Hazardous Remediation Waste Management Requirements (HWIR-media)

SUMMARY: As part of President Clinton's March 1994 environmental

regulatory reform initiative, the United States Environmental

Protection Agency (EPA) is issuing new requirements for Resource

Conservation and Recovery Act (RCRA) hazardous remediation wastes

treated, stored or disposed of during cleanup actions. These new

requirements make five major changes: First, they make permits for

treating, storing and disposing of remediation wastes faster and easier

to obtain; second, they provide that obtaining these permits will not

subject the owner and/or operator to facility-wide corrective action;

third, they create a new kind of unit called a ``staging pile'' that

allows more flexibility in storing remediation waste during cleanup;

fourth, they exclude dredged materials from RCRA Subtitle C if they are

managed under an appropriate permit under the Marine Protection,

Research and Sanctuaries Act or the Clean Water Act; and fifth, they

make it faster and easier for States to receive authorization when they

update their RCRA programs to incorporate revisions to the Federal RCRA

regulations.

DATES: These final regulations are effective on June 1, 1999.

ADDRESSES: Supporting materials are available for viewing in the RCRA

Information Center (RIC), located at Crystal Gateway I, First Floor,

1235 Jefferson Davis Highway, Arlington, VA. The Docket Identification

Number is F-98-MHWF-FFFFF. The RIC is open from 9 a.m. to 4 p.m.,

Monday through Friday, excluding Federal holidays. To review docket

materials, it is recommended that the public make an appointment by

calling (703) 603-9230. The public may copy a maximum of 100 pages from

any regulatory docket at no charge. Additional copies cost $0.15/page.

The index and some supporting materials are available electronically.

See the Supplementary Information section for information on accessing

them.

FOR FURTHER INFORMATION CONTACT: For general information, contact the

RCRA Hotline at (800) 424-9346 or TDD (800) 553-7672 (hearing

impaired). In the Washington, DC, metropolitan area, call (703) 412-

9810 or TDD (703) 412-3323.

For more detailed information on specific aspects of this

rulemaking, contact Michael Fitzpatrick, Office of Solid Waste 5303W,

U.S. Environmental Protection Agency, 401 M Street, SW, Washington, DC

20460, (703) 308-8411, [email protected].

SUPPLEMENTARY INFORMATION: The index and supporting materials are

available on the Internet. Follow these instructions to access the

information electronically:

WWW: http://www.epa.gov/epaoswer/hazwaste/id/hwirmdia.htm

Outline

The information presented in this preamble is organized as follows:

I. Overview Information

A. Why do This Rule and Preamble Read so Differently From Other

Regulations?

B. What Law Authorizes This Rule?

II. Background Information

A. What Problems Does Today's Rule Address?

1. Response-oriented Programs Have Different Objectives and

Incentives Than Prevention-oriented Programs

2. LDRs, MTRs, and Permitting Raise Problems When Applied to

Remediation Wastes

B. How has EPA Tried to Solve These Problems in the Past?

C. How did the Proposed Rule Attempt to Solve These Problems?

1. The ``Bright Line'' Approach for Contaminated Media

2. Other Options Within the ``Bright Line'' Approach

3. The ``Unitary'' Approach--An Alternative to the ``Bright

Line'

D. What General Comments did EPA Receive About the Two Major

Proposed Options?

E. What did EPA Decide to do After Considering Those Comments?

III. Definitions Used in this Rule (Sec. 260.10)

A. Corrective Action Management Unit (CAMU)--Changes to the

Existing Definition, and Changes to the CAMU and Temporary Unit

Regulations at Secs. 264.552(a) and 264.553(a)

1. Definition of CAMU

2. Secs. 264.552 and 264.553

B. Remediation Waste--Changes to the Existing Definition

C. Remediation Waste Management Site and Facility--New

Requirements for Remediation Waste Management Sites

1. EPA Changed the Term From ``Media Remediation Site'' in the

Proposal to ``Remediation Waste Management Site'' in the Final Rule

2. EPA has Created Different Requirements for Remediation Waste

Management Sites than for Facilities Managing ``As-generated''

Hazardous Wastes

3. Differences Between the Proposed Definition of Media

Remediation Site and the Final Definition of Remediation Waste

Management Site

4. Remediation Waste Management Sites are Not Subject to

Facility-wide Corrective Action

5. Remediation Waste Management Sites are Excluded From Only the

Second Part of the Definition of Facility

6. Facility

D. Staging Pile--A New Kind of Unit

1. Differences Between the Definition of Staging Pile and the

Existing Definition of Pile

2. Differences Between the Proposed Definition of Remediation

Pile and the Final Definition of Staging Pile

E. Miscellaneous Unit--An Edit to the Existing Definition

IV. Information on Remedial Action Plans (RAPs) (Secs. 270.2, 270.68

and 270.80-270.230)

General Information About RAPs

A. What are EPA's Objectives for RAPs?

B. What is a RAP? (Secs. 270.68, 270.2 and 270.80)

1. The Differences Between a RAP and a Traditional RCRA Permit

2. Some Advantages of a RAP Compared to a Traditional RCRA

Permit

3. Differences Between ``Remediation Management Plans'' in the

Proposal and ``Remedial Action Plans'' in the Final Rule

C. When do I need a RAP? (Sec. 270.85)

1. What Activities Require RCRA Permits?

D. Does my RAP Grant me Any Rights or Relieve me of Any

Obligations? (Sec. 270.90)

Applying for a RAP

E. How do I Apply for a RAP? (Sec. 270.95)

F. Who Must Obtain a RAP? (Sec. 270.100)

G. Who Must Sign an Application for a RAP? (Sec. 270.105)

H. What Must I Include in my Application for a RAP?

(Sec. 270.110)

1. Description of the Specific Content Requirements

2. Comments on the Contents of RAPs

3. Contents of RAPs in the Proposal that are Not Required in the

Final Rule

I. What if I Want to Keep this Information Confidential

(Sec. 270.115)

J. To Whom Must I Submit my RAP Application? (Sec. 270.120)

K. If I Submit my RAP Application as Part of Another Document,

What Must I do? (Sec. 270.125)

1. Provisions From the Proposal that are Not Included in the

Final Rule

Getting a RAP Approved

L. What is the Process for Approving or Denying my Application

for a RAP? (Sec. 270.130)

M. What Must the Director Include in a Draft RAP? (Sec. 270.135)

1. Provisions of the Proposal that are Not in the Final Rule

N. What Else Must the Director Prepare in Addition to the Draft

RAP or Notice of Intent to Deny? (Sec. 270.140)

[[Page 65875]]

O. What are the Procedures for Public Comment on the Draft RAP

or Notice of Intent to Deny? (Sec. 270.145)

1. A Description of the Requirements

2. Commenters Requested More Flexibility

P. The Importance of Public Involvement in the RAP Process

Q. How Will the Director Make a Final Decision on my RAP

Application? (Sec. 270.150)

1. A Description of the Requirements

2. Comments on the Proposed Requirements

R. May the Decision to Approve or Deny my RAP Application be

Administratively Appealed? (Sec. 270.155)

S. When Does my RAP Become Effective? (Sec. 270.160)

T. When May I Begin Physical Construction of New Units Permitted

Under the RAP? (Sec. 270.165)

How May my RAP be Modified, Revoked and Reissued, or Terminated?

U. After my RAP is Issued, How May it be Modified, Revoked and

Reissued, or Terminated? (Sec. 270.170)

V. For What Reasons May the Director Choose to Modify my Final

RAP? (Sec. 270.175)

W. For What Reasons May the Director Choose to Revoke and

Reissue my Final RAP? (Sec. 270.180)

X. For What Reasons May the Director Choose to Terminate my

Final RAP, or Deny my Renewal Application? (Sec. 270.185)

Y. May the Decision to Approve or Deny a Modification,

Revocation and Reissuance, or Termination of my RAP be

Administratively Appealed? (Sec. 270.190)

Z. When Will my RAP Expire? (Sec. 270.195)

AA. How May I Renew my RAP if it is Expiring? (Sec. 270.200)

BB. What Happens if I Have Applied Correctly for a RAP Renewal

But Have Not Received Approval by the Time my Old RAP Expires?

(Sec. 270.205)

Operating Under Your RAP

CC. What Records Must I Maintain Concerning my RAP?

(Sec. 270.210)

DD. How are the Time Periods in the Requirements in this Subpart

and my RAP Computed? (Sec. 270.215)

EE. How May I Transfer my RAP to a New Owner or Operator?

(Sec. 270.220)

FF. What Must the State or EPA Region Report About Non-

compliance with RAPs? (Sec. 270.225)

Obtaining a RAP for an Off-site Location

GG. May I Perform Remediation Waste Management Activities Under

a RAP at a Location Removed From the Area Where the Remediation

Wastes Originated? (Sec. 270.230)

HH. Comparison of the RAPs Process to that for Traditional RCRA

Permits

V. Requirements Under Part 264 for Remediation Waste Management

Sites (Sec. 264.1(j))

A. Comments on Applying Part 264 Standards to Remediation Waste

Management Sites

B. EPA's Response to These Comments

C. EPA is Providing Relief From Part 264, Subparts B, C, and D

VI. Application of RCRA Sections 3004(u) and (v), and Sec. 264.101

to Remediation Waste Management Sites (Sec. 264.101(d))

VII. Staging Piles (Secs. 260.10 and 264.554)

A. Introduction and Background

B. A Summary of Principal Changes From the Proposal

1. Changes From the Proposal

2. Consistent With the Proposal

C. What is a Staging Pile? (Sec. 264.554(a))

D. How is a Staging Pile Designated? (Sec. 264.554(b))

E. What Information Must I Provide to get a Staging Pile

Designated? (Sec. 264.554(c))

F. What Performance Criteria Must the Staging Pile Satisfy?

(Sec. 264.554(d))

1. Performance Standards for Staging Piles (Sec. 264.554(d)(1))

2. Decision Factors for Staging Piles (Sec. 264.554(d)(2))

G. May a Staging Pile Receive Ignitable, Reactive, or

Incompatible Wastes? (Sec. 264.554(e))

H. How do I Handle Incompatible Remediation Wastes in a Staging

Pile? (Sec. 264.554(f))

I. Are Staging Piles Subject to Land Disposal Restrictions

(LDRs) and Minimum Technological Requirements (MTRs)?

(Sec. 264.554(g))

J. How Long May I Operate a Staging Pile? (Sec. 264.554(h))

K. May I Receive an Operating Term Extension for a Staging Pile?

(Sec. 264.554(i))

L. What is the Closure Requirement for a Staging Pile Located in

a Previously Contaminated Area? (Sec. 264.554(j))

M. What is the Closure Requirement for a Staging Pile Located in

an Uncontaminated Area? (Sec. 264.554(k))

N. How May my Existing Permit (for Example, RAP), Closure Plan,

or Order be Modified to Allow me to Use a Staging Pile?

(Sec. 264.554(l))

O. Is Information About the Staging Pile Available to the

Public? (Sec. 264.554(m))

P. What is the Relationship Between Staging Piles, Corrective

Action Management Units, and the Area of Contamination Policy?

VIII. Corrective Action Management Units (CAMUs) (Sec. 264.552)

IX. Dredged Material Exclusion (Sec. 261.4(g))

A. What is the Dredged Material Exclusion?

B. Regulation of Dredged Material Under CWA and MPRSA

C. Dredged Material and RCRA Applicability

D. Determination of Regulatory Jurisdiction

E. Clarification of Future Practice

F. Comments on the Dredged Material Exclusion

G. Dredged Material as a Solid Waste

H. Clarification of Terms Related to Dredged and Fill Material

I. Normal Dredging Operations and the Exclusion

J. The Exclusion of Nationwide Permits

X. State Authority (Sec. 271.1(j))

A. Applicability of Rules in Authorized States

B. Effect on State Authorization

1. Staging Piles

C. Authorization for Today's Rule

D. Authorization of State Non-RCRA RAP Authorities

XI. Abbreviated Authorization Procedures (Sec. 271.21(h))

A. Existing Authorization Process

B. Summary of Comments on the August 22, 1995 Proposal

C. Basis and Rationale for Today's New Procedures

D. Rules Listed in Table 1 to Sec. 271.21 to Which the

Abbreviated Procedure Applies

E. Use of Today's Abbreviated Procedure for the Authorization of

Previously Promulgated Rules

F. Final Abbreviated Authorization Procedures

G. Authorization Application Requirements

H. Procedures for Reviewing and Approving Applications

I. EPA's Decision to Not Promulgate Proposed Category 1 and 2

Procedures

J. Improvements to the Existing Authorization Process

XII. Conforming Changes (Secs. 265.1(b), 268.2(c), 268.50(g),

270.11(d), and 270.42 Appendix I)

XIII. How Does Today's Rule Relate to Other EPA Regulations,

Initiatives and Programs?

A. Subpart S Initiative

B. Suspension of the Toxicity Characteristic for Non-UST

Petroleum Contaminated Media and Debris

C. Deferral of Petroleum Contaminated Media and Debris from

Underground Storage Tank Corrective Actions

D. Hazardous Waste Identification Rule (HWIR-waste) (May 20,

1992, and December 21, 1995)

E. CERCLA

F. Legislative Reforms

G. Brownfields

H. Land Disposal Restrictions (Part 268)

XIV. When Will the Final HWIR-media Rule Become Effective?

XV. Regulatory Requirements

A. Assessment of Potential Costs and Benefits

1. Executive Order 12866

2. Background

3. Need for Regulation

4. Assessment of Potential Regulatory Costs

B. Executive Order 12898: Environmental Justice

C. Unfunded Mandates Reform Act

D. Executive Order 12875: Enhancing the Intergovernmental

Partnership

E. Regulatory Flexibility Act

F. Paperwork Reduction Act

G. National Technology Transfer and Advancement Act

H. Submission to Congress and the General Accounting Office

I. Executive Order 13045: Protection of Children from

Environmental Health Risks and Safety Risks

J. Executive Order 13084: Consultation and Coordination with

Indian Tribal Governments

[[Page 65876]]

I. Overview Information

A. Why do This Rule and Preamble Read so Differently From Other

Regulations?

Today's regulatory language and accompanying preamble are written

in a ``readable regulations'' format. The authors tried to use active

rather than passive voice, plain language, a question-and-answer

format, the pronouns ``we'' for EPA and ``you'' for the owner/operator

(in the regulatory text), and other techniques to make it easier for

readers to find and understand the information in today's rule and

preamble.

This new format is part of the Agency's ongoing efforts at

regulatory reinvention, and may be unfamiliar to readers as it looks

very different from the existing regulatory text of the Parts affected

by today's rule. However, the Agency believes that this new format will

increase readers' abilities to understand the regulations, which should

then increase compliance, make enforcement easier, and foster better

relationships between EPA and the regulated community.

All of the requirements found in today's final regulations,

including those set forth in table format, constitute binding,

enforceable legal requirements. The plain language format used in

today's final regulations may appear different from other rules, but it

establishes binding, enforceable legal requirements just as those in

the existing regulations.

B. What Law Authorizes This Rule?

These regulations are finalized under the authority of sections

2002(a), 3001, 3004, 3005, 3006, 3007 and 7004 of the Solid Waste

Disposal Act of 1970, as amended by the Resource Conservation and

Recovery Act of 1976 (RCRA), as amended by the Hazardous and Solid

Waste Amendments of 1984 (HSWA), 42 U.S.C. 6912(a), 6921, 6924, 6925,

6926, 6927 and 6974.

II. Background Information

A. What Problems Does Today's Rule Address?

Currently, hazardous wastes managed during cleanup are generally

subject to the same RCRA Subtitle C requirements as newly generated

hazardous wastes. Often those Subtitle C requirements are not

appropriate for the cleanup scenario, as described below.

1. Response-oriented Programs Have Different Objectives and Incentives

Than Prevention-oriented Programs

Since 1980, EPA has developed a comprehensive regulatory framework

under Subtitle C of RCRA for identifying, generating, transporting,

treating, storing and disposing 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.

However, in the remediation programs, EPA wants to develop a regulatory

regime that encourages people to cleanup contaminated areas thereby

generating potentially large volumes of hazardous waste.

