[Federal Register Volume 66, Number 224 (Tuesday, November 20, 2001)]
[Proposed Rules]
[Pages 58085-58097]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-28935]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 264
[FRL-7105-7 ]
RIN 2050 AE77
Supplemental Proposal to the Corrective Action Management Unit
Rule
AGENCY: Environmental Protection Agency.
[[Page 58086]]
ACTION: Proposed rule.
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SUMMARY: In today's action, the Agency is proposing a regulatory change
suggested by commenters on the Environmental Protection Agency's
(EPA's) proposed ``Amendments to the Corrective Action Management Unit
Rule'' (August 22, 2000). In that notice, EPA proposed amendments to
the corrective action management unit (CAMU) regulations to tighten
standards for wastes managed in CAMUs during cleanup. The comment
period on the August 2000 proposal closed on October 23, 2000. EPA is
now proposing additional regulations that would allow CAMU-eligible
hazardous waste, treated in accordance with the treatment standard in
the proposed CAMU amendment in lieu of otherwise applicable land
disposal restriction standards, to be placed in hazardous waste
landfills, under limited circumstances. We believe that allowing
hazardous remediation waste generated during clean-up to be placed in
hazardous waste landfills will promote more aggressive remediation.
In this document, EPA is soliciting comment only on the issue of
placement of CAMU-eligible wastes in hazardous waste landfills under
the terms of today's supplemental proposal; we are not requesting
comment on any aspect of the August 2000 proposal. If EPA goes forward
with today's proposal, it intends to do so when it takes final action
on the August 2000 proposal.
DATES: EPA will accept public comment until December 5, 2001.
ADDRESSES: Those persons wishing to submit public comments must send an
original and two copies of their comments referencing EPA docket number
F-2001-AC2P-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-2001-AC2P-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 N.W., 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 Supplementary 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: In developing this document, we tried to
address the concerns of all our stakeholders. Your comments will help
us improve this proposed regulatory action. We invite you to provide
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 provide a
summary of the reasoning you used to arrive at your conclusions.
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 of this proposal you support, as well
as those you disagree with.
Provide specific examples to illustrate your concerns.
Offer specific alternatives.
Reference your comments to specific sections of this
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 Supplemental Proposal to the
Corrective Action Management Unit Rule (EPA publication number
[Insert]), are available for review 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/epaoswer/hazwaste/ca/resource/guidance/remwaste/camu. Printed copies of the final rule and
related documents can also be obtained by calling the RCRA/Superfund
Hotline at (800) 424-9346 or (703) 412-9810.
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. We may, however seek clarification of electronic
comments that become garbled in transmission or during conversion to
paper form.
Outline
The contents of today's document are listed in the following
outline:
I. Authority
II. Summary of Today's Proposal
III. Background and General Proposal Requirements
IV. Section-by-Section Discussion
A. Conditions for Off-Site Placement
B. Approval Procedures
C. Other Requirements
V. How Would Today's Proposed Regulatory Changes be Administered and
Enforced in the States?
VI. Effective Date
VII. Analytical and Regulatory Requirements
A. Planning and Regulatory Review (Executive Order 12866)
B. Regulatory Flexibility Act (RFA) as amended by the Small
Business Regulatory Enforcement and Fairness Act of 1996 (SBREFA), 5
USC 601 et. seq.
C. Paperwork Reduction Act
D. Unfunded Mandates Reform Act
E. National Technology Transfer and Advancement Act of 1995
F. Consultation and Coordination with Indian and Tribal
Governments (Executive Order 13175)
G. Protection of Children from Environmental Health Risks and
Safety Risks (Executive Order 13045)
[[Page 58087]]
H. Federalism (Executive Order 13132)
I. Environmental Justice Strategy (Executive Order 12898)
J. Energy Effects (Executive Order 13211)
I. Authority
These regulations are proposed under the authority of Secs. 1006,
2002(a), 3004, 3005, 3007, and 7004 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.
II. Summary of Today's Proposal
EPA is proposing additional regulations that would allow CAMU-
eligible hazardous wastes to be placed in hazardous waste landfills
under limited circumstances. Under today's proposal, principal
hazardous constituents in the waste would have to be treated to the
same (or in some cases higher) standards than would hazardous wastes
going to CAMUs at a remediation site. The receiving hazardous waste
landfill would be required to meet the Resource Conservation and
Recovery Act (RCRA) minimum technology requirements for new landfills
and to have a RCRA permit; and the public at the location of the
landfill would have an opportunity to comment on disposal of the waste
at that landfill.
Today's proposal assumes that readers are familiar with EPA's
August 22, 2000 proposal to amend the CAMU regulations (65 FR 51080).
Readers who are unfamiliar with that proposal should refer to it to
help them better understand both the context of today's proposal and
the specific concepts discussed today.
III. Background and General Proposal Requirements
On August 22, 2000, EPA issued a proposal to amend the Resource
Conservation and Recovery Act (RCRA) Corrective Action Management Unit
(CAMU) regulations (65 FR 51080). The CAMU regulations (originally
promulgated in February 1993) establish flexible standards for the on-
site management of hazardous remediation waste during cleanups. Under
the 1993 regulations, primarily found at 40 CFR 264.552, management of
hazardous remediation wastes (including soil and debris) in CAMUs does
not trigger the RCRA land disposal restrictions (LDRs) or RCRA's
minimum technological requirements. Instead, management standards are
set by the Regional Administrator on a site-specific basis, generally
as part of the overall remedy selection process. EPA proposed to amend
these regulations in August 2000. The proposed revisions would tighten
the current CAMU requirements by establishing minimum design standards
for CAMUs and minimum treatment requirements for hazardous remediation
wastes placed in CAMUs.
The CAMU rule currently limits wastes that might be placed in CAMUs
to those found on or originating from the facility where the cleanup
occurred. See 40 CFR 260.10 (definition of corrective action management
unit) and Sec. 264.552(a). Under the current rule, CAMUs must be
located on that facility, and may not receive remediation wastes from
other locations. Hazardous remediation wastes sent to other locations
generally must be managed in accordance with full RCRA Subtitle C
standards for ``as-generated'' hazardous waste--that is, hazardous
waste derived from on-going industrial processes.\1\ EPA's proposed
revisions to the CAMU rule in August 2000 did not address the issue of
CAMU-eligible wastes shipped off-site.\2\
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\1\ EPA subsequently promulgated a treatability variance from
the land disposal restrictions for remediation waste to promote more
aggressive cleanups (see the ``environmentally inappropriate''
variance, Sec. 268.44(h)(2)(ii), 62 FR 64504-64506, December 5,
1997). EPA also developed special treatment standards for soils
contaminated with hazardous waste (see the Land Disposal
Restrictions Phase IV rule, 63 FR 28556, May 26, 1998).
\2\ In the August 2000 proposal, EPA limited wastes that could
be placed in a CAMU to a subset of remediation wastes, which it
identified as ``CAMU-eligible'' wastes. For more detail, see p.
51084-51088 of the August 2000 proposal and section IV.A of today's
notice.
