(2) in lieu
of the CAMU designation criteria at Sec. 264.552(c). The staging pile
performance criteria at Sec. 264.554(d)(1)(i)-(ii) and
Sec. 264.554(d)(2) require the Regional Administrator to establish
standards and design criteria for a staging pile that facilitates a
reliable, effective and protective remedy that is designed to prevent
or minimize releases and
[[Page 51110]]
minimizes or controls cross-media impacts. The Regional Administrator
is required to set these standards and design criteria by considering
several factors, including, length of operation, volumes of wastes,
physical and chemical properties of wastes, potential for releases,
environmental factors that may influence migration of any potential
release, and potential for human and environmental exposure to
potential releases from the unit. EPA believes it makes sense to
replace the Sec. 264.552(c) CAMU designation criteria, which place
emphasis on factors that do not apply to shorter-term CAMUs (see, e.g.,
Sec. 264.552(c)(4) and (7), pertaining to closure of CAMUs with wastes
in place) with the design criteria in the staging pile rule. By
focusing on, among other things, ``reliable'' and ``protective''
remedies, the staging pile requirements embrace the general concepts in
the CAMU criteria, but with a more direct focus on factors specific to
short-term waste management. (See, e.g., Sec. 264.554(d)(2), which
focuses the Regional Administrator on issues such as ``the length of
time the pile will be in operation.'').
EPA is proposing that the staging pile standards at
Secs. 264.554(e), 264.554(f), 264.554(j) and 264.554(k) also apply to
CAMUs that are used for treatment and/or storage only.
The Sec. 264.554(e) and (f) standards, respectively, as applied to
CAMUs, would address management of ignitable, reactive, or incompatible
cleanup wastes. These standards were promulgated for staging piles and,
in EPA's view, are reasonable management practices that are applicable
for similar wastes in non-permanent CAMUs.
The staging pile standards at Secs. 264.554(j) and 264.554(k),
under today's proposal, would be the closure standards for treatment
and/or storage only CAMUs that are located in previously contaminated
areas or uncontaminated areas, respectively. These standards would be
used instead of the CAMU closure standards at Sec. 264.552(e)(6). EPA
believes that the circumstances associated with closure of staging
piles, which are restricted to non-permanent waste management
activities, are the same as those for CAMUs undertaking non-permanent
waste management activities.
EPA is also proposing that treatment and/or storage only CAMUs that
comply with the time limits established under the staging pile
regulations (at Secs. 264.554(d)(iii), 264.554(h), and 264.554(i); the
time limit is two years, plus a potential 180 day extension) would be
subject to the performance and technical standards for staging piles in
lieu of the permanent CAMU liner or groundwater monitoring requirements
under proposed Sec. 264.552(e)(3) and (5), respectively. However,
treatment and/or storage only CAMUs that are in existence for longer
than these time limits would be subject to the proposed
Sec. 264.552(e)(3) and (5) liner and groundwater monitoring
requirements including corrective action, for CAMUs that are used for
permanent disposal. EPA believes that the use of CAMU units for
treatment and/or storage only activities for longer than these time
limits raises concerns about potential impacts to groundwater similar
to those raised by CAMU units that are designed for permanent disposal.
EPA believes that today's proposed approach to groundwater
monitoring and liner requirements for CAMUs exceeding the staging pile
time-frame is consistent with that described in the preamble to the
staging pile regulations. The preamble recommends (63 FR 65918) that
CAMUs be considered in cases where there is an anticipated need for
additional time beyond the time limits for staging activities. In such
cases, the preamble recommends that for an existing staging pile
converted to a CAMU for longer-term staging activities, modifications
might be needed to the staging pile design to address longer-term
storage, including leak detection systems, run-off controls, air
emissions controls, ground water monitoring systems, and leachate
collection systems.
In proposing this liner requirement for treatment and/or storage
only CAMUs, EPA is not envisioning typical landfill cell designs that
would be used for permanent disposal (i.e., that partially surround a
large volume of waste), but rather, that composite liner systems would
generally be installed. EPA also anticipates that it would be
appropriate at many sites conducting treatment and/or storage
activities to consider use of the alternate liner standards under
proposed Sec. 264.552(e)(3)(ii). This is because treatment and/or
storage activities will only be undertaken for a temporary period, and
there will be significant opportunities for operating practices to be
employed that affect potential migration of contaminants to
groundwater; such practices could potentially be factored into the
assessment of whether an alternate liner approach could be used. For
example, a roof constructed over the stored wastes or treatment area
could be as effective as the CAMU liner standard, based on conditions
at the site and operating practices. At many sites, EPA anticipates
that, although the CAMU may be in use for more than two or two and a
half years, potential migration to the ground or surface water might be
significantly reduced if, as an operating practice, wastes are
intermittently placed in the CAMU. EPA also anticipates that if a
storage and/or treatment only CAMU is placed in an existing area with
significant contamination, given the time frame of the CAMU, operating
practices, and site-specific factors, it could be appropriate at some
facilities for the Regional Administrator to approve alternate
requirements under the alternate liner provision for new, expansion, or
lateral replacement CAMUs proposed at Sec. 264.552(e)(3)(ii)(B).
The administrative mechanism for the CAMU (i.e., permit or order)
would be required to specify the time limit for the CAMU. The
regulations would provide that this time limit could be no longer than
necessary to achieve a timely remedy selected for the waste. The
Agency's general expectation is that even the longest remedies
involving storage or treatment activities in such non-permanent CAMUs
would be completed within years not decades, except in very unusual
circumstances. The Agency would expect that storage and/or treatment
CAMUs would only go beyond the several-years life-span if they were
being used to stage cleanup wastes. A reasonable example would be a
large facility in a phased, multi-year cleanup that will be using the
CAMU for storage and treatment of cleanup wastes that are obtained
during different phases of cleanup. Under this circumstance, there is
not long-term stockpiling of cleanup wastes; rather, cleanup wastes are
placed temporarily in the CAMU as part of the cleanup, and subsequently
moved out of the CAMU for final appropriate disposal or treatment
elsewhere. Under today's proposed approach, such a facility would not
have to undergo repeated unit startup and closure during each phase of
the cleanup. Just as for staging piles under Sec. 264.554(d)(iii), the
operating term of the CAMU used for storage and/or treatment would
start when waste is first placed in the CAMU, regardless of whether any
increment of waste would be in the CAMU for less than the time
allotted.
EPA seeks general comment on its approach to incorporating the
staging pile regulations for treatment and/or storage only CAMUs. In
particular, EPA seeks comment on an alternate option of modifying the
staging pile regulations, rather than the CAMU regulations, to allow
for waste management activities in staging piles that are consistent
with today's proposed standards for
[[Page 51111]]
treatment and/or storage only CAMUs. Under this option the CAMU rule
would not draw a distinction between CAMUs used for treatment/and or
storage only and those used for permanent disposal, nor would the rule
contain separate standards for design, operation and closure of
treatment and/or storage only CAMUs. Owners or operators seeking
treatment or lengthier storage of cleanup wastes, but not permanent
disposal of the waste, would be able to undertake such activities in
staging piles.
EPA also seeks comment on retaining today's proposed approach to
treatment and/or storage only CAMUs, but also implementing it by
amending the staging pile regulations to allow treatment of remediation
waste in staging piles. In the final HWIR-media rule, EPA prohibited
waste treatment in staging piles in part based on concerns regarding
the risks of treatment (e.g., from possible air emissions) (November
30, 1998, 63 FR 65911). Industry representatives, however, have since
argued that the staging pile regulations provide adequate protection
against threats from air emissions (e.g., staging piles be designed to
``prevent or minimize releases of hazardous waste or hazardous
constituents into the environment'' and to ``minimize or adequately
control cross-media transfer'' (40 CFR 264.554(d)(1)(ii)). Furthermore,
industry representatives have repeatedly expressed the concern that the
prohibition on treatment in staging piles severely limits the
usefulness of these units--particularly because some form of ``pre-
treatment'' is often associated with staging remediation wastes before
final RCRA treatment. For example, contaminated soils may be
consolidated into piles during remediation and then sized or blended to
enhance subsequent treatment. These sizing or blending operations
could, depending on site-specific circumstances, meet the definition of
``treatment'' under RCRA, in which case the operations would not be
allowed under the staging pile regulations.
EPA has acknowledged industry's concerns on this issue, but it
generally believed that it had addressed them in the settlement leading
to today's proposal. Under today's proposal, a facility owner/operator
wishing to treat eligible cleanup waste in temporary piles could seek a
treatment and/or storage only CAMU. In this case, the pile would be
regulated under the same substantive standards as a staging pile, and
treatment would be allowed. Industry stakeholders, however, continue to
raise concerns, arguing that CAMU approvals are likely to be more
difficult to obtain--even if the technical standards are the same--
because of the high degree of attention and analysis that has typically
accompanied CAMU decisions. Industry also expressed concerns that some
states may be interested in picking up staging pile requirements, but
will not seek authorization for the revised CAMU rule (or may do so on
a slower schedule). At the same time, other stakeholders have suggested
that treatment is inappropriate in staging piles because these units
were intended solely to allow consolidation of remediation wastes
before full treatment on-site or shipment off-site--that is, they are
``staging'' piles, not ``treatment'' units. Allowing treatment in such
a unit, in their view, could be misleading to the public (unless the
name of unit were changed) and raise a whole range of issues better
addressed through the CAMU process; while this process might draw more
attention or entail more analysis, that could well be appropriate where
treatment was involved.
EPA seeks further comment on issues raised by treatment in staging
piles and whether it should make regulatory changes to the current
prohibition. In particular, EPA seeks comment on the option of amending
the staging pile regulations to allow treatment, as well as narrower
approaches that might reconcile the differing views of stakeholders.
For example, the staging pile regulations might explicitly allow
mixing, sizing, blending, or similar physical operations, as long as
they were intended to prepare wastes for subsequent management or
treatment. EPA encourages commenters to provide their views on these or
other options.\14\
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\14\ The Agency seeks comment solely on the issue of amending
the staging pile regulations to allow treatment and/or longer-term
storage, not any other aspect of those regulations.
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J. Grandfathering CAMUs (Secs. 264.550 and 264.551)
At the time of today's notice, there are a considerable number of
CAMUs either approved or under consideration. It is important to EPA to
keep these cleanups going and to avoid disrupting on-going activities.
EPA believes that there will be little incremental gain in redirecting
resources to re-analyzing CAMU decisions in light of the new standards.
Further, EPA analyzed these CAMUs in developing these proposed
revisions and concluded that the CAMU decisions would generally have
been the same, or similar, to those that might have been made under the
proposed requirements. The Agency therefore is proposing provisions
that would allow certain CAMUs to continue to be implemented pursuant
to the current rules which are the rules under which they were approved
or planned.
EPA is proposing an approach, at Sec. 264.550, under which two
classes of CAMUs would remain subject to the 1993 CAMU regulations
following final issuance of the CAMU amendments (i.e., would be
``grandfathered''). These classes are: (1) CAMUs that are approved
prior to the effective date of the final amendments; and (2) CAMUs
which were not approved prior to the effective date of the final
amendments but for which substantially complete applications (or
equivalents) were submitted to the Agency on or before 90 days after
the publication date of the proposed rule (i.e., today's Federal
Register notice). To continue to operate pursuant to the requirements
of the current CAMU rules, CAMUs that fall into either of these classes
would be required to operate within the general scope of the originally
issued CAMU authorizing document (e.g., permit). If the CAMU changes in
a way that exceeds the general scope of its original approval, those
changes would be implemented in accordance with the amended CAMU rule.
``Approved'' means that the decision to designate a CAMU is final
(e.g., the Agency issues a final permit authorizing a CAMU). The Agency
included ``(or equivalent)'' after the word ``application'' to address
the situation where it is not the responsible party for the cleanup
that is requesting a CAMU--e.g., where the Agency imposes such a
requirement as part of the remedy in a section 3008(h) unilateral
order.
If EPA were not to include this provision, CAMU owner/operators who
obtained approval prior to the amendments would be subject to re-
evaluation in light of the new CAMU standards when the permit was up
for renewal, during Agency-initiated proceedings to specifically
include new requirements, or when the contemplated activities otherwise
required a modification of the permit or other enabling mechanism, such
as an enforcement order. EPA does not believe that this is an efficient
use of cleanup resources. Similarly, EPA believes that it would also be
a poor use of cleanup resources to require re-evaluation of such CAMUs
that are substantially in the approval process. The Agency therefore
has proposed to grandfather CAMUs that have, in the judgement of the
oversight agency, substantially complete applications (or equivalents)
within three months of publication of this proposal. The Agency does
not want owners or
[[Page 51112]]
operators, or the oversight agencies, to disrupt or slow down the
cleanup process by re-visiting prospective CAMUs under a new set of
standards where there has been a substantial commitment to the process.
EPA believes that it will be disruptive for facilities that are within
90 days of a substantially complete CAMU application (under the 1993
rule) at the time this proposal is issued to stop and conduct analyses
in an effort to assess whether modifications would be warranted because
of this proposal; EPA also believes that the three-month period from
proposal would provide a reasonable time for owners or operators
significantly invested in applying for a CAMU under the existing
regulations to work with oversight agencies to ensure that a
substantially complete application is submitted if they wish to obtain
a CAMU under the existing CAMU regulations.
Under the proposed approach, EPA would interpret ``substantially
complete application'' to mean that an application reflects that enough
good-faith work has been done on it that imposition of the new
requirements would be an inefficient use of a facility's and the
Agency's cleanup resources. The Agency would expect, at the least, that
the application is at a point at which it thoroughly and carefully
addresses the main elements of CAMU designation that address long-term
protectiveness, including the location of the CAMU, wastes proposed for
management, technical design elements, and description of anticipated
treatment, if any, of the wastes. This does not mean, however, that the
application would have to be at a point where it would be deemed
``complete'' under the permitting requirements of Sec. 270.10(c), which
generally means that it be ready for proposal and public comment. For
example, EPA would generally expect a substantially complete
application, at a CAMU where wastes were to be left in place, to
include a reasonable approach for groundwater monitoring that addresses
site-specific conditions, but would still consider the application
``substantially'' complete where the Agency intends to further discuss
the details of the groundwater monitoring system. EPA expects that
where there has been substantial input by the Agency into the
application by the 90th day, there would be a higher likelihood that
the application would be found to be ``substantially complete.''
However, there may also be situations where the Agency has yet to
engage with the owner or operator by the 90th day, but where the owner
or operator has done such a thorough job analyzing the appropriate
elements that the Agency would find it ``substantially complete.'' Of
course, any CAMU that has been proposed by the Agency by the 90th day
would have a ``substantially complete application.''
EPA expects that many, if not most, CAMUs that are substantially in
the approval process by the 90th day after this proposal would be
approved by the effective date of the CAMU amendments. For such CAMUs,
the proposed provision for ``substantially complete'' applications
would not be needed. EPA anticipates that there will be cases, however,
where CAMUs with substantially complete applications within 90 days of
publication of this proposed rule will not receive final Agency
approval of their application prior to the effective date of the final
CAMU amendments. Reasons for delay could relate to such factors as
ongoing administrative processes, including administrative appeals,
time involved in receiving and responding to public input, and time
needed to work out technical details, such as those involving
monitoring well placement and design. In addition, as owner/operators
and regulatory agencies might do in preparing for the promulgation of
any new regulation applicable to its activities, for those CAMUs with
applications that are not expected to be approved by the effective date
of the CAMU amendments or to meet the proposed ``substantially
complete'' test by the proposed deadline, EPA suggests using the
proposed amendments as guidance (prior to finalization of the
amendments) in developing CAMU proposals, as appropriate. This approach
would minimize the risk of having to make significant changes to CAMU
plans at the time of the final rule. EPA is aware that the proposed
amendments may change prior to the final rule; EPA intends to therefore
keep the regulated community and oversight agencies apprised of any
likely changes. EPA seeks comment on its approach to address the timing
of CAMU applications and grandfathering of CAMUs.
Under today's proposal, to avoid the disruptions discussed above,
CAMUs that are ``grandfathered'' would remain subject to the current
standards for the life of the CAMU, as long as the ``waste, waste
management activities, and design of the CAMU remain within the general
scope of the CAMU as approved.'' EPA anticipates two types of
circumstances--subject to site-specific determination by the Agency--
that generally would be considered ``within the general scope of the
CAMU as approved.'' First, changes to waste, waste management
activities, and design that can be made without modification of the
approved CAMU conditions in the permit would be considered ``within the
general scope of the CAMU as approved,'' and would therefore be
grandfathered. The same general principal would apply for non-permit
decision documents such as enforcement orders. These changes would
typically include such activities as modifying sampling and analysis
plans or adjusting a treatment technology, based upon implementation in
the field. Second, certain circumstances that might require
modification of the terms of the CAMU could still remain within the
general scope of the originally approved CAMU. Examples of such
activities include adding more volume of essentially the same waste
(same or similar constituents and origin) that was originally approved,
or retaining the same basic design but enlarging a CAMU to accommodate
the extra volume of wastes. However, the new amendments would apply
under circumstances that are outside of the scope of the originally
approved CAMU, such as different types of wastes slated for disposal in
the CAMU, or substantial lateral expansion of a CAMU at the site.
1. Documentation of ``Substantially in the Approval Process.''
EPA is not envisioning any formal process for documenting that
CAMUs are ``substantially in the approval process'' by the proposed
deadline. Of course, EPA would, if the proposed grandfathering
provisions are finalized, expect the Regional Administrator to record
and justify this finding in the administrative record for the proposed
and/or final CAMU approval. EPA would generally expect that, in
addition to filing proper documentation in the administrative record,
if requested, the Agency would notify the owner or operator in writing
of the Agency's view of the completeness of the application before or
shortly after the time of the proposed deadline so that the owner or
operator would be on notice of what standards will apply to them if the
proposed amendments are finalized and if they do not obtain CAMU
approval prior to such finalization.