The RCRA regulations constitute minimum national standards for

managing hazardous wastes. With limited exceptions, 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. To ensure an adequate

level of protection nationally, the RCRA regulations have been

conservatively designed to ensure proper management of hazardous wastes

over a range of waste types, environmental conditions, management

scenarios, and operational contingencies. This causes remediation

activities to be subject to conservative, and often inappropriate

requirements. For example, all waste piles must have a leachate

collection and removal system under Sec. 264.251(a)(2). This is

appropriate when highly concentrated wastes will be stored in a pile

for an extended time, but may not be necessary for less-concentrated

wastes, or shorter-term activities, or cleanup actions when the level

of oversight is high. However, to account for any activities that may

take place nationally, EPA wrote the regulations conservatively to

require all waste piles to comply with these requirements, even when

they will contain less-concentrated waste for a short time. Nationally

applicable requirements must be written in this manner to provide

protective requirements for the highest risk activities that the

regulations allow.

As opposed to requirements designed for on-going waste management,

remediation activities often involve less-concentrated wastes, one-time

activities, and shorter-term activities. Remediation activities are

also conducted under close EPA or State oversight. However, the current

regulations do not allow EPA or the State to modify the requirements

for piles, or many other Subtitle C requirements, to make them more

appropriate for the specific circumstances of the remediation taking

place.

In administering current RCRA regulations for hazardous waste

generated during cleanup, EPA and States have recognized fundamental

differences in both incentives and objectives for prevention- and

response-oriented programs. In prevention-oriented programs, the

regulations require taking appropriate precautions against causing

contamination before an activity takes place, such as the regulations

that require liners and leachate collection systems. Also, because the

regulations provide an incentive to minimize waste production, from the

beginning, the activity is planned and managed to carefully control the

appropriate factors such as amount of waste produced, concentrations,

and handling practices to prevent unacceptable situations such as

releases. However, in administering remedial programs such as Superfund

and the RCRA Corrective Action program, EPA and the States already face

an unacceptable situation (contaminated sites) that must be remedied.

Response-oriented programs must address already existing problems.

Response-oriented programs cannot pre-determine the location of the

contamination, but must respond where contamination has already

occurred, which may be close to sensitive ecosystems or populated

areas. Response-oriented programs cannot control the volumes or

concentrations of remediation wastes, but must manage what wastes have

already been released into the environment in varying volumes,

concentrations and matrices. Often the site-specific situations facing

response-oriented programs make waste management difficult, such as

complex matrices and combinations of constituents of concern, or

concerns over on-site treatment or disposal units to manage the wastes

that must be cleaned up.

In a prevention-oriented system, if the community objected to

building new on-site units, the facility could decide not to engage in

business practices that would generate the waste that would need to be

managed. In the response-oriented situation, however, the facility (or

the regulatory agency) must deal with existing contamination, and must

find an acceptable response.

Also, remedial actions generally receive intensive government

oversight, and remedial decisions are made by a State or Federal Agency

only after they thoroughly investigate site-specific

[[Page 65877]]

conditions. In contrast, prevention-oriented hazardous waste

regulations are generally implemented independently by facility owner/

operators through complying with national regulatory requirements.

2. LDRs, MTRs, and Permitting Raise Problems When Applied to

Remediation Wastes

In the HWIR-media proposed rule, EPA identified the application of

three RCRA requirements to remediation wastes as the biggest problems

to address; Land Disposal Restrictions (LDRs), Minimum Technological

Requirements (MTRs), and permitting.

The LDRs (which appear in 40 CFR part 268) generally prohibit land

disposal (or ``placement'' in land-based units) of hazardous wastes

until the wastes have met the applicable treatment standards. Often

this placement is appropriate and desirable when managing remediation

wastes to excavate them from their current locations, and temporarily

store the wastes before on-site treatment, or to excavate the wastes

and accumulate enough volume to ship off-site cost effectively. By not

allowing temporary storage and accumulation in land-based units, the

LDRs can be a strong disincentive to excavating and managing

remediation waste. The staging pile provisions of today's final rule

address this issue by allowing temporary storage and accumulation of

remediation wastes in a staging pile without being subject to LDR.

Another example of the problems with LDRs in the cleanup scenario

is that contaminated media are often physically quite different from

as-generated process wastes. Contaminated soils often contain complex

mixtures of multiple contaminants and are highly variable in their

composition, handling, and treatability characteristics. For this

reason, treating contaminated soils can be particularly complex,

involving one or sometimes a series of custom-designed treatment

systems. It can be very difficult to treat contaminated soils to the

LDR treatment levels. The parts of the HWIR-media proposal that

addressed this issue have been finalized in the LDR Phase IV rule (63

FR 28556 (May 26, 1998)).

The MTR requirements were designed as preventative standards for

wastes generated through industrial processes. They were not designed

for the remedial context. For example, under 40 CFR Subpart F, surface

impoundments, waste piles, and land treatment units or landfills must

have specific detection, compliance monitoring programs, and corrective

action programs for potential groundwater contamination from the unit.

These are appropriate preventative requirements for units managing

process wastes. However, many cleanup actions involve short-term

placement of remediation wastes into a waste pile, and all of these

requirements may not be necessary. The staging piles provisions of

today's rule address this issue by allowing the Director to determine

appropriate design criteria for the staging pile based on the site-

specific circumstances such as the concentration of the wastes to be

placed in the unit and the length of time the unit will operate. EPA

also explained in the preamble to the CAMU rule additional reasons why

LDR and MTR requirements can be counterproductive when managing

remediation waste as opposed to as-generated process wastes. To read

about these additional reasons, see 58 FR 8658 (8659-8661)(February 16,

1993).

Finally, another area creating roadblocks is permitting. The time-

consuming process for obtaining a RCRA permit can delay cleanups,

thereby delaying the environmental and public health benefits of

cleaning up a contaminated site. For example, the traditional RCRA

permitting process requires the facility owner/operator to submit a

great deal of information on activities at the facility to EPA or the

State, and the permit must include terms and conditions to protect

against any improper waste management practices over the long-term

active life of an operating facility. Because of the large volume of

information submitted, these permits are huge documents and approval

often takes several years. However, in the remedial scenario, cleanup

activities are generally a one-time project; once the cleanup is

completed and the remediation waste is properly treated and disposed,

then the activities are completed. Also, these activities are limited

to addressing the contamination at the site, and therefore are often

more limited in scope than the operating practices of a facility that

is engaged in on-going waste treatment, storage and disposal. To

overcome the limitations discussed above from traditional RCRA permits,

the new Remedial Action Plans (RAPs) requirements in today's rule

streamline the process for receiving a permit for treating, storing and

disposing of remediation wastes, and require the facility owner/

operator to submit significantly less information than for a

traditional RCRA permit. However, the information submitted for a RAP

application and RAP terms and conditions must be sufficient to ensure

proper waste management of the remediation wastes involved during the

life of the cleanup activities.

Furthermore, a facility seeking a traditional RCRA permit to manage

remediation wastes on-site must investigate and cleanup their entire

facility (facility-wide corrective action). This requirement can deter

potential cleanups from happening at all. For instance, facility owners

and operators may wish to clean up a small portion of their facility

for any number of reasons, such as to avoid future liability, to free

the property for sale or other uses, or because they simply wish to

restore the environmental health of their property. However, they may

not be willing to take on the burden of investigating and cleaning up

their entire facility, when it is only a small portion they wish to

voluntarily clean up, and they may be reluctant to conduct the cleanup

under the RCRA corrective action program. Therefore, to encourage

cleanups, under today's final rule, facilities that need a RCRA permit

only to treat, store, or dispose of remediation wastes (remediation-

only facilities) are not subject to the facility-wide corrective action

requirement.

B. How Has EPA Tried to Solve These Problems in the Past?

EPA has tried to solve these problems in the past through a series

of regulations and policies; for example;

The ``Area of Contamination'' (AOC) policy;

The ``contained-in'' policy; and

The regulations for Corrective Action Management Units

(CAMUs), and temporary units.1

---------------------------------------------------------------------------

\1\ 61 FR 18780, 18782 (April 29, 1996), 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);

55 FR 8666, 8758-8760 (March 8, 1990); and 58 FR 8658 (February 16,

1993).

---------------------------------------------------------------------------

All of these regulations and policies help alleviate some of the

problems facing cleanups, but none have completely solved these

problems. (See the October 1997 report by the United States General

Accounting Office, ``Remediation Waste Requirements Can Increase the

Time and Cost of Cleanups.'' 2)

---------------------------------------------------------------------------

\2\ Hazardous Waste: Remediation Waste Requirements Can Increase

the Time and Cost of Cleanups, U.S. General Accounting Office, GAO/

RCED-98-4, October 1997.

---------------------------------------------------------------------------

The AOC policy allows important flexibility for activities done

within a contiguous contaminated area. For example, hazardous

remediation wastes may be consolidated or treated in situ

[[Page 65878]]

within an AOC without triggering the LDRs or MTRs. However, the AOC

policy does not address the permitting issues today's rule is

addressing, nor does it address LDR and MTR for wastes removed from an

AOC, or treated ex situ.

The contained-in policy defines when some contaminated media can be

considered to no longer ``contain'' hazardous waste. When EPA or an

authorized State determines that media do not ``contain'' hazardous

waste, RCRA does not generally pose a barrier to remediation because

permitting requirements, LDRs (generally), and MTRs do not apply to

media that do not contain hazardous waste. However, the contained-in

policy is limited to media only, and does not provide any flexibility

for other remediation wastes, nor does it provide needed flexibility

for highly concentrated media.

The CAMU and temporary unit rules provide much-needed flexibility

for unit-specific standards at cleanup sites. CAMUs and temporary units

are not subject to LDRs or MTRs. The requirements for these units are

set on a site-specific basis, depending on site-specific factors such

as the types of wastes being managed (for example, concentrations,

volumes, other characteristics) and the period of time the unit will

operate. However, CAMUs and temporary units do not address any of the

permitting issues that cause problems for remediation wastes.

Because each of these regulations or policies is limited in solving

the problems inherent to managing hazardous remediation waste under the

RCRA Subtitle C system, EPA felt it was necessary to propose additional

solutions.

C. How Did the Proposed Rule Attempt to Solve These Problems?

EPA recognized a continuing need for further reforms than the

regulations and policies discussed above had provided, and yet knew

that these reforms would be controversial. In 1993, EPA convened a

committee under the Federal Advisory Committee Act (FACA) to provide

recommendations to EPA on how to make these reforms. The FACA Committee

included representatives from environmental groups, regulated industry,

the waste management industry, States, and EPA. The FACA Committee met

numerous times between January 1993 and September 1994. EPA based the

options in the April 29, 1996 HWIR-media proposal on the

recommendations and discussions of the FACA Committee.

EPA presented several options for reforms in the HWIR-media

proposal. EPA presented two comprehensive options (the Bright Line and

the Unitary Approach), and requested comment on sub-options and issues

within those comprehensive options.

1. The ``Bright Line'' Approach for Contaminated Media

The first comprehensive option, which formed the basis for the

proposed rule, was the ``Bright Line'' option. The Bright Line option

would have been limited to ``contaminated media'' only. Contaminated

media was defined to include soils, groundwater, and sediments, but not

debris, nor other remediation wastes such as sludges. The Bright Line

option got its name from a ``line'' dividing more highly contaminated

media from less contaminated media. That Bright Line was a set of

constituent-specific concentrations based on the risks from those

constituents. Media found to contain constituents above these

concentrations would have remained subject to Subtitle C management

requirements (however, the proposal requested comment on some potential

modifications to those requirements), and media containing constituents

below the concentrations would have been eligible for a determination

that it no longer ``contained'' hazardous waste, thereby generally

removing it from Subtitle C jurisdiction.

The determinations of which media were and were not subject to

Subtitle C requirements were to be documented in a Remediation

Management Plan (RMP) approved by EPA or an authorized State. The RMP

would have been an enforceable document that would also have included

any requirements for managing media below the Bright Line, and would

have served as a RCRA Subtitle C permit for treatment, storage or

disposal of media above the Bright Line. The RMP process would have

been more streamlined than that required for RCRA permits obtained

under the current regulations, and also, at remediation-only

facilities, would not have required 3004(u) and (v) facility-wide

corrective action, as is required for all RCRA permits before today's

rule.

2. Other Options Within the ``Bright Line'' Approach

Other requirements that EPA proposed to modify were LDR treatment

standards for soils that remained subject to Subtitle C requirements,

standards applicable to on-site storage and/or treatment of cleanup

wastes during the life of the cleanup, and State authorization

requirements. New treatment standards would have applied to soils that

remained subject to LDRs under the Bright Line approach. EPA also

proposed a new unit called a ``remediation pile.'' Remediation piles

could have been used temporarily without triggering LDRs and MTRs, for

the on-site treatment or storage of remediation wastes subject to

Subtitle C. States picking up any revisions to their RCRA programs (the

proposal was not limited to the revisions to remediation waste

management programs) could have followed new streamlined authorization

procedures. Also, EPA proposed to withdraw the CAMU regulations if the

final HWIR-media rule would sufficiently replace the flexibility

currently available under the CAMU rule.

Finally, EPA proposed excluding dredged materials from Subtitle C

if they were managed under permits issued under the Clean Water Act

(CWA) or Marine Protection Research and Sanctuaries Act (MPRSA).

3. The ``Unitary'' Approach--An Alternative to the ``Bright Line''

As an alternative to the Bright Line approach, EPA requested

comment on the ``Unitary Approach.'' The Unitary Approach excluded all

remediation wastes (irrespective of the concentration of hazardous

constituents in the waste and including non-media remediation wastes)

managed under a Remedial Action Plan (RAP) (which was very similar to a

RMP) from Subtitle C management requirements and made them subject to

site-specific requirements in the RAP.

Again, EPA requested comment on the two main comprehensive options,

the Bright Line and the Unitary Approach, and on all the sub-issues,

such as the proposed elimination of CAMUs, and the new requirements for

remediation piles, LDR, RMPs and RAPs, dredged materials, and State

authorization.

D. What General Comments did EPA Receive About the Two Major Proposed

Options?

Some commenters supported the Bright Line option and thought it was

appropriate to distinguish between highly contaminated media and media

that were less contaminated, and to regulate them differently.

However, most commenters on the Bright Line option believed that

the Bright Line would be too difficult to implement, and therefore

should not be finalized. There were several elements of the Bright Line

option that commenters were concerned about implementing. One concern

was sampling to determine whether media was above or below the Bright

Line.

[[Page 65879]]

Concentrations of contaminants in environmental media typically are not

heterogeneous, and it is difficult to make assumptions about the

concentrations of large areas of contamination without taking many

samples.

Another concern was how to differentiate between media, debris, and

other remediation wastes, such as sludges. Commenters stated that often

these different types of remediation waste are all found at the same

site and they will all need to be managed, and it would be unduly

complicated to have to separate the different types of remediation

wastes and manage them separately under separate regulatory

requirements.

Also, commenters were concerned about the methodology that EPA used

to determine the Bright Line levels themselves. EPA received many

specific comments on the proposed Bright Line constituent specific

numbers, as well as the choice of which constituents were assigned

Bright Line numbers.

With regard to the Unitary Approach, many industry and State

commenters supported the Unitary Approach, saying that the flexibility

would greatly streamline cleanups and allow more appropriate decisions

for managing remediation waste. These commenters emphasized that

flexibility was needed so that States could develop cleanup programs

with oversight and public participation requirements specific to the

concerns, needs, and resources of individual States, and felt that the

Unitary Approach most closely addressed those concerns. However, some

commenters were concerned that the lack of any national requirements

was too open-ended and would not guarantee protectiveness. Commenters

were also concerned about the resources required for States and Regions

to make site-specific determinations of the appropriate management

requirements for remediation wastes at each different site.

Finally, commenters had many specific comments on the elements of

these options such as RAPs and RMPs, remediation piles, LDRs, etc.

Major comments and EPA's responses are summarized under those more

specific sections of this preamble, and all comments are answered

specifically in the ``response to comments'' document for today's rule.

