Requirements for Management of Hazardous Contaminated Media (HWIR-Media)
Federal RegisterApr 29, 1996
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SUMMARY: As part of the President's regulatory reform initiative, the
United States Environmental Protection Agency (EPA) is proposing new
regulations for contaminated media, including contaminated soils,
ground water, and sediments, that are managed during government-
overseen remedial actions. The proposed rule would address contaminated
media that are currently subject to regulation as ``hazardous waste''
under the Resource Conservation and Recovery Act (RCRA). The rule's
purpose is to develop more flexible management standards for media and
wastes generated in the course of site cleanups.
To accomplish the objective, the proposal would establish modified
Land Disposal Restrictions (LDR) treatment requirements, and modified
permitting procedures for higher-risk, contaminated media that remain
subject to hazardous waste regulations; and give EPA and authorized
States the authority to remove certain lower-risk, contaminated media
from regulation as ``hazardous wastes'' under most of Subtitle C of
RCRA. Under this proposal, many contaminated media management units
would be relieved from the obligation to comply with Minimum
Technological Requirements (MTRs). The State-authorization procedures
for RCRA program revisions would be simplified for this proposed rule;
the Hazardous Waste Identification Rule (HWIR-waste); and the Revised
Technical Standards for Hazardous Waste Combustion Facilities. Today's
proposal also proposes to withdraw the regulations for corrective
action management units (CAMUs). In addition, dredged material
permitted under CWA or MPRSA would be exempted from Subtitle C.
DATES: Written comments on this proposal should be submitted on or
before July 29, 1996.
The Agency will hold a public hearing on this proposal on June 4,
1996.
ADDRESSES: Commenters must send an original and two copies of their
comments referencing docket number F-96-MHWP-FFFFF to: (1) If using
regular US Postal service mail: RCRA Docket Information Center, Office
of Solid Waste (5305W), U.S. Environmental Protection Agency
Headquarters (EPA, HQ), 401 M Street, SW, Washington, D.C. 20460 or (2)
if using special delivery, such as overnight express service: RCRA
Docket Information Center (RIC), Crystal Gateway One, 1235 Jefferson
Davis Highway, First Floor, Arlington, VA 22202. Comments may also be
submitted electronically through the Internet to: RCRA-
D[email protected]. These comments should be identified by the
docket number F-96-MHWP-FFFFF, and submitted as an ASCII file to avoid
the use of special characters and encryptions.
Please do not submit any Confidential Business Information (CBI)
electronically. An original and two copies of CBI must be submitted
under separate cover to: RCRA CBI Document Control Officer, Office of
Solid Waste (5305W), U.S. EPA, 401 M Street, SW, Washington, D.C.
20460.
Public comments and supporting materials are available for viewing
in the RCRA Information Center (RIC) located at Crystal Gateway One,
1235 Jefferson Davis Highway, First Floor, Arlington, VA. The RIC is
open from 9:00 a.m. to 4:00 p.m., Monday through Friday, excluding
Federal holidays. To review docket materials, please make an
appointment by calling (703) 603-9230. The public may copy a maximum of
100 pages from any regulatory docket at no charge. Additional copies
will cost $.15/page.
The June 4, 1996 public hearing will be held at the Key Bridge
Marriott, located at 1401 Lee Highway, Arlington, VA 22209. The main
switchboard number for the hotel is (703) 524-6400. Individuals
interested in more complete directions or room reservations should
contact the hotel directly. Registration for the hearing will begin at
8:30 a.m.. The hearing will begin at 9:00 a.m. and end at 5:00 p.m.
unless concluded earlier. Oral and written statements may be submitted
at the public hearing. Time for the public hearing is limited; oral
presentations will be made in the order that requests are received and
will be limited to 15 minutes, unless additional time is available.
Requests to speak at the hearing should be submitted in writing to:
Carolyn Hoskinson (5303W) U. S. Environmental Protection Agency, 401 M
Street, SW, Washington, D.C. 20460. Please clearly mark your request as
a request to speak at the public hearing and include both the scheduled
date of the hearing (June 4, 1996) and the docket number (F-96-MHWP-
FFFFF). Requests to speak may also be made on the day of the hearing by
registering at the door; requests to speak by individuals who choose to
register at the door on the day of the hearing will be granted in the
order received, as time permits. Individuals are requested to provide a
copy of their testimony for the record.
FOR FURTHER INFORMATION CONTACT: For general information, contact the
RCRA Hotline at 1-800-424-9346 or TDD 1-800-553-7672 (hearing
impaired). In the Washington metropolitan area, call 703-412-9810 or
TDD 703-412-3323.
For more detailed information on specific aspects of this
rulemaking, contact Carolyn L. Hoskinson, Office of Solid Waste
(5303W), U.S. Environmental Protection Agency, 401 M Street, SW,
Washington, D.C. 20460, (703) 308-8626. For further information on
EPA's development of the guidance document ``Best Management Practices
for Soils Treatment Technologies,'' contact Subijoy Dutta (703) 308-
8608, (internet address: [email protected]). For further
information on EPA's development of a guidance document for sampling
and analysis, which is associated with today's proposal, contact James
R. Brown (703) 308-8656, (internet address:
[email protected]).
SUPPLEMENTARY INFORMATION: The index is available on the Internet.
Please follow these instructions to access the information
electronically:
Gopher: gopher.epa.gov
WWW: http://www.epa.gov
Dial-up: (919) 558-0335
This report can be accessed from the main EPA Gopher menu in the
directory: EPA Offices and Regions/Office of Solid Waste and Emergency
Response (OSWER)/Office of Solid Waste (RCRA)/Hazardous Waste/
Corrective Action/(HWIRMDIA).
FTP: ftp.epa.gov
Login: anonymous
Password: Your Internet Address
Files are located in /pub/gopher/OSWRCRA
The official record for this action will be kept in paper form.
Accordingly, EPA will transfer all comments received electronically
into paper form and place them in the official record, with all of the
comments received in writing. The official record is the paper record
maintained at the address in ADDRESSES at the beginning of this
document.
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EPA's responses to comments, whether written or electronic, will be
printed in the Federal Register, or in a ``response to comments
document'' placed in the official record for this rulemaking. EPA will
not immediately reply to commenters electronically other than to
clarify electronic comments that may be garbled during transmission or
conversion to paper form.
Outline
The information presented in this preamble is organized as follows:
I. Authority
II. Background
A. Purpose and Context for Today's Proposed Rule
B. Relationship to Previous Regulatory Initiatives
1. Proposed Subpart S Corrective Action Requirements
2. Final Rules for Corrective Action Management Units (CAMUs)
3. Proposed Land Disposal Restrictions for Hazardous Soils
4. Deferral of the Toxicity Characteristic for Petroleum
Contaminated Media and Debris from Cleanup of Releases from Underground
Storage Tanks (USTs)
5. Suspension of the Toxicity Characteristic for Non-UST Petroleum
Contaminated Media (proposed rule)
6. Proposed Hazardous Waste Identification Rule (May 20, 1992)
7. Relationship to CERCLA
8. Relationship to HWIR-waste Rule (Dec. 21, 1995)
9. Relationship to RCRA Legislative Reforms
C. Origin of Today's Proposed Rule
III. EPA's Policy Objectives for the HWIR-media Rule
IV. Introduction and Overview of Today's Proposal and Alternatives to
Today's Proposal
A. Today's Proposed Approach
B. Alternative Approaches Including Unitary Approach
C. Relationship to HWIR-waste Rule
V. Section by Section Analysis
A. General Provisions
1. General Scope of Today's Proposal--Sec. 269.1
2. Purpose/Applicability--Sec. 269.2
3. Definitions--Sec. 269.3
4. Identification of Media Not Subject to Regulation as Hazardous
Waste--Sec. 269.4
B. Other Requirements Applicable to Management of Hazardous
Contaminated Media
1. Applicability of Other Requirements--Sec. 269.10
2. Intentional Contamination of Media Prohibited--Sec. 269.11
3. Interstate Movement of Contaminated Media--Sec. 269.12
C. Treatment Requirements
1. Overview of the Land Disposal Restrictions
2. Treatment Requirements--Sec. 269.30
3. Constituents Subject to Treatment
4. Nonanalyzable Constituents
5. Review of Treatment Results--Sec. 269.33
6. Management of Treatment Residuals--Sec. 269.34
7. Media Treatment Variances--Sec. 269.31
8. Request for Comment on Other Options
9. LDR Treatment Requirements for Non-HWIR-media Soils
10. Issues Associated with Hazardous Debris
D. Remediation Management Plans (RMPs)
1. General Requirements--Sec. 269.40
2. Content of RMPs--Sec. 269.41
3. Treatability Studies--Sec. 269.42
4. Approval of RMPs--Sec. 269.43
5. Modification of RMPs--Sec. 269.44
6. Expiration, Termination, and Revocation of RMPs--Sec. 269.45
E. Streamlined Authorization Procedures for Program Revisions (Part
271)
1. Statutory and Regulatory Authorities
2. Background and Approach to Streamlined Authorization
3. Streamlined Procedures--Sec. 271.21
4. Authorization for Revised Technical Standards for Hazardous
Waste Combustion Facilities
5. Request for Comment on Application of Category 1 Procedures to
Portions of HWIR-waste Proposal
6. HWIR-media Specific Authorization Considerations--Sec. 271.28
7. Effect in Authorized States
8. Request for Comment on EPA's Approach to Authorization
F. Corrective Action Management Units--Sec. 264.552
G. Remediation Piles--Secs. 260.10 and 264.554
H. Dredged Material Exclusion--Sec. 261.4
VI. Alternative Approaches to HWIR-media Regulations
A. The Unitary Approach
1. Overview of the Unitary Approach
2. Legal Authority for the Unitary Approach
3. LDRs Under the Unitary Approach
4. The RAP Process Under the Unitary Approach
5. State Authorization for the Unitary Approach
6. Enforcement Authorities Under the Unitary Approach
7. State Jurisdiction Under the Unitary Approach
B. Hybrid Approach
C. Key Elements of an HWIR-media Rule
1. Scope of the Rule (Regarding Non-media Remediation Wastes)
2. The Bright Line
3. RAPs, RMPs, and RCRA Permits
4. Request for Comment
VII. Effective Date of Final HWIR-media Rule
VIII. Regulatory Requirements
A. Assessment of Potential Costs and Benefits
1. Executive Order 12866
2. Background
3. Need for Regulation
4. Assessment of Potential Costs and Benefits
5. Regulatory Issues
B. Regulatory Flexibility Analysis
C. Paperwork Reduction Act
I. Authority
These regulations are proposed under the authority of sections
2002(a), 3001, 3004, 3005, 3006, and 3007 of the Solid Waste Disposal
Act of 1970, as amended by the Resource Conservation and Recovery Act
of 1976 [RCRA], as amended by the Hazardous and Solid Waste Amendments
of 1984 [HSWA], 42 U.S.C. Secs. 6912(a), 6921, 6924, 6925, 6926, and
6927.
II. Background
A. Purpose and Context for Today's Proposed Rule
Since 1980, the Environmental Protection Agency (EPA) has developed
a comprehensive regulatory framework under Subtitle C of RCRA that
governs the identification, generation, transportation, treatment,
storage, and disposal of hazardous wastes. The RCRA program is
generally considered prevention- rather than response-oriented. The
regulations center around two broad objectives: to prevent releases of
hazardous wastes and constituents through a comprehensive and
conservative set of management requirements (commonly referred to as
``cradle to grave management''); and to minimize the generation and
maximize the legitimate reuse and recycling of hazardous wastes.
The RCRA regulations constitute minimum national standards for
management of hazardous wastes. In general, they apply equally to all
hazardous wastes, regardless of where or how generated, and to all
hazardous waste management facilities, regardless of how much
government oversight any given facility receives. In order to ensure an
adequate level of protection nationally, the RCRA regulations have
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been conservatively designed to ensure proper management of hazardous
wastes over a range of waste types, environmental conditions,
management scenarios, and operational contingencies.
In the course of administering current RCRA regulations, to
contaminated media generated during site cleanups, EPA and the States
have recognized fundamental differences in both incentives and
objectives for prevention- and cleanup-oriented programs. For example,
the stringent treatment requirements established by RCRA land disposal
restrictions (LDRs) have encouraged many generators to reduce the
amount of hazardous waste they generate. On the other hand, when these
requirements are applied in the context of site cleanup, they often
provide a strong incentive to leave hazardous waste and contaminated
media in place, or to select alternate remedies that will minimize the
applicability of RCRA regulations. This can result in remedies that are
less protective of human health and the environment. (See 54 FR 41566,
October 10, 1989; 58 FR 8658, (February 16, 1993); and the information
in the docket to today's proposed rule)).
In the administration of remedial programs such as Superfund and
the RCRA corrective action program, EPA and the States are already
faced with an unacceptable situation that must be remedied while
operating within the technical and practical realities of the site.
Remedial actions generally receive intensive government oversight, and
remedial decisions are made by a State or Federal Agency only after
site-specific conditions have been thoroughly investigated. In
contrast, prevention-oriented hazardous waste regulations are generally
implemented independently by facility owner/operators through
compliance with national regulatory requirements.
In addition to differences in the incentives and objectives of
cleanup- and prevention-oriented programs, EPA and the States recognize
that frequently there are significant differences between ``as-
generated'' process wastes and contaminated media or other remediation
wastes. For example, contaminated media are often physically quite
different from as-generated wastes. Contaminated soils often contain
complex mixtures of multiple contaminants, and are highly variable in
their composition, handling, and treatability characteristics. For this
reason, treatment of contaminated soils can be particularly complex,
involving one or a series of custom-designed treatment systems. As-
generated wastes, however, are usually more consistent in composition,
since they are derived from specific known manufacturing processes.
Historically, EPA and the States have sought to address the
application of RCRA's prevention-oriented standards to remedial actions
through a series of regulatory and policy directives. These policies
aim at preserving RCRA's goal of protectiveness, while providing
government regulators the flexibility and tools necessary to craft
effective site-specific remedies. These include the ``Area of
Contamination'' policy, the ``Contained-in'' policy, the presumption
for LDR treatment variances for contaminated soils, and the regulations
for Corrective Action Management Units and Temporary Units, which are
discussed in section (V)(F) of this preamble. (See e.g., memorandum
from Michael Shapiro, Director, Office of Solid Waste, Stephen D.
Luftig, Director, Office of Emergency and Remedial Response, and Jerry
Clifford, Director, Office of Site Remediation Enforcement, EPA to RCRA
Branch Chiefs and CERCLA Regional Managers, (March 13, 1996); section
(V)(A)(4)(a) of today's preamble; 55 FR 8666, 8758-8760 (March 8,
1990); ``Superfund LDR Guide #6A (2nd Edition) Obtaining a Soil and
Debris Treatability Variance for Remedial Actions'' EPA/Superfund
Publication: 9347.3-06FS (September 1990); ``Superfund LDR Guide #6B
Obtaining a Soil and Debris Treatability Variance for Removal Actions''
EPA/Superfund Publication: 9347.3-06BFS (September 1990); and 58 FR
8658 (February 16, 1993)).
With the exception of the Corrective Action Management Unit
regulations, EPA is not proposing that this rulemaking withdraw any of
these policies or directives.
Instead, EPA seeks to formally recognize the differences between
as-generated waste and contaminated media, by creating a framework
that: (1) Allows State and Federal regulators to impose site-specific
management requirements on lower-risk contaminated media, and (2)
modifies LDR treatment and other requirements that are applicable to
higher-risk contaminated media. Since EPA proposes that higher-risk
contaminated media remain subject to regulation as ``hazardous waste,''
management of these media would remain subject to most of the other
applicable RCRA Subtitle C requirements.
EPA has found that the administrative procedures associated with
issuance of RCRA permits can often significantly delay cleanup actions.