K. Public Participation (Sec. 264.552(h))
Today's proposal would expand on the requirements providing for
public input into the establishment of CAMUs by making prior public
notice and opportunity to comment on CAMU decisions mandatory. With
these changes, the public would be better
[[Page 51113]]
assured of the opportunity for pre-decisional involvement in final CAMU
determinations, whether the CAMU is authorized under a permit, order or
other mechanism. In addition, EPA is proposing rule language that would
expressly require the Regional Administrator to include in the public
notice the rationale for any proposed application of the adjustment
factors to the treatment requirement. These changes are consistent with
EPA's long-standing policy for public involvement in major cleanup
activities and are consistent with the implementation of the CAMU rule
to date.
The existing CAMU rule, under Sec. 264.552(f), requires the
Regional Administrator to document the decision rationale for the CAMU
and to make such documentation available to the public. The existing
rule, under Sec. 264.552(g), also requires, in cases where the CAMU is
being implemented through a permit, that the CAMU be incorporated into
an existing permit in accordance with the permit modification
procedures in Secs. 264.270.41 and 264.270.42 of this chapter, which
require public notice and comment. EPA is concerned that, under the
current regulations, CAMUs might undergo approval under orders without
the public having the opportunity to comment on the proposal. In
addition, EPA is concerned that the wording of the current CAMU rule,
stating the Regional Administrator's duty to document and make
available to the public the ``rationale'' for designating a CAMU, might
imply that other aspects of the CAMU decision need not be presented to
the public for comment (e.g., specific CAMU design details). EPA
believes that this proposed change will remove any such potential
omission.
Because of these concerns, EPA is proposing to replace the existing
requirement at Sec. 264.552(f) with the following requirement (proposed
at Sec. 264.552(h)): ``The Regional Administrator shall provide public
notice and a reasonable opportunity for public comment before
designating a CAMU. Such notice shall include the rationale for any
proposed adjustments under Sec. 264.552(e)(4)(iii)(B) to the treatment
standards in Sec. 264.552(e)(4)(iv).'' EPA believes that this proposed
modification is consistent with existing policy and practices (see the
September, 1996 RCRA Public Participation Manual, especially Chapter 4;
this manual is in the docket for today's rule), will increase the
certainty that public involvement will occur for all CAMUs, and will
provide for flexible approaches to implementation.
In general, as articulated in the above cited guidance, EPA
believes that under today's proposed modifications, the public should
have an opportunity, early on, to become involved in the process and
provide input into remedial decision-making, including CAMU decisions.
Today's proposed standard of ``reasonable opportunity'' provides for
flexibility that EPA believes is necessary for public involvement
concerning the CAMU decision to be implemented within the broader
context of the facility cleanup; as a general minimum, in accordance
with the above-cited guidance, a reasonable opportunity should include
informing the public about a prospective CAMU, and providing meaningful
opportunity for the public to comment prior to the final agency
determination to approve a CAMU.
In addition to proposing a general performance standard of
``reasonable opportunity'' for public comment in CAMU determinations,
EPA is also proposing to add a specific requirement that the
description of the proposed CAMU include the rationale for any
adjustments to the treatment requirement. The Agency chose to highlight
the importance of the proposed treatment adjustment factors because
this is an area that can be of especially great interest to the public
at cleanup sites. The Agency's general experience with remediation
sites in the RCRA corrective action and Superfund programs is that
there is often a high level of interest shown by the public on
treatment issues.
EPA is seeking comment on whether to apply the public participation
procedures in the ``RCRA Expanded Public Participation Rule,'' which
was published in 1995 (60 FR 63417), to all CAMU decisions. In other
words, should the Agency extend this rule, which already applies to
CAMU permit decisions, to CAMUs included in orders. Prior to issuance
of that rule, formal public involvement was required at two points in
the permitting process--when the permitting agency announced its intent
to grant or deny a permit, and when a facility requested a modification
of an existing permit. The Expanded Public Participation Rule added the
following requirements: 1) Permit applicants must hold an informal
meeting to inform community members of proposed hazardous waste
management activities before applying for a permit to conduct these
activities; 2) the permitting agency must announce to the public when a
permit application is submitted; 3) the permitting agency may require a
facility to set up an information repository; and, 4) the permitting
agency must notify the public prior to trial or test burns at
combustion facilities. After issuing the rule, EPA issued guidance
providing more detail on public involvement in corrective action (see
the September, 1996 RCRA Public Participation Manual, especially
Chapter 4; this manual is in the docket for today's rule; this manual
and the 1996 Expanded Public Participation Rule are also available at
www.epa.gov/epaoswer/hazwaste/permit/pubpart.index). This guidance
states that, in general, the principles in the rule are appropriate for
RCRA corrective action undertaken pursuant to either permits or orders.
If EPA were to adopt today's proposed amendments to the CAMU rule,
the ``permit applicant'' in requirement 1, referred to above, would be
read as the facility receiving an order for a CAMU; the ``permitting
agency,'' referred to above in requirements 2-4 would be read as the
``Regional Administrator.'' EPA is seeking comment on whether to apply
these public participation procedures to all CAMU decisions.
Public involvement in the overall RCRA corrective action program is
currently being discussed as part of EPA's RCRA Cleanup Reforms. EPA
intends that its approaches to public participation for the designation
of CAMUs will be informed by this initiative. Currently,
representatives from community and environmental groups have expressed
their views to EPA concerning public involvement in RCRA Corrective
Action cleanups. To date, the groups have expressed concerns regarding
EPA and state authority for public involvement in RCRA Corrective
Action, consistent application of public involvement across state and
EPA programs, options for public involvement assistance to communities
around sites undergoing RCRA Corrective Action, and the role of the EPA
Ombudsman in public involvement activities.
EPA continues to seek feedback from all stakeholders on the RCRA
Cleanup Reforms. The Agency welcomes additional feedback on ways to
enhance community involvement including greater public access to
information on cleanup progress. Additional information on the Reforms
is available at www.epa.gov/epaoswer/osw/cleanup.htm> or by calling the
RCRA Hotline at 800-424-9346
L. Additional Requirements (Sec. 264.552(i))
EPA is proposing at Sec. 264.552(i) that the Regional Administrator
may impose
[[Page 51114]]
requirements in addition to those specified in the CAMU regulations.
Specifically, proposed Sec. 264.552(i) reads: ``(i) Notwithstanding any
other provision of this section, the Regional Administrator may impose
additional requirements as necessary to protect human health and the
environment.'' The existing CAMU rule provides the ability to require
any additional requirements, as necessary to protect human health and
the environment. Because EPA is proposing detailed minimum technical
standards in several areas in today's rule, EPA believes that it is
appropriate to include this specific provision to clarify within the
regulations that requirements beyond those specifically provided for in
the rule may be necessary on a site-specific basis at a CAMU. This
provision would recognize the ability of the Regional Administrator to
impose requirements relating to any element of CAMUs, including:
requirements for additional treatment of PHCs beyond the minimum
standards; requirements for additional engineering or monitoring
specifications; and prohibition of specific wastes from inclusion in a
CAMU.
IV. Relationship Between Today's Proposed Action and Other
Regulatory Programs
A. Impact of Today's Amendments.
Today's proposed amendments would not change the relationship
between other state and federal programs and the CAMUs regulations.
These amendments would solely affect the way hazardous cleanup wastes
are managed in corrective action management units. These rules would
set standards for hazardous waste management units when EPA or a state
chooses to take advantage of the flexibility provided by the CAMU rule,
but they would not affect, in any way, other aspects of RCRA cleanups,
e.g., how cleanup levels are set or when treatment is required at RCRA
corrective action facilities. Although these standards borrow, as
appropriate, from approaches in current remediation programs (including
RCRA corrective action for SWMUs), they were not designed for making
remedial decisions outside the CAMU context, such as in state or
federal cleanup programs, where program-specific remedial decision-
making processes are already in use. Today's rule would leave in place,
and would leave untouched, all of EPA's current policies and
regulations covering hazardous waste cleanups, including such familiar
policies as the ``area of contamination'' concept, ``contained-in''
decisions, the regulatory definition of ``remediation waste,'' and the
various remediation-specific LDR variances. For a discussion of these
and other policies, see the May, 1996 Corrective Action ANPR (61 FR
19432), the October 1998 Memorandum, ``Management of Remediation Waste
Under RCRA,'' EPA530-F-98-026, and the preamble discussion to the HWIR-
media rule at 63 FR 65874, 65877-65878 (November 30, 1998) (these
references are in the docket for today's rule). The preamble to the
1993 CAMU rule discusses the relationship between the CAMU rule and
other regulatory programs, including CERCLA (see 58 FR 8658, 8679
(February 16, 1993)).
V. How Would Today's Proposed Regulatory Changes Be Administered
and Enforced in the States?
A. Applicability of Federal Rules in Authorized States
Under section 3006 of RCRA, EPA may authorize qualified States to
administer the RCRA hazardous waste program within the State. A State
may receive authorization by following the approval process described
under Sec. 271. See 40 CFR part 271 for the overall standards and
requirements for authorization. Following authorization, the State
requirements authorized by EPA apply in lieu of equivalent Federal
requirements and become Federally enforceable as requirements of RCRA.
EPA maintains independent authority to bring enforcement actions under
RCRA sections 3007, 3008, 3013, and 7003. Authorized States also have
independent authority to bring enforcement actions under State law.
After a State receives initial authorization, new Federal
requirements promulgated under RCRA authority existing prior to the
1984 Hazardous and Solid Waste Amendments (HSWA) do not apply in that
State until the State adopts and receives authorization for equivalent
State requirements. In contrast, under RCRA section 3006(g) (42 U.S.C.
6926(g)), new Federal requirements and prohibitions imposed pursuant to
HSWA provisions take effect in authorized States at the same time that
they take effect in unauthorized States. As such, EPA carries out HSWA
requirements and prohibitions in authorized States, including the
issuance of new permits implementing those requirements, until EPA
authorizes the State to do so.
Authorized States are required to modify their programs when EPA
promulgates Federal requirements that are more stringent or broader in
scope than existing Federal requirements. RCRA section 3009 allows the
States to impose standards more stringent than those in the Federal
program. See also Sec. 271.1(i). Therefore, authorized States are not
required to adopt Federal regulations, both HSWA and non-HSWA, that are
considered less stringent than existing Federal requirements.
B. Authorization of States for Today's Proposal
Today's proposal would be primarily implemented pursuant to
sections 3004(u) and (v) of RCRA, which are HSWA provisions. This
statutory authority also formed the statutory basis for the original
federal Corrective Action Management Unit (CAMU) regulations (see 58 FR
8658, 8677 (February 16, 1993)). Therefore, when promulgated, the
Agency would add the rule to Table 1 in Sec. 271.1(j), which identifies
the Federal program requirements that are promulgated pursuant to HSWA.
States may apply for final authorization for the HSWA provisions in
Table 1, as discussed in the following section of this preamble.
Today's proposed amendments to the CAMU regulations would be more
stringent than the existing federal CAMU regulations, although EPA
believes that the current CAMU practices are similar to those that
would be required under the proposed amendments. Thus, States that have
already been granted authorization for the existing 1993 CAMU rule
would be required to revise their programs so that they are not less
stringent than the Federal program, including the new amendments.
Further, because today's proposed amendments to the CAMU rule would be
promulgated under HSWA authority, after the amendments become
effective, EPA would implement them in States authorized for the 1993
CAMU rule until these States receive interim or final authorization for
the final rule. EPA would also continue to implement the amended CAMU
regulations in those States that have not received authorization for
corrective action, consistent with State law. As explained in the 1993
CAMU rule preamble (see 58 FR 8658 (February 16, 1993)), the CAMU rule
is integral to the HSWA corrective action program, and where EPA
implements the corrective action requirements, EPA also implements the
CAMU rule (consistent with state law). Note that state laws or
regulations may be more stringent or broader in scope than the Federal
regulations.
States that are authorized for corrective action but have not
received
[[Page 51115]]
authorization for the existing CAMU rule would not be required to seek
authorization for the amended CAMU regulations because those States'
authorized regulations for corrective action and Land Disposal
Restrictions (LDRs) are more stringent than the Federal regulations
that include CAMUs. Because CAMUs are used as part of a corrective
action and they are often integral to the implementation of corrective
action at individual facilities, States are strongly encouraged to
adopt and seek authorization for the CAMU regulations. After
publication of the final CAMU amendments, States would no longer be
able to seek authorization solely for the 1993 CAMU rule without the
amendments.
C. Interim Authorization-By-Rule for States Currently Authorized for
the CAMU Rule
Currently, 21 States are authorized for the existing CAMU
regulations and are responsible for their implementation, including
reviewing applications for CAMUs from facilities and overseeing the
operation of approved CAMUs. These States are also authorized for
corrective action. In addition, EPA is aware of 16 States that have
adopted CAMU regulations, but that have not yet received authorization
for them. One of EPA's goals regarding the implementation of today's
proposed rulemaking is to enable CAMU-authorized States to continue to
implement the CAMU regulations after these proposed amendments are
finalized. States authorized for the 1993 CAMU rule would continue to
implement unmodified provisions in that rule, but because today's
proposed rulemaking is more stringent and would be promulgated as a
HSWA rule, until those States receive authorization for the amendments,
EPA would have regulatory authority over requirements added by these
amendments. This would result in a situation where there would be two
direct implementers of the CAMU regulations over a single unit. This
situation would be extremely disruptive to the operation of the ongoing
regulatory program for CAMUs because there would be redundant
regulatory oversight of these units. One result would be the inevitable
delay in the implementation of CAMUs at individual facilities. Because
the management of CAMU-eligible waste in these units expedites the
completion of the clean-up process at individual facilities, these
potential delays would be counter to the RCRA clean-up goals, and could
interfere with the goal of protecting human health and the environment.
To address these concerns, EPA is today proposing to grant eligible
CAMU-authorized States interim authorization for the proposed CAMU rule
amendments as part of today's proposed rulemaking through a new
process. EPA is calling today's proposed interim authorization of
eligible States ``interim authorization-by-rule'' because it would
occur as part of the rulemaking process for the CAMU amendments. The
interim authorization-by-rule would be effective for all qualifying
States on the same date that the CAMU amendments, when promulgated,
become effective, rather than on a State-by-State basis through a
separate interim authorization process that would occur after these
amendments are promulgated. Only those States that are authorized for
the 1993 CAMU rule at the time the final rule for these proposed
amendments is signed and that meet the other criteria set forth in
proposed Sec. 271.27 (described below) would be eligible to receive
interim authorization-by-rule.
This interim authorization-by-rule would expire three years after
the effective date of the CAMU amendments. Therefore, these States
would need to receive final authorization for the rule to continue to
implement the amendments after the expiration of interim authorization.
The proposed interim authorization-by-rule requirements would be
located in new Sec. 271.27, and would apply only to the amended CAMU
regulations. Because the interim authorization of States for these
proposed amendments would be integral to today's proposed interim
authorization-by-rule process, EPA is requesting comments on both
aspects of this proposal.
1. Description of the Basis for Interim Authorization-By-Rule
States can currently receive interim authorization for rules that
have been federally promulgated under HSWA statutory authority (see
section 3006(g) of RCRA). This statutory provision directs EPA to grant
States interim authorization if the State regulations are substantially
equivalent to the Federal provisions. This requirement for interim
authorization differs from the provisions in RCRA section 3006(b) for
final authorization, which require that State programs be fully
equivalent to the Federal program. The differences between the
statutory requirements for interim authorization and final
authorization exist because Congress intended interim authorization to
be a mechanism to allow existing State programs to continue functioning
without disruption for a limited period of time, during which States
would amend their programs to be equivalent to the Federal program.
Today's proposed interim authorization-by-rule process is based
upon the statutory authority for interim authorization in section
3006(g) of RCRA. Using this authority, EPA is proposing a rule granting
interim authorization for the CAMU amendments to States that are
already authorized for the 1993 CAMU rule and that meet the criteria
specified in Sec. 271.27(a), without the need for a State-specific
determination. These proposed criteria are described below. Thus, as
part of EPA's promulgation of the CAMU amendments, EPA would also grant
interim authorization-by-rule to States for the amendments once these
criteria are met. EPA requests comment on whether these proposed
criteria would suffice as the basis for granting interim authorization
to eligible States as part of these amendments.
EPA believes that further review of these States' CAMU programs is
not necessary to determine that these States meet the statutory
standard for interim authorization because of: (1) the type of
amendments to the CAMU regulations being proposed today; (2) the
restrictions on State eligibility in proposed Sec. 271.27; (3) the fact
that States' existing CAMU regulations have already been through the
authorization process for those regulations; (4) the fact that States
will use the amendments as guidance under their existing regulatory
authority until they receive final authorization; and (5) EPA's
oversight of State implementation of their authorized CAMU regulations.
2. Eligibility of States for the Proposed Interim Authorization-By-Rule
Process
In order for States to receive interim authorization for the CAMU
amendments, States would have to have regulations that are
substantially equivalent to the amended Federal CAMU regulations.
Proposed Sec. 271.27(a)(1), would restrict the eligibility for interim
authorization-by-rule to those States that are authorized for the 1993
CAMU rule (58 FR 8658, February 16, 1993). Due to the nature of the
proposed amendments, EPA believes that States which have received
authorization from EPA for the existing 1993 CAMU rule have regulations
that are substantially equivalent to today's proposed amended CAMU
regulations. Specifically, the CAMU amendments are not generally
designed to produce different site-specific CAMU standards than would
be imposed under the current rules, but instead are meant to make
clearer the Agency's general minimum expectations for CAMUs and
[[Page 51116]]
to make the CAMU process more consistent and predictable, as well as
more explicit for the public. In fact, as described elsewhere in this
proposal, in an assessment of approved CAMUs which was developed as
background for today's proposal, EPA found that in general, the CAMUs
that have been approved by EPA and the States authorized for the CAMU
rule are consistent with the standards in today's proposed CAMU
amendments. Thus, States are implementing the current CAMU waste
management standards in a way that is substantially equivalent to those
standards that would be set under today's proposed amendments.