E. What did EPA Decide to do After Considering Those Comments?

EPA has decided to promulgate only selected elements of the HWIR-

media proposal in today's rule, rather than go forward with a more

comprehensive approach as proposed. EPA plans to complement the

elements finalized today by leaving the CAMU regulations in place,

rather than withdrawing these regulations as proposed.

Although EPA conducted a lengthy outreach process before developing

the HWIR-media proposal and made every effort to balance the concerns

and interests of various stakeholder groups, public comment on the

proposal makes it clear that stakeholders fundamentally disagree on

many remediation waste management issues.

EPA agreed with commenters' concerns that the Bright Line approach

would be too difficult to implement, and that a Bright Line that would

satisfy commenters who wanted the Bright Line levels to consist of very

conservative levels would not sufficiently reform the system to remove

the existing barriers to efficient, protective remediation waste

management. EPA has concluded that pursuing broader regulatory reform

would be a time- and resource-intensive process that would most likely

result in a rule that would provoke additional years of litigation and

associated uncertainty. This uncertainty would be detrimental to the

program and have a negative effect on ongoing and future cleanups.

Based on these conclusions, the Agency has decided not to finalize

either the Bright Line or the Unitary Approach, and recognizes that a

purely regulatory response will not solve all of the remediation waste

management issues that HWIR-media was designed to solve.

While EPA believes the elements finalized today along with the

retention of the CAMU rule, will improve remediation waste management

and expedite cleanups, the Agency is also convinced that additional

reform is needed to expedite the cleanup program, especially to provide

greater flexibility for non-media remediation wastes like remedial

sludges, address certain statutory permitting provisions, and more

appropriate treatment requirements for remediation wastes (for example,

treatment that focuses on ``principal threats'' rather than all

underlying hazardous constituents). Therefore, the Agency continues to

support appropriate, targeted legislation to address application of

RCRA Subtitle C land disposal restrictions, minimum technological and

permitting requirements to remediation waste and will continue to

participate in discussions on potential legislation. If legislation is

not forthcoming, the Agency may reexamine its approach to remediation

waste regulation and may take additional administrative action.

The elements finalized in today's rule are:

Streamlined permitting for treating, storing and disposing

of remediation wastes generated at cleanup sites that, among other

things, eliminates the requirement for facility-wide corrective action

at remediation-only facilities;

A variation on the proposed remediation piles, called

staging piles, modified in response to public comments;

A RCRA exclusion for dredged materials managed under Clean

Water Act (CWA) or Marine Protection Research and Sanctuaries Act

(MPRSA) permits; and

Streamlined procedures for State authorization.

EPA also finalized, in a separate document (63 FR 28604 (May 26,

1998)), the LDR treatment standards specific to hazardous contaminated

soil that were proposed in the HWIR-media proposal. EPA is deferring

action on the Treatability Sample Exclusion Rule, that EPA requested

comments on expanding in the HWIR-media proposal at 61 FR 18817.

EPA will withdraw all other portions of the proposal, such as the

proposal under the Bright Line option to distinguish between lower- and

higher-risk contaminated media and give regulatory agencies the

flexibility to exempt lower-risk contaminated media from RCRA

requirements, and the portion of the proposal that proposed to withdraw

the CAMU rule.

Existing areas of flexibility for managing remediation waste, such

as the contained-in and AOC policies, and site-specific land disposal

restrictions treatability variances, continue to be available.

III. Definitions Used in this Rule (Sec. 260.10)

Some terms defined in today's rule may be difficult to understand

when discussed out of context of the rest of the rule; therefore,

readers may wish to read the preamble sections on RAPs and staging

piles before reading this section on definitions. To discuss related

terms together in this preamble, discussion of the definitions is not

in alphabetical order (which is how the terms appear in the rule

language). The section discusses:

First the revised definition of ``corrective action

management unit'' or ``CAMU,'' then

The definition of ``remediation waste,'' then

``Remediation waste management site'' and ``facility,''

then

``Staging pile,'' then finally,

``Miscellaneous unit.''

[[Page 65880]]

A. Corrective Action Management Unit (CAMU)--Changes to the Existing

Definition, and Changes to the CAMU and Temporary Unit Regulations at

Secs. 264.552(a) and 264.553(a)

1. Definition of CAMU

In today's final rule, the Agency has revised the definition of

CAMU, as well as the CAMU and temporary unit regulations themselves.

This revision clarifies the Agency's interpretation of these provisions

and accommodates EPA's new interpretation, promulgated today, that

remediation-only facilities are not subject to the facility-wide

corrective action requirement under RCRA section 3004(u). (See

discussion under the definition of remediation waste management site

below.) Specifically, the Agency has added to both the CAMU definition

(Sec. 260.10) and Secs. 264.552 and 264.553 language providing that

CAMUs and temporary units are not limited to facilities subject to RCRA

sections 3004(u) or 3008(h), but may also be approved at other cleanup

facilities, as well.\3\

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\3\ When using the term ``remediation-only'' facilities, EPA

means facilities that require RCRA permits solely for the purposes

of treating, storing or disposing of remediation wastes due to

cleanup at the facilities. EPA uses this term to distinguish these

facilities from operating treatment, storage and disposal facilities

that manage as-generated process wastes as part of ongoing facility

operations.

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The revised definition in today's rule reads as follows:

Corrective action management unit (CAMU) means an area within a

facility that is used only for managing remediation wastes for

implementing corrective action or cleanup at the facility.

EPA is amending the definition of CAMU by deleting the parts of the

definition that referred to corrective action authorities under

Sec. 264.101 and RCRA section 3008(h). This change will accommodate

RAPs and permits for the management of remediation waste as defined in

today's rule that are not subject to Sec. 264.101 or RCRA section

3008(h). Also, the reference in this definition (as well as in the

definition of remediation waste) to actions taken ``for the purpose of

implementing corrective action requirements under Sec. 264.101 and RCRA

section 3008(h)'' implied that EPA intended to restrict CAMU to these

authorities. In fact, EPA did not intend to restrict the CAMU (or the

temporary unit) to wastes generated solely through specific RCRA

regulatory mechanisms, or to cleanup wastes generated solely at RCRA

treatment, storage or disposal facilities.

For example, EPA anticipated that CAMUs or temporary units might be

used as applicable or relevant and appropriate requirements (ARARs) for

the remediation of many CERCLA sites, especially where CERCLA

remediation involves management of RCRA hazardous wastes. EPA tied its

definition of CAMUs and remediation waste to RCRA Federal authorities

applicable to TSD's (that is, 40 CFR 264.101 and RCRA section 3008(h))

because the Agency developed the CAMU and temporary unit rules within

that context--that is, they were developed as Federal rules to

implement corrective action at facilities subject to RCRA sections

3004(u) or 3008(h). Yet, EPA also expected that the CAMU would be

appropriate as ARARs at Superfund sites; at the Regional

Administrator's discretion for purposes of remediation under RCRA

section 7003 (even if not at a Subtitle C facility); and under State

authorities analogous to section 7003 or CERCLA (which provide a waiver

from otherwise applicable State RCRA requirements).\4\

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\4\ For a discussion of State permit waiver authorities, see the

memorandum from J. Winston Porter, Assistant Administrator, Office

of Solid Waste and Emergency Response, EPA to Regional

Administrators, Regions I-X, EPA (November 16, 1987), available in

the docket to today's rule.

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The revised definition of CAMU makes it clear that the CAMU is also

available under RAPs and other permits for remediation-only facilities

that under the new interpretation in today's rule are not subject to 40

CFR 264.101 or RCRA section 3008(h).

Without this change, the current definitions of CAMU and

remediation waste might be interpreted to preclude the use of CAMUs and

temporary units at remediation-only facilities operating under RAPs.

Yet these facilities are clearly among the type of facilities for which

CAMUs and temporary units would be beneficial--that is, facilities at

which remediation should be expedited and encouraged.

For this reason, EPA has removed the section of the CAMU definition

(and also parallel provisions in the definition of remediation waste)

that appeared to limit CAMUs (and temporary units) to facilities

subject to Sec. 264.101 or section 3008(h). This change should

eliminate any confusion over the scope of CAMUs and remediation waste,

and it is consistent with the central purpose of today's rule--

expediting cleanup at sites overseen by Federal and State cleanup

authorities, whether these sites are within the corrective action

universe, or whether they are ``remediation-only'' or ``remediation

waste management sites'' where RCRA hazardous waste is being managed.

Without this change, the Agency's new interpretation that

remediation waste management sites are not subject to section 3004(u)

corrective action requirements, which is intended to stimulate

cleanups, would have had the unintended effect of eliminating the

availability of two of the waste management options, CAMUs and

temporary units, that were designed for the same purposes.

2. Secs. 264.552 and 264.553

The removal of the language referencing activities performed under

Sec. 264.101 or RCRA 3008(h) from the definition of CAMU does not

change the scope of CAMUs. EPA simply removed the language discussing

authorities from the definition, and added it to the regulatory

language for CAMUs and temporary units at Secs. 264.552 and 264.553.

EPA also added specific language clarifying that CAMUs and temporary

units may be approved at permitted facilities that, under today's rule,

are not subject to Sec. 264.101. EPA believes these provisions are more

appropriate in the regulatory text of the CAMU and temporary unit

requirements instead of in the definitions because they identify the

mechanisms by which CAMUs and temporary units are approved, rather than

define the scope of the unit itself. By including these authorities in

the text of Secs. 264.552 and 264.553, EPA is clarifying that CAMUs and

temporary units are intended to implement corrective action consistent

with the requirements in Sec. 264.101 and 3008(h) requirements, as well

as cleanup under today's RAPs, which do not require compliance with

Sec. 264.101. The mechanisms for approval of CAMUs and temporary units

will be the permit and order procedures, and the RAP procedures. Of

course, Federal and State authorities with permit waiver provisions may

also use CAMUs, as discussed above and in the preamble to the CAMU rule

at 58 FR 8658 (p. 8679) (February 16, 1993).

EPA is also adding language to Secs. 264.552 and 264.553, and has

included language in the new Sec. 264.554 created in today's rule, to

specify that CAMUs, temporary units, and staging piles may only be used

within the contiguous property under the control of the owner/operator

where the wastes to be managed in the CAMU originated. EPA added this

language because the Agency removed that limitation from the definition

of remediation waste, as discussed below. EPA believes these

restrictions are more appropriate in the regulatory text of the CAMU,

temporary unit, and staging pile requirements instead of in the

definitions.

[[Page 65881]]

EPA is retaining the current limitation that CAMUs and temporary

units may only be used within the contiguous property under the control

of the owner/operator, and creating the same limitation for staging

piles created under today's rule. However, EPA believes that it may be

advantageous in some cases to use CAMUs, temporary units, and staging

piles at off-site facilities. Today's rule provides some relief for

off-site management of remediation wastes, but does not allow off-site

CAMUs, temporary units, or staging piles. EPA may reconsider the need

for and appropriateness of allowing off-site CAMUs, temporary units and

staging piles in the future.

B. Remediation Waste--Changes to the Existing Definition

Under current regulations, the term ``remediation waste'' defines

wastes that can be managed in a CAMU or temporary unit. Today's rule

amends the definition for the same reason that EPA made the same change

to the definition of CAMU--to remove the limitation to wastes managed

under Sec. 264.101 and RCRA Sec. 3008(h). The new definition retains

the term's current use, and makes the definition conform with the new

RAPs and staging piles provisions by not limiting remediation wastes to

wastes managed under certain specific corrective action authorities.

Wastes managed under the provisions of today's rule will be managed

during the course of a wide range of cleanups conducted under many

different types of cleanup authorities.

The existing definition of remediation waste (in Sec. 260.10) might

be read as limiting the term to wastes managed under the RCRA

corrective action cleanup authorities of 40 CFR 264.101 and RCRA

section 3008(h). In the preamble to the proposed rule (61 FR 18836),

EPA requested comment on a revised definition of remediation waste that

eliminated the limitation to wastes ``managed for the purpose of

implementing corrective action requirements under Sec. 264.101 and RCRA

section 3008(h),'' and added that wastes from a ``media remediation

site'' could be considered remediation wastes. Today's definition is

based on this definition and reads as follows:

Remediation waste means all solid and hazardous wastes, and all

media (including groundwater, surface water, soils and sediments)

and debris that contain listed hazardous wastes or that themselves

exhibit a hazardous characteristic and are managed for implementing

cleanup.

The Agency has made two changes to the existing Sec. 260.10 definition

of remediation waste originally promulgated for the CAMU and temporary

unit rules. The first change removes references to RCRA corrective

action authorities, and the second change eliminates the restriction

that remediation wastes may originate only from within the facility

boundary.

The first reference that was eliminated defined remediation waste

as wastes ``managed for the purpose of implementing corrective action

requirements under Sec. 264.101 and RCRA section 3008(h).'' The revised

definition refers to wastes ``that are managed for implementing

cleanup,'' without specifying the authority under which owner/operators

must address these wastes. As mentioned above, the Agency specifically

suggested this change in the preamble of the proposed rule (61 FR

18836) in a discussion of the Unitary.

No comments were submitted specifically on the definition of

remediation waste, although several commenters expressed their views on

the general issue of what materials should be subject to the proposed

rule, which is the issue addressed by the definition of ``remediation

waste.'' For example, one commenter expressed support for the approach

envisioned by the proposal, and finalized in today's clarification to

the definition, stating that ``the HWIR-media rule should be applied to

any management of hazardous contaminated media (and further, to all

remediation waste . . .), regardless of whether this remediation is

conducted under RCRA, CERCLA, or other State or Federal authority.''

In view of the statements made by commenters expressing support for

allowing the use of different State and Federal authorities, EPA

continues to believe that the purpose behind the provisions finalized

today--to encourage cleanup by removing unnecessary regulatory

barriers--is best served by the broad definition finalized today.\5\

---------------------------------------------------------------------------

\5\ Many commenters on the proposal addressed the issue of the

types of materials that should be eligible for the relief offered by

the proposed rule--most notably, whether relief should be provided

for both contaminated media and hazardous wastes that are managed

during cleanup (for example, sludges that have not commingled with

media). Because this issue was addressed differently under the

various provisions of the proposed rule, these comments are

addressed in the discussion of each specific provision finalized

today.

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The second change has removed the limitation that waste must

originate from ``within the facility boundary.'' This allows

remediation waste managed at off-site locations, such as those

permitted under Sec. 270.230 to continue to meet the definition of

remediation waste even though they are removed from the original site.

The changes made to the definition of remediation waste parallel

changes in the definition of CAMU, and changes to the CAMU and

temporary units regulations at Secs. 264.552 and 264.553.6

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\6\ Today, EPA is also modifying Secs. 264.552 and 264.553 to

allow implementation of CAMUs and temporary units under permits

(including RAPs) at facilities that are not subject to Sec. 264.101

and 3008(h) as discussed in today's preamble under the definition of

CAMU.

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Commenters were concerned about the status of wastes that have

migrated beyond the traditional RCRA ``facility'' boundary, and the

need to include those wastes in remediation waste. Some commenters were

concerned that, as proposed, owners and operators would be required to

obtain a RAP for on-site activities and an RCRA permit for off-site

locations where wastes had migrated. Some were concerned that they

would not be able to bring wastes that had migrated off-site back to

the site for management; still others were concerned that they would be

forced to manage wastes on-site even if it was not the most protective

option. EPA has retained the inclusion of wastes that have migrated

beyond the facility boundary by removing the clause that limited from

where remediation waste could originate. EPA expects this to resolve

the concerns of these commenters.

Finally, it is important to stress two points. First, it should be

noted that remediation waste includes only waste managed because of

cleanup, and does not include wastes generated from on-going hazardous

waste operations, which are commonly referred to as ``newly

generated,'' ``as generated,'' or ``process'' wastes. When managed as

part of a legitimate cleanup action, any (non-``as-generated'')

hazardous wastes (for example, media, debris, sludges, or other wastes)

are all remediation waste. Second, remediation waste includes both

hazardous and non-hazardous solid wastes managed as a result of

cleanup, including any wastes generated from treating remediation

wastes (for example, carbon canisters and sludges generated from

groundwater pump-and-treat or soil vapor extraction systems). Third,

the changes made to the definition of remediation waste do not, in any

way, change the scope of the CAMU and temporary unit regulations. EPA

has replaced the limitation on contiguous property removed from this

definition with a limitation in the CAMU and temporary unit regulations

themselves at Secs. 264.552 and 264.553. That same limitation also

applies to staging piles created in today's rule.