To relieve this problem, EPA is also proposing to streamline the
administrative requirements for hazardous waste permits that are needed
for government-overseen remedial actions. In addition, the proposal
contains provisions for State authorization not only for today's
proposal, but for all RCRA program revisions, specifically including
the Revised Technical Standards for Hazardous Waste Combustion
Facilities and the HWIR waste proposals. These are much more
streamlined than the RCRA program's current procedures.
In today's notice, EPA is also soliciting comment on an approach
that would remove remediation wastes--defined broadly-- from the
definition of solid waste, if they were managed under a State or EPA-
approved plan.
In another matter, today's proposal would exclude dredged material
from RCRA Subtitle C when it is managed according to a permit under CWA
or MPRSA.
Finally, EPA wishes to emphasize that this proposal and other
alternatives discussed address only the management of wastes that are
generated during cleanup actions--it does not consider issues
associated with what wastes should be cleaned up, what the cleanup
levels should be, or how remedies are selected. EPA believes that these
and other ``how clean is clean'' issues are best determined by other
State and Federal regulations and guidelines.
Throughout the development of today's proposal, EPA has worked very
closely with States as ``co-regulators,'' and the Agency believes that
most States share the views and goals expressed in these pages by EPA.
B. Relationship to Previous Regulatory Initiatives
As noted above, the need for an alternative regulatory scheme for
management of contaminated media and remediation waste has been
recognized for some time. In recent years, EPA has developed several
regulatory initiatives to address that need. Today's proposal is
intended to address the issues and problems discussed above in a
single, comprehensive regulatory package. As such, it modifies and/or
replaces many of the Agency's previous regulatory initiatives, as
discussed below.
1. Proposed Subpart S Corrective Action Regulations
In July 1990, EPA proposed comprehensive regulations to address the
substantive and procedural requirements for implementing corrective
actions at RCRA facilities under the authorities of RCRA sections
3004(u) and 3004(v) (42 USC Secs. 6924(u),(v)). Commonly known as the
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``Subpart S proposal,'' the proposal discussed various technical issues
associated with site cleanup including ``action levels'', cleanup
standards, remedy selection, points of compliance and other cleanup
requirements. The Subpart S proposal has been the primary guidance for
the RCRA corrective action program since its publication.
In general, the Subpart S proposal contemplated that contaminated
media would be subject to the same regulatory requirements that apply
to as-generated wastes. Although EPA generally did not use the Subpart
S proposal to address issues associated with contaminated media
management, the Agency did introduce the concept of Corrective Action
Management Units (CAMUs) and temporary units (TUs) as a means of
providing some relief from the burdens that LDRs and other Subtitle C
requirements can impose on cleanup activities. The CAMU concept is
discussed more completely below, and in section (V)(F), of today's
proposal.
Today's proposal would establish a more definitive and
comprehensive set of requirements for the management of contaminated
media--and provide considerably more regulatory relief--than the
Subpart S proposal would have in this area. Currently EPA is
reexamining the Subpart S proposal, and working to finalize and/or
repropose some of those regulations in approximately 18 months. As a
precursor to the Subpart S rulemaking, the Agency is issuing an
Advanced Notice of Proposed Rulemaking (ANPRM). One of the purposes of
the ANPRM is to describe the relationship of the Subpart S initiative
to other Agency initiatives, including today's proposal. The Agency
expects that if finalized, the HWIR-media rules will be an essential
complement to and an integral part of the final RCRA corrective action
regulations.
2. Final Rules for Corrective Action Management Units (CAMUs)
On February 16, 1993 EPA published final regulations for CAMUs and
TUs (58 FR 8658). In essence, the CAMU concept provides considerable
flexibility to EPA and implementing States to specify design,
operating, and closure/post closure requirements for units used for
land-based temporary storage, or for treatment of wastes that are
generated during cleanup at an RCRA facility. The CAMU also specifies
requirements for units that are used as long-term repositories for
cleanup wastes. Decision criteria for the designation of CAMUs are
specified in those rules. Most importantly, the placement of cleanup
wastes into an approved CAMU does not trigger RCRA LDR requirements (40
CFR 264.552 (a)(1)). Thus, appropriate treatment requirements can be
specified by the overseeing Agency 1 on a site- and waste-specific
basis. In addition, the CAMU rule provides that consolidation or
placement of cleanup wastes into a CAMU does not trigger RCRA section
3004(o) minimum technology requirements (MTRs) (40 CFR 264.552 (a)(2)).
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\1\ Throughout this notice, EPA uses the term ``overseeing
agency'' to mean either EPA or the State authorized for the HWIR-
media program. Most States are authorized for the RCRA base program,
and so would be eligible, as appropriate, to receive authorization
for the HWIR-media program if they chose to do so (for a discussion
of authorization for LDRs under this proposal, see the State
authorization discussion in this preamble). For those States not
authorized for the RCRA base program, EPA would operate the HWIR-
media program in that State, just as it operates the rest of the
RCRA program in that State. Also, EPA might run a cleanup program
(e.g., RCRA Corrective Action or Superfund) in a State that receives
authorization for the HWIR-media program. In that case, EPA would
consult with or seek approval from the State, as appropriate, in
order to approve the RMP. The Agency hopes that the EPA Regions and
States will develop agreements regarding how this approval will take
place.
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The CAMU rule did not address, however, issues pertaining to the
delay often caused by the need to obtain RCRA permits for cleanup
actions. While the regulations provide relief from MTRs and LDRs, CAMUs
must be approved by the same procedures used for approving other types
of hazardous waste management units; i.e., through RCRA permits or
permit modifications, or through orders.
The CAMU rule received broad support from many affected
stakeholders. Since its adoption, EPA and the States have been using
the CAMU rule to provide appropriate regulatory relief for cleanups
conducted under RCRA, CERCLA, and State cleanup authorities. Some
parties, however, have expressed concern that, according to the rule,
LDRs do not apply to wastes managed in a CAMU. They have questioned
whether the rule provides too much discretion to EPA and the States,
and whether this discretion could result in unacceptably lenient
treatment requirements. On May 14, 1993 these parties filed a petition
for review with the U.S. Court of Appeals for the District of Columbia
Circuit which challenged both the legal and policy bases for the final
CAMU rules. Environmental Defense Fund v. EPA, No. 93-1316 (D.C. Cir.).
As part of the dialogue that prefaced the creation of the HWIR
Federal Advisory Committee (discussed more fully in section C, ``Origin
of Today's Proposed Rule''), the Agency agreed to reexamine the CAMU
regulations in the context of developing this proposal, which is
intended to be a broader, more comprehensive response to the problems
in applying traditional RCRA Subtitle C standards to the management of
remediation wastes. As discussed in detail elsewhere in this preamble
(see section (V)(F)), today's proposal would supersede the CAMU
regulations. A more detailed discussion of the relationship between
today's proposal and the CAMU regulation is presented in section
(V)(F).
3. Proposed Land Disposal Restrictions for Hazardous Soils
On September 14, 1993 (58 FR 48092), EPA proposed the ``Phase II''
land disposal restriction regulations, which included provisions to
establish constituent-specific treatment standards for soils
contaminated with hazardous wastes. In that proposal, the Agency
reiterated that combustion is not always the appropriate BDAT for
soils, and proposed treatment standards tailored specifically to
contaminated soils. The Agency acknowledged the limitations of the data
available when the proposal was written regarding the levels that can
be achieved by treating various matrices of contaminated soils with
available technologies (58 FR 48092, 48125 (September 14, 1993)).
Because of these uncertainties, the Agency outlined several options to
establish treatment standards for contaminated soils. Two options
described in the proposal's preamble would have based soil treatment
standards on some multiplier of the universal treatment standards for
hazardous wastes (which were included in the same proposal). Another
proposed option was based on a simple 90% reduction standard. The Phase
II proposal also contained provisions for codifying the RCRA
``contained-in'' policy for soils. This policy, which is discussed in
detail in section (V)(A)(4)(a) of this preamble, is based on the
concept that environmental media (e.g., soils, ground water) that are
contaminated with listed hazardous wastes or that exhibit a hazardous
characteristic are not of themselves hazardous. However, these media
must be regulated under Subtitle C because they contain hazardous
wastes; conversely, once they are determined to no longer contain
hazardous wastes, the media are generally no longer regulated under
RCRA Subtitle C.
EPA received a number of comments on the proposed soil treatment
standards, many of which strongly urged the Agency to address LDR
treatment standards for contaminated
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soils and codification of the contained-in policy in the context of
HWIR-media regulations, rather than as part of the LDR Phase II rule.
The Agency agreed with those who commented, and in a subsequent Federal
Register notice (58 FR 59976, November 12, 1993) announced its
intention to use the HWIR-media rule as the vehicle for promulgating
these standards. That notice also extended the deadline for comments
and data concerning Phase II provisions for hazardous soils to March
18, 1994. The Phase II final rule (minus the soil treatment standards)
was promulgated on September 19, 1994 (59 FR 47980).
4. Deferral of the Toxicity Characteristic for Petroleum Contaminated
Media and Debris From Cleanup of Releases From Underground Storage
Tanks (USTs)
On February 12, 1993, EPA published a proposal to defer the
applicability of the toxicity characteristic (TC) rule for petroleum
contaminated media and debris that are generated during underground
storage tank cleanups. This was a follow-up proposal to the Agency's
original temporary deferral, which was part of the final rulemaking for
the toxicity characteristic (55 FR 11798, 11862, March 29, 1990). The
Agency will be assessing studies to support a final decision as to
whether UST petroleum contaminated media and debris should be regulated
as hazardous wastes under RCRA Subtitle C. Today's proposal does not
address whether or not this material should be regulated as hazardous
waste; thus, the temporary exclusion described here will remain in
effect until the Agency publishes a separate final rulemaking
determination. (Note that because today's proposal does not address
this issue, it does not reopen the comment period for the February 12,
1993 proposal.)
5. Suspension of the Toxicity Characteristic for Non-UST Petroleum
Contaminated Media (Proposed Rule)
On December 24, 1992, EPA proposed to suspend temporarily the
applicability of the toxicity characteristic (TC) to media contaminated
with releases of petroleum from sources other than underground storage
tanks. This proposal was developed in response to petitions from a
number of States. Their contention was that exempting petroleum
contaminated media from UST cleanups--while cleanup of petroleum
releases from other sources (such as aboveground tanks) remained
subject to Subtitle C--made little sense.
In December 1992, EPA answered the States' petitions, and announced
its intention to suspend the applicability of the toxicity
characteristic to all petroleum contaminated media (57 FR 61542). The
suspension would have taken effect only in States that certified that
they had effective authorities and programs in place that could compel
cleanup and regulate the management of such petroleum contaminated
media in a protective manner. Also, the suspension would only apply to
media generated during State or Federally supervised cleanup actions.
EPA proposed that the suspension be effective for three years, during
which time the Agency would conduct more thorough studies to determine
whether or not--and how--petroleum contaminated media should be
regulated under RCRA.
After the proposed suspension was published, it became clear that
many issues addressed in that proposal applied not only to media
contaminated by petroleum releases, but also to the management of all
types of contaminated media. The issues associated with judging the
adequacy of State cleanup programs and whether such programs can ensure
protective management of cleanup wastes outside of the Subtitle C
system were also recognized as relevant to other regulatory initiatives
involving State authorization under RCRA.
Soon after the publication of the proposed suspension, the Agency,
in concert with the States and other stakeholders, launched a major,
comprehensive effort to address the regulation of contaminated media
under Subtitle C. (See the following discussion of the HWIR-media
rulemaking proposal). EPA and the others recognized that these more
comprehensive HWIR-media rules would have to deal essentially with the
same set of issues addressed in the proposed suspension for petroleum
contaminated media. Thus, finalizing the proposed suspension would have
required reaching decisions on a number of issues common to both rules.
In effect, finalizing the TC suspension rule would have preempted
the HWIR-media process in many respects. To preserve the process, and
to avoid the redundancy of developing two regulations to address the
same basic problems, EPA decided not to proceed with finalizing the TC
Suspension. Instead, the Agency chose to address those issues in the
broader context of the HWIR-media rulemaking process.
The Agency believes that the flexibility introduced into Subtitle C
requirements in today's proposal sufficiently addresses the issues
raised under the proposed ``Suspension of the Toxicity Characteristic
for Non-UST Petroleum Contaminated Media,'' and therefore believes that
if the HWIR-media rule is finalized, it will not be necessary to
finalize the TC suspension. The Agency requests comments on whether
additional flexibility (beyond that provided for in today's proposal)
is necessary for non-UST petroleum contaminated media.
6. Proposed Hazardous Waste Identification Rule (May 20, 1992)
Shortly after the publication of the proposed TC suspension, the
Agency completed a separate (but related) rulemaking proposal, commonly
referred to as the Hazardous Waste Identification Rule (HWIR) (57 FR
21450, May 20, 1992). This proposed rule was issued in response to the
U.S. Court of Appeals, District of Columbia Circuit's vacature of the
mixture and derived from rules (Shell Oil Co. v. EPA, 950 F.2d 741
(D.C. Cir. 1991)), which were issued in 1980 as part of the original
RCRA hazardous waste regulations. In that HWIR proposal, EPA outlined
alternative regulatory approaches for establishing ``exit'' levels for
hazardous wastes (i.e., concentration levels below which listed
hazardous wastes would no longer be subject to Subtitle C
jurisdiction). The primary focus of the HWIR proposal was on the
``exit'' of as-generated hazardous wastes from the Subtitle C system.
However, a separate portion of the proposal outlined conceptual
approaches for revising Subtitle C requirements as they currently apply
to the management of contaminated media (57 FR 21450, 21463, May 20,
1992).
The HWIR proposal received considerable interest. A number of
commenters expressed strong concerns about the proposal as a whole, and
the process that was used to develop it. Some of the concerns focussed
on EPA's failure to consult with the States and the public prior to
issuing the very complex and significant proposal. Because of process
related issues, the strong views expressed by the States, and the
importance of the rulemaking, EPA decided that a more deliberate and
inclusive process was needed for developing the regulations. On October
5, 1992 the Agency formally announced its intention to withdraw the May
20, 1992 proposal, and start a series of discussions with various
stakeholders to develop a new, carefully considered approach to
crafting both exit levels for ``as-generated'' wastes and management
standards for cleanup of contaminated media.
[[Page 18785]]
7. Relationship to CERCLA
The rule being proposed today would be expected to have a
significant impact at sites being addressed under CERCLA. Superfund
sites generate large quantities of remediation waste, and compliance
with RCRA requirements in the management of this waste has been a
recurring concern. The substantive requirements of RCRA Subtitle C,
including land disposal restrictions, apply to hazardous wastes at
these sites, and permits are required for off-site actions.
Under the approach proposed today, the flexibility being provided
for management of remediation waste would be available to CERCLA
responses. It should be noted, however, that CERCLA responses must
comply with all ``applicable'' or ``relevant and appropriate''
requirements, both Federal and State. Therefore, until a RCRA
authorized State is authorized for the HWIR-media rule, the State's
existing RCRA regulatory system would be applicable (or relevant and
appropriate) to Superfund actions in the State.
8. Relationship to HWIR-waste Rule (Dec. 21, 1995)
See preamble section (IV)(C).
9. Relationship to RCRA Legislative Reform
On March 16, 1995 the President committed to identify high cost,
low benefit provisions of the Resource Conservation and Recovery Act
(RCRA) for legislative reform. After an extensive stakeholder outreach
process, the Administration selected two issues. The first issue for
legislative reform, an exemption for certain low risk wastes from
costly regulation under RCRA's land disposal restrictions program, was
signed into law--the Land Disposal Flexibility Act--by the President on
March 26, 1996.
The second topic identified for legislative reform was the
application of RCRA hazardous waste management requirements to cleanup
wastes. The Administration currently is discussing with stakeholders
and Congress the possible development of bipartisan legislation to
expedite the safe and cost-effective management of cleanup wastes that
are currently subject to RCRA hazardous waste management requirements.
