A. Priorities and Management Philosophy (§ 264.500) · 2016-03-18 · A. Pre-HSWA RCRA Corrective...

Federal Register / Vol. 55, No. 145 / Friday, July 27, 1990 / Proposed Rules

ENVIRONMENTAL PROTECTIONAGENCY

40 CFR Parts 264, 265, 270, and 271

[FRL-3403-8; EPA/OSW-FR-90-0121

RIN 2050-AB42

Corrective Action for Solid WasteManagement Units (SWMUs) atHazardous Waste ManagementFacilities

AGENCY: Environmental ProtectionAgency.ACTION: Proposed rule.

SUMMARY: The Environmental ProtectionAgency is today proposing requirementsunder the Resource Conservation andRecovery Act (RCRA) for correctiveaction for solid waste management units(SWMUs) at facilities seeking a permitunder section 3005(c) of RCRA. Thisproposal will establish procedures andtechnical requirements for implementingcorrective action under section 3004(u)of RCRA.

Today's proposal would create a newsubpart S in the RCRA part 264regulations to define requirements forconducting remedial investigations,evaluating potential remedies, andselecting and implementing remedies atRCRA facilities. It also proposes toamend the RCRA part 270 permitrequirements, make conforming changesto part 264 and 265 facility closureinformation requirements, and establishstandards for States to becomeauthorized to administer correctiveaction requirements.DATES: Written comments on thisproposed rule should be submitted on orbefore September25, 1990.

Public hearings on this proposedrulemaking are. scheduled as follows:

* October 9, 1990 in San Francisco,CA.

• October 12, 1990 in Washington,DC.ADDRESSES: The public hearings will beheld at the following locations:

* October 9, 1990 at the HyattRegency San Francisco in EmbarcaderoCenter, 5 Embarcadero Center, SanFrancisco, CA 94111 (415-788-1234); and

* October 12, 1990 at the Omni-Shoreham Hotel, 2500 Calvert StreetNW., Washington, DC 20008 (202-234-0700).

Those individuals who wish topresent oral testimony at either of thepublic hearings must request anopportunity to be heard. Requests mustbe made in writing to Thea McManus,Hearings Clerk, Office of ProgramManagement (OS-305), U.S.Environmental Protection Agency, 401 M

Street SW, Washington, DC 20460. Therequest should reference the RCRACorrective Action Proposed Rule,Regulatory Docket No. F-90-CASP-FFFFF. Unless otherwise requested inwriting, individuals will be scheduled10-minute time segments to present oraltestimony. Time segments will beallotted based on the order in which thewritten requests are received. Writtenrequests must be received by the end ofthe written comment period.

Written comments on today'sproposal should be addressed to thedocket clerk at the following address:U.S. Environmental Protection Agency,RCRA Docket (OS-305), 401 M StreetSW., Washington, DC 20460. Oneoriginal and two copies should be sentand identified by regulatory docketreference number F-90-CASP-FFFFF.The docket is open from 9 a.m. to 4 p.m.,Monday through Friday, excludingFederal holidays. Docket materials maybe reviewed by appointment by calling(202) 475-9327. Copies of docketmaterials may be made at no cost, witha maximum of 100 pages of materialfrom any one regulatory docket.Additional copies are $0.15 per page.FOR FURTHER INFORMATION CONTACT.General questions about the regulatoryrequirements under RCRA should bedirected to the RCRA/SuperfundHotline, Office of Solid Waste, U.S.Environmental Protection Agency,Washington. DC 20460, (800) 424-9346(toll-free) or (202J 382-3000 (local). Forthe hearing impaired, the number is(800) 553-7672 (toll-free), or (202) 475-9652 (local).

Specific questions about the issuesdiscussed in this proposedrule shouldbe directed to David M. Fagan, Office ofSolid Waste [OS-341), U.S.Environmental Protection Agency, 401 MStreet SW., Washington, DC 20460, (202)-382-4740.SUPPLEMENTARY INFORMATION:

OutlineI. Authority11. Background11. Purpose of Today's RuleIV. EPA's Implementation of the Corrective

Action Program to DateA. Pre-HSWA RCRA Corrective ActionB. July 15,1985, Codification Rule [50 FR

28702)C. December 1, 1987, Codification Rule (52

FR 45788)D. Proposed Rule, Financial Assurance for

Corrective Action (51 FR 37854)E. National RCRA Corrective Action

Strategy (51 FR 37608) and the RCRACorrective Action Outyear Strategy (Fall.1989)

F. Implementation of.the HSWA CorrectiveAction Program

V. Approach to Corrective Action in Today'sRule

A. Priorities and Management Philosophyfor RCRA Corrective Action

B. Cleanup Goals for Corrective ActionC. Major Elements of Today's Proposal

VI. Section-by-Section AnalysisA.. Purpose/Applicability (§ 264.500)1. Conforming Changes to Previous

Codification of § 3004(u) and GeneralDiscussion

2. Exceptions to Alpplicabilitya. Permits for Land Treatment

Demonstrationsb. Emergency Permitsc. Permits-by-Rule for Ocean Disposal

Barges or Vesselsd. Research, Development and

Demonstration Permits3. Voluntary Corrective ActionB. Definitions (4 264.501)1. Facility2. Release3. Solid Waste Management Unit (SWMU)4. Hazardous Waste and Hazardous

Constituents5. Corrective Action Management UnitsC. Remedial Investigations (§ 264.510-

264.513)1. General2. Scope of Remedial Investigations(§ 264.511)

3. Plans for Remedial Investigations(§ 264.512)

4. Reports of Remedial Investigations(§ 264.513)

D. Determination of No Further Action(§ 264.514)

E. Corrective Measure Study (§ § 264.520-264.524)

1. Purpose of Corrective Measure Study(§ 264.520)

2. Trigger for Corrective Measure Study(§ 264.521)

a. Use of Action Levelsb. Criteria for Determining Action Levelsc. Action Levels for Ground Waterd.. Action Levels for Aire. Action Levels for Surface Waterf. Action Levels for Soilg. Action Levels Where Health- and

Environmental-Based Levels Are NotAvailable

h. Authority to Require a CorrectiveMeasure Study Where Action LevelsHave Not Been Exceeded

3. Scope of Corrective Measure Study(§ 264.522)

4. Plans for Corrective Measure Study(§ 264.523)

5. Reports of Corrective Measure Study(§ 264.524)

F. Selection of Remedy (4 264.525)1. General (§ 264.525)2. General Standards for Remedies(§ 264.525(a))

3. Remedy Selection Decision Factors(§ 264.525(b))

4. Schedule for Remedy (§ 264.525(c))5. Media Cleanup Standards (§ 264.525(d))a. Generalb. Protectivenessc. Cleanup Levels and Other Sources of

Contamination6. Determination that Remediation of

Release to a Media CleanupStandard isNot Required

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This information is reproduced with permission from HeinOnline, under contract to EPA. By including this material, EPA does not endorse HeinOnline.


a. Areas of Broad Contaminationb. Ground Waterc. Technical Impracticability7. Demonstration of Compliance With

Media Cleanup Standards (§ 264.525(e))a. Points of Complianceb. Methodsc. Timing of Demonstration of Compliance8. Conditional Remedies (1 264.525(f))G. Permit Modification for Selection of

Remedy (§ 264.526)H. Implementation of Remedy (§ 264.527-

264.531)

1. Remedy Design (§ 264.527)2. Progress Reports (§ 264.528)3. Review of Remedy Implementation(§ 264.529)

4. Completion of Remedies (§ 264.530)5. Determination of Technical

Impracticability (§ 264.531)I. Interim Measures (§ 264.540)1. Management of Wastes (§ 264.550-

264.552)1. Overview2. General Performance Standard(§ 264.550)

3. Management of Hazardous Wastes(§ 264.551(a))

a. Temporary Units (§ 264.551(b))b. Corrective Action Management Units(§ 264.551(c); § 264.501)

4. Management of Non-Hazardous SolidWastes (Q 264.552)

K. Required Notices (§ 264.560)1. Notification of Ground-Water

Contamination2. Notification of Air Contamination3. Notification of Residual ContaminationL. Permit Requirements (§ 270.1(c)-. 270.60(c)(3))

1. Requirement to Maintain a Permit(§ 270.1(c))

2. Schedules of Compliance for CorrectiveAction (§ 270.34)

3. Conditions Applicable to All Permits(§ 270.30(1)(12))

4. Information Repository (§ 270.36)5. Major Permit Modifications(§ 270.41(a)(5)(ix))

6. Conforming Changes to Requirements forPermits-by-Rule (§ 270.60(b)(3);§ 270.60(c)(3)(viii))

7. Alternative Dispute ResolutionM. Conforming Changes to Closure

Regulations (5 264.113, 265.112 and265.113)

1. General2. Clarificationsa. Extension of Closure Deadlinesb. Modification of Closure Plans3. Closure Plan Information RequirementsN. Conforming Change to § 264.1(g)

VII. Relationship to Other ProgramsA. Superfund1. General2. Listing RCRA Sites on the National

Priorities List (NPL)3. Use of CERCLA to Supplement RCRA

AuthoritiesB. PCB Spill Policy under TSCAC. Other Elements of RCRA Subtitle C

Program1. Relationship to Subpart F Ground-Water

Corrective Action2. Land Disposal Restrictions Program3. Relationship to section 3004(n) Standards

4. Administrative Orders under RCRAsection 3008(h)

5. Financial Assurance for CorrectiveAction

a. Timingb. Cost Estimationc. Allowable MechanismsD. RCRA Subtitle D: Solid Waste DisposalE. RCRA Subtitle I: Underground Storage

TanksF. Federal Facilities

VIII. Public InvolvementIX. State Authorization

A. Applicability of Rules in AuthorizedStates

B. Effect on State Authorizations1. Schedule and Requirements for

Authorization2. States with Existing Corrective Action

ProgramsC. Corrective Action and Mixed Waste

AuthorizationX. Regulatory Impact Analysis

A. Executive Order No. 122911. Background2. Scope and Analytical Approach3. Potential Scope of the Corrective Action

Program4. Qualitative Analysis5. Description of Options Analyzed

Quantitatively6. Results of Quantitative Analysis7. Economic Impacts8. Fedbral FacilitiesB. Regulatory Flexibility Act.C. Paperwork Reduction Act

List of SubjectsXI. Supplementary Documents

1. Authority

These regulations are issued under theauthority of sections 1003, 1006, 2002(a),3004(u), 3004(v), 3005(c), and 3007 of theSolid Waste Disposal Act, as amendedby the Resource Conservation andRecovery Act, as amended by theHazardous and Solid WasteAmendments of 1984, 42 U.S.C. 6924 (a),(u), and (v), and 6925(c).

I. BackgroundPrior to passage of the Hazardous and

Solid Waste Amendments of 1984(HSWA), statutory authorities andpromulgated regulations for compellingcorrective action at facilities regulatedunder subtitle C of the ResourceConservation and Recovery Act (RCRA)were limited to the following: (1) Section7003 of RCRA, which provides EPAenforcement authority to take actionwhere solid or hazardous waste maypresent an imminent and substantialendangerment to human health or theenvironment; (2) section 3013 of RCRA,which provides authority for requiringinvestigations where the presence ofhazardous waste or releases ofhazardous waste may present asubstantial hazard to human health orthe environment; and (3) 40 CFR part264, subpart F, which provides aregulatory program to address releases

of hazardous wastes and hazardousconstituents to ground water from"regulated units." ("Regulated units" aredefined in 40 CFR 264.90 as surfaceimpoundments, waste piles, landtreatment units, and landfills whichreceived hazardous waste after July 26,1982.) Section 106 of the ComprehensiveEnvironmental Response,Compensation, and Liability Act of 1980(CERCLA), provides a broad authority,similar to RCRA section 7003, to takeabatement actions to remediate anyactual or potential imminent andsubstantial endangerment caused byactual or threatened releases ofhazardous substances.

The 1984 HSWA amendmentssubstantially expanded correctiveaction authorities for both permittedRCRA facilities and facilities operatingunder interim status. Section 3004(u) ofHSWA requires that any permit issuedunder section 3005(c) of RCRA to atreatment, storage, or disposal facilityafter November 8, 1984, addresscorrective action for releases ofhazardous wastes or hazardousconstituents from any solid wastemanagement unit (SWMU) at thefacility. These permits will containschedules of compliance wherecorrective action activities cannot becompleted prior to permit issuance. Inaddition, facility owners or operatorsmust demonstrate assurances offinancial responsibility for completingthe required corrective actions. Section3004(v) authorizes EPA to requirecorrective action beyond the facilityboundary where appropriate. Section3008(h) provides EPA with authority toissue administrative orders or bringcourt action to require corrective actionor other measures, as appropriate, whenthere is or has been a release ofhazardous waste or hazardousconstituents from a RCRA facilityoperating under interim status.

Ill. Purpose of Today's Rule

The purpose of today's rule is toestablish a comprehensive regulatoryframework for implementing theAgency's corrective action programunder RCRA. This rule defines both theprocedural and substantiverequirements associated with sections3004(u) and 3004(v). While the newcorrective action authorities becameeffective on their date of enactment(November 8, 1984), today's proposedrule is intended to establish acomprehensive regulatory frameworkfor these statutory authorities. Theproposal should serve to promotenational consistency In implementingthis important component of the RCRA

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program, and will establish standards towhich States seeking authorization forsection 3004(u corrective action mustdemonstrate equivalence.. In, addition,this rulemaking provides a proceduralvehicle for the regulated community andother interested parties to comment onthe Agency's regulatory intentions forthis program.

The following sections of thispreamble provide a detailed explanationof the background and specifics oftoday's proposed rulemaking, Section IVdiscusses implementation of thecorrective action program to date..Section V provides an overview of theregulatory program proposed today andthe management philosophy which ledto this proposal Section VI providessection-by-section analysis of theproposed rule. Section VII examines therelationship of today's rule to. otherenvironmental programs. Section VIIIdiscusses public involvement in the.corrective action program, while sectionIX provides information on Stateauthorization for the new program.

IV. EPA's Implementation of theCorrective Actism PkWrm To Date

Since 1982, the RCRA program hasbeen implementing the subpart Fcorrective action requirements forreleases to ground water from regulatedunits through permits. Since November1984, the HSWA corrective actionrequirements, which were effectiveimmediately, have been implemented ona case-by-case basis in individualfacility permits or section 3008(h)corrective action orders. To implementthe HSWA corrective action program todate, EPA has issued several regulationsand guidance documents. This sectiondescribes those rules and guidancedocuments, the current status ofcorrective action activities in thepermitting and enforcement programs,and the availability of technicalguidance documents pertaining tocorrective adtion.