[[Page 65882]]

C. Remediation Waste Management Site and Facility--New Requirements for

Remediation Waste Management Sites

The final definition for remediation waste management site included

in Sec. 260.10 in today's rule is:

Remediation waste management site means a facility where an

owner or operator is or will be treating, storing or disposing of

hazardous remediation wastes. A remediation waste management site is

not a facility that is subject to corrective action under

Sec. 264.101 of this chapter, but is subject to corrective action

requirements if the site is located in such a facility.

Traditionally, RCRA has focused on ``facilities'' when applying

hazardous waste regulations. These are generally properties where

industrial operations manage hazardous wastes that they have generated,

or where commercial operations or entities conduct hazardous waste

treatment, storage, and/or disposal operations. For corrective action

under Sec. 3004(u) and (v) (implemented through Sec. 264.101) and

3008(h), a facility was defined (see Sec. 260.10) as ``all contiguous

property under the control of the owner or operator'' where hazardous

wastes are managed.

In the proposal, EPA defined ``media remediation site'' as a new

term that would apply to a location where certain remediation waste

management activities were taking place, and might or might not include

all or part of a pre-existing RCRA ``facility.'' EPA felt that it was

important to differentiate between existing ``facilities'' and a new

kind of site that would be eligible for the streamlined permits

(Remedial Action Plans or RAPs) promulgated in today's rule, and would

be exempt from Sec. 264.101 and certain other Part 264 requirements

that are not necessary or appropriate for areas used solely to manage

cleanup wastes.

1. EPA Changed the Term From ``Media Remediation Site'' in the Proposal

to ``Remediation Waste Management Site'' in the Final Rule

EPA has replaced the term ``media remediation site'' with the more

descriptive term ``remediation waste management site.'' Commenters

generally supported the concept of a media remediation site, but the

term ``media remediation site'' caused confusion for some, because

``remediation site'' implies an area that is being cleaned up, not, as

is meant in this case, an area where hazardous remediation wastes are

being managed.

Also, the proposed rule allowed only contaminated media to be

exempted from Subtitle C requirements, and the word ``media'' in the

title ``media remediation site'' was meant to emphasize that the

exemptions were only for contaminated media. In today's final rule, EPA

is not exempting any wastes from Subtitle C, and all provisions of this

final rule apply to all remediation wastes, so the term ``media'' is no

longer needed in the definition of the site.

These are the reasons EPA changed the term from ``media remediation

site'' to ``remediation waste management site.'' Changes to the

definition of the proposed term are discussed later in this section.

2. EPA has Created Different Requirements for Remediation Waste

Management Sites Than for Facilities Managing ``As-generated''

Hazardous Wastes

Throughout today's rule and the proposal, EPA has emphasized that,

to stimulate cleanup, it is important to regulate remediation waste

management activities differently from as-generated process waste

management where appropriate. This definition of remediation waste

management site allows EPA to apply requirements to remediation waste

management activities that are more appropriate for the remediation

scenario than the current requirements that, until today's rule, have

applied to both remediation waste management and as-generated process

waste management.

In today's rule, to facilitate prompt and protective treatment,

storage, and disposal of hazardous remediation wastes, EPA has created

three new requirements for remediation waste management sites that are

different from those for other facilities:

A new form of an RCRA permit for treating, storing and

disposing of hazardous remediation wastes (a RAP) that streamlines the

permitting process for remediation waste management sites to allow

cleanups to take place more quickly (Part 270, Subpart H);

Performance standards for remediation waste management

sites that replace the detailed requirements in Part 264 Subparts B, C,

and D (General Facility Standards, Preparedness and Prevention and

Contingency Plans and Emergency Procedures) (Sec. 264.1(j)); and

A provision excluding remediation waste management sites

from RCRA Sec. 3004(u)'s requirement for facility-wide corrective

action(Secs. 264.1(j) and 264.101(d)).

As noted above, EPA believes it is appropriate to regulate

facilities that manage as-generated process wastes and those that

manage remediation wastes differently, and the designation of a

remediation waste management site defines when the new provisions

unique to areas that manage remediation wastes will apply.

3. Differences Between the Proposed Definition of Media Remediation

Site and the Final Definition of Remediation Waste Management Site

The definition of media remediation site in the proposal which,

like today's definition of remediation waste management site, was used

to define where reduced permitting requirements would apply, was:

An area contaminated with hazardous waste that is subject to

cleanup under State or Federal authority, and areas in close

proximity to the contaminated area at which remediation wastes are

being or will be managed pursuant to State or Federal remediation

authorities (such as RCRA Corrective Action or CERCLA). A media

remediation site is not a facility for the purposes of implementing

corrective action under 40 CFR 264.101, but may be subject to such

corrective action requirements if the site is located within such a

facility (as defined in 40 CFR 260.10).

In response to the limitations to ``contaminated areas'' and

``areas in close proximity,'' several commenters identified specific

situations where those limitations might prevent owners and operators

from conducting environmentally beneficial activities under a RAP.

These comments are addressed in today's rule under new Sec. 270.230,

and the preamble discussion of that section instead of in today's

definition.

EPA has removed from the proposed definition the requirement that

limits media remediation sites to areas subject to cleanup under State

or Federal authority, and wastes managed under State or Federal

remediation authorities. EPA has always intended that today's rule

would promote voluntary initiation of cleanup activities by people not

already required to conduct cleanup under other authorities. EPA

continues to hope that this will be a result of today's rule.

Therefore, EPA has removed this limitation to make it clear that

people voluntarily initiating cleanup can have their properties

designated as remediation waste management sites. These activities

would still ordinarily require a RCRA permit (for example, a RAP) if

owner/operators were to treat, store or dispose of hazardous

remediation wastes, so that the proper requirements would be applied,

and the public would have the opportunity to participate in the waste

management decisions.

Finally, EPA has kept in the final rule the part of the proposed

definition of

[[Page 65883]]

media remediation site that stated that these were not facilities for

implementing facility-wide corrective action. As discussed elsewhere in

this preamble, EPA believes that applying 3004(u) and (v) and 3008(h)

requirements to facilities not already subject to these requirements is

such a disincentive to voluntarily initiated cleanup actions that

people often choose options that do not require permitting, rather than

face such a responsibility.

4. Remediation Waste Management Sites Are Not Subject to Facility-wide

Corrective Action

Today's rule, like the proposal, provides that a remediation waste

management site is not subject to the requirements in RCRA section

3004(u) for facility-wide corrective action. EPA believes, as discussed

more fully in the proposal, that requiring facility-wide corrective

action for facilities that are or will be engaged in ongoing hazardous

waste management outside the context of an environmentally beneficial

cleanup activity may properly be seen as a quid pro quo for the costs

of doing business 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 a necessary part of performing an act that is

environmentally beneficial (that is, cleaning up a site). To view

remediation-only sites as traditional hazardous waste facilities (which

would impose additional cleanup responsibilities) can have the effect

of penalizing those who wish to clean up their properties. EPA does not

believe that this result is one that Congress intended. (See 61 FR

18792-93).

The large majority of commenters on this issue supported the

interpretation, because it is widely recognized that the facility-wide

corrective action requirement often acts as disincentive to cleanup of

wastes subject to Subtitle C. Some commenters, however, expressed

concern over the Agency's legal theory supporting the interpretation.

This concern appears to stem from the commenters' perception that the

Agency is making a purely semantic argument--that is, that by being

renamed ``media remediation sites,'' these sites are no longer the

``facilities'' to which section 3004(u) applies.

The Agency understands the commenters' confusion on this point. The

corrective action requirement of section 3004(u) applies to ``a

treatment, storage, or disposal facility seeking a permit.'' Today EPA

clarifies that the Agency's view is not that remediation-only

facilities do not constitute ``facilities'' for RCRA purposes, but

simply that they should not be interpreted to be the ``facilities

seeking a permit'' to which the requirements in section 3004(u) apply.

In the Agency's opinion, the reference to ``a treatment, storage, or

disposal facility seeking a permit'' clearly refers to facilities that

need permits because they are in the business of hazardous waste

management. Remediation-only facilities, because they only obtain a

permit to engage in remediation, do not fit into that category. EPA

believes that it is a reasonable interpretation of section 3004(u) that

sites that are or will be conducting hazardous waste management only as

part of cleanup activities are not the types of facilities to which

Congress intended to apply the section 3004(u) facility-wide corrective

action requirements. (See 61 FR 18792-93).

In addition, in light of the disincentive to cleanup created by

applying the facility-wide corrective action requirement to

remediation-only facilities, to continue to apply the requirement would

appear to be contrary to one of Congress' clear goals in enacting

section 3004(u)--to ensure that currently unmanaged remediation wastes

that pose a risk to human health and the environment are addressed.

Today's rule differs in one significant respect from the proposal:

this interpretation is no longer limited to facilities that obtain

RAPs, but also applies to remediation-only facilities that obtain

traditional RCRA permits. Thus, any facility that meets the definition

of a ``remediation waste management site'' (promulgated today),

regardless of whether its hazardous waste management activities are

authorized by a RAP or traditional RCRA permit, will not be subject to

the facility-wide corrective action requirement. The Agency agrees with

the one commenter who argued that there was no reason to limit the

relief from section 3004(u) to facilities addressed under the RAP

framework. After all, because the RAP standards are less stringent than

existing requirements, States may choose not to adopt them as part of

their authorized programs. There is no reason to prevent these States,

however, from nonetheless amending their programs to reflect the

section 3004(u) interpretation finalized today. Similarly, if a State

not authorized for corrective action issues a RCRA permit for

remediation-only sites (remediation waste management sites), Federal

corrective action requirements will not attach.

Although the above discussion stresses the use of RAPs as the

vehicle for permitting a remediation waste management site and for

applying the benefits of RAPs, the new requirements in Sec. 264.1(j),

and the elimination of Sec. 264.101 facility-wide corrective action

through the new Sec. 264.101(d) provision for remediation waste

management sites are not limited to sites permitted under RAPs. States

wishing to use the traditional RCRA permits process for activities at

remediation waste management sites may do so, and the other benefits of

remediation waste management sites (Sec. 264.1(j), and 264.101(d))

continue to apply to remediation waste management sites under permits,

as well as under RAPs. The preamble discussion explaining the need and

rationale for these other provisions can be found in the section of the

preamble discussing those provisions.

5. Remediation Waste Management Sites Are Excluded From Only the Second

Part of the Definition of Facility

This exclusion from the definition of facility is strictly limited

to the definition of facility for purposes of corrective action, which

is found in part (2) of the definition of facility. Remediation waste

management sites are not excluded from part (1) of the definition of

facility for other purposes.

6. Facility

EPA is revising the definition of facility, (to make conforming

changes with the definition of remediation waste management site), as

follows:

Facility means ... (3) Notwithstanding paragraph (2) of this

definition, a remediation waste management site is not a facility that

is subject to Sec. 264.101, but is subject to Sec. 264.101 corrective

action requirements if the site is located within such a facility.

EPA requested comment on this change to the definition of facility

at Sec. 260.10 of the proposal, and did not receive any comments

opposing this change, and is therefore finalizing this amendment with

only two minor changes.

First, the proposed rule language stated that ``notwithstanding (1)

and (2)'' remediation waste management sites were not subject to the

facility-wide corrective action requirement, but on further reflection,

it has become clear that the reference to paragraph (1) was an

oversight. This is because the proposed definition clearly stated that

remediation waste management sites are only not ``facilities'' ``for

the purposes of Sec. 264.101.'' The facility definition in paragraph

(1) is not used for those

[[Page 65884]]

purposes. In addition, because the facility definition in paragraph (1)

is used in implementing the rest of the RCRA hazardous waste

regulations, which continue to apply to activities at remediation waste

management sites, paragraph (1) must remain applicable.

Second, the proposed definitional change did not include the

current language that states ``but may be subject to such corrective

action requirements if the site is located within such a facility.''

EPA has added this clause to make the language consistent with the

definition of remediation waste management site, which was included in

this language at proposal.

As the Agency stated in the preamble to the proposed rule, this

language is meant to provide for the following situation: ``In some

cases a media remediation site could be part of an operating (or

closing) RCRA hazardous waste management facility that is already

subject to the Sec. 3004(u) and (v) corrective action requirements; in

those cases, identifying an area of the facility as a media remediation

site [today's remediation waste management site] would not have any

effect on the corrective action requirements for that site or the rest

of the facility.'' (61 FR 18793).

D. Staging Pile--A New Kind of Unit

The definition of staging pile states that ``[s]taging pile means

an accumulation of solid, non-flowing remediation waste (as defined in

40 CFR 260.10) that is not a containment building and that is used only

during remedial operations for temporary storage at a facility. Staging

piles must be designated by the Director according to the requirements

in 40 CFR Sec. 264.554.''

1. Differences Between the Definition of Staging Pile and the Existing

Definition of Pile

This definition uses a slight alteration of the definition of

``pile,'' as defined in Sec. 260.10 for waste piles (Sec. 264.250),

which better fits the purposes of today's staging pile rule. The

definition of pile differs from the staging pile definition in three

ways; the definition of pile:

Is limited to non-containerized waste;

Addresses the ``accumulation of solid, nonflowing

hazardous waste,'' rather than ``solid, nonflowing remediation waste;''

and

Allows for ``treatment or storage'' rather than simply

temporary storage.

First, EPA believes it may often be environmentally protective or

simply more convenient to move remediation wastes in bags or other

containers when placing them into a staging pile. Because bags may

reduce blowing of wastes in a pile, or volatilization of hazardous

constituents, EPA did not want to eliminate the option of bagging, or

other protective activities, of wastes in a staging pile.

Second, because today's rule does not allow ``as-generated''

hazardous waste to be stored or treated in a staging pile, the

rationale behind using the term remediation waste rather than simply

hazardous waste should be clear. EPA also included the ``solid, non-

flowing'' portion of the definition of pile to ensure that liquid

wastes will not be placed in the staging pile. Liquid wastes are

inappropriate for storing in staging piles because of the possibility

of releases and run-off.

Third, the definition of ``piles'' allows both storage and

treatment. However, as discussed below, staging piles allow only

storage.

2. Differences Between the Proposed Definition of Remediation Pile and

the Final Definition of Staging Pile

In the proposed rule, the definition of remediation pile reads

that, ``[r]emediation [p]ile means a pile used only for the temporary

treatment or storage of remediation wastes, including hazardous

contaminated media (as defined in Sec. 269.3), during remedial

operations.''

This definition was altered for a number of reasons. First, the

Agency felt that including the term ``pile'' in the staging pile

definition would only serve to confuse staging piles with waste piles.

Furthermore, because staging piles will accept hazardous remediation

waste, rather than only hazardous contaminated media for the reasons

previously discussed, this portion of the definition also had to be

changed. Finally, treatment is not mentioned in today's staging pile

definition, because treatment will not be allowed in staging piles. No

commenters provided comments directly addressing the definition of

remediation pile. For a fuller discussion of staging piles, and the

comments EPA received, see the discussion of staging piles in section

VII of this preamble.

E. Miscellaneous Unit--An Edit to the Existing Definition

EPA is simply adding the unit ``staging pile'' to the list of units

excluded from the definition of miscellaneous unit. The revised

definition is as follows:

Miscellaneous Unit means a hazardous waste management unit where

hazardous waste is treated, stored, or disposed of and that is not a

container, tank, surface impoundment, pile, land treatment unit,

landfill, incinerator, boiler, industrial furnace, underground

injection well with appropriate technical standards under 40 CFR

Part 146, containment building, corrective action management unit,

unit eligible for research, development, and demonstration permit

under Sec. 270.65, or staging pile.