In addition to RCRA cleanup sites, the type of reform being discussed
would benefit site cleanups under Superfund, Brownfields and State
voluntary programs. EPA has requested comment on a range of
alternatives to today's proposal that are consistent with the range of
alternatives being discussed for legislative reforms.
C. Origin of Today's Proposed Rule
In order to facilitate discussions with various stakeholders, EPA
established a formal advisory Committee, chartered under the Federal
Advisory Committee Act (FACA). Chaired jointly by the Director of the
Office of Solid Waste and the Commissioner of the Oregon Department of
Environmental Quality (representing the States as ``co-regulators''),
the HWIR FACA Committee included representatives from industry,
environmental organizations, the States, and other affected
organizations.
One of the initial decisions reached by the FACA Committee was to
create separate sub-groups to address the two major components of the
rule--the provisions for contaminated media, and the provisions for as-
generated wastes. Since then, these two efforts have proceeded in
parallel, and have evolved into separate but obviously related
rulemakings. A more complete description of the proceedings of the HWIR
FACA Committee and subsequent deliberations of its two sub-groups can
be reviewed in the Docket for this rule, and the HWIR-waste rule (60 FR
66344-469, Dec. 21, 1995).
In July 1993 the FACA Committee developed and approved a conceptual
framework for the HWIR-media rule. Commonly referred to as the
``Harmonized Approach,'' this framework embodied a number of
compromises reached among the participants in the process. It was
recognized by the Committee that the Harmonized Approach was only a
conceptual outline for crafting a proposed HWIR-media rule, and that a
number of important issues remained to be resolved. However, the
participants agreed that EPA, in partnership with the States, should
begin the formal rulemaking process with the objective of assessing the
remaining issues, determining the viability of such a rule from a
legal, technical, and policy standpoint, and if possible, developing a
proposed rule that embodied the general concepts and directions
outlined in that approach. Today's proposal represents the culmination
of those efforts.
It should be understood that this proposal, which is patterned
after the Harmonized Approach, represents the Agency's best efforts to
fulfill the directive of the HWIR FACA Committee. In developing the
proposal it was necessary to make decisions on a number of important
issues, some of which were not specifically addressed in the Harmonized
Approach, including some issues that were not identified during the
FACA process. The Agency recognizes that although tentative consensus
was reached by the FACA Committee on the harmonized approach, it cannot
be assumed that today's proposal will meet with the approval of all
members of the Committee. In fact, some stakeholders have already
expressed concerns with some of the specifics of today's proposal.
It is the Agency's view that today's proposal would offer many
benefits beyond the present regulatory situation. However, it is quite
possible that other, different regulatory approaches could achieve the
same objectives and levels of protection, and might offer other
advantages in terms of simplicity, cost-effectiveness and/or ease of
implementation. A discussion of possible alternative approaches to
today's proposed rule is presented in sections IV and VI of this
preamble.
In any case, EPA in consultation with the States, will continue to
seriously examine the strengths and weaknesses of the proposal
presented in today's notice, and of the alternatives discussed. The
Agency specifically requests comments on the approaches taken in
today's proposed rule, and the specific strengths and weaknesses of the
proposed options as well as the alternatives discussed in section VI of
this preamble.
Alternative regulatory approaches, and any advantages they may have
in comparison to today's proposal, will be very carefully considered.
The Agency is committed to issuing a final HWIR-media rule that
achieves as much desirable regulatory relief as possible, that is
protective of human health and the environment, and that can be easily
understood and implemented.
III. EPA's Policy Objectives for the HWIR-Media Rule
In developing today's proposal, EPA, in consultation with the
States, identified several key policy objectives. These are discussed
below.
Special Requirements Should Be Developed That Are Appropriate for
Management of Contaminated Media
As discussed above, based on their experiences overseeing and
implementing environmental cleanups, EPA and the States believe that
many of the current prevention-oriented regulations under RCRA are
inappropriate for regulating the management of contaminated media. EPA
and the States have found that these prescriptive standards can create
disincentives for action, and constrain the range of options available
to
[[Page 18786]]
environmental remediators. Thus, in order to better align the
regulatory controls for the unique challenges associated with
contaminated media, existing Subtitle C requirements should be modified
to create a more flexible and common-sense regulatory system for
management of contaminated media.
Requirements for Management of Contaminated Media Should Be Flexible
and Should Reflect Actual Media Cleanup Site Conditions and the
Characteristics of the Contaminated Media
EPA and the States have found that cleanup of hazardous waste sites
often requires regulators to make numerous site- and media-specific
cleanup decisions that can be at odds with RCRA's uniform national
standards. Although some may argue that applying uniform national LDR
treatment standards and other national standards is appropriate for
contaminated media, EPA is persuaded that for the most part, site-
specific flexibility is necessary to ensure the most effective
management of these wastes. EPA further believes that EPA and/or State
oversight of media management activities will ensure that this
additional flexibility will not be abused.
State and Federal Cleanup Programs That Have Adequate Authorities and
That Are Responsibly Administered Can and Should Be Relied Upon To
Exercise Sound Professional Judgment in Implementing HWIR-Media
Regulations
For some time many States have been successfully operating cleanup
programs under State authorities. These States have often completed
cleanups at substantial numbers of sites, and have demonstrated a
capability for overseeing technically complex cleanups while ensuring
adequate protection of human health and the environment. Many of these
programs are patterned after existing Federal programs such as CERCLA
or RCRA corrective action. EPA is confident, therefore, that many
States will be able to effectively implement these new regulations, and
exercise sound judgment in making site-specific management decisions.
HWIR-Media Regulations Should to the Extent Possible Remove
Administrative Obstacles To Expedite Cleanups, and Provide Incentives
for Voluntary Initiation of Cleanup by Responsible Parties
The obstacles posed by RCRA permit requirements for cleanups that
involve on-site treatment, storage or disposal of contaminated media,
and other cleanup wastes have been recognized for some time. EPA
believes that today's proposal would provide considerable relief from
these administrative obstacles. At the same time, adequate
opportunities for public participation must be maintained. EPA believes
that the new administrative procedures presented in today's proposal
for remedial actions that would otherwise require traditional RCRA
permits would meet the goal of streamlining the process, while
maintaining opportunities for public participation.
Because this proposal would provide considerable substantive relief
(through more flexible management standards), and relief from
administrative obstacles, EPA believes that the rule would have the
additional benefit of stimulating voluntary initiation of cleanup
actions by owners and operators of contaminated properties.
Authorizing States for HWIR-Media Regulations Should Be Streamlined and
Simplified To Save Time and Resources
The process for authorizing States for the RCRA Subtitle C program
has been characterized by lengthy procedures, large resource
expenditures, and detailed, line-by-line reviews of State authorization
applications. The goal of these procedures has been to ensure before
the State may receive authorization, that State programs are
equivalent--in the strictest sense of the word--to the Federal program.
EPA views the HWIR-media regulations as an opportunity to rethink the
State authorization process, with the goal of creating a new approach
that relies on less up-front review by EPA, a greater reliance on
certification by States, and more credible and effective sanctions on
States that do not effectively implement the regulations for which they
are authorized. EPA expects that this new approach to State
authorization will be applied to other parts of the RCRA program. If it
is successful, the approach may become the template for the RCRA
program as a whole. (This is discussed in more detail in section
(V)(E).)
The Regulations Should Be Easy To Understand
The RCRA Subtitle C program has been criticized by many for being
overly complex and thus difficult to comply with. This rule is not
intended to fix all of the program's complexities; however, a primary
objective in creating this new regulatory framework for management of
contaminated media was to ensure that the new regulations are as easy
to understand--and implement--as possible.
IV. Introduction and Overview of Today's Proposal and Alternatives to
Today's Proposal
A. Today's Proposed Approach
Today's proposal would establish two new regulatory regimes for
management of contaminated media that would otherwise be subject to
regulation under the current RCRA Subtitle C regulations, if the media
are managed under the oversight of EPA or an authorized State. The rule
would establish a ``Bright Line''--a set of constituent-specific
concentrations--to distinguish between those two regimes based on
whether media are more highly contaminated, or contaminated at lower
levels.
Media which were contaminated with constituent concentrations below
Bright Line values would be eligible to exit from Subtitle C regulation
if the State or EPA determined that the media did not contain waste
that present a hazard (i.e., hazardous waste). (See RCRA Sec. 1004(5)).
Most management requirements for contaminated media that do not contain
hazardous wastes would be specified by the overseeing Agency on a case-
by-case basis.
Today's proposal also addresses application of the Land Disposal
Restrictions (LDRs) to both hazardous and non-hazardous contaminated
media. Hazardous contaminated media are environmental media that
contain hazardous wastes or exhibit a hazardous characteristic and have
not been determined, pursuant to Sec. 269.4, to no longer contain
hazardous wastes. Non-hazardous contaminated media are media
determined, pursuant to Sec. 269.4, not to contain hazardous waste.
LDRs apply to media contaminated by hazardous wastes when the wastes
were land disposed after the effective date of the applicable land
disposal prohibitions. When the wastes that are contaminating the media
were land disposed before the effective date of the applicable land
disposal prohibitions, LDRs attach to the media when the media are
removed from the land, unless the media have been determined not to
contain hazardous wastes before they are removed from the land. Media
subject to the LDRs must be treated to meet LDR treatment standards
prior to placement, or re-placement, in a land disposal unit (except a
no-migration unit). As stated above, media contaminated by hazardous
wastes placed before the effective dates of the applicable land
disposal prohibitions and determined to no-longer contain hazardous
waste before they are removed from the land are not subject to the land
disposal restrictions.
[[Page 18787]]
In some cases, hazardous contaminated media may be determined to
no-longer contain hazardous waste, but may remain subject to the land
disposal restriction treatment standards. As discussed more completely
later in today's preamble, this is based on the logic that, once
attached, the obligation to meet land disposal restriction treatment
standards continues even if a waste is no longer considered hazardous
under RCRA Subtitle C.
Under current regulations, media subject to the land disposal
restriction treatment standards must meet the standards for the
hazardous wastes contained (or, in some cases, formerly contained) in
the media, that is, the same treatment standard the contaminating
hazardous wastes would have to meet if they were newly generated.
Today's proposal would modify the land disposal restriction treatment
standards for media subject to the LDRs so that the treatment standards
reflect the site-specific nature of cleanup activities and media
treatment technologies and strategies more accurately and
appropriately. Today's proposal also establishes new Media Treatment
Variances to ensure that, when the generic LDR treatment standards are
technically impracticable or inappropriate or, for contaminated media
with all constituent concentrations below the Bright Line, when the
statutory LDR standard can be met with less treatment than required by
the generic LDR treatment standards, appropriate treatment will be
required. When contaminated media determined by a State or EPA to no-
longer contain hazardous waste is still subject to the LDRs, today's
proposal establishes a policy that site-specific Media Treatment
Variances would be appropriate.
Contaminated media that contain hazardous wastes would continue to
be regulated as hazardous wastes, but certain Subtitle C requirements
would be modified. Most importantly, the LDR treatment standards for
media would be amended, to account for the highly variable
characteristics of media (such as soils) that are mixed with hazardous
wastes, and the technical uncertainties involved with treating such
heterogeneous materials. One of the primary objectives of the proposed
rule is to replace generic, national standards with more tailored and
flexible requirements for contaminated media. The rule would establish
a new mechanism for imposing these site-specific requirements--
remediation management plans (RMPs). These plans would be the vehicle
for imposing (and enforcing) the new requirements, while ensuring
public participation in the decision making process. An approved RMP
would be required for both wastes that contain hazardous wastes and
those determined not to contain hazardous wastes. Thus, the regulations
would not be self-implementing--the increased flexibility allowed under
the new rules would be available to owner/operators and other
responsible parties only when there is sufficient government oversight
to ensure that such flexibility is not abused.
The use of RMPs should accelerate and streamline cleanup actions in
several ways. First, an approved RMP would be considered a RCRA permit,
eliminating the need to issue traditional, time-intensive RCRA permits
for cleanup actions. Second, the procedures for reviewing and approving
RMPs would be considerably less complex than those required for RCRA
permits. Third, RMP's would not trigger the requirement for facility-
wide (and beyond facility boundary) corrective action requirements
under Sec. 3004(u) and (v) of RCRA. Thus, the delays and other
disincentives that have often been caused by the need to obtain a RCRA
permit for certain cleanup activities should be significantly eased.
It should be noted that certain types of remediation wastes, such
as sludges, debris, and other non-media remediation wastes, would not
be subject to the more flexible treatment standards specified in the
proposal and could not exit from hazardous waste regulation through a
contained-in determination. Such materials would be subject to the
traditional Subtitle C regulations, including LDR requirements.
However, RMPs could be used (at the discretion of the overseeing
Agency) to address all types of remediation wastes.
Today's proposal would also replace the current regulations for
CAMUs, which were promulgated on February 16, 1993. New CAMUs could not
be approved after the publication date of the final HWIR-media rule;
however, existing CAMUs would be ``grandfathered'', and could continue
operating for the duration of the remedial operations. For situations
in which cleanup wastes are simply stored or treated in piles as part
of cleanup activities, a new type of unit--a remediation pile--could be
used without triggering LDRs and MTRs. A significant difference between
the requirements for these remediation piles and the current CAMU
requirements is that these piles would be only temporary and could not
be used as a disposal option for remediation wastes. Remediation piles
could only be used during the duration of the cleanup activities at the
site.
Another important feature of this proposal is it's new approach to
authorizing States for the rule, which would be much more streamlined
than existing authorization procedures. Under the new approach, States
would certify that they have an equivalent program, and EPA would only
do a very brief review prior to authorization, rather than a meticulous
line-by-line review of the States' regulations to determine
equivalence. Once authorized, EPA would monitor the State's
implementation of the program. Ultimately, the Agency could revoke a
State's authorization specifically for this rule, without having to
revoke the State's entire RCRA program (as is currently the case).
B. Alternative Approaches Including Unitary Approach
The Agency also solicits comments regarding alternative approaches
to implementing the objectives of today's proposal. An alternative that
was originally suggested by Industry stakeholders has received
attention and support from many stakeholders. This alternative approach
is commonly referred to as the ``Unitary Approach.2'' The Unitary
Approach would exempt all cleanup wastes (including contaminated media
and non-media remediation wastes) from Subtitle C regulation if they
meet certain conditions (the rule would thus be based on a conditional
exclusion theory). The conditional exclusion requires that these
remediation wastes be managed under an enforceable ``Remedial Action
Plan'' or RAP approved by EPA or an authorized State program. The
Unitary Approach would not include a Bright Line concept. All cleanup
wastes would be subject to site-specific management requirements set by
the overseeing Agency (EPA or State) in the RAP. EPA also believes that
many of the key elements of different options and alternatives
discussed in this proposal could be combined in different ways to
construct an effective HWIR-media program. The following table
illustrates three different combinations of the key elements, and is
intended to facilitate comparison of options. A further discussion of
alternative approaches and hybrids, is provided in section VI of the
preamble to today's proposal.
---------------------------------------------------------------------------
\2\ See letter from James R. Roewer, USWAG Program Manager,
Utilities Solid Waste Activities Group, to Michael Shapiro,
Director, Office of Solid Waste, EPA (September 15, 1995) in the
docket for today's proposal.
[[Page 18788]]
Table 1
----------------------------------------------------------------------------------------------------------------
Hybrid contingent
Key elements Proposed option management option Unitary approach
----------------------------------------------------------------------------------------------------------------
Legal Theory..................... Contained-in............. Conditional Exclusion Conditional Exclusion.
for below the Bright
Line.
Scope............................ Media only............... All remediation wastes.. All remediation wastes.
Bright Line...................... Bright Line--10-3 and Bright Line (a) (for No Bright Line.
Hazard index of 10. media) same as
proposal, or (b)
qualitative Bright
Line1.
