Vol. 58, No. 029
Part II
58 FR 8658
Tuesday, February 16, 1993
CFR: 40 CFR Parts 260, 264, 265, 268, 270 and 271
SUMMARY: The Environmental Protection Agency is promulgating today certain corrective action-related regulations under Subtitle C of the Resource Conservation and Recovery Act (RCRA). The specific provisions finalized in this rulemaking address two new units that will be used for remedial purposes under RCRA corrective action authorities: corrective action management units (CAMUs), and temporary units (TUs). These specific provisions were proposed as part of a more comprehensive corrective action rulemaking on July 27, 1990.
These regulations are issued under the authority of sections 1006, 2002(a), 3004(u), 3004(v), 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.
The RCRA Hazardous and Solid Waste Amendments of 1984 established a broad new mandate for EPA and the States to implement corrective action at hazardous waste treatment, storage, and disposal facilities (TSDFs) regulated under subtitle C of RCRA. Under section 3004(u), permits issued to such facilities must address corrective action for all releases from solid waste management units at the facility. Under section 3008(h), EPA may issue administrative orders to compel corrective action at facilities authorized to operate under section 3005(e) of this subtitle (i.e., interim status facilities). Section 3004(v) established the authority to compel remediation of releases that have migrated beyond a facility's boundary.
On July 27, 1990, EPA issued a proposed rulemaking to establish, under subpart S of 40 CFR part 264, a comprehensive regulatory framework for implementing corrective actions at RCRA facilities under these new statutory authorities. 55 FR 30796-884 (July 27, 1990). The proposal established a detailed set of technical requirements and procedures for investigating and responding to environmental releases at RCRA facilities.
EPA received numerous public comments on the Subpart S proposal, many of which raised substantial issues which must be resolved prior to a final rulemaking. In addition, EPA is currently conducting a comprehensive new Regulatory Impact Analysis (RIA) to more thoroughly assess the costs and benefits of the Subpart S proposal, and to analyze specific regulatory alternatives for the final rule. EPA will make the results of the RIA available for public review and comment prior to promulgating the remainder of the proposed subpart S rules.
The proposed subpart S regulations contained several key remediation waste management provisions. These provisions were designed to reduce or eliminate certain waste management requirements of the current RCRA subtitle C regulations which, when applied to remediation wastes, impede the ability of the Agency to select and implement reliable, protective and cost- effective remedies at RCRA facilities. These impediments also occur at sites being remediated under CERCLA authorities, since RCRA requirements are often applicable or relevant and appropriate requirements (ARARs), as defined in CERCLA and in the CERCLA National Contingency Plan.
Therefore, EPA believes that pending the promulgation of the comprehensive subpart S rules, it is useful and necessary to expedite the promulgation of these key provisions of subpart S, and thereby realize the benefits that they will provide in an accelerated time frame.
The Agency remains committed to promulgating final comprehensive rules governing RCRA corrective actions. Today's rule is intended to advance that {pg 8659} process by putting into place certain key provisions that will produce immediate benefits for these important remedial programs. Specifically, today's rule promulgates provisions under subpart S for corrective action management units (CAMUs) and temporary units (TUs) to be used for the purpose of facilitating remediation waste management activities at RCRA facilities. The requirements for these units will also become RCRA ARARs for hazardous waste management activities at CERCLA sites.
Today's rule finalizes provisions for corrective action management units (CAMUs) and temporary units under subpart S of 40 CFR part 264. Both of these units function solely to manage wastes that are generated at a RCRA facility for the purpose of implementing remedial actions required at that facility (i.e., remediation wastes, as defined in this rule). As explained elsewhere in this preamble, these units will not and cannot be used to manage "as-generated" hazardous wastes; as used in this preamble, as- generated wastes means those wastes generated from ongoing production processes or other industrial activities.
In creating the CAMU as a remediation waste management unit, EPA is providing remedial decisionmakers with an added measure of flexibility in order to expedite and improve remedial decisions. Although the CAMU provision does provide some additional flexibility, it is important to recognize that other existing requirements, policies, and guidelines for establishing site-specific cleanup goals and for selecting remedies remain in effect. EPA does not intend for this rule to replace existing state and federal requirements, guidelines, and standards that define the necessary level of protectiveness for remedies and the factors to be considered in selecting site-specific remedies.