Miscellaneous units are meant to cover units that do not have

regulatory provisions specific to that individual type of unit. Because

EPA is today adding provisions for staging piles, staging piles should

likewise be excluded from the definition of miscellaneous units.

IV. Information on Remedial Action Plans (RAPs) (Secs. 270.2,

270.68 and 270.80--270.230)

General Information About RAPs

A. What Are EPA's Objectives for RAPs?

After considering the public comments on the proposal, the Agency

crafted the final RAP regulation with the following six objectives in

mind:

One, RAPs should be suited to the specifics of managing remediation

waste in the context of cleanup, both in procedure and in substantive

requirements;

Two, RAPs should ensure compliance with the applicable requirements

for safe hazardous remediation waste management;

Three, RAPs should provide certainty and protection to the

permitted party, as appropriate;

Four, the RAP approval process should provide opportunities for

meaningful public involvement;

Five, because RAPs constitute RCRA permits, the RAP approval

process must, at the least, follow the statutory minimum requirements

for obtaining a permit; and

Six, RAPs, and the RAP approval process should accomplish the

previous objectives through the most streamlined, reasonable, and

understandable regulations possible.

In today's rule, EPA believes that it has reached a reasonable

compromise consistent with these objectives. In summary, the RAP

requirements promulgated today:

Significantly reduce procedural steps in permitting, while

retaining the minimum statutory public participation requirements and

certain basic permitting steps or conditions (for example, permit

appeal procedures);

Replacing the detailed requirements in Secs. 270.3--270.66

with broader performance standards;

Significantly reducing and focusing information

requirements; and

Removing the requirement for facility-wide corrective

action.

[[Page 65885]]

Given this flexibility, EPA believes that it will be possible for

EPA and authorized States to develop RAPs that are much more suited to

cleanups than are current RCRA permits--that is, a RAP will generally

fit the model of a Superfund Record of Decision or an approval of a

cleanup workplan, rather than that of a RCRA Part B permit. EPA

believes this flexibility is essential for an effective cleanup

program.

At the same time, EPA recognizes that its approach to RAPs in

today's rule (and more broadly today's rule as a whole) only partially

solves the long-standing problems associated with remediations

involving hazardous waste regulated under RCRA Subtitle C. For example,

as EPA and others have long emphasized, the statutory public

participation requirements (newspaper notices and radio spots) are

highly prescriptive without, in fact, ensuring effective public

involvement. EPA believes a more flexible approach could better reflect

the wide variety of cleanup actions, while still providing a full

opportunity for public involvement. EPA also recognizes that it has

made less extensive changes to Subtitle C permitting requirements as

they apply to remediation waste than some have recommended. Indeed, EPA

believes that, in the long run, further changes are appropriate.

For example, EPA has left the substantive, unit-specific

requirements in 40 CFR part 264 intact (although the Agency has added

new flexibility for staging piles), even though EPA recognizes that

these requirements do not always make sense in a remedial context. (For

example, secondary containment may not always be needed for tanks

within an area of contamination.) EPA took this approach in today's

rule because it has not yet aired these issues in detail in previous

proposals. EPA is deferring action here, however, the issues are

continuing to be discussed more fully in the context of possible

statutory changes to RCRA.

In the meantime, EPA emphasizes that today's rule, in combination

with existing rules and policies, provides important flexibility in

cleanup scenarios. EPA not only expects that today's rule will provide

significant benefits; EPA also intends (and encourages authorized

States) to use existing flexibility in EPA land disposal standards for

soils, the CAMU rule (which today's rule is retaining), the Agency's

contained-in policy for contaminated media, the AOC concept for

contaminated sites, and similar tools to expedite effective cleanups.

The flexibility provided by today's rule should be understood within

this broader context.

B. What Is a RAP? (Secs. 270.68, 270.2 and 270.80)

Sec. 270.68

To make it clear that RAPs are subject to different, more

streamlined requirements than other RCRA permits, EPA created a

separate Subpart (40 CFR Part 270, Subpart H) for RAPs. The provision

in today's rule in Sec. 270.68 simply points readers who may look for

RAPs in the existing Subpart F (Special Forms of Permits) to the

section for RAPs in the new Subpart H.

1. The Differences Between a RAP and a Traditional RCRA Permit

Secs. 270.2 and 270.80(a)

EPA defines a RAP in Secs. 270.2 and 270.80(a) as a ``special form

of RCRA permit that you [a facility owner/operator] may obtain instead

of a permit issued under sections 270.3-270.66, to authorize you to

treat, store, or dispose of hazardous remediation waste (as defined in

Sec. 260.10) at a remediation waste management site.'' Often, remedies

selected for cleanup sites involve treating, storing or re-disposing of

hazardous remediation waste. RCRA permits are required whenever you

treat, store or dispose of hazardous waste (unless a specific permit

exemption or exclusion applies). Until now, treating, storing or re-

disposing of hazardous remediation wastes required the same type of

permit as that for as-generated process waste management. Traditional

RCRA permits, however, were designed for operating hazardous waste

treatment, storage, and disposal facilities managing as-generated

process wastes. The permit procedures, requirements, and contents were

designed specifically for those situations. Traditional RCRA permits

also require facility-wide corrective action under RCRA Sections 3004

(u) and (v). Many of these requirements are not well suited to cleanup

activities.

Section 270.80(a) also limits RAPs to permit activities done in the

area of contamination or areas in close proximity. This is because EPA

generally wishes to encourage owners and operators to conduct

remediation waste management activities on-site. EPA does allow RAPs

for off-site locations for limited circumstance under Sec. 270.230,

when managing the remediation waste off-site will be more protective

than managing it on-site.

2. Some Advantages of a RAP Compared to a Traditional RCRA Permit

EPA believes that the traditional RCRA permitting requirements are

not well suited for cleanup activities for many reasons.

First, flexibility in public participation for RAPs, as opposed to

the more specific requirements for traditional RCRA permits, is

necessary because cleanup activities vary greatly in volumes of waste

to be managed; amount of time allocated for the project; types of

activities to take place; and risks posed by the cleanup activities.

Also, EPA and State cleanup programs generally involve ongoing dialogue

with the surrounding community about choices of remedies and other

considerations. Many of these programs have developed creative and

successful public participation strategies which may vary slightly from

specific procedures that could be set out in a nationally applicable

Federal regulation.

Second, the more streamlined and flexible requirements for RAPs are

better designed for the cleanup scenario than requirements for

traditional RCRA permits in 40 CFR Part 270 because the Part 270

standards are designed specifically to mirror and implement the

requirements throughout Subtitle C for as-generated process wastes. As

discussed earlier, the Subtitle C requirements are designed for the on-

going management of as-generated waste, and are designed to be a

``cradle-to-grave'' system of regulations that will prevent new

releases from the possible mismanagement of hazardous wastes. While

this ``cradle-to-grave'' system has been successful in preventing new

releases and in providing incentives to minimize the amount of waste

generated, the system is often cumbersome when applied to remediation

wastes. Remediation wastes have already escaped into the environment,

and often are found in unique volumes, matrices, mixtures, etc. The

nationally applicable Subtitle C requirements do not often have the

flexibility to respond to unique circumstances encountered at cleanup

sites. Therefore, the permitting requirements based on the Subtitle C

requirements also do not have the proper flexibility to respond to

unique circumstances encountered at cleanup sites.

Third, information requirements for traditional RCRA permits are

generally based on those nationally applicable requirements mentioned

above, and so are not necessarily appropriate for all cleanup sites.

[[Page 65886]]

Fourth and finally, as discussed below, EPA believes that requiring

facility-wide corrective action for all new RAPs provides disincentives

to cleanups and to remedies that involve excavating and treating or

moving wastes. These disincentives are discussed below.

In implementing, overseeing, and observing the hazardous waste

cleanup programs under RCRA Corrective Action and State cleanup

programs, EPA has concluded that the requirement to obtain a RCRA

permit for on-site treatment, storage or disposal of hazardous

remediation wastes often acts as a disincentive to cleanup,

particularly in the cases where the site is not otherwise subject to

RCRA. Cleanups may be desirable at these sites for many reasons (for

example, a State or Federal cleanup authority might determine that the

site presents a hazard; the facility owner/operator may wish to clean

up the property voluntarily; or a potential future facility owner may

hope to acquire and reuse the property.) Before today's rule, if

facility owners and operators of these sites chose to treat, store, or

dispose of hazardous remediation wastes on-site, they generally would

be required to obtain a RCRA permit, along with all the requirements

(including facility-wide corrective action) that come with that permit.

Obtaining these permits can be very time-consuming and expensive, and

facility-wide corrective action provides a strong disincentive to any

action that would require a permit. This requirement to obtain a RCRA

permit, especially the requirement for facility-wide corrective action,

was found by EPA's Permits Improvements Team (PIT) 7 to be a

major disincentive to cleanup. A recent study by the Government

Accounting Office (GAO) came to a similar conclusion.8 To

avoid having to secure a RCRA permit, many remedial decision-makers

often choose options for remediation that avoid application of the

permit requirements, such as capping in place, which may not be the

best remedial option for the site.

---------------------------------------------------------------------------

\7\ EPA's Permits Improvement Team (PIT) was created in 1994 to

identify specific actions that could be taken by EPA to increase the

efficiency and effectiveness of environmental permitting programs.

The PIT held numerous stakeholder meetings throughout the country

and prepared a draft set of recommendations before it finished its

work in 1997.

\8\ Hazardous Waste: Remediation Waste Requirements Can Increase

the Time and Cost of Cleanups, U.S. General Accounting Office, GAO/

RCED-98-4, October 1997.

---------------------------------------------------------------------------

Under the streamlined approach to permitting promulgated today,

these sites (which have sometimes been referred to as ``remediation-

only sites'') can receive a RAP for remediation waste management

activities that take place at the site rather than a traditional RCRA

permit. EPA has designed the RAPs process to be more streamlined than

that for existing permits to reduce disincentives to cleanups. As

opposed to traditional RCRA permits, RAP procedures, requirements, and

contents are designed specifically for the cleanup scenario.

The differences between the processes for receiving approval of

RAPs and for receiving approval of traditional permits are described

more fully in the sections that follow, as well as in the section

entitled ``Comparison of RAPs Process to That for Other Permits.''

As discussed more fully in the preamble discussion of the

definition of remediation waste management site, RAP recipients (other

than those who are already subject to the corrective action

requirements because of independent RCRA permitting requirements), are

also not required to perform facility-wide corrective action. The

regulatory language for the exemption from the requirements in RCRA

sections 3004 (u) and (v) does not actually appear in the RAPs section

of the regulatory language. Instead, because the requirements for RCRA

sections 3004 (u) and (v) are implemented through the regulatory

language at Sec. 264.101, the exemption from these requirements in

today's rule is found in Part 264 at Secs. 264.1(j) and 264.101(d), as

well as in the definition of remediation waste management site and

facility in Sec. 260.10, instead of part 270.

RAPs cannot be used to permit treatment, storage, and disposal of

``as-generated'' process wastes. RAPs are limited to authorizing the

treatment, storage, or disposal of hazardous remediation wastes. As

this preamble discusses, the definition of remediation waste is limited

to wastes that are managed to implement cleanup. This does not include

``as-generated'' process waste or wastes from any activities that are

not specifically implemented for the purposes of cleanup.

3. Differences Between ``Remediation Management Plans'' in the Proposal

and ``Remedial Action Plans'' in the Final Rule

EPA proposed streamlined permits for remediation-only sites under

the name Remediation Management Plans, or RMPs. The RMP concept was

proposed at Secs. 269.40 through 269.45. As in today's rule, RMPs were

proposed as a special form of a permit for hazardous remediation

wastes; however, RMPs 9 were also the vehicle by which EPA

or a State could exempt low-level hazardous contaminated media from

Subtitle C management requirements, and could impose any necessary

site-specific management requirements on these wastes. As discussed in

section II. E. of this preamble, the Agency is not finalizing the

aspects of the proposed rule that exempt hazardous remediation waste

from Subtitle C, but is finalizing the streamlined permitting process

for treating, storing, and disposing of hazardous remediation waste

(that is, wastes that would have remained within Subtitle C

jurisdiction under the proposal). However, in the final rule, EPA has

named these permits Remedial Action Plans or RAPs.

---------------------------------------------------------------------------

\9\ EPA has chosen to use the term RAP in the final rule because

it is more commonly understood than RMP.

---------------------------------------------------------------------------

In today's rule, as in the proposal, RAPs streamline the permitting

process but, unlike in the proposal, a RAP in today's rule is not used

to document and enforce alternative management requirements for

remediation wastes that are exempt from Subtitle C. Hazardous

remediation wastes remain subject to the applicable requirements in

parts 260-271. Many of the provisions of the proposed RMPs have been

eliminated or revised to accommodate this change.

The specific differences between RMPs, as proposed, and RAPs, as

finalized, are discussed under the description of each section of the

final regulation. EPA emphasizes that the contained-in principle, which

provided a legal rationale for the proposed approach exempting low-

level contaminated media, remains an existing EPA policy. EPA continues

to encourage States to apply this policy, where appropriate, to

expedite cleanups.

Section 270.80(b)

In Sec. 270.80(b) EPA states that the requirements in Secs. 270.3-

270.66 do not apply to RAPs unless those traditional RCRA permit

requirements are specifically required under Secs. 270.80-270.230, but

that the definitions in Sec. 270.2 do apply to RAPs. This is meant

simply to identify those requirements that apply to RAPs and those that

do not. Where appropriate, the RAPs requirements in Subpart H include

their own provisions instead of those in Secs. 270.3-270.66.

Section 270.80(c)

In addition, new Sec. 270.80(c) provides that, notwithstanding any

other

[[Page 65887]]

provision of [Part 270] or Part 124, any document that meets the

requirements in this section constitutes a RCRA permit under RCRA

section 3005(c). This is to ensure that, although RAPs may not be

expressly referred to in other provisions of Parts 270 and 124, they

are indeed RCRA permits. Although today's rule contains additional

language to enhance the reader's understanding, these two new

provisions are the same as proposed at Sec. 269.40(c). The Agency did

not receive any negative comments on this provision, and has therefore

finalized the approach as proposed.

Section 270.80(d)

To facilitate streamlining at cleanup sites, EPA included the

provision at Sec. 270.80(d), which states that a RAP may be either: (1)

a stand-alone document that includes only the information and

conditions required by this Subpart; or (2) part (or parts) of another

document that includes information and/or conditions for other

activities at the remediation waste management site, in addition to the

information and conditions required by this Subpart.

EPA anticipates that RAPs will often be granted at the same time

that other decisions, such as remedy selection, are made at a cleanup

site. Under the cleanup program, the facility owner/operator or the

Director may be preparing other documents, such as remedy decision

documents, which may cover much if not all of what a RAP will cover.

EPA has included this provision to make it clear that the facility

owner/operator and the Director do not have to duplicate efforts, and

can create one document that serves both purposes. This approach was

proposed at Sec. 269.40(e), and again, the Agency did not receive any

negative comment on this provision. In this case--where the issuing

authority is an authorized State--only the portion of the RAP imposed

under today's rule will be enforceable as part of the Federal RCRA

program.

Section 270.80(e)

Throughout the development of the HWIR-media rule, there has been

much confusion about the relationship between RAPs and cleanup

requirements. Notwithstanding the confusion, EPA believes this is a

very simple relationship. Cleanup programs dictate the goals of cleanup

(that is, ``how clean is clean'' and how to select remedies,

investigate sites, and conduct other related activities). Frequently,

the remedies selected under these cleanup programs involve treating,

storing, or disposing of hazardous remediation wastes in a way that

would require a RCRA permit.

RAPs are simply the permitting mechanism for authorizing (according

to RCRA requirements) this treatment, storage or disposal. In

Sec. 270.80(e), EPA has clarified that, if you are treating, storing or

disposing of hazardous remediation wastes as part of a cleanup

compelled by Federal or State cleanup authorities, your RAP does not

affect your cleanup obligations under those authorities in any way. The

RAP does not affect ``how clean is clean'' (cleanup standards), and

does not affect, in any way, existing legal obligations to perform

cleanup actions. This was proposed at Sec. 269.1(c), and the Agency did

not receive any negative comments on this provision, and so it is being

finalized as proposed, except for edits to make it easier to

understand.