Hazardous vs. Non-hazardous...... All media above Bright All remediation wastes All remediation wastes
Line are subject to above Bright Line are managed according to
Subtitle C; below is subject to Subtitle C; RAP or RMP are not
site- specific decision. below (when managed hazardous.
according to RAP or
RMP) are not hazardous.
LDRs............................. LDRs required for media LDRs required for wastes LDRs required for wastes
where LDRs attaches 2. where LDRs attaches 2. where LDRs attaches.3
Permitting....................... RMP serves as RCRA permit RMP serves as RCRA No requirement that RAP/
for media that remain permit for wastes that RMP serve as RCRA
subject to Subtitle C. are above the Bright permit, since wastes
Line; for wastes below are not subject to
the Bright Line, RMP Subtitle C.
does not have to serve
as RCRA permit.
----------------------------------------------------------------------------------------------------------------
\1\ See discussion of qualitative Bright Line below.
\2\ See discussion of applicability of LDRs in section (V)(C).
\3\ See discussion of alternative option for LDR applicability in section (VI)(A)(3).
The Agency believes that the alternative approaches provide more
flexibility than today's approach, and requests comments on the Unitary
Approach as an alternative to today's proposal, as well as other
options that combine different key elements.
C. Relationship to HWIR-Waste Rule
EPA recently proposed two approaches for exemptions from Subtitle C
regulation that focus on listed hazardous wastes that are not
undergoing remediation (60 FR 66344-469, Dec. 21, 1995). Under the
``HWIR-waste'' proposal, listed wastes, wastes mixed with listed wastes
and wastes derived from listed wastes would be eligible for exemption
from Subtitle C where tests show that all hazardous constituents fall
below one of the two sets of ``exit levels'' set out in the proposal.
EPA's goal for the generic option was to identify levels of
hazardous constituents that would pose no significant threat to human
health or the environment regardless of how the waste was managed after
it exited Subtitle C jurisdiction. EPA derived these exit levels by
making reasonable worst case assumptions about releases from a variety
of solid waste management units. The exit values are designed to be
protective even if there is no further regulation or oversight by any
Federal or State agency. Moreover, the proposal does not require any
regulatory agency to review exit claims or make decisions as to whether
an exit is warranted. As noted in that proposal, in addition to listed
hazardous wastes, both contaminated media and wastes that do not
contain media, but are undergoing cleanup, would be eligible to exit
Subtitle C at these levels under this self-implementing process.
However, since the exit levels do not account for site-specific factors
that may exist at cleanup sites, large quantities of remediation wastes
and contaminated media might not qualify for exit.
The second set of exit levels proposed in the HWIR-waste notice is
somewhat less conservative because risk reduction credit is given for
the conditions of the exemption, thus, adhering to the overall risk
protection goal. These levels, however, would be available only to
waste handlers that comply with specified conditions for the management
of the exempted wastes. (The proposed option has a condition
prohibiting management in land application units.) The notice also
describes and requests preliminary comments on several other options
for conditional exemptions with more extensive conditions that would
increase risk protection and would, presumably, yield even less
conservative exit levels. One of these options described could allow
regulatory agencies to calculate exemption levels for individual waste
management facilities using site-specific data. Waste that exited under
this option would be subject to the conditions of the exit, enforced
through ordinary, periodic compliance inspections, as opposed to
special site-specific oversight.
Today's HWIR-media proposal, unlike the HWIR-waste generic option,
does not seek to identify constituent concentrations that would be safe
regardless of the manner in which the media is managed. Rather, it
tries to distinguish between (1) contaminated media that are eligible
to exit because it is likely that they can be managed safely under
cleanup authorities outside of Subtitle C, and (2) media that contain
so much contamination that Subtitle C management is warranted. For
exempted media EPA is proposing to require that a regulatory agency
make any appropriate site-specific decisions about the management of
remediation wastes, and impose those decisions in an enforceable
document. EPA also expects that States will conduct significant
oversight of these requirements during the course of their remediation
activities. This scheme provides for more extensive oversight than most
of the conditional exemption options in the HWIR-waste proposal.
Consequently, the ``Bright Line'' concentrations in this proposal (that
identify media that are eligible for exclusion from Subtitle C) are not
as conservative as either the generic or the proposed conditional
exemption option in the HWIR-waste proposal. EPA anticipates that
larger quantities of contaminated media will be eligible for exemption
under this proposal than under the HWIR-waste proposal. (For a further
discussion of the technical methodologies used for developing the HWIR-
waste exit levels and the HWIR-media Bright Line levels see section
(V)(A)(4)(c) of today's preamble and the background documents for the
two proposals in the docket.)
Finally, this proposal, unlike the HWIR-waste proposal, provides
additional flexibility for materials that remain subject to Subtitle C
jurisdiction. For example, EPA is proposing special
[[Page 18789]]
permitting and land disposal restriction standards for proposed Part
269. EPA believes this relief will increase environmental protection by
reducing regulatory disincentives to cleanup.
V. Section-by-Section Analysis
A. General Provisions
1. General Scope of Today's Proposal--Sec. 269.1
Today's proposal would establish a new Part 269 of 40 CFR, which
would prescribe special standards for State or EPA-overseen cleanups
managing contaminated media.
In Sec. 269.1, today's proposed rule articulates several important
provisions that apply generally to the Part 269 regulations, which are
intended to clarify what these rules are intended to do. The following
is a discussion of each of those provisions.
The first provision (Sec. 269.1(a)) clarifies that the rules
(except the provisions for RMPs, in Subpart D) would apply only to
materials that would otherwise be subject to Subtitle C hazardous waste
regulations. The rules would not expand the coverage of Subtitle C
regulations, or otherwise cause wastes to be considered hazardous that
have not been so regulated before. In other words, contaminated media
would have to be hazardous by characteristic, or be contaminated with a
listed hazardous waste to become subject to this rule's provisions.
Other contaminated media--regardless of constituent levels--would not
have to be managed as hazardous wastes, and therefore, would not fall
under the scope of this rule.
In discussions with various stakeholders, EPA has become aware that
the ``coverage'' issue has been the source of some confusion. The rule
has been perceived by some as applying to all media that might be
managed as part of cleanup activities, rather than just those media
that are currently subject to regulation as hazardous wastes. This
provision is intended to clarify this point.
The second provision (Sec. 269.1(b)) is intended to explain that
today's proposal would only affect certain specific Subtitle C
regulations as they apply to hazardous contaminated media (i.e., media
that contain hazardous waste). The primary effect of Part 269
concerning these media would be to replace the current LDR regulations
(specified in Part 268) with modified treatment requirements, and to
significantly streamline permit requirements. Other regulations that
apply to treatment, storage, and disposal of hazardous wastes would
continue to apply to hazardous contaminated media.3 For example,
if hazardous contaminated media were generated from cleanup
activities--and subsequently stored in tanks or containers for greater
than 90 days--the tanks and containers would have to comply with the
Subparts I or J requirements of Part 264 (or Part 265, if at an interim
status facility). Other Part 264 and 265 requirements would continue to
apply in similar fashion.
---------------------------------------------------------------------------
\3\ Note that this only applies to hazardous contaminated media;
media exempt from Subtitle C because of contained-in decisions (see
Sec. 269.4) would not be subject to any Subtitle C regulations
except perhaps LDRs. (See discussion of LDRs in section (V)(C) of
this preamble).
---------------------------------------------------------------------------
The third provision (Sec. 269.1(c)) addresses the interplay between
these HWIR-media rules and other cleanup-related laws and regulations.
Specifically, it clarifies that remedy selection standards, other
``how-clean-is-clean'' standards, and guidelines that are specified in
cleanup statutes and/or regulations, would not be affected by these
rules. EPA wishes to emphasize that the proposed HWIR-media rules would
not affect which media or wastes at a site must be cleaned up, or how
much contaminated media should be excavated. Such decisions are usually
made according to Federal or State cleanup laws and regulations, most
of which specify certain guidelines or criteria for determining how
sites are to be cleaned up. Only after those decisions are made would
these HWIR-media regulations come into play.
The fourth provision (Sec. 269.1(d)) is meant to emphasize a very
important point regarding the Bright Line, which is that the Bright
Line values identified in the proposal are not designed as cleanup
levels. As stated elsewhere in this preamble (see (V)(A)(4)(c)), the
Bright Line concept has very little to do with setting cleanup levels
or making other ``how-clean-is-clean'' decisions. Cleanup levels
usually take into account various site-specific and contaminant-
specific factors, and are meant to ensure that risks from exposure to
residual contamination are at acceptable levels. Bright Line
concentrations would determine only whether the overseeing Agency has
the discretion to conclude that media no longer contain hazardous
waste, and therefore decide what management standards would apply to
that media if generated during a cleanup. The use of Bright Line
concentrations as cleanup levels would generally be inappropriate.
The fifth, and final provision, (Sec. 269.1(e)) specifies that
these rules would not be self-implementing. As explained elsewhere in
this preamble, and in the proposed rule language (Sec. 269.1(e)), the
provisions of Part 269 can only be implemented with oversight by EPA or
an authorized State, by an approved Remediation Management Plan (RMP)
or analogous document.
2. Purpose/Applicability--Sec. 269.2
As described above, this rule would modify the existing Subtitle C
requirements for the management of more highly contaminated media, and
would, in effect, exempt lesser contaminated media (that are determined
not to contain any hazardous waste, and are managed in accordance with
an approved Remediation Management Plan (RMP)) from most RCRA Subtitle
C requirements. For such less-contaminated media, EPA and the States
would impose appropriate management requirements on a site- and waste-
specific basis, pursuant to authorities not reliant on the presence of
RCRA hazardous waste.
The Agency is proposing to promulgate these regulations in a new
Part (Part 269) of Title 40 of the Code of Federal Regulations. Issuing
the rules for contaminated media management in a readily identified,
discrete part of the Subtitle C regulations should help to make them
clearer and easier to understand for both regulators and the regulated
community. Although an alternate approach was considered that would
have promulgated the rules as a series of amendments and modifications
to the existing Subtitle C regulations (Parts 260 to 271), EPA believes
such an alternative would be more difficult to understand, and would
add to the complexity of an already complex body of rules.
Section 269.2 of today's proposal is intended to establish the
general scope and applicability of these rules. As such, this part of
the proposal addresses a number of important issues that were the
subject of considerable debate during the FACA Committee process. The
following is an explanation of how this proposal addresses those
specific issues.
Section 269.2 specifies that Part 269 (except Subpart D) would
apply only to hazardous contaminated media, not to all cleanup wastes.
Therefore, non-media remediation wastes (e.g., excavated drum waste)
would be subject to the same regulatory requirements that apply to as-
generated hazardous wastes (with the exception of the Subpart D
provisions for Remediation Management Plans). Likewise, hazardous
debris under today's proposal would be subject to the existing LDR
treatment standards
[[Page 18790]]
for debris, as well as other Subtitle C requirements.
The question of which types of remediation wastes should be covered
under the HWIR-media rule was one of the major issues left unresolved
by the FACA Committee under the Harmonized Approach. Although all
parties on the Committee agreed that hazardous contaminated media (as
defined in Sec. 269.3--see ensuing preamble discussion) should be
subject to this modified regulatory system, some groups argued that
other types of remediation wastes, such as sludges, and other
remediation wastes should also be covered by the rule. Those groups
argued that separating media from non-media in this context is an
artificial distinction that is inconsistent with the realities of
managing wastes during cleanup operations. They contended that the
rationale for modifying requirements for contaminated media applies
equally to these non-media wastes (e.g., the presence of an overseeing
agency, and disincentives for cleanup created by Subtitle C
requirements). They maintained that the coverage of the rule should
reflect the differences between cleanup- and prevention-oriented waste
management, rather than create new categories of remediation wastes.
Other parties involved in the FACA Committee argued strongly that
the rule should be narrower in scope, and should include only the types
of remediation wastes that are clearly different in nature from newly-
generated wastes. They said that because non-media remediation wastes
(e.g., drummed wastes and sludges), are physically and chemically
similar to as-generated hazardous wastes they should be subject to the
same treatment standards and other requirements that apply to as-
generated wastes. The fact that such wastes are managed as a result of
cleanup actions (those parties argued) does not mean that they should
be subject to the more flexible rules for remediation waste proposed
today.
EPA decided to limit the scope of today's proposal to contaminated
media for several reasons. First, the contained-in concept used in this
proposal for exempting materials from Subtitle C only applies to media
(and, as discussed below, debris). Thus, a different legal concept
would have to be used to exempt other types of remediation wastes from
Subtitle C. Further discussion of this issue is presented in section
(VI)(A) of this preamble.
Another reason for limiting the applicability of the rule to
contaminated media is that the cost-benefit analysis prepared for this
rule indicates that, on a national basis, contaminated media comprise
approximately 80% of the total volume of material that is typically
managed at Superfund (Federal and State) sites, RCRA corrective action
sites, and voluntary cleanup sites. The rule would thus provide a
considerable amount of regulatory relief, thereby removing the
disincentive for cleanup this rule is designed to address. It can also
be argued that the need for regulatory relief, particularly from LDR
requirements, is more acute for contaminated media than other
remediation wastes. This is because, as discussed in section (II)(A) of
this preamble, they are often more complex to treat effectively, since
there are often large, heterogeneous volumes of media, with numerous
types of contaminants present, requiring multiple types of treatment
technologies. In addition, this rule, if finalized, will constitute a
major change in the way the covered materials are regulated under RCRA
and will require a ``break-in'' period while regulators and the
regulated community adjust to the new system. Therefore, it may be
prudent to limit the rule to cover only contaminated media, at least
until EPA and the States have established a track record in
implementing this new regulatory system.
By limiting the applicability of this proposed rule to contaminated
media, EPA is not discounting the arguments of those who believe that
the rule should be more expansive in scope. It is acknowledged that the
rule as drafted may create complexities for site managers and
regulators in distinguishing and separating media from other
remediation wastes at a site, and then applying two different
regulatory regimes to their management. The Agency also recognizes that
at many cleanup sites, the issue of whether to pick up and manage
remediation wastes or to leave them in place, involves old wastes, not
media. The Agency has also found in the Cost/Benefit assessment for
today's proposed rule that an alternative which would include all
remediation wastes in the scope of this rule would provide
significantly more cost savings than the proposed option. As discussed
in section (VI)(A) of this preamble, the Agency is seriously
considering applying the rule to all remediation wastes and
specifically requests comments and factual data concerning whether it
is appropriate to do so. Specifically, the Agency seeks comment on the
benefits of including all cleanup wastes, and what types of
implementation difficulties, if any, would be created by regulating
hazardous contaminated media and other hazardous remediation wastes
separately and how easy those problems are to overcome.
Debris. A related issue concerning the scope of today's proposal is
whether the substantive portions of the rule should cover hazardous
debris.4 Although the FACA Committee did not examine this question
in detail, individual members of the committee, as well as several
other stakeholders (including several States) have recently contended
that the rule should include debris and should allow it to be addressed
under the same modified regulatory scheme as for media. These parties
argue that although under today's proposal, requirements for debris
could be addressed in an RMP, separate management standards
(particularly the LDR treatment standards) for debris can complicate
cleanups by requiring physical separation of debris from non-debris
remediation wastes, and requiring different treatment technologies,
where debris and media often can be handled together without
compromising environmental protection.
---------------------------------------------------------------------------
\4\ Debris is defined in 40 CFR 268.2(g) as ``solid material
exceeding a 60 mm particle size that is intended for disposal and
that is: a manufactured object; or plant or animal matter; or
natural geologic material. However, the following materials are not
debris: any material for which a specific treatment standard is
provided in Subpart D, Part 268, namely lead acid batteries, cadmium
batteries, and radioactive lead solids; process residuals such as
smelter slag and residues from the treatment of waste, wastewater,
sludges, or air emission residues; and intact containers of
hazardous waste that are not ruptured and that retain at least 75%
of their original volume. A mixture of debris that has not been
treated to the standards provided by Sec. 268.45 and other material
is subject to regulation as debris if the mixture is comprised
primarily of debris, by volume, based on visual inspection.''