For example, as is discussed more fully later, existing closure regulations and requirements for RCRA-regulated units, which require closure to occur in a manner that is protective of human health and the environment, remain in effect. Similarly, EPA guidance (most notably, the subpart S proposal) and state regulations and guidance documents provide information on the appropriate conduct of cleanup actions. The Subpart S proposal defines the process for establishing cleanup goals, defines the process for and principles of remedy selection, and, requires that remedies meet the statutory standard of "protective of human health and the environment".
In addition, several years ago, EPA developed treatability guidelines for contaminated soil (the "Superfund 6A" guidance) for making site-specific decisions regarding treatability variances from the land disposal restriction standards. Today's CAMU rule does not specifically address the issue of what specific treatment standards or technologies should be applied in remediating RCRA facilities using CAMUs. However, EPA's Regulatory Impact Analysis for this final rule strongly suggests that promulgation of this CAMU provision, with appropriate criteria to guide the designation of CAMUs, will result in more treatment, greater use of innovative technologies and less incineration. Further, EPA expects that such treatment will often follow the treatment guidelines in the Superfund 6A guidance. The Agency's experience with this guidance has been that the treatment levels prescribed in the guidance are generally workable and practicable for remediation purposes. Thus, EPA expects that the 6A guidance will continue to be used in a variety of remedial situations involving management of contaminated soils, even when such soils are not explicitly subject to LDR requirements.
Finally, today's rule is only one component of what the Agency intends as a comprehensive regulatory framework under RCRA that will apply to the Agency's remedial programs. Today's rule for CAMUs and temporary units should be viewed in the context of the Agency's overall strategy to establish comprehensive remediation regulations under RCRA subtitle C, and is one of the first steps EPA is taking in developing a comprehensive risk-based regulatory framework. EPA is committed to proceed expeditiously to develop a complete regulatory framework for RCRA Corrective Action under subpart S and to develop new proposed regulations governing the status of contaminated media as hazardous waste. EPA is also committed to conducting these rulemakings in a manner which ensures ample opportunities for public dialogue to discuss appropriate regulatory requirements for the cleanup of contaminated media. EPA expects the dialogue to include discussions of risk-based cleanup standards for contaminated groundwater, soils, and other media, remedy selection decision criteria, and other specific cleanup requirements.
The Agency therefore wishes to emphasize that the scope and intent of today's final rules for CAMUs and temporary units is limited to establishing certain regulatory provisions relating to the management of remediation wastes. As is clarified in Sec.264.552(h), today's rule does not address the many important issues relating to "how clean is clean", or where compliance with cleanup standards must be achieved (i.e., points of compliance for remediation of ground water and other media). These are issues that will be addressed in the final Subpart S corrective action rule. Thus, for example, under today's rule the RA's designation of a CAMU at a facility, pursuant to the enumerated criteria, does not have any relevance to where the point of compliance for ground water remediation will be specified for that facility.
CAMU decisions will generally be made based on extensive discussions and consultations with the owner/operator. Once the preliminary decisions are made, the Agency will incorporate the CAMU designation into the permit or order, through a modification process that allows the owner/operator, and the public, the opportunity to comment on the specifics of the CAMU designation.
It is possible that in certain cases the owner/operator of a facility may disagree with the Agency regarding how the CAMU concept should be applied for purposes of implementing the CAMU. Such disagreements are usually resolved by informal discussions. In the rare event that such disagreements persist after the permit has been modified to incorporate the CAMU selected by the Agency, the owner/operator may file an administrative appeal to contest the CAMU decision. Under this appeal process, the provisions being appealed are not effective until a decision on the appeal is rendered by the Environmental Appeals Board. EPA believes that this process serves to protect the due process rights of the owner/operator.
In the proposed subpart S rule, EPA recognized that the existing regulatory structure of RCRA subtitle C, when applied to management of hazardous wastes for remedial purposes, can often seriously hamper the ability of decisionmakers to select and to implement effective, protective and cost effective remedies. CAMUs and temporary units, as finalized today, are expected to address these problems in several important ways.
