Hazardous Waste Management System; Identification and Listing of Hazardous Waste; Petroleum Refining Process Wastes; Exemption for Leachate from Non-Hazardous Waste Landfills; Final Rule.

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 261

[FRL-6232-3]

RIN 2050-AE61

Hazardous Waste Management System; Identification and Listing of

Hazardous Waste; Petroleum Refining Process Wastes; Exemption for

Leachate from Non-Hazardous Waste Landfills; Final Rule.

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: Today EPA is temporarily deferring from the definition of

hazardous waste landfill leachate and landfill gas condensate derived

from previously disposed wastes that now meet the listing descriptions

of one or more of the recently added petroleum refinery wastes (waste

codes K169, K170, K171, and K172, promulgated August 6, 1998, 63 FR

42110). Pending further study of this issue, this deferral is provided

to landfill leachate and gas condensate that is subject to regulation

under the Clean Water Act (CWA). EPA is also stipulating that as one

condition of this deferral, this leachate may not ordinarily be managed

in surface impoundments or otherwise placed on the land after February

13, 2001.

EFFECTIVE DATE: This rule is effective February 5, 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-1999-PR3F-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 Ross Elliott, Office of Solid Waste 5304W, U.S.

Environmental Protection Agency, 401 M Street, SW, Washington, DC

20460, 703 308-8748, [email protected].

SUPPLEMENTARY INFORMATION:

The index and the following supporting materials are available on

the Internet: Response to Comment Document. Follow these instructions

to access the information electronically: www.epa.gov/epaoswer/

hazwaste/id/petroleum/ FTP: ftp.epa.gov, Login: anonymous, Password:

your Internet address, Files are located in /pub/epaoswer.

In addition, the document entitled Development Document for

Proposed Effluent Limitations Guidelines and Standards for the

Landfills Point Source Category, EPA-821-R-97-022, January 1998, placed

in the docket for this notice, can be obtained through the internet at

www.epa.gov/OST/guide/2lndfls/techdev.html.

The contents of the preamble to this final rule are listed in the

following outline:

I. Affected Entities

II. Legal Authority and Background

III. Summary of NODA and Proposed Temporary Deferral

IV. Today's Action

V. Response to Comments

VI. Administrative Assessments

A. Executive Order 12866

B. Regulatory Flexibility Act

C. Unfunded Mandates Reform Act

D. Paperwork Reduction Act

E. Executive Order 12875: Enhancing the Intergovernmental

Partnership

F. Executive Order 13084: Consultation and Coordination with

Indian Tribal Governments

G. Executive Order 13045: Protection of Children from

Environmental Risks and Safety Risks

H. National Technology Transfer and Advancement Act of 1995

I. Executive Order 12898: Environmental Justice

VII. The Congressional Review Act

VIII. Rationale for Immediate Effective Date

I. Affected Entities

Entities potentially affected by this action are those landfills,

both commercial and government-owned, that historically received one or

more of the newly-listed petroleum refinery wastes (K169-K172) and that

generate landfill leachate or landfill gas condensate.

II. Legal Authority and Background

These regulations are being promulgated under the authority of

sections 2002(a) and 3001(a), (b) and (e)(2), 3004(g) and (m) of the

Solid Waste Disposal Act (commonly referred to as RCRA), as amended, 42

U.S.C. 6912(a), and 6921(b) and (e)(2).

As described in the August 6, 1998 NODA, very late in the process

of promulgating four new hazardous waste listings, the Agency was

alerted to the concern that any new listings for petroleum wastes may

have potentially significant impacts on the management of leachate

collected from certain non-hazardous waste landfills. Specifically, one

company that owns and operates non-hazardous waste landfills expressed

concern that because some of their facilities have historically

received and disposed of some or all of the waste streams listed in the

final rulemaking published August 6, 1998 (i.e., K169, K170, K171, and

K172), the leachate that is collected and managed from these landfills

would be classified by these same waste codes after the effective date

of the new petroleum waste listings. 63 FR 42190. However, if Subtitle

C regulation were to apply to leachate generated from such landfills,

leachate now trucked to POTWs would likely no longer be managed by

POTWs, since POTW owner/operators (understandably) would not wish their

facilities to become subject to RCRA Subtitle C regulation. This

company argued that this could lead to vastly

[[Page 6807]]

increased treatment and disposal costs without necessarily any

environmental benefit.

Why Would This Leachate be Regulated as Hazardous Waste?

As discussed in the NODA, leachate that is derived from the

treatment, storage, or disposal of listed hazardous wastes is

classified as a hazardous waste by virtue of the ``derived-from'' rule

in 40 CFR 261.3(c)(2). The Agency has been very clear in the past on

the applicability of hazardous waste listings to wastes disposed of

prior to the effective date of a listing, even if the landfill ceases

disposal of the waste when the waste becomes hazardous. 53 FR 31147

(August 17, 1988). EPA also has a well-established interpretation that

listings likewise apply to leachate derived from the disposal of listed

hazardous wastes, including leachate derived from wastes disposed

before a listing effective date which meet the listing description. Id.

EPA's interpretations were upheld by the Court of Appeals for the

District of Columbia Circuit in Chemical Waste Management, Inc. v. EPA,

869 F.2d 1526, 1536-37 (D.C. Cir. 1989). (These points are restated

here to provide context. EPA is not reconsidering or in any other way

reopening these principles for comment or review.)

Of course, as set out in detail in the August 17, 1988 notice, this

does not mean that landfills holding wastes which are now listed as

hazardous become subject to Subtitle C regulation. However, previously

disposed wastes now meeting the listing description, including residues

such as leachate which are derived from such wastes and are actively

managed, do become subject to Subtitle C regulation. 53 FR 31149. In

many cases, indeed most circumstances, no significant regulatory

consequences under RCRA result from leachate management. Active

management of hazardous leachate would often be exempt from Subtitle C

regulation because the usual pattern of management is discharge either

to POTWs via the sewer system (where leachate mixes with domestic

sewage) or to navigable waters, where in both instances the leachate is

excluded from RCRA jurisdiction.\1\ In addition, management of leachate

in wastewater treatment tanks prior to discharge under the CWA is

exempt from RCRA regulation (40 CFR 264.1(g)(6)). However, some

management practices, such as leachate being transported off site to a

POTW in a truck, would not be exempt from Subtitle C regulation as

described in more detail elsewhere in today's document.