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Although EPA did not seek comment on off-site issues in the CAMU-
amendment proposal, in response to EPA's proposal, several commenters
argued for off-site management of CAMU-eligible waste. One commenter--a
trade association representing the waste treatment industry--offered a
detailed recommendation. According to this commenter, EPA should allow
off-site management of CAMU-eligible wastes if they have been treated
in accordance with the proposed CAMU treatment requirements, they go to
a permitted RCRA Subtitle C landfill, and the landfill has been through
public participation procedures to modify its permit to accept the
wastes. Another commenter argued that continuing to limit CAMU-eligible
waste to management on-site would act as a disincentive to remediation.
In some cases, the commenter said, redeposition of remediation waste
on-site may not be the most desirable cleanup scenario (e.g., because
of lack of a suitable on-site disposal facility, or of the ability to
assure long-term management of such a facility on-site, or ``other
economic or policy choices''). Under the right circumstances (e.g., a
combination of initial concentration levels, limited process, and
sufficiently protective final disposal units), the commenter argued, it
may make sense to remove the material to a ``secure landfill
elsewhere.'' The commenter specifically asked EPA ``to develop a way to
provide the key elements of the CAMU concept in off-site
applications,'' and in particular suggested allowing ``disposal of
remediation waste without further treatment in an off-site facility
meeting Subtitle C design requirements.''
A third commenter recommended that EPA develop a ``nation-wide LDR
variance for remediation wastes disposed of in Subtitle C units.'' The
commenter argued that this approach would improve the pace and quality
of remediations, and that it would be attractive for sites in
residential neighborhoods, or geologically sensitive areas, or where
land-use potential would be improved through removal.
After the close of the public comment period on the CAMU proposal,
representatives of the waste treatment industry and the waste
generating industry (including the commenters who had made specific
suggestions on the issue) met with EPA to present a proposal for
allowing disposal of CAMU-eligible wastes in off-site Subtitle C
landfills. The approach this group suggested was similar to the
approach suggested earlier in comments by the waste treatment trade
association, but it included greater detail. Under the group's
suggested approach, CAMU-eligible wastes could be shipped off-site and
placed in an off-site permitted RCRA hazardous waste landfill, if they
met the proposed CAMU minimum treatment requirements (instead of the
RCRA land disposal restriction treatment requirements which would
otherwise apply). Use of the proposed treatment adjustment factors
would generally be allowed, but, if the overseeing regulatory agency
adjusted treatment levels because of the protection offered by the
design of the disposal unit, the waste would have to be treated through
a cost-effective technology.\3\ Also, the Subtitle C landfill would
have to be authorized to receive such waste after public notice, and an
opportunity for a hearing. EPA has placed a copy of the industry
group's
[[Page 58088]]
submission on off-site disposal of CAMU-eligible waste in the docket
for today's rulemaking.
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\3\ Under the August 2000 proposal, treatment of principal
hazardous constituents in waste placed in a CAMU might not be
required, based on the protection offered by the CAMU's design,
where the Regional Administrator determined that ``cost-effective
treatment'' is not reasonably available (proposed
Sec. 264.552(e)(4)(E)(2)). This option would not be available under
the industry recommended approach.
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After carefully reviewing industry's suggestion, EPA believes that
it has merit, and the Agency provides proposed language for comment in
today's notice.
In EPA's view, expanding options for management of CAMU-eligible
wastes in hazardous waste landfills (under the right conditions) will
promote more aggressive remediation. See, Louisiana Environmental
Action Network v. USEPA, 172 F. 3d 65, 69 (D.C. Cir. 1999) (upholding
EPA LDR treatment variance regulation allowing reduction in treatment
requirements where necessary to encourage aggressive remediation). For
example, there will be situations where on-site redisposal of wastes
will not be viable, or will not be the preferred option (e.g., where
the cleanup site is located in or near a residential neighborhood); in
these cases, however, the disincentives associated with off-site
management of the waste under full Subtitle C would act as a
disincentive to cleanup at all, or might delay cleanup or encourage
less-than-optimal containment remedies. (See the preamble to the August
2000 proposal for further discussion of the disincentives created by
the application of RCRA Subtitle C requirements to cleanup wastes,
especially 65 FR 51082.) In other cases, the regulator, the facility
owner/operator, or the local community may prefer removal of a source
of contamination, but costs for off-site management in accordance with
otherwise applicable LDR treatment requirements might be prohibitive.
In such situations, today's proposal would provide remedial managers
and facility owner/operators with an additional option, which might
enhance cleanup results, and would provide equal or greater protection
than an on-site CAMU.\4\ EPA more generally believes that, by including
an option that makes removal of all hazardous wastes from a site more
feasible, this approach would allow more sites to achieve cleanup
levels appropriate for reuse, including unrestricted uses. The need for
long-term controls at these sites would be reduced or eliminated, and
their potential for redevelopment would significantly increase. EPA
believes that this result would serve both local communities and the
environment well, and that it will contribute to the Agency's goal of
promoting cleanup and redevelopment of the nation's brownfields.
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\4\ Today's proposal would require CAMU-eligible wastes to be
placed in landfills meeting Subtitle C standards for new hazardous
waste landfills, and the treatment requirements would be the same
as, or in some cases greater than, they would be for wastes placed
in CAMUs on-site. Therefore, the landfill disposal option will in
most cases be more protective overall.
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Critics of off-site management of remediation waste, when the issue
is raised in other contexts, often argue that this approach merely
transfers the risk from one community to another, particularly when
waste treatment standards are less than they would be for as-generated
wastes. EPA understands this concern. To address it, today's proposal
would require additional protection in two areas that are particularly
of concern. First, the proposal would require that the landfill
receiving the CAMU-eligible waste meet Subtitle C design and operation
requirements for new hazardous waste landfills, rather than the
proposed minimum CAMU standards, which are based on EPA's less
stringent standards for municipal solid waste landfills. And second,
the proposal would require treatment in all cases where the Regional
Administrator adjusted treatment standards because of the protection
afforded by the receiving landfill. In addition, to ensure public
participation at the receiving location, the Regional Administrator
would be required, under the conditions of today's proposal, to provide
the local public (in the vicinity of the landfill) with an opportunity
for comment on any decision to approve placement of CAMU-eligible waste
in the landfill. Finally, to ensure a high level of regulatory
oversight at the receiving landfill, the landfill would be required to
have a RCRA hazardous waste permit (i.e., it could not be operated
under interim status). Today's proposal would require a permit
modification at the receiving facility, incorporating management
requirements for the CAMU-eligible waste into permit conditions. The
modification would have to include public notice, and opportunity for
public comment and a hearing.
While today's proposal focuses primarily on placement of CAMU-
eligible waste in off-site hazardous waste landfills, it would not
restrict placement to off-site landfills (as the option submitted by
industry would); as suggested by one commenter, the proposal would
allow placement of CAMU-eligible waste in any hazardous waste landfill,
including on-site landfills-as long as the placement met the conditions
of today's proposal. EPA recognizes that some facilities subject to
cleanup already have permitted hazardous waste landfills on-site where
CAMU-eligible wastes might be safely placed. EPA sees no reason to
discourage placement of CAMU-eligible wastes in these landfills, as
long as the placement met the same conditions that would be required
for off-site placement. EPA believes that allowing on-site placement in
landfills would promote more aggressive remediation at these sites--
just as it would if wastes were sent to off-site locations. This
approach would also promote consolidation of cleanup wastes in
protective, lined Subtitle C landfills, and in many cases might free up
portions of a facility for redevelopment. For these reasons, EPA is
proposing to allow placement of CAMU-eligible wastes in on-site as well
as off-site hazardous waste landfills.