The basis for establishing a separate regulatory framework for these new remediation waste management units is the premise that remediation of existing contamination problems is inherently {pg 8660} different from the management of as-generated industrial hazardous waste, and that applying "as-generated" regulatory requirements to remediation wastes does not always result in implementation of the best remedies. In fact, EPA's preliminary analysis indicates that better remedies, in terms of increased environmental benefits, are likely under a regulatory framework tailored to remediation wastes.
The original RCRA subtitle C program, which was established beginning in 1980, was designed to be a "cradle-to-grave" system of controls governing the generation and subsequent transportation, storage, treatment and disposal of hazardous wastes from ongoing industrial processes. Thus, RCRA was first and foremost a "prevention" oriented program, with the primary objective to prevent new releases (e.g., new Superfund sites) resulting from management of hazardous wastes. Following this objective, a stringent set of standards were developed to ensure protection of human health and the environment from such ongoing waste management. For the most part, the subtitle C regulations are specified as uniform, national standards that must be complied with at all RCRA-regulated facilities. These standards are generally considered very stringent; in order to ensure an adequate level of protection nationally, the standards must be adequate in preventing or minimizing environmental releases over a wide range of hazardous wastes types, environmental conditions, operational contingencies and other factors. Although there are certain limited provisions for waivers from the subtitle C regulations based on site-specific factors, the regulated community's experience has been that it is difficult and time-consuming to modify RCRA standards through site- specific waivers.
The 1984 HSWA amendments to RCRA strengthened the RCRA prevention program by adding several important statutory provisions governing the treatment and disposal of hazardous wastes. In particular, the RCRA land disposal restrictions (LDRs) and the minimum technology requirements (MTRs) have become central features of the RCRA prevention program. One of the important objectives of Congress in mandating the 1984 amendments (including LDRs and MTRs) was to provide increased incentives for generators of hazardous wastes to minimize the amounts of wastes being generated. See RCRA section 1003(b). EPA's experience in implementing the LDR program has shown that the costs associated with meeting the stringent, technology-based LDR standards actually have resulted in substantial reductions in the volumes of hazardous wastes generated from many industrial sectors.
In addition to these prevention-oriented provisions, the HSWA corrective action provisions created a very different, new mandate for the RCRA program: Cleaning up releases from solid waste management units (SWMUs) at over 4,000 RCRA TSDFs. RCRA is now both a prevention program and a cleanup program. These two basic elements of the RCRA program have markedly different objectives and incentives, and are impacted in very different ways by regulatory controls on waste management. As discussed below, therein lies the basic problem that today's final rule is intended to address.
EPA has found that subtitle C requirements, when applied to remediation wastes, can act as a disincentive to more protective remedies, and can limit the flexibility of a regulatory decisionmaker in choosing the most practicable remedy at a specific site. In contrast, RCRA subtitle C regulations, when applied to as- generated wastes, ensure that the wastes are handled according to stringent national standards; due to the cost of subtitle C management, they also create a significant incentive for process changes to minimize hazardous waste generation. Yet these same requirements, when applied to existing contamination problems, provide a strong incentive for leaving wastes in place, or for selecting remedies that minimize regulation under subtitle C.
EPA recognizes, of course, that both Superfund and RCRA provide it the authority to compel specific remedies, as long as the remedies are consistent with the goals of the statutes. Under the current programs, the Agency can require facility owner/operators or responsible parties to excavate wastes and manage them fully in compliance with Subtitle C. Similarly, in a fund-financed remedy under Superfund, EPA can use CERCLA funds to effect a similar remedy. Thus, through its regulatory authority, EPA can, at least in theory, override any regulatory disincentive against a given remedy. In its conduct of the Superfund and RCRA programs, however, EPA has come to recognize the fact that RCRA subtitle C requirements may make more sense when applied to some remedies than to others, and can influence the remedy selection process in undesirable ways. For example, compliance with LDR requirements may completely eliminate from consideration remedies that would otherwise meet Superfund or RCRA remedial standards, and that might be the most sensible remedy from a technical point of view. In such cases, the regulatory decisionmaker might be faced with the dilemma of choosing between two or more extreme options, such as a remedy involving containment in place versus removal of the wastes and management according to full RCRA subtitle C standards, without having the opportunity to consider a middle option that might be fully protective, in compliance with Superfund or RCRA cleanup goals, and acceptable to the local community. In such cases, practical considerations and the need for prompt action may often force the decisionmaker to select the less protective of the available extremes.