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\1\ See RCRA Section 1004(27) and 40 CFR 261.4(a)(1) (domestic

sewage exclusion); see also RCRA Section 1004(27) and 40 CFR

261.4(a)(2) (industrial point source exclusion).

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III. Summary of NODA and Proposed Temporary Deferral

EPA requested comment in the NODA on whether it would be

appropriate to defer temporarily the application of the new petroleum

waste codes to such leachate in order to avoid disruption of ongoing

leachate management activities while the Agency decides how to

integrate the two regulatory schemes (RCRA and CWA), consistent with

RCRA section 1006(b)(1) (which requires EPA to integrate regulations

under RCRA with those of the other statutes implemented by EPA, and to

avoid duplication, to the maximum extent possible consistent with the

goals and policies of RCRA and the other statutes). 63 FR 42192. EPA

specifically requested comment on exempting leachate that would only be

defined as hazardous waste because it was derived from the disposal of

one or more of the newly-listed petroleum refining wastes (K169-K172),

where these wastes were disposed of prior to, and not after, the

effective date of the listing. EPA also solicited comment on the

exemption being conditioned on the leachate being subject to regulation

under the CWA. Finally, EPA asked whether or not the exempt leachate

should be allowed to be managed in non-subtitle C surface impoundments,

a practice which presently occurs at some landfill facilities.

How is Leachate Currently Being Evaluated Under Clean Water Act

Regulations?

As noted in the August 6, 1998 Federal Register, EPA's Office of

Water recently proposed national effluent limitations guidelines and

pretreatment standards for wastewater discharges--most notably,

leachate--from certain types of landfills, including those that would

be covered by this notice. 63 FR 6426 (February 6, 1998). In support of

this proposal, EPA conducted a study of the volume and chemical

composition of wastewaters generated by both Subtitle C (hazardous

waste) and Subtitle D (non-hazardous waste) landfills, including

treatment technologies and management practices currently in use. EPA

proposed effluent limitations (for nine pollutants in the Non-Hazardous

Subcategory) for direct dischargers. 63 FR 6463. Most pertinently for

today's notice, EPA did not propose pretreatment standards for Subtitle

D landfill wastewaters sent to POTWs because the Agency's information

indicated that such standards were not required due to several factors,

including (1) raw leachate data were below published biological

inhibition levels, and (2) other information indicated a lack of

``pass-through'' of toxics (including lack of showing of adverse impact

on POTW sludge quality). 63 FR 6444. For example, the EPA initially

determined, among other things, that the majority of pollutants

typically found in raw, non-hazardous landfill leachate were at

relatively low concentrations that can be adequately treated by a POTW.

EPA's concern is that what appears to be a proper and reasonable

means of managing leachate would be undermined if the leachate becomes

a hazardous waste. This is because some POTWs would become subject to

RCRA permitting requirements if they accepted the leachate, and would

surely cease to accept it, even though (if the CWA proposal is correct)

POTWs can treat the leachate effectively without even the necessity of

pretreatment. Landfills no longer able to send leachate to POTWs would

be forced to develop some sort of alternative arrangement--any of

which, it appears to EPA, would result in undesirable ``duplication''

and disruption which section 1006 (b) seeks to prevent. EPA's

resolution of this problem is set out in the following section.

IV. Today's Action

A. Temporary Deferral of the Listing for Leachate

After consideration of information and comments received in

response to the NODA, the Agency is today temporarily deferring from

the hazardous waste regulations leachate derived from landfills that

have historically received petroleum refining wastes (i.e., wastes that

meet the listing description of one or more of the newly-listed K

wastes), provided the leachate is subject to regulation under the Clean

Water Act requirements, and is not managed in surface impoundments

after February 13, 2001. This deferral will remain in place while EPA

continues to examine the specific aspects of how this leachate is

currently managed, whether subtitle C regulation is appropriate or

inappropriate, and (in particular) how the eventual Clean Water Act

effluent limitation guidelines and standards for landfill wastewaters

will bear on these questions.

Today's deferral does not exempt leachate from being hazardous

waste if the leachate exhibits any of the hazardous waste

characteristics or is

[[Page 6808]]

derived from any waste codes other than the four petroleum refinery

wastes described in the deferral, and any residues from treating exempt

leachate would need to be evaluated against the hazardous waste

characteristics.

EPA is deferring the listing's applicability to the leachate to

avoid the problems alluded to above. Specifically, EPA believes that

current indirect dischargers would have to create some type of

unnecessarily duplicative way of managing the leachate if it becomes a

listed hazardous waste. The most likely alternatives are a sewer hookup

with the POTW or construction of an on-site wastewater treatment

system. It appears that any alternative would be unnecessarily

duplicative (putting aside for the moment the issue of management in

surface impoundments), assuming the rationale of the proposed CWA rule

holds, because POTWs can already fully treat the leachate without need

for treatment by any other entity. Indeed, this same concern is

expressed in the Clean Water Act, which states that pretreatment

standards are only to be established for pollutants which interfere

with, pass through or otherwise are incompatible with treatment by the

POTW. CWA section 307(b)(1). Put another way, EPA is concerned about

forcing pretreatment of leachate even though pretreatment is neither

required by the CWA nor needed. EPA is also concerned about other

potential disruption of existing, reasonable methods of leachate

management. The Agency believes that the issue of whether disruptions

can be minimized through integration of CWA and RCRA rules will be more

amenable to resolution once the CWA rulemaking in completed.