Today's proposed requirements would set conditions for disposal of
CAMU-eligible wastes in Subtitle C landfills. EPA, however, is
soliciting comment only on the specific terms of this proposal. It is
not asking for comment on any aspect of the August 2000 CAMU proposal.
The conditions of today's supplemental proposal are discussed below.
IV. Section-by-Section Discussion
In today's notice, EPA is proposing to add a new section, 40 CFR
264.555, to RCRA's Subtitle C regulations. This new section would allow
the Regional Administrator to approve placement of CAMU-eligible wastes
in permitted hazardous waste landfills, without the wastes meeting
otherwise applicable land disposal restrictions of RCRA, as codified in
40 CFR Part 268. Proposed Sec. 264.555 sets out the basic conditions of
approval, described below.
A. Conditions for Landfill Placement
Proposed Sec. 264.555(a)(1)-(3) would establish the basic
conditions that must be met for the Regional Administrator to approve
placement of CAMU-eligible waste in a hazardous waste landfill unit.
1. Limitation to CAMU-Eligible Wastes. Under proposed
Sec. 264.555(a)(1), hazardous waste placed in a hazardous waste
landfill under the conditions described in today's proposal would be
limited to CAMU-eligible waste, as defined in proposed
Sec. 264.552(a)(1) and (2), in EPA's August 2000 CAMU proposal--that
is, only wastes eligible for placement in a CAMU in the August 2000
proposal would be eligible for placement in a hazardous waste landfill
under today's proposal. Readers should refer to the August 2000
proposal for the definition of ``CAMU-eligible'' and a discussion of
the term (p. 51084-51089). Generally, CAMU-eligible wastes would be
limited to solid or hazardous waste,
[[Page 58089]]
or environmental media and debris, managed for implementing cleanup.
They do not include as-generated wastes from on-going industrial
operations.\5\
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\5\ The definition of CAMU-eligible wastes includes non-
hazardous solid wastes. Non-hazardous cleanup wastes, of course,
would not be affected by today's proposal, because they would not
need special approval under Sec. 264.555 to be placed in a hazardous
waste landfill. Similarly, non-hazardous as-generated wastes would
also be unaffected. The regulation of these wastes would generally
be a matter of state law.
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In addition, the ``discretionary kickout'' of the CAMU proposal
(Sec. 264.552(a)(2)) would also apply--that is, the Regional
Administrator could deny approval for waste that had not been managed
(prior to cleanup) in compliance with the land disposal treatment
requirements of Part 268 Subpart D or applicable RCRA design
requirements, or if non-compliance with other applicable RCRA hazardous
waste requirements likely contributed to the release of the waste. EPA
included these requirements in the proposed amendments to the CAMU to
ensure that CAMUs do not provide an incentive to mismanage as-generated
wastes, and that persons who violated RCRA requirements in significant
ways would not be automatically eligible to benefit from the
flexibility provided by the CAMU. The discretionary kickout is
discussed in detail in the preamble to the CAMU proposal at p. 51088-9.
EPA believes it is appropriate to retain the ``kickout'' here, because
the incentives would work in the same way for CAMU-eligible waste
(treated in accordance with today's proposed standards) disposed of in
hazardous waste landfills under today's proposal as they would for
remediation waste disposed of in CAMUs.
The August 2000 proposal identified certain circumstances where
non-hazardous as-generated wastes might be CAMU-eligible, and it banned
liquid wastes except in certain circumstances (see proposed
Sec. 264.552(a)(1)(iii) and (a)(3), p. 51087-8, 51090-1). Specifically,
as-generated wastes might be allowed where they facilitated treatment
or performance of the CAMU, and liquids might be allowed where they
facilitated the remedy selected for the waste. EPA has not proposed to
include these provisions in the definition of hazardous wastes eligible
for off-site disposal under today's proposal. In the case of ``as-
generated'' wastes, a special exception is unnecessary, because there
is no current regulatory constraint on placement of non-hazardous as-
generated wastes in RCRA permitted landfills (except of course in cases
of waste incompatibility, or similar situations). As for liquids, EPA
sees no reason why the current RCRA ban on liquids in landfills should
not continue to apply to hazardous waste landfills receiving CAMU-
eligible wastes. The circumstances EPA identified where RCRA ban on
liquids might be inappropriate for CAMUs were specific to remediation
(see p. 51091). Therefore, EPA is proposing not to extend the
exceptions to the liquids-in-landfills ban to disposal of CAMU-eligible
wastes in hazardous waste landfills.
2. Treatment Requirements. Proposed Sec. 264.555(a)(2) establishes
treatment requirements for CAMU-eligible wastes placed, in accordance
with today's proposal, in permitted hazardous waste landfills. As
explained earlier in today's notice, these requirements largely track
the August 2000 proposed treatment requirements for remediation wastes
placed in CAMUs (with certain key differences). EPA's August 2000
proposed CAMU standards would require treatment of ``principal
hazardous constituents'' in CAMU-eligible wastes to certain specified
national minimum standards, or to adjusted standards, based on any of
five specific ``adjustment factors'' (see proposed Sec. 264.552(e) in
the August 2000 notice) approved by the Regional Administrator. The
adjusted level would have to be protective of human health and the
environment (proposed Sec. 264.552(e)(4)(v)).
In today's proposal, treatment of CAMU-eligible wastes disposed in
hazardous waste landfills would similarly be limited to principal
hazardous constituents (PHCs), as identified by the Regional
Administrator. For details on the definition and identification of
PHCs, readers should refer to the August 2000 proposed rule language,
and the preamble discussion at p. 51096-9. Briefly, PHCs are
``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 cleanup site (see proposed
Sec. 264.552(e)(4)(i)).
Today's proposal would also use the same structure for treatment
requirements--that is, it would retain the national minimum treatment
standards, with an opportunity for the Regional Administrator to adjust
them based on specific enumerated factors (see discussion beginning at
51095 of the August 2000 proposal, and proposed Sec. 264.252(e)(4)).
Today's proposal, however, would eliminate one adjustment factor from
the August 2000 proposal (Adjustment Factor B, which considers cleanup
levels or goals at the remediation site), and it would also reduce the
scope of another (Adjustment Factor E(2), which in the August 2000
proposal might allow for no treatment, under limited circumstances).
Today's proposal would require treatment of principal hazardous
constituents under Adjustment Factor E(2) in all cases of disposal in a
hazardous waste landfill. These treatment standards would apply in lieu
of otherwise applicable RCRA land disposal restrictions, and adjusted
standards would have to be protective of human health and the
environment (proposed Sec. 264.552(e)(4)(v)).
Under proposed Sec. 264.555(a)(2), the treatment requirements of
today's proposal could be met in three ways, described below.