Hazardous debris is defined in 40 CFR 268.2(h) as ``debris that
contains a hazardous waste listed in Subpart D of Part 261 of this
chapter, or that exhibits a characteristic of hazardous waste
identified in Subpart C of Part 261 of this chapter.''
---------------------------------------------------------------------------
Because this issue arose late in the preparation of today's
proposed rule, EPA has decided, with a few exceptions,5 not to
include hazardous debris in the scope of today's proposal. However,
should the Agency receive persuasive comments, it will consider
including hazardous debris in the final rule.
---------------------------------------------------------------------------
\5\ The exceptions are today's proposed regulations for
remediation management plans and remediation piles, as discussed in
the applicable sections of today's preamble.
---------------------------------------------------------------------------
EPA requests comment on whether hazardous debris should be included
in the final Part 269 rule and, if debris is included, the management
standards or combinations of management standards (e.g., some
combination of the existing Debris Rule standards and the standards for
contaminated media proposed today)
[[Page 18791]]
that should be imposed. EPA requests that commenters address the
distinctions, if any, which should be made between naturally occurring
debris (e.g., gravel, tree roots) and man-made debris (e.g., crushed
drums, sorbants). For example, should naturally occurring debris be
included in the final Part 269 rule and subject to the same standards
as contaminated media because it is often co-located with media? While
these issues were specifically raised in the context of petroleum
contaminated debris, EPA believes they are also applicable to debris
more generally.
Details associated with the potential application of today's
proposed requirements for contaminated media to hazardous debris are
discussed later in sections (V)(A)(4)(b) and (V)(C)(10) of this
preamble.
Oversight. Section 269.2(b) specifies that the regulations of Part
269 would apply only to cleanup activities that are overseen by EPA or
an authorized State agency, in accordance with an approved plan (i.e.,
a RMP). This limitation is a key feature of the proposal.
As discussed earlier, remedial actions under RCRA, CERCLA, and
other Federal and State cleanup programs are typically conducted with
substantial government oversight. Often this occurs because the
implementing agencies have decided to make many decisions relating to
cleanup on a site-specific basis rather than promulgating generally
applicable regulations. Agencies have preferred site-specific decision-
making in the area of cleanup because remedial management decisions are
extremely complex, and because site-specific factors play very
important roles in the design and implementation of protective
remedies. It is the Agency's belief that the government agency
overseeing a particular remedial action is generally best suited to
make decisions concerning the management of the contaminated media from
that site, because they would be most familiar with the site-specific
conditions that would affect how the media should be properly managed.
Thus, for the majority of media (i.e., those with all constituent
concentrations below the Bright Line), today's proposal would allow EPA
or the State to impose site-specific standards in lieu of most of the
current Subtitle C requirements.
In many States, several cleanup programs are operated by different
programs or agencies of the State government. It is the intention of
the Agency to authorize for this rule, State RCRA programs that have
incorporated the rule and plan to rely on companion authorities that
are not reliant on the presence of hazardous wastes for jurisdiction
(e.g., State solid waste laws, or State Superfund laws, and RCRA
corrective action authority at TSDFs), and that are capable of assuring
sound media management decisions for media determined to no longer
contain hazardous wastes. EPA would then allow those States to
determine which companion authority(s) should be used to define media
management requirements at any specific site. Likewise, management
standards for media determined to no longer contain hazardous wastes
may be imposed, as appropriate, under Federal cleanup programs, such as
Superfund or RCRA corrective action.
Since these proposed Part 269 regulations and appropriate site-
specific management standards for media determined to no longer contain
hazardous wastes would be implemented and enforced on a site-by-site
basis, some mechanism must be available for the overseeing Agency to
document the site-specific requirements, and thus provide a means to
enforce compliance with those requirements. The proposal specifies that
these rules will only apply when EPA or an authorized State approves a
remediation management plan for the site. The requirements that
contained-in decisions and appropriate non-Subtitle C management
standards must be included in RMPs would also serve the very important
purpose of providing the information necessary for the Agency to
monitor whether an authorized State is implementing the HWIR-media rule
in a protective manner (e.g., whether the State is making protective
contained-in determinations). As discussed more fully in section (V)(E)
below, today's proposal would allow EPA to withdraw a State's HWIR-
media authorization if the Agency determines that the State is not
managing the contaminated media addressed by the rule in a protective
manner.
An approved RMP may also constitute a RCRA permit in cases where
such permits are required specifically for cleanup activities. Further
discussion of RMPs is presented elsewhere in this preamble.
Sec. 269.2(c) is designed to make clear that this rule does not
expand the applicability of Subtitle C requirements to any materials
for which Subtitle C would otherwise not apply. Materials and
activities that are not already subject to Subtitle C would not be
required to begin complying with Subtitle C standards. For example, if
a site owner managed hazardous contaminated media under the 90-day
accumulation provision of 40 CFR 262.34, this rule would not require
him to obtain a RCRA Part B permit or a RMP. Similarly, if a site owner
treats hazardous contaminated media in situ (i.e., without triggering
the RCRA Land Disposal Restrictions), this rule would not subject him
to the proposed media-specific LDR standards in Part 269.
3. Definitions--Sec. 269.3
Section 269.3 defines several important new terms that are unique
to Part 269 6. These terms are defined here, rather than in
Sec. 260.10 (where most of RCRA's regulatory terminology is defined),
for the sake of convenience, and to emphasize that these are terms that
would be specific only to this portion of the hazardous waste
regulations. Of course, the definitions in Sec. 260.10 would apply to
Part 269 as well. The following is a discussion of each new term.
---------------------------------------------------------------------------
\6\ The term ``Director'' as used in today's proposed rule means
``Director'' as defined currently in 40 CFR 270.2. The HWIR-waste
proposal (60 FR 66344-469, Dec. 21, 1995) would move that definition
to 260.10, in which case the 260.10 definition would be sufficient
to define ``Director'' for purposes of today's proposal. For that
reason, today's rule does not propose a definition for ``Director.''
---------------------------------------------------------------------------
Bright Line Constituent. Today's proposal specifies the following
definition:
Bright Line constituent means any constituent found in media
that is listed in Appendix A of this Part, and which is: (1) The
basis for listing of a hazardous waste (as specified in Appendix VII
of 40 CFR Part 261) found in that media; or (2) a constituent which
causes the media to exhibit a hazardous characteristic.
This definition would be used to establish which constituent
concentrations in the media must be measured against Bright Line
concentrations, which in turn would determine whether the Director has
the discretion to decide that the media do not contain hazardous waste.
The Agency considered several approaches for defining this term,
including defining it to include any constituent that: (1) May be
present in the media, (2) may be present in the media and originated
from hazardous waste, or (3) may be present in the media, originated
from hazardous waste, and was a constituent that either formed the
basis for the waste's hazardous waste listing or caused the media to
exhibit a hazardous characteristic.
The Agency rejected the first option because it could be over
inclusive; i.e., there could be concentrations of constituents in the
media that exceed Bright Line concentrations, but did not originate
from hazardous waste (e.g.,
[[Page 18792]]
naturally occurring constituents). Since under the contained-in
principle, media are only regulated under Subtitle C because they
contain hazardous waste, this approach could inappropriately extend the
reach of the Subtitle C regulations.
EPA chose the third option over the second reasoning that the use
of the same constituents that have caused the wastes in the media to be
regulated as hazardous form a sound basis for deciding whether those
same media should be eligible to be ``deregulated.'' The sole purpose
of the Bright Line is to determine whether the media should be eligible
for a contained-in determination; the conclusion that all Bright Line
constituents are below the Bright Line does not necessarily determine
that the media no longer contain waste. If the media contain other
constituents of concern, the Director could, where appropriate, use the
constituents as the basis for denying a request that the media be
determined to no longer contain hazardous wastes.
At some point in the site-cleanup process it would be necessary to
determine which constituents in the media are Bright Line constituents.
For media that exhibit a hazardous characteristic, the Bright Line
constituents should be readily identified (i.e., by chemical analysis).
For media contaminated with listed hazardous wastes, Appendix VII to 40
CFR Part 261 lists the constituents that were the basis for listing the
waste as hazardous.
The Agency recognizes that identifying the presence of listed
wastes (and thus the Bright Line constituents) in media is not always
simple. It has been the Agency's longstanding policy that in cases
where the origin of the contaminants is unknown, the lead agency may
assume that contaminants in media did not originate from listed
hazardous wastes. (See e.g., 55 FR 8666, 8758, March 8, 1990, and 53 FR
51394, 51444, (December 21, 1988)). It is generally the responsibility
of the owner/operator or responsible party to make a good faith effort
to determine whether hazardous constituents in media have originated
from listed hazardous wastes. If the origin of constituents in media
cannot be determined, and the media do not exhibit a hazardous
characteristic, then the media would not be subject to Subtitle C
regulations in the first place.
Although Bright Line constituents may help to determine the
regulatory status of media they would not necessarily be the only
constituents subject to LDR treatment standards. A discussion of how
LDR standards would be applied to hazardous waste constituents in
hazardous contaminated media is presented in section (V)(C) of this
preamble.
The tables in Appendix A specify concentrations for 100
constituents for which verified human health effects data were
available to the Agency at the time of the proposal's publication.
These constituents are also the ones most commonly found in
contaminated media at Superfund sites. EPA expects that Bright Line
concentrations for additional constituents will be available before
publication of the final Part 269 rules. However, it is likely that for
some time Appendix A will be an incomplete list. Comment is invited as
to whether this list should be updated, as data become available, to
include as many constituents as possible, or whether for purposes of
this regulation it is acceptable to have a Bright Line list that does
not specify levels for every constituent that might be found at a
cleanup site.
In cases where constituents are present in media but are not among
those listed with concentration values in Appendix A to Part 269--the
Director would have the discretion (but not the obligation) to specify
site-specific or State-wide Bright Line concentrations. The Director's
discretion to decide whether media contained hazardous wastes is
unconstrained with respect to these constituents.
For constituents that do not have established Bright Line
concentration values, EPA believes it would generally be appropriate to
use similar assumptions to those used to establish the current Bright
Line concentrations. The technical background documents which describe
the assumptions, equations, and models used to set the Bright Line
numbers are in the docket for today's rule.
Additional discussion of the Bright Line concept is presented in
section (V)(A)(4)(c) of this preamble, including information on the
specific numbers in Appendix A and how they were calculated. The Agency
requests comments on this definition of Bright Line constituents. In
particular, the Agency seeks comments on the approach of defining
Bright Line constituents as those constituents that caused the waste to
be hazardous in the first place. For example, would it make more sense
to define Bright Line constituents as any constituents for which LDR
treatment would be required? (Constituents that would be required to be
treated for LDR are discussed in section (V)(C)(3) below.) This
approach may be appropriate, since the owner/operator would already be
addressing these constituents for LDR purposes. The Agency requests
comments on approaches for making contained-in decisions for
constituents that do not have levels specified in Appendix A.
Hazardous contaminated media. Today's rule proposes the following
definition of hazardous contaminated media:
Hazardous contaminated media means media that contain hazardous
wastes listed in Part 261 Subpart D of this chapter, or that exhibit
one or more of the characteristics of hazardous waste defined in
Part 261, Subpart C of this chapter, except media which the Director
has determined do not contain hazardous wastes pursuant to
Sec. 269.4 of this Part (non-hazardous contaminated media).
This definition would be used to identify media that remain subject
to regulation as hazardous wastes under RCRA Subtitle C.
Media. Today's rule proposes the following definition of media:
Media means materials found in the natural environment such as
soil, ground water, surface water, and sediments; or a mixture of
such materials with liquids, sludges, or solids which is inseparable
by simple mechanical removal processes and is made up primarily of
media. This definition does not include debris (as defined in
Sec. 268.2).
This definition is intended to include a broad range of naturally
occurring environmental media that may become contaminated with
hazardous wastes. Debris has not been included in this definition, for
reasons cited in the earlier discussion of debris, section (V)(A)(2),
although, as discussed in that section, EPA solicits comments on
whether it should be. However, hazardous debris or other remediation
wastes may be managed in remediation piles (see discussion of proposed
Sec. 264.554), and could be addressed in a remediation management plan
under today's proposal.
Media Remediation Site. Today's rule proposes the following
definition of media remediation site:
Media remediation site means an area contaminated with hazardous
waste that is subject to cleanup under State or Federal authority,
and areas that are in close proximity to the contaminated area at
which remediation wastes are being managed or will be managed
pursuant to State or Federal cleanup authorities (such as RCRA
corrective action or CERCLA). A media remediation site is not a
facility for the purpose of implementing corrective action under
Sec. 264.101, but may be subject to such corrective action
requirements if the site is located within such a facility (as
defined in Sec. 260.10).
EPA also proposes to amend the definition of facility in
Sec. 260.10 to
[[Page 18793]]
exclude media remediation sites (except those located at a TSDF).
The concept of a media remediation site is new in the RCRA context,
although it is similar to the ``on-site'' concept that is defined in
the Superfund program. Traditionally, RCRA has focused on
``facilities'' for purposes of applying hazardous waste regulations.
These are generally properties where industrial operations manage
hazardous wastes that they have generated, or where commercial
hazardous waste treatment, storage, and/or disposal operations are
conducted. For purposes of implementing corrective actions under
Sec. 3004 (u) and (v) and 3008(h), a facility is defined (see
Sec. 260.10) as ``all contiguous property under the control of the
owner or operator'' where hazardous wastes are managed.
Applying this concept of a facility to cleanup actions can be
problematic in some cases, particularly where cleanup activities are
being conducted on property that was never before regulated under RCRA
(e.g., land that became contaminated before RCRA regulations were
promulgated). Under the current regulations, if the cleanup activities
at such a site require a RCRA permit, the site would become a
``facility'' for RCRA purposes, and corrective action requirements
would apply to all contiguous property that is under the control of the
owner or operator. This has created disincentives for cleanups at
properties not heretofore regulated under RCRA. For example, obtaining
a permit can be a time- and resource-intensive undertaking, and the
facility-wide corrective action requirements that attach once the
permit is issued can also deter cleanups. Since a media remediation
site would not be considered a facility for RCRA purposes, a RMP issued
for the cleanup activities at the site would not trigger any of the
RCRA corrective action requirements mandated by RCRA Sec. 3004 (u) and
(v).
EPA believes that using the concept of a media remediation site in
applying Part 269 regulations, instead of calling them RCRA facilities,
is sensible and consistent with the RCRA statute. The HWIR FACA
Committee also supported this approach. As originally conceived, RCRA
facilities were generally properties whose owners and operators were
engaged in ongoing hazardous waste management. Requiring corrective
action for such facilities (both facility-wide and beyond the facility
boundary) was seen as a quid pro quo; i.e., one of the costs of doing
business for those engaged in--and in some way profiting from--the
management of hazardous wastes. In a remedial context, however, there
is no profit or advantage gained by owners and operators from managing
hazardous wastes; it is simply incidental to performing an act that is
environmentally beneficial (i.e., cleaning up a site). Viewing cleanup
sites as traditional hazardous waste facilities (and thus imposing
additional cleanup responsibilities) can have the effect of penalizing
those who wish to clean up their properties.
EPA does not believe that Congress intended for RCRA to create
obstacles like this one to cleaning up contaminated sites. Under
Sec. 3004(u) of RCRA, the corrective action requirement applies to ``a
treatment, storage, or disposal facility seeking a permit.'' This
clearly refers to facilities that need permits because they are in the
business of hazardous waste management. In the Agency's opinion, sites
that only conduct hazardous waste management incidental to cleanup
activities are not the types of facilities to which Congress intended
to apply the Sec. 3004 (u) and (v) facility-wide (and beyond the
facility boundary) corrective action requirements.