EPA is therefore acting to prevent this potential needless

duplication and disruption by deferring the applicability of the

listing to leachate which is subject to regulation under the CWA, which

in this case includes not only direct discharges under NPDES and

indirect discharges to POTWs through a sewer system, but also transfers

to POTWs by truck, rail, or dedicated pipeline (a chief concern

motivating today's rule). Therefore, today's regulatory text

specifically mentions transfers of leachate to POTWs by truck, rail, or

dedicated pipeline as a means to satisfy the condition of managing

leachate subject to regulation under the CWA. Since this deferral is

directly tied to the on-going CWA rulemaking for landfill wastewaters,

the deferral will last at least until that rulemaking is completed.

However, the Clean Water Act rules, because they apply to leachate

when it is discharged, do not on their own assure safe management

upstream of that point. These rules on their own, therefore, do not

address the prime RCRA concern: assuring safety of wastes when they are

land disposed, particularly when disposed in surface impoundments. Such

disposal is a key RCRA concern. See RCRA section 1002 (b)(7) (``certain

classes of land disposal facilities are not capable of assuring long-

term containment of certain hazardous wastes, and to avoid substantial

risk to human health and the environment, reliance on land disposal

should be minimized or eliminated and land disposal, particularly

landfill and surface impoundment, should be the least favored method

for managing hazardous wastes''); see also, American Mining Congress v.

EPA, 907 F. 2d 1179, 1187 (D.C. Cir. 1990) (statutory antipathy to

management in surface impoundments). It is also clear that section

1006(b) cannot be invoked to ``wholly circumvent'' critical statutory

provisions. Chemical Waste Management v. EPA, 976 F. 2d 2, 25 (D.C.

Cir. 1992). The fact that the leachate may not warrant pretreatment

before discharge of course does not mean that the leachate can be

safely discharged into groundwater via leaking impoundments. On August

6, 1998 EPA listed four petroleum refining process wastes as hazardous

(63 FR 42110). Under the derived-from rule, EPA presumes that the

leachate derived from these listed wastes may pose risks, particularly

when managed in land-based units such as surface impoundments. In light

of this, EPA believes the approach that best integrates RCRA and the

CWA during EPA's examination of a long-term accommodation, is to

condition the deferral on replacing existing surface impoundment

storage with storage in tanks (or operate with fully regulated subtitle

C impoundments). The EPA intends to continue studying the broader issue

of the risks that may be posed by managing wastewaters in surface

impoundments, and is conducting a surface impoundment study that will

characterize these types of risks. The scope of this study will include

surface impoundments in use at various types of facilities, including

certain landfills that manage industrial and municipal solid waste.

EPA received support for this position from commenters. One

commenter representing a national environmental organization strongly

favored this result. Some MSWLF owner/operators also stated that they

would replace their surface impoundments with leachate storage tanks,

provided sufficient time is allowed to retrofit.

EPA agrees that surface impoundments cannot be replaced

immediately. The statute, in fact, contemplates a four year period to

replace or retrofit impoundments. See RCRA section 3005(j)(1). EPA

believes further, however, that a period shorter than four years is

appropriate here. Based on the information received during the comment

period, it appears that the use of surface impoundments at MSWLFs to

manage this leachate is not widespread (e.g., approximately 8

impoundments were identified out of 52 ``affected'' landfills)

2. Given the reported volumes of leachate generated from

MSWLFs that were identified in comments as affected by the new

petroleum refinery waste listings, the projected size of these

impoundments also is relatively small. One commenter representing a

large number of affected landfills in fact stated that 24 months was

adequate time to allow for the construction and operation of tanks to

replace the impoundments at those MSWLFs that are affected by the

petroleum refinery waste listings and are presently using impoundments

to manage some or all of their leachate. EPA therefore believes that

two years is a reasonable time for impoundment replacement and

accordingly is providing in today's rule that the temporary deferral

applies to leachate derived exclusively from the newly-listed petroleum

wastes, and that the deferral is conditioned on managing the leachate

in tanks or other non-land disposal units. This condition takes effect

in two years. During the two year period, the temporary deferral

applies to the leachate even if managed in impoundments. Impoundments

which stop receiving the leachate (or any other hazardous waste) after

two years are inactive units which are not subject to subtitle C

requirements. See generally 55 FR 39409 (Sept. 27, 1990) (disposal

units holding hazardous wastes on date of listing or identification of

that waste as hazardous are not subject to subtitle C requirements so

long as additional hazardous wastes are not added to the unit and the

hazardous wastes in the unit are not actively managed). Should the

impoundments receive hazardous waste (including leachate which

otherwise would be subject to this temporary deferral) after the two

year date, the impoundment unit would

[[Page 6809]]

become a regulated unit subject to all subtitle C requirements. The EPA

feels that this approach minimizes the immediate disruption that would

occur should these impoundments suddenly be forced to close, while

providing an environmentally beneficial result in the expeditious

conversion of these impoundments to tanks.

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\2\ Comments PR3A-00002, 00007, L0001, L0002, L0003; also, Notes

from Meeting Between EPA and Representatives of Landfill Industry,

Memo to Docket F-98-PR3A-FFFFF from Ross Elliott, January 16, 1999.

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V. Response to Comments

EPA was specific in stating in the NODA that the scope of this

proceeding is the narrow classification and management of leachate

generated from landfills that disposed of one or more of the newly-

listed petroleum wastes prior to the effective date, where the

leachates are not defined as hazardous for any other reason, and are

(in particular) being managed pursuant to Clean Water Act requirements.

The EPA received comments primarily on this issue, and is responding to

those comments in this preamble. EPA is not addressing comments raising

regulatory and policy issues not directly related to the temporary

deferral. EPA is retaining those comments as part of the record of this

action.

A. Need for Temporary Deferral

Nearly all commenters agreed that a deferral for landfill leachate,

that would otherwise be classified as listed hazardous waste due to the

new petroleum refinery listings, was necessary to avoid disrupting

current leachate management practices while allowing the EPA to

evaluate the issue more carefully.