Section 270.80(f)

New Sec. 270.80(f) provides that interim status facilities that

treat, store or dispose of remediation waste under a RAP will not lose

their interim status by virtue of receiving an approved RAP, because

the RAP applies only to the remediation waste management activities

that take place as a result of the cleanup, and not to any obligations

under other authorities.

Under today's rule RAPs can now be used to designate CAMUs,

temporary units and staging piles (as well as other non-combustion

remediation waste management units and operations). Owner/operators of

interim status facilities who wish to construct CAMUs, temporary units

or staging piles may now apply for a RAP as the vehicle for imposing

the site-specific requirements, providing a mechanism for enforcing

those requirements and providing for public participation. RAPs provide

for all three of these functions, and may be a desirable alternative to

a 3008(h) enforcement order.

EPA is concerned that allowing a RAP at an interim status facility

may cause confusion about the impact on that facility's interim status,

and therefore has included Sec. 270.80(f). Because RAPs are RCRA

permits, and because permit issuance at an interim status facility

often terminates interim status for that facility, EPA is concerned

that some may think that issuing a RAP at an interim status facility

terminates that facility's interim status. Existing Sec. 270.1(c)(4)

already provides that, if EPA issues or denies a permit for one or more

units at a facility without simultaneously issuing or denying a permit

to all units at the facility, this does not affect the interim status

for any unit for which a permit has not been issued or denied. Section

270.80(f) in today's rule serves a similar function by providing that

RAP issuance does not terminate interim status for the other parts of

the facility not covered by the RAP (or for facility-wide corrective

action purposes).

EPA did not specifically propose this provision, but has included

it in the final rule to avoid confusion. In the proposed rule (see for

example, 61 FR 18791), EPA stated that these provisions would be

implemented under many different programs and agencies. In the proposed

rule at 61 FR 18814, EPA gave examples of CERCLA sites and permitted

treatment, storage and disposal facilities (TSDFs), but did not clarify

how these requirements would apply at interim status TSDFs. This was an

oversight and is corrected by Sec. 270.80(f) in today's final rule.

C. When Do I Need a RAP? (Sec. 270.85)

Section 270.85(a)

Section 270.85(a) states that ``whenever you treat, store, or

dispose of hazardous remediation waste in a manner that requires a RCRA

permit under Sec. 270.1, you must either obtain: (1) a RCRA permit

according to Secs. 270.3--270.66 of [Part 270]; or (2) a RAP according

to [Part 270 Subpart H].''

1.What Activities Require RCRA Permits?

Section 270.1 describes what activities require RCRA permits. If

the facility owner/operator intends to perform activities that require

permits, but is managing only hazardous remediation waste and not as-

generated process wastes, he may take advantage of the streamlined

procedures for RAPs, or may obtain a traditional RCRA permit. There are

also instances where treating, storing or disposing of remediation

wastes do not require a RCRA permit. Today's rule, like the proposal,

will not change, in any way, when a RCRA permit is required. Thus, no

RAP is needed where a permit would not otherwise be required.

One example of when neither RAPs nor traditional RCRA permits would

be required is CERCLA removal and remedial actions. CERCLA Section

121(e) grants a RCRA permit waiver for on-site response actions

selected under CERCLA Section 121. Generally, however, a Record of

Decision (ROD) or other CERCLA decision document would specify the

requirements for complying with the substantive RCRA Subtitle C

requirements for treating, storing, or disposing of remediation waste

on-site. Another example would be when State that is authorized to

[[Page 65888]]

implement the RCRA program has a permit waiver authority that is

analogous to EPA's authority under CERCLA Section 121(e) or RCRA

Section 7003. This permit waiver policy is described in a memorandum

from J. Winston Porter, Assistant Administrator, Office of Solid Waste

and Emergency Response, EPA to Regional Administrators, Regions I--X,

EPA, (November 16, 1987) available in the docket to today's rule.

Today's rule does not change or affect this policy in any way.

In addition, facility owner/operators may manage hazardous

remediation wastes in a way that does not require a RCRA permit. For

example, contaminated remediation wastes can be capped in place, or

excavated and transported off-site to a designated, permitted facility

for treatment or disposal. Another example is that wastes can be

treated or stored on-site in units that are exempt from permitting

requirements, such as wastewater treatment units. (See 40 CFR

Secs. 264.1(g)(6), 265.1(c)(10), and 270.1(c)(2)(v)). Still another

example is that remediation wastes can be treated or stored on-site for

less than 90 days in tanks, containers, or containment buildings (see

40 CFR 262.34), which also does not require a permit.

Section 270.85(b)

In the proposed rule at Sec. 269.43(f), EPA proposed that RMPs

involving on-site combustion of hazardous remediation wastes would have

to follow the requirements for issuance of RCRA permits in 40 CFR parts

270 and 124, and would not be eligible to obtain RMPs. EPA has

finalized that requirement at new Sec. 270.85(b).

EPA received one negative comment on that provision, which stated

that the Agency had not demonstrated how combustion of hazardous

remediation waste is different from other management techniques.

However, the Agency continues to believe, as stated in the preamble to

the proposed rule (61 FR 18818), that it is necessary to include this

provision because Secs. 270.16 and 270.62 include requirements for

trial burns and other important procedures for incinerators that EPA

continues to believe are necessary, even for combustion units handling

hazardous remediation waste. Also there is a high level of public

interest in hazardous waste combustion, which EPA believes merits the

extra public participation steps of the traditional RCRA permitting

process.

Another commenter asked that EPA clarify the procedures required

for permitting of combustion units under RAPs. The proposed rule stated

that ``for remedial actions involving on-site combustion of hazardous

remediation wastes, the procedural requirements for issuance of RCRA

permits . . . shall at a minimum be followed for review and approval of

RMPs [which are RAPs in today's final rule].'' This language led to

confusion over what requirements are considered ``procedural.'' Today's

final rule states that ``[t]reatment units that utilize combustion of

hazardous remediation wastes at a remediation waste management site are

not eligible for RAPs under this Subpart.''

EPA believes that this revised regulatory language makes it clear

that permitting for combustion units does not follow any of the RAP

requirements, but instead the traditional RCRA permitting requirements.

(However, 40 CFR 264.101(d) of today's rule would exempt a facility

receiving a permit for a combustion unit from facility-wide corrective

action, if that facility were a remediation-only site (remediation

waste management site).)

Sec. 270.85(c)

The proposed rule provided for the situation where a facility

owner/operator permitted for on-going hazardous waste operations sought

a RAP for cleanup activities at the facility. Under the proposed rule,

a facility owner/operator might desire a RAP for two reasons--the RAP

was the vehicle by which remediation wastes could become exempt from

Subtitle C, and, for wastes that remained in Subtitle C, the

application and procedural requirements for RAPs were more streamlined

and better tailored to the remediation scenario.

To accommodate these situations, the proposed rule would have

allowed traditional RCRA permits to serve as RAPs (Sec. 269.40(e)(2)),

and also would have allowed the permitted facility to obtain a RAP,

which would only cover the remedial operations at a site, in addition

to its RCRA permit, (see 61 FR 18814). Because under the final rule,

RAPs are not a vehicle for obtaining an exemption from Subtitle C,

there is no need to finalize the proposed rule provision allowing

traditional RCRA permits to serve as RAPs. On the other hand, the

Agency continues to believe it is appropriate to allow permitted

facilities to obtain the benefits provided by the RAP format and has

crafted today's rule accordingly.

Specifically, today's rule (Sec. 270.85(c)) states:

You may obtain a RAP for managing hazardous remediation waste at

an already permitted RCRA facility. You must have these RAPs

approved as a modification to your existing permit according to the

requirements in Secs. 270.41 or 270.42 instead of the requirements

in this Subpart. When you submit an application for such a

modification, however, the information requirements in

Sec. 270.42(a)(1)(i), (b)(1)(iv), and (c)(1)(iv) do not apply;

instead, you must submit the information required under

Sec. 270.110. When your permit is modified, the RAP becomes part of

the RCRA permit. Therefore when your permit (including the RAP

portion) is modified, revoked and reissued, terminated, or when it

expires, it will be modified according to the applicable

requirements in Secs. 270.40 through 270.42, revoked and reissued

according to the applicable requirements in Secs. 270.41 and 43,

terminated according to the applicable requirements in Sec. 270.43,

and expire according to the applicable requirements in Secs. 270.50

and 270.51.

This approach differs from the proposal in that a facility with a

permit covering ongoing hazardous waste operations would not obtain a

RAP as a separate authorizing document for the hazardous waste

management activities conducted during the course of cleanup. The

Agency made this change to avoid potential overlaps, gaps or confusion

in having two authorizing documents at one facility. Instead, the rule

provides that a RAP at a permitted facility be integrated into the

permit as a permit modification. Thus, the more streamlined RAP

application content requirements in Sec. 270.110 apply, but the

procedures for RAP approval in these cases are the permit modification

procedures Sec. 270.41 or Sec. 270.42.

The Agency chose the permit modification procedures over the RAP

procedures because it believes that establishing two different

procedures for permit modifications--depending on whether you were

modifying permits to include a RAP, or doing any other form of permit

modification under Secs. 270.41 and 270.42--would be unnecessarily

confusing.

Comments were mixed. Two commenters stated that the proposed rule

was unclear as to how RAPs would apply at facilities that already had a

RCRA permit. One commenter said that EPA should not require both a RAP

and a permit for the same activity. Another commenter suggested

amending permits to require compliance with RAPs. Two other commenters

disagreed with each other. One stated that RAPs would be beneficial

because they would avoid the cumbersome and costly permit modification

process. The other stated that it was unnecessary and inappropriate to

allow separate and less rigorous procedures at facilities already

subject to permitting. EPA agrees with this commenter to the extent

that today's rule requires issuance,

[[Page 65889]]

modification, revocation and reissuance, and termination of RAPs

through standard permit procedures at permitted facilities. But, EPA

also believes that the relief provided by the content requirements for

RAPs at Sec. 270.100 should be available at permitted facilities. EPA

developed the standards of today's rule with cleanups specifically in

mind. The Agency believes that they are generally appropriate for

cleanups taking place at TSDs, as well as to cleanups taking place

under RAPs elsewhere.

There are three classes of modifications for traditional permits,

Classes 1, 2, and 3. When modifying a permit to incorporate a RAP, the

Director and the facility owner/operator must follow the Class

modification procedure that is appropriate for the activities being

permitted under the RAP. The last sentence of new Sec. 270.85(c)

provides that once the RAP is part of the permit, the applicable permit

procedures must be followed for modification, revocation and

reissuance, termination and expiration. However, the content

requirements for RAPs will always remain those in Sec. 270.110. EPA

included this provision to avoid confusion about which requirements

apply when making changes to RAPs that are part of RCRA permits.

This does not mean that RAPs at permitted facilities must follow

two procedures, one for approval of the RAP and one for permit

modification. On the contrary, RAPs at permitted facilities need only

follow one process, the permit modification procedure, to receive

approval.

D. Does my RAP Grant me Any Rights or Relieve me of Any Obligations?

(Sec. 270.90)

Today's rule at new Sec. 270.90 applies the Sec. 270.4 provisions

to RAPs. Section 270.4(a) is known as ``permit as a shield,'' and

protects the facility owner/operator in that as long as they comply

with the terms of their RAP, they will be considered in compliance with

RCRA Subtitle C for enforcement purposes, except for the four

exceptions noted below. This means that EPA will not take enforcement

actions against facility owner/operators for activities that are in

compliance with their RAP, unless one of the four exceptions in

Sec. 270.4(a) applies. Although the proposed rule did not contain this

provision, EPA requested comment on applying it at 61 FR 18815 of the

proposal.

One commenter expressed concern about EPA granting ``permit as a

shield'' to RAPs, arguing that the shield concept presumes that all

RAPs will be properly drafted, and that this presumption is

inappropriate, given the Agency's own acknowledgment, embodied in the

proposed rule's requirements for State HWIR-media program withdrawal,

that improper drafting may occur. Several other commenters, however,

stated that it is appropriate to specify that compliance with a RAP

constitutes compliance with RCRA.

The Agency agrees with these latter commenters. The Agency believes

that including this provision is necessary to provide facility owners

and operators with a measure of assurance that activities performed

under an approved RAP will be recognized by the Agency as satisfying

Subtitle C requirements for those activities expressly addressed and

permitted by the RAP. EPA articulated the rationale for a ``shield''

provision in the May, 19 1980 final rule, which established this

provision for permits (see 45 FR 33311). Specifically, EPA stated:

EPA believes that this ``shield'' provision is one of the

central features of EPA's attempt to provide permittees with maximum

certainty during the fixed terms of permits. . . . This new

provision gives a permittee the security of knowing that, if it

complies with its permit, it will not be enforced against for

violating some requirement of the appropriate Act [e.g. , RCRA]

which was not a requirements of the permit . . . EPA agrees that one

of the most useful purposes of issuing a permit is to prescribe with

specificity the requirements that a facility will have to meet, both

so that the facility can plan and operate with knowledge of what

rules apply, and so the permitting authority can redirect its

standard-setting efforts elsewhere. If all the 3004 standards were

fully enforceable against a permitted RCRA facility even though they

were not reflected in the permit (or, perhaps, not consistent with

it), facilities would be exposed to unavoidable uncertainty as to

the standing of their operations under the law. In addition, such a

provision would increase pressure on EPA and States to keep permit

conditions applicable to a given facility in a perpetual state of

re-examination. EPA's resources will at most be barely sufficient to

issue and renew RCRA permits, and review State permits, at the time

of their initial issuance and periodic renewal. EPA and States are

likely to make much better use of their resources if they restrict

examination of permits between issuance and renewal to monitoring

compliance and taking enforcement action where necessary.... [The

shield] now places the burden on permit writers rather than

permittees to search through the applicable regulations and

correctly apply them to the permittee through its permit. This means

that a permittee may rely on its . . . permit document to know the

extent of its enforceable duties.

With regards to the commenter who was concerned about granting

``permit as a shield'' to RAPs, EPA believes that the commenters

concerns are alleviated by the differences between the proposed and the

final rule. RAPs under the proposed rule performed a different function

from RAPs under the final rule. In the proposed rule, RAPs were the

vehicle for excluding remediation wastes from Subtitle C requirements

and instead imposed site-specific requirements on these wastes. The

commenter who was concerned about the permit as a shield provision may

have been concerned that a poorly written RAP might include site-

specific requirements for wastes excluded from Subtitle C that were not

protective of human health and the environment. Because today's final

rule does not exclude any wastes from Subtitle C requirements, that is

no longer a concern.

As mentioned above, Sec. 270.4(a) includes four exceptions to the

``shield'' provision. Specifically, the permit does not shield the

facility owner/operator from enforcement for requirements not included

in the permit which:

(1) Become effective by statute;

(2) Are promulgated under Part 268 of this chapter restricting the

placement of hazardous wastes in or on the land;

(3) Are promulgated under Part 264 of this chapter regarding leak

detection systems; or

(4) are promulgated under Subparts AA, BB or CC of Part 265 of this

chapter limiting air emissions.

With respect to the fourth exception, under Sec. 264.1080(b)(5) the

requirements in Part 264 Subpart CC do not apply to ``a waste

management unit that is used solely for on-site treatment or storage of

hazardous waste that is generated as the result of implementing

remedial activities required under the corrective action authorities of

RCRA sections 3004(u), 3004(v) or 3008(h), CERCLA authorities, or

similar Federal or State authorities.'' Therefore, remediation waste

management units permitted by RAPs will not be subject to Subpart CC

requirements. EPA expects that any of these four exceptions to the

shield, especially numbers (3) and (4), will often not be relevant to

activities taking place under RAPs.

Also, in the same way as for traditional RCRA permits, the shield

provisions cover only activities that are authorized by the RAP, not

any other hazardous waste management activities the facility owner/

operator may perform at the site. For example, if the RAP covers a

treatment unit, then activities performed in compliance with the RAP

requirements for that treatment unit are covered by the ``shield.''