Another restriction on the eligibility of States for interim
authorization-by-rule is that, under proposed Sec. 271.27(a)(2),
eligible States cannot have audit privilege and immunity laws that
raise EPA concerns about whether the State provides for adequate
enforcement as required for authorization under RCRA section 3006(b).
EPA believes that audit privilege and immunity laws undermine the
enforcement authority that a State must possess as a condition of being
authorized to implement federal environmental programs.\15\ Generally,
State audit privilege laws grant information, that is generated through
a facility self-audit, a privilege against disclosure in an
administrative or judicial proceeding, including the investigation of
criminal activities. Generally, State audit immunity laws eliminate
fines or penalties if a facility discloses the audit results. EPA
believes that State audit privilege laws restrict information that
State regulatory agencies must have access to in order to determine
environmental compliance and perform emergency actions, as required
under federal environmental law. EPA believes that State immunity laws
restrict the ability of States to assess appropriate penalties and
injunctive relief for environmental violations, as required under
federal environmental law. For example, audit privilege laws undermine
the ability of States and the public to access information necessary to
determine environmental compliance, as required under federal
environmental law. Immunity laws undermine the ability of States to
assess appropriate penalties for environmental violations, as required
under federal environmental law.
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\15\ ``Statement of Principles: Effect of State Audit Immunity/
Privilege Laws on Enforcement Authority for Federal Programs,''
Memorandum from Steven A. Herman, Assistant Administrator for
Enforcement and Compliance Assurance; Robert Perciasepe, Assistant
Administrator for Water; Mary Nichols, Assistant Administrator for
Air and Radiation; and Timothy Fields, Acting Assistant
Administrator for Solid Waste and Emergency Response (February 14,
1997).
---------------------------------------------------------------------------
EPA has worked successfully with many States that have enacted
audit privilege and immunity laws to reach agreements so that such laws
do not preclude authorization of States for federal environmental
programs. Among the States authorized for the 1993 CAMU rule, Illinois,
Nevada, and Oregon are currently discussing with EPA enforcement issues
raised by these States' audit privilege and/or immunity laws. Under
proposed Sec. 271.27(a)(2) these States would not currently qualify for
interim authorization-by-rule.
EPA is not making any assessments regarding these States' audit
privilege laws and their laws' effects on the adequacy of each States'
enforcement authority as part of today's proposed rule. General EPA
oversight and the authorization processes provide EPA and these States
with procedures to discuss and resolve audit privilege and/or immunity
issues that affect a State's authority to enforce federal environmental
programs. In contrast, the proposed interim authorization-by-rule
process would be appropriate only in circumstances where detailed
evaluation by EPA or in-depth discussion with the State is not
necessary for EPA to determine that the State meets the requirements
for interim authorization.
EPA hopes that the audit privilege law issues in these States will
be resolved by the time the final CAMU amendments rule is signed.
Resolution of all outstanding audit privilege law issues would make
these States eligible for interim authorization-by-rule. The final rule
will indicate whether this resolution has occurred. In addition, if
other States that would currently be eligible for interim
authorization-by-rule under this proposal enact audit privilege or
immunity laws prior to final rule promulgation, those States will lose
their eligibility for interim authorization-by-rule until enforcement
issues raised by those laws are resolved.
Under proposed Sec. 271.27(a)(3), any eligible State that wanted to
receive interim authorization-by-rule for the CAMU amendments would
have to notify EPA within 60 days after publication of the final CAMU
amendments that the State intends to, and is able to (i.e., does not
have any existing laws that would prevent the state from implementing
these amendments), use these amendments as guidance until it adopts
equivalent provisions. During the 60 days after publication of the
final rule, States may evaluate the final provisions and decide whether
they can and want to gain interim authorization-by-rule for the CAMU
amendments. EPA is proposing this 60 day deadline to enable EPA to
promptly publish an additional Federal Register document before the
effective date of the CAMU amendments rule, which would be 90 days
after its publication. This FR notice would inform the public which
States have submitted the notification to EPA and thus, have interim
authorization for the CAMU amendments. EPA requests comment on whether
60 days is a sufficient amount of time for States to decide to notify
EPA of their intentions and submit the notification to EPA. EPA also
requests comment on whether eligible States should be able to submit
the notification in proposed Sec. 271.27(a)(3) after the 60 day
deadline and gain interim authorization-by-rule, as long as the
notification was submitted before interim authorization expires for the
CAMU rule amendments.
Note that eligible States could choose not to commit to this
interim authorization-by-rule process. If they are not able to, or
choose not to seek interim authorization-by-rule, they can follow the
process outlined in Section D below for States that are authorized for
corrective action, but not the 1993 CAMU rule.
3. Interim Authorization Process Time Line
The timing of events in today's proposed interim authorization-by-
rule process differs from the existing interim authorization process in
Secs. 271.24 and 271.21. Under the existing process, EPA first
promulgates a rulemaking, after which a State may amend its regulations
to reflect the Federal rulemaking, and then submit an application to
EPA seeking interim authorization for that rule. EPA then would review
the application and subsequently reach a decision on the application,
which EPA publishes in the Federal Register in accordance with the
procedures in Sec. 271.21.
In today's proposed interim authorization-by-rule process, States
would receive interim authorization upon the effective date of the
final regulations being proposed today, as long as they meet the
conditions set out in today's proposal, rather than through a separate
rulemaking action after their promulgation. The effective date of
interim authorization for those eligible States that submit the
notification required by proposed Sec. 271.27(a)(3) would be the
effective date of the CAMU amendments.
Eighteen States have received authorization for the 1993 CAMU rule,
[[Page 51117]]
and currently do not have an unresolved audit privilege and immunity
law. EPA is proposing that these States would be eligible for today's
proposed interim authorization-by-rule process. These 18 States are:
Alabama, Arizona, Delaware, Georgia, Idaho, Indiana, Louisiana, New
York, North Carolina, North Dakota, Oklahoma, South Dakota, Texas,
Utah, Vermont, Washington, Wisconsin, and Wyoming. EPA recently
proposed to grant Virginia authorization for the 1993 CAMU rule (July
31, 2000, 65 FR 46681). EPA expects that when the CAMU amendments are
promulgated, Virginia will be authorized for the 1993 CAMU rule, and
thus would be eligible for interim authorization-by-rule. Note that
although all these States would be eligible for interim authorization,
not all these States may actually submit the notification required by
proposed Sec. 271.27(a)(3) after the publication of the final CAMU
amendments rule to gain interim authorization.\16\ Additional States
may receive authorization for the 1993 CAMU rule after the date of
today's proposed rule, up until the time today's proposed CAMU
amendments are signed. Authorization for the 1993 CAMU rule would
normally be granted by EPA through a Federal Register document, which
is then subject to public comment. If EPA decides to authorize any
additional States for the 1993 CAMU rule after today's proposal, in the
Federal Register document that requests comment on that authorization.
EPA will indicate that the authorization of the State for the 1993 CAMU
rule will result in the State becoming eligible for interim
authorization-by-rule for the CAMU amendments.
---------------------------------------------------------------------------
\16\ For the purposes of commenting on this proposal, commenters
should recognize that under the interim authorization by-rule
approach proposed today, any state that meets the conditions
outlined in the proposed rule (current CAMU authorization, no
unresolved audit law issues, and notification of desire and ability
to use the final amendments as guidance), would obtain interim
authorization without a separate individual notice and comment
process on that authorization.
---------------------------------------------------------------------------
Therefore, when EPA publishes the final CAMU amendments, EPA will
provide a full list of States that will receive interim authorization-
by-rule if the States subsequently notify EPA within 60 days after that
publication that the State intends to, and is able to implement those
amendments. As noted above, EPA will publish a subsequent notice in the
Federal Register that will inform the public which States did notify
EPA under proposed Sec. 271.27(a)(3) that they are able to and intend
to use the CAMU amendments as guidance and thus have interim
authorization.
4. Expiration of Interim Authorization
Under proposed Sec. 271.27(b) and amended Sec. 271.24(c), interim
authorization for the amended CAMU regulations would expire three years
after the effective date of these amendments. These provisions would
extend the time period for interim authorization for these CAMU
amendments from the period allowed by the current expiration date of
interim authorization for regulations promulgated under HSWA statutory
authority in Sec. 271.24(c), which is January 1, 2003. The reason for
this extension to the expiration of interim authorization for the CAMU
amendments rule is to provide States sufficient time to amend their
regulations so they are equivalent to the federal CAMU regulations, and
then to go through the final authorization process in Sec. 271.21. EPA
believes that three years is a reasonable period of time for States to
complete this action and is consistent with the deadlines in
Sec. 271.21(e) which in some cases, provide States with almost three
years to modify their programs to reflect Federal program changes, and
allow for extensions to the deadlines. EPA believes that a longer
period of time for interim authorization does not conform to its
temporary nature. EPA specifically requests comment on this deadline.
If a State does not receive final authorization before its interim
authorization expires, EPA would then be responsible for implementing
the new CAMU amendments in these States. (EPA would not implement the
provisions in the 1993 CAMU rule that were unaffected by the
amendments; the authorized States would continue to implement them.)
EPA believes that this potential reversion of the implementation
authority to EPA would act as a strong incentive for States with
interim authorization to expeditiously seek final authorization.
Further, EPA does not believe that this final authorization process
will be particularly difficult. See below for additional detail
regarding EPA's intention to expedite the authorization of States for
the CAMU rule amendments.
5. Conditional Interim Authorization
One alternative to today's proposed interim authorization-by-rule
process that EPA is also considering is to grant interim authorization
concurrently with the promulgation of the CAMU amendments to those
States that meet criteria such as those proposed today in
Sec. 271.27(a), on the condition that after publication of the final
rule they submit a notification as proposed in Sec. 271.27(a)(3). Under
this approach, EPA would follow the usual authorization procedures in
Sec. 271.24 where EPA determines whether each State meets the interim
authorization requirements, except that this determination would occur
concurrently with the promulgation of the CAMU rule amendments. Once
States met the deadline for notifying EPA that they intend to and are
able to use the CAMU amendments as guidance, EPA would publish a notice
in the Federal Register listing the States that submitted the
notification. Interim authorization would then be effective on the same
date as the CAMU amendments.
EPA does not believe that regulatory amendments would be necessary
to implement this conditional authorization process because of the
flexibility within the existing procedures. Section 271.21 gives EPA
discretion to initiate program revision and to require only those
application documents it deems necessary to make an authorization
decision. EPA is proposing to grant interim authorization to States
that meet the criteria in proposed Sec. 271.27, because such States
will be implementing the CAMU amendments in a manner substantially
equivalent to the Federal regulations, based on the knowledge EPA
already has about these States' CAMU regulations and on the
notification States would submit. The only regulatory amendments that
would be made would be the extension of the expiration date for interim
authorization for the CAMU amendments in proposed Sec. 271.27(b) and
amended Sec. 271.24(c).
EPA requests comments on its proposal to grant interim
authorization for the proposed amendments, when promulgated, to
Alabama, Arizona, Delaware, Georgia, Idaho, Indiana, Louisiana, New
York, North Carolina, North Dakota, Oklahoma, South Dakota, Texas,
Utah, Vermont, Washington, Wisconsin, and Wyoming. EPA recently
proposed to grant Virginia authorization for the 1993 CAMU rule (July
31, 2000, 65 FR 46681). EPA expects that when the CAMU amendments are
promulgated, Virginia will be authorized for the 1993 CAMU rule, and
thus requests comment on its tentative determination to grant interim
authorization for the proposed amendments, when promulgated, to
Virginia.
[[Page 51118]]
D. Authorization of States Currently Authorized for Corrective Action,
But Not the Existing CAMU Rule
When EPA promulgates the proposed CAMU amendments, there will be a
number of States authorized for corrective action that will not be
authorized for the 1993 CAMU rule. Currently, there are 13 States in
this situation. They are: Arkansas, California, Colorado, Guam,
Kentucky, Maine, Missouri, Mississippi, Montana, New Hampshire, New
Mexico, Ohio, and South Carolina. In addition to these States, there
may be States authorized for the 1993 CAMU rule that did not receive
interim authorization-by-rule. Because CAMUs expedite clean-ups, EPA
will encourage all of these States to seek final authorization for the
CAMU regulations, including today's proposed amendments as soon as
possible. (Alternatively, States could request and receive interim
authorization under Sec. 271.24.) EPA also believes that the
authorization process for the CAMU regulations can and should be
completed expeditiously.
1. Content of a State's Application for Final Authorization
The State authorization revision procedures in Sec. 271.21(b)
provide EPA with the discretion to consider the circumstances of
individual States when determining what the content of a State's
application for final authorization should be. EPA believes that States
that are authorized for corrective action and are seeking authorization
for the amended CAMU rule generally would not need to submit a revised
Program Description (PD) and Memorandum of Agreement (MOA) to EPA,
where the program seeking authorization for the CAMU regulations is the
same program that is authorized for corrective action.
The implementation of the CAMU regulations requires States to make
clean-up decisions that are in effect the same types of decisions
States already implement through their corrective action programs.
Therefore, EPA believes that the adoption and implementation of the
CAMU regulations requires the same technical and resource capability
that States already have to operate the corrective action program.
Generally, no changes to the MOA between the State and EPA should be
necessary as a result of the CAMU regulations because Agency
coordination issues would have been addressed during the authorization
process for corrective action. However, EPA would have the discretion
to request these documents or other information, if necessary.
EPA does believe that States seeking final authorization should
address the CAMU regulations in a revised Attorney General's (AG)
statement of authority. The CAMU regulations create a new type of waste
management unit that can be used only in certain situations after a
facility application and Agency review process. Thus, States may need
to establish new statutory authority, or interpret their existing
authorities to determine that they can approve and regulate these
units.
2. Authorization Approach for States That Adopt the CAMU Regulations by
Reference or Verbatim
Many States often adopt Federal regulations verbatim or incorporate
them by reference into their regulations. It is likely that many States
will adopt the CAMU regulations in this manner. When States adopt
Federal regulations using these methods, it is not difficult for EPA to
determine whether the State regulations are equivalent to their Federal
counterparts. Because of this ease of review, and the high priority of
State authorization for the CAMU regulations, the Agency believes that
the authorization process for these States under Sec. 271.21 should be
quick. Thus, once EPA receives an acceptable authorization application,
including a revised AG Statement, from a State which incorporates the
CAMU amendments by reference or adopts them verbatim, EPA would
immediately proceed to publish a FR notice which grants final
authorization to that State. An exception to this expectation would be
cases where in EPA's judgment, known issues with the existing State
program greatly affect the program's prospects for authorization. An
example of such issues would be questions regarding a State's
enforcement authority (e.g., audit law issues), or capability (e.g.,
resource issues). It should also be noted that EPA expects to process
all State authorization applications for the CAMU regulations as
quickly as possible, regardless of the method of State adoption.
VI. Effective Date
Regulations promulgated pursuant to RCRA Subtitle C generally
become effective six months after promulgation. RCRA section 3010(b)
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.
EPA is proposing that today's rule become effective within 90 days
after promulgation of the amendments. Because today's proposal would
``grandfather'' CAMUs (see discussion above in ``Grandfathering
CAMUs''), a 90-day effective date would only affect any unapproved
CAMUs that do not meet the criteria for grandfathering. Thus, EPA
believes that because there would be ample time for facilities to
adjust to the new procedural changes and waste management standards,
the regulated community would not need the full six months to come into
compliance with the final rule. However, EPA believes that a time
period shorter than 90 days would not enable States that are currently
authorized for the CAMU rule to gain interim authorization, even under
today's proposed interim authorization-by-rule approach. EPA requests
comment on whether a 90-day effective date is appropriate.
VII. Conforming Changes (40 CFR Subpart S, Secs. 260.10)
Today's proposal would change the title of 40 CFR Part 264 Subpart
S from ``Corrective Action for Solid Waste Management Units'' to
``Special Provisions for Cleanup.'' The current title reflects the
Agency's intention in 1993, when it was added to the CFR, to finalize
the comprehensive corrective action regulations for solid waste
management units proposed in September 1990. 58 Fed. Reg. 8658
(February 16, 1998). As discussed more fully above, in the section
titled ``Releases to Groundwater (Sec. 264.552(e)(5),'' the Agency
withdrew the majority of that proposal in October, 1999. In addition,
the current and proposed provisions of Subpart S address CAMUs,
temporary units, and staging piles, which are all units which may only
be used for the management of cleanup wastes, and which, in some
instances, may be used at sites not subject to RCRA corrective action.
EPA therefore believes that this change will ensure that the title of
Subpart S more accurately conveys the provisions that are contained
within it.
The conforming changes to Sec. 260.10 are made to implement the
distinction being drawn in today's proposed rule between CAMUs that
would be grandfathered and CAMUs that would be subject to today's
proposed standards at Sec. 264.552. As discussed above in the section
titled ``Eligibility of Wastes for Management in CAMUs,'' EPA is
proposing to modify the definition governing the types of wastes that
can be managed in a CAMU, and is proposing to change the name of waste
[[Page 51119]]
eligible for management in CAMUs from ``remediation waste'' to ``CAMU-
eligible waste.'' This revised definition would apply to new CAMUs but
not to CAMUs that qualify to continue implementation under today's
proposed ``grandfathering'' provisions (see proposed Sec. 264.550). EPA
is making two conforming changes as a result of modifying the
definition of remediation waste in this fashion. The first change is to
remove the existing definition of CAMU at Sec. 260.10 and to include it
directly in Sec. 260.551(a) (the introductory paragraph to the 1993
CAMU provisions, which would become, as a result of the regulations
proposed today, the regulations applicable to grandfathered CAMUs). The
second change would be to modify the existing definition of CAMU at
Sec. 260.10 by changing ``remediation wastes'' to ``CAMU-eligible
wastes,'' and to place the definition directly in the amended CAMU
regulations at Sec. 264.552(a).
EPA also changed the term ``remediation waste'' to ``CAMU-eligible
waste'' throughout the CAMU regulatory language.