More broadly, under Superfund and RCRA corrective action, the regulatory decisionmaker must address a situation that is already unacceptable -- that is, a situation which needs remediation. The decisionmaker's goal in each case is to select a remedy that is fully protective, yet that reflects the technical and practical realities of the site. In addressing this situation, the decisionmaker needs the flexibility to consider a full range of strategies so that one may be selected that promptly and effectively addresses the problem. EPA believes that constraining this range of strategies by requiring compliance with subtitle C standards for wastes "generated" during remediation can often lead to remedies that are not cost-effective and that in some cases may actually be less protective solutions than the remedies that otherwise would be chosen.
This is reflected in the results of the preliminary CAMU analysis ("Supplemental Information of Corrective Action Management Units (CAMUs)", October 16, 1992) and in the Regulatory Impact Analysis (summarized in section VI. of today's preamble). According to these analyses, the "expanded" CAMU concept, which has been adopted in today's rule, is estimated to result in more treatment of wastes using more effective treatment technologies than would occur under the other regulatory options considered by the Agency. In addition, today's rule is predicted to result in more on-site waste management (vs. off-site management); lesser reliance on incineration; greater reliance on innovative technologies; and a lower incidence of capping waste in place without treatment.
Another reason for instituting a regulatory approach for management of remediation wastes that differs from the base Subtitle C program is the type and amount of Agency oversight that is {pg 8661} given to cleanup activities under RCRA and CERCLA, as opposed to ongoing generated waste streams. Remedial actions under these statutes are typically conducted with substantial Agency oversight; remedial decisions are made by the Agency based on a thorough study of the nature and extent of the contamination problems at the site. In contrast, most RCRA subtitle C regulations for as-generated waste streams are uniform, national standards, and as such must require a level of protection sufficient for a highly diverse universe of facilities and environmental settings, so as to be implemented with little Agency oversight.
One final difference between as-generated wastes and remediation wastes is that remediation often involves management of large volumes of contaminated media, such as soils or ground water. The physical characteristics of contaminated media can be quite different from those of as-generated wastes. Contaminated soils, for example, are highly variable in their composition and handling characteristics. Treatment of such soils can thus be particularly difficult. This is not to say that remediation wastes are always different; some remediation wastes, such as sludges, may be essentially identical to as-generated wastes. As a general matter, however, remediation wastes pose unique waste management issues.
The above considerations -- the level of Agency oversight over remedial actions, the counterproductive constraints and disincentives that subtitle C requirements can impose on the remedy selection process, and the physical and chemical differences that are often found between remediation wastes and as-generated wastes -- suggest that it is sensible and necessary to develop regulations under RCRA for management of remediation wastes that are better tailored to the realities of remediation actions. As a result, under today's rule, regulatory requirements for remediation wastes will differ from the standards applied to as-generated wastes.
Today's final rule for CAMU and temporary units is consistent with that policy objective. As explained earlier, these rules will create a markedly different regulatory framework for applying subtitle C requirements, particularly the LDRs and MTRs, to remediation waste management.
Today's rule promulgates regulations for CAMUs and temporary units. These regulations will provide the Regional Administrator with the authority to designate and approve such units for the purpose of managing remediation waste. The final CAMU provisions are an expansion of the proposed CAMU concept, and are intended to provide even greater flexibility for decisionmakers in implementing protective, reliable and cost-effective remedies. CAMU is a tool that can be used by an owner/operator when implementing corrective action at a facility. It is available to those owner/operators compelled to take corrective action under RCRA or those who initiate corrective action and seek Agency approval under RCRA. The temporary unit provisions in today's rule are changed little from the proposal, except that the time limit for temporary units has been increased from 180 days to one year.
Today's regulations will apply to corrective action implemented under RCRA permits (as provided under RCRA section 3004(u) and in Sec.264.101) and under section 3008(h) actions. In the subpart S proposal, EPA fully intended that the CAMU and TU regulations would apply to interim status facilities under section 3008(h). See 55 FR 30,802 (July 27, 1990). However, the proposed regulatory language did not contain explicit requirements for the use of CAMUs and TUs under section 3008(h). Several commenters requested clarification as to how and to what extent the substantive subpart S requirements would actually be applied under section 3008(h). Today's rule clarifies, in Sec.264.552 and in other conforming changes, that these rules for CAMUs and TUs will be applicable to corrective actions under section 3008(h). The Agency has also provided the opportunity for public comment through both the permit modification and order processes.