However, if the operator decides to build and use a disposal unit

on-site that is not addressed in the RAP, the

[[Page 65890]]

operator must either obtain a modification to the RAP, or a traditional

RCRA permit for that new activity, or they will not be shielded from an

enforcement action under RCRA for operating that unit without a permit.

In no way does this provision be shield a facility owner or operator

from an enforcement action for a RCRA violation for any as-generated

waste management requirements (as those activities are excluded from

coverage under RAPs). Finally, because a RAP is simply a permitting

mechanism for managing remediation waste, but does not address cleanup

obligations, Sec. 270.4(a) does not shield a facility owner/operator

from cleanup obligations that apply to facilities subject to Federal or

State remedial authorities.

Section 270.4(b) and (c) address property rights, privileges, and

authorization of injury, invasion of rights, or infringement of State

or local law or regulations. Because the Agency received no adverse

comments on these provisions proposed at Sec. 269.40(f) and (g), and

because they were the same as Sec. 270.4(b) and (c) for traditional

RCRA permits, EPA is not creating new provisions specific to RAPs, but

is applying the identical Sec. 270.4(b) and (c) provisions to RAPs as

proposed.

Applying for a RAP

E. How do I Apply for a RAP? (Sec. 270.95)

The first step towards obtaining RAP approval is to apply for a

RAP. This section simply states that to apply for a RAP the owner/

operator must complete an application, sign it, and submit it to the

Director according to the requirements in part 270 Subpart H.

F. Who Must Obtain a RAP? (Sec. 270.100)

This requirement explains that if the site is owned by one person,

but the activities are operated by another person, then it is the

operator's duty to obtain a RAP, except that the facility owner must

also sign the RAP application. It mirrors the requirement for other

permits in Sec. 270.10(b). The operator is the person responsible for

the activity being permitted by the RAP, is the most familiar with the

proposed activity, and is therefore, the most reasonable choice for who

should be responsible for obtaining the RAP. The proposed rule stated

that ``the owner/operator must receive approval by the Director of a

Remediation Management Plan (RMP).'' The proposal did not distinguish

between the facility owner and operator, but the Agency believes that

this provision of today's rule will provide additional clarity about

who is responsible for obtaining a RAP.

G. Who Must Sign an Application for a RAP? (Sec. 270.105)

The proposed rule (at Sec. 269.43(b)) (like the final rule today)

required both the facility owner and operator to sign the application

for a RAP according to Sec. 270.11. Their signatures are meant to

certify that the information contained in the RAP application, to the

best of the signatory's knowledge and belief, is true, accurate, and

complete (see Sec. 270.11 (d)).

In response to the Agency's request for comment on whether

signatures of both the facility owner and operator should be required (

61 FR 18817), several commenters objected to the proposed requirement,

pointing out that in many instances one party may take a completely

passive role in the cleanup process. One commenter pointed out that the

current owner of a site may not have technical involvement in the

cleanup or may be unwilling to commit resources to the cleanup.

These commenters felt that it could obstruct or delay cleanup

efforts if both parties are required to sign the RAP application,

especially if the passive party was fearful of incurring liability by

signing. Other commenters felt that both parties should be required to

sign the RAP application (as is required for traditional RCRA permits)

as an indication that they both agree with the provisions in it. One of

these latter commenters pointed out that States still hold the facility

owner responsible for activities on his property regardless of whether

another party operates the site. This commenter felt that requiring the

facility owner to sign as well as the operator would signify that the

property owner is aware of the activities occurring on his property.

EPA has sympathy with commenters on this issue who argue that in

some cases owners may take a passive role, especially with respect to

how the remediation waste is managed. At the same time, EPA notes that,

under the statute, RCRA permits must be issued to both the owner and

the operator. EPA also believes that owners, as well as operators,

should ordinarily be responsible for the conduct of cleanup activities.

Finally, owners may know about activities on the property that the

operator is not involved in or aware of, and can provide valuable

information for the permit. To be sure, one of the prime justifications

for requiring the facility owner's signature on the permit--that the

facility owner is liable for facility-wide corrective action--does not

apply in this case. Nevertheless, the facility owner's signature is

generally important to confirm that the cleanup is proceeding with his

knowledge and approval, and to put the facility owner on notice of

potential liabilities. Where it is difficult to get a facility owner to

agree to a RAP, EPA may find that an enforcement action is more

appropriate than a permit.

As proposed (Sec. 269.43(b)), Sec. 270.105 in today's rule requires

the RAP application to be signed according to Sec. 270.11. The

requirements in Sec. 270.11(a) specify the appropriate person to sign

the RAP application in the case of a corporation, partnership, sole

proprietorship, municipality, State, Federal, or other public agency.

Section 270.11(b) requires that any reports required by the RAP be

signed by the person specified in Sec. 270.11(a) or a duly authorized

representative. Section 270.11(c) describes what to do if authorization

under Sec. 270.11(b) changes. Section 270.11(d) requires a person

signing a document under Sec. 270.11(a) or (b) to certify that the

documents were prepared under their direction, that the information is

accurate and complete, and that they understand the penalties of

submitting false information. EPA has provided that the facility owner

may choose an alternative certification under Sec. 270.11(d)(2) if the

operator certifies under Sec. 270.11(d)(1).

After reviewing comments on the respective role of the operator and

the land owner, EPA concluded that a less rigorous certification may be

appropriate for the land owner, if the operator is more familiar with

the cleanup activities than the facility owner. As explained earlier,

EPA expects that the operator will be preparing the RAP application and

will be familiar with its details. He will also be responsible for

carrying out the cleanup. Therefore, it makes sense to have the

operator provide the certification. At the same time, as a signatory to

the permit, the landowner remains jointly and severally liable with the

operator, and EPA retains the ability to enforce the terms of the RAP

against the landowner where this enforcement is appropriate in EPA's

discretion.

EPA believes that the less rigorous certification in

Sec. 270.11(d)(2) is appropriate because it continues to require the

facility owner to make appropriate inquiries and provide any

information he has about the property that will be the subject of the

RAP. Other than general comments on who should submit the permit

application, EPA did not receive comment on these requirements.

Therefore, with this one exception, EPA has finalized the requirements

as proposed.

[[Page 65891]]

H. What Must I Include in My Application for a RAP? (Sec. 270.110)

1. Description of the Specific Content Requirements

This subsection lists the specific pieces of information that the

owner/operator must include in a RAP application, and also requires the

facility owner/operator to submit any other information the Director

considers necessary. The information required under Sec. 270.110(a)

through (e) includes names and addresses, latitude and longitude of the

site, a map showing site location, and scaled drawings of the

remediation waste management site features and boundaries.

The proposal did not explicitly list in the ``Content of RMPs''

section the information required in the final rule under

Sec. 270.110(a) through (e). However, these details were suggested by a

commenter on the proposal. EPA expected that this information would

generally have been required under the proposed rule. Because the

information would be important in identifying the activities to be

authorized by a RAP, the information generally would either have been

included in the RAP application, or if not, would have been required by

the Director under the proposed Sec. 269.41(c)(10) (``other information

determined by the Director to be necessary'').

The Agency, however, agrees with the commenter that it should be

added as an express requirement, to avoid any unnecessary delay caused

by an applicant's failure to submit it in the first instance. In

addition, these information requirements are similar to the types of

information required under a Part A application in Sec. 270.13,

although better tailored to the remediation scenario.

New Sec. 270.110(f) requires the application to specify the

hazardous remediation waste to be treated, stored, or disposed of, to

estimate the quantity of waste to be managed, and to describe the

processes to be used for treating, storing, and disposing of the waste.

This provision finalizes appropriate aspects of what was required under

proposed Secs. 269.41 (c)(1) through (6).

Specifically, the proposed rule differs from the rule promulgated

today in that it required information regarding not only what under

today's rule constitutes ``hazardous remediation waste,'' but also what

constitutes ``non-hazardous contaminated media.'' The Agency has

eliminated references to ``non-hazardous contaminated media'' because,

as discussed more fully in preamble section II. E., EPA has decided not

to finalize any of the approaches from the proposal that would have

excluded remediation waste from Subtitle C, and had the RAP address

non-hazardous media. The Agency has therefore eliminated requirements

that were proposed to implement that portion of the proposed rule

(proposed Sec. 269.41(c)(1) and (3)).

Section 270.110(g) requires the facility owner/operator to submit

information to demonstrate that the remediation wastes will be managed

according to the applicable hazardous waste management requirements

found in Parts 264, 266 and 268. This provision finalizes the proposed

provision of Sec. 269.43(c)(2). Although many commenters would have

preferred all remediation wastes to be exempt from the Subtitle C

requirements, including Parts 264, 266 and 268, for the reasons

discussed earlier in this preamble, the Agency has decided not to

finalize either the Bright Line or Unitary approaches which would have

exempted remediation wastes from Subtitle C, and therefore, all

hazardous remediation wastes remain subject to these requirements.

This flexible requirement replaces the detailed, unit-specific

requirements in 40 CFR 270.14 through 270.27 that apply to traditional

RCRA permits, and which lay out the information required in a Part B

permit application. EPA has taken this more flexible approach, both

because of the wide variation in cleanup activities, and because of the

Agency's interest in streamlining the permit process for remediation

activities. In implementing current remedial programs, including CERCLA

and EPA's RCRA enforcement programs, the regulated community, the

regulators, and interested members of the public successfully work

together to develop enforceable remediation plans, and EPA believes

there is no need for the Agency at this point to mandate detailed

``information'' requirements for RAPs based on part B requirements.

Thus today's rule simply requires the RAP applicant to provide enough

information to demonstrate compliance.

Section 270.110(h) requires the RAP applicant to submit enough

information for the Director to comply with other Acts, as required for

traditional RCRA permits under Sec. 270.14(b)(20). In approving any

form of permit, the Director must comply with the requirements in other

applicable laws, and therefore, may need information from the RAP

applicant to determine the applicability of these other Acts. This was

not specifically discussed in the proposal, but where applicable, could

have been required under proposed Sec. 269.41(c)(10). The Agency

believes that making this requirement explicit will eliminate delays

that might result from any potential confusion on this point.

The wide variation in possible hazardous remediation waste

management that may take place under RAPs makes it difficult to

anticipate all of the Director's information needs. Therefore,

Sec. 270.110(i) requires the RAP applicant to submit any other

information the Director determines to be necessary for demonstrating

compliance with the provisions of Subpart H of part 270 or for

determining additional conditions necessary to protect human health and

the environment.

The first part of Sec. 270.110(i) was proposed at

Sec. 260.41(c)(10); because EPA received no comment on this provision,

it is finalized as proposed. The second part Sec. 270.110(i) about

information for determining additional conditions necessary to protect

human health and the environment simply makes express the Director's

authority to request information necessary to enable him to fulfill his

duty under the ``omnibus'' authority of RCRA section 3005(c) to include

conditions in permits necessary to protect human health and the

environment. This statutory provision is codified in today's rule at

Sec. 270.135(b)(4).

All of the information required under Sec. 270.110 forms the basis

for the Director's determination of whether or not to approve the RAP

application. The Agency expects RAPs to be more streamlined than

traditional permits and therefore expects that, as a general matter,

the information the facility owner/operator will need to submit for a

RAP application will be significantly less than is traditionally

required for a RCRA Part B permit application under Secs. 270.14

through 270.27. This is because the specific Part B requirements for

units, which are much more extensive that what is required by today's

rule, were designed with long-term operation of a TSDF in mind. This

operation is generally very different from the activities that take

place as part of a one-time remediation waste management activity.\10\

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\10\ It should be noted that EPA is also developing a proposal

to streamline (and in most cases eliminate) information requirements

for RCRA permits covering on-site storage or treatment of hazardous

waste in tanks or containers.

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Also, the Agency believes that, due to the wide range of activities

that might take place under a RAP, it is more appropriate to provide

flexibility so that the appropriate amount of information can be

determined by the site-specific action. RAPs may permit many different

[[Page 65892]]

types of activities, from on-site storage of investigation-derived

waste to treatment and permanent disposal under RCRA requirements. EPA

has allowed considerable flexibility in what information is required to

be submitted, to allow for the variation in the types of activities

being performed under a RAP, and the anticipated generally shorter

time-frames for remediation waste management activities.

2. Comments on the Contents of RAPs

Several commenters agreed with EPA's basic framework for the

contents of RAP applications. Commenters suggested additional

information that should be included in a RAP application if it were the

vehicle for determining when hazardous contaminated media could be

exempt from Subtitle C, but because the RAP is not serving that

function, those comments no longer apply. One commenter was concerned

that EPA would require information on management of wastes off-site,

but that information is not required in today's rule.

One commenter was concerned that the requirements to include

volumes of the waste being managed would require excessive site

characterization. However, the regulatory language in Sec. 270.110(f)

reads, ``an estimate of the quantity of these wastes,'' which is the

same language used for Part A permit applications in Sec. 270.13(j).

The purpose of this information is simply to provide an idea of the

scope of the operation, not to require an exhaustive site

characterization effort. EPA understands that the estimated volume of

waste to be managed may change significantly in the course of the

cleanup.

Another commenter noted that the different types of wastes

regulated under the proposed ``Bright Line'' approach made the contents

of RAPs overly complicated, but EPA is not finalizing that option in

today's rule, and so has eliminated that complication.

Several commenters asked that EPA allow the RAP to be coordinated

with other submittals of the same information, so that efforts need not

be duplicated to prepare numerous submittals. It is for precisely that

reason that EPA has allowed other documents (or parts of other

documents) to serve as parts or all of the RAP if they contain the

information and conditions necessary for RAPs, so that the facility

owner/operator does not have to duplicate efforts. This can be found at

new Sec. 270.125.

Finally one commenter suggested that EPA make it possible for a

facility owner/operator to incorporate ``presumptive remedies'' into

RAPs similar to the approach EPA developed in the CERCLA program. While

EPA is not addressing issues such as proper cleanup levels or remedies

under today's rule, EPA could develop a set of ``standard'' RAP

provisions to cover commonly encountered situations at sites managing

hazardous remediation wastes. These generic provisions could be

customized, as necessary, to address appropriate site-specific

considerations.

EPA believes that a ``generic RAP provisions'' approach can be

appropriate at RCRA sites, and it agrees this approach can

significantly streamline the development of new documents. EPA will

consider creating such a model as guidance for the HWIR-media rule.

However, in the meantime, EPA encourages States, or even large

companies with multiple sites, to develop model RAPs. For example,

commenters have told EPA that there are multiple, similarly

contaminated areas in Alaska involving petroleum product spills. EPA

believes that this may be an appropriate situation for regulated

industries, the State of Alaska, and EPA to work together to develop a

model RAP that would cover the situations frequently encountered in

Alaska with petroleum and other contaminants. Such a model RAP could be

used, with minor modifications to consider any unique, site-specific

circumstances, and would be faster to develop and approve if EPA, the

State, and the facility owner/operator had already agreed on the basic

principles in the model.

3. Contents of RAPs in the Proposal That Are Not Required in the Final

Rule

Several parts of the proposed ``RAPs contents'' requirements are

not included in the final rule. First, proposed Sec. 269.41(c)(8)

required facility owners and operators to submit information that

describes planned sampling and analysis procedures. This requirement is

not necessary because waste analysis is required under today's rule at

Sec. 264.1(j)(2).

Proposed Secs. 269.41(c)(9) and 269.42(b) required facility owners

and operators to submit data from treatability studies and full scale

implementation of treatment systems to EPA. The Agency has not included

that requirement in the final rule. EPA proposed to require the

collection of treatability data so that it could set treatment

standards with reasonable confidence that those standards could be met

with available technologies, and to provide information on the

effectiveness of available technologies in treating different kinds of

contaminated media.

One of the proposed rule's goals was to provide data to ensure

appropriate future treatment requirements. To collect this data, the

proposed rule would have required owners and operators to submit data

to EPA upon completing remedial treatment (both full-scale as well as

treatability studies). EPA has decided not to mandate the collection of

treatability data for contaminated media as originally proposed. Since

the proposal, EPA has finalized new LDR treatment standards for

contaminated soils. EPA believes that those new standards are supported

by the available data and does not feel it is necessary to burden the

regulated community with the requirement to submit treatability data.