VIII. Analytical and Regulatory Requirements
A. Planning and Regulatory Review Executive Order 12866
Under the Planning and Regulatory Review Executive Order 12866 (58
Federal Register 51,735 (October 4, 1993)), an agency must determine
whether the regulatory action is ``significant'' and therefore subject
to OMB review and the requirements of the Executive Order. 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.
Pursuant to the terms of Executive Order 12866, it has been
determined that today's proposed rule is a ``significant regulatory
action'' because of novel legal or policy issues arising in the rule.
As such, this action was submitted to OMB for review. Changes made in
response to OMB suggestions or recommendations will be documented in
the public record. The proposed rule is estimated to have annual
incremental costs between $130,000 and $305,000, and therefore is not
viewed as economically significant under to the Executive Order.
EPA requests comment on the data, assumptions, and methodology
described below employed to estimate the impacts of today's proposed
rule. EPA has prepared an economic support document for the proposed
rule entitled ``Economic Analysis of the Proposed Amendments to the
CAMU Rule.'' This document can be found in the docket for today's
proposed rule.
This section of the analysis discusses (1) the economic analysis
background and purpose, (2) the CAMU administrative approval costs
assessment, (3) the analysis of impacts resulting from the treatment
and unit design requirements, (4) the assessment of potential change in
CAMU usage to result from the rule, and (5) the summation of these
impacts.
1. Economic Analysis Background and Purpose
A CAMU is: ``An area within a facility that is used only for
managing remediation wastes for implementing corrective action or
cleanup at the facility.'' (40 CFR 260.10) CAMUs may be used to
consolidate hazardous wastes from various areas at the facility. While
one of the chief reasons for CAMU usage is to facilitate more treatment
of cleanup wastes in general (see discussion earlier in the preamble),
wastes placed in CAMUs are not subject to the Land Disposal Restriction
requirements for treatment. In addition, under the 1993 CAMU Rule,
CAMUs are not required to meet the existing 40 CFR Part 264 and Part
265 minimum design, operating, closure, and post-closure requirements
for hazardous waste units.
The CAMU provisions being proposed today would amend the existing
CAMU rule. This economic analysis examines the impacts from these
proposed amendments compared to the existing CAMU rule provisions. This
section briefly discusses the baseline and post-regulatory scenarios in
the analysis, and provides an overview of the incremental impacts
assessed.
a. Framework for the Analysis. The Agency faced two important
questions in developing the framework for this analysis. The first was
how to address defining the universe of facilities affected by today's
rule. The second was how to approach assessing the incremental changes
in CAMUs under the baseline and post-regulatory scenarios.
The universe of facilities which could potentially employ a CAMU in
remediation, and thus could be affected by today's rule, includes
facilities performing cleanups under RCRA corrective action, Superfund,
and state cleanup authorities. There are over 6,000 facilities which
can be potentially reached through corrective action authority; this
figure does not include Superfund sites or other cleanup sites where
CAMUs may be used in the future. Of these facilities, today's proposed
rule would not impose costs on any existing CAMUs that continue to
manage wastes in the general manner for which they were approved, or,
of course, on any facilities which manage their wastes without the use
of a CAMU (e.g., they send their wastes off-site). Today's proposed
standards would apply to CAMUs which are not subject to the existing
standards under the grandfathering provisions. However, to determine
the number of facilities, out of this total number, which would in fact
require remediation at some point in the future under one of these
authorities, and would employ a CAMU in the remedy, would require
significant effort and yield uncertain results.
Therefore, EPA considered the use of existing data on CAMU usage.
The Agency first examined the 1993 CAMU RIA, which was performed in
support of the existing CAMU rule. In this RIA, the Agency made a
projection of the number of facilities which would employ CAMUs in the
future. This projection was based on use of expert panels which
reviewed, on a facility-by-facility basis, a randomly selected sample
of 79 corrective action facilities and determined when CAMUs would be
employed in remediation. The impacts estimated for these facilities
were extrapolated to the corrective action universe to develop a
national estimate of impacts for the CAMU rule. The Agency estimated
that the existing rule would result in CAMUs being employed at
approximately 1,500 facilities, or approximately 75 CAMUs per year over
a 20 year period.
However, based on data showing actual CAMU usage over the past
seven years, the Agency believes the 1993 RIA projections do not
represent an accurate forecast of the expected use of CAMUs in the
future. These data, discussed in more detail below, show an actual CAMU
approval rate of approximately six CAMUs per year. The disparity
between the 1993 RIA projections and the actual usage is likely the
result of four factors. First, the 1993 RIA baseline
[[Page 51120]]
is very different from the remedial setting which has existed in recent
years. Chiefly, the RIA assumed significant excavation and treatment of
wastes at sites, with heavy reliance on combustion technologies and
little use of innovative treatment or remedial approaches. These
approaches tend to be less expensive than combustion technology, and
are much more available and in use than was anticipated in the 1993
RIA. Therefore, the pervasive demand for CAMUs to lower large remedial
costs did not materialize as anticipated in the 1993 RIA. Second, due
to its timing, the RIA estimates do not include impacts on CAMU use
which resulted from various remedial policy developments such as the
stabilization initiative, the use of environmental indicators, and the
Phase IV LDR soil treatment standards. These developments have resulted
in increased stabilization of sites, and thus less excavation and
treatment of wastes (in the short term). This shift created conditions
which reduced the need to rely on CAMUs as much as had been originally
estimated in the 1993 RIA projections. Additionally, the availability
of alternatives to CAMUs, such as staging piles and areas of
contamination (AOCs), has potentially decreased the use of CAMUs
somewhat compared to that originally projected. Third, the Agency
thinks that the RIA usage projections may have been unrealistically
high given that most corrective action facilities are in the
investigation stage. Finally, the Agency believes that CAMU use has
been dampened over the past seven years due to the uncertainty
surrounding the use of CAMUs which resulted from the CAMU litigation,
which followed shortly after the rule's promulgation.
Therefore, the Agency employed the data on existing CAMUs in the
CAMU Site Background Document. These data were collected from regional
and state site managers on CAMUs approved to date under the existing
CAMU rule. This report contains information on 39 CAMUs approved under
the existing rule for which the Agency had good quality data. These
CAMUs were those identified by the EPA Regions as either approved or
currently under discussion. For each CAMU, the Agency obtained
information on the use of the CAMU at the site, types of wastes
managed, treatment required, and unit design; the data are contained in
the CAMU Site Background Document, which is included in the docket for
today's proposed rule.
Using these data, the Agency estimated an annual CAMU approval rate
for the past seven years, and applied that rate to project CAMU usage
in the future. In projecting future use based on historical data, the
Agency assumes that the 39 CAMUs are reasonably representative of
expected future CAMU use. This assumption rests on the completeness of
the data in the CAMU Site Background Document; this document contains
information from all the CAMUs approved to date for which the Agency
had good data. Therefore, it provides a reasonable basis for
understanding how the CAMU rule has been implemented to date. For
purposes of this analysis, the Agency assumes there will be no new
regulations or policy initiatives which would affect CAMU usage in the
future. (Note: One exception in the anticipated change is the removal
of the uncertainty associated with the CAMU litigation. The Agency has
assessed the impacts from this change on the CAMU usage rate as a part
of the analysis of the incremental impacts of today's proposed.)
These historical data also helped identify the differences in a
CAMU under the existing rule (baseline case) as compared to a CAMU
under the proposed provisions (post-regulatory case). As discussed in
more detail below, the Agency used the information on the 39 existing
CAMU remedies to assess consistency with the proposed provisions in
today's rule. This assessment involved a facility-by-facility
comparison of the existing remedy (baseline case) with the proposed
provisions (post-regulatory case). In such an approach, the Agency
again assumes that these actual CAMU remedies selected in the past are
reasonably representative of CAMU remedies which would be selected
under baseline conditions in the future. However, the Agency believes
this assumption to be sound for the same reasons stated above regarding
CAMU usage. EPA thinks these remedies are the reasonable outcome of the
existing CAMU regulations implemented within the context of standard
remedial goals for cleanup. The Agency requests comment on this
assessment, and any potential effects of using these historical data to
assess the impacts of today's rule.
Additionally, the Agency requests comment on the assumptions behind
the development of the baseline and post-regulatory scenarios employed
within this analytical framework. Comments are requested on the
accuracy of the results derived from employing the framework described
above for this analysis.
b. Baseline Case Description. The baseline scenario provides a
reference against which the impacts of a particular action (e.g., a
regulation) are measured. For the purposes of this analysis, the
baseline is defined as the 1993 CAMU rule as implemented to date. The
data underlying EPA's baseline analysis are described in the CAMU Site
Background Document, which is included in the docket to today's
proposed rule. This document provides detailed information on 39
existing CAMUs approved as of early 2000; these data have been verified
by EPA Regional staff. Of the 39 CAMUs, nine are temporary CAMUs.
According to these data, approximately 70 percent of facilities using
CAMUs are performing treatment of waste. As mentioned above, EPA
assumes that the 39 existing CAMUs are representative of future site
characteristics and CAMU usage rates.
The Agency has not attempted to adjust this baseline to account for
the effects of the uncertainty surrounding the CAMU ``litigation
cloud,'' which EPA believes has slowed the implementation of the CAMU
rule since shortly after its promulgation. As discussed above, the 39
CAMUs implemented under the existing rule represent the CAMUs known to
be fully approved or under discussion to date. These CAMUs were
approved as a part of the overall remedy at the facility, and therefore
would generally be expected to follow the remedy selection criteria for
long-term reliability and protectiveness recommended in EPA guidance
(in addition to the CAMU requirements).
The baseline is discussed in greater detail in the Economic
Analysis of the Proposed Amendments to the CAMU Rule.
c. Post-Regulatory Case Description. The post-regulatory scenario
is modeled as the CAMU rule amended by the provisions in today's
proposed rule. The reader is directed to the preamble discussion and
rule language for an understanding of the proposed rule provisions. The
economic analysis focuses on the impacts from the proposed information
submittal requirements related to the CAMU approval process, the
treatment requirements and adjustment factors, and the liner and cap
requirements. Although today's proposed amendments to the CAMU rule
would be more stringent than the existing federal CAMU regulations, EPA
believes in practice that CAMUs are already generally meeting these
standards under the existing rule. Additionally, a bounding analysis is
included which examines the overall impact of the proposed provisions
on the rate of
[[Page 51121]]
CAMU usage. It should be noted that the grandfathering provision of the
proposed rule results in impacts accounted for in the post-regulatory
scenario in this analysis. In other words, for the window of
opportunity discussed in the proposed rule wherein CAMUs can be
approved under existing rule conditions, there is a divergence in
compliance behavior with the baseline, and these impacts are counted as
attributable to today's rule. See the Economic Analysis of the Proposed
Amendments to the CAMU Rule for a more detailed discussion of the post-
regulatory scenario for this analysis.
d. Incremental Impacts: The analysis of today's proposed rule
focuses on two potential impacts: (1) the incremental impacts
associated with the changes to the approval process for CAMUs; and, (2)
the incremental impacts associated with the change in treatment, unit
design, and use of temporary (i.e. treatment and/or storage) CAMUs.
Additionally, the Agency has prepared a bounding analysis estimating
the impacts from a change in the overall usage of CAMUs resulting from
today's proposed amendments. The methodology and results for these two
components of the analysis, and for the bounding analysis, are
discussed below. EPA requests comment on the impacts assessed in this
analysis.
2. CAMU Administrative Approval Costs Assessment
Today's proposed amendments to the CAMU rule formalize a number of
administrative steps in the CAMU approval process. This analysis
examines the incremental impacts associated with those administrative
steps compared to the approval process in the baseline. The estimates
are formulated through input by EPA Regional and state regulators. The
regulators contacted have extensive knowledge of the approval process
under the existing CAMU rule, and understand the changes to that
approval process that would be brought about by the proposed
amendments. The analysis estimates total incremental impacts ranging
between $53,000 and $175,000 per year. The Agency requests comment on
the approach described below which was employed in estimating the
incremental impacts associated with today's proposed action.
The Agency followed three steps in assessing the incremental
impacts from the CAMU approval process formalized in the proposed rule.
First, the Agency selected four CAMU experts from the Regions and one
from the states. These experts were selected based on their knowledge
of CAMU implementation under the existing rule and their knowledge of
the proposed amendments. Of the 39 CAMU total, the number of CAMUs
approved within all the selected experts' regions/state sum to 25.
Second, the Agency obtained incremental cost/burden estimates from CAMU
experts through phone contacts made separately with each expert.
Experts were provided with a copy of Appendix A of the settlement
agreement reached between EPA and the Petitioners (this document is
included in the docket for today's proposed rule). The phone contacts
followed a set of questions designed to cover all areas of the proposed
rule (for a copy of these questions, see the Economic Analysis of the
Proposed Amendments to the CAMU Rule). EPA requested that experts
estimate the additional approval burden for both regulators and owner/
operators, as each would participate variously in performing such
approval steps. Third, the Agency tabulated the burden estimates made
by the CAMU experts. This process provided the Agency with expert
estimates of the incremental impacts for the CAMU approval process. The
estimates provided by individual experts ranged from a low of six hours
total to a high of 1,360 hours total per CAMU. Using the individual
estimates of burden provided by the experts, EPA calculated an average
total burden range. EPA estimates the range of total incremental
burden, calculated as an average of the five expert estimates, to be
between 98 hours and 323 hours per CAMU.
Expert views differed significantly on the impacts. Two of the
experts believed the formalization of a process associated with certain
steps might potentially reduce overall burden. Such a formalized
process, they believed, would result in less time spent discussing the
proper approach to take at a particular stage in the approval process.
Alternatively, one expert thought that the changes in process
requirements were so onerous that they could potentially drive
facilities away from using CAMUs.
The experts estimated additional burden associated with four areas
of the proposed amendments: (1) Information submission associated with
the determination of whether wastes were subject to LDRs at the time of
disposal. This requirement is a part of the provision in the proposed
amendments which deals with CAMU waste eligibility; (2) identification
of principal hazardous constituents (PHCs). Only one expert estimated
additional burden associated with identification of PHCs at the site;
(3) adjustment factor E (Sec. 264.552(e)(4)(v)(E)) which would offer
adjustment from the treatment standards based on chemical/physical
properties of the waste and the long-term protection offered by the
unit. Experts estimated additional burden associated with use of the
factors for adjustment from treatment in the proposed amendments. The
experts focused on adjustment factor E in making their burden
estimates, as it was perceived to be the most complicated, and
therefore the most likely to require significant formalized written
justification; and, (4) the liner and cap standards in the proposed
rule.
Employing these burden estimates, the Agency calculated the cost
impact attributable to these provisions. The Agency performed the
following steps in estimating total burden. First, the Agency estimated
the number of CAMUs approved annually. The per CAMU estimate of
additional burden is multiplied by an estimate of the number of CAMUs
approved per year. As discussed in the Economic Analysis of the
Proposed Amendments to the CAMU Rule, EPA assumed this rate to be the
same as that calculated for the baseline. This rate was estimated to be
six CAMUs per year. This analysis does not consider any changes in the
number of CAMUs approved per year which could result from the rule.
Second, the Agency multiplied the additional hours estimated for
approval by the annual number of CAMUs approved. This calculation
results in an estimate of the total incremental burden associated with
the proposed amendment approval process. This burden estimate ranges
from 590 hrs per year to 1,940 hrs per year. Third, the Agency obtained
a labor rate to apply to the estimates of additional hours. EPA used
the highest hourly labor rate ($90/hour) from the recently approved
Part B Permit ICR because the CAMU experts did not provide a breakdown
of labor categories in their estimates. Fourth, the Agency multiplied
the total incremental hours estimated for the CAMU approval process
under the proposed amendments by the labor rate. This produced an
estimate for the total incremental impacts attributable to the approval
process in the rule, which ranges from $53,000 per year to $175,000 per
year. The Agency requests comment on the specific steps employed to
estimate impacts of the approval process, in particular, whether any
important steps have been left out or mischaracterized with respect to
the impacts of these proposed provisions.
This range represents the annual incremental impacts estimated to
result from the proposed amendments, assuming that six CAMUs are
approved
[[Page 51122]]
per year. If the annual approval rate changed, the annual impacts for
that year would change accordingly. Dividing that range by six (the
number of CAMUs approved per year) yields an estimate of the
incremental impact per CAMU; this estimate ranges between approximately
$8,800 and $29,000 per CAMU. This calculation assumes that all the
costs for CAMU approval occurred within a single year. A bounding
analysis conducted using the highest burden estimate to calculate the
impacts for the approval process yields an impact of $734,000 per year,
or $122,000 per CAMU. The Agency requests comment on costs estimated in
this section, as well as additional data to more accurately analyze
these costs.
3. Assessment of the Incremental Impacts Related to the Treatment and
Unit Design Provisions, and to the Treatment and/or Storage Only CAMU
Provisions
This section examines the incremental impacts attributable to the
treatment and unit design provisions, and to the treatment and/or
storage only CAMU provisions in today's proposed rule. As described in
the analytical framework discussion above, this analysis examines what
changes would be required to make the 39 existing baseline CAMUs
consistent with the new amendments. Based on these estimated changes,
the Agency determines the impacts of the proposed amendments. (Please
see the side-by-side comparison of the existing CAMU regulations and
today's proposed rule language which is included as an appendix in the
Economic Analysis of the Proposed Amendments to the CAMU Rule for
today's proposed rule).
The Agency first examines the treatment and unit design
specifications employed for existing CAMUs under the baseline. These
baseline CAMU remedies were assessed in light of the treatment and unit
requirements proposed in the CAMU amendments. An assessment was made of
expected differences in treatment and unit design anticipated under the
proposed amendments, and the resulting costs for those changes were
quantified.
The section next addresses the treatment and/or storage only
provisions in the CAMU amendments. EPA assesses how the ``temporary''
CAMU (referred to as ``treatment and/or storage only'' CAMUs in the
today's rule) provisions have been implemented in the baseline by
examining the temporary CAMUs approved to date under the existing rule.