One commenter, however, found the Agency's record in support of the

NODA to be lacking sufficient information to determine whether a

deferral is necessary. This comment seemed to state that there should

be more available information before EPA makes a risk-based

determination regarding whether to regulate these leachates. Today's

action is a narrower determination, however, and rests on bases fully

set out in the NODA. EPA is issuing the temporary deferral to avoid the

potential duplication and disruption which could be created when

integrating the requirements imposed on leachate management by the

petroleum listing rule, and the pending Clean Water Act regulation. EPA

needs to take action now since affected persons would face a shutdown

of current leachate management systems (in particular, by POTWs

receiving trucked leachate) and be forced immediately to construct

alternative leachate treatment facilities which could well prove to be

unnecessary. There will be opportunities to revisit the temporary

deferral, most logically at the conclusion of the Clean Water Act

rulemaking.

B. What Are the Implications of the Temporary Deferral for Related

Management Practices Preceding Discharge Pursuant to CWA Limitations

and Standards?

1. Landfill Gas Condensate

One commenter asked whether landfill gas condensate would be

regulated as a derived-from hazardous waste, should the landfill owner/

operator determine that the landfill disposed of any of the petroleum

refinery wastes prior to, but not after, the effective date. Landfill

gas condensate is the liquid (primarily water) from moisture within the

landfill gas being recovered, which is generated as a result of gas

recovery processes at the municipal solid waste landfill (see 40 CFR

258.28(c)(2)) (see item B.4. below). The commenter stated that landfill

gas condensate is often co-managed with leachate, by either treatment

and discharge under the Clean Water Act, or by recirculation (discussed

in more detail later). Based on the limited data currently available,

it appears that this condensate is substantially identical (in terms of

identity and concentration of hazardous constituents) to the leachate.

In fact, EPA's proposed rule on effluent guidelines and pretreatment

standards for landfills includes condensate along with leachate in the

group of ``landfill wastewaters'' subject to that rulemaking. 63 FR

6429. Therefore, the Agency is including landfill gas condensate along

with landfill leachate in the scope of today's deferral.

2. Leachate Collected and Recirculated Within the Landfill

Two commenters also questioned how a temporary deferral would

affect leachate (and condensate) which is recirculated within the

landfill, a relatively common practice (see 56 FR 51055 (October 9,

1991)). Under existing interpretations, movement of waste within a land

disposal unit is not itself land disposal. See, e.g., 55 FR 8758-8760

(March 8, 1990); 55 FR 30843 (July 27, 1990). Consequently, such

activity would not result in subtitle C regulation of the unit so long

as the leachate was merely recirculated in the unit. 55 FR 8760; 55 FR

30843. This would be the result whether or not EPA adopted the

temporary deferral in today's rule.3

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\3\ EPA thus disagrees with the implication of the comment that

a section 1006 rationale would not apply to such recirculation,

since the comment's premise is that recirculation of collected

leachate within the landfill automatically makes the landfill a

regulated unit if the leachate is a hazardous waste.

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3. Wastes Derived From the Leachate

Two commenters asked about the status of solids generated from on-

site wastewater treatment (e.g., filter cake). They stated that this is

particularly important because these solids are put back into the

landfill from which the leachate was collected for treatment. Because

today's deferral applies at the point of generation of the leachate,

which would be prior to any wastewater treatment the leachate might

undergo as part of compliance with the CWA (including on-site

wastewater treatment), these solids would be derived from treating a

non-listed waste. Therefore, assuming the conditions of the deferral

promulgated today for leachate apply (and therefore the leachate is

temporarily not a listed waste), solids from treating this leachate

would only be hazardous wastes if they are listed independently (which

they are not under existing rules), or exhibit a characteristic of

hazardous waste. EPA considered whether there should be a concern about

the fate of the hazardous constituents that might be contained in the

solids, particularly if the source of the constituents was from the

previously disposed refinery wastes. EPA believes this concern is

reduced, however, because the hazardous constituents of concern that

caused most of these newly-listed petroleum wastes to be listed

(benzene and arsenic) are covered by the Toxicity Characteristic (TC).

Further, an estimate of the volume of sludges generated from treating

leachate (using leachate volumes submitted to EPA in comments, and

assuming a 0.1% solids content and a 50% recovery efficiency) is about

100 metric tons per year, much lower than the volume of the newly-

listed refinery wastes used in the risk assessment in support of the

listings (70,300 metric tons per year in 1992).

4. Landfill Gas Management

Landfills can generate gas, which is derived not from the leachate

but from the disposed solid wastes. It is highly desirable to control

these gaseous emissions both for safety reasons (to avoid potential

fires and explosions) and to prevent air pollution (especially from

methane, a significant greenhouse gas). Municipal landfills do

typically monitor and control the emission of explosive gases (methane

in particular). See 40 CFR 258.23. Clean Air Act regulations further

require municipal landfills above a given design capacity (2.5 million

megagrams and 2.5 million cubic meters) to capture and control

[[Page 6810]]

non-methane organic compounds (NMOCs) if greater than 50 megagrams of

NMOCs per year are emitted. See 40 CFR part 60, subparts Cc and WWW

(implementing section 111 of the Clean Air Act). EPA does not regard

any of these salutary landfill gas management techniques as

constituting active management of the landfilled waste which could

result in subtitle C regulation of the landfill. See generally 54 FR

36597 (Sept. 1, 1989; 55 FR 39409 (Sept. 27, 1990). The concept does

not include management of releases from otherwise inactive units.

Indeed, a different reading would create an incentive not to control

such releases. EPA consequently does not view the August 6, 1998

listing rule as triggering subtitle C regulation of landfill gas

control operations at landfills which previously received the listed

wastes. (It should also be noted that the burning of landfill gas for

energy recovery, even if the gas is hazardous waste, is exempt from

Subtitle C regulation. 56 FR 7203, February 21, 1991.)