First, under proposed Sec. 264.555(a)(2)(i), PHCs in the CAMU-
eligible waste could be treated to the proposed minimum national
treatment standards for CAMUs in proposed Sec. 264.552(e)(4)(iv): that
is, their concentration in the waste would have to be reduced by 90%,
but in any case treatment would not be required below 10 times the
universal treatment standard.\6\ These levels, which EPA proposed in
August 2000 for wastes placed in CAMUs, are based on EPA's treatment
standards for contaminated soils, promulgated in the Phase IV land
disposal restrictions rule (63 FR 28556, May 26, 1998). Since these
treatment levels are the current standards for contaminated soils, the
level of treatment required for soils would be the same without today's
proposal, except that under today's proposal treatment would only be
required for principal hazardous constituents. As the August 2000
proposal does for wastes being disposed of in CAMUs, today's proposal
would apply these minimum national treatment standards to principal
hazardous constituents in non-soil CAMU-eligible wastes being disposed
of in Subtitle C landfills; these wastes, for example, might include
sludges or wastes in old landfills undergoing remediation. For a
detailed discussion of the national minimum treatment standards, in the
context of CAMUs, see the preamble to the August 2000 proposal (p.
51099-51101).\7\
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\6\ Universal treatment standards (UTS) appear in 40 CFR 268.40.
\7\ Section 264.552(e)(4)(iv)(E) of the August 2000 proposal
would establish special treatment standards for debris placed in
CAMUs debris may be treated to the current land disposal restriction
standards of )268.45, the national minimum standards (i.e., 90%
capped by 10XUTS)s, or atreatment standards established through one
of the Adjustment Factors A through E, ``whichever the regional
Administrator determines is appropriate.'' These same standards
would apply to debris disposed of in hazardous waste landfills under
today's proposal. However, since EPA believes that Adjustment Factor
B is inappropriate for wastes placed in hazardous waste landfills,
under today's proposal, the Regional Administrator would not be able
to adjust the treatment standard for debris based on this factor.
Similarly, the limitations on Adjustment Factor E(2) in today's
proposal would also apply to debris.
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[[Page 58090]]
Second, under proposed Sec. 264.555(a)(2)(ii), the Regional
Administrator may adjust the minimum treatment standards by applying
several of the adjustment factors allowed for CAMUs in the August 2000
proposal. These are adjustment factors Sec. 264.552(e)(4)(A), (C), (D),
and (E)(1).\8\ The factors are discussed in detail in the preamble to
the August 2000 proposal (p. 51102-8). To summarize briefly, the basis
for adjustments under these factors are: Adjustment Factor A: the
technical impracticability of treatment to the national minimum levels;
Adjustment Factor C: the views of the affected community (in this case,
particularly, at the site of the hazardous waste landfill receiving the
waste, when it is different from the cleanup site); Adjustment Factor
D: the short-term risks of treatment needed to meet the national
minimum standards; and Adjustment Factor E(1): the long-term protection
offered by the engineering design (and related engineering controls) of
the hazardous waste landfill in which the CAMU-eligible waste would be
placed, when the national minimum treatment standards have been
substantially met, and the PHCs in the waste are of very low mobility.
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\8\ Adjustment Factor B in the August 2000 proposal would allow
treatment levels to be adjusted, based on ``cleanup standards
applicable to the [remediation] site.'' Since, under today's
proposal, the CAMU-eligible waste would be disposed of in permitted
hazardous waste landfills, EPA concluded that the cleanup goals at
the site were not relevant and, therefore, has not included this
adjustment factor.
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EPA believes the application of Adjustment Factors A, C, and D in
the context of today's proposal would be straightforward, and they need
no further explanation here (although readers are referred to relevant
discussions in the August 2000 CAMU proposal at p. 51102-4.) Adjustment
Factor (E)(1), however, deserves further discussion. In the CAMU
proposal, EPA included Adjustment Factor E among the adjustment factors
so that the Regional Administrator might take into account the design
of the CAMU in determining treatment levels. EPA believed that this
consideration was appropriate (in clearly defined circumstances), both
to remove disincentives to more aggressive cleanup and in
acknowledgment of the important role of engineering design in ensuring
protective remedies. EPA believes that these same principles apply when
CAMU-eligible wastes are sent to permitted hazardous waste landfills--
particularly since these landfills will meet the rigorous Subtitle C
hazardous waste standards for new landfills. See, Louisiana
Environmental Action Network v USEPA 172 F. 3d 65, 70 (D.C. Cir. 1999)
(finding that RCRA allows the Agency to consider the protective effect
of the disposal unit when setting treatment requirements).
Adjustment Factor (E)(1), in the August 2000 CAMU proposal, would
allow the Regional Administrator to adjust treatment levels because of
the protection offered by the design of the CAMU in adjusting treatment
levels, but only if PHCs ``substantially met'' the national treatment
standards, and the PHCs were of ``very low mobility.'' For more
discussion of these terms, see the preamble to the proposal at p.
51105-6. EPA would interpret these terms in the same way, for the
purposes of today's proposal, except of course in the context of
today's proposal, the Regional Administrator's analysis would be based
on the environmental setting and the engineering design of the
permitted hazardous waste landfill that was to receive the CAMU-
eligible waste (see Sec. 264.555(f) in today's proposed regulatory
language). EPA expects that the analysis would be identical to the one
anticipated for an on-site CAMU--although the unit would be designed to
meet RCRA hazardous waste landfill design standards (see 65 FR 51104).
Third, proposed Sec. 264.555(a)(2)(iii) would allow the Regional
Administrator to adjust the minimum national treatment standards based
on the design of the landfill \9\ in accordance with proposed
Sec. 264.552(e)(4)(v)(E)(2), but with an important limitation--in all
cases, treatment of PHCs would be required,\10\ and that treatment
would be required to significantly reduce ``the toxicity or mobility of
the principal hazardous constituents in the waste, minimizing the
short-term and long-term threat posed by the waste, including the
threat at the remediation site.''
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\9\ Note that, under proposed Sec. 264.555(f), the ``design of
the CAMU'' in Sec. 264.552(e)(4)(v)(E) means the design of the
permitted Subtitle C landfill.
\10\ Although the industry proposal would have required that the
treatment in this case be ``cost-effective,'' EPA sees no reason to
limit the treatment in this way. As long as the treatment meets the
performance standard of this section, EPA believes that it is
immaterial whether the treatment is ``cost-effective'' or not.
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To assist the reader in understanding this proposed requirement,
EPA repeats here, for context, the original language for Adjustment
Factor E(2) in the August 2000 proposal:
(E) The long-term protection offered by the engineering design
of the CAMU and related engineering controls: * * *
(2) Where cost-effective treatment has been used, or where,
after review of the 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 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 greater
protection.
(For further discussion of this proposed requirement, commenters should
consult the preamble to the August 2000 proposal (p. 51106-7).) Under
the proposed CAMU amendments, Adjustment Factor (E)(2) would allow a
facility owner/operator, under certain circumstances, to forgo
treatment of PHCs in CAMU-eligible waste where ``cost-effective
treatment * * * is not reasonably available.'' Under today's proposed
Sec. 264.555(b)(2)(iii), this option would not be available for CAMU-
eligible hazardous waste being placed in a hazardous waste landfill.