In some cases, a media remediation site could be part of an
operating (or closing) RCRA hazardous waste management facility that is
already subject the Sec. 3004 (u) and (v) corrective action
requirements; in those cases, identifying an area of the facility as a
media remediation site would not have any effect on the corrective
action requirements for that site or the rest of the facility. The only
advantage to designating part of a RCRA-regulated facility as a media
remediation site would be that more streamlined permit procedures (for
RMPs--see Sec. 269.43) could be used for that part of the facility.
Under the proposed definition, a media remediation site would be
limited to the area that is contaminated and subject to cleanup, and
adjacent areas that are used for managing remediation wastes as part of
cleanup activities. Areas that are remote from the contaminated site
would not be eligible to be media remediation sites. For example, if
remediation wastes were generated from a site and subsequently
transported off-site for treatment or disposal, the treatment/disposal
sites could not be considered media remediation sites. These off-site
units would be subject to regulation as RCRA facilities for permitting
and corrective action purposes.
Of course, units used to manage non-hazardous remediation wastes
(including non-hazardous contaminated media--e.g., media determined not
to contain hazardous waste), would not need to comply with Subtitle C
regulations, nor would such units need RCRA permits. In other words, if
the Director determined that media did not contain hazardous waste,
units used for subsequent management of the media (on or off site)
would not be subject to permitting or other Subtitle C requirements.
EPA considered the option of allowing certain off-site areas to be
considered media remediation sites, such as sites dedicated to managing
only remediation wastes, and sites where only remediation wastes from a
specific cleanup site were managed. These options could provide
significant advantages. For example, excavating wastes from a site
located in a floodplain, and staging those wastes in a more secure
location away from the floodplain, prior to ultimate disposal could be
a reasonable remedy. As proposed, the off-site staging area could not
be considered a media remediation site--it would have to be permitted
as a traditional hazardous waste storage facility. The Agency
recognizes that allowing the use of RMPs at off-site staging facilities
might be more streamlined than requiring RCRA permits. However, an
option that would allow off-site areas to be considered media
remediation sites (or to be permitted under RMPs) could be more
complicated to administer. The Agency does not want to restrict off-
site management of remediation wastes, but simply to ensure that these
off-site locations are adequately overseen. The Agency requests
comments on allowing off-site areas to be regulated as media
remediation sites under Part 269, and any specific requirements or
limitations that should be imposed on off-site media remediation sites.
Today's proposal would allow the Director to include areas in close
proximity to contaminated land that is being cleaned up as part of a
designated media remediation site. This would allow the site managers a
limited amount of room for conducting cleanup operations outside the
area that is actually contaminated. For example, cleaning up a lagoon
full of sludges might involve constructing and operating a treatment
unit at the site; in many cases, it might be impractical or impossible
to locate the treatment unit within the lagoon. This provision would
require some judgment on the part of regulators responsible for
defining the boundaries of a media remediation site. EPA solicits
comments on this provision, and on the more general question of how
expansive the definition should be, and what types of operations or
areas should be included or excluded.
[[Page 18794]]
Non-hazardous contaminated media. Today's rule proposes the
following definition of non-hazardous contaminated media:
Non-hazardous contaminated media means media that are managed as
part of cleanup activities and that the Director has determined do
not contain hazardous wastes (according to Sec. 269.4), but absent
such a determination would have been hazardous contaminated media.
This definition is intended to encompass any media that would have
been subject to RCRA Subtitle C management requirements but the
Director determined that they do not contain waste that presents a
hazard (i.e., hazardous waste) based on controls in a RMP. (See
discussion in section (V)(A)(4)(a) of this proposal). This definition
is intended to differentiate non-hazardous contaminated media from
media which would never have been subject to Subtitle C in the first
instance (e.g., soil that was never contaminated with hazardous waste.)
Under today's proposal, management of non-hazardous contaminated
media would nevertheless be subject to control and oversight from EPA
or an authorized State. As discussed in section (V)(A)(4)(a), in order
for hazardous contaminated media to be designated non-hazardous
contaminated media, the Director would need to specify any appropriate
management controls in an approved RMP. Since the intent of this rule
is not to expand the reach of RCRA Subtitle C requirements, ``never
contaminated soil'' would not be subject to the requirements set forth
in this part for non-hazardous contaminated media.
Inherent in this definition is the idea that, even though these
media would not be regulated as hazardous wastes, they might
nevertheless be ``contaminated'' enough to be of some concern to the
overseeing agency's site cleanup decisions. In fact, most of the media
that are generated and managed as part of cleanups would likely be
eligible to be considered non-hazardous, according to the results of
the Regulatory Impact Analysis prepared for this proposed rule.
Remediation Management Plan (RMP). Today's rule proposes the
following definition for Remediation Management Plan:
Remediation Management Plan means the plan which describes
specifically how hazardous and non-hazardous contaminated media will
be managed in accordance with this Part. Such a plan may also
include, as allowed under Subpart D of this Part, requirements for
other remediation wastes and any other (non-Part 269) requirements
applicable to hazardous contaminated media.
The requirements of today's proposal depend on a responsible
overseeing agency (EPA or an authorized State) to approve and monitor
compliance with many site-specific decisions regarding the management
of hazardous contaminated media. The RMP would provide the
documentation of the plan and relevant information to demonstrate
compliance with applicable requirements. A unique aspect of the RMP is
that there could be several different kinds of RMPs. Since hazardous
and non-hazardous contaminated media would be managed under any number
of Federal and State programs, the Agency believes that it would be
unnecessarily burdensome to require a fixed form of documentation, as
long as the required information is adequately included or described in
the documents already being used by the programs that implement the
remedial activities. In other words, this rule would allow any
enforceable document containing the information required to be included
in a RMP if it also goes through at least the minimum public
participation requirements in proposed Sec. 269.43.
Sediment. Today's proposal specifies the following definition for
sediments:
Sediment is the mixture of assorted material that settles to the
bottom of a water body. It includes the shells and coverings of
mollusks and other animals, transported soil particles from surface
erosion, organic matter from dead and rotting vegetation and
animals, sewage, industrial wastes, other organic and inorganic
materials, and chemicals.
This definition is from EPA's Office of Water's document from June
1993, entitled ``Selecting Cleanup Techniques for Contaminated
Sediments,'' EPA 823-B93-001, p. xiv, which is available in the docket
to today's proposal. For further discussion of how the proposal would
affect management of contaminated sediments, see sections (V)(A)(4)(c)
and (V)(H) of this preamble.
Soil. Today's proposal specifies the following definition of soil,
for the purpose of implementing Part 269 regulations:
Soil means unconsolidated earth material composing the
superficial geologic strata (material overlying bedrock), consisting
of clay, silt, sand, or gravel size particles (sizes as classified
by the U.S. Soil Conservation Service), or a mixture of such
materials with liquids, sludges, or solids which is inseparable by
simple mechanical removal processes, and is made up primarily of
soil.
This definition was originally proposed in the September 14, 1993
Phase II LDR proposal (58 FR 48092, 48123). It would allow regulators
to distinguish between soils, debris, and other remediation wastes by
judging the results of simple, in-situ mechanical removal processes to
separate the materials. These processes would include pumping,
dredging, or excavation by backhoe, or other devices.
This approach would eliminate requirements for chemical analysis of
soil, to differentiate between waste, soil and debris (e.g.,
considering such things as soil particle size, elemental composition of
the soil, or other properties that might distinguish soil from other
remediation wastes). The Agency is not proposing that owner/operators
or the Director distinguish more precisely than specified in today's
proposal between waste, soil, or debris--through a chemical analysis or
other tests--since these approaches would be difficult to develop,
support, and administer. Specifically, a basis for chemical analysis or
other tests has not been developed, and implementation of this approach
would most likely not be beneficial. Instead it would simply delay the
progress of remedial actions. The Agency specifically solicits comments
on this proposed definition for soil, and this type of approach for
classifying mixtures of soil and other materials.
4. Identification of Media Not Subject to Regulation as Hazardous
Waste--Sec. 269.4
Section 269.4 specifies that, as long as media do not contain
Bright Line Constituents that are at or above Bright Line
concentrations, the Director may determine if those media contain
hazardous wastes. If not, the Director may determine that the media
would not be subject to most RCRA hazardous waste management
requirements.7 This does not mean, however, that management of
those media would be unrestricted. Instead, the rule would require EPA
or the State to impose appropriate management requirements in an
approved RMP, using authorities that do not depend on the presence of
hazardous wastes (i.e., general cleanup authorities as provided in
Federal or State cleanup statutes).
---------------------------------------------------------------------------
\7\ The exception is, in some cases, the requirement to comply
with the land disposal treatment standards. (See discussion in
(V)(C).)
---------------------------------------------------------------------------
The Agency is imposing this condition on decisions that media no
longer contain hazardous wastes, because the proposed rule, as
discussed below, would allow those decisions to be made where media may
be more highly contaminated than media the Agency has traditionally
deemed to no longer contain hazardous waste. If, for some reason, a RMP
were terminated prior to completion of a remedy, those
[[Page 18795]]
media would again become subject to Subtitle C regulation.
Understanding the role of the Bright Line and the contained-in
principle is essential to understanding how today's proposal would
work. Both the contained-in principle and the Bright Line are explained
below.
a. The contained-in principle in today's proposed rule background.
The contained-in principle is the basis for EPA's longstanding policy
regarding the application of RCRA Subtitle C requirements to mixtures
of environmental media (e.g., soils, ground water, sediments) and
hazardous wastes. This concept has been discussed previously in several
Agency directives and in several RCRA rulemakings. (See, e.g., 58 FR
48092, 48127 (September 14, 1993)). In today's proposed rule the Agency
is expanding this concept as the basis for allowing EPA or an
authorized State to exempt certain contaminated media from the
stringent, prevention-oriented RCRA regulations for hazardous waste
management that previously would have applied.
The contained-in concept was originally developed to define the
regulatory status of environmental media that are contaminated with
hazardous wastes. The mixture rule at 40 CFR 261.3(a)(2)(iv) states
that ``a mixture of solid waste and one or more [listed] hazardous
wastes'' constitutes a listed waste itself (emphasis added). Similarly,
the derived-from rule at 40 CFR 261.3(c)(2)(i) provides that ``a solid
waste generated from the treatment, storage, or disposal of a hazardous
waste'' is a hazardous waste (emphasis added).
Since media are not solid wastes, these rules do not apply to
mixtures of media and hazardous wastes. However, two other regulations
subject contaminated media to Subtitle C requirements. Under 40 CFR
261.3(c)(1) a ``hazardous waste will remain a hazardous waste'' unless
and until certain specified events occur. Under 40 CFR 261.3(d)(2) a
``waste which contains'' a listed waste remains a hazardous waste until
it is delisted. Together these regulations provide for continued
regulation of hazardous wastes even after they are released to the
environment and mingled with media.
The U.S. Court of Appeals for the District of Columbia Circuit
upheld this interpretation of Secs. 261.3(c)(1) and (d)(2) in Chemical
Waste Management Inc. v. EPA, 869 F.2d 1526, 1538-40 (D.C. Cir. 1989),
and EPA has explained the policy and its regulatory basis in numerous
preambles and letters. (See 53 FR 31138, 31142, 31148 (Aug. 17, 1988);
57 FR 21450, 21453 (May 20, 1992) (inadvertently citing 40 CFR
261(c)(2) in lieu of Sec. 261.3(d)(2)); memorandum from Marcia E.
Williams, Director, EPA Office of Solid Waste, to Patrick Tobin, EPA
Region IV (Nov. 15, 1986); letter from Jonathan Z. Cannon, EPA Acting
Assistant Administrator, Office of Solid Waste and Emergency Response,
to Thomas Jorling, Commissioner, New York Department of Environmental
Conservation (June 19, 1989); and letter from Sylvia K. Lowrance,
Director, EPA Office of Solid Waste, to John Ely, Enforcement Director,
Virginia Department of Waste Management (Mar. 26, 1991). Under the
contained-in policy, media contaminated with listed hazardous wastes
are not wastes themselves, but they contain hazardous wastes and must
therefore be managed as hazardous wastes until they no longer contain
the waste. This concept is based on the idea that at some point (e.g.,
at some concentration of hazardous constituents) the media would no
longer contain the hazardous waste, or be subject to RCRA Subtitle C
regulations.
Because the regulations that serve as the basis for the contained-
in policy are part of the ``base'' RCRA program that was in effect
prior to 1984, the Agency has taken the position that EPA or the State
agency authorized to administer the ``base'' RCRA regulations may
determine whether media contain listed wastes. Decisions that media no
longer contain listed hazardous wastes (or ``contained-in'' decisions)
have typically been made on a case-by-case basis, according to the
risks posed by the contaminated media. The Agency has not issued any
definitive guidance or regulations for determining appropriate
contained-in levels; however, EPA Regions and States have been advised
that conservative, health-based levels derived from direct exposure
pathways would clearly be acceptable as ``contained-in'' levels. (See
memorandum from Sylvia K. Lowrance to Jeff Zelikson, Region IX,
(January 24, 1989)). It has been the common practice of EPA and many
States to specify conservative, risk-based levels calculated with
standard conservative exposure assumptions (usually based on
unrestricted access), or site-specific risk assessments.
With regard to mixtures of media and characteristic wastes, EPA has
often stated that media are regulated under RCRA Subtitle C if they
exhibit a hazardous waste characteristic. (See 57 FR 21450, 21453, (May
20, 1992)). But, since media generally are not wastes, they become
regulated when they have been contaminated with solid or hazardous
wastes and the resultant mixture exhibits a characteristic. EPA has
also taken the position that contaminated media cease to be regulated
as hazardous waste when sufficient quantities of hazardous constituents
are removed so that the mixture ceases to exhibit a characteristic
8 (57 FR 21450, 21453, May 20, 1992).
---------------------------------------------------------------------------
\8\ Recent developments under the RCRA land disposal
restrictions (LDRs) may suggest a qualification to this latter
point. (See discussion of LDRs in section (V)(C) of today's
preamble.)
---------------------------------------------------------------------------
The contained-in concept in today's proposed rule. One of the
primary objectives of today's proposal is to remove lower risk
contaminated media from Subtitle C jurisdiction so that more
appropriate, site-specific management requirements can be specified by
the overseeing Agency. For the purpose of this rulemaking EPA has
chosen to use the contained-in concept as the basis for allowing these
materials to be exempted from Subtitle C requirements. In formulating
the proposal, the Agency considered alternative concepts that might be
provided under the RCRA statute that would produce the same or similar
exemption. Those concepts are discussed in section (VI)(A)(2) of this
preamble.
Today's proposal would allow two separate regulatory regimes to be
applied to the management of contaminated media under EPA or State-
approved cleanups. For media determined to contain hazardous wastes,
modified LDR treatment standards would apply, as would other applicable
Subtitle C requirements. For media determined not to contain hazardous
wastes, Subtitle C requirements would generally not apply, and the
State or EPA would have considerable discretion in applying appropriate
management standards.
The proposed rule would limit an overseeing agency's discretion to
make site-specific decisions that media no longer contain wastes by
specifying ``Bright Line'' concentration levels. Media that are
contaminated below Bright Line concentrations would be eligible for
contained-in decisions by the overseeing Agency. However, Bright Line
concentrations would not constitute an automatic exemption from
Subtitle C; rather, they would represent the concentration below which
the State or EPA might determine that media do not contain hazardous
waste.
As described below, EPA believes it would generally be acceptable
to make a decision that media do not contain hazardous waste at the
Bright Line concentrations specified in today's proposal. However, the
proposed rule is
[[Page 18796]]
designed to provide for site-specific discretion in making such
decisions. Thus, it is possible that some States might choose to
specify--on a site-specific basis, more broadly as a matter of policy,
or in regulations--contained-in levels that are lower (i.e., more
stringent) than the Bright Line concentrations specified in today's
proposal. Moreover, States can be more stringent than the Federal
program, and adopt lower Bright Line concentrations.