C. Conditions of Temporary Deferral

As described earlier in this document, EPA requested comment on

several conditions of the temporary deferral. The question of whether

the proposed deferral should apply to impoundments managing the

leachate generated comments on both sides of the issue. Some commenters

felt that well-designed surface impoundments located at municipal solid

waste landfills provided adequate protection to groundwater. As

discussed earlier, EPA generally disagrees and has conditioned the

temporary deferral on cessation of use of surface impoundments within

two years. There is one type of impoundment, however, that could

continue to receive the leachate without losing the benefit of the

temporary deferral. A commenter stated that one of their landfill

facilities historically received some of the newly-listed petroleum

refinery wastes, and that facility maintains a surface impoundment with

the capacity to store 30 days worth of leachate accumulation in the

event of an emergency shutdown of the treatment plant located on site.

The commenter stated that this impoundment has not been used in over

two years, is constructed with two synthetic liners, and has a floating

roof. The commenter explained that requiring this impoundment to be

replaced with tanks would be an unnecessary expense with little

environmental benefit. The Agency agrees with this commenter that it

may not make sense to replace an impoundment that is not in use, or

that is used infrequently in emergency situations, while this temporary

deferral is in effect. This is because the critical risk normally posed

by impoundments, creation of a pressure head that forces downward

dispersion of leachate and other liquid in the impoundment (see

Chemical Manufacturers Ass'n v. EPA, 919 F. 2d 158, 166-67, (D.C. Cir.

1990)) would be less present for this type of emergency impoundment

since by definition it is only used in emergency situations, and

therefore will not contain liquid most of the time. It seems better

policy not to require replacement of this type of impoundment pending

more analysis of the leachate. Therefore, the EPA is adding a provision

to the temporary deferral to allow the use of surface impoundments for

the non-routine, emergency storage of leachate exempted under today's

final rule, provided the exempt leachate is removed from the

impoundments and either returned to the tank-based wastewater treatment

system, or otherwise discharged under the CWA, as soon as practicable

after the emergency ends.

D. Determining Whether a Landfill Previously Received the Newly Listed

Wastes

One commenter requested that EPA clarify what specific records or

other information are required to determine whether a landfill

historically received and disposed of one or more of the newly-listed

petroleum wastes. Specifically, the commenter cited a situation where

several petroleum refineries are located within a landfill's service

area, and whether they must presume that the landfill accepted the

refinery wastes that the Agency later listed as hazardous. Determining

whether a landfill accepted a particular listed waste is a case-by-case

factual determination. Ordinarily, however, the presence of a petroleum

refinery in the general service area of the landfill, without more

information, would not require a determination that the listed wastes

were disposed at the facility. See 53 FR 51444 (Dec. 21, 1988); 55 FR

8758 (Mar. 9, 1990); also 61 FR 18805 (April 29, 1996), 63 FR 28619

(May 26, 1998).

VI. Administrative Assessments

A. Executive Order 12866

Under Executive Order 12866, EPA must determine whether a

regulatory action is significant and, therefore, subject to OMB review

and the other provisions of the Executive Order. A significant

regulatory action is defined by Executive Order 12866 as one that may:

(1) Have an annual effect on the economy of $100 million or more or

adversely affect in a material way the economy, a sector of the

economy, productivity, competition, jobs, the environment, public

health or safety, or State, local, or tribal governments or

communities;

(2) Create a serious inconsistency or otherwise interfere with an

action taken or planned by another agency;

(3) Materially alter the budgetary impact of entitlements, grants,

user fees, or loan programs or rights and obligations or recipients

thereof; or

(4) Raise novel legal or policy issues arising out of legal

mandates, the President's priorities, or the principles set forth in

Executive Order 12866.

Pursuant to the terms of Executive Order 12866, it has been

determined that this rule is a ``significant regulatory action''

because of policy issues arising out of legal mandates. The leachate

management option elected by the Agency does not, since its expected

annual cost is so low (see Economic Analysis for explanation), affect

the Executive Order 12866 determination that would otherwise be made.

As such, this action was submitted to OMB for review. Changes made in

response to OMB suggestions or recommendations are documented in the

public record.

1. Economic Analysis

Background

Common disposal practices for the four petroleum refining wastes

are off-site disposal in industrial and municipal solid waste

landfills. Design criteria require the installation of leachate

collection systems at new landfills (or lateral expansions of existing

landfills). Subsequently, leachate derived from the four petroleum

wastes has traditionally been collected and recirculated, treated, or

discharged under the Clean Water Act. As described in more detail in

the August 6, 1998 NODA, as well as in today's rule, the listing for

the four petroleum refinery wastes on August 6, 1998 (63 FR 42110),

results in leachate that is actively managed from these landfills to be

hazardous under the derived-from rule. Also, when the leachate from

these four wastes mixes with leachate from other wastes disposed in

these landfills, the entire leachate quantity is considered hazardous

under the mixture rule. By changing the regulatory status of this

leachate to be covered under Subtitle C of RCRA, these landfills may

bear an increase in management costs. EPA estimates that between 58 to

125 landfills may be affected. The range

[[Page 6811]]

reflects the difference between known recipients of the wastes (based

on information received in comments), and information about other

landfills that possibly received the wastes, from the economic analysis

in support of the petroleum waste listing rulemaking.

Regulatory Options

The following two regulatory actions have been evaluated:

1. Temporary Deferral (including Surface Impoundments Converted to

Tanks within 2 Years): Upon signature the leachate is exempt from being

regulated as hazardous under RCRA Subtitle C if it is appropriately

managed under the Clean Water Act (e.g., NPDES discharge, POTW disposal

via pipeline, and trucking to an off-site POTW). After two years,

surface impoundments will no longer be allowed to manage exempt

leachate. If the leachate is managed in a surface impoundment after two

years the impoundment will be subject to regulation under Subtitle C.