These CAMUs were analyzed in light of the new treatment and/or storage
only CAMU provisions in the proposed amendments.
The Agency requests comment on the approach used to assess the
changes in treatment, unit design, and use of treatment and/or storage
only CAMUs resulting from today's proposed amendments. In particular,
the Agency requests information addressing the expected significance of
the treatment or unit design standards.
a. Treatment and Unit Design Standards Implemented in the Baseline:
Data on the implementation of the existing CAMU rule shows that the 30
permanent CAMUs approved to date have generally employed significant
treatment of wastes (approximately 70 percent of CAMUs employed
treatment of wastes prior to disposal) with disposal in protective
units (i.e., generally employing liners for new units, protective caps,
and groundwater monitoring). EPA has detailed information on 39 CAMUs
in the baseline (see the CAMU Site Background Document in the docket
for today's proposed rule for a complete discussion of each CAMU).
These data provide a reasonable datum from which to assess the
incremental impacts associated with the new treatment and unit design
provisions in the proposed amendments.
b. Treatment and Unit Design Provisions in the Post-Regulatory
Case: The proposed amendments would establish national minimum
treatment standards which all principal hazardous constituents (PHCs)
must meet prior to disposal in a CAMU, unless the Agency determines in
a given case that the standards are inappropriate (see discussion of
adjustment factors below). This national minimum standard, which is
essentially taken from the treatment standard promulgated for hazardous
soils in the Phase IV LDR Final Rule, among other things, requires
treatment of wastes to 90 percent reduction from the original
concentrations, capped by 10xUTS level. This standard would apply for
all CAMU-eligible wastes.
Accompanying the national minimum treatment standard are five
adjustment factors, which provide site-specific flexibility in applying
these treatment standards through identification of certain conditions
under which full compliance with the national standard may be adjusted.
This adjustment may be employed to make treatment more or less
stringent, and may be used to adjust a treatment level or method. These
proposed treatment requirements and adjustment factors were crafted
through examination of the current implementation of the CAMU rule in
the baseline, and the general process involved in remedial selection in
the corrective action program, as well as the treatment variances used
for as-generated waste under the Land Disposal Restrictions program.
The proposed amendments would also establish standards for liners
at all new and replacement units or lateral expansion of existing
units, and caps at units where waste is left in place. The reader is
directed to the relevant discussions on the proposed provisions in
their appropriate preamble sections above (see ``Liner Standard,''
``Cap Standard,'' and ``Adjustment Factors to the Treatment
Standard'').
c. Incremental Impacts Associated with Proposed Treatment and Unit
Design Provisions: Having examined the provisions on treatment and unit
design in the proposed amendments, the Agency then assessed the
incremental impacts from these provisions with respect to current
baseline implementation of the CAMU rule. The Agency examined how the
baseline requirements have been implemented to date, and assessed where
changes would be required at these facilities under post-regulatory
conditions. See Economic Analysis of the Proposed Amendments to the
CAMU Rule for details on this comparison.
EPA estimated the incremental costs associated with these standards
through the following steps. First, the Agency compared the data on
each baseline CAMU against the provisions in the proposed CAMU
amendments. For this assessment, EPA addressed the following questions
for each CAMU remedy, where necessary: (1) Does the facility have
constituents that would likely be designated as PHCs?; (2) For a
facility where PHCs are determined to likely be present, was treatment
performed to reduce PHC concentrations?; (3) Where treatment was being
performed, was it meeting the proposed national minimum standards?; (4)
Was the CAMU an existing unit?; and, (5) What liner and cap
requirements were instituted for the CAMU? Second, based on this
assessment, the Agency made a determination as to whether the CAMU was
consistent with the treatment and unit design provisions of the
proposed amendments. Third, where the Agency identified inconsistency
with the proposed national minimum standards, application of the
adjustment factors was considered. Potential use of adjustment factors
was only considered appropriate where site-specific factors were
consistent with the circumstances described in today's preamble for the
different adjustment factors. And fourth, where the adjustment factors
were not
[[Page 51123]]
applicable, the Agency identified the steps that would be necessary to
render the CAMU consistent with the proposed provisions. Each of the
above steps was performed by EPA based on a detailed knowledge of the
baseline CAMU requirements, the proposed rule provisions, and the
details of the existing CAMU being analyzed. Please see the site
summaries for the 39 CAMUs which are included in the CAMU Site
Background Document (included in the docket for today's proposed rule).
Additionally, the reader is directed to the preamble discussion of the
adjustment factors for elaboration on how each adjustment factor would
be applied at a given facility.
EPA performed this evaluation for the 30 permanent baseline CAMUs
approved to date. The Agency estimated costs in the cases where
additional requirements were identified as necessary for the CAMU to
reach consistency with the proposed provisions. Results for the 30
permanent CAMUs are shown below in Exhibit VIII-1; results for the nine
treatment and/or storage only CAMUs are discussed following the
exhibit.
For the 30 permanent CAMUs, EPA estimates that 15 facilities would
potentially require use of one of the adjustment factors to achieve
consistency with the proposed amendments. Note that the potential use
of adjustment factors was only considered where such use would be
consistent with the circumstances described in today's preamble for
each adjustment factor. Of the five adjustment factors provided for in
the amendments, adjustment factor A for technical impracticability was
estimated to be needed four times and possibly two additional times to
achieve consistency, adjustment factor B addressing consistency with
site cleanup goals was estimated to be possibly needed three times to
achieve consistency, and adjustment factor E providing adjustment from
the treatment standards based on chemical/physical properties of the
waste and the long-term protection offered by the unit was estimated to
be possibly needed eight times to achieve consistency. (Note that the
estimated frequency of use for the individual adjustment factors does
not sum to the overall number of facilities using adjustment factors
due to the Agency identifying different available options for
adjustment factor use at several facilities.)
Exhibit VIII-1.--Comparisons of Baseline Practices and Post-Regulatory Requirements for Permanent CAMUs
----------------------------------------------------------------------------------------------------------------
CAMU comparison: baseline to post- Significance of Estimated incremental
regulatory Number of CAMUs differences impact
----------------------------------------------------------------------------------------------------------------
Treatment and Unit Design Consistent 29 N/A...................... N/A.
With Post-Regulatory Requirements.
Treatment Not Consistent With Post- 0 N/A...................... N/A.
Regulatory Requirements.
Unit Design Not Consistent With Post- 2 Under the New Rule, Two CAMU Cap Costs for
Regulatory Requirements. Facilities May Have Facility = $600,000 to
Required Additional Cap $1,200,000 CAMU Cap
Design Features.* Costs for Facility =
$205,000. [TOTAL =
$800,000 to $1,400,000].
Treatment and Unit Design Not 0 N/A...................... N/A.
Consistent with Post-Regulatory
Requirements.
----------------------------------------------------------------------------------------------------------------
* These two CAMUs address the disposal of off-site soils contaminated with lead that resulted from smelting
operations. Both facilities remain subject to long-term maintenance and periodic review.
As shown in Exhibit VIII-1, the analysis revealed two facilities
for which the unit design employed in the original CAMU decision was
not consistent with the proposed amendments. In both cases, a final cap
would be required to achieve consistency with the proposed provisions.
EPA estimated costs for these caps based on the specific information
for the given facility. These costs are shown in the exhibit above, and
discussed in greater detail in the background document for the economic
analysis. EPA estimated costs for the cap at one facility to range from
$600,000 to $1,200,000, and costs for the cap at the other facility at
approximately $205,000.
The total estimated costs associated with ensuring that all the
permanent CAMUs approved under the existing rule are consistent with
the proposed amendments is estimated to range from approximately
$800,000 to $1,400,000 (or annualized over 20 years at 7 percent yields
$76,000 to $132,000 per year). The Agency believes that these estimates
reasonably cover the additional requirements to achieve such
consistency with the proposed standards. However, EPA acknowledges the
possibility that, due to the variability of site characteristics and
the limitations of the available data for the given CAMUs, additional
negligible costs such as minor additional treatment of small volumes of
waste could be incurred at any given facility. This analysis does not
consider any changes in the number of CAMUs approved per year which
could result from the rule. The Agency requests comment on the approach
employed to determine the incremental costs of the proposed treatment
and unit design provisions, and the resulting estimates presented in
this section.
d. Incremental Impacts Associated with the Treatment and/or Storage
Only CAMU Provisions: The 1993 CAMU Rule provisions did not contain
standards that were specific to temporary CAMUs (which are now called
treatment and/or storage only CAMUs in the proposed provisions).
However, data indicate that nine treatment and/or storage only CAMUs
were approved in the baseline, and were generally employed for short-
term treatment or storage of wastes at a site. These data provide a
useful datum from which to assess the potential for incremental impacts
resulting from the proposed amendments as they address treatment and/or
storage only CAMUs.
The Agency analyzed the potential incremental costs associated with
achieving consistency with the proposed rule standards for the
treatment and/or storage only CAMUs. No inconsistencies were identified
for these nine CAMUs; therefore, there were no incremental costs
estimated for these units. This analysis does not consider any changes
in the number of CAMUs approved per year which could result from the
rule.
[[Page 51124]]
As stated above, EPA made these comparisons based upon the types of
contaminants, the unit design standards achieved, and the general
circumstances surrounding the use of CAMUs. EPA requests comment on the
comparisons discussed in this section, upon which the cost impacts are
based.
4. Assessment of the Incremental Change in the Number of CAMUs Approved
One potential impact anticipated to result from today's proposed
rule is a change in the average number of CAMUs approved per year. This
section presents the Agency's bounding analysis of the impacts
associated with an incremental change in the number of CAMUs. The
Agency seeks comment on the approach for projecting potential increase
or decrease in the use of CAMUs resulting from these amendments.
The 1993 CAMU Rule was designed to provide incentives for
remediation by removing certain regulatory requirements that affect the
management of hazardous remediation waste during cleanup. The rule
allows facilities to manage hazardous waste in a CAMU without
triggering the Land Disposal Restrictions (LDR) requirements, and to
dispose of hazardous remediation waste in a CAMU. The CAMU is exempt
from minimum technology requirements (MTRs), although it is subject to
performance-based standards intended to protect human health and the
environment. The rule established performance standards for the design,
operation, and closure of CAMUs, and provided the site-specific
flexibility that EPA believes is necessary to encourage remediation at
cleanup sites. However, EPA was sued on the CAMU rule shortly after its
promulgation. The resulting uncertainty surrounding the viability of
the CAMU rule, along with other factors discussed above such as the
increased use of Areas of Contamination (AOCs) and staging piles, the
introduction of the Phase IV Land Disposal Restriction (LDR) soil
treatment standards, and the stabilization initiative in corrective
action, led to considerably less use of CAMUs than the Agency
originally anticipated.
With today's proposed rule, the Agency intends to resolve the
litigation uncertainties which have dampened CAMU usage. Such
resolution could promote the increased use of CAMUs. However, as
discussed above, the Agency does not expect CAMU usage to approach the
rate projected in the 1993 CAMU RIA (roughly 75 CAMUs per year). The
Agency believes that the ``litigation cloud'' only accounts for part of
the difference between actual CAMU usage over the past seven years and
the usage estimated in the 1993 RIA. Other factors contributing to a
potential change in future CAMU use include the impact of the
formalized approval process, and the effect of the treatment and unit
design provisions. It is very difficult to assess the significance of
these factors on the individual decision at a given facility regarding
whether to use a CAMU in remediation. This complexity led the Agency to
prepare an order-of-magnitude analysis which seeks to establish the
general direction of change in CAMU usage, and to quantify the
approximate impacts from such change. These estimates focus only on the
potential for changes in the number of CAMUs approved, and do not
address the possible impacts from the formalized approval process or
the treatment and unit design requirements of today's proposed rule.
These impacts are presented to illustrate the potential savings which
could come from such a change in CAMU usage, and should not be
considered a part of EPA's estimate of the actual impacts from today's
proposed rule.
The Agency assessed the overall direction of the expected change in
CAMU use for the three time periods identified for purposes of this
analysis: (1) Grandfathering Window (August 2000 to January 2002); (2)
Early After Promulgation (January 2002 to January 2003); and, (3) Post-
Promulgation Equilibrium (January 2003 to 2006). These time periods
were constructed by the Agency in order to understand the effects of
the factors identified above according to logical breaks in their
influence. For example, the Agency believes that facilities may
increase their use of CAMUs during the Grandfathering Window, given
that CAMUs approved before the effective date of the final amendments
would be exempt from the new requirements. Additionally, CAMUs which
are not approved prior to the effective date of the final amendments
but for which substantially complete applications (or equivalents) were
submitted to the Agency on or before 90 days after the publication date
of the proposed rule would also be grandfathered in under the 1993 CAMU
rule requirements. During this period facilities will also be aware of
EPA's intent to resolve the litigation uncertainty, which EPA believes
has dampened CAMU use. Similar assessments were performed for the two
other time periods.
The Agency estimated the potential change in the number of CAMUs
employed for each of the three time periods based roughly on the
baseline CAMU usage figure of six CAMUs per year. Given the complexity
of projecting the effect of these influences on CAMU usage in the
future, these estimates are provided for illustrative purposes only.
The cost savings from this change were estimated using results from the
1993 CAMU RIA (see page 3-9 of that report). This analysis, prepared in
support of the CAMU rule, estimated the cost savings at a randomly
selected sample of corrective action sites based on expert panel
assessments of the costs for remediation with and without a CAMU. These
figures were extrapolated to determine the national cost impacts for
the CAMU rule. The RIA presents an annual average cost savings per CAMU
of $0.5 million to $0.8 million per facility in 1992 dollars (changing
the figures to 1999 dollars yields an annual cost savings per CAMU
ranging from $0.75 million to $1.20 million).
This range was employed for purposes of this analysis to estimate
order-of-magnitude cost impacts resulting from the changes in CAMU
usage due to today's proposed rule. The annual cost savings per CAMU
figure presented in the 1993 RIA provides the only readily available
data from which to quantify the impacts of a shift from remediation
without a CAMU to use of a CAMU. Although, the Agency believes that
this cost savings estimate could significantly overestimate actual
savings, due to the assumptions employed in the 1993 RIA regarding
excavation and combustion of cleanup wastes. The Agency requests input
on data sources to estimate such impacts. (The 1993 CAMU RIA is
available in the docket.) Within each of the three time periods
examined, a facility could either shift from not using a CAMU
(baseline) to using a CAMU (post-regulatory), or using a CAMU
(baseline) to not using a CAMU (post-regulation). In the case where a
facility did not use a CAMU, there is a range of possible alternatives
which could be considered. For purposes of this analysis, the Agency
bracketed this range with leaving waste untouched on one hand, or
performing full remediation without a CAMU on the other hand. As stated
above, EPA employed the cost savings estimate from the 1993 RIA to
model the cost savings for the case of a shift from performing full
remediation without a CAMU (baseline) to using a CAMU (post-
regulatory). EPA did not possess data on either the possibility of a
shift from leaving waste in place (baseline) to using a CAMU in
remediation (post-regulatory), or the cost impacts
[[Page 51125]]
associated with such a shift. Finally, EPA does not believe it is
reasonable to assume that facilities will shift away from CAMU use as a
result of today's proposed rule; the anticipated costs from today's
rule are not significant enough to result in such shifts. However, in
the Post-Promulgation Equilibrium time period, EPA modeled the case of
a shift from CAMU use (baseline) to full remediation without a CAMU
(post-regulatory). While the Agency does not expected such a change, it
is modeled below for illustrative purposes. The impacts from the
changes in CAMU usage for the three time periods are assessed below
according to these categories of change identified and discussed above
(see exhibit below).
For greater details on the approach to estimating these impacts,
please refer to the Economic Analysis of the Proposed Amendments to the
CAMU Rule in the docket for today's proposed rule. These impacts are
presented in the exhibit below.
Exhibit VIII-2.--Assessment of the Potential Change in CAMU Usage Resulting From the Proposed Rule
----------------------------------------------------------------------------------------------------------------
Scope of the assessment (August 2000 through approximately 2006)
--------------------------------------------------------------------------
Categories of potential change in Grandfathering window Early after Post-promulgation
CAMU usage (Aug. 2000 to Jan. promulgation (Jan. 2002 equilibrium (Jan. 2003
2002: approximately 1\1/ to Jan. 2003: 1 year) through approximately
2\ years \1\ \2\ 2006) \3\
----------------------------------------------------------------------------------------------------------------
Baseline: Full remediation (no 5 to 10 facilities Change Highly Potential for 5
CAMU); Post-Reg: CAMU. estimated (annual Uncertain. facilities estimated
savings of $0.75 to (annual savings of
$1.20 million per $0.75 to $1.20 million
facility). per facility).
Baseline: Leave wastes untouched (no 5 to 10 facilities per Change Highly Potential for 5
CAMU); Post-Reg: CAMU. year estimated (no Uncertain. facilities estimated
cost info available). (no cost info
available).
Baseline: CAMU; Post-Reg: Full No Change Estimated... Change Highly Potential for 5
remediation (no CAMU). Uncertain. facilities estimated
(annual cost of $0.75
to $1.20 million per
facility).
Baseline: CAMU; Post-Reg: Leave No Change Estimated... Change Highly Potential for 5
wastes untouched (no CAMU). Uncertain. facilities estimated
(no cost info
available).
----------------------------------------------------------------------------------------------------------------
Notes:
\1\ Publication of the proposed amendments (August 2000) to the anticipated effective date of Final rule (Jan.
2002), which is 90 days after promulgation of the Final rule (Oct. 2001).
\2\ The effective date of Final rule to one year after effective date of Final rule.
\3\ One year after effective date of Final rule for roughly 5 years of ``equilibrium.''
a. Grandfathering Window: For this time period, the cost savings
associated with a potential increase in CAMU usage of 5 to 10 CAMUs per
year are estimated as:
5-10 CAMUs per year x $0.75-$1.20 million per year = $3.75-$12
million per year per CAMU
This estimate, $3.75 to $12 million per year in savings, is a rough
figure based upon the projected increase in CAMU use associated with
this period. The main influence behind this increase in CAMU usage is
the removal of the litigation cloud in the context of the
grandfathering provision allowing approval under the existing rule.