In applying the contained-in concept, today's proposed rule does
not distinguish between media that are contaminated with listed
hazardous wastes, and media that exhibit a hazardous waste
characteristic. In both cases, it is the concentration levels of the
individual hazardous constituents in the media that determine how the
media will be regulated under Part 269. The origin of the constituents
(i.e., listed wastes or characteristic hazardous wastes) is irrelevant
in comparing measured levels in the media with Bright Line
concentrations and/or contained-in concentrations.
EPA sees no reason to apply the Bright Line concept differently to
media contaminated with listed hazardous wastes and media that exhibit
a hazardous characteristic. In either case the media could presumably
be contaminated with the same types of hazardous constituents, at
similar concentrations, that would present similar potential risks if
mismanaged. Thus, applying these rules differently, depending on how
the media came to be regulated as hazardous, would be unnecessary and
artificial, and would further complicate how these rules would be
implemented in the field.
EPA recognizes that today's rule could have the effect of excluding
from Subtitle C regulation some media that until now have been
considered hazardous--i.e., media that exhibit a hazardous waste
characteristic, with constituent concentrations below the Bright Line
and EPA or the State makes a determination that the media no longer
contain hazardous waste (often based on protective management
controls). However, EPA believes that there is no compelling
environmental rationale for not including such media in Part 269
regulation. The risk presented even by characteristic wastes is
dependent on site-specific circumstances. Therefore, because today's
proposal would require the Director to impose any management controls
on contaminated media that are necessary to protect human health and
the environment, whether the media is contaminated with listed or
characteristic waste is unimportant.
Under today's proposed rule, contained-in decisions would be
documented in the site's approved Remediation Management Plan (RMP). If
an approved RMP expires or is terminated, the provisions of today's
proposal would no longer apply. Therefore, all contaminated media that
are addressed in the RMP (i.e., media that are contaminated both above
and below contained-in concentrations) would again prospectively be
subject to the ``base'' Subtitle C regulations. For example, if a
cleanup of contaminated soil was half completed when a RMP was
terminated or expired, the half that was completed in compliance with
the RMP while it was in effect, would continue to be considered to be
in compliance. For example, if contaminated soil was determined not to
contain hazardous waste, and was disposed of in a Subtitle D landfill
according to the requirements of the RMP, that Subtitle D landfill
would not be considered retroactively to have accepted hazardous
wastes. The half of the cleanup that was not completed when the RMP was
terminated or expired, however, would have to be completed
prospectively in compliance with the non-Part 269 Subtitle C
regulations.
Effect of contained-in decisions under today's rule. Once the
overseeing Agency has made a decision that media with constituents at
certain concentrations no longer contain hazardous wastes (i.e., ``a
contained-in decision''), the media would no longer be regulated as
hazardous wastes under Federal RCRA regulations (Sec. 261.4(g) and
Sec. 269.4(a)).9 The Agency requests comments, however, on whether
the Agency should exempt the media instead, only if it were managed in
compliance with the provisions of the RMP. The Agency did not propose
this approach primarily because it could be unduly harsh, since any
violation, no matter how minor, would result in a reversion to Subtitle
C. However, this approach could be incorporated into RMPs on a case-by-
case basis, where the Director could specify in the RMP the
provision(s) who's violation would result in a reversion to Subtitle C
regulation. (See discussion below).
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\9\ The Agency notes, however, that by explicitly providing in
Sec. 261.4 that decisions under Part 269 that media no longer
contain hazardous waste are not subject to most Subtitle C
regulations, EPA would not intend to affect in any way the authority
of EPA and authorized States to make contained-in decisions outside
of the HWIR-media context.
---------------------------------------------------------------------------
A contained-in decision for wastes at a cleanup site would not,
however, eliminate the Administrator's authority to require the owner/
operator (or other responsible parties at sites not regulated by RCRA)
to conduct remedial actions for media that do not contain hazardous
wastes. Specifically, Federal cleanup authorities under RCRA section
3004(u) at TSDFs, section 7003, and CERCLA authorities, authorize the
Agency to require cleanup of a broad spectrum of hazardous constituents
and/or hazardous substances, however, the presence of hazardous
waste(s) in media is not a requirement for exercising those
authorities. Many State cleanup authorities have similar provisions.
Decision factors for contained-in decisions. Because the Agency
does not want to constrain site-specific decision-making, today's
proposed rule would not mandate specific factors for making contained-
in decisions, but would allow the Director to base these decisions on
appropriate site-specific factors. However, EPA requests comments on
whether decision factors should be codified for making contained-in
decisions. EPA believes that the Bright Line concentrations will
generally be acceptable for contained-in decisions; however, decision
factors could help authorities determine, on a site-specific basis,
what types of management controls (see discussion below), if any, would
make the Bright Line concentrations appropriate concentrations at which
to make contained-in decisions. Decision factors could also aid in
determining other appropriate levels at which to make contained-in
decisions.
Given the multiplicity of different types of sites, EPA requests
comments on what decision factors, if the Agency decided to include
them in the final rule, would ensure consistent decision-making, and
yet keep the process efficient and flexible. Although EPA does not
believe it would be appropriate to do a risk assessment at every site,
particularly if the cleanup is of a relatively simple nature, the
Agency does believe that the following factors (adapted from the LDR
proposal for hazardous soils) contain the types of information that may
be appropriate (depending on the specific circumstances at a given
site) to consider in making contained-in decisions:
--Media properties;
--Waste constituent properties (including solubility, mobility,
toxicity, and interactive effects of constituents present that may
affect these properties);
--Exposure potential (including potential for direct human contact, and
potential for exposure of sensitive environmental receptors, and the
[[Page 18797]]
effect of any management controls which could lessen this potential);
--Surface and subsurface properties (including depth to groundwater,
and properties of subsurface formations);
--Climatic conditions;
--Whether the media pose an unacceptable risk to human health and the
environment; and
--Other site or waste-specific properties or conditions that may affect
whether residual constituent concentrations will pose a threat to human
health and the environment.
Most of these factors were proposed in the LDR proposal for
hazardous soil (58 FR 48092, September 14, 1993) as decision factors
that might be considered by the Director in making contained-in
decisions. If the proposal for hazardous soil had been finalized, it
would have codified the contained-in principle for hazardous soil.
Today's suggested factors differ from those in the hazardous soil
proposal in one significant respect. The Agency has determined that it
may be appropriate, when assessing ``exposure potential,'' to consider
site-specific management controls imposed by the Director that limit
potential exposures of human or environmental receptors to media. The
Agency made this change because EPA believes that States overseeing
cleanups might determine that media that would have traditionally been
considered to contain hazardous waste (e.g., media that contained
listed wastes and posed an unacceptable risk under traditional exposure
scenarios) no longer presented a hazard (and thus did not contain
``hazardous'' waste), based on site-specific management controls
imposed by the Director.
This position is based upon EPA's understanding that RCRA provides
EPA and the States the discretion to determine that a waste need not be
defined as ``hazardous'' where restrictions are placed on management
such that no improper management could occur that might threaten human
health or the environment. (See definition of hazardous waste at RCRA
section 1004(5)(B)). The HWIR-waste proposal included a full discussion
of the legal basis for this position. For the sake of clarity, it is
repeated below (60 FR 66344-469, Dec. 21, 1995).
EPA's original approach to determining whether a waste should be
listed as hazardous focused on the inherent chemical composition of the
waste, and assumed that mismanagement would occur, causing people or
organisms to come into contact with the waste's constituents. (See 45
FR 33084, 33113, (May 19, 1980)). Based on more than a decade of
experience with waste management, EPA believes that it is inappropriate
to assume that worst-case mismanagement will occur. Moreover, EPA does
not believe that worst-case assumptions are compelled by statute.
In recent hazardous waste listing decisions, EPA identified some
likely ``mismanagement'' scenarios that are reasonable for almost all
wastewaters or non-wastewaters, and looked hard at available data to
determine if any of these are unlikely for the specific wastes being
considered, or if other scenarios are likely, given available
information about current waste management practices. (See the
Carbamates Listing Determination (60 FR 7824, February 9, 1995) and the
Dyes and Pigments Proposed Listing Determination (59 FR 66072, December
22, 1994)). Further extending this logic, EPA believes that when a
mismanagement scenario is not likely, or has been adequately addressed
by other programs, the Agency need not consider the risk from that
scenario in deciding whether to classify the waste as hazardous.
EPA believes that the definition of ``hazardous waste'' in RCRA
section 1004(5) permits this approach to hazardous waste
classification. Section 1004(5)(B) defines as ``hazardous'' any waste
that may present a substantial present or potential hazard to human
health or the environment ``when improperly * * * managed.'' EPA reads
this provision to allow it to determine the circumstances under which a
waste may present a hazard and to regulate the waste only when those
conditions occur. Support for this reading can be found by contrasting
section 1004(5)(B) with section 1004(5)(A), which defines certain
inherently dangerous wastes as ``hazardous'' no matter how they are
managed. The legislative history of Subtitle C of RCRA also appears to
support this interpretation, stating that ``the basic thrust of this
hazardous waste title is to identify what wastes are hazardous in what
quantities, qualities, and concentrations, and the methods of disposal
which may make such wastes hazardous.'' H. Rep. No. 94-1491, 94th
Cong., 2d Sess.6 (1976), reprinted in, ``A Legislative History of the
Solid Waste Disposal Act, as Amended,'' Congressional Research Service,
Vol.1, 567 (1991) (emphasis added).
EPA also believes that section 3001 gives it flexibility in order
to consider the need to regulate as hazardous those wastes that are not
managed in an unsafe manner (section 3001 requires that EPA decide, in
determining whether to list or otherwise identify a waste as hazardous
waste, whether a waste ``should'' be subject to the requirements of
Subtitle C). EPA's existing regulatory standards for listing hazardous
wastes reflect that flexibility by allowing specific consideration of a
waste's potential for mismanagement. (See Sec. 261.11(a)(3)
(incorporating the language of RCRA section 1004(5)(B)) and
Sec. 261.11(c)(3)(vii) (requiring EPA to consider plausible types of
mismanagement)). Where mismanagement of a waste is implausible, the
listing regulations do not require EPA to classify a waste as
hazardous, based on that mismanagement scenario.
Two decisions by the U.S. Court of Appeals for the District of
Columbia Circuit provide potential support for the approach to defining
hazardous waste, in Edison Electric Institute v. EPA, 2 F.3d 438, (D.C.
Cir. 1993) the Court remanded EPA's RCRA Toxicity Characteristic
(``TC'') as applied to certain mineral processing wastes because the TC
was based on modeling of disposal in a municipal solid waste landfill,
yet EPA provided no evidence that such wastes were ever placed in
municipal landfills or similar units. This suggests that the Court
might approve a decision to exempt a waste from Subtitle C regulation
if EPA were to find that mismanagement was unlikely to occur. In the
same decision the Court upheld a temporary exemption from Subtitle C
for petroleum-contaminated media because such materials are also
subject to Underground Storage Tanks regulations under RCRA Subtitle I.
The court considered the fact that the Subtitle I standards could
prevent threats to human health and the environment to be an important
factor supporting the exemption. Id. At 466. In NRDC v. EPA, 25 F.3d
1063 (D.C. Cir. 1994) the Court upheld EPA's finding that alternative
management standards for used oil promulgated under section 3014 of
RCRA reduced the risks of mismanagement and eliminated the need to list
used oil destined for recycling. (The Court, however, did not consider
arguments that taking management standards into account violated the
statute because petitioners failed to raise that issue during the
comment period.)
The Agency believes, therefore, that EPA and the States may
consider site-specific management controls when making contained-in
decisions pursuant to proposed Part 269. EPA believes that this
approach is especially appropriate in the Part 269 context, because of
the significant level of oversight generally given to cleanup actions.
Management controls that are tailored to site-specific
[[Page 18798]]
circumstances and imposed in enforceable documents, and State or EPA
oversight of cleanup activities, would ensure that the site-specific
management controls that the Director relied upon in making each
contained-in decision would continue to be implemented. In addition
(although EPA is not proposing to require it as a federal matter),
States may want to consider making such contained-in decisions
conditional; i.e., media would only be considered nonhazardous so long
as they were managed in the manner considered by the Director in making
the contained-in decision. Deviations (any, or specific ones) would
result in a reversion to Subtitle C regulation.
EPA specifically requests comments on the following: (1) Should the
Agency specify a list of criteria to consider; (2) should the Agency
prepare decision factors as guidance; (3) should the Agency promulgate
decision factors as part of the final rule; (4) are the above decision
factors appropriate for making these decisions; (5) if so, should the
criteria listed above be more or less specific regarding the conditions
that would allow or preclude contained-in decisions; (6) are there
other factors the Director should consider when making contained-in
decisions, in addition to those listed above; and (7) should there be
fewer factors to consider?
b. Issues associated with hazardous debris. When EPA promulgated
land disposal treatment standards for hazardous debris, it also
codified the contained-in principle for debris contaminated with listed
hazardous waste. (See 57 FR 37194, 37221, (August 18, 1992)). At the
time EPA codified the contained-in principle for hazardous debris, it
was the Agency's practice to make contained-in decisions at ``health-
based,''\10\ levels, thus a decision that debris no longer contain
hazardous waste would clearly also constitute a ``minimize threat''
determination for purposes of RCRA section 3004(m). Therefore,
contained-in decisions under 40 CFR 260.3(f)(3) also eliminate the duty
to comply with the land disposal restriction requirements of 40 CFR
Part 268. EPA requests comments on whether the contained-in principle
codified for hazardous debris is adequate or whether the contained-in
policy should be applied to debris in the same way today's proposed
rule applies it to hazardous contaminated media. For example, should
contained-in decisions for debris incorporate the Bright Line concept?
If a Bright Line is established for debris, should it be the same as
the Bright Line in today's proposed rule for hazardous contaminated
media or would some other Bright Line values or methodology be more
appropriate for debris? Are there issues associated with requiring that
debris be tested to determine if it has constituent concentrations
greater than Bright Line concentrations? Is testing routinely too
complicated for debris matrices? Should contained-in decisions for
debris be based on determinations made for media co-located with the
debris (i.e., if debris were located in the same area as media that was
determined not to contain hazardous wastes, should the debris be
presumed not to contain hazardous wastes)? Similarly, if debris is
located in the same area as media that have constituent concentrations
less than Bright Line concentrations, should the debris be presumed to
also be below the Bright Line?
---------------------------------------------------------------------------
\10\ See memoranda discussed in section (V)(A)(4)(a) of today's
preamble.
---------------------------------------------------------------------------
Alternatively, should the Director be able to make contained-in
decisions, as they are described in today's proposed rule, without
application of the Bright Line to debris (as we are proposing for
sediment? (See preamble (V)(A)(4)(c)). If allowed, should these
contained-in decisions replace the existing contained-in decisions
available for debris or should the existing contained-in decisions be
maintained with non-Bright Line contained-in decisions (as discussed in
today's proposed rules addressing sediments--see preamble (V)(A)(4)(c))
available for debris managed under a RMP? Are other combinations of the
existing debris contained-in decision provisions and the contained-in
decision provision for media in today's proposed rule appropriate?
While today's proposed rule does not include changes to the
existing contained-in principle as applied to debris contaminated with
listed hazardous waste, EPA could include revisions to the standard in
response to public comment. Issues associated with hazardous debris and
the possibility of including debris in the final Part 269 rules are
also discussed in sections (V)(C)(10) and (V)(A)(2) of today's
preamble.
c. The Bright Line. One of the key features of the ``Harmonized
Approach'' developed through the FACA process was the concept of a
``Bright Line.'' The Bright Line would divide contaminated media into
two different categories, which would be subject to two different
regulatory regimes. Although straightforward in concept, the Agency has
found it challenging to establish a set of numbers to serve this
purpose.