This regulatory option assumes that landfill operators will avoid

Subtitle C regulation by building tank systems to replace their

impoundments before the two-year deadline. However, after two years

impoundments can still be used for emergency storage of exempt leachate

and it will continue to remain exempt from Subtitle C regulation.

2. Standard Listing: Treat the Leachate as Hazardous Waste and

Subject to Subtitle C Regulation under the Derived-From and Mixture

Rules. Existing exemptions apply under the Standard Listing regulatory

option including the wastewater treatment unit exemption (on-site tanks

and associated piping are not Subject to Subtitle C permits and

standards if they meet the definition of wastewater treatment unit,

discussed in detail in the August 6, 1998 NODA). In addition, leachate

collection sumps are considered to be an integral part of the leachate

collection system at Subtitle C landfills and do not need to meet

Subpart J standards for tanks. Leachate collected and recirculated back

into the landfill the Agency considers not to be ``actively managed''

and therefore does not trigger listing regulations. Indirect discharge

of leachate through the sewer to non-POTWs, and transfer of leachate to

a POTW by truck, rail, or dedicated pipe, are both practices under

which the leachate would not be excluded from the definition of solid

waste; transfer of non-exempt leachate off-site for treatment is a

practice that would preclude the wastewater treatment unit exemption at

the landfill site; and management of leachate in surface impoundments

is a management practice that is not exempt.

Cost Methodology

The basic cost methodology involved the following steps:

1. Estimate number of facilities involved. The uncertainty in this

is the primary reason for the costs range given below.

2. Estimate current or baseline costs. These include costs based on

data provided in comments submitted by industry, and reflect costs

prior to the date on which the petroleum listings become effective

(February 8, 1999).

3. Determine procedures for the management of the wastes under

proposed regulatory option(s). Many steps are involved in this waste

management train.

4. Determine leachate quantities involved.

5. Determine costs to manage leachate under the proposed option(s).

6. Determine the incremental cost associated with each option.

Compliance Cost Estimates

Table 1 below presents estimated incremental costs for the two

options noted. The very marked difference between the costs of the two

options is attributable largely to the costs associated with trucking

hazardous leachate to commercial wastewater treatment facilities

instead of POTWs, costs which are not relevant under the Temporary

Deferral option. The difference between ``known'' and ``worst case''

costs is attributable to the uncertainty in landfill count as noted

above. The following summarizes Table 1:

Incremental compliance costs for the known (58 landfills) and

estimated worst case (125 landfills) population of affected landfills

that received these four waste streams are estimated to range from $62

to $219 million under the Standard Listing regulatory option. This

range is due to the two different populations of affected landfills

used (i.e., known and worst case), and also reflects a 10-year period

of leachate generation and a 20-year amortization period. However, the

upper bound of this cost range may be considerably lower as the result

of possible savings gained through contract negotiations for repeat

customers who provide consistent revenue streams to shipping companies

through their regularly scheduled shipments of leachate. The Cost

Impact Analysis background document prepared in support of today's rule

contains additional incremental cost estimates under the Standard

Listing option, using differing periods of leachate generation and cost

amortization.

Incremental costs are estimated to be between $130,000 and $280,000

annually for the Clean Water Act Exemption with Two-year Impoundment

Replacement Deferral regulatory option, with only 8 to 17 of the

affected landfills expected to currently operate a surface impoundment.

Table 1.--Compliance Costs Estimated for Landfills that Received Petroleum (K169--K172) Wastes

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

Trucked to Truck to POTW/ Recirculate Evaporation No leachate

POTW Recirculate only POTW hardpipe NPDES pond or condensate Total

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

STANDARD LISTING REGULATORY

OPTION

Incremental Average $2.64-$4.34 $2.16-$3.54 0 0 $0.01 $0.01 0 .............

Annual Compliance Cost

per Landfill.

($million/landfill)......

Known Total.............. $47-$78 $15-$25 0 0 $0.05 $0.01 0 $62-$103

($ million/year)......... (18 LF; 0 SI) (7 LF; 1 SI) (11 LF; 2 SI) (12 LF; 0 SI) (5 LF; 4 SI) (1 LF; 1 SI) (4 LF; 0 SI) (58 LF; 8 SI)

Worst Case............... $103-$169 $30-$50 0 0 $0.11 $0.02 0 $133-$219

($ million/year)......... (39 LF; 0 SI) (14 LF; 2 SI) (23 LF; 4 SI) (27 LF; 0 SI) (11 LF; 9 SI) (2 LF; 2 SI) (9 LF; 0 SI) (125 LF; 17

SI)

TEMPORARY DEFERRAL REGULATORY

OPTION (Surface Impoundments

Converted to Tank Systems w/

in 2 Years)\1\

Incremental Average 0 $0.006 $0.002 0 $0.012 $0.009 0 .............

Annual Compliance Cost

per Landfill.

($million/landfill)......

Known Total.............. 0 $0.042 $0.022 0 $0.060 $0.009 0 $0.13

($ million/year)......... (18 LF; 0 SI) (7 LF; 1 SI) (11 LF; 2 SI) (12 LF; 0 SI) (5 LF; 4 SI) (1 LF; 1 SI) (4 LF; 0 SI) (58 LF; 8 SI)

[[Page 6812]]

Worst Case............... 0 $0.084 $0.046 0 $0.132 $0.018 0 $0.28

($ million/year)......... (39 LF; 0 SI) (14 LF; 2 SI) (23 LF; 4 SI) (27 LF; 0 SI) (11 LF; 9 SI) (2 LF; 2 SI) (9 LF; 0 SI) (125 LF; 17

SI)

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

\1\ This regulatory option assumes that surface impoundments will be closed and replaced with newly constructed tank systems w/in 2 years. It assumes

that an exemption from Subtitle C regulation is granted up until the point the leachate enters any impoundment.

B. Regulatory Flexibility Act

Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as

amended by the Small Business Regulatory Enforcement Fairness Act

(SBREFA) of 1996) whenever an agency is required to publish a notice of

rulemaking for any proposed or final rule, it must prepare and make

available for public comment a regulatory flexibility analysis that

describes the effect of the rule on small entities (i.e., small

businesses, small organizations, and small governmental jurisdictions).