A. Pre-HSWA RCRA Corrective Action

EPArs base permit regulations,promulgated under pre4-ISWA *authority; establish a program formonitoring and remediating releases toground water from regulated hazardouswaste management units (40 CFR part264, subpart F, discussed below), andreporting of releases from permittedunits (under 40 CFR part 270).. Theseregulations were established in 1982under the general statutory authority insection 3004(a) of RCRA..

Under current subpart F regulations,the corrective action requirement(§ 264.100) is the third step of a three-phase program for detecting,

characterizing, and responding toreleases to the uppermost aquifer fromregulated units. The first phase, calleddetection monitoring, requires facilityowners or operators to monitor groundwater at the downgradient edge of thewaste. management boundary forindicator parameters or constituentsthat indicate the likelihood of a release.If a release is detected, the owner/operator tests for all appendix IX (of 40CFR part 264) constituents, and aground-water protection standard(GWPS) is established for everyappendix IX constituent detected abovebackground levels. Under the second, orcompliance monitoring phase of theprogram (which is triggered when therelease is confirmed), the owner/operator is required to performadditional investigations to characterizethe nature and extent of contamination.In the third and final stage--correctiveaction-the owner/operator is requiredto remove or treat in place allcontaminants present in concentrationsabove the ground-water protectionstandard beyond the compliance point.

The ground-water protectionstandards established under subpart Fare set at either the background levels,maximum contaminant levels (MCLs)for 14 specific constituents, or alternateconcentration limits (ACLs). MCLs arecontaminant concentration levels whichrepresent the maximum permissiblelevel in drinking water supplies aspromulgated by the EPA under the SafeDrinking Water Act ACLs arecontaminant concentration levelsdetermined by the Agency to beprotective of human health and theenvironment based on site-specificcircumstances. Proposed revisions to theexisting subpart F regulations to create aprogram consistent with today'sproposal for subpart S are expected tobe published shortly in the FederalRegister. A discussion of therelationship between this proposal andthe proposed amendments to subpart Fis included in section VII.C of thispreamble.

B. July 15, 1985, Codification Rule (50 FR28702)

On July 15, 1985, EPA promulgatedregulations that codified the statutorylanguage of the new section 3004(ulcorrective action authority of HSWA(see 50 FR 28702, 40 CFR 26490(a)(2) and264.1M1). In particular, the July 1985Codification Rule amended 40 CFR part264, subpart F by adding new § 254101,which essentially reiterated thestatutory language of section 304(ul

'In addition, the preamble to the July1985 Codification Rule defined theAgency's jurisdiction under the new

authorities by interpreting a number ofkey terms in the statutory language.Specifically, the preamble discussedEPA's interpretations of the terms"facility," "solid waste managementunit," and "release," in relation to thenew corrective action authorities, (EPAis proposing t9L codify these definitions,with some modifications, in today'srule.) The preamble also provided theAgency's interpretation of the authorityconferred on it. through section 3008(h),the interim status corrective actionauthority. A detailed discussion of theAgency's interpretation of the section3008(h) authority was provided in aDecember 16, 1985. guidance.memorandum entitled "Interpretation ofsection 3008(h) of the Solid WasteDisposal Act.- A copy of thatmemorandum may be found in thedocket established for this rulemaking.

C. December 1, 1987, Codification Rule(52 FR 45788)

On December 1, 1987, EPA issued acompanion to the July-1985 CodificationRule that further ni.ified the part 264and part 270 hazardous wastemanagement regulations to implementthe new statutory provisions of HSWA(see 52 FR 45788). This SecondCodification Rule addressed issuesarising from the new, amendments ratherthan codifying requirements imposeddirectly by the statute. Three elementsof that rule relate to the new HSWAcorrective action requirements: Permitapplication requirements for solid wastemanagement units (SWMUs], correctiveaction beyond the facility boundary, andcorrective action for injection wells withpermits-by-rule.

The Second Codification Ruleamended the existing part B permitapplication requirements of f2"70,14 byadding a new provision (§ 270.14(d)) thatrequires certain information pertainingto solid waste management units at thefacility applying for a RCRA permit. Thenew provision requires descriptiVeinformation on all solid wastemanagement units at the facility, and allavailable information pertaining to anypast or current releases from these units.The provision also requires facilityowner/operators to perform samplingand analysis as required by EPA toassist in determining whether or notreleases have occurred from solid wastemanagement units at the facility.

The Second Codification Rule also.amended: § § 264.100 and 264.101 of theRCRA part 264 regulations to codifysection 3004(v) of RCRA. This statutoryprovision requires facility owner/operators to address corrective actionfor releases that have migrated beyond

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the facility boundary, unless the owneror operator demonstrates to EPA that,despite his or her best efforts, s/he wasunable to obtain the necessarypermission to undertake the requiredactions (see § § 264.100(e) and264.101(c)). This new provision appliesto releases from all solid wastemanagement units, including releases tothe uppermost aquifer from regulatedunits. Moreover, section 3004(v) makes itclear that the provision applies tocertain interim status units (section3004(v)(2)), as well as units at permittedfacilities (section 3004(v)(1)). Whereaccess to off-site property is denied,EPA may require that certain measuresbe taken on site to mitigate the off-sitecontamination (e.g., source controlmeasures). As will be discussed later,EPA is today proposing changes to theseregulatory provisions.

The Second Codification Rule alsoincluded new provisions governing theimplementation of corrective actionrequirements through RCRA permits-by-rule for Class I hazardous wasteinjection wells (see § § 270.60(b)(3),144.1(h), 144.31(g)), Under 40 CFR 270.60,the corrective action requirements of§ 264.101 must be addressed in order toobtain a permit-by-rule for a hazardouswaste injection well. Since today'sproposal will replace § 264.101, thesefacilities will be required to comply withtoday's proposed subpart S regulationsin the same manner as other facilitieswhich receive permits under section3005(c) of RCRA.

The Second Codification Rule alsoclarified that a Class I hazardous wasteinjection well with a UIC permit issuedafter November 8, 1984, does not have aRCRA permit-by-rule until the correctiveaction requirements are imposed at theentire facility. Further, the SecondCodification Rule clarified that a Class Iinjection well that received a UIC permitretains interim status under RCRA untilcorrective action requirements (ifnecessary) are imposed through a RCRArider permit.D. Proposed Rule, Financial Assurancefor Corrective Action (51 FR 37854)

On October 24. 1986, EPA proposednew amendments to the financialresponsibility standards applicable toowners and operators of hazardouswaste treatment, storage, and disposalfacilities (hereinafter referred to asFACA-see 51 FR 37854). This proposedrule provided a regulatory frameworkfor implementing the statutoryrequirement of section 3004(u) (codifiedin § § 264.101 and 264.90(a)(2)) fordemonstrating financial assurance forthe costs of corrective actions.

The 1986 FACA proposal set out adetailed set of procedures implementingthe section 3004(u) financial assurancerequirements. These proceduresaddressed: (1) The timing of financialassurance demonstrations; (2) cost-estimating procedures, including theperiodic adjustment of cost estimates,for determining the amounts of requiredfinancial assurance; and (3) permissiblefinancial assurance mechanisms,including their required wording andallowable combinations of mechanisms.EPA is today proposing specificlanguage which will clarify whenfinancial assurance for corrective actionmust be demonstrated and whenadjustments to the coverage levels willbe required. With respect to all otherprocedural aspects associated with theFACA requirements (e.g., the set ofacceptable mechanisms or use of amechanism for multiple financialresponsibilities), EPA intends to use theFACA proposal as general guidelines forexamining, on a case-by-case basis, theadequacy of the financial assurances.Financial assurance for correctiveaction is discussed more fully in sectionVII.C.5 of this preamble.

E. National RCRA Corrective ActionStrategy (51 FR 37608) and the RCRACorrective Action Outyeoar Strategy(Fall, 1989)

In October 1986, EPA issued a draft"National RCRA Corrective ActionStrategy" to inform the Regions, States,regulated community, and the public ofthe Agency's overall plans forimplementing the HSWA correctiveaction authorities. The Strategyprovided an overview of the HSWAcorrective action authorities and theuniverse of RCRA facilities subject tothese authorities, and described thebasic process for identifying,investigating, and remediating releasesat RCRA facilities. It also discussed theAgency's plans for establishingpriorities for corrective action, therelationship between permitting andenforcement authorities, factorsinfluencing the management ofcorrective action, and the relationshipbetween EPA and the States inimplementing this program.

The Agency received a number ofcomments on the draft strategy, many ofwhich are reflected in the content oftoday's proposed rule. Today's proposal,which addresses in detail most of theelements of the draft strategy,effectively finalizes the strategy.

Although some portions of the draftstrategy, such as the Agency's plans forprioritizing RCRA facilities forcorrective action, are not fullyaddressed in today's proposal, they are

the subjects of recommendationscontained in the RCRA CorrectiveAction Outyear Strategy (CAOS),published in the Fall of 1989. Theserecommendations outline a managementapproach for the corrective actionprogram that is realistic and workable inlight of the many challenges that EPAand the States will face in implementingthis program over the next severalyears. While some of the CAOSrecommendations can be directlyimplemented, others will be addressedin detail in forthcoming guidance.

F. Implementation of the HSWACorrective Action Program

To implement the corrective actionprogram to date, EPA has developed ageneral process to assure that actionstaken are commensurate with theproblem presented. In this process, eachstage serves as a screen, sendingforward to the next step those facilitiesor units at a facility which the Agencyhas found to be a potential problem, andeliminating from further considerationunits and facilities where the Agencyhas discovered no currentenvironmental problem. The Agencyintends to provide sufficient flexibilityin this process to facilitate timelyabatement of environmental problems.

RCRA facilities are generally broughtinto the corrective action process at thetime the Agency is considering a permitapplication for the facility, or when arelease justifying action under section3008(h) is identified. The process beginswith an Agency-conducted RCRAFacility Assessment (RFA), which isanalogous to the Superfund PreliminaryAssessment/Site Investigation (PA/SI).The RFA includes: (1) A desk top reviewof available information on the site; (2) avisual site inspection to confirmavailable information on solid wastemanagement units at the site and to noteany visual evidence of releases; and (3)in some cases, a sampling visit, toconfirm or disprove suspected releases.If, after completion of the RFA itappears likely that a release exists, theAgency typically develops a schedule ofcompliance, to be included in a facility'sRCRA permit, for further studies andactions the permittee must undertake tofulfill the responsibilities imposed bysection 3004(u). Alternatively, theAgency might issue an order pursuant tosection 3008(h) to compel correctiveaction.

The second stage of the correctiveaction process is the RCRA FacilityInvestigation (RFI). The RFI isundertaken when a potentiallysignificant release has been identified inthe RFA; its purpose is to characterize

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the nature and extent of contaminationat the facility, and it is analogous to theRemedial Investigation (RI) process ofthe Superfund program. Typically, theRFI will be focused on specific concernsidentified in the RFA and will be stagedto avoid unnecessary analysis. Whenthe Agency determines, on the basis ofdata generated during the RFI or otherinformation, that cleanup is likely to benecessary, the owner/operator will berequired to conduct a CorrectiveMeasure Study (CMS) to identify asolution for the problem at the site.Once the Agency selects the remedy forthe facility, the Agency will either issuea followup section 3008(h) order (in thecase of an interim status facility), ormodify the permit, and the remedy willbe implemented by the owner/operatorwith Agency oversight.

In certain situations, the Agency mayrequire an "interim measure" at thefacility without waiting for the finalresults of the RFI or the CMS. Interimmeasures are actions required toaddress situations which pose a threatto human health or the environment orto prevent further environmentaldegradation or contaminant migrationpending final decisions on requiredremedial activities. Superfund generallyuses the removal authority providedunder section 104 of CERCLA toaccomplish this same objective whereexpedited response and/or emergencyactions are needed.

Currently, implementation of thecorrective action program is beingundertaken by EPA, with assistancefrom State agencies. Six States havebeen authorized to date to implementthe HSWA corrective action program.

The general corrective action processdescribed above is carried forward intoday's proposal. However, today'sproposal will describe the requirementsin greater detail, and will provide thepublic an opportunity to comment onthis approach.

More detailed information about eachof the phases of the corrective actionprogram as implemented to date can befound in the guidance documentsreferenced below. Additional guidancewill be developed in the future.

1. RCRA Facility AssessmentGuidance (Final, October, 1986). Thisdocument can be obtained through theNational Technical Information Services(NTIS), 5285 Port Royal Rd., Springfield,VA-703) 487-4650. Document NumberPB87-107769.

2. RCRA Facility InvestigationGuidance (Interim Final, May, 1989). Forfurther information, contact: Jon Perry-(202) 382-4663.

3. Corrective Action Plan (InterimFinal, May, 1988). For furtherinformation, contact: (202) 382-4460.

4. Interim Measures Guidance(Interim Final, May, 1988). For furtherinformation, contact: Tracy.Back--{202)382-3122.

V. Approach to Corrective Action inToday's Rule

Together with the NationalContingency Plan (NCP), which EPArecently promulgated (March 8, 1990, 55FR 8666). today's proposal defines EPA'soverall approach to the cleanup ofenvironmental contamination resultingfrom the mismanagement of hazardousand solid waste. Today's proposal willestablish a regulatory framework forcorrective action under section 3004(u)of RCRA and will provide guidelines forcorrective action orders imposedthrough administrative orders undersection 3008(h) of RCRA. Substantiveprovisions of the rule, whenpromulgated, generally will beapplicable to response actions underCERCLA involving releases ofhazardous waste (including hazardousconstituents). These provisions may alsobe "relevant and appropriate" to otherCERCLA response actions.

This section of the preamble brieflysummarizes EPA's basic approach toRCRA corrective action, thefundamental cleanup goals of theprogram, and the major elements oftoday's rule.

A. Priorities and ManagementPhilosophy for RCRA Corrective Action

Approximately 5,700 facilities arecurrently in the RCRA subtitle Cuniverse, and therefore are potentiallysubject to corrective actionrequirements. These facilities are likely,together, to have as many as 80,000SWMUs. Many of these facilities, EPAbelieves, will require some level ofremedial investigation and correctiveaction to address past or currentreleases.