While it is possible that the facilities which shift to CAMU usage
under this scenario are those which leave waste untouched in the
baseline, cost figures on this shift were not available. Therefore, no
estimate of the impacts associated with this category of change is
provided.
b. Early After Promulgation: As the exhibit above shows, EPA
believes that the factors influencing potential changes in CAMU usage
during this period are too uncertain to provide an assessment of the
potential impacts for this time period. Beside the factors identified
above, there may be a reduction in CAMU usage resulting from the
anticipated increase in CAMUs within the grandfathering time window.
Please see the background document for greater discussion on this
issue.
c. Post Promulgation Equilibrium: For this time period, the cost
savings associated with a potential increase or decrease in CAMU usage
of 5 CAMUs per year are estimated as:
5 CAMUs per year x $0.75-$1.20 million per year = $3.75-$6 million
per year per CAMU
This estimate, ranging from a positive cost of $6 million per year to a
savings of $6 million per year, is a rough figure based upon the
projected change in CAMU usage for this period. Again, while it is
possible that the facilities which shift to or from CAMU usage under
this scenario would be those which left waste untouched, cost figures
on this shift were not available. Therefore, no estimate of impacts
associated with such a shift is provided.
The main competing influences in this time period are the removal
of the uncertainty surrounding the litigation of the CAMU rule, and the
potential dampening effect of the formalized approval process and
treatment/unit design standards.
The range of estimates for the bounding analysis are shown by year
for the scope of the analysis in Exhibit VIII-3 below. The Agency
requests comment on this analysis, including the overall approach to
estimating changes in CAMU usage, as well as the specific results
presented above.
[[Page 51126]]
Exhibit VIII-3.--Impacts Estimated for Potential Changes in the Number of CAMUs Employed Per Year; a Bounding Analysis: Over the Scope of Analysis
[In thousands of dollars]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Impact estimates for each year within the scope of analysis
Bounding analysis estimates -----------------------------------------------------------------------------------------------------------------------
2001 2002 2003 2004 2005 2006
--------------------------------------------------------------------------------------------------------------------------------------------------------
Impacts from CAMU Usage Changes $3,750 savings = No estimate made.. $6,000 savings = $6,000 savings = $6,000 savings = $6,000 savings =
(Illustrative in Nature). $12,000 savings. $6,000 cost. $6,000 cost. $6,000 cost. $6,000 cost.
--------------------------------------------------------------------------------------------------------------------------------------------------------
This bounding analysis was performed in order to account for the
cost impacts resulting from a change in the number of CAMUs approved
per year. For illustrative purposes only, EPA estimated the total
annual impacts of the rule including the bounding analysis estimates.
The Agency developed an upper bound estimate by adding the high-end
cost associated with a potential change in CAMU usage, $6 million per
year, to the high-end of the total cost range shown above. This
summation yields an upper bound cost for the rule of $6.3 million per
year. EPA developed a lower bound estimate by adding the low-end impact
associated with a potential change in CAMU usage, $6 million per year
in savings, to the low-end of the total cost range shown above. This
summation yields a savings for the rule of approximately $5.9 million.
Therefore, the bounding analysis provides a range from approximately
$5.9 million in savings to $6.3 million in costs. As shown in Exhibit
VIII-3, for the year of the grandfathering period, the savings could be
up to $12 million.
The question may be raised as to how this cost savings for
increased CAMU usage in the above bounding analysis compares with the
$1 to $2 billion annual savings in the 1993 CAMU RIA. The 1993 RIA
baseline represented facilities performing remediation under the
corrective action requirements, generally excavating wastes and
treating in compliance with the Land Disposal Restriction (LDR)
requirements via combustion technologies. Given the resulting high
costs for such baseline remedial approaches, the relief provided by the
original CAMU regulation was presumed to be widely applied in the post-
regulatory case. Therefore, significant CAMU usage was estimated. The
baseline for today's proposed rule is described by the historical data
EPA obtained on those facilities which have approved CAMUs over the
past seven years. The projections made above regarding the potential
change in CAMU usage resulting from today's proposed provisions are
based roughly on these baseline CAMU usage figures. Therefore, the
increase in CAMU usage projected in the post-regulatory case in the
above bounding analysis for today's proposed rule is relatively low.
The difference in projected CAMU usage from the 1993 RIA and the
actual usage seen in the CAMU Site Background Document is believed to
be attributable to four factors. These four factors were discussed
above under the analytical framework. The ``litigation cloud'' effect
is just one of the factors posited to account for this difference.
Therefore, the potential resolution of this litigation uncertainty
through today's proposed rule is not anticipated to result in the
significant CAMU usage estimated in the 1993 RIA. Furthermore, the
increased CAMU usage estimated in the above bounding analysis is not
intended to serve as an update to the 1993 RIA projections. Rather, due
to the complexity involved in estimating CAMU usage in the post-
regulatory case for today's proposed rule, the above estimates are made
for illustrative purposes only, and do not represent a definitive
statement of the expected savings from the rule.
5. Assessment of the Total Impacts for the Proposed Amendments to the
CAMU Rule
This section presents a brief assessment of the total impacts of
the Proposed Amendments to the CAMU Rule. The Agency presents the
impacts estimated for the formalized CAMU approval process and for the
treatment/unit design standards, and treatment and/or storage only
provisions for CAMUs below in Exhibit VIII-4.for a presentation of the
total impacts; see also The estimates for the bounding analysis are
discussed above, and are not included in the exhibit. Please see the
Economic Analysis of the Proposed Amendments to the CAMU Rule for a
full discussion of these impacts.
Exhibit VIII-4.--Total Annual Impacts Estimated Over the Scope of Analysis, Assuming Constant Rate of 6 CAMUs per Year
[In thousands of dollars]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Impact estimates for each year within the scope of analysis
Impacts assessed for CAMU amendments -------------------------------------------------------------------------------------------------------------
2001 2002 2003 2004 2005 2006
--------------------------------------------------------------------------------------------------------------------------------------------------------
1. CAMU Approval Process Impacts.......... No Costs Incurred........... $53-$174 $53-$174 $53-$174 $53-$174 $53-$174
2. Impacts from Treatment and Unit Design No Costs Incurred........... $76-$132 $76-$132 $76-$132 $76-$132 $76-\1\ $132
Requirement.
Total Impacts....................... No Costs Incurred........... $130-$305 $130-$305 $130-$305 $130-$305 $130-$305
--------------------------------------------------------------------------------------------------------------------------------------------------------
Notes:
1 This cost was calculated from a capital cost, annualized over 20 years. Therefore, it would continue for 15 more years.
The total impacts associated with the proposed rule are estimated
as the sum of the incremental approval costs and the incremental
treatment/unit design costs. The analysis provides estimates of the
impacts from the rule from the grandfathering window to five years
following the effective date of the rule (2001 to 2006). As discussed
above, the impacts for the treatment and unit design standards are
annualized figures associated with two facilities which
[[Page 51127]]
required additional unit design criteria be met to achieve consistency
with the proposed amendments. The cost impacts estimated for the
potential change in the number of CAMUs are considered in the bounding
analysis, which are discussed below. The total impacts are determined
to range from $130,000 per year to $305,000 per year.
B. Regulatory Flexibility Act (RFA) as Amended by the Small Business
Regulatory Enforcement Fairness Act (SBREFA)
This section of the preamble addresses the potential impacts
incurred by small entities as a result of the proposed CAMU amendments.
The Agency requests comment on the approach employed to assess small
entity impacts, which is discussed below. In particular, the Agency
seeks comment on whether the potential impacts to small entities have
been fully addressed in this analysis.
1. Methodology to Assess Small Entity Impacts
The RFA generally requires an agency to prepare a regulatory
flexibility analysis of any rule subject to notice and comment
rulemaking requirements under the Administrative Procedure Act or any
other statute unless the agency certifies that the rule will not have a
significant economic impact on a substantial number of small entities.
Small entities include small businesses, small organizations, and small
governmental jurisdictions.
For purposes of assessing the impacts of the proposed amendments to
the rule on small entities, small entity is defined as: (1) A small
business that meets the RFA default definitions for small business
(based on SBA size standards www.sbaonline.sba.gov/size); (2) a small
governmental jurisdiction that is a government of a city, county, town,
school district or special district with a population of less than
50,000; and (3) a small organization that is any not-for-profit
enterprise which is independently owned and operated and is not
dominant in its field.
After considering the economic impacts of today's proposed rule on
small entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. EPA has
determined that there are two facilities employing CAMUs which are
small entities, and that these facilities would incur impacts ranging
from no impact to 0.004 percent of net sales. Additionally, there are
nine facilities for which EPA could not obtain the data to determine
size status, but which EPA had the data to assess impacts. For these
nine facilities, the impacts ranged from 0.002 to 0.48 percent of net
sales. The Agency reached this determination based on the analysis
which is described below.
a. Framework for the Analysis. The Agency faced two important
questions in developing the framework for analyzing small entity
impacts. The first was how to address defining the universe of
facilities affected by today's rule. The second was how to approach
assessing the incremental changes in CAMUs under the baseline and post-
regulatory scenarios.
The universe of facilities which could potentially employ a CAMU in
remediation, and thus could be affected by today's rule, includes
facilities performing cleanups under RCRA corrective action, Superfund,
and state cleanup authorities. There are over 6,000 facilities which
can be potentially reached through corrective action authority; this
figure does not include Superfund sites or other cleanup sites where
CAMUs may be used in the future. Of these facilities, today's proposed
rule would not impose costs on any existing CAMUs that continue to
manage wastes in the general manner for which they were approved, or,
of course, on any facilities which manage their wastes without the use
of a CAMU (e.g., they send their wastes off-site). Today's proposed
standards would apply only to CAMUs which do not remain subject to the
existing standards under the grandfathering provisions. However, to
determine the number of facilities, out of this total number, which
would in fact require cleanup at some point in the future, and would
employ a CAMU in the remedy, would require significant effort and yield
uncertain results.
Therefore, EPA considered the use of existing data on CAMU usage.
The Agency first examined the 1993 CAMU RIA, which was performed in
support of the existing CAMU rule. In this RIA, the Agency made a
projection of the number of facilities which would employ CAMUs in the
future. This projection was based on use of expert panels which
reviewed, on a facility-by-facility basis, a randomly selected sample
of 79 corrective action facilities and determined when CAMUs would be
employed in remediation. The impacts estimated for these facilities
were extrapolated to the corrective action universe to develop a
national estimate of impacts for the CAMU rule. The Agency estimated
that the existing rule would result in CAMUs being employed at
approximately 1,500 facilities, or approximately 75 CAMUs per year over
a 20 year period. The identities of these facilities, which would have
been required for assessing the small entity impacts associated with
the rule, were not determined; no impacts assessment was performed for
the 1993 CAMU rule.
However, based on data depicting the actual CAMU usage rate over
the past seven years at six CAMUs per year, the Agency believes the
1993 RIA projections do not represent an accurate forecast of the
expected use of CAMUs in the future. (Some reasons for this disparity
between the 1993 RIA projections and the actual usage are discussed
above). Therefore, the Agency considered using the data on actual CAMU
approval for this analysis. This report contains information on 39
CAMUs approved under the existing rule for which the Agency had good
quality data. For each CAMU, the Agency obtained information on the use
of the CAMU at the site, types of wastes managed, treatment required,
and unit design; the data are contained in the CAMU Site Background
Document, which is included in the docket for today's proposed rule.
Using these data, the Agency estimated an annual CAMU approval rate
for the past seven years, and applied that rate to project CAMU usage
in the future. In projecting future use based on historical data, the
Agency assumes that the 39 CAMUs are reasonably representative of
expected future CAMU use. This assumption rests on the completeness of
the data in the CAMU Site Background Document; this document contains
information from all the CAMUs to date for which the Agency had good
data. Therefore, it provides a reasonable basis for understanding how
the CAMU rule has been implemented to date. For purposes of this
analysis, the Agency assumes there will be no new regulations or policy
initiatives which affect CAMU usage in the future.
Use of these historical data also mitigated the problems associated
with determining the differences in a CAMU under the existing rule
(baseline case) as compared to a CAMU under the proposed provisions
(post-regulatory case). As discussed in more detail above, the Agency
used the information on the 39 existing CAMU remedies to assess
consistency with the proposed provisions in today's rule. This
assessment involved a facility-by-facility comparison of the existing
remedy (baseline case) with the proposed provisions (post-regulatory
case). In such an approach, the Agency again assumes that these
historical data are reasonably representative of future CAMU remedies
under baseline conditions. However, the Agency
[[Page 51128]]
believes this presupposition to be sound for the same reasons stated
above regarding CAMU.
Therefore, the analysis of the small entity impacts anticipated to
result from today's proposed rule rests on an assessment of facilities
which have existing CAMUs, not an analysis of facilities which will
actually be impacted in the future by this rule. As stated above, the
Agency believes that this rule will not significantly affect the nature
of CAMU usage related to the types of facilities employing CAMUs in the
future. Thus, the Agency believes the analysis of future small entity
impacts based on historical CAMU usage is reasonable. The Agency
requests comment on the assumptions behind and accuracy of the results
derived from employing the conceptual framework described above for
this analysis.
b. Methodological Approach for SBREFA Analysis: This analysis
employs the data on the existing CAMUs from the CAMU Site Background
Document to assess the potential for impacts on small entities
resulting from the proposed rule. The Agency performed two screening
analyses using these data. Screening analyses are the tools the Agency
uses to assess the potential for the rule to result in a significant
impact on a substantial number of small entities, and thus the need for
development of a Small Business Advocacy Review Panel. First, the
Agency examined those facilities which employed CAMUs in the baseline
to determine whether any of these facilities were small entities, and
if so whether they incurred a significant impact as a result of the
proposed rule. Second, for those facilities for which the size status
could not be determined, the Agency assumed small entity status, and
performed a significant impact screen using the Sales Test (i.e.,
assessing the ratio of incremental costs to net sales for a facility).
As there are no small organizations or small governmental jurisdictions
which currently have CAMUs, these entities are not anticipated to incur
any impacts resulting from the rule. The results from each screening
analysis are discussed below.
c. Examination of Existing CAMUs for Small Entity Status: EPA
collected data on the employee size and net sales for the 39 facilities
employing CAMU in the baseline (the sources from which these data were
obtained are listed in the background document). Using these data, EPA
determined, according to the SBA size standards (see
www.sbaonline.sba.gov/size/section04b.htm), whether any of the 39
facilities were small entities. Of the facilities for which data
existed to determine size status, only two were identified as small
entities. The impact incurred by these two small entities was under
0.01 percent of net sales. This finding suggests that it is very
unlikely that these two facilities would be significantly impacted by
the rule. See the Economic Analysis of the Proposed Amendments to the
CAMU Rule in the docket for today's proposed rule for greater detail on
this analysis.
d. Significant Impact Screen of Facilities for Which Size Was
Undetermined: The Agency examined the 11 facilities for which data
concerning size status were not available. Using the Standard
Industrial Classification (SIC) Code for a given facility, the Agency
obtained data on the estimated receipts for small entities within the
SIC code and the number of small entities within the SIC code (these
data were obtained from www.sba.gov/advo/stats/int_data.html). The
estimated receipts for these entities were employed as a surrogate for
net sales. From these data, the average estimated receipts per small
firm within the SIC code was determined. This figure, the average
estimated receipts per small firm, was then assumed to be
representative of the receipts for the facility in question. The Sales
Test ratio (i.e., the ratio of the average estimated receipts per firm
by SIC code to the annual incremental costs of the proposed rule
incurred by the facility) was then calculated. For the nine facilities
for which the data existed to calculate the Sales Test ratio, this
ratio ranged between 0.002 percent and 0.48 percent. The Agency
believes this range of percentages reasonably validates a conclusion of
no significant impacts for these facilities. However, there were two
facilities for which the data required to make this calculation were
not available. Based on the annual incremental costs projected for
these two facilities as a result of the proposed rule, it seems very
unlikely that these facilities, if they were small entities, would
incur significant impacts. See the Economic Analysis of the Proposed
Amendments to the CAMU Rule in the docket for today's proposed rule for
greater detail on this analysis.
2. The Impacts Estimated on Small Entities
Based on the two screening analyses described above, the Agency has
concluded that today's proposed rule would not have a significant
impact on a substantial number of small entities. EPA continues to be
interested in the potential impacts of the proposed rule on small
entities and welcomes comments on issues related to such impacts.
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. 1573.07) and a copy may be obtained from Sandy Farmer by mail
at OP Regulatory Information Division; U.S. Environmental Protection
Agency (2137); 401 M St., S.W.; Washington, DC 20460, by email at
[email protected], or by calling (202) 260-2740. A copy may
also be downloaded off the internet at http://www.epa.gov/icr.
The U.S. Environmental Protection Agency (EPA) is proposing to
amend the regulations for CAMUs under the Resource Conservation and
Recovery Act (RCRA). EPA originally established regulations applicable
to CAMUs at 40 CFR part 264, Subpart S (58 FR 8658, Feb. 16, 1993). EPA
is now proposing to amend these regulations to, among other things,
more specifically define the eligibility of wastes to be managed in
CAMUs, establish treatment requirements for wastes managed in CAMUs,
and set technical standards for CAMUs. With regard to paperwork
requirements, the proposed rule would add language identifying specific
types of information that facilities must submit in order to gain CAMU
approval at existing Sec. 264.552(d)(1)-(3) and would require that
CAMU-authorizing documents require notification for groundwater
releases as necessary to protect human health and the environment at
Sec. 264.552(e)(5).