However, no regulatory flexibility analysis is required if the head of

an agency certifies the rule will not have a significant economic

impact on a substantial number of small entities.

SBREFA amended the Regulatory Flexibility Act to require Federal

agencies to provide a statement of the factual basis for certifying

that a rule will not have a significant economic impact on a

substantial number of small entities. The following discussion explains

EPA's determination.

The Regulatory Flexibility Act (RFA) of 1980 requires Federal

agencies to consider impacts on ``small entities'' throughout the

regulatory process. Section 603 of the RFA calls for an initial

screening analysis to be performed to determine whether small entities

will be adversely affected by the regulation. Larger, regional

landfills are more likely to have managed industrial waste along with

municipal waste (and therefore be potentially affected by this rule),

and are typically entities of larger business organizations. However,

the costs for the selected management option are very low, even for

those small and municipally-owned landfills that have determined they

are affected by today's deferral (the average annual cost of the

selected management option is approximately $15,000/year per facility

for those facilities managing leachate in surface impoundments).

Therefore, EPA concludes that there will be no significant impact on

small entities from the regulatory action selected.

C. Unfunded Mandates Reform Act

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public

Law 104-4, establishes requirements for Federal agencies to assess the

effects of their regulatory actions on State, local, and tribal

governments and the private sector. Under section 202 of the UMRA, EPA

generally must prepare a written statement, including a cost-benefit

analysis, for proposed and final rules with ``Federal mandates'' that

may result in expenditures to State, local, and tribal governments, in

the aggregate, or to the private sector, of $100 million or more in any

one year. Before promulgating an EPA rule for which a written statement

is needed, section 205 of the UMRA generally requires EPA to identify

and consider a reasonable number of regulatory alternatives and adopt

the least costly, most cost-effective or least burdensome alternative

that achieves the objectives of the rule. The provisions of section 205

do not apply when they are inconsistent with applicable law. Moreover,

section 205 allows EPA to adopt an alternative other than the least

costly, most cost-effective or least burdensome alternative if the

Administrator publishes with the final rule an explanation why that

alternative was not adopted. Before EPA establishes any regulatory

requirements that may significantly or uniquely affect small

governments, including tribal governments, it must have developed under

section 203 of the UMRA a small government agency plan. The plan must

provide for notifying potentially affected small governments, enabling

officials of affected small governments to have meaningful and timely

input in the development of EPA regulatory proposals with significant

Federal intergovernmental mandates, and informing, educating, and

advising small governments on compliance with the regulatory

requirements.

The Agency's analysis of compliance with the Unfunded Mandates

Reform Act (UMRA) of 1995 found that the proposed action imposes no

enforceable duty on any State, local or tribal governments or the

private sector; thus today's rule is not subject to the requirements of

sections 202 and 205 of UMRA.

D. Paperwork Reduction Act

This rule does not contain any new information collection

requirements subject to OMB review under the Paperwork Reduction Act of

1995, 44 U.S.C. 3501 et seq. Facilities will have to comply with the

existing Subtitle C recordkeeping and reporting requirements for the

newly listed waste streams.

To the extent that this rule imposes any information collection

requirements under existing RCRA regulations promulgated in previous

rulemakings, those requirements have been approved by the Office of

Management and Budget (OMB) under the Paperwork Reduction Act, 44

U.S.C. 3501 et seq., and have been assigned OMB control numbers 2050-

0009 (ICR no. 1573, Part B Permit Application, Permit Modifications,

and Special Permits); 2050-0120 (ICR 1571, General Facility Hazardous

Waste Standards); 2050-0028 (ICR 261, Notification of Hazardous Waste

Activity); 2050-0034 (ICR 262, RCRA Hazardous Waste Permit Application

and Modification, Part A); 2050-0039 (ICR 801, Requirements for

Generators, Transporters, and Waste Management Facilities under the

Hazardous Waste Manifest System); 2050-0035 (ICR 820, Hazardous Waste

Generator Standards); and 2050-0024 (ICR 976, 1997 Hazardous Waste

Report.

E. Executive Order 12875: Enhancing the Intergovernmental Partnership

Under Executive Order 12875, EPA may not issue a regulation that is

not required by statute and that creates a mandate upon a State, local

or tribal government, unless the Federal government provides the funds

necessary to pay the direct compliance costs incurred by those

governments, or EPA consults with those governments. If EPA complies by

consulting, Executive Order 12875 requires EPA to provide to the Office

of Management and Budget a description of the extent of EPA's prior

consultation with representatives of affected State, local and tribal

governments, the nature of their

[[Page 6813]]

concerns, any written communications from the governments, and a

statement supporting the need to issue the regulation. In addition,

Executive Order 12875 requires EPA to develop an effective process

permitting elected officials and other representatives of State, local

and tribal governments ``to provide meaningful and timely input in the

development of regulatory proposals containing significant unfunded

mandates.''

Today's rule does not create a mandate on State, local or tribal

governments. The rule does not impose any enforceable duties on these

entities. Accordingly, the requirements of section 1(a) of Executive

Order 12875 do not apply to this rule.

F. Executive Order 13084: Consultation and Coordination with Indian

Tribal Governments

Under Executive Order 13084, EPA may not issue a regulation that is

not required by statute, that significantly or uniquely affects the

communities of Indian tribal governments, and that imposes substantial

direct compliance costs on those communities, unless the Federal

government provides the funds necessary to pay the direct compliance

costs incurred by the tribal governments, or EPA consults with those

governments. If EPA complies by consulting, Executive Order 13084

requires EPA to provide to the Office of Management and Budget, in a

separately identified section of the preamble to the rule, a

description of the extent of EPA's prior consultation with

representatives of affected tribal governments, a summary of the nature

of their concerns, and a statement supporting the need to issue the

regulation. In addition, Executive Order 13084 requires EPA to develop

an effective process permitting elected officials and other

representatives of Indian tribal governments ``to provide meaningful

and timely input in the development of regulatory policies on matters

that significantly or uniquely affect their communities.''