The level of investigation andsubsequent corrective action will varysignificantly across facilities. Thisregulation would ensure that variationcan be accommodated by recognizingthat the necessary scope ofinvestigations and studies may bedifferent depending upon the situationpresented. It is the Agency's intentionthat State and Regional personnel havethe ability to require investigationssufficient to fully characterize thefacility and assess necessary actions. Inmany cases the problem will pose lessrisk or be less complex than a majorSuperfund site listed on the NationalPriorities List. Therefore, the Agency

expects that, for the most part, RCRAcleanups will be less complex and lessexpensive than those under CERCLA,and less detailed study will be requiredbefore remedial action begins. In somecases, however, the Agency alsorecognizes that the situation could becomparable to that of a major CERCLAsite. In such cases, the Agency willrequire more detailed analysis and morerigorous oversight, There will also becases where immediate action isrequired, while at many other sites,current exposure will be limited andaction can be safely deferred. Not onlywill the nature of cleanup required varywidely, but so too will thecharacteristics of the facility owner/operators. Some facilities will be sitescontrolled'by financially viable owner/operators, while others will be weakfinancially; some will be under activelong-term management, but at others theowner/operator will be seeking to leavethe site; some will be simple facilitieswith one or two storage tanks, yetothers will be major complexes, such aslarge Federal facilities, with thousandsof solid waste management units.

Because of the wide variety of siteslikely to be subject to corrective action,EPA believes that a flexible approach,based on site-specific analyses, isnecessary. No two cleanups will followexactly the same course, and thereforethe program has to allow significantlatitude to the decision maker instructuring the process, selecting theremedy, and setting cleanup standardsappropriate to the specifics of thesituation. At the same time, a series ofbasic operating principles guide EPA'scorrective action program under RCRA.These principles, which are reflected intoday's proposal, are described brieflybelow.

In managing the corrective actionprogram, the Agency will place itshighest priority on action at the mostenvironmentally significant facilitiesand on the most significant problems atspecific facilities. EPA is committed todirecting its corrective action resourcesfirst to the most environmentallysignificant problems. The level of threatposed by each of the 5,700 facilities nowsubject to corrective action varieswidely--some are a major concern andrequire prompt attention; others willrequire eventual cleanup but do notcurrently pose a threat; still others haveno significant releases and will notrequire corrective action at all. At someof these facilities, EPA willautomatically address corrective actionbecause of its permitting priorities.Under HSWA, statutory deadlines wereestablished for issuance of RCRA

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Federal Register / Vol. 55, No. 145 / Friday, July 27, 1.990 / Proposed Rules

permits to the various types oftreatment, storage, and disposalfacilities. Each of these permits must, tothe extent necessary, require a scheduleof compliance for corrective action.However, a substantial universe offacilities that will not receive permitsmust also be addressed for correctiveaction. EPA, through its EnvironmentalPriorities Initiative, will review and setpriorities for action among thesefacilities, to ensure that it addresses themost significant first.

It will also be important for EPA to setpriorities and focus its efforts withinfacilities undergoing corrective actionthrough the permitting process. Facilitiesreceiving permits will present the fullrange of remedial problems; EPA andauthorized States must carefully managetheir resources at these facilities toensure that the program effectivelyfocuses on the most pressing problems.The Agency's firstpriority will be torequire interim measures to addresssites posing an immediate threat tohuman health and the environment, andto pursue engineering remedies tocontrol or eliminate further migration ofenvironmental releases. In addition, theAgency will expect prompt remediationof all significant off-site contamination,regardless of whether human orenvironmental exposure to thecontamination is currently occurring. Onthe other hand, sites where currentexposure is low and releases have beeneffectively controlled will be a lowerpriority. This is particularly likely to bethe case where a site is controlled by'afinancially viable owner/operator whocan ensure that releases are adequatelycontained and exposure eliminated andwho will be capable of undertakingeventual cleanup.

The Agency may rely on"conditional" remedies where promptremedial action can reduce risk tolevels acceptable for current uses, orwhere final cleanup is impracticable. Asa general principle, EPA believes thatcleanups must achieve a levelappropriate for all actual andreasonably expected uses (The questionof cleanup goals is discussed more fullyin the next section of this preamble.)RCRA sites subject to corrective action,however, will typically be facilitiesseeking permits to manage hazardouswaste, rather than sites that are widelyopen to the public and subject to abroad range of uses. As long as thepermit is in place and the facility isunder the management of the owner/operator, exposure to contaminatedmedia within the facility boundary, suchas contaminated soils, would besignificantly less than it would be in an

area of unrestricted access, where futureuses might include residential oragricultural development. In suchcontrolled use situations, EPA believesthat it will often be reasonable torequire prompt cleanup to levelsconsistent with current use, but to deferfinal cleanup as long as the owner/operator remains under a RCRA permit.

In other cases, it may be readilyapparent.that cleanup of a site to levelsappropriate for unrestricted use will beimpracticable. RCRA will have toaddress a number of intractableproblems, such as the cleanup of large,complex sites like municipal landfills, orground-water cleanup where thebedrock is heavily fractured. In thesecases as well, it may be appropriate torely on "conditional" remedies thatcontrol risk during the life of the permit,and rely on institutional controls toprevent future exposure.

EPA expects that these conditionalremedies will play a significant role inthe implementation of RCRA correctiveaction, and will enable the Agency andthe regulated community to focus theirresources most effectively on the mostpressing problems. Further discussion of"conditional" remedies is contained insection VI.F.8 of this preamble.

The Agency intends to removeregulatory disincentives to independentaction by facility owner/operators andwill encourage voluntary cleanups. EPArecognizes that it is important to allowwilling and responsible owner/operators to begin corrective actionpromptly without unnecessaryprocedural delays. In many cases, theAgency believes that owner/operatorswill wish to take source controlmeasures, begin ground-water pumping,or take other measures to reduce oreliminate a problem. EPA encouragesthese activities, and in many cases mayfind it appropriate to incorporateowner/operator, initiated correctiveaction into permits as interim measures.In addition, the Agency has taken stepsto simplify RCRA permit modificationprocedures for corrective action in itsfinal rule on RCRA permit modifications(53 FR 37912, September 28, 1988). Theissue of voluntary corrective action isdiscussed more fully in section VI.A o(this preamble.

Facility investigations and otheranalyses will be streamlined to focus onplausible concerns and likely remedies,and to expedite cleanup decisions.While remedial investigations must bethorough enough to identify any seriousproblems, EPA recognizes that its ownresources and those of the regulatedindustry are finite, and therefore thatthese investigations must be focused on

plausible concerns and conducted in astep-wise fashion, with early screens todetermine whether further investigationis necessary. Similarly, although it willbe necessary in some cases-particularly at facilities with large andcomplex cleanup problems-for theowner/operator to analyze a wide rangeof cleanup alternatives, at most RCRAfacilities a'more limited analysis will beappropriate. For example, when theappropriate remedy is self-evident (e.g.,drum removal and treatment to bestdemonstrated available technology(BDAT)), it may be unnecessary toevaluate alternatives that would not beadopted. Similarly, where an owner/operator proposes a remedy that iseffective and protective, it may beappropriate to approve the remedy andavoid continued studies that wouldserve only to delay cleanup. In eithercase, the permit would establishperformance standards in the form ofcleanup levels. If the remedy failed toachieve these standards, it would haveto be modified accordingly. Section -VI.H.5 of the preamble discusses infurther detail the issue of the technicalimpracticability of achieving a remedialrequirement given a specified remedy.

In managing the corrective actionprogram, the Agency will emphasizeearly actions and expeditious remedydecisions. One of the Agency'soverriding goals in managing thecorrective action program will be toexpedite cleanup results by requiringsensible early actions to controlenvironmental problems on an interimbasis, and using flexible and pragmaticapproaches in making final remedydecisions. EPA believes that in manycases it will be possible to identify earlyin the corrective action process actions.which can and should be taken tocontrol exposure to contamination, or tostop further enVironmental degradationfrom occurring. Such interim' measuresmay be relatively straightforward, suchas erecting a fence or removing smallnumbers of drums, or may involve moreelaborate measures such as installing apump and treat system to preventfurther migration of a ground-watercontaminant plume. In another example,where it is obvious that the eventualremedy will require excavation andtreatment or removal of contaminated"hotspots," such action should beinitiated as an interim measure, ratherthan deferring it until after final remedyselection.

Final remedy decisions must be basedon careful judgments and soundtechnical information. However, today'sproposed rule provides for considerableflexibility in structuring studies and

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selecting remedies. It is EPA's intentionto use that flexibility to streamline theremedy development/decision processwhenever feasible. Corrective MeasureStudies should focus on plausibleremedial options, and should be scaledto fit the complexity of the remedialsituation. Obvious remedial solutionsshould not be impeded by unnecessarystudies. Voluntary cleanup initiatives byowner/operators that are consistentwith EPA's cleanup goals will beencouraged as a means of expediting theremedial process.

B. Cleanup Goals for Corrective Action

EPA's -goal in RCRA corrective actionis, to the extent practicable, to eliminatesignificant releases from solid wastemanagement units that pose threats tohuman health and the environment, andto clean up contaminated media to alevel consistent with reasonablyexpected, as well as current, uses. Thetiming for reaching this goal will dependon a variety of factors, such as thecomplexity of the action, the immediacyof the threat, the facility's priority forcorrective action, and the financialviability of the owner/operator.However, the final goal of cleanupwould remain the same.

It should be recognized that EPA'semphasis in today's rule on minimizingfurther releases means that correctiveaction will frequently require sourceremoval, source control. and wastetreatment. In this respect, today's rulereflects a shift in emphasis from currentRCRA corrective action requirementsfor ground-water releases fromregulated units. These requirementscurrently focus on cleanup of the groundwater, but not on control of the source.However, EPA believes that it willfrequently be impossible to controlreleases and ensure the long-termeffectiveness of remedies withoutsignificant source control. For example.a response action that focuses entirelyon remediation of the contaminatedmedium may meet acceptable cleanupstandards in the short term, butcontinued leaking could lead tounacceptable releases in the future asthe source continues to leak. Therefore,today's rule explicitly provides EPAauthority to require source control.

One of the more controversial Issuesrelated to corrective action is thecleanup goals for contaminated media,or "how clean is clean." EPA has notattempted in this rule or elsewhere toestablish specific cleanup levels fordifferent hazardous constituents in eachmedium. Instead, EPA believes thatdifferent cleanup levels will beappropriate in different situations, andthat the levels are best established as

part of the remedy selection process.Generally. however, the cleanup mustachieve protective levels for future aswell as current uses. This is theapproach taken in today's proposal.

To be "protective" of human health.EPA believes that cleanup levels forcarcinogens must be equal to or belowan upperbound excess lifetime cancerrisk level of 1 in 10,000 (1 x 10- 4. Asproposed today, cleanup levels wouldbe selected within the upper bound1x10 - ' to I x10- risk range during theselection of remedy process; however,remedies at the more protective end ofthe range would ordinarily be preferred.For non-carcinogens, cleanup levelswould be set at a level at which adverseeffects would not be expected to occur.The application of this approach tospecific media is described below.

Ground water. Potentially drinkableground water would be cleaned up tolevels safe for drinking throughout thecontaminated plume, regardless ofwhether the water was in fact beingconsumed. Where maximumcontaminant levels (MCLs) establishedunder the Safe Drinking Water Act areavailable for specific contaminants,these limits generally will be used;otherwise, the levels would be setwithin the protective range. Alternativelevels protective of the environment andsafe for other uses could be establishedfor ground water that Is not an actual orreasonably expected source of drinkingwater.

Soil. Contaminated soil would beremediated to levels consistent withplausible future patterns of use. Forexample, where access to an area wouldbe unrestricted, cleanup would generallybe required to levels appropriate forresidential development At industrialsites or sites dedicated to long-termhazardous waste management, cleanupto less stringent levels might beappropriate, although institutionalcontrols could be necessary to ensurethat the use pattern did not change.

Surface water. Releases to surfacewater should be remediated to levelsconsistent with potential uses. Forexample, where surface water isdesignated for drinking water oris apotential drinking water source, cleanupto drinkable levels would be required. Inthe case of surface water, environmentaleffects are likely to be particularlyimportant, because levels protective forhumans may often be insufficient forprotection of aquatic organisms.

Air. Like soil, air releases from solidwaste management units would be ofconcern where they posed a threat tohumans or the environment underplausible current or future use patterns.

Typically, corrective action involving airconcerns would involve source controlto minimize further releases.

C. Major Elements of Today's Proposal

The principles described above willshape EPA's general approach tocorrective action, and they serve asoperating assumptions behind today'snotice. Today's proposal will establishthe basic framework for the correctiveaction program, both for EPA andauthorized States. More specifically, itcodifies the procedures for identifyingproblems and selecting remedies atRCRA facilities; the standards forcleanup, including the establishment ofcleanup levels; and the standards formanaging cleanups and the wastesgenerated by cleanups. The majorelements of the proposal aresummarized below.

Permitting procedures and permitschedules of compliance. Today'sproposal, which implements section3004(u), addresses corrective action atfacilities seeking RCRA permits.Corrective action requirements will beimposed on these facilities directlythrough the permitting process and willbe incorporated into permits throughschedules of compliance. Typically.before a permit is issued. EPA or anauthorized State would conduct an RFAat the facility to determine whether apotential problem existed. Where alikely release was found, the permitwould contain a schedule of compliance,as specified in proposed § 264.510,requiring a remedial investigationfocusing on the specifics of the likelyrelease. This schedule of compliancewould be a part of the permit, andwould be successively modified, asnecessary, as studies and correctiveactions at the facility proceeded.

Trigger or "action levels. "Wherecontamination is identified during thefacility investigation. EPA or anauthorized State will have to make adecision on whether further analysis,including analysis of potential remedies,is appropriate, or whe',er thecontamination is at an ;nsignificantlevel. For this reason, the ruleincorporates the concept of "actionlevels"--levels that, if found in theenvironment, will typically trigger aCorrective Measure Study. Undertoday's proposal, action levels would beestablished in the initial permit, or, insome cases, through a permitmodification after a release has beenidentified.

Section 264.521 of the proposalestablishes the general principles bywhich action levels would beestablished for each medium. To provide

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guidance for RCRA permit writers,industry, and the public, today'sproposal includes in Appendix A of thispreamble values that the Agencybelieves may be appropriate as actionlevels for a number of hazardousconstituents in different environmentalmedia. These levels would beincorporated individually into permitsthrough the permitting process.