Under the final CAMU provisions, remediation waste management will be subject to LDRs and MTRs in a much more limited way than has been the case under existing regulations. For example, remediation wastes, including hazardous remediation wastes, may be placed into a CAMU without triggering applicability of LDRs or any other unit-specific requirements applying to hazardous waste land disposal units. Thus, remediation wastes generated at a facility, but outside a CAMU can be consolidated into the CAMU, and remediation wastes may be moved between two or more CAMUs at that facility, without triggering LDRs. Likewise, the "replacement" scenario, where remediation wastes are excavated from a CAMU, treated in a separate unit (which could be located inside or outside the CAMU at the facility), and redeposited into the CAMU, is not a new "disposal" event which triggers LDRs or other hazardous waste land disposal unit requirements. As explained in the proposal, MTRs would not apply to CAMUs, since by definition a CAMU is not subject to MTRs under 3004(o) and 3015. These regulatory features of CAMUs are described in more detail later in today's preamble.
Today's final rules for CAMUs grow out of the proposed approaches for defining the CAMU and the comments received by the Agency on those approaches. In the July, 1990 notice, the Agency discussed in detail several important proposed limitations on the scope of the CAMU. 55 FR 30843-44. First, a CAMU could only be designated by the Agency or the authorized State, and such designations would be subject to the public review and comment process as part of remedy selection. Second, the CAMU could only contain contaminated areas. Third, the CAMU was a land area and non- land-based units, such as incinerators or tanks, could not be considered part of the CAMU. Fourth, remediation waste from outside the CAMU that would be placed within the CAMU would be subject to the land disposal restriction requirements.
In the preamble, EPA also discussed several alternatives to the proposed CAMU, including options under which the CAMU would not have the second, third, or fourth restrictions noted above. 55 FR 30844. The Agency cited several problems with these options, noting that (1) including uncontaminated areas in the CAMU could be viewed as contradicting its remedial purpose, (2) including non-land-based units could be viewed as inconsistent with the land-based concept of the CAMU, and (3) including non-land-based units would complicate the application of relevant 264 standards to the non-land-based units.
Many of the comments on the proposed CAMU were critical of these proposed limitations and requested that EPA adopt an expanded type of CAMU as discussed in the preamble to the proposal. In response, EPA evaluated regulatory options for defining a CAMU and provided supplemental information for public comment summarizing the relative environmental benefits of the proposed CAMU and expanded CAMU options. 57 FR 48195 (October 22, 1992).
In light of EPA's 1992 supplemental information and the public comments received on the July, 1990 proposal and the October, 1992 supplemental information notice, EPA has decided to adopt a CAMU definition which is {pg 8662} broader than the proposed CAMU, but is consistent with the options for expanding the CAMU discussed in the July, 1990 preamble and in the October, 1992 supplemental notice. As explained below, EPA believes that the CAMU definition adopted today better achieves the policy goal of facilitating timely, protective, and effective cleanups at RCRA facilities than does the proposed CAMU. Moreover, EPA has structured the final CAMU definition to avoid the problems relating to expanding the CAMU concept, as noted in the July, 1990 preamble and in comments received by the Agency.
The principal difference between the proposed CAMU and the CAMU definition in today's final rule is that, under today's rule, the CAMU has been structured so that any waste managed within the CAMU which was generated as part of the corrective action at that facility (i.e., remediation waste) would not be subject to RCRA regulatory disposal requirements. Thus, waste generated from the corrective action at the facility may be placed within the CAMU without pre-treatment to the technology-based levels established under the RCRA land disposal restrictions (LDR) program.