Not only would treatment of PHCs be explicitly required, but that
treatment would have to significantly reduce ``the toxicity or mobility
of the principal hazardous constituents in the waste, minimizing the
short-term and long-term threat posed by the waste, including the
threat at the remediation site.''
Requiring treatment under this adjustment factor, therefore, means
that the option described in proposed paragraph (E)(2)(iii) would not
be available for placement of CAMU-eligible waste in a hazardous waste
landfill--because this option assumes no treatment. Instead, because
permitted hazardous waste landfills must meet the Subtitle C standards
for new landfills, paragraph (E)(2)(i) (where treatment is conducted)
will govern placement under this adjustment factor. The proposed
language also requires that treatment of the PHCs would minimize the
threat at the remediation site as well as at the landfill (where the
landfill is at a different location). EPA expects that threats at the
remediation site would typically be minimized, because the treated
waste would be sent off-site, but this provision would ensure that any
cross-media issues raised by on-site
[[Page 58091]]
treatment were addressed, and that any threats from non-hazardous
treatment residues left on-site were minimized.
Thus, today's proposal would significantly tighten the conditions
of Adjustment Factor (E)(2) for CAMU-eligible wastes being placed in
hazardous waste landfills. EPA is proposing to add these limitations to
Adjustment Factor (E)(2)--particularly requiring treatment of PHCs in
all cases under this factor--to ensure that any potential transfer of
risk to the off-site location is minimized when the Regional
Administrator relies on the protection afforded by the disposal unit to
adjust the treatment standards. Merely requiring treatment for off-site
placement would not provide much certainty on the degree of treatment,
and therefore today's proposal includes a performance standard for the
treatment: it would have to be ``treatment that substantially reduces
the toxicity or mobility of the principal hazardous constituents in the
waste, minimizing the short-term and long-term threat posed by the
waste * * *'' EPA notes that this standard (except in its limitation to
PHCs) is essentially the same as the statutory treatment standard
underlying the hazardous waste land disposal restrictions. By
requiring, under this adjustment factor, that the risk drivers during
the cleanup (that is, the principal hazardous constituents) be
``substantially'' treated to ``minimize threat,'' EPA believes that the
proposal minimizes any potential for risk transfer in situations where
the degree of treatment is predicated on the condition of the receiving
landfill.
EPA notes that this proposed requirement for ``substantial''
treatment minimizing threat would apply only to adjustment factor E(2).
EPA does not believe a comparable standard is needed for the other
adjustment factors, which do not allow the Regional Administrator to
base the decision solely on the engineering design of the receiving
unit (see e.g., RCRA Section 1002(b)(7), recognizing the uncertainties
associated with land disposal of hazardous wastes).
3. Disposal Unit Requirements. Proposed Sec. 264.555(a)(3) would
limit hazardous waste landfills receiving CAMU-eligible wastes to those
with RCRA permits. This section would also require that the landfill
meet the technical design and operating requirements for new landfills
in 40 CFR Part 264, Subpart N. This requirement will ensure that the
landfill meets the double synthetic liner and detailed leachate
collection requirements of Sec. 264.301(c). In addition, the landfill
will be subject to the specific ground-water monitoring requirements of
subpart F of Part 264 and the closure requirements of subpart G. EPA
notes that design and operating requirements for CAMUs in the August
2000 proposal are largely based on standards for municipal solid waste
landfills, rather than the more stringent hazardous waste requirements
of today's proposal. As with the treatment requirement under Adjustment
Factor (E)(2), EPA is proposing to take a more stringent approach for
placement of CAMU-eligible wastes in hazardous waste landfills to
minimize any potential for transfer of risk.
Today's proposal would not allow CAMU-eligible wastes to be placed
in ``interim status'' hazardous waste landfills; placement is limited
to units with RCRA hazardous waste permits. Under the RCRA regulations,
existing facilities are grandfathered into the permit system under
``interim status,'' if they are in existence at the time they become
subject to RCRA hazardous waste requirements. Eventually, EPA or the
appropriate state must issue these facilities a RCRA permit, through a
public process. The permit applies the RCRA hazardous waste
requirements directly, through detailed conditions, to the waste
management units covered in the permit.
EPA is proposing to limit placement of CAMU-eligible wastes, under
the terms of today's proposal, to landfills with a RCRA hazardous waste
permit because the part 264 standards provide a higher level of
specificity than do comparable standards for interim status landfills
in part 265--for example, in the area of ground-water monitoring. EPA
also believes a permit contributes to minimizing risk transfer, because
permits ensure close regulatory oversight of general facility
operations (e.g., waste analysis plan, contingency plan, etc.) and
financial assurance. For this reason, EPA believes the permitting
standards and the permit process are important elements of the proposed
approach.
Today's rule would not specify who had to hold the permit for the
landfill. For example, the landfills accepting CAMU-eligible wastes
might be off-site commercial units, or they might be at facilities
controlled by the owner/operator of the remediation site.
B. Approval Procedures
The Regional Administrator (or the authorized state program) at the
location of the hazardous waste landfill would be responsible for
approving placement of CAMU-eligible waste in the landfill. Under
today's proposal, approval procedures for placement of CAMU-eligible
waste in the hazardous waste landfill would be identical to the CAMU
approval procedures in the August 2000 proposal. Under today's proposed
Sec. 264.555(b), facility owner/operators wishing to place CAMU-
eligible waste in a RCRA landfill must meet the same information
requirements as apply to CAMU applications. That is, they would be
required to provide information sufficient to enable the Regional
Administator to approve placement, in accordance with proposed
Sec. 264.555(b). In addition, the person applying for approval must
provide information on the waste required in proposed
Sec. 264.552(d)(1)-(3), unless it is not reasonably available. The
Regional Administrator would use this information--which relates to
waste origins and past management--to determine that the waste is
indeed ``CAMU-eligible'' and to support use of the ``discretionary
kickout,'' where appropriate. Before approving placement of the CAMU-
eligible waste in the RCRA landfill, the Regional Administrator would
have to provide public notice and a reasonable opportunity for public
comment. These standards are identical to those for approval of CAMUs
at the remediation site, and EPA believes they are equally appropriate
for placement in a hazardous waste landfill, including off-site
placement--where the Regional Administrator will be addressing the same
questions (e.g., is the waste ``CAMU-eligible'' or should the
discretionary kickout be exercised). For further discussion of these
standards, see p. 51089-51090 of the August 2000 proposal. Finally,
under today's proposal, approval procedures (including public notice
and comment) for placement in a hazardous waste landfill would be
specific to individual cleanups. EPA believes that this approach is
appropriate, given the likely variation of CAMU-eligible wastes from
cleanup to cleanup site, and the waste-specific nature of many aspects
of the approval (e.g., identification of PHCs, choice of adjustment
factors, etc.).
Proposed Sec. 264.555(d) would require that the permit for the
landfill be modified to incorporate CAMU-eligible waste into the
permit, ensuring that its management is covered by appropriate part 264
hazardous waste requirements. In some cases, a permit modification
would already be required by state or federal regulations, but in
others--for example, where the waste met the waste acceptance criteria
in the permit--it might not. In any case, proposed Sec. 264.555(d)
would ensure that the permit was modified to incorporate CAMU-eligible
waste. The modification
[[Page 58092]]
would follow permit modification procedures specified in Sec. 270.42 or
comparable state regulations, but at a minimum it would include public
notice, opportunity for comment, and an opportunity for a hearing. This
process would ensure that the local public has the opportunity to
comment on the specifics of how the waste is managed under the facility
permit.