If environmental levels were found tobe below the action levels, no furtheraction would ordinarily be required.However, even if an action level hasbeen exceeded, the proposal in § 264.514would allow the owner/operator todemonstrate that no action wasnecessary. For example, if ground waterwere not a potential source of drinkingwater because of high levels of naturalcontamination, an owner/operator mightsuccessfully argue that cleanup wasunnecessary. In this way, action levelswould constitute rebuttablepresumptions. This issue is discussed inmore detail in section VI.E.2 of thispreamble.

Corrective Measure Study andremedy selection. Typically, if an actionlevel has been exceeded, the facilityowner/operator would be requiredunder the proposal to conduct aCorrective Measure Study (CMS). Thepurpose of the CMS is to identify andevaluate potential remedies. EPAanticipates that, in a few cases, owner/operators of larger sites with complexenvironmental problems may need toevaluate several alternative remedialapproaches in determining the mostappropriate remedy for the facility. Formost RCRA facilities, however, it will bepossible to abbreviate the analysis, andfrequently it may be appropriate for theowner/operator to propose a singlealternative, which EPA would approveor disa;prove. The proposed regulationin § 264.522 gives the Agency thenecessary flexibility to vary the scope ofthe Corrective Measure Study,depending on thaespecifics of thesituation.

EPA would approve or select theremedy under the standards and criteriaproposed in § 264.525. Proposed§ 264.525(a) would require the remedy tobe protective of human health and theenvironment, to achieve media cleanupstandards, to minimize further releases,and to comply with subtitle C and otherwaste management standards. Inselecting the remedy, the Agency wouldbe required to consider a wide range offactors, such as the remedy's short- andlong-term effectiveness and itspracticability. These factors aregenerally comparable to the factorsconsidered by the Agency in selecting

Superfund remedies under § 300.430 ofthe NCP. (See 55 FR 8666, March 8,1990.)

Remedies selected under § 264.525would require formal permitmodifications, with opportunity forpublic comment and rights of appeal.After public comment, the proposedpermit schedule of compliance would beamended, (if necessary) and approved,to require that the owner/operatordevelop a specific remedial design and,after approval of the design, carry outthe remedy.

Cleanup levels. The Agency's goal isthat remedies clean up to levelsdetermined to be protective of humanhealth and the environment. EPA'sgeneral cleanup goals are described insection B above and in section VI.F.5 ofthis preamble. Specific levels for eachfacility, consistent with these goals,would be established during the remedyselection process and would beincorporated into the permit and madeavailable for public comment.

Where protective levels could not beattained, or where wastes were left onsite in disposal units, long-termmanagement would be required throughthe permit.

Standards for management ofcorrective action waste. Proposed§ § 264.550-264.552 would establishstandards for conducting correctiveaction and handling wastes generatedduring corrective action. If correctiveaction waste meets the RCRA regulatorydefinition of hazardous it would have tobe handled under the proposal ashazardous waste. With some limitedexceptions, new units built to treat,store, or dispose of this waste on-sitewould have to comply with 40 CFR part264 performance standards forhazardous waste units. Similarly,hazardous waste shipped off site wouldhave to be sent to RCRA subtitle Cfacilities.

The rule would also establish moreflexible standards for temporarytreatment and storage units developedduring the course of corrective action.

Completion of remedy. Proposed§ 264.530 would establish requirementsfor remedy completion. Similar to RCRAclosures, an independent engineer orother qualified professional would haveto certify completion of the remedy, and,in addition, public notice and commentwould be required before the Agencymade a final decision on whether theremedy had been completed.

In some cases, it might become clearin the course of a remedy that it was nottechnically practicable to reach thecleanup levels specified in the permit. Inthis case, proposed § 264.531 would

allow termination of the remedial actionand waiver of the cleanup standard.However, if environmentalcontamination remained at unprotectivelevels, long-term institutional or othercontrols would be required to preventhuman and environmental exposure.

These requirements and alternativesthat the Agency considered arediscussed in more detail in the followingsections.

VI. Section-by-Section Analysis

A. Purpose/Applicability (Section264.500)

1. Conforming Changes to PreviousCodification of§ 3004(u) and GeneralDiscussion. In today's proposal, EPA isestablishing a new subpart S to 40 CFRpart 264. This section of the proposedrule sets forth the general applicabilityof the proposed subpart S regulations.The procedures and technicalrequirements of subpart S apply to any.facility seeking a permit under section3005(c) of RCRA.

The language of § 264.500(a) through§ 264.500(d) reiterates the statutorylanguage of section 3004(u) and section3004(v). Proposed §§ 264.500 (b), (c), and(d) have already taken effect as a finalrule following public notice andcomment, and are codified at 40 CFR264.101 (on July 15, 1985, 50 FR 28702;and December 1, 1987, 52 FR 45788). It isnot the Agency's intention to reopen forpublic comment the substance of thesepre-existing provisions. The Agencyseeks comment only on the minorlanguage changes reflected in § 264.500(e.g., compare the first sentence of§ 264.101(b) with the first sentence of§ 264.500(c)), and its proposal to movethese provisions from § 264.101 to§ 264.500.

Proposed § 264.500(a) clarifies thatsubpart S applies to corrective action forall SWMUs, including regulated units(defined in § 264.90(a)(2) as any landfill,surface impoundment, waste pile, orland treatment unit that receivedhazardous waste after July 26, 1982).Corrective action for releases to groundwater from regulated units is currentlygoverned by § 264.100. Subpart S willapply to the investigation of releases toground water from other SWMUs.Releases to other media (air, soil andsurface waters) from both regulatedunits and other SWMUs will also begoverned by subpart S.

The Agency intends to modify the§ 264.100 standards to'be consistentwith the applicable sections of subpartS. Thus, regulated units and otherSWMUs would be subject to the samestandards for identifying and

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implementing necessary remedialaction. However, regulated units willcontinue to be subject to slightlydifferent standards for identifying andconfirming unacceptable releases toground water. EPA believes that thisdistinction between regulated units andthe larger universe of SWMUs isjustified by the slightly differentfunction of investigating procedures inthe context of regulated units; thepurpose of the ground-water detectionand compliance monitoring programs insubpart F is primarily preventive, ratherthan essentially responsive like thesubpart S program.

The statutory language of section3004(u), repeated in § § 264.500 (b) and(c), allows EPA to issue a RCRA permitwith a schedule of compliance forinvestigating and correcting releases,rather than delay issuance of the permituntil cleanup has been completed. Thiswill allow more prompt permitting bothof interim status facilities, bringing themunder the more stringent 40 CFR part 264standards sooner, and of new facilities,allowing more rapid expansion oftreatment, storage, and disposalcapacity.

Schedules of compliance, which areenforceable components of the permit,will thus be the primary vehicle bywhich EPA will specify the proceduraland technical requirements that owner/operators must follow to achievecompliance with their subpart Sresponsibilities. EPA is proposingspecific procedural requirements forcorrective action schedules ofcompliance, including requirementsassociated with modifications to theschedules, in today's rule asamendments to the existing 40 CFR part270 permit regulations.

As specified in proposed § 264.500(b),subpart S regulations will apply to allfacilities seeking permits under subtitleC of RCRA (with the exception of thespecific permits identified in proposed§ 264.500(f)). Permits subject to subpartS include post-closure permits, as wellas permits issued to operatinghazardous waste management facilities.Further discussion of the applicability ofpost-closure permit requirements andtheir relationship to section 3004(u)corrective action is discussed in thepreamble to the Second CodificationRule (December 1, 1987, 52 FR 45788).

2. Exceptions to Applicability.Today's proposed § 264.500(f) lists fourtypes of RCRA "permits" to which thesubpart S regulations would not apply.Each is discussed below.

a. Permits for Land TreatmentDemonstrations. Current RCRAregulations for hazardous waste landtreatment units (see § 270.63(a) and

§ 264.272) provide for a two-phasedpermit process in certain circumstances.A "permit" can be issued to a facilitywith permit conditions which cover onlythe activities needed to demonstratethat the hazardous waste constituentscan be completely degraded,transformed, or immobilized in thetreatment zone. Such a permit does notaddress the full RCRA standards (e.g.,financial assurance, general'facilitystandards) that apply to land treatmentfacilities. In the absence of permitconditions addressing full RCRA facilitystandards, this first-phasedemonstration permit is not considereda full RCRA permit issued under theauthority of section 3005. Once thedemonstration is successfully completedand the actual operating permit (i.e.,second part of the two-phased permit)for the land treatment unit is issued, thesubpart S corrective action requirementswill apply.

b. Emergency Permits. Section 270.61of the RCRA regulations provides forissuance of emergency permits, not toexceed 90 days in duration, whereimmediate actions that involvetreatment, storage, or disposal ofhazardous waste are necessary toprotect human health and theenvironment. The emergency permitprovision was included in the RCRAregulations as a way to provide amechanism for responses by an owner/operator in true emergency situationswhich could not be delayed until a fullRCRA permit could be issued. In somecases, emergency permits can be issuedorally when followed by a writtenpermit within a specified time frame.EPA does not believe it is appropriate toapply subpart S requirements toemergency permits, since such arequirement would render this permitmechanism unworkable for the quick-response situations it was designed toaddress. If a facility is required tocontinue to operate under a RCRApermit beyond the allowable time limitfor emergency permits, a full operatingpermit would be required and thefacility would be subject to subpart Srequirements.

c. Pemits-by-Rule for Ocean DisposalBarges or Vessels. Ocean disposalbarges and vessels are regulatedprimarily under the Marine Protection,Research and Sanctuaries Act (MPRSA)The applicable RCRA regulations (40CFR 270.60(a)) provide that operation ofvessels accepting hazardous waste forocean dumping are deemed to have aRCRA permit if they have obtained andcomply with an ocean dumping permitissued under the MPRSA, and complywith certain RCRA administrativerequirements. The RCRA permit-by-rule

functions primarily to ensure thatcertain administrative requirements ofthe RCRA system-in particular, wastemanifest requirements-apply to owner/operators of such vessels. Furthermore,as of November 1988, the OceanDumping Ban Act has in effect bannedthe ocean dumping of industrial waste.While corrective action requirementsunder subpart S do apply tounderground injection control (UIC)facilities and publicly-owned treatmentworks (POTWs) with National PollutantDischarge Elimination System (NPDES)permits subject to RCRA permits-by-ruleunder 40 CFR 270.60, such requirementsare necessary to ensure that correctiveaction requirements apply to releasesfrom all solid waste management unitsat these facilities not regulated underother laws. MPRSA permits, however,cover all portions of ocean-dumpingvessels. (Any onshore storage ortreatment facility that may beassociated with the ocean disposaloperation is required to obtain aseparate RCRA permit.) Thus there areno unregulated units within an oceandumping barge "facility." Furthermore,unauthorized releases from such vesselsare subject to regulation under theMPRSA. EPA does nol believe it isappropriate to apply subpart S to thesevessels because the substantiverequirements of section 3004(u) of RCRAare already effectively satisfied byMPRSA requirements.

d. Research, Development andDemonstration Permits. EPA does notbelieve that RCRA requires theapplication of section 3004(u)requirements to facilities seeking aresearch and developmentdemonstration permit under section3005(g) of RCRA. The conference reporton section 3004(u) expressly states thatthe provision is intended to apply tofacilities seeking a permit under section3005(c) of RCRA. Accordingly, facilitiesseeking a permit under section 3005(g)would not automatically beencompassed by section 3004(u).Moreover, the reading of section 3004(u)suggested by the conference report issupported by the statutory language ofsection 3005(g). Section 3005(g)(1)provides that the RegionalAdministrator shall include such termsand conditions in research anddevelopment demonstration permits ass/he deems necessary to protect humanhealth and the environment, includingprovisions related to monitoring,financial responsibility and remedialaction. Section 3005(g)(1) furtherprovides that these provisions may beestablished case-specifically in eachpermit without the establishment of

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separate regulations. Accordingly, theplain language of section 30051g)(1), andthe legislative history of section 3004(u)both suggest that research anddevelopment demonstration permits canbe subject to case-specific remedialconditions in the permit as determinedto be necessary, and need not be subjectto the general corrective actionregulations developed under section3004(u).

3. Voluntary Corrective Action.Today's proposal for corrective actionunder the authority of RCRA section3004(u) applies to RCRA facilities whichare seeking permits under RCRA subtitleC. Certain facilities where RCRAhazardous wastes are present, andwhere corrective action may be needed,are not required to obtain subtitle Cpermits, and, therefore, are not subjectto today's rule. For example, facilitieswhich generate hazardous wastes andaccumulate and store the wastes on sitefor less than 90 days prior to shipment toanother facility are not subject topermits or to today's proposed rule.

In a number of cases, owner/operators not subject to a RCRA permithave expressed an interest inproceeding with corrective action in anattempt either to reduce their liability orto preclude subsequent Agency or Stateactions. Some activities conductedduring voluntary corrective action mayrequire a permit if hazardous waste isinvolved (e.g., excavated waste isplaced into a disposal unit or stored onsite for more than 90 days).

Current regulations, however, providesignificant flexibility for non-permittedfacilities to undertake corrective actionwithout a RCRA permit. For example, 40CFR 262.34 allows generators toaccumulate hazardous waste on site intanks or containers for up to 90 dayswithout a permit or interim status, aslong as certain conditions-mostimportantly compliance with tank andcontainer standards of 40 CFR part265-are met. In addition, this authorityallows generators to treat haziirdouswaste in tanks during the accumulationperiod. Under RCRA regulations, afacility owner/operator conductingvoluntary corrective action involvinghazardous waste could often beconsidered a generator. One approach toachieving cleanup without triggering theneed to obtain a subtitle C permit wouldbe to store or treat such generatedwastes in tanks within the accumulationperiod, so long as the wastes remainedon site for less than'90 days, and otherconditions of J 262.34 were met.

In addition, voluntary correctiveaction could take place under a consentdecree issued under section 7003 ofRCRA. This authority allows EPA (or an

authorized State with comparableauthority) to require remedial action inthe case of an imminent and substantialthreat to human health or theenvironment, "notwithstanding anyother provisions of this Act." Thus,under this authority, EPA could order afacility to take corrective action, whileat the same time waiving permitrequirements. Any facility interested intaking corrective action under thisauthority, should consult with theappropriate Region or authorized Stateto explore the possibility of a section7003 consent order.