Treatability data is discussed more fully in the preamble to the LDR

Phase IV rule (63 FR 28556 (May 26, 1998)), in which EPA finalized the

soil treatment standards proposed in the HWIR-media proposal.

Also, in the proposed rule at Sec. 269.42(a), EPA proposed that

treatability studies that would require a RCRA permit could be

conducted under a RMP instead. The significant benefit of this

requirement was that those wastes in the treatability study could be

excluded from Subtitle C requirements under the RMP. Because RMPs no

longer serve that function, the remaining benefit would be the more

streamlined process for receiving RAP approval under the final rule

instead of a traditional permit.

As discussed throughout the RAPs section of today's rule, any on-

site treatment, storage or disposal of hazardous remediation waste that

would have otherwise required a RCRA permit may be authorized under a

RAP, which would include any treatability studies. Therefore, a

separate provision allowing treatability studies under a RAP is not

necessary.

EPA recognizes that treatability studies conducted off-site may

still confront the problem of needing a traditional RCRA permit, and

EPA will evaluate this and any remaining issues with regard to

treatability studies in the future.

In the preamble to the proposed rule at 61 FR 18817, EPA requested

comment on the limits on the existing Treatability Sample Exclusion

Rule (Sec. 261.4(e) and (f)), which exempts the generator of wastes for

treatability studies from 40 CFR Parts 261 through 263, and from

notification under RCRA Section 3010. The rule also exempts the

facility conducting the study from 40 CFR parts

[[Page 65893]]

124, 261-266, 268 and 270 and from notification under RCRA Section

3010. This exemption is currently limited to volumes of no more than

10,000 kg of media contaminated with non-acute hazardous waste, 1000 kg

of non-acute hazardous waste other than contaminated media, 1 kg of

acute hazardous waste, and 2500 kg of media contaminated with acute

hazardous waste for each process being evaluated for each generated

waste stream.

This exemption remains in effect for no more than 90 days after the

study is completed or one year (two years for bioremediation) after the

shipment of the same sample, whichever comes first. The Regional

Administrator may grant requests case by case for up to an additional

two years for treatability studies involving bioremediation. The

Regional Administrator may grant requests case by case for extensions

of the quantity limits for up to an additional 5000 kg of media

contaminated with non-acute hazardous waste, 500 kg of non-acute

hazardous waste, 2500 kg of media contaminated with acute hazardous

waste, and 1 kg of acute hazardous waste.

When EPA requested comment on whether it should amend the rule to

allow EPA to expand those limits on a site-specific basis; the Agency

received several comments. All comments favored giving site-specific

discretion to the Director to determine appropriate volumes of wastes

to be included in the treatability study, and to determine appropriate

timeframes. Despite the favorable comment, EPA is not including this

provision in the final rule. The Agency is reviewing more broadly the

issue of treatability studies and may consider more extensive relief at

a future date.

I. What if I Want to Keep This Information Confidential? (Sec. 270.115)

Some information required under Sec. 270.110 may be confidential

business information, such as the design of treatment units. This

provision simply requires the facility owner/operator to assert a claim

of confidentiality at the time the information is submitted, and EPA

will treat the information according to 40 CFR part 2 (Public

Information).

EPA has included this provision in the final rule, which is

substantially the same as Sec. 270.12 (with only minor changes meant to

make the regulation more readable), to allow the facility owner/

operator to protect this information. This provision was not discussed

in the proposal, but EPA has added it to allow for confidentiality in

the same way as with other permitting requirements, and to protect

legitimate confidential business information of RAP applicants.

J. To Whom Must I Submit My RAP Application? (Sec. 270.120)

This provision simply requires that the facility owner/operator

submit the RAP application to the Director. This was proposed at

Sec. 269.41(a). The ``Director'' is the EPA or State official

responsible for the RCRA hazardous waste management program in the

relevant State or Tribal lands, and is defined in Sec. 270.2.

K. If I Submit My RAP Application as Part of Another Document, What

Must I do? (Sec. 270.125)

To avoid duplicative processes, today's rule (Sec. 270.80(d))

allows RAPs to be a part of another document, such as a State cleanup

program's remedy selection document, or a workplan for a cleanup. In

many cases, the Agency expects RAPs to be issued at the time that a

site manager is selecting a remedy, which will often include a

mandatory process for including the public in the remedy selection

process, and completion of remedy decision documents, under a cleanup

program. Therefore, it would be a waste of time and resources to

require a separate RAP application. If the facility owner/operator is

preparing the other document(s), then today's rule, at new

Sec. 270.125, allows the facility owner/operator to submit the RAP

application as a part(s) of those documents. In this case, the rule

requires that the facility owner/operator identify the parts of the

document that make up the RAP application, so that the Director can

develop an appropriate draft RAP, and so the public can comment on it.

Often, however, it will be the Director who is preparing the other

documents, in which case, the facility owner/operator may choose to

submit a separate RAP application, and the Director may incorporate the

elements that make up the draft RAP into the other document(s) that he

is preparing prior to public comment.

1. Provisions From the Proposal That Are Not Included in the Final Rule

The proposed rule required that ``such [other] documents must be

approved by the Director according to procedures that allow equivalent

or greater opportunities for public involvement than those prescribed

in Sec. 269.43.'' This statement was confusing as to whether those

``other'' documents would be considered RAPs.

Any RAP application to receive approval as a RAP must follow the

authorized RAP procedures of the authorized State or EPA. However, EPA

expects that different States will apply for authorization of different

types of programs and processes to qualify as RAPs. Therefore, RAPs in

different States may look somewhat different, and the processes may

vary, but all RAPs must be approved under a program authorized for this

regulation.

Because this is already required under the State authorization

procedures, and therefore language in the RAPs section of the

regulations is not necessary, EPA has not included it in the final

rule. In addition, EPA intends it to be clear that the Director may do

more in the way of public involvement than is required under today's

rule and the facility owner/operator is certainly encouraged to do so.

However, that is always possible under RCRA authorized programs, and

again it is not necessary to include this statement in the RAPs

regulatory language.

As mentioned elsewhere, EPA has written the process for RAP

approval to be as flexible as possible so that approval of RAPs, be

they stand alone documents or parts of other documents, can be

integrated as smoothly as possible into other approval and public

comment procedures taking place at the site. EPA expects EPA Regional

and State programs implementing the RAP provisions to merge processes

at cleanup sites as much as possible to streamline the approval and

public participation processes. At the same time, since RAPs will be

issued under a Federally authorized program, and will be Federally

enforceable, it will be important for States to identify when

requirements are imposed under RAPs, and when they are imposed under

independent sate authority.

Getting a RAP Approved

L. What Is the Process for Approving or Denying My Application for a

RAP? (Sec. 270.130)

Section 270.130 specifies the basis upon which the Director will

determine whether to tentatively decide to either approve the RAP

application and therefore prepare a draft RAP, or to deny the RAP

application and therefore prepare a notice of intent to deny the RAP

application (``notice of intent to deny''). If the Director finds that

the RAP application includes all of the information required under

Sec. 270.110 (correct signatures, names addresses, maps, drawings,

specifications of the wastes; information to demonstrate compliance

with applicable part 264, 266 and 268 requirements; information

necessary for the Regional Administrator to carry out his duties

[[Page 65894]]

under Sec. 270.3; and other information specified by the Director) and

he determines that the information is in fact sufficient to show

compliance with the regulatory standards, then he will make a tentative

decision to approve the RAP application and prepare a draft RAP. If the

Director finds that the RAP application does not meet these criteria,

and if the facility owner or operator fails or refuses to correct any

deficiencies, then the Director will make a tentative decision to deny

the RAP application, and prepare a notice of intent to deny. The most

critical parts of the Director's determination is whether or not

operation according to the RAP will ensure compliance with applicable

Part 264, 266, and 268 requirements.

As with any permit, the Director may deny the RAP application

either in its entirety or in part. If the Director decides to either

approve or deny the RAP application, he will then solicit, consider,

and respond to public comments before making his final decision on the

RAP application. The Director's decision is called a ``tentative''

decision at this stage until he has solicited, considered, and

responded to public comments.

Because it is important for the regulated community, the

regulators, and the public to clearly understand the basis for the

Director's decision to approve or deny a RAP application, EPA has added

these provisions to provide clarity.

The proposed rule at Sec. 269.43(e) simply stated that ``[w]hen the

Director determines that a draft RAP is complete and adequately

demonstrates compliance with applicable requirements, the RMP shall be

approved according to the [certain specified] procedures.'' Today's

final rule provisions of Sec. 270.130 make express both what was meant

by ``complete and adequate,'' and the Agency's underlying assumption

that, like the traditional permit process, the RAP approval process

will be one of interaction between the applicant and the Agency. In

addition, the regulations allow the Director to tentatively deny the

RAP in whole or in part, where appropriate.

Thus, in a tentative permit decision, the Director would solicit

public comment both on the parts of the RAP that are tentatively

approved and on the parts that are tentatively denied.

As stated above, EPA expects the RAP approval process will be one

of interaction between the RAP applicant and the Director until the

Director is satisfied that he has enough information to tentatively

approve or deny the RAP application. Thus, the rule has been written to

make this expectation clear. Of course, the exact number of

opportunities the Director should provide to correct deficiencies will

depend on site-specific circumstances. The rule does make clear,

however, that some opportunity to correct deficiencies must be given

before a RAP application is denied.

M. What Must the Director Include in a Draft RAP? (Sec. 270.135)

Sections 270.135(a) and (b) specify the contents of a draft RAP. In

today's rule, EPA is allowing flexibility in the format for RAPs. EPA

expects that the RAP application will form the basis of the draft RAP.

EPA does not expect the regulatory agency to engage in a time-consuming

process of re-creating or re-formatting all of the information in the

RAP application. Generally, EPA believes that records of decision,

workplans, and other documents developed under existing cleanup

programs such as CERCLA and RCRA will provide good models for RAPs.

Under Sec. 270.135(a) and (b) the Director is required to include in

the draft RAP:

(1) The information from the RAP application discussed above

(Sec. 270.110(a)-(f)) (for example, name of the facility, ID number,

site boundaries, etc.); and

(2) Terms and conditions required under this section.

Section 270.135(b) specifies that RAPs must include:

(1) Terms and conditions necessary to ensure that the operating

requirements specified in the RAP comply with the applicable provisions

of parts 264, 266, and 268;

(2) Terms and conditions in Sec. 270.30;

(3) Terms and conditions for modifying, revoking and reissuing, and

terminating the RAP; and

(4) any additional terms and conditions necessary to protect human

health and the environment.

The Agency received no adverse comment on the proposed requirement

that RAPs include terms and conditions that ensure compliance with the

applicable provisions of Parts 264, 266, and 268 (proposed sections

269.40(b) and 269.41(c)(2)), and therefore today is finalizing this

requirement at Sec. 270.135(b)(i) with minor editorial changes. To

promote streamlining, however, the final rule also expressly allows

these requirements to be specified ``expressly or by reference.'' In

other words, when RAP conditions are based solely on what is required

by the regulations (that is, there is no need to establish site-

specific conditions), the RAP may either duplicate the text of the

requirements from the regulations in describing what is required under

the RAP, or may simply cite the applicable requirements. Of course,

many Subtitle C requirements, such as design requirements for CAMUs,

temporary units, and staging piles in Part 264, must be derived site-

specifically, and therefore, must be included in each individual RAP if

these units will be used.

The Agency did not specifically request comment on requiring the

terms and conditions in Sec. 270.30 to apply to RAPs. However, the

Agency believes these terms and conditions provide legal clarity on

such issues as ``duty to comply,'' ``duty to reapply,'' and

``inspection and entry,'' and will ensure effective implementation of

the RAP.

Therefore, EPA has added this requirement to RAPs at

Sec. 270.135(b)(2). Many of the conditions in Sec. 270.30 will not

apply to specific actions taken under a RAP. For example, if all

remediation waste is managed on-site under the RAP, then there will be

no requirement for manifests, and therefore the manifest discrepancy

report required under Sec. 270.30(l)(7) will not apply to that RAP.

Similarly, the monitoring requirements in Sec. 270.30(j) would apply

only to monitoring associated with units regulated under the RAP. It

would not apply to general site investigation or monitoring at the

cleanup site. In the future, EPA may further simplify these

requirements and revise them so they are tailored more specifically to

cleanup, and so that they provide greater flexibility.

Section 270.135(b)(3) requires the Director to include in the draft

RAP the procedures for modifying, revoking and reissuing, and

terminating the RAP, as is required under Secs. 270.175, 270.180 and

270.185. These procedures are discussed fully in the preamble sections

discussing the procedures for modification, revocation and reissuance,

and termination in Secs. 270.175, 270.180 and 270.185.

Finally, the requirement of Sec. 270.135(b)(4) for the Director to

include ``any additional terms or conditions necessary to protect human

health and the environment,'' is simply a codification of RCRA section

3005(c)(3), commonly referred to as RCRA's ``omnibus permit authority

provision.'' This provision allows the Director to add terms and

conditions necessary to protect human health and the environment as

concerns the activities expressly permitted under the RAP.

However, the Agency has also added a degree of specificity to this

provision in the final rule. Specifically, today's rule expressly

provides that these

[[Page 65895]]

additional terms or conditions include, ``any additional terms and

conditions ... necessary to respond to spills and leaks during use of

any units permitted under the RAP.''

The Agency added this provision to clarify that, although

remediation-only facilities are no longer subject to RCRA section

3004(u) facility-wide corrective action, they do not escape cleanup

responsibilities for the units permitted by the RAP. Because any units

permitted under a RAP will be subject to the applicable part 264

requirements and must be approved by the Director in the RAP, EPA

believes that most units will not experience problems with spills or

leaks, because they will be well designed and maintained.

Also, most units permitted under RAPs will be shorter term than

most units at operating TSDF, and so will be less likely to develop

leaks. However, if unlikely spills or leaks occur, these units are not

exempt from spill response and cleanup requirements specific to these

units. The omnibus provisions in Sec. 270.135(b)(4) provide an added

option for dealing with these events from activities permitted under

the RAP.

The RAP is not required to include information or conditions

related to cleanup levels, site investigation, remedy selection, or

similar requirements not specifically related to hazardous remediation

waste management subject to RCRA permitting.

New Sec. 270.135(c) provides that if the draft RAP is part of

another document, as described in Sec. 270.80(d)(2), the Director must

clearly identify the components of that document that constitute the

draft RAP. This is the same requirement for the Director as the earlier

requirement for the RAP applicant (in new Sec. 270.125), that if the

RAP applicant prepares the RAP application as part of another document,

he must identify the portions of the other document that make up the

RAP application. This simply allows for consolidation of documents when

other decisions, such as remedy selection, are occurring at the same

time as decisions on the RAP, and allows the Director to prepare only

one document instead of several. This approach was proposed at

Sec. 269.40(e)(2) and EPA did not receive any negative comments on this

procedure.

1. Provisions of the Proposal That Are Not Included in the Final Rule

The proposed rule also contained several additional requirements

for RAP terms and conditions that the Agency is not finalizing today.

First, during the development of the proposal, some of the FACA

Committee members expressed concerns that certain cleanup activities

may unintentionally cause additional contamination through cross-media

transfer of contaminants (that is, transfer of contaminants to clean

soil, air, and surface or ground water).

In response to these concerns, EPA proposed (at Sec. 269.41(c)(7))

to require the facility owner/operator to submit information that

demonstrates that any proposed treatment system will be designed and

operated in a manner that will adequately control the transfer of

pollutants to other environmental media. This aspect of the proposal

was important because the proposal exempted significant portions of

remediation waste from unit-specific standards.

However, in today's final rule all hazardous remediation wastes

remain subject to Subtitle C requirements, including those designed to

prevent cross media contamination (for example, the requirements in

Sec. 264.175 for tanks, Sec. 264.221 for surface impoundments, and

Sec. 264.251 for waste piles, covering such cross-media prevention

techniques as liners and covers, and controls to prevent mi

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