As conceived by the FACA Committee, and presented in Appendix A to
today's proposal, the Bright Line is a set of constituent-specific,
risk-based concentration levels. In agreeing on a Bright Line approach,
the FACA Committee anticipated that a substantial proportion of
contaminated media would fall below the Bright Line, and thus be
eligible, at the Director's discretion, for flexible, site-specific
requirements (non-Subtitle C) set by the overseeing Agency. At the same
time, the FACA Committee agreed that the Bright Line should ensure that
very highly contaminated media (traditionally considered ``hot spots'')
be subject to uniform national protective standards (e.g., treatment).
EPA believes that the Bright Line values presented in today's proposal
are a reasonable attempt to balance both of these important objectives.
As originally conceived, the Bright Line was intended to represent
in some manner the relative risk posed by contaminated media. Simply
put, media contaminated above Bright Line concentrations should pose
higher risks than media below the Bright Line under a given exposure
scenario. Since the Bright Line is only an indicator of relative risk,
the levels should not be interpreted as representing what is protective
or ``clean.'' The actual risk of any particular contaminated medium
depends on the circumstances by which human or environmental receptors
may be exposed to the medium. EPA wishes to emphasize that Bright Line
concentrations are not cleanup levels. The Bright Line simply is a
means of identifying which regulatory regime may be appropriate for the
contaminated media at a cleanup site.
The Agency believes that the management of contaminated media would
be conducted in a protective manner under either of the regulatory
schemes that would be established by the rule. The underlying
assumption is that managing contaminated media under the HWIR-media
rule would eliminate significant exposures to humans or ecological
receptors. This is because the overseeing agency's presence ensures
that media will be managed in a way that directly addresses the risk
posed by site-specific circumstances. Thus, protection of human health
and the environment can be ensured by applying either the national
standards for media that contain hazardous waste, or the site-specific
standards specified by the overseeing agency for media, which the
overseeing agency has determined do not contain hazardous waste, based
on the proposed management standards
[[Page 18799]]
identified in the RMP. Thus, in establishing Bright Line
concentrations, EPA finds it reasonable to consider the potential
effect of different sets of Bright Line concentrations in terms of the
proportional volumes of media that would fall above and below the
Bright Line. EPA believes that unless a substantial amount of
contaminated media are eligible for site-specific decision-making, the
disincentives for clean-up will not be eliminated (therefore resulting
in greater overall risk to human health and the environment).
Thus, EPA's goal was to develop Bright Line concentrations that
would remove a significant amount of contaminated media from Subtitle C
jurisdiction, while ensuring that ``hot spots'' would remain subject to
mandatory national standards. In deciding how to determine such levels,
the Agency considered several approaches that included selecting
concentrations based solely on volume. This approach, however, was
rejected because there was no way to account for the relative degree of
risk posed by different constituents. In other words, because some
constituents are more hazardous than others at the same concentration,
a Bright Line based purely on volume would not account for this
difference.
EPA, therefore, wanted to set Bright Line concentrations for
different constituents at different levels in order to account for this
variance in relative risk. In order to do this, EPA needed to consider
a potential exposure scenario that would account for the difference in
relative risk of these different constituents. Because risk occurs only
when there is a chance of exposure, at least one set of exposure
assumptions would be necessary to establish the Bright Line.
Since one of the goals of the Bright Line was to identify the most
highly contaminated media, the FACA Committee recommended using
10-3 as a benchmark for setting the Bright Line. Therefore, the
Bright Line values in Appendix A were based on a 10-3 risk level
for carcinogenic constituents (using the assumptions described above),
and a health index of 10 for non-carcinogens, (that is, 10 x the
concentration at which adverse health effects occur) according to
certain exposure assumptions. This approach is consistent with the
Superfund Principle Threats concept which uses 10-3 as a factor to
identify the principle threats at Superfund sites.
Describing the Bright Line theory was relatively easy compared with
determining Bright Line concentrations for all media which would be
subject to today's Part 269 proposal. Today's rule proposes to define
soil, ground water, surface water, and sediments as media. However, the
potential exposure assumptions that could be used to determine Bright
Line concentrations vary for different types of media. Therefore, EPA
established two sets of Bright Line values, one for soils, and one for
ground water and surface water.
Today's proposed rule does not include Bright Line numbers for
contaminated sediments. The amount of sediment that is classified as
RCRA hazardous is very low. Thus, EPA proposes that site-specific
contained-in decisions be made for hazardous contaminated sediments.
The Agency requests comments on whether to develop a Bright Line
specifically for contaminated sediments. The Agency also requests
comments on whether it would be appropriate to use the Bright Line for
soil for sediments.
Bright Line concentrations for soils. In setting the Bright Line
for soils, EPA chose to use exposure scenarios and assumptions that
were developed for the Superfund Soil Screening Levels (SSLs), because
that effort used standard risk scenarios that have been widely used and
accepted by the Agency (and by many States). The SSLs were developed
for a purpose different from the Bright Line; 11 however, the
exposure scenarios used in that effort are good indicators of relative
risk for developing Bright Line values.
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\11\ Superfund Soil Screening Levels (SSLs) were developed as a
screening tool to determine when further investigation is necessary
at Superfund sites. Because the SSLs are intended to be
conservative, and trigger investigation whenever prudent, they are
set at a 10-6 level for carcinogens. For more information on
SSLs, call David Cooper (703) 603-8763.
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The SSLs are based on three human exposure scenarios; direct
contact ingestion, inhalation, and drinking contaminated ground water.
Each scenario is based on a specific set of assumptions for such things
as body weight, frequency of exposure, daily intake rates, and other
factors. The inhalation pathway also uses certain models to calculate
wind dispersion and the uptake of airborne contaminants by human
receptors.
Today's proposed Bright Line numbers for soils are based on only
two of those human exposure scenarios--direct contact ingestion and
inhalation. The Bright Line value for each constituent is based on
whichever pathway yields the more conservative (i.e., lower)
concentration. EPA recognizes that protection of ground water is one of
RCRA's major goals and that many of the Subtitle C design and operating
standards were developed to protect ground water resources. Therefore,
EPA considered the possibility of using the ground water exposure
pathway in setting Bright Line concentrations for soils. However, the
migration of contaminants from soils to ground water is fundamentally
site-specific, and influenced by a number of site-specific factors such
as depth to ground water; soil porosity; carbon content and other soil
characteristics; amount of rainfall; solubility of the contaminants;
and numerous other site- and constituent-specific conditions. The
Agency has found less variability in fate and transport potential for
inhalation and ingestion exposures in residential settings.
EPA is reluctant to use a greatly simplified ground water model
that would not take any site-specific or constituent-specific factors
into account. In order to address concerns posed to ground water on a
more appropriate site-specific basis, EPA prefers to allow for
consideration of ground water risks in making site-specific decisions
regarding either the contained-in decision and/or the site-specific
management requirements. Given the overseeing Agency's discretion to
determine these standards on a site-specific basis, and given that EPA
believes that site-specific decisions are most appropriate for ground
water risk decisions, the Agency has proposed that the ground water
exposure pathway should not be considered in setting the national
Bright Line values for soils. Finally, EPA proposes two considerations
to overlay the soil Bright Line numbers. EPA proposes to cap the Bright
Line values at 10,000 ppm, equivalent to 1% of the volume of the
contaminated media. EPA believes that it is reasonable to classify
media as highly contaminated if 1% of the volume of media is
contaminated with a particular constituent. Therefore capping the
Bright Line at 10,000 ppm is consistent with the intention that the
Bright Line distinguish between highly contaminated and less
contaminated media. The second cap on the soil Bright Line values is
the saturation limit (Csat). EPA believes it is sound science to
compare the concentrations developed through the inhalation and
ingestion risk scenarios to the actual concentration that could
physically saturate the soil. If the Csat was lower than the
concentrations from the inhalation or ingestion scenarios, EPA set the
Bright Line concentration at the Csat. For further details on specific
assumptions and methodologies used to
[[Page 18800]]
determine the Bright Line values for soils, see Appendix A-1.
The Agency also considered several alternatives for establishing
exposure assumptions for soil Bright Line numbers. These alternatives
are discussed below. Estimates of the impacts of each alternative (in
terms of volumes of media exempted) are all based on a 10-3 risk
for carcinogens, and a health index of 10 for non-carcinogens (that is
10 x the concentration at which adverse health effects occur).
Alternative #1--Bright Line for soils based on inhalation,
ingestion, and migration to ground water. In addition to inhalation and
ingestion pathways, this alternative would use a generic model to
derive soil levels that, given certain fate and transport assumptions,
would result in transfer of contaminants in the soils to ground water
at or below drinking water standards (i.e., maximum concentration
levels, or MCL's). EPA did not choose this alternative primarily
because of the site-specific variability of calculating ground water
exposure scenarios (as discussed above). In addition, this approach
would result in Bright Line numbers that were considerably lower than
those in the proposed option. The Agency estimated that under this
alternative, approximately 50 percent of contaminated media would fall
below the Bright Line, compared to 70 to 75 percent under the proposed
option.
Alternative #2--Bright Line for soils based on inhalation and
ingestion pathways, with concentrations calculated on a site-specific
basis for the soil-to-ground water pathway. This option would yield
Bright Line numbers that would approximate more closely ground water
risks for each site. However, it would have the disadvantage of
requiring considerable data gathering and analysis simply to calculate
Bright Line concentrations, and these concentrations would obviously
differ from site to site. This contradicts the idea of the Bright Line
as ``bright''--i.e., an easily referenced set of numbers that can be
applied in a standard fashion. However, since Bright Line numbers would
vary widely across the range of cleanup sites, volume estimates for
this alternative are not possible to calculate.
Alternative #3--Bright Line numbers for soils based on a
multipathway analysis. Under this alternative, numerous exposure
pathways would be considered for each constituent, and Bright Line
concentrations would be set for the most conservative pathway (i.e.,
the pathway that resulted in the lowest concentration level). In some
respects this approach would be consistent with the multipathway
approach being used in the HWIR proposed rule for as-generated wastes
(60 FR 66344-469, Dec. 21, 1995). However, the Bright Line is intended
for a very different purpose than the ``exit levels'' being developed
for that proposed rule. For instance, the exit levels in the HWIR-Waste
rule (discussed in section (II)(B) of this preamble) generally assume
that exited wastes will not be subject to any management requirements,
whereas this proposal assumes that these wastes will be managed
protectively under State/EPA oversight. In addition, the resulting
Bright Line values would be much lower than those proposed today, thus
much less media would be regulated ``below the line.''
Bright Line concentrations for ground water and surface water.
Today's proposed rule also establishes Bright Line values specifically
for contaminated ground water. (See Appendix A-2 and discussion below).
As with contaminated soils, highly-concentrated, contaminated ground
water would be subject to specific national management standards, while
less-contaminated ground water could be managed according to site-
specific requirements imposed by the State or EPA.
To set Bright Line concentrations for ground water and surface
water (Appendix A-2), EPA used standard exposure assumptions for human
ingestion of contaminated water. EPA believes that it is appropriate to
use the same Bright Line values for surface water and ground water. And
for the same reasons discussed above for soils, the Agency believes a
multi-pathway approach, or ``actual risk'' approach is not necessary
for setting Bright Line concentrations for ground water and surface
water.
EPA has used the same philosophical approach for the ground water/
surface water Bright Line as it has used for soils, by analyzing
relative risk and relying on the oversight of authorized States or EPA
to ensure that hazards are addressed on a site-specific basis. In
addition, EPA used a 10,000 ppm cap for the ground water/surface water
Bright Line, just as for the soil Bright Line. This is explained in the
soil Bright Line section of the preamble. Finally, if the
concentrations from the ingestion of contaminated water were below the
detection limits for that constituent in water (the EQC), EPA set the
Bright Line at the EQC. More details on the specific assumptions and
methodologies used to determine these concentrations are included in
Appendix A-2.
Issues common to both sets of Bright Line numbers. In developing
today's proposed Bright Line concentrations, some stakeholders said
that EPA would need to calculate a number of additional direct and
indirect pathways to evaluate the relative risks of contaminated media
completely. The stakeholders also said that the Agency would need to
predict risks to ecological receptors (i.e., plants and animals) as
well as human health risks. EPA, however, does not believe that
evaluation of additional pathways is necessary. The pathways selected
already provide a sufficient basis for distinguishing relatively lower-
risk contaminated media from relatively higher-risk media. The
evaluation of other pathways and receptors would be important and, in
some cases, necessary if the Bright Line represented ``safe'' levels of
contamination. As explained above, however, the Bright Line serves no
such purpose. It merely identifies which of two regulatory schemes
would apply to certain contaminated media. If site-specific factors
demonstrate that a decision that media no longer contain hazardous
wastes, would be inappropriate, then the overseeing agency has the
discretion not to make such a determination.
Some stakeholders have voiced concerns about the land use
assumptions that were used to set the Bright Line. The SSLs used
residential land use assumptions; therefore, residential land use
assumptions form the basis for the proposed Bright Line for soils. EPA
recognizes that the residential land use assumptions that underlie the
ingestion and inhalation exposure pathways used for today's Bright Line
values for soil may be inappropriate for managing risks at many sites
that would be subject to these HWIR-media regulations. However, since
the purpose of using risk assessment to develop the Bright Line is to
differentiate between the relative risks of constituents, and not to
establish the risks posed at specific sites, either residential or
industrial assumptions would have been equally appropriate. Since the
Agency's residential risk assessment methodology is more developed than
the industrial methodology, the Agency chose to use residential
assumptions for developing the Bright Line. The Bright Line for ground
water and surface water does not include assumptions about land use.
(See discussion above).
Request for comment. EPA solicits comments on the approaches used
to develop today's proposed Bright Lines. The Agency also requests
comment on the alternatives described above, as well
[[Page 18801]]
as any other possible approaches to developing the Bright Line.
In addition, EPA requests comments on whether it is necessary to
have a Bright Line at all. If there were no Bright Line, all media
would be eligible for contained-in decisions by the overseeing agency
on a site-specific basis. Alternatively, the ``unitary approach,''
discussed in section VI of this preamble, would eliminate the Bright
Line, and instead would exempt all cleanup wastes managed under a RMP
from Subtitle C requirements.
Technical methodology. As discussed above, the technical
methodologies used in calculating Bright Line concentrations for soil
ingestion and inhalation are those that were used to develop ``soil
screening levels'' for contaminated sites (59 FR 67706, December 30,
1994). In the proposed soil screening level guidance, values for the
soil-to-ground water pathway would generally be calculated with data
derived from site-specific factors and conditions, although generic
values for this pathway would be presented in situations where site-
specific data were unavailable. These technical methods and formulae
are available for review in the docket for this rulemaking, and in the
docket for the soil screening level proposal since they support both
rules.
EPA requests comments on the methods, formulae, and technical
underpinnings used for this rulemaking. Comments could include
information on particular constituents that could change proposed
Bright Line concentrations, information that may be used to determine
Bright Line numbers for constituents that currently do not have Bright
Line numbers. Commenters should keep in mind that the Agency's
objective is to provide regulatory relief by encouraging contaminated
media with a lower degree of risk to exit from Subtitle C regulation--
provided that adequate safeguards exist to protect human health and the
environment.
EPA has often found it necessary to propose sets of risk-based
numbers to address contaminated media, for example; Subpart S action
levels, (55 FR 30798, July 27, 1990), Superfund Soil Screening Levels
(see below), and today's proposed rule. Since the Agency's
understanding of risk assessment and the science surrounding risk based
numbers is constantly developing, EPA has realized that almost as soon
as risk-based numbers are published, they can become outdated. As a
very current example, today EPA is proposing Bright Line concentrations
based, in part, on the Superfund Soil Screening Levels (EPA/9355.4-
14FS, EPA/540/R-94/101 PB95-963529 (December 1994)). After today's
proposed Bright Line concentrations were calculated, but before this
proposal was published, some of the technical inputs used to calculate
the Superfund Soil Screening levels were adjusted in response to public
comments (e.g., volatilization factors, cancer slope factors, etc.).
EPA did not h
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