The concept of "voluntary" correctiveaction may also apply to owner/operators who have been issued permitswith corrective action schedules ofcompliance. Some facilities, such asthose with small or low-riskcontamination problems, will be ofrelatively low priority for expending thesubstantial resources required tooversee investigations and studies andmake remedy decisions. For thosefacilities, EPA's oversight attentioncould be deferred for several yearswhile the program focuses on highpriority facilities with majorenvironmental problems. However,owner/operators of lower priorityfacilities may wish, for various reasons,to expeditiously initiate cleanup actions,rather than wait for EPA to beginactively pursuing corrective action forthe facility. EPA strongly encouragesowner/operator cleanup initiatives atpermitted facilities, and intends tofacilitate such actions by minimizingany administrative obstacles which mayimpede cleanup.

Owner/operators may take a widerange of remedial-type activities atRCRA permitted facilities withouttriggering the need for formal approvalby the Agency or modification of thepermit. Such activities include, forexample, treatment, storage, or disposalof any non-hazardous solid wastes; -excavation of hazardous wastes fordisposal off site; less-than-90-daystorage or treatment of hazardouswastes in tanks, and treatment ofcontaminated ground water in anexempt wastewater treatment unit.However, some activities which may benecessary to achieve corrective actiongoals at the facility would require apermit modificatior. Such activitiesmight include creation of a newhazardous waste land disposal unit,consolidation and/or movement ofhazardous wastes between SWMUs atthe facility, or construction (ormovement on site) of a new 'hazardouswaste incinerator to manage correctiveaction ivastes.

The Agency intends to pursue anapproach to this type of "voluntary"corrective action which will providesufficient Agency oversight over cleanupactivities to prevent possible adverseeffects of cleanup actions withoutcreating disincentives to owner/operators who wish to take a proactiveposition vis-a-vis their corrective actionresponsibilities. This approach wouldencourage the owner/operator to notifyEPA and the State of any remedial-typeactivities being undertaken at thefacility, even though the activities arenot subject to, formal Agency approval.For proposed cleanup activities that aresubject to permit modificationrequirements, the owner/operator wouldbe required to submit a request for aClass L II or m permit modification, or arequest for temporary authorization forthe activities. (See the final permitmodification regulations at 53 FR 37912,September 2, 1988.) In the request for apermit modification (or temporaryauthorization, the owner/operatorwould be expected to include: [1) Adescription of the remediation initiative,including details of the unit or activitythat is subject to permit requirements;and (2) an explanation of how theproposed action is consistent withoverall corrective action objectives andrequirements outlined in today'sproposed regulation. EPA expects thatthe corrective action regulationsproposed today will offer owner/operators clear guidance in fashioningacceptable remedies and making suchshowings of consistency.

EPA's review of the application wouldfocus on the units or actions subject tothe permit modification requirements; itwould not, however, focus on whetherthe proposed cleanup action as a wholesatisfies the subpart S requirements.Rather, EPA will screen the cleanupproposal to ensure that it would notpose unacceptable risks to human healthand the environment (e.g., by producingundesirable cross-media impacts) orinterfere with attainment of the finalremedy at the site (e.g., by creating anew unit over an area of soilcontamination which may later need tobe treated or removed to health-basedlevels). Following this review, theAgency would approve or disallow theapplication.

Where a permit modification isapproved under these circumstances,the modification will make clear that thevoluntary activities initiated forcorrective action purposes may not bethe final remedy, and that thoseactivities, when completed, will notnecessarily absolve the owner/operatorfrom further cleanup responsibilities at a

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later date. This will also hold forcleanup actions reviewed by the Agencythat are not subject to permitmodifications. It is not possible for theAgency to delegate to owner/operatorsthe ultimate responsibility for ensuringthat remedial activities fully satisfyRCRA's statutory requirement forprotection of human health and theenvironment.

The Agency solicits comments on theapproach to voluntary corrective actiondescribed above.

B. Definitions (Section 264.501)EPA is today proposing to define five

key terms which apply specifically tothis subpart.

1. Facility. In the July 15, 1985,Codification Rule, EPA interpreted theterm "facility" in the context of section3004(u) to mean all contiguous propertyunder the control of the owner/operatorof a facility seeking a permit undersubtitle C. This interpretation wasupheld in a decision of the U.S. DistrictCourt of Appeals (United TechnologiesCorporation vs. US. EPA, 821 F2d. 714(DC Cir. 1987)). Thus, by proposing thisinterpretation as the definition of facilityin today's rule, EPA is not modifying itsbasic interpretation as previouslyelaborated for the purpose ofimplementing section 3004(u). There are,however, several aspects of thisdefinition which merit furtherclarification.

The definition of facility in today'sproposal at § 264.501 is not intended toalter or subsume the existing--andnarrower-definition of "facility" that isgiven in 40 CFR 260.10. That definitiondescribes the facility as "' -. allcontiguous land and structures * * *used for treating, storing or disposing ofhazardous waste * * " EPA intends toretain this definition for the purposes ofimplementing RCRA subtitle Crequirements, with the exception ofsubpart S corrective action (includingthose provisions governing correctiveaction for regulated units). At the sametime, however, the Agency is reviewingits uses of the term "facility" in otherparts of the subtitle C regulations toensure consistent usage.

Today's proposed definition refers to"contiguous property" under the controlof the owner/operator. Severalquestions have been raised as to theAgency's interpretation of "contiguousproperty" in the context of defining theareal limits of the facility. Clearly,property that is owned by the owner/operator that is located apart from thefacility (i.e., is separated by land ownedby others) is not part of the "facility."EPA does intend, however, to considerproperty that is separated only by a

public right-of-way (such as a roadwayor a power transmission right-of-way) tobe contiguous property. The term"contiguous property" also hassignificant additional meaning whenapplied to a facility where the owner isa different entity from the operator. Forexample, if a 100-acre parcel of landwere owned by a company that leasesfive acres of it to another company that,in turn, engages in hazardous wastemanagement on the five acres leased,the "facility" for the purposes ofcorrective action would be the entire100-acre parcel. Likewise, if (in the sameexample] the operator also owned 20acres of land located contiguous to the100-acre parcel, but not contiguous tothe five-acre parcel, the facility wouldbe the combined 120 acres. EPA invitescomment on these interpretations ofcontiguous property.

In some cases, adjacent propertiesmay be separately owned by twodifferent subsidiaries of a parentcompany, where only one'of thesubsidiaries' operations involvesmanagement of hazardous wastes. Insuch cases, EPA intends to consider theownership to be held by the parentcorporation. Thus, in the exampleprovided, the facility would include bothproperties.

EPA acknowledges that, in somesituations, "ownership" of property caninvolve a complex legal determination.EPA solicits comment and informationon the interpretation offered in general,and specifically on the issue of howownership or "control" of propertyshould be determined in the context ofsubsidiary-parent companies.

2. Release. Today's proposal includesthe definition of "release" articulated inthe preamble to the July 15, 1985,Codification Rule. This definitionessentially repeats the CERCLAdefinition of release. Today's proposeddefinition also includes language fromSARA which extended the concept of"release" to include abandoned ordiscarded barrels, containers, and otherclosed receptacles containing hazardouswastes or hazardous constituents.

Although this definition of release isquite broad, section 3004(u) is limited toaddressing releases from solid wastemanagement units. Thus, there may bereleases at a facility that are notassociated with solid wastemanagement units, and that aretherefore not subject to corrective actionunder this authority. (See discussionbelow which defines solid wastemanagement unit.)

Many facilities have releases fromsolid waste management units that areissued permits under otherenvironmental laws. For example, stack

emissions from a solid waste refuseincinerator at a RCRA facility are likelyto be authorized under a State-issued airpermit. Another example would beNPDES (National Pollutant DischargeElimination System, under the CleanWater Act), or State-equivalent, permitsfor discharges to surface water from anindustrial wastewater treatment system:EPA does not intend to utilize thesection 3004(u) corrective actionauthority to supersede or routinelyreevaluate such permitted releases.However, in the course of investigatingRCRA facilities for corrective actionpurposes, EPA may find situationswhere permitted releases from SWMUshave created threats to human healthand the environment. In such a case,EPA would refer the information to therelevant permitting authority or programoffice for action. If the permittingauthority is unable to compel correctiveaction for the release, EPA will takenecessary action under section 3004(u)(for facilities with RCRA permits) orsection 3008(h) (for interim statusfacilities, as appropriate, and to theextent not inconsistent with certainapplicable laws (see section 1006(a) ofRCRA}.

3. Solid Waste Management Unit(SWMU). Today's rule proposes thefollowing definition of solid wastemanagement unit:

Any discernible unit at which solid wasteshave been placed at any time, irrespective ofwhether the unit was intended for themanagement of solid or hazardous waste.Such units include any area at a facility atwhich solid wastes have been routinely.andsystematically released.

This definition is also derived fromthe Agency interpretation discussed inthe July 15, 1985, Codification Rule. Adiscernible unit in this context includesthe types of units typically identifiedwith the RCRA regulatory program,including landfills, surfaceimpoundments,-land treatment units,waste piles, tanks, container storageareas incinerators, injection wells,wastewater treatment units, wasterecycling units; and other physical,chemical or biological treatment units.

The proposed definition also includesas a type of solid waste managementunit those areas of a facility at whichsolid wastes have been released in aroutine and systematic manner. Oneexample of such a unit would be a woodpreservative "kickback drippage" area,where pressure treated wood is storedin a manner which allows preservativefluids routinely to drip onto the soil,eventually creating an area of highlycontaminated soils. Another examplemight be a loading/unloading area at a

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* facility, where coupling and decouplingoperations, or other practices result in arelatively small but steady amount ofspillage or drippage, that, over time,results in highly contaminated soils.Similarly, if an outdoor area of a facilitywere used for solvent washing of largeparts, with amounts of solventcontinually dripping onto the soils, thatarea could also be considered a solidwaste management unit.

For clarification purposes it may alsobe useful to identify certain types ofreleases that the Agency does notpropose to consider solid wastemanagement units using the "routineand systematic" criterion. A one-timespill of hazardous wastes (such as froma vehicle travelling across the facility)would not be considered a solid wastemanagement unit. If the spill were notcleaned up, however, such a spill wouldbe illegal disposal, and therefore subjectto enforcement action under section3008(a) -or section 7003 of RCRA.Similarly, leakage from a chemicalproduct storage tank would generallynot constitute a solid wastemanagement unit; such "passive"leakage would not constitute a routineand systematic release since it is not theresult of a systematic human activity.Likewise, releases from productionprocesses, and contamination resultingfrom such releases, will generally not beconsidered solid waste managementunits, unless the Agency finds that thereleases have been routine andsystematic in nature. (Such releasescould, however, be addressed as illegaldisposal under section 3008(a) or section7003.) EPA solicits comment on theseinterpretations, and on the overalldefinition of solid waste managementunit.

EPA recognizes that theseinterpretations have the effect ofprecluding section 3004[u) fromaddressing some environmentalproblems at RCRA facilities. However,EPA intends to exercise its authority, asnecessary, under the RCRA "omnibus"provision (section 3005[c)(2)), or otherauthorities provided in RCRA (e.g.,section 3008(a) and section 7003) orCERCLA (e.g., CERCLA section !04 orsection 106), or States, under Stateauthorities, to correct such problemsand to protect human health and theenvironment.

The RCRA program has identifiedcertain specific units and wastemanagement practices at facilities aboutwhich questions have been raisedconcerning applicability of the definitionof a solid waste management unit. Onesuch question relates to military firingranges and impact areas. Such areas are

often potentially hazardous, due to thepresence of unexploded ordnance. EPAhas decided that such areas should notbe considered solid waste managementunits. There is a strong argument thatunexploded ordnance fired during targetpractice is not discarded material whichfalls within the regulatory definition of"solid waste." Ordnance that does notexplode, as well as fragments ofexploded ordinance, would be expectedto land on the ground. Hence, the"ordinary use" of ordnance includesplacement on land. Moreover, it ispossible that the user has notabandoned or discarded the ordnance,but rather intends to reuse or recyclethem at some time in the future. Inaddition, a U.S. District Court decision(Barcello vs. Brown, 478 F. Supp. 646,668-669 (D. Puerto Rico 1979)), hassuggested that materials resulting fromuniquely military activities engaged inby no other parties fall outside thedefinition of solid waste, and thuswould not be subject to section 3004(u)corrective action.

Another issue which raises questionsregarding the definition of "solid wastemanagement unit" relates to industrialprocess collection sewers. Processcollection sewers are typically designedand operated as a system of piping intowhich wastes are introduced, and whichusually discharge into a wastewatertreatment system. The Agency believesthat there are sound reasons forconsidering process collection sewers tobe solid waste management units. Suchsewers typically handle large volumes ofwaste on a more or less continuousbasis, and are an integral component ofmany facilities' overall wastemanagement system. Programexperience has further indicated thatmany of these systems, especially thoseat older facilities, have significantleakage, and can be a principal sourceof soil and ground-water contaminationat the facility. Although processcollection sewers are physicallysomewhat unique in the context of thetypes of units which have traditionallybeen regulated under RCRA, EPAbelieves that including them as solidwaste management units for purposes ofcorrective action is well within thediscretion provided under the statute forEPA to determine what "units" shouldbe subject to RCRA standards.

EPA recognizes that there may betechnical problems associated withinvestigating releases from processcollection sewers, and with correctingleakage. Information and comment arespecifically solicited on EPA's tentativedecision to treat process collectionsewers as solid waste management

units, and on technical approaches anlimitations to investigating andcorrecting releases from such systems.

For essentially the same reasons asdescribed above for process sewers,EPA also proposes to include open (orclosed) ditches that are used to conveysolid wastes as solid waste managementunits; comment is also solicited on thisinterpretation.

4. Hazardous Waste and HazardousConstituents. Section 3004(u) requirescorrective action for releases of"hazardous wastes or constituents." TheAgency believes that use of the term"hazardous waste" denotes "hazardouswaste" as defined in section 10045) ofRCRA. Accordingly,, today's proposedrule repeats the statutory definition of"hazardous waste" found in thatsection. The term "hazardous waste" isdistinguished from the phrase"hazardous waste listed and identified,"which is used elsewhere in the statute todenote that subset of hazardous wastesspecifically listed and identified by theAgency pursuant to section 3001 ofRCRA. Thus, the remedial authorityunder section 3004(u) is not limited toreleases of wastes specifically listed in40 CFR part 261 or identified pursuant tothe characteristic tests found in thatsection. Rather, it extends potentially toany substance meeting the statutorydefinition. However, EPA believes thatuse of the phrase "hazardous wastes orconstituents" (emphasis added)indicates that Congress was particularlyconcerned that the Agency use thesection 3004(u) authority to address aspecific subset of this broad category,that is, hazardous constituents.