As part of the permit modification process, EPA expects that the
Regional Administrator would include any requirements he or she
determined were necessary to protect human health or the environment
through the RCRA ``omnibus'' provision.\11\ These requirements might
include special management standards to address potential risks from
hazardous constituents in the waste, including principal hazardous
constituents. As specified in proposed Sec. 264.555(d), the permit
would also include recordkeeping requirements to demonstrate compliance
with treatment standards approved for the waste. Under the current
permitting requirements at Sec. 264.13(a)(1), the facility owner/
operator would be required to conduct an analysis of the waste that,
``at a minimum'' contains ``all the information which must be known to
treat, store, or dispose of the waste in accordance with this part''
(which would include information to show that treatment levels approved
by the Regional Administrator were met). The plans for this analysis
would be incorporated into the facility waste analysis plan (see
Sec. 264.13(b)), and the results of the analysis kept in the facility
operating records in accordance with Sec. 264.73(b)(3).
---------------------------------------------------------------------------
\11\ Under the RCRA ``omnibus'' provision, ``each permit * * *
shall contain such terms and conditions as the Administrator (or the
State) determines necessary to protect human health and the
environment.'' RCRA 3005(c)(3).
---------------------------------------------------------------------------
In most cases, EPA expects that the process for approving placement
of the waste (in Sec. 264.552(c)) and the permit modification step (in
Sec. 264.555(d)) would take place as part of the same process, and EPA
certainly encourages this approach. At the same time, however, today's
proposal identifies these processes as separate requirements, because
they reflect different regulatory events--the Regional Administrator's
approval of the CAMU-eligible placement reflects a determination that
the standards of Sec. 264.555(b) are met in the context of waste from a
particular cleanup, while the permit modification integrates the
management of that waste into an already existing regulatory mechanism,
that is, the facility permit.\12\
---------------------------------------------------------------------------
\12\ This dual requirement is similar to the current situation
with land disposal restriction treatment variances. For example, an
LDR variance under Sec. 268.44(h) might allow wastes to be disposed
of in a hazardous waste landfill. Yet this variance would be
independent of whether the landfill's permit needed to be modified
to allow it to receive the waste. Similarly, no-migration variances
under Sec. 268.6 are issued for facilities under a separate process
from permit modifications allowing the facility to receive the
waste.
---------------------------------------------------------------------------
C. Other Requirements
EPA emphasizes that today's proposal is narrow in scope. Under
today's proposal, the Regional Administrator may approve placement of
CAMU-eligible waste in hazardous waste landfills under only limited
circumstances. Meanwhile, the waste would remain a RCRA hazardous
waste, subject to all applicable RCRA hazardous waste requirements. For
example, the manifest, recordkeeping, and reporting requirements of
part 262 and part 264 subpart E would apply. In other words, the waste
would require a manifest when shipped to an off-site facility, and
standard RCRA waste-management requirements would apply (e.g., waste
analysis, storage requirements prior to placement, etc.).
In addition, when the waste is sent off-site, the proposed rule
(Sec. 264.555(e)) specifies that the generator of the waste (i.e., the
owner/operator of the remediation site) would be subject to the current
reporting, recordkeeping, and tracking requirements of
Sec. 268.7(a)(4). This section establishes requirements that apply
``when exceptions allow certain wastes or contaminated soil that do not
meet the [land disposal restriction] treatment standards to be land
disposed.'' With the initial shipment of waste, the generator would be
required to send a one-time written notice to the land disposal
facility providing specific information, such as the EPA waste
identification numbers, the manifest number of the first shipment, and
waste analysis data.
In addition, today's rule does not in any way restrict remediation
waste management options that already exist. For example, the land
disposal restriction variances of Sec. 268.44(h) would remain available
as an alternative (or complementary) approach for CAMU-eligible wastes
sent for disposal. Furthermore, as described above, non-hazardous
wastes would also be unaffected, because their management and disposal
are generally not regulated under the federal RCRA hazardous waste
program, and they would not need special approval under today's rule to
allow placement in a landfill.
V. How Would Today's Proposed Regulatory Changes Be Administered
and Enforced in the States?
Under Sec. 3006 of RCRA, EPA may authorize qualified states to
administer their own programs in lieu of the federal hazardous waste
program and to issue and enforce permits within the state. A state may
receive authorization by following the approval process described under
Part 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 promulgated
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. Today's
supplemental proposal is considered to be less stringent than the
existing federal program. Although states would not be required to
adopt these provisions, EPA would strongly encourage them to do so.
The provisions in today's notice are a supplement to the CAMU
amendments that were proposed on August 22, 2000
[[Page 58093]]
(65 FR 51080). The provisions in today's notice address the application
of LDRs to cleanup wastes and would therefore also be promulgated under
HSWA authority. Because these provisions are less stringent than the
existing regulations, they will become effective only in those states
which are not authorized for these parts of the hazardous waste
program. Further, because the issues addressed by the provisions in
today's notice have no counterpart in the existing CAMU regulations (or
any other RCRA regulation), they would not be substantially equivalent
to those regulations. Thus, states which are authorized for the 1993
CAMU rule would not be able to gain interim authorization-by-rule for
the provisions in today's notice. The final CAMU amendments rule would
not include the provisions in today's notice in the interim
authorization-by-rule sections in proposed Secs. 271.24(c) and 271.27
(see 65 FR 51115).
However, if a state were, through implementation of state waiver
authorities or other state laws, to allow compliance with the
provisions of today's notice in advance of adoption or authorization,
EPA would not generally consider such implementation a concern for
purposes of enforcement or state authorization. (This is similar to the
approach the Agency took in promulgation of the 1993 CAMU rule. See 58
FR 8677, February 16, 1993.)
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 effective date in three
circumstances: (1) Where 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, at the same time as the proposed effective date for
the CAMU amendments in the August 2000 proposal. EPA does not believe
that industry needs a full six months to come into compliance with
today's proposed requirements, because they do not directly impose any
new requirements. Furthermore, if EPA finalizes today's proposal, it
intends to do so at the same time as it finalizes the August 2000
proposal. The Agency believes that it will be simpler and less
confusing if all the CAMU amendments become effective on the same date.
VII. Analytical and Regulatory Requirements
A. Planning and Regulatory Review (Executive Order 12866)
Under the Planning and Regulatory Review Executive Order 12866 (58
FR 51735 (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.
It has been determined that this rule is not a ``significant
regulatory action'' under the terms of Executive Order 12866, and
therefore OMB has exempted this regulatory action from Executive Order
12866 review.