Today's rule does not significantly or uniquely affect the

communities of Indian tribal governments. There is no impact to tribal

governments as the result of the leachate management action selected.

Accordingly, the requirements of section 3(b) of Executive Order 13084

do not apply to this rule.

G. Executive Order 13045: Protection of Children from Environmental

Health Risks and Safety Risks

``Protection of Children from Environmental Health Risks and Safety

Risks'' (62 FR 19885, April 23, 1997) applies to any rule that: (1) Is

determined to be ``economically significant'' as defined under E.O.

12866, and (2) concerns an environmental health or safety risk that EPA

has reason to believe may have a disproportionate effect on children.

If the regulatory action meets both criteria, the Agency must evaluate

the environmental health or safety effects of the planned rule on

children, and explain why the planned regulation is preferable to other

potentially effective and reasonably feasible alternatives considered

by the Agency.

This rule is not subject to E.O. 13045 because it is not an

economically significant rule as defined by E.O. 12866, and because it

does not involve decisions based on environmental health or safety

risks.

H. National Technology Transfer and Advancement Act of 1995

Section 12(d) of the National Technology Transfer and Advancement

Act of 1995 (``NTTAA''), Pub. L. 104-113, section 12(d) (15 U.S.C. 272

note) directs EPA to use voluntary consensus standards in its

regulatory activities unless to do so would be inconsistent with

applicable law or otherwise impractical. Voluntary consensus standards

are technical standards (e.g., materials specifications, test methods,

sampling procedures, and business practices) that are developed or

adopted by voluntary consensus standards bodies. The NTTAA directs EPA

to provide Congress, through OMB, explanations when the Agency decides

not to use available and applicable voluntary consensus standards. This

proposed rulemaking does not involved technical standards. Therefore,

EPA is not considering the use of any voluntary consensus standards.

I. Executive Order 12898: Environmental Justice

Under Executive Order 12898, ``Federal Actions to Address

Environmental Justice in Minority Populations and Low-Income

Populations,'' as well as through EPA's April 1995, ``Environmental

Justice Strategy, OSWER Environmental Justice Task Force Action Agenda

Report,'' and National Environmental Justice Advisory Council, EPA has

undertaken to incorporate environmental justice into its policies and

programs. EPA is committed to addressing environmental justice

concerns, and is assuming a leadership role in environmental justice

initiatives to enhance environmental quality for all residents of the

United States. The Agency's goals are to ensure that no segment of the

population, regardless of race, color, national origin, or income,

bears disproportionately high and adverse human health and

environmental effects as a result of EPA's policies, programs, and

activities, and all people live in clean and sustainable communities.

To address this goal, EPA considered the impacts of this final rule on

low-income populations and minority populations and concluded that the

leachate management option selected by the Agency for this final rule

would have no impact on nearby minority and low income populations.

VII. The Congressional Review Act

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the

Small Business Regulatory Enforcement Fairness Act of 1996, generally

provides that before a rule may take effect, the agency promulgating

the rule must submit a rule report, which includes a copy of the rule,

to each House of the Congress and to the Comptroller General of the

United States. EPA will submit a report containing this rule and other

required information to the U.S. Senate, the U.S. House of

Representatives, and the Comptroller General of the United States prior

to publication of the rule in the Federal Register. A Major rule cannot

take effect until 60 days after it is published in the Federal

Register. This action is not a ``major rule'' as defined by 5 U.S.C.

804(2). This rule will be effective immediately.

VIII. Rationale for Immediate Effective Date

Because this rule eliminates possible regulation, the regulated

community does not need 6 months to comply, so that the rule may be

made effective immediately pursuant to RCRA section 3010 (b) (1). For

the same reason, it is not necessary to delay the rule's effectiveness

for 30 days pursuant to 5 U.S.C. 553 (b) (1).

List of Subjects in 40 CFR Part 261

Environmental protection, Hazardous materials, Waste treatment and

disposal, Recycling.

Dated: February 5, 1999.

Carol M. Browner,

Administrator.

For the reasons set out in the preamble, title 40, chapter I, of

the Code of Federal Regulations is amended as follows:

PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE

1. The authority citation for Part 261 continues to read as

follows:

[[Page 6814]]

Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, 6924(y), and

6938.

2. Section 261.4 is amended by adding paragraph (b)(15) to read as

follows.

Sec. 261.4 Exclusions

* * * * *

(b) * * *

(15) Leachate or gas condensate collected from landfills where

certain solid wastes have been disposed, provided that:

(i) The solid wastes disposed would meet one or more of the listing

descriptions for Hazardous Waste Codes K169, K170, K171, and K172 if

these wastes had been generated after the effective date of the listing

(February 8, 1999);

(ii) The solid wastes described in paragraph (b)(15)(i) of this

section were disposed prior to the effective date of the listing;

(iii) The leachate or gas condensate do not exhibit any

characteristic of hazardous waste nor are derived from any other listed

hazardous waste;

(iv) Discharge of the leachate or gas condensate, including

leachate or gas condensate transferred from the landfill to a POTW by

truck, rail, or dedicated pipe, is subject to regulation under sections

307(b) or 402 of the Clean Water Act.

(v) After February 13, 2001, leachate or gas condensate will no

longer be exempt if it is stored or managed in a surface impoundment

prior to discharge. There is one exception: if the surface impoundment

is used to temporarily store leachate or gas condensate in response to

an emergency situation (e.g., shutdown of wastewater treatment system),

provided the impoundment has a double liner, and provided the leachate

or gas condensate is removed from the impoundment and continues to be

managed in compliance with the conditions of this paragraph after the

emergency ends.

* * * * *

[FR Doc. 99-3426 Filed 2-10-99; 8:45 am]

BILLING CODE 6560-50-P