The term "hazardous constituent"used in section 3004(u) means thoseconstituents found in appendix VIII to 40CFR part 261. See 1L Rep. No. 98-198,98th Cong., 1st Sess. 60--61, May 17, 1983.In addition, the Agency proposes toinclude within the definition thoseconstituents identified in appendix IX to40 CFR part 264. Appendix IX generallyconstitutes a subset of appendix VIIIconstituents particularly suitable forground-water analyses. However, it alsoincludes additional constituents notfound on appendix VIII, but commonlyaddressed in ground-water analysisconducted as a part of Superfundcleanups.

It is EPA's intention thatinvestigations of releases under subpartS focus on the subset of hazardouswaste (including hazardousconstituents) that is likely to have beenreleased at a particular site, based onthe available information. Only wherevery little is known of wastecharacteristics, and where there is a

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potential for a wide spectrum of wastesto have been released, would theowner/operator be required to performextensive or routine analysis for abroader spectrum of wastes.

5. Corrective Action ManagementUnit (CAMU). The definition of CAMUis provided in section VI.J 3.b of today's-preamble. This section also provides athorough discussion of the CAMUconcept and of how the Agency intendsto define CAMUs in the context ofimplementing remedies.

C. Remedial Investigations (Sections264.510-264,513]

1. General. The RCRA Facility.Investigation (RFI) is the second phaseof the RCRA corrective action process,and will typically be preceded by aRCRA Facility Assessment (RFA),conducted by EPA or the State prior toissuance of the permit or section 3008(h)order. The RFA is the first step in theRCRA corrective action process, and isanalogous to the PreliminaryAssessment/Site Investigation (PA/SI)stage of the Superfund program. TheRFA serves as a screen, eliminatingsolid waste management units(SWMUs), environmental media, orentire facilities from furtherconsideration where the Agencydetermines that there is no evidence of arelease or likelihood of a release thatposes a threat to human health and theenvironment. The RFA also serves tofocus the scope of the follow-onremedial investigations by identifyingthose releases or areas that are of themost environmental concern at thefacility. The RCRA RFI is comparable tothe Remedial Investigation in theSuperfund program. Because of thesimilarity of the two processes andbecause of their common goals, the RFIis referred to in this section and in therule by the more generic term, remedialinvestigation.

As described above, EPA wouldrequire a remedial investigation underproposed § 264.510 if the RFA indicatedthat a release from a SWMU was likelyto have occurred or to be occurring, or,in certain limited circumstances, likelyto occur in the future. Requirements forthe remedial investigation would bespecified by the Agency in a schedule ofcompliance in the facility's permit. Theschedule would typically identify theSWMUs and environmental media thatrequired more detailed investigation aswell as the types of investigationsrequired; it would also typically requirethe owner/operator to develop a planfor conducting these investigations. Thepermit would also include "actionlevels" for specific constituents inspecific media under investigation. If

subsequent investigation indicated thatthese action levels had been exceeded, aCorrective Measure Study could berequired by the Agency.

EPA has recently issued a guidancedocument entitled RCRA FacilityInvestigation Guidance, which describesa menu of technical investigations thatmay be appropriate to conductingremedial-type investigations at RCRAfacilities. EPA wishes to emphasize thatthe nature and scope of remedialinvestigations for RCRA facilities underproposed § 264.510 will be tailored tothe specific conditions andcircumstances at the facility.Investigations will be focused on thespecific units, releases, and exposurepathways that have been identified byEPA to be of concern. In some cases, thescope of a remedial investigation couldbe limited to taking several soil samplesof a particular area of discolored soils.Likewise, for inactive units that do notcontain substantial volumes of volatileorganic compounds, remedialinvestigations will rarely need toaddress air releases. In defining thenature and scope of remedialinvestigations at RCRA facilities, EPAwill endeavor to minimize unnecessaryand unproductive investigations, and tofocus resources on characterizing actualenvironmental problems at facilities.

Today's rule, in §§ 264.511 through,264.513, proposes a regulatotyframework (both procedural andsubstantive) for conducting remedialinvestigations. For more information ontechnical approaches to theseinvestigations, readers should refer tothe RFI Guidance, which has beenincluded in the public record of thisrulemaking.

EPA also anticipates that remedialinvestigations will typically be phased,to avoid unnecessary investigationswhere a concern can be quicklyeliminated. Because of the importance ofaccurate data, and the likely need toextend or modify the analysis as dataare developed, the remedialinvestigation will often, in addition,require a high level of interactionbetween the permittee and the Agency.The specific contents and scope of theinvestigations are described below.

2. Scope of Remedial Investigations(§264.511). Proposed § 264.511 defines ingeneral terms the scope of remedialinvestigations which may be requiredunder § 264.510. Proposed § 264.511(a)states the general performance objectivethat remedial investigationscharacterize the nature, extent,direction, rate, movement, andconcentration of releases, as required bythe Agency. The scope and complexity

of remedial investigations will dependon the nature and extent of thecontamination, whether the releaseshave migrated beyond the facilityboundary, the amount of existinginformation on the site, the likely risk atthe site, and other pertinent factors. Theproposed general performance standardgives considerable flexibility to theAgency in defining the specific scope,level of detail, and data requirementsfor each remedial investigation. Thespecific investigation requirementsdeemed to be appropriate at a givenfacility will be included in the permit aspart of the schedule of compliance.

Proposed §§ 264.511(a)(1)-(7) providea menu of more specific types ofinformation that may be required inremedial investigations: (1)Characterization of the environmentalsetting; (2) characterization of solidwaste management units; (3) descriptionof the humans and environmentalsystems which are, have been, or maypotentially be exposed to the release; (4)information that will assist the Agencyin assessing the risk posed to humansand environmental systems by therelease; (5) extrapolations of futurecontaminant movement; (6) laboratory,bench-scale, or pilot-scale tests orstudies to determine the feasibility oreffectiveness of treatment or othertechnologies which may be appropriatein implementing remedies at the facility;and (7) statistical analyses to aid in theinterpretation of data required in theinvestigation.. The RFI Guidance describes in detail

technical approaches to characterizingthe releases and environmental settingsin remedial investigations. In addition,the RCRA Ground-Water MonitoringTechnical Enforcement GuidanceDocument (September 1986) providesspecific guidelines for characterizingground-water releases. Therefore, thispreamble will not describe in detailthese technical procedures.

Section 264.511(a)(1)(i)-(v) describesfive types of information that may berequired in a characterization of theenvironmental setting: Hydrogeologicconditions; climatological conditions;soil characteristics; surface watercharacteristics including sedimentquality; and air quality andmeteorological conditions. Thisinformation would be required asappropriate to address the concernsidentified in the RFA. Specificrequirements for the facility will beincluded in the permit schedule ofcompliance.

Section 264.511(a)(2) would allow EPAto'require a characterization of anySWMU from which releases may be

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occurring or may have occurred. Thischaracterization, which could includechemical and physical analyses, willoften be important in making decisionsas to potential source control measuresthat may be needed. Characterization ofwastes contained in SWMUs mayinvolve generation of chemical andphysical data about the wastes, theirconstituent breakdown, volumes,concentrations, and other relevant data.In some cases, unit characteristics suchas materials of construction, age, or typeand thickness of liners may be relevantto remedy decisions.

Section 264.511(a)(3) proposes that theAgency may require a full " * *

description of human and environmentalsystems which are or may be exposed torelease(s)." The proximity anddistribution of exposed populations mayindicate the need for interim measuresas proposed under § 264.540 of today'srule. Useful exposure information willgenerally be available at facilities withlandfills or surface impoundments, inthe form of Exposure InformationReports required under section 3019 ofRCRA. The RFA report may alsoprovide useful information on humanand environmental systems which maypotentially be exposed. Whereinformation available prior to permitissuance does not adequately identifypotentially exposed populations, EPAwill require this information, asappropriate, to be generated as part ofthe remedial investigation.

The Agency is also concerned withthe potential exposure of sensitiveenvironmental species or systems toreleases from SWMUs. As in theSuperfund program, the Agency intendsto carefully evaluate effects on sensitiveenvironmental systems, includingwetlands, estuaries, and habitats ofendangered or threatened species.

Section 264.511(a)(4) would providethe Agency with the authority to requireinformation that will assist the RegionalAdministrator in the assessment of risksto human health and the environmentfrom releases from solid wastemanagement units. Informationcollected under § 264.511(a)(3) alsowould be used in the assessment of risk.The risk assessment would integrateinformation on exposed human andenvironmental systems and informationon contaminant concentrations to assessthe magnitude of threats to exposedpopulations. The Agency may perform arisk assessment to determine whetherinterim measures are appropriate priorto selecting the final remedy or toevaluate whether a determination iswarranted so that no further action isnecessary (under proposed § 264.514).

The permittee should refer to chapterVIII of the RFI Guidance for informationregarding the Agency's expectations fordata that may be needed to conduct arisk assessment.

Section 264.511(a)(5) would providethe authority for the Agency to require apermittee to submit information thatextrapolates future contaminantmovement. Such information could beimportant in determining whetherinterim measures will be required toprevent further migration ofcontamination and what measures arelikely to be effective in doing so. Inaddition, extrapolated contaminantmovement will be important inassessing the adequacy of proposedschedules of implementation of theremedy.

Section 264.511(a){6) would providethe Agency with the authority to require".* * laboratory, bench-scale, or pilot-scale tests or studies to determine thefeasibility or effectiveness of treatmenttechnologies * * * that may beappropriate in implementing remedies atthe facility." It is often difficult, andsometimes impossible, to predict theeffectiveness of treatment technologiesaccurately without data from bench- orpilot-scale studies. Experience in theSuperfund program has shown thatbench-scale and pilot-scale studies canbe useful both in developing potentialremedies and in predicting theeffectiveness of alternative approaches.Typically, such studies would beperformed during the CorrectiveMeasure Study (CMS) (which may berequired after a contaminantconcentration level specified in thepermit as an "action level" is exceeded).However, in some cases such studiesmay need to be initiated during theremedial investigation to prevent delaysin cleanups, and the Agency shouldhave the regulatory authority to requirethis. For example, at SWMUs atfacilities where confirmed releases haveoccurred over a long period of time andwhere wastes placed in those SWMUswere highly toxic or mobile, it shouldnot be necessary to wait for the CMSphase of the corrective action process tobegin to evaluate, on a small scale, theeffectiveness of various treatmenttechnologies in achieving protectiveconcentration levels in the contaminatedmedium.

Section 264.511(a)(7) would providethe authority for the Agency to require apermittee to perform statistical analysesto aid in the interpretation of datacollected through remedialinvestigations required under § 264.510.For example, such statistical analysesmay be needed to determine whether

measured concentrations ofcontaminants exceed action levels.

Section 264.511(b) would authorize theRegional Administrator to specify theconstituents and parameters for whichsamples collected during remedial-investigations would be analyzed.Generally, analyses required will belimited to certain hazardous wastes orhazardous constituents listed inappendix VIII of 40 CFR part 261 orappendix IX of 40 CFR part 264 that areknown or suspected to have beenreleased from the unit. However, insome cases, where the wastes disposedin the unit are unknown to the owner/operator, or the unit is known to containa hazardous substance(s) not includedon either appendix VIII or IX, referencedabove, additional analyses may berequired. In the first case, it may benecessary to have an initial analysiswhich is designed to scan, for example,for all appendix IX constituents. Furtheranalyses may then be limited toconstituents which are found to bepresent in the initial sample. In addition,EPA may stipulate a requirement toanalyze for substances not on eitherappendix VIII or IX (see preamblediscussion on the definition of"hazardous waste"). Authority tospecify the analyses to be performed,and for which constituents, will beimportant in ensuring that quality dataare developed to accurately characterizereleases, and to support no furtheraction decisions that may beappropriate.

3. Plans for Remedial Investigations( 264.512). Under today's proposed§ 24.512, permittees may be required tosubmit a plan for conducting theremedial investigation if aninvestigation is determined to benecessary. The Agency considered, butis not proposing, making submittal ofsuch plans an absolute requirement; thatis, expressing it as a "shall" rather thana "may". In some cases the Region orState may have extensive knowledge ofthe facility prior to permit issuance, andmay be able to specify, in detail, howthe investigations should be conducted.In this situation, it would not benecessary to require the owner/operatorto submit a workplan for approval.Likewise, in some other cases thepermittee may have begun remedialinvestigations under an interim statuscorrective action order, under CERCLA,or on a voluntary basis. Where theworkplan developed for investigationsprior to permit issuance is determinedby the Regional Administrator to beadequate, it will not be necessary torequire submission and approval of thecurrent plan-that plan would simply be

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Federal Register / VoL 55, No. 145 / Friday, July 27, 1990 / Proposed Rules

incorporated into the permit. In the greatmajority of cases, however, the Agencybelieves that plans for remedialinvestigations will need to be submittedby the permittee. The permit wouldspecify a schedule for submission of theplan, as well as the elements the planmust include. These requirements willgenerally reflect the complexity of thesituation to be addressed. The Agencyconsidered a requirement that wouldimpose a definite deadline for everyowner/operator required to submit anRFI plan (e.g., g0 days after permitissuance). Typically 90 days would besufficient time for an owner/operator todevelop and submit a plan for theinvestigation. However, thecircumstances at some facilities may behighly complex (e.g., location above aKarst formation) and may mean thatmore than 90 days would be required todevelop an adequate plan. Further,where the Agency must set priorities tomanage a heavy work load, facilitiessuspected of having seriouscontamination may be required tosubmit plans more quickly. Therefore,EPA has not proposed a specific timeperiod within which the plan must besubmitted, but the Agency is solicitingcomment on whether such an approachis preferable to the more flexibleapproach in today's proposal.