The existing regulatory requirements for management of hazardous
cleanup wastes (e.g., the otherwise applicable LDR treatment
requirements and the minimum technology unit design standards) can
present a significant disincentive to facilities considering
remediation. This condition was one of the main factors behind the 1993
CAMU Rule and was discussed in the August 2000 preamble to the CAMU
Amendments. Under these baseline conditions, facilities that manage
their remediation waste in a Subtitle C landfill typically incur
significant costs to meet the LDR requirements. However, under today's
proposal these facilities would have the option of treating their
cleanup wastes that meet the definition of CAMU-eligible waste to the
national minimum treatment standards (or the adjusted standards as
described earlier in today's proposal) and disposing of them in a RCRA
hazardous waste landfill. Thus, these facilities would enjoy a cost
savings as a result of the less stringent treatment requirements of
today's proposal.
Despite the existence of various alternatives to full Subtitle C
management of cleanup wastes under the baseline requirements (such as
CAMU or treatability variances), there are still cases where facilities
reduce the scope of their remedial efforts or do not perform
remediation at all. In such cases, the less rigorous requirements
provided in today's proposal for Subtitle C management of cleanup
wastes meeting the definition of CAMU-eligibility may provide enough
incentive for some facilities to increase their remedial efforts. For
those facilities shifting from no remediation in the baseline to
remediation under the less stringent requirements of today's proposed
rule, there may actually be an increase in costs. However, these costs
would be borne voluntarily and can therefore be expected to result in
an overall gain for the facility. A good example of such a case would
be a brownfields redevelopment site.
Thus, as discussed above, the Agency believes that today's proposal
will result in an overall reduction in the costs to facilities through
the reduction in treatment requirements when cleanup work is managed in
Subtitle C landfills.
B. Regulatory Flexibility Act (RFA) as amended by the Small Business
Regulatory Enforcement and Fairness Act of 1996 (SBREFA), 5 USC 601 et
seq.
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 today's proposed rule on
small entities, small entities are defined as: (1) a small business
meeting the RFA default definitions (based on SBA size standards); (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. In
determining whether a rule has a significant economic impact on a
[[Page 58094]]
substantial number of small entities, the impact of concern is any
significant adverse economic impact on small entities, since the
primary purpose of the regulatory flexibility analyses is to identify
and address regulatory alternatives ``which minimize any significant
economic impact on the proposed rule on small entities.'' 5 U.S.C.
Sections 603 and 604. Thus, an agency may certify that a rule will not
have a significant economic impact on a substantial number of small
entities if the rule relieves regulatory burden, or otherwise has a
positive economic effect on all the small entities subject to the rule.
As discussed in the economic analysis section, EPA believes that
today's proposal will provide regulatory relief for facilities engaging
in remediation through treatment of CAMU-eligible wastes to the
national minimum standards (or the adjustment factors) and disposal in
Subtitle C landfills. For facilities which manage their cleanup wastes
in the baseline according to full Subtitle C requirements, today's
proposal would provide relief through the less stringent requirements
for treatment of CAMU-eligible waste prior to disposal in a Subtitle C
landfill. Additionally, for facilities which currently do little or no
remediation due to the rigor of the baseline requirements for
management of cleanup waste, today's proposal would offer less
stringent requirements within which remediation might be pursued. EPA
therefore concludes that today's proposed rule will relieve regulatory
burden for all small entities. EPA is interested in the potential
impacts of the proposed rule on small entities and welcome 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. ) and a copy may be obtained from Sandy Farmer by mail at
Collection Strategies Division; U.S. Environmental Protection Agency
(2822); 1200 Pennsylvania Ave., NW., 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.
Today's proposal would require persons seeking approval to send
CAMU-eligible wastes to a permitted Subtitle C landfill under the
reduced treatment standards to submit sufficient information to enable
the Regional Administrator to approve placement of such wastes. Under
proposed Sec. 264.555(b), such persons would be required to submit the
information required by Sec. 264.552(d)(1) through (3) for CAMU
applications, unless not reasonably available. Section 3007(b) of RCRA
and 40 CFR part 2, Subpart B, which defines EPA's rules on public
disclosure of information, contain provisions for confidentiality of
business information. 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 final amended
CAMU rule. If such a claim were asserted, EPA must 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.
EPA estimates the total annual respondent burden and cost for the
final new paperwork requirements to be approximately 235 hours and
$63,120. The bottom line respondent burden over the three-year period
covered by this ICR is 750 hours, at a total cost of approximately
$189,360. The Agency burden or cost associated with this final rule is
estimated to be approximately 39 hours and $1,860 per year. The bottom
line Agency burden over the three-year period covered by this ICR is
117 hours, at a total cost of approximately $5,580. 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 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,
Collection Strategies Division; U.S. Environmental Protection Agency
(2822); 1200 Pennsylvania Ave., NW., Washington, DC 20460; and to the
Office of Information and Regulatory Affairs, Office of Management and
Budget, 725 17th St., NW., Washington, DC 20503, marked ``Attention:
Desk Officer for EPA.'' Include the ICR number in any correspondence.
Since OMB is required to make a decision concerning the ICR between 30
and 60 days after November 20, 2001, a comment to OMB is best assured
of having its full effect if OMB receives it by December 20, 2001. EPA
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 by State, local, and tribal
governments and the private sector. Under Section 202 of UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed rules and final rules for which the Agency
published a notice of proposed rulemaking if those rules contain
``Federal mandates'' that may result in the expenditure by State,
local, and tribal governments, in the aggregate, or to the private
sector, of $100 million or more in any one year. If a written statement
is needed, Section 205 of the UMRA generally requires EPA to identify
and consider a reasonable number of regulatory alternatives. Under
Section 205, EPA must adopt the least costly, most cost-effective or
least burdensome alternative that achieves the objectives of the rule,
unless the Administrator publishes with the final rule an explanation
why that alternative was not adopted. The provisions of Section 205 do
not apply when they are inconsistent with applicable law.
Today's proposed rule contains no Federal mandates (under the
regulatory provisions of Title II of UMRA) for State, local, or tribal
governments or the private sector. The rule imposes no enforceable duty
on any State, local or tribal governments or the private sector. EPA
has determined that this rule will not result in the expenditure of
$100 million or more by State, local, and
[[Page 58095]]
tribal governments, in the aggregate, or by the private sector in any
one year. No provision in today's proposal would require a facility to
employ the off-site disposal option in remediation. Therefore, no
facility would employ this option unless it provided some benefit over
and above currently existing options. Thus, today's rule is not subject
to the requirements of Sections 202, 204, and 205 of UMRA.
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 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 will not significantly or
uniquely affect small governments. Today's proposal provides a
voluntary option for consideration by a facility undertaking
remediation. Today's rule is not, therefore, subject to the
requirements of Section 203 of UMRA.
E. National Technology Transfer and Advancement Act of 1995
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 regulatory changes proposed today would not involve the use of
any technical standards not already addressed as part of the August
2000 proposal. As discussed in the August 2000 proposal, the Agency did
not identify any potential applicable voluntary consensus standards
during its development of the August 2000 proposal (e.g., during its
discussion with Agency personnel and stakeholders who are experts in
the areas addressed by the 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 and Tribal Governments
(Executive Order 13175)
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' ``Policies that have tribal
implications'' is defined in the Executive Order to include regulations
that have ``substantial direct effects on one or more Indian tribes, on
the relationship between the Federal government and the Indian tribes,
or on the distribution of power and responsibilities between the
Federal government and Indian tribes.''