EPA believes that Congress left ample authority for the Agency to modify, where appropriate, the regulatory requirements for as-generated hazardous waste under RCRA when applying those requirements to wastes generated during cleanup activities, so long as the requirements for these remediation wastes remain protective of human health and the environment. With respect to LDRs in particular, Congress defined the term "land disposal" to include the placement of hazardous waste in certain types of units historically used by the Agency to establish land disposal requirements for non-remediation wastes. See section 3004(k). Congress did not address in that provision how the LDRs would apply to wastes managed in newly-created types of land-based units or to units created solely for the management of remediation wastes, rather than as-generated hazardous wastes. Congress did, however, recognize the special problems that might be created by applying the LDRs to remediation wastes in the same manner as to as-generated wastes and provided some relief for remediation wastes placed in the units enumerated in section 3004(k). See e.g., RCRA sections 3004(d)(3) and 3020.
For the reasons outlined above, the application of regulatory requirements designed for as-generated wastes to remediation wastes has proven problematic. In essence, standards designed to prevent releases from occurring and to force hazardous waste generators to internalize the costs posed by hazardous waste management can be highly counterproductive when applied to wastes generated during remediations, where the release has already occurred and the desired incentive is to increase, rather than decrease, waste production. Cf. H.Rep. 98-198, Part 1, 98th Cong., 1st Sess. at 37 (1983) (noting that one of the primary Congressional purposes in establishing the comprehensive LDR program was to "compel generators to internalize the costs of disposal and treatment of hazardous wastes.") In addition, a primary goal of Congress in establishing the land disposal restrictions program was to ensure that hazardous wastes are managed properly in the first instance, thereby reducing the need for costly corrective action. See RCRA section 1003(5); H.Rep. 98-198, Part 1, 98th Cong., 1st Sess. at 30, 32 (1983). Remediation wastes are, however, waste which, by definition, were not managed properly "in the first instance," and for which corrective action is now necessary.
That Congress recognized, but did not fully resolve, the dilemma of applying preventive standards to remediation wastes when enacting remediation-related amendments to RCRA in 1984 is not surprising, since EPA's principal remedial programs, under CERCLA and RCRA subtitle C, were at that time in their early stages of development or sharply limited in scope.
Since 1984, the Agency also has struggled to determine exactly how the regulatory units described in section 3004(k) should apply to remediation situations, where the areas in question do not easily fit within the unit definitions referenced in that provision, and where the unit concepts themselves were designed with as-generated and managed wastes in mind. For example, a RCRA permitted disposal facility managing hazardous wastes will typically have one or more well-defined land areas constructed and operated for the purpose of a single type of hazardous waste land disposal practice (e.g., landfilling of containers, or treatment of liquid hazardous wastes in a surface impoundment). A typical RCRA corrective action, in contrast, involves scattered and diverse land and/or water areas with both "hot spots" of wastes and highly contaminated soils and generally dispersed contamination. In addition, such areas typically include a variety of historical land disposal practices, many of which are far different from the management practices authorized for ongoing hazardous waste management in land disposal units (e.g., pipeline leaks, product spills, dewatered surface impoundments). Since 1988, the Agency has used the definition of "landfill" to describe these remediation land areas simply because EPA had no unit definition that applied to these areas, and the "landfill" definition served as a catchall. See 55 FR 8760 (March 8, 1990). With today's rule, EPA intends to provide a more appropriate set of standards and definitions tailored to remediation areas.
Today's rule addresses the ambiguity in the application of RCRA preventive standards to remediation wastes generated at RCRA facilities, especially the LDRs. Because Congress did not provide direction under section 3004(k) on how the LDRs should apply to areas that are used solely for the management of remediation wastes, and consequently, do not fit within the unit definitions constructed by EPA for as-generated wastes, EPA interprets the definition of "land disposal" in section 3004(k) to exclude the placement of remediation waste in CAMUs under today's rule. EPA believes that this interpretation is reasonable since remedial areas are not a listed regulatory unit under section 3004(k), because Congress recognized that the application of LDRs to remediation wastes might require a different framework than that developed for the application to as-generated wastes, and, as discussed above, because the direct application of preventive standards to remediation wastes is often inappropriate and counterproductive.
Today's rule is thus designed to address RCRA's ambiguity with respect to remediation wastes in a manner which best meets the twin Congressional objectives of minimizing reliance on land disposal by encouraging proper treatment of hazardous remediation wastes and by facilitating prompt and effective corrective action at RCRA facilities. As a result of today's rule, remediation wastes placed in CAMUs will not be subject to LDRs or other hazardous waste disposal requirements.