The current general requirement for information submission, at
Sec. 264.552(d), requires the owner or operator to submit sufficient
information to enable the RA to designate a CAMU. EPA proposes
modifying the existing information requirement under Sec. 264.552(d) to
include submission of the specific information listed under proposed
Sec. 264.552(d)(1)(3). The modifications in the proposal are additions
to the existing general requirement, and add three specific information
submission requirements to directly address the proposed amendments
pertaining to CAMU eligibility. EPA is proposing that specific
information must be submitted (unless not reasonably available): (1) On
the origin of the waste and how it was subsequently managed (including
a
[[Page 51129]]
description of the timing and circumstances surrounding the disposal
and/or release to the environment) [provision Sec. 264.552(d)(1)]; (2)
whether the waste was listed or identified as hazardous at the time of
disposal and/or release to the environment [provision
Sec. 264.552(d)(2)]; and (3) whether the waste was subject to the land
disposal requirements of Part 268 at the time of disposal and/or
release to the environment [provision Sec. 264.552(d)(3)].
Additionally, EPA is proposing to require certain facilities to notify
EPA of releases to groundwater. EPA will use this information to
monitor releases and make determinations of when the releases might
cause danger to human health or the environment. Facility owners or
operators may use this data to keep track of releases and prevent them
from reaching unacceptable levels.
EPA is proposing to amend the requirements for designating a CAMU
under the authority of sections 1006, 2002(a), 3004, 3005(c), 3007 and
3008(h) of the Solid Waste Disposal Act, as amended by the Resource
Conservation and Recovery Act, as amended by the Hazardous and Solid
Waste Amendments (HSWA) of 1984. In particular, under Sections 2002 and
3007 of RCRA, EPA is proposing the information collection amendments to
the CAMU rule described above because they are needed for the Agency to
effectively designate and track the operation of CAMUs.
EPA estimates the total annual respondent burden and cost for the
proposed new paperwork requirements to be approximately 844 hours and
$42,572. The bottom line respondent burden over the three-year period
covered by this ICR is 2,412 hours, at a total cost of approximately
$127,716. The Agency burden or cost associated with this proposed rule
is estimated to be approximately 129 hours and $5,016 per year. The
bottom line Agency burden over the three-year period covered by this
ICR is 387 hours, at a total cost of approximately $15,048. \17\
---------------------------------------------------------------------------
\17\ Subsequent to conducting the Information Collection Request
analysis, EPA updated the number of CAMUs used for ``permanent''
disposal and the number used for ``treatment and/or storage'' only.
The ICR estimates that 31 of the 39 CAMUs in the CAMU Site
Background Document were for permanent disposal; the correct number
is 30 of 39. EPA will make the necessary recalculations to the ICR
in the context of the final rule. EPA believes that the change in
estimated burden as a result of such recalculations will be
inconsequential.
---------------------------------------------------------------------------
Section 3007(b) of RCRA and 40 CFR Part 2, Subpart B, which defines
EPA's general policy on public disclosure of information, contain
provisions for confidentiality. However, the Agency does not anticipate
that businesses will assert a claim of confidentiality covering all or
part of the information that will be requested pursuant to the proposed
amended CAMU rule. If such a claim were asserted, EPA must and will
treat the information in accordance with the regulations cited above.
EPA also will assure that this information collection complies with the
Privacy Act of 1974 and OMB Circular 108.
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 to the
Director, OPPE Regulatory Information Division; U.S. Environmental
Protection Agency (2137); 401 M St., S.W.; Washington, DC 20460; and to
the Office of Information and Regulatory Affairs, Office of Management
and Budget, 725 17th St., N.W., Washington, DC 20503, marked
``Attention: Desk Officer for EPA.'' Include the ICR number in any
correspondence. Since OMB is required to make a decision concerning the
ICR between 30 and 60 days after August 22, 2000, a comment to OMB is
best assured of having its full effect if OMB receives it by September
21, 2000. The final rule will respond to any OMB or public comments on
the information collection requirements contained in this proposal.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of the UMRA generally requires EPA to identify
and consider a reasonable number of regulatory alternatives and adopt
the least costly, most cost-effective or least burdensome alternative
that achieves the objectives of the rule. The provisions of section 205
do not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including tribal governments, it must have developed under
section 203 of the UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments, enabling
officials of affected small governments to have meaningful and timely
input in the development of EPA regulatory proposals with significant
Federal intergovernmental mandates, and informing, educating, and
advising small governments on compliance with the regulatory
requirements.
EPA has determined that this rule does not contain a Federal
mandate that may result in expenditures of $100 million or more for
State, local, and tribal governments, in the aggregate, or the private
sector in any one year. The amendments being proposed establish
approval process changes and treatment/unit design requirements which
are overall already in use in the baseline. Therefore, the incremental
impacts, as discussed in this analysis, are not estimated to be
significant. See the above analysis for an overview of the impacts
estimated for the proposed amendments. Thus, the CAMU Proposed
Amendments are not subject to the requirements of sections 202 and 205
of the UMRA.
Finally, EPA has determined that this proposed rule contains no
regulatory requirements that might significantly or uniquely affect
small governments. Under today's proposed rule, small
[[Page 51130]]
governments will not implement the CAMU rule and are not generally
expected to use CAMUs based on current patterns of CAMU usage seen in
historical data. In addition, the CAMU rule makes no distinction
between small governments and any potential regulated party.
E. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law No. 104-113, Section 12(d) (15
U.S.C. 272 note) directs EPA to use voluntary consensus standards in
its regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. The NTTAA directs EPA
to provide Congress, through OMB, explanations when the Agency decides
not to use available and applicable voluntary consensus standards.
The proposed rulemaking involves technical standards (e.g., use of
the TCLP test to assess compliance with treatment requirements). The
Agency did not identify any potentially applicable voluntary consensus
standards during its efforts to develop appropriate standards (e.g.,
during its discussions with Agency personnel and stakeholders who are
experts in the areas addressed by this rulemaking).
EPA welcomes comments on this aspect of the proposed rulemaking
and, specifically, invites the public to identify potentially-
applicable voluntary consensus standards and to explain why such
standards should be used in this regulation.
F. Consultation and Coordination With Indian Tribal Governments
(Executive Order 13084)
Under Executive Order 13084, EPA may not issue a regulation that is
not required by statute, that significantly or uniquely affects the
communities of Indian tribal governments, and that imposes substantial
direct compliance costs on those communities, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by the tribal governments, or EPA consults with those
governments. If EPA complies by consulting, Executive Order 13084
requires EPA to provide to the Office of Management and Budget, in a
separately identified section of the preamble to the rule, a
description of the extent of EPA's prior consultation with
representatives of affected tribal governments, a summary of the nature
of their concerns, and a statement supporting the need to issue the
regulation. In addition, Executive Order 13084 requires EPA to develop
an effective process permitting elected officials and other
representatives of Indian tribal governments ``to provide meaningful
and timely input in the development of regulatory policies on matters
that significantly or uniquely affect their communities.''
The proposed rule would not impose substantial direct compliance
costs on communities of Indian tribal governments because Indian tribal
governments do not implement the CAMU rule. Accordingly, the
requirements of section 3(b) of Executive Order 13084 do not apply to
this rule.
G. Protection of Children From Environmental Health Risks and Safety
Risks (Executive Order 13045)
Executive Order 13045: ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies
to any rule that: (1) is determined to be ``economically significant''
as defined under Executive Order 12866, and (2) concerns an
environmental health or safety risk that EPA has reason to believe may
have a disproportionate effect on children. If the regulatory action
meets both criteria, the Agency must evaluate the environmental health
or safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency.
This proposed rule is not subject to the Executive Order because it
is not economically significant as defined in Executive Order 12866,
and because the Agency does not have reason to believe that this rule
presents disproportionate or additional risks to children. The Agency
does not believe that the risks addressed by today's amendments--i.e.,
the risks from on-site management of hazardous cleanup wastes--present
a disproportionate risk to children. The proposed rule, among other
things, sets minimum CAMU treatment and design standards designed to
help ensure the protectiveness of CAMUs. EPA's analysis of these
requirements shows that CAMUs are already meeting the minimum standards
proposed in this rule. As amended by the proposed rule, the CAMU rule
would continue to require that a decision concerning overall
protectiveness of any specific CAMU be made by the Regional
Administrator based on site-specific circumstances, including risks to
children where appropriate. The Agency is committed to ensuring that
these site-specific assessments include an assessment of risks to
children where appropriate. Therefore, the Agency believes that these
amendments do not present disproportionate or additional risks to
children at facilities employing a CAMU.
The public is invited to submit comments on any potential
children's risk implications believed to be associated with the CAMU
proposed amendments.
H. Federalism (Executive Order 13132)
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
This proposed rule does not have federalism implications. It will
not have substantial direct effects on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government,
as specified in Executive Order 13132. First, any direct effects on the
States will not be substantial, because, as described more fully above,
the Agency expects the increased analytical costs for oversight
agencies (i.e., EPA or authorized states) associated with the rule to
be insignificant. In addition, although the proposed amendments would
limit the discretion available to oversight agencies under the current
CAMU rule, the Agency's record demonstrates that the CAMU decisions
expected under the amendments are generally the same as those reached
under the current regulatory framework. In addition, EPA does not
believe the proposed rule would have a substantial direct effect on
states as regulated parties, since based on past patterns of CAMU
usage, state governments are not generally expected to use CAMUs.
As for the EPA-State relationship and distribution of power and
responsibilities, today's proposal includes state authorization
provisions that would allow the large majority of
[[Page 51131]]
states currently authorized for the CAMU provisions to become interim
authorized for the amendments at the same time those amendments become
effective. Thus, for those states, there will be no period in which the
amendments are in effect federally, but not as a matter of state law.
Even for those CAMU-authorized states that do not become interim
authorized under this procedure, however, the Agency does not believe
that any impact of the rule would be substantial. Although the Agency
would implement the amendments in such states until they become
authorized, EPA does not expect that this will generally result in
changes to the state's individual CAMU decisions under state law,
since, as described above, state CAMU decisions will likely be
consistent with today's amendments. Thus, Executive Order 13132 does
not apply to this rule.
The Agency notes, in addition, that prior to entering into the CAMU
settlement agreement, EPA did discuss with the States potential impacts
on States from amendments to the CAMU rule. During these discussions,
individual States expressed concerns about potential disruption caused
by the authorization process that would be required in States that are
already authorized for the 1993 CAMU rule, the reduced discretion that
would be available under any amendments to the CAMU rule, and the
potentially more elaborate process that would be involved in making
CAMU decisions.
EPA recognizes that these are valid concerns, and believes today's
proposal addresses them. For example, EPA has proposed a grandfathering
provision, to address the issue of disrupting existing CAMUs and those
that are substantially in the approval process. The proposal will also
include an approach to authorization that is intended to reduce
disruption for States with authorized CAMU programs, and to expedite
authorization for States that have corrective action programs but are
not yet authorized for CAMU. In addition, EPA recognizes that increased
process would be introduced by this proposal, but, as is described in
the background section of today's preamble, has tried to find a
reasonable balance by adding sufficient detail to achieve the
proposal's goals while preserving site-specific flexibility that
provides incentives to cleanup. Finally, the proposal is designed to
incorporate the CAMU designation process into the existing decision-
making process that is typically used by states and EPA for cleanups,
including that used for making CAMU determinations. For example, EPA
designed the principal hazardous constituent process, and certain
proposed adjustment factors to reference the overall cleanup decision-
making process within which the CAMU decision is made. EPA seeks
comment on its approach to address these concerns.
I. Environmental Justice (Executive Order 12898)
On February 11, 1994, the President issued Executive Order 12898,
entitled ``Federal Actions To Address Environmental Justice in Minority
Populations and Low-Income Populations,'' and an accompanying
memorandum to federal department and agency heads. The Order
establishes a policy to help ensure that all communities, including
minority communities and low-income communities, live in a safe and
healthful environment. As noted in the presidential memorandum, it is
designed to focus federal attention on the human health and
environmental conditions in minority communities and low-income
communities to realize the goal of achieving environmental justice. The
Order also is intended to foster nondiscrimination in federal programs
that substantially affect human health or the environment, and to give
minority communities and low-income communities greater opportunities
for public participation in, and access to public information on,
matters relating to human health and the environment. In general, to
the greatest extent practicable and permitted by law, the Order directs
federal agencies to make environmental justice part of their mission by
identifying and addressing, as appropriate, disproportionately high and
adverse human health or environmental effects of its programs,
policies, and activities on minority populations and low-income
populations.
Today's proposed rule is intended to amend the existing CAMU rule
through, among other things, establishing a formalized process for
approval of CAMUs, as well as setting national minimum treatment and
unit design standards for CAMUs. The treatment and unit design
standards formalize the existing expectations that site decisions be
made within the overall decision making process in a manner protective
of human health and the environment. The Agency's analysis shows that
CAMUs are already meeting these minimum standards. Therefore, the
Agency believes that these amendments, although formalizing such
requirements, would not appreciably affect the risks at facilities
where CAMUs are employed. This rule does not specifically address the
overall remedial decision making process within which CAMUs are
approved. Thus, EPA believes that this rule will not have any
disproportionately high and adverse human health or environmental
effects on minority populations or low-income populations. The Agency
continues its commitment to ensuring that environmental justice
concerns are addressed within remedial decisions in corrective action.
List of Subjects
40 CFR Part 260
Environmental protection, Administrative practice and procedures,
Confidential business information, Hazardous waste, Reporting and
recordkeeping requirements.
40 CFR Part 264
Air pollution control, Hazardous waste, Insurance, Hazardous
materials transportation, Packaging and containers, Reporting and
recordkeeping requirements, Security measure, Surety bonds.
40 CFR Part 271
Administrative practice and procedure, Confidential business
information, Hazardous materials transportation, Hazardous waste,
Indians-lands, Intergovernmental relations, Penalties, Reporting and
recordkeeping requirements, Water pollution control, Water supply.
Dated: August 7, 2000.
Carol M. Browner,
Administrator.
For the reasons set out in the preamble, 40 CFR Parts 260, 264 and
271 are proposed to be amended as follows.
PART 260--HAZARDOUS WASTE MANAGEMENT SYSTEM: GENERAL
1. The authority citation for part 260 continues to read as
follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921-6927, 6930, 6934, 6935,
6937, 6938, 6939, and 6974.
2. Section 260.10 is amended by removing the definition of
``Corrective action management unit (CAMU).''
PART 264--STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE
TREATMENT, STORAGE, AND DISPOSAL FACILITIES
3. The authority citation for part 264 continues to read as
follows:
Authority: 42 U.S.C. 6905, 6912(a), 6924, and 6925.
[[Page 51132]]
4. Section 264.550 is added to Subpart S as follows:
Sec. 264.550 Applicability of Corrective Action Management Unit (CAMU)
Regulations.
(a) Except as provided in paragraph (b) of this section, CAMUs are
subject to the requirements of Sec. 264.552.
(b) CAMUs that were approved before the [effective date of final
rule], or for which substantially complete applications (or
equivalents) were submitted to the Agency on or before [Insert date 90
days after the publication date of this proposed rule], are subject to
the requirements in Sec. 264.551 for grandfathered CAMUs, so long as
the waste, waste management activities, and design of the CAMU remain
within the general scope of the CAMU as approved.
5. Section 264.552 is redesignated as Sec. 264.551 and newly
designated Sec. 264.551 is amended by revising the title and paragraph
(a) as follows:
Sec. 264.551 Grandfathered Corrective Action Management Units (CAMUs).
(a) To implement remedies under Sec. 264.101 or RCRA 3008(h), or to
implement remedies at a permitted facility that is not subject to
Sec. 264.101, the Regional Administrator may designate an area at the
facility as a corrective action management unit under the requirements
in this section. Corrective action management unit means an area within
a facility that is used only for managing remediation wastes for
implementing corrective action or cleanup at the facility. A CAMU must
be located within the contiguous property under the control of the
owner/operator where the wastes to be managed in the CAMU originated.
One or more CAMUs may be designated at a facility.
(b) * * *
* * * * *
6. A new Sec. 264.552 is added as follows:
Sec. 264.552 Corrective Action Management Units (CAMU).
(a) To implement remedies under Sec. 264.101 or RCRA 3008(h), or to
implement remedies at a permitted facility that is not subject to
Sec. 264.101, the Regional Administrator may designate an area at the
facility as a corrective action management unit under the requirements
in this section. Corrective action management unit means an area within
a facility that is used only for managing CAMU-eligible wastes for
implementing corrective action or cleanup at the facility. A CAMU must
be located within the contiguous property under the control of the
owner/operator where the wastes to be managed in the CAMU originated.
One or more CAMUs may be designated at a facility.
(1) CAMU-eligible waste means:
(i) All solid and hazardous wastes, and all media (including
groundwater, surface water, soils, and sediments) and debris that
contain listed hazardous wastes or that themselves exhibit a hazardous
characteristic and are managed for implementing cleanup. As-generated
wastes (either hazardous or non-hazardous) from ongoing industrial
operations at a site are not CAMU-eligible wastes.
(ii) Wastes that would otherwise meet the description in paragraph
(a)(1)(i) of this section are not ``CAMU-Eligible Wastes'' where:
(A) The wastes are hazardous wastes found during cleanup in intact
or substantially intact containers, tanks, or other non-land-based
units, unless the wastes are first placed in the tanks, containers or
non-land-based units as part of cleanup, or the containers are
excavated during the course of cleanup; or
(B) The Regional Administrator exercises the discretion in
paragraph (a)(2) of this section to prohibit the wastes from management
in a CAMU.
(iii) Notwithstanding paragraph (a)(1)(i) of this section, where
appropriate, as-generated non-hazardous waste may be placed in a CAMU
where such waste is being used to facilitate treatment or the
performance of the CAMU.
(2) The Regional Administrator may prohibit, where appropriate, the
placement of waste in a CAMU where the Regional Administrator has or
receives information that such wastes have not been managed in
compliance with applicable land disposal treatment standards of part
268 of this chapter, or applicable unit design requirements of this
part, or applicable unit design requirements of part 265 of this
chapter, or that non-compliance with other applicable requirements of
this chapter likely contributed to the release of the waste.
(3) Prohibition against placing liquids in CAMUs.
(i) The placement of bulk or noncontainerized liquid hazardous
waste or free liquids contained in hazardous waste (whether or not
sorbents have been added) in any CAMU is prohibited except where
placement of such wastes facilitates the remedy selected for the waste.