Plans for conducting remedialinvestigations would be subject toreview and approval or modification bythe Regional Administrator. When aworkplan submitted for the RegionalAdministrator's approval does notadequately address all elements of theinvestigation, the RegionalAdministrator may either disapprovethe plan and return it to the permitteefor revision, or make modifications tothe plan and return the modified plan tothe owner/operator as the approvedplan. The latter approach is analogousto the discretion provided the RegionalAdministrator to modify closure planssubmitted by an owner/operatorpursuant to § 265.112 during interimstatus, or through a Notice of Deficiencyduring the permitting process. Anapproved plan will establish bothrequirements applicable to the conductof the investigation and a schedule forits implementation. Section 264.512(b)would provide regulatory authority forenforcing compliance with the approvedplan, which becomes an enforceablepart of the permit schedule ofcompliance. In most cases, it is expectedthat the initial permit will specify thatthe plan becomes an enforceablecomponent of the permit upon approval.Alternatively, the permit may be

modified to incorporate the provisions ofthe approved plan.

Proposed § 264.512(a) lists items thatthe Regional Administrator may requirein the work plan. Such plans shouldgenerally call for focused, stagedinvestigations, the scope and emphasisof which will be refined as releases areverified and/or found not to haveoccurred. The work plans wouldgenerally include: A description ofoverall approach- technical andanalytical approaches and methods;quality assurance procedures; and datamanagement procedures and formats todocument and track the results ofinvestigations. In addition, the RegionalAdministrator may impose otherelements, as necessary, to assure thatwork undertaken will be of an adequatequality (and an appropriate level ofdetail) to serve as the primary basis fordecisions on further stages of thecorrective action process that may benecessary at the facility.

The description of the overallapproach, which could be requiredunder proposed § 264.512(a)(1), wouldgenerally include a description of theobjectives of the investigation, itsschedule, and the qualifications of thepersons conducting the investigation.The schedule is particularly importantbecause, when approved, it will becomeenforceable as part of the schedule ofcompliance.

A requirement to specify the technicaland analytical approaches to beemployed (under proposed§ 264.512(a)(2)) might includespecifications for the location,construction, and frequency of samplingof ground-water monitoring wells. Thiswould be analogous to the types ofspecifications for wells that are typicallyIn permits for land disposal units.

Submissions of proposed qualityassurance procedures under§ 264.512(a)(3) would be evaluated toensure that data generated during theinvestigation are accurate, and that theycan be used with confidence to supportthe next steps of the corrective actionprocess. Guidance on appropriatequality assurance procedures may befound in the RCRA Facility InvestigationGuidance.

Data management procedures andformats for documenting results of theinvestigation are included in proposed§ 264.512(a)(4) to ensure that RFI dataand summary results are presented in aclear and logical manner. Studies suchas the RFI typically produce largeamounts of data, such as laboratoryanalyses of numerous wasteconstituents from numerous samples.Effective data management and

presentation will be necessary to ensurethat the data can be properlyinterpreted.

4. Reports of Remedial In vestigations(§264513). Proposed § 264.513 wouldestablish the Regional Administrator'sauthority to require periodic reports thatsummarize results of remedialinvestigations. Timing of the reports, aswell as specific content requirements,would be detailed in the permit scheduleof compliance. The report format may bespecified by the Regional Administratorwhere necessary to ensure presentationof data in an orderly and easilycomprehensible fashion.

The Agency considered, but is notrequiring in today's proposal, specifyingintervals for reports (e.g., such as every180 days). The Agency believes thatthere should be flexibility in the timingof submission of reports to reflect thenature of the investigations which maybe required at specific facilities. Forexample, where extensive monitoring-well construction and sampling arenecessary, months may pass beforesignificant results are gathered. On theother hand, where limited soil samplingof a few SWMUs is required to confirmor disprove suspected contamination,meaningful results may be achievedmore quickly.

Where data generated during theinvestigation (or which are newlyavailable from other sources) indicatethat the investigation should bemodified, the Regional Administratormay require such modifications eitherby negotiation with the facility owner/operator, or through a modification tothe schedule of compliance.Modifications could occur, for example,if the investigation revealed thatcontamination had migrated, or wouldsoon migrate, off site. In such a case,additional activities may be imposed asinterim measures to contain thecontamination until active, longer termremediation could begin. Further, newinformation may indicate the need foradditional investigations, or theRegional Administrator may need tomodify the investigation requirementsbased on preliminary analytical results.

Proposed §§ 264.513(b) and 264.513(c)would require the permittee to submit afinal report of the investigation to theRegional Administrator for approval,and would allow the Agency to requirethe permittee to add to or otherwiserevise the report if it did not fully andaccurately summarize the results of theremedial investigation. This authority torequire revisions should ensure thatadequate information (both in qualityand level of detail) is presented to

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support further corrective actiondecisions for the facility.

n addition to the final report, thepermittee would be required to submit asummary of the report under proposed§ 264.513(b)(2}. This summary wouldalso be subject to the approval of theRegional Administrator, and would bemailed to all individuals on the facility'smailing list by the owner/operator. (Thefacility mailing list, which is requiredunder 40 CFR 124.10(c)(1)(viii), isdeveloped and maintained by EPA aspart of the permitting process.) Thisproposed requirement is an importantelement of the Agency's overall publicinvolvement strategy for correctiveaction, which is described in furtherdetail in today's preamble under sectionVIIl. Distribution of the summary in thismanner will provide notice to interestedparties as to the general nature of theenvironmental problems at the facility,what releases have been found, andother results of investigations.

Section 264.513(e) would require thatthe permittee maintain all raw data(such as laboratory reports, drilling logs,and other supporting information) at thefacility for the duration of the correctiveaction activities and any permit periodunless the Regional Administratorapproves maintaining this information ina different location. Although such datawill often be required to be submittedalong with investigation reports, this,requirement will ensure that whenquestions do arise concerninginterpretation of data or the adequacy ofprocedures used to obtain and analyzedata, the original records will beavailable for inspection.

D. Determination of No Further Action(Section 264.514)

EPA anticipates that at some facilitiesreleases or suspected releases that areidentified in a RCRA FacilityAssessment (RFA), and subsequentlyaddressed as part of required remedialinvestigations, will be found to be non-existent, or otherwise of such a naturethat they do not pose a threat to humanhealth or the environment. EPAproposes providing a mechanism bywhich a permittee may request a permitmodification to effectively terminatefurther requirements in these cases.

Section 264.514 proposes theprocedures to be followed by both thepermittee and the RegionalAdministrator when a determination ofno further action for the facility isrequested. The request for an Agencydetermination that no further action isrequired, and the corresponding permitmodification request, must beaccompanied by supportingdocumentation that demonstrates that

there are no releases of hazardouswaste (including hazardousconstituents) from SWMUs at thefacility which pose a threat to humanhealth or the environment. (Seeproposed J Z4.514(aX2).)

Under proposed § 264.514(a) thepermittee may request a modification ofthe facility permit to terminate theschedule of compliance for correctiveaction based on the findings of remedialinvestigations. The request would beinitiated according to the procedures ofa Class I permit modification. (See theSeptember 1988 final permitmodification rule.) These procedureswould require the permittee to notify allpersons on the facility mailing list of theproposed change and publish anewspaper notice concerning therequest; both notices must announce theinitiation of a 60 day comment period aswell as the time, date, and location of aninformational public meeting. Inaddition, a copy of the proposedmodification and supportingdocumentation must be placed in alocation accessible to the public in thevicinity of-the permitted facility. (In thecase of proposed modifications atfacilities required to establish aninformation repository under § 270.36 oftoday's proposal, this location would bethe information repository.) Moredetailed information concerning therequirements for a Class MI permitmodification may be found in the rulefor permit modifications cited above andthe preamble discussion whichaccompanies it.

Under proposed § 264.514(b), if theRegional Administrator, using allavailable information (includingcomments received during the commentperiod required for Class MImodifications), determines that releasesor suspected releases investigated eitherdo not exist or do not pose a threat tohuman health or the environment, theRegional Administrator will grant therequested permit modification.

This determination will bestraightforward where the permittee candemonstrate that no release hasoccurred; however, such a determinationmay still be supported when a releasehas occurred, whether the release(s) iseither below or above action levels. Forexample, such a determination may bemade when concentrations of hazardousconstituents exceed action levels but thecontamination is in a highly saline(Class III) aquifer, or wherecontamination in ground water can beshown to have originated from a sourceoutside the facility. Such adetermination would be consistent with.the provision made in today's proposalat § 264.525(d}{2}{ii), which allows

certain cleanup exemptions whencontamination is present in groundwater that is neither a current orpotential source of drinking water norpotentially usable for other humanpurposes. Another example where a nofurther action determination might bemade is where it can be determined thatcontaminant levels (and the risks posedby them) from a release from a SWMUare insignificant as compared to existing"background" levels (eg., levels that arenaturally occurring, or that haveresulted from releases from outside thefacility). This determination would beconsistent with the provision made intoday's proposal at § 264.525(d)(2)(i).

A determination that no further actionis required under § 264.514, and thesubsequent termination of the permitschedule of compliance for correctiveaction, does not affect otherresponsibilities or authorities of theRegional Administrator. For example,responsibilities to include requirementsin a permit for air emissions control andmonitoring under section 3004(n) are notaffected by a determination that nofurther action is required under 1264.514(see preamble section VILC.3 onrelationship to section 3004(n)standards). In addition, the authority ofthe Regional Administrator to modifythe permit under § 270.41 at a later dateto require corrective actioninvestigations or studies based on newinformation is not affected. Furthermore,despite a determination under 1 264.514,EPA may require continuing or periodicmonitoring when site-specificcircumstances indicate that releases arelikely to occur in the future. Forexample, for a particular SWMU fromwhich releases have not occurred, itmay be reasonable to conclude, basedon site-specific circumstances, thatreleases to ground water might beexpected within the next several years(i.d., the term of the permit. In thesesituations, continued monitoringrequirements could be imposed.

Where the permit schedule ofcompliance has been terminated and theRegional Administrator subsequentlydetermines that a new investigation orremediation is required, the RegionalAdministrator will initiate a majorpermit modification under § 270.41 torequire further action by the permittee.

E. Corrective Measure Study (Sections264.520-264.524)

1. PuTpose of Corrective MeasureStudy (§ 264.520). Proposed § 284.520would establish the authority of theRegional Administrator to require thepermittee to perform a CorrectiveMeasure Study (CMS). The remedial

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investigation should serve to focus theCMS on units which are sources ofreleases and the media pathwaysaffected by such releases. The CMS isdesigned to identify and evaluatepotential remedial alternatives for thereleases that have been identified at thefacility; in this respect it is analogous tothe Feasibility Study (FS) conducted forCERCIA remedial actions.

2. Trigger for Corrective MeasureStudy (§ 264.521)--a. Use of ActionLevels. Action levels are defined inproposed § 264.521. Under proposed§ 264.520(a), the Regional Administratormay require the permittee to conduct aCorrective Measure Study wheneverconcentrations of hazardousconstituents in an aquifer, surfacewater, soils, or air exceed action levelsfor any environmental medium.

Action levels are health- andenvironmental-based levels determinedby the Agency to be indicators forprotection of human health and theenvironment. The Agency proposes toset action levels for hazardousconstituents, a subset of hazardouswastes. Many hazardous wastes, suchas some of the wastes listed in 40 CFR261.32, are not specific constituents atall, but rather are complex mixturescomprised of many constituents. EPAbelieves that it would not be feasible inmost cases to set action levels for suchwastes. Conversely, other hazardouswastes are individual constituents thatdo not appear on appendix VIII to 40CFR part 261 or appendix IX to 40 CFRpart 264. When such wastes (e.g.,asbestos) are of concern at a facility, anaction level would be specified for thatwaste.

Where appropriate, action levels arebased on promulgated standards (e.g.,maximum contaminant levelsestablished under the Safe DrinkingWater Act). In other cases, action levelsare established by the RegionalAdministrator on.the basis of generalcriteria (see following discussion).Appendix A provides examples ofconcentrations derived by EPAaccording to these criteria for someappendix VIII and IX constituents.

The Agency is proposing the use ofaction levels because active remediationmay not be necessary at all facilitiesrequired to perform a remedialinvestigation under proposed § 264.510.For instance, a remedial investigationmay indicate that a suspected releaseidentified in the RFA had, in fact, notoccurred, or may indicate that levels ofcontamination from a past release areunlikely to present a threat to humanhealth and the environment. Therefore,the Agency believes it should establisha trigger that will indicate the need for a

CMS, and below which a CMS wouldnot ordinarily be required.

Action levels will, whenever possible,be incorporated in the permit. TheAgency believes it is advantageous toidentify action levels in the permit sothat the public and the permittee willknow in advance what levels will triggerthe requirement to conduct a CMS. Thisapproach also minimizes the need forpermit modifications later in theprocess, which could delay ultimatecleanup.

In some cases there may be sufficientinformation on the nature and levels ofcontamination at the time of permitissuance to establish the need for aCorrective Measure Study. In suchcases, it might not be necessary toinclude action levels in the permit.However, it is more often likely thatremedial investigations conducted afterpermit issuance will yield the dataneeded to determine if action levels areexceeded; hence the need to generallyinclude the action levels in the originalpermit.

A determination that action levelshave been exceeded may occur at anypoint during the RFI, or may not becomeevident until the RFI is completed. Ineither case, when such data becomeavailable, the permit schedule ofcompliance will provide for notificationof the permittee that the action levelsspecified in the schedule have beenexceeded. The notification, as providedin proposed § 264.520(d) would specifywhich hazardous constituents exceedaction levels, for which media, andwhen initiation of a CMS is required.

It is the Agency's intention that theaction level "trigger" approach asoutlined in this proposal serves toidentify early in the process the need forinitiating a Corrective Measure Study;such studies should typically not bedelayed pending completion of allremedial investigations. In manyinstances it will be appropriate toconduct simultaneously the RFI andCMS for the facility.

Action levels should be distinguishedfrom cleanup standards, which aredetermined later in the corrective actionprocess. Contamination exceedingaction levels indicates a potential threatto human health or the environmentwhich may require further study. Actionlevels also inform the permittee of thelevels below which the Agency isunlikely to require active remediation ofreleases, and provide a point ofreference for suggesting and supportingalternative remedial levels.