This proposed rule does not have tribal implications. It will not
have substantial direct effects on tribal governments, on the
relationship between the Federal government and Indian tribes, or on
the distribution of power and responsibilities between the Federal
government and Indian tribes, as specified in Executive Order 13175.
This proposed rule will not have tribal implications because tribal
governments do not implement the RCRA regulations and the proposed rule
is not anticipated to have significant impacts overall, nor on
individual facilities.
In the spirit of Executive Order 13175, and consistent with EPA
policy to promote communications between EPA and tribal governments,
EPA specifically solicits additional comment on this proposed rule from
tribal officials.
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 the
environmental health or safety risks addressed by this action present a
disproportionate risk to children. The Agency does not believe that the
risks addressed by today's amendments--i.e., the risks from management
of CAMU-eligible wastes in hazardous waste landfills--present a
disproportionate risk to children. Today's proposed rule would continue
to require that a decision concerning overall protectiveness of any
specific decision to allow placement of CAMU-eligible waste in a
Subtitle C landfill under the proposal be made by the Regional
Administrator based on site-specific circumstances, including risks to
children where appropriate. Furthermore, today's proposed rule would
require public notice and a reasonable opportunity for public comment
prior to approving placement of CAMU-eligible wastes in a hazardous
waste landfill.
The public is invited to submit or identify peer-reviewed studies
and data, of which the agency may not be aware.
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. As today's proposal offers a
voluntary option of disposal of CAMU-eligible wastes in hazardous waste
landfills, the Agency believes that it could result in a
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reduction in costs. Therefore, the Agency believes that it will not
result in substantial effects on States. Thus, Executive Order 13132
does not apply to this rule.
In the spirit of Executive Order 13132, and consistent with EPA
policy to promote communications between EPA and State and local
governments, EPA specifically solicits comment on this proposed rule
from State and local officials.
I. Environmental Justice Strategy (Executive Order 12898)
To the greatest extent practicable and permitted by law, and
consistent with the principles set forth in the report on the National
Performance Review, each Federal agency shall make achieving
environmental justice part of its 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 in the
United States and its territories and possessions, the District of
Columbia, the Commonwealth of Puerto Rico, and the Commonwealth of the
Mariana Islands.
Federal Agency Responsibilities for Federal Programs: Each Federal
agency shall conduct its programs, policies, and activities that
substantially affect human health or the environment, in a manner that
ensures that such programs, policies, and activities do not have the
effect of excluding persons (including populations) from participation
in, denying persons (including populations) the benefits of, or
subjecting persons (including populations) to discrimination under,
such programs, policies, and activities, because of their race, color,
or national origin.
EPA believes that the risks addressed by the proposed rule do not
have environmental justice implications. Today's proposed rule would
continue to require that a decision concerning overall protectiveness
of any specific decision to allow placement of CAMU-eligible waste in a
Subtitle C landfill under this proposal be made by the Regional
Administrator based on site-specific circumstances. Furthermore,
today's proposed rule would require public notice and a reasonable
opportunity for public comment prior to approving placement of CAMU-
eligible wastes in a hazardous waste landfill. Therefore, EPA believes
that there are no environmental justice issues associated with the CAMU
proposed amendments.
J. Energy Effects (Executive Order 13211)
This rule is not a ``significant energy action'' as defined in
Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355
(May 22, 2001)) because it is not likely to have a significant adverse
effect on the supply, distribution, or use of energy. Further, we have
concluded that this rule is not likely to have any adverse energy
effects.
List of Subjects in 40 CFR Part 264
Administrative practice and procedure, Air pollution control,
Confidential business information, Hazardous materials transportation,
Hazardous waste, Indians-lands, Insurance, Intergovernmental relations,
Packaging and containers, Penalties, Reporting and recordkeeping
requirements, Security measures, Surety bonds, Water pollution control,
Water supply.
Dated: November 14, 2001.
Christine T. Whitman,
Administrator.
For the reasons set out in the preamble, 40 CFR Part 264 is
proposed to be amended as follows.
PART 264--STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE
TREATMENT, STORAGE, AND DISPOSAL FACILITIES
1. The authority citation for part 264 continues to read as
follows:
Authority: 42 U.S.C. 6905, 6912(a), 6924, and 6925.
Subpart S--[Amended]
2. Section 264.555 is added to Subpart S to read as follows:
Sec. 264.555 Disposal of CAMU-eligible wastes in permitted hazardous
waste landfills.
(a) The Regional Administrator may approve placement of wastes in
landfills, including landfills not located at the site from which the
waste originated, without the wastes meeting the requirements of RCRA
40 CFR part 268, if the conditions in paragraphs (a)(1) through (3) of
this section are met:
(1) The waste meets the definition of CAMU-eligible waste in
Sec. 264.552(a)(1) and (2).
(2) The Regional Administrator identifies principal hazardous
constitutes in such waste, in accordance with Sec. 264.552(e)(4)(i) and
(ii), and requires that such principal hazardous constituents are
treated to any of the following standards specified for CAMU-eligible
wastes:
(i) The treatment standards under Sec. 264.552(e)(4)(iv); or
(ii) Treatment standards adjusted in accordance with
Sec. 264.552(e)(4)(v)(A), (C), (D) or (E)(1); or
(iii) Treatment standards adjusted in accordance with
Sec. 264.552(e)(4)(E)(2), where treatment has been used and that
treatment significantly reduces the toxicity or mobility of the
principal hazardous constituents in the waste, minimizing the short-
term and long-term threat posed by the waste, including the threat at
the remediation site.
(3) The landfill receiving the CAMU-eligible waste must have a RCRA
hazardous waste permit, meet the requirements for new landfills in
Subpart N of this part, and be authorized to accept such wastes; for
the purposes of this requirement, ``permit'' does not include interim
status.
(b) The person seeking approval shall provide sufficient
information (including the location of the landfill) to enable the
Regional Administrator to approve placement of CAMU-eligible waste in
accordance with paragraph (a) of this section. Information required by
Sec. 264.552(d)(1) through (3) for CAMU applications must be provided,
unless not reasonably available.
(c) The Regional Administrator shall provide public notice and a
reasonable opportunity for public comment before approving placement of
the CAMU eligible waste in the permitted hazardous waste landfill,
consistent with the requirements for CAMU approval at Sec. 264.552(h).
The approval must be specific to a single remediation.
(d) Applicable hazardous waste management requirements in this
part, including recordkeeping requirements to demonstrate compliance
with treatment standards approved under this section, for the CAMU-
eligible waste must be incorporated into the receiving facility permit
through permit issuance or a permit modification, providing notice and
an opportunity for comment and a hearing. Notwithstanding 40 CFR
270.4(a), a landfill may not receive hazardous CAMU-eligible waste
under this section unless its permit specifically authorizes receipt of
such waste.
(e) Generators of CAMU-eligible wastes sent off-site to a hazardous
waste landfill under this section must comply with the requirements of
40 CFR 268.7(a)(4).
(f) For the purposes of this section only, the ``design of the
CAMU'' in 40
[[Page 58097]]
CFR 264.552(e)(4)(v)(E) means design of the permitted Subtitle C
landfill.
[FR Doc. 01-28935 Filed 11-19-01; 8:45 am]
BILLING CODE 6560-50-P