(ii) The requirements in Sec. 264.314(d) for placement of
containers holding free liquids in landfills apply to placement in a
CAMU except where placement facilitates the remedy selected for the
waste.
(iii) The placement of any liquid which is not a hazardous waste in
a CAMU is prohibited unless such placement facilitates the remedy
selected for the waste or a demonstration is made pursuant to
Sec. 264.314(f).
(iv) The absence or presence of free liquids in either a
containerized or a bulk waste must be determined in accordance with
Sec. 264.314(c). Sorbents used to treat free liquids in CAMUs must meet
the requirements of Sec. 264.314(e).
(4) Placement of CAMU-eligible wastes into or within a CAMU does
not constitute land disposal of hazardous wastes.
(5) Consolidation or placement of CAMU-eligible wastes into or
within a CAMU does not constitute creation of a unit subject to minimum
technology requirements.
(b)(1) The Regional Administrator may designate a regulated unit
(as defined in Sec. 264.90(a)(2)) as a CAMU, or may incorporate a
regulated unit into a CAMU, if:
(i) The regulated unit is closed or closing, meaning it has begun
the closure process under Sec. 264.113 or Sec. 265.113; and
(ii) Inclusion of the regulated unit will enhance implementation of
effective, protective and reliable remedial actions for the facility.
(2) The subpart F, G, and H requirements and the unit-specific
requirements of part 264 or 265 that applied to the regulated unit will
continue to apply to that portion of the CAMU after incorporation into
the CAMU.
(c) The Regional Administrator shall designate a CAMU that will be
used for storage and/or treatment only in accordance with paragraph (f)
of this section. The Regional Administrator shall designate all other
CAMUs in accordance with the following:
(1) The CAMU shall facilitate the implementation of reliable,
effective, protective, and cost-effective remedies;
(2) Waste management activities associated with the CAMU shall not
create unacceptable risks to humans or to the environment resulting
from exposure to hazardous wastes or hazardous constituents;
(3) The CAMU shall include uncontaminated areas of the facility,
only if including such areas for the purpose of managing CAMU-eligible
waste is more protective than management of such wastes at contaminated
areas of the facility;
[[Page 51133]]
(4) Areas within the CAMU, where wastes remain in place after
closure of the CAMU, shall be managed and contained so as to minimize
future releases, to the extent practicable;
(5) The CAMU shall expedite the timing of remedial activity
implementation, when appropriate and practicable;
(6) The CAMU shall enable the use, when appropriate, of treatment
technologies (including innovative technologies) to enhance the long-
term effectiveness of remedial actions by reducing the toxicity,
mobility, or volume of wastes that will remain in place after closure
of the CAMU; and
(7) The CAMU shall, to the extent practicable, minimize the land
area of the facility upon which wastes will remain in place after
closure of the CAMU.
(d) The owner/operator shall provide sufficient information to
enable the Regional Administrator to designate a CAMU in accordance
with the criteria in Sec. 264.552. This must include, unless not
reasonably available, information on:
(1) The origin of the waste and how it was subsequently managed
(including a description of the timing and circumstances surrounding
the disposal and/or release);
(2) Whether the waste was listed or identified as hazardous at the
time of disposal and/or release; and
(3) Whether the waste was subject to the land disposal requirements
of part 268 of this chapter at the time of disposal and/or release.
(e) The Regional Administrator shall specify, in the permit or
order, requirements for CAMUs to include the following:
(1) The areal configuration of the CAMU.
(2) Except as provided in paragraph (g) of this section,
requirements for CAMU-eligible waste management to include the
specification of applicable design, operation, treatment and closure
requirements.
(3) Minimum Design Requirements: CAMUs, except as provided in
paragraph (f) of this section, into which wastes are placed must be
designed in accordance with the following:
(i) Unless the Regional Administrator approves alternate
requirements under paragraph (e)(3)(ii) of this section, CAMUs that
consist of new, replacement, or laterally expanded units must include a
composite liner and a leachate collection system that is designed and
constructed to maintain less than a 30-cm depth of leachate over the
liner. For purposes of this section, composite liner means a system
consisting of two components; the upper component must consist of a
minimum 30-mil flexible membrane liner (FML), and the lower component
must consist of at least a two-foot layer of compacted soil with a
hydraulic conductivity of no more than 1 x 10-7 cm/sec. FML components
consisting of high density polyethylene (HDPE) must be at least 60 mil
thick. The FML component must be installed in direct and uniform
contact with the compacted soil component;
(ii) Alternate requirements. The Regional Administrator may approve
alternate requirements if:
(A) The Regional Administrator finds that alternate design and
operating practices, together with location characteristics, will
prevent the migration of any hazardous constituents into the ground
water or surface water at least as effectively as the liner and
leachate collection systems in paragraph (e)(3)(i) of this section; or,
(B) The CAMU is to be established in an area with existing
significant levels of contamination, and the Regional Administrator
finds that an alternative design, including a design that does not
include a liner, would prevent migration from the unit that would
exceed long-term remedial goals.
(4) Minimum treatment requirements. Unless the wastes will be
placed in a CAMU for storage and/or treatment only in accordance with
paragraph (f) of this section, CAMU-eligible wastes that, absent this
section, would be subject to the treatment requirements of part 268 of
this chapter, and that the Regional Administrator determines contain
principal hazardous constituents must be treated to the standards
specified in paragraph (e)(4)(iii) of this chapter.
(i) Principal hazardous constituents are those constituents that
the Regional Administrator determines pose a risk to human health and
the environment substantially higher than the cleanup levels or goals
at the site.
(A) In general, the Regional Administrator will designate as
principal hazardous constituents:
(1) Carcinogens that pose a potential direct risk from ingestion or
inhalation at the site at or above 10-\3\.; and,
(2) Non-carcinogens that pose a potential direct risk from
ingestion or inhalation at the site an order of magnitude or greater
over their reference dose.
(B) The Regional Administrator will also designate constituents as
principal hazardous constituents, where appropriate, based on risks
posed by the potential migration of constituents in wastes to
groundwater, considering such factors as constituent concentrations,
and fate and transport characteristics under site conditions.
(C) The Regional Administrator may also designate other
constituents as principal hazardous constituents that the Regional
Administrator determines pose a risk to human health and the
environment substantially higher than the cleanup levels or goals at
the site.
(ii) In determining which constituents are ``principal hazardous
constituents,'' the Regional Administrator must consider all
constituents which, absent this section, would be subject to the
treatment requirements in part 268 of this chapter.
(iii) Waste that the Regional Administrator determines contains
principal hazardous constituents must meet treatment standards
determined in accordance with paragraph (e)(4)(iv) or (e)(4)(v) of this
section:
(iv) Treatment standards for wastes placed in CAMUs.
(A) For non-metals, treatment must achieve 90 percent reduction in
total principal hazardous constituent concentrations, except as
provided by paragraph (e)(4)(iv)(C) of this section.
(B) For metals, treatment must achieve 90 percent reduction in
principal hazardous constituent concentrations as measured in leachate
from the treated waste or media (tested according to the TCLP) or 90
percent reduction in total constituent concentrations (when a metal
removal treatment technology is used), except as provided by paragraph
(e)(4)(iv)(C) of this section.
(C) When treatment of any principal hazardous constituent to a 90
percent reduction standard would result in a concentration less than 10
times the Universal Treatment Standard for that constituent, treatment
to achieve constituent concentrations less than 10 times the Universal
Treatment Standard is not required. Universal Treatment Standards are
identified in Sec. 268.48 Table UTS.
(D) For waste exhibiting the hazardous characteristic of
ignitability, corrosivity or reactivity, the waste must also be treated
to eliminate these characteristics.
(E) For debris, the debris must be treated in accordance with
Sec. 268.45, or by methods or to levels established under paragraph
(e)(4)(iv)(A) through (D) or (e)(4)(v) of this section, whichever the
Regional Administrator determines is appropriate.
(v) Adjusted standards. The Regional Administrator may adjust the
treatment level or method in (e)(4)(iv) of this section to a higher or
lower level, based on one or more of the following factors, as
appropriate. The adjusted level or
[[Page 51134]]
method must be protective of human health and the environment:
(A) The technical impracticability of treatment to the levels or by
the methods in (e)(4)(iv) of this section;
(B) The levels or methods in (e)(4)(iv) of this section would
result in concentrations of hazardous constituents that are
significantly above or below cleanup standards applicable to the site
(established either site-specifically, or promulgated under state or
federal law);
(C) The views of the affected local community on the treatment
levels or methods in (e)(4)(iv) of this section as applied at the site,
and, for treatment levels, the treatment methods necessary to achieve
these levels;
(D) The short-term risks presented by the on-site treatment method
necessary to achieve the levels or treatment methods in (e)(4)(iv) of
this section;
(E) The long-term protection offered by the engineering design of
the CAMU and related engineering controls:
(1) Where the treatment standards in paragraph (e)(4)(iv) of this
section are substantially met and the principal hazardous constituents
in the waste or residuals are of very low mobility; or
(2) Where cost-effective treatment has been used, or where, after
review of appropriate treatment technologies, the Regional
Administrator determines that such treatment is not reasonably
available, and:
(i) The CAMU meets the Subtitle C liner and leachate collection
requirements for new land disposal units at Sec. 264.301(c) and (d), or
(ii) The principal hazardous constituents in the treated wastes are
of very low mobility, or,
(iii) Where wastes have not been treated and the principal
hazardous constituents in the wastes are of very low mobility, and
either the CAMU meets or exceeds the liner standards for new,
replacement, or laterally expanded CAMUs in paragraphs (e)(3)(i) and
(ii) of this section, or the CAMU provides substantially equivalent or
greater protection.
(vi) The treatment required by the treatment standards must be
completed prior to, or within a reasonable time after, placement in the
CAMU.
(vii) For the purpose of determining whether wastes placed in CAMUs
have met site-specific treatment standards, the Regional Administrator
may, as appropriate, specify a subset of the principal hazardous
constituents in the waste as analytical surrogates for determining
whether treatment standards have been met for other principal hazardous
constituents. This specification will be based on the degree of
difficulty of treatment and analysis of constituents with similar
treatment properties.
(5) Except as provided in paragraph (f) of this section,
requirements for ground water monitoring and corrective action that are
sufficient to:
(i) Continue to detect and to characterize the nature, extent,
concentration, direction, and movement of existing releases of
hazardous constituents in ground water from sources located within the
CAMU; and
(ii) Detect and subsequently characterize releases of hazardous
constituents to ground water that may occur from areas of the CAMU in
which wastes will remain in place after closure of the CAMU; and
(iii) Require notification to the Regional Administrator and
corrective action as necessary to protect human health and the
environment for releases to groundwater from the CAMU.
(6) Except as provided in paragraph (f) of this section, closure
and post-closure requirements:
(i) Closure of corrective action management units shall:
(A) Minimize the need for further maintenance; and
(B) Control, minimize, or eliminate, to the extent necessary to
protect human health and the environment, for areas where wastes remain
in place, post-closure escape of hazardous wastes, hazardous
constituents, leachate, contaminated runoff, or hazardous waste
decomposition products to the ground, to surface waters, or to the
atmosphere.
(ii) Requirements for closure of CAMUs shall include the following,
as appropriate and as deemed necessary by the Regional Administrator
for a given CAMU:
(A) Requirements for excavation, removal, treatment or containment
of wastes; and
(B) Requirements for removal and decontamination of equipment,
devices, and structures used in CAMU-eligible waste management
activities within the CAMU.
(iii) In establishing specific closure requirements for CAMUs under
paragraph (e) of this section, the Regional Administrator shall
consider the following factors:
(A) CAMU characteristics;
(B) Volume of wastes which remain in place after closure;
(C) Potential for releases from the CAMU;
(D) Physical and chemical characteristics of the waste;
(E) Hydrological and other relevant environmental conditions at the
facility which may influence the migration of any potential or actual
releases; and
(F) Potential for exposure of humans and environmental receptors if
releases were to occur from the CAMU.
(iv) Cap requirements.
(A) At final closure of the CAMU, for areas in which wastes will
remain after closure of the CAMU, the owner or operator must cover the
CAMU with a final cover designed and constructed to meet the following
performance criteria, except as provided in paragraph (e)(6)(iv)(B) of
this section:
(1) Provide long-term minimization of migration of liquids through
the closed unit;
(2) Function with minimum maintenance;
(3) Promote drainage and minimize erosion or abrasion of the cover;
(4) Accommodate settling and subsidence so that the cover's
integrity is maintained; and
(5) Have a permeability less than or equal to the permeability of
any bottom liner system or natural subsoils present.
(B) The Regional Administrator may determine that modifications to
paragraph (e)(6)(iv)(A) of this section are needed to facilitate
treatment or the performance of the CAMU (e.g., to promote
biodegradation).
(v) Post-closure requirements as necessary to protect human health
and the environment, to include, for areas where wastes will remain in
place, monitoring and maintenance activities, and the frequency with
which such activities shall be performed to ensure the integrity of any
cap, final cover, or other containment system.
(f) CAMUs used for storage and/or treatment only are CAMUs in which
wastes will not remain after closure. Such CAMUs must be designated in
accordance with all requirements of this section, except as follows.
CAMUs used for storage/and or treatment only:
(1) Are not subject to the treatment requirements under paragraph
(e)(4) of this section;
(2) Must have requirements specified in the permit or order in
accordance with:
(i) The staging pile performance criteria at Secs. 264.554(d)(1)(i)
through (ii) and (d)(2) in lieu of the CAMU designation criteria at
paragraph (c) of this section;
(ii) The staging pile standards for management of ignitable,
reactive or incompatible wastes at Sec. 264.554(e) through (f);
(iii) The staging pile standards for closure at Sec. 264.554(j)
through (k), in lieu of the CAMU closure standards at paragraph (e)(6)
of this section;
(3) That will operate in accordance with the time limits
established in the staging pile regulations at
[[Page 51135]]
Sec. 264.554(d)(1)(iii), (h), and (i), are not subject to the
groundwater monitoring and corrective action requirements of paragraph
(e)(5) of this section and the minimum design requirements for liners
of paragraph (e)(3) of this section;
(4) That will operate beyond the period permitted in the staging
pile regulations at Sec. 264.554(d)(1)(iii), (h), and (i), must have a
time limit established by the Regional Administrator that is no longer
than necessary to achieve a timely remedy selected for the waste.
(g) CAMUs into which wastes are placed where all wastes have
constituent levels at or below remedial levels or goals applicable to
the site do not have to comply with the requirements for liners at
paragraph (e)(3)(i) of this section, caps at paragraph (e)(6)(iv) of
this section, groundwater monitoring requirements at paragraph (e)(5)
of this section or the design standards at paragraph (f) of this
section for treatment and/or storage-only CAMUs.
(h) The Regional Administrator shall provide public notice and a
reasonable opportunity for public comment before designating a CAMU.
Such notice shall include the rationale for any proposed adjustments
under paragraph (e)(4)(iii)(B) of this section to the treatment
standards in paragraph (e)(4)(iv) of this section.
(i) Notwithstanding any other provision of this section, the
Regional Administrator may impose additional requirements as necessary
to protect human health and the environment.
(j) Incorporation of a CAMU into an existing permit must be
approved by the Regional Administrator according to the procedures for
Agency-initiated permit modifications under Sec. 270.41 of this
chapter, or according to the permit modification procedures of
Sec. 270.42 of this chapter.
(k) The designation of a CAMU does not change EPA's existing
authority to address clean-up levels, media-specific points of
compliance to be applied to remediation at a facility, or other remedy
selection decisions.
PART 271--REQUIREMENTS FOR AUTHORIZATION OF STATE HAZARDOUS WASTE
PROGRAMS
7. The authority citation for Part 271 continues to read as
follows:
Authority: 42 U.S.C. 9605, 6912(2), and 6926.
8. Section 271.1(j) is amended by adding the following entry to
Table 1 in chronological order by promulgation date in the Federal
Register, to read as follows:
Sec. 271.1 Purpose and scope.
* * * * *
(j) * * *
Table 1.--Regulations Implementing the Hazardous and Solid Waste Amendments of 1984
----------------------------------------------------------------------------------------------------------------
Federal Register
Promulgation date Title of regulation reference Effective date
----------------------------------------------------------------------------------------------------------------
* * * * * *
*
[date of publication of final rule in Corrective Action [FR page numbers]...... [date of 90 days from
the Management Unit date of publication of
Federal Register (FR)]............... Standards Amendments. final rule].
----------------------------------------------------------------------------------------------------------------
* * * * *
9. Section 271.24 is amended by revising paragraph (c) to read as
follows:
Sec. 271.24 Interim authorization under section 3006(g) of RCRA.
* * * * *
(c) Interim authorization pursuant to this section expires on
January 1, 2003, except that interim authorization for the revised
Corrective Action Management Unit rule promulgated on [date of
publication of final rule in the Federal Register (FR) and FR page
numbers] expires on [date of 3 years from the effective date of the
final rule].
10. A new Sec. 271.27 is added at the end of subpart A to read as
follows:
Sec. 271.27 Interim authorization-by-rule for the revised Corrective
Action Management Unit rule.
(a) States shall have interim authorization pursuant to section
3006(g) of RCRA for the revised Corrective Action Management Unit rule
if:
(1) The State has been granted final authorization pursuant to
section 3006(b) of RCRA for the provisions for Corrective Action
Management Units in Sec. 264.552 of this chapter;
(2) The State does not have an audit privilege or immunity law that
raises unresolved concerns about adequate enforcement under section
3006(b) of RCRA; and
(3) The State notifies the Administrator by [date of 60 days from
date of publication of final rule] that the State intends to and is
able to use the revised Corrective Action Management Unit Standards
rule as guidance.
(b) Interim authorization pursuant to this section expires on [date
of 3 years from the effective date of the final rule].
[FR Doc. 00-20534 Filed 8-21-00; 8:45 am]
BILLING CODE 6560-50-P