Section 264.520 allows, but does notrequire, the Regional Administrator torequire a CMS when contaminationexceeds action levels. In some cases, the

permittee may rebut the presumptionthat a CMS is required when actionlevels are exceeded. For example, thepermittee may establish that thecontamination is not due to releasesfrom solid waste management units atthe facility. In other instances, thepermittee may demonstrate that a CMSis not required (or only a limited CMS isrequired) if the release is confined to aClass III aquifer meeting the criteria of§ 264.525(d)(2)(ii) or to ground waterother than Class III for which the actualand reasonably expected uses do notmerit further action. In addition, a CMSmight not be required if the CMS istriggered by a carcinogenic hazardousconstituent that slightly exceeds theaction level but is within the 1 10-4to1 X 10-8 risk range that is protective forthe site (see preamble section VI.F.5.bfor discussion of risk range). This"rebuttal" of the need for a CMS wouldgenerally be made through the processfor determination of no further action,proposed in § 264.514.

Conversely, the fact that nocontaminants are found to exceed actionlevels does not preclude the RegionalAdministrator from requiring a CMS.Section 264.520(b) would allow theRegional Administrator to require aCMS if concentrations below actionlevels may pose a threat to humanhealth or the environment, due to site-specific exposure conditions. (Seediscussion in section VI.E.2.h of today'spreamble, below.)

In some situations it may not beobvious from the available data whetherconcentrations in media truly exceedaction levels. This situation would arisewhen some data on a hazardousconstituent indicate that it is present ata concentration less than the actionlevel, while other data indicate that it ispresent at a concentration greater thanthe action level. In such situations, the

-Regional Administrator may require thepermittee under § 24.511(a)(7) toprovide additional data or statisticalanalyses to aid in the determinationunder § 264.520 of whether action levelsare exceeded. For example, a tolerance,prediction, or confidence intervalprocedure may be required, in which theaction level is compared to the upperlimit established from the distribution ofthe data for the concentration of theconstituent.

The Agency considered thealternative of establishing a mandatoryrequirement to perform a statisticalanalysis as part of the determinationunder § 264.520 that action levels havebeen exceeded. However, the Agencybelieves that it is unnecessary to makethis requirement mandatory, since in

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Federal Register / VoL 55, No. 145 / Friday, July 27, 1990 / Proposed Rules

many cases contamination fromSWMUs will greatly exceed actionlevels. The Agency believes that thediversity of SWMUs and contaminationscenarios calls for some discretion in therequirement to perform statisticalanalyses. For example, in somesituations, contamination from a SWMUmay be known to be extensive in sizeand concentration. In such situations,statistical analyses are not needed todetermine that an action level has beenexceeded. In other situations, acontaminant release at a SWMU maynot be extensive enough (either in sizeor concentration) to clearly indicatecontamination. In these cases, astatistical test may be required todetermine if a release has actuallyoccurred in excess of action levels. TheAgency requests comment on itsproposed approach of providingdiscretion to the Regional Administratorin requiring statistical analyses, and onthe alternative of making such analysesmandatory in determining whetheraction levels have been exceeded.

The Agency examined but did notpropose two alternatives to requiring theCorrective Measure Study which did notinvolve the use of action levels. Underone approach, the Agency would haverequired the permittee to conduct aCorrective Measure Study concurrentlywith the remedial investigationsconducted pursuant to § 264.510. Underthis option, the Agency would have usedthe same trigger for requiring a CMS asis used to require an RFI-the finding ofan existing or likely release pursuant toan RFA. This alternative was rejectedbecause of its potential for requiringunnecessary studies.

The second alternative considered bythe Agency would have required thepermittee to conduct a CorrectiveMeasure Study only after completion ofthe remedial investigation conductedpursuant to proposed § 264.510 and adetermination of the need to protecthuman health and the environment. Ifthe Agency had adopted this approach,it would not have required the permitteeto conduct a CMS until allcontamination and contaminant sourcesat the facility were fully characterizedand the need for corrective measures atthe facility was established. The Agencyrejected the alternative because of thedelay that would be associated withconducting these phases of theinvestigations sequentially even in caseswhere early data indicate thatremediation is highly likely to berequired.

The Agency also examined alternativeapproaches for setting action levels. Onealternative would have required a

Corrective Measure Study wheneverbackground levels of contaminants wereexceeded. Experience in the subpart Fprogram has demonstrated that thedetermination of background levels canbe a lengthy, controversial process.Furthermore, background levels willoften be much lower than health-basedlevels. Thus, this alternative wasrejected, since it might delay theinitiation of the CMS and ultimatecleanup, and might often requireCorrective Measure Studies even wherelevels were significantly below healthand environmental-based standards.

A second alternative would haverequired a CMS whenever detectionlimits were exceeded. This alternativewas also rejected, since detection limitscan be difficult to define and do notdirectly relate to the goal of correctiveaction; that is, protection of human

.health and the environment.The Agency also considered but did

not adopt an alternative for requiringthe Corrective Measure Study thatwould involve the use of a range ofaction levels. Under this approach, theAgency would select constituent-specific action levels within the IX10- 4

to 1x 10-6 risk range based on theexposure scenarios proposed under§ § 264.521 (a)(2), (b), (c)(3), and (d),depending on the likelihood thatexposure would in fact occur. Forexample, if the Agency could beconvinced that there is a minimalopportunity for human exposure throughone medium or several media, an actionlevel could be established at the I X10

- 2

risk level. This alternative wasconsidered because the Agency isconcerned about the possibility thatsome SWMUs might be triggered into aCMS at the 1x 10- 6 level even thoughthey do not pose a threat to humanhealth and the environment due to alack of current and low probability offuture exposure. Although it is theAgency's view that the proposedregulations have enough flexibility toavoid r6quiring a Corrective MeasureStudy where it is not necessary, theAgency is requesting comment on theuse of a range of action levels.

The Agency believes the approachproposed in today's rule provides it withthe flexibility to require the permittee toinvestigate corrective measuressufficiently early (whethersimultaneously with the RFI orsequentially) in the corrective actionprocess, while minimizing the potentialfor unnecessary investigations.Experiehce in the Superfund programsuggests that early consideration ofpotential remedies allows focusedinvestigations and prevents delays

without imposing unnecessary resourceburdens on either the permittee or theAgency.

b. Criteria for Determining ActionLevels. In several cases, EPA haspromulgated health-based standardsappropriate for action levels for specificmedia. Where these standards areavailable, EPA intends to use them asaction levels. The mst obvious of theseare maximum contaminant levels(MCLs), which establish drinking waterstandards under the Safe DrinkingWater Act (SDWA). EPA will use thesestandards to set action levels for groundwater, and, in some cases, for surfacewater.

In the overwhelming majority ofcases, however, promulgated standardswill not be available. Nevertheless,health-based levels that have undergoneextensive scientific review, but whichhave not been formally promulgated, areavailable for many chemicals. TheAgency is proposing today in§ 264.521(a)(2) (i}-{iv) criteria whichenable the Regional Administrator touse such non-promulgated health-basedlevels to derive action levels.

Concentrations derived from non-promulgated health-based levels thatmeet the following four criteria includedin today's proposal could be used foraction levels. First, the concentrationmust be derived in a manner consistentwith principles and procedures set forthin Agency guidelines for assessing thehealth risks of environmental pollutants,which were published in the FederalRegister on September 24, 1986 (51 FR33992, 34006, 34014. 34028). Second,toxicology studies used to derive actionlevels must be scientifically valid,conducted in accordance with the GoodLaboratory Practice Standards (40 CFRpart 792 , or equivalent. The GoodLaboratory Practice Standards prescribegood laboratory practices for conductingstudies related to health effects,environmental effects, and chemical fatetesting, and are intended to assurequality data of integrity. The guidelinesare for ensuring scientifically validstudies, and also may be useful asguidance. In addition, the Agencyguidelines for assessing the health risksof environmental pollutants (citedabove) cite several publications whichoutline procedures for evaluating studiesfor scientific adequacy and statisticalsoundness. Third, concentrations usedas action levels must (for carcinogens)be associated with a 1× 10-6upperbound excess cancer risk for ClassA and B carcinogens, and a 1X10- 5

upperbound excess cancer risk for ClassC carcinogens. Finally, for systemictoxicants (referring to toxic chemicals

30815




that cause effects other than cancer ormutations), the action level must be aconcentration to which the humanpopulation (including sensitivesubgroups) could be exposed on a dailybasis that is likely to be withoutappreciable risk of adverse effectsduring a lifetime. These criteria aresimilar to those upon which promulgatedhealth-based standards and criteria arebased. Action levels derived accordingto these criteria represent valid,reasonable estimates of levels in mediaat or below which corrective action isunlikely to be necessary.

As mentioned previously, guidancelevels are available for many chemicals.Appendix A of this preamble listsconcentrations for selected hazardousconstituents in water, soil, and air whichthe Agency believes meet these fourcriteria. EPA established theseconcentrations by an assessmentprocess which evaluated the quality andweight-of-evidence of supportingtoxicological, epidemiological, andclinical studies, and which relied on theexposure assumptions in appendix D ofthis preamble.

The Agency's approach to assessingthe risks associated with systemictoxicity is different from that for therisks associated with carcinogenicity.This is because different mechanisms ofaction are thought to be involved in thetwo cases. In the case of carcinogens,the Agency assumes that a smallnumber of molecular events can evokechanges in a single cell that can lead touncontrolled cellular proliferation. Thismechanism for carcinogenesis isreferred to as "nonthreshold," sincethere is essentially no level of exposurefor such a chemical that does not pose asmall, but finite, possibility of generatinga carcinogenic response. In the case ofsystemic toxicity, organic homeostatic,compensating, and adaptivemechanisms exist that must beovercome before the toxic end point ismanifested. For example, there could bea large number of cells performing thesame or similar function whosepopulation must be significantlydepleted before the effect is seen.

The threshold concept is important inthe regulatory context. The individualthreshold hypothesis holds that a rangeof exposures from zero to some finitevalue can be tolerated by the organismwith essentially no chance of expressionof the toxic effect. Further, it is oftenprudent to focus on the most sensitivemembers of the population; therefore,regulatory efforts are generally made tokeep exposures below the populationthreshold, which is defined as the

lowest of the thresholds of theindividuals within a population.

Thus, for the chemicals on appendix Awhich cause systemic toxic effects, theAgency has estimated reference doses(RfDs). The RfD is an estimate of thedaily exposure an individual (includingsensitive individuals) can experiencewithout appreciable risk of healtheffects during a lifetime, and isconsistent with the threshold conceptdescribed above.

For the chemicals on appendix Awhich are believed to cause cancer, theAgency has estimated carcinogenicslope factors (CSFs). Since the Agencyassumes that no such threshold existsfor carcinogens, the issue to be resolvedin health assessments of carcinogens isthe probability of the occurrence of aneffect. The CSF, or unit cancer risk, is anestimate of the excess lifetime risk dueto a continuous constant lifetimeexposure from one unit of carcinogenicconcentration (e.g., mg/kg/day byingestion, ug/m s by inhalation).Chemicals which cause cancer andmutations also commonly evoke othertoxic effects. Thus, an RfD and CSF mayboth be available for a single chemical.In these cases, the level which is lower(more protective) should be used as anaction level. Generally, the protectivelevel for cancer will be lower.

For carcinogens, EPA believes thataction levels corresponding to a 1× 10-6risk level (or 1 X 10- 5 for Class Ccarcinogens) generally are appropriate.This is at the higher protective end ofthe 10.

- 4 to 10-6 risk range. (Seediscussion in section VI.F.5 of today'spreamble.) Using a value from the highend of this range ensures that thehazardous constituents screened out atthis point are those for which correctivemeasures are unlikely to be necessary.

In adopting the 1X10- 4 to Xl10-6 riskrange for this proposed rule, the Agencyrecognized that 1x 10- 4 risk levels ofconstituents may not be protective at allsites, due to multiple constituents,multiple exposure pathways, or othersite-specific factors.

Thus, the alternative of establishingactions levels at the lower protectiveend of the risk range (e.g., I X10 - 1 wasrejected since it would be tooinsensitive a trigger-i.e., it would fail torequire a Corrective Measure Study atsome sites which may pose a threat tohuman health and the environment. TheAgency believes that the selected risklevels are reasonable points to establishaction levels for carcinogens.

Section 204.521(a)(2)(iii) providessome flexibility to the RegionalAdministrator to consider the overallweight of evidence of carcinogenicity in

setting action levels for carcinogens.EPA has explained its classificationscheme for carcinogens based on theweight of evidence for carcinogenicity inits cancer guidelines (51 FR 33992). Theconstituent concentrations provided asexample action levels in appendix Areflect this approach. In this table,known or probable human carcinogens(known as Class A and Class Bcarcinogens, respectively, under theAgency guidelines) are listed at a1X 10- risk level, whereasconcentrations listed for constituents forwhich the weight of evidence ofcarcinogenicity is weaker (known asClass C, or possible human carcinogensunder the Agency's guidelines),correspond to a 1× 10- 5 risk level. Someexperts have argued that it isinappropriate to weight Class Ccarcinogens in this way, and that allsubstances classified as carcinogensshould be weighted equally, whereasothers argue that Class C carcinogensshould be weighted more heavily (i.e.,more stringently) because of the greateruncertainty associated with the limitedevidence of their carcinogenicity. TheAgency solicits comments on how itshould handle Class C carcinogens insetting action levels.

Many of the RfDs and CSFs used toderive the concentrations listed inappendix A are available through theIntegrated Risk Information System(IRIS), a computer-housed, electronicallycommunicated catalogue of Agency riskassessment and risk managementinformation for chemical substances.IRIS is designed especially for Federal,State, and local environmental healthagencies as a source of the latestinformation about Agency healthassessments and regulatory decisionsfor specific chemicals. (To establish anIRIS account, call Dialcom at (202) 488-0550.) The risk assessment information(i.e., RfDs and CSFs) contained in IRIS,except as specifically noted, has beenreviewed and agreed upon by intra-agency review groups, and represents anAgency consensus. As EPA workinggroups continue to review and verifyrisk assessment values, additionalchemicals and data components will beadded to IRIS. IRIS hardcopy will beavailable through the NationalTechnical Information Service (NTIS). Inaddition, EPA will routinely updateappendix A as new data on hazardousconstituents are developed.

c. Action Levels for Ground Water.Proposed § 264.521(a) establishes actionlevels for ground water in aquifers. Byspecifying the term "aquifer" in thiscontext, the Agency intends to definebroadly the type of ground-water

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contamination situations that mayrequire Corrective Measure Studies,while triggering such studies only insituations where actual ground-watercleanup is a reasonable remedialapproach.

The Agency considered using the term"uppermost aquifer," but decided thatthis would limit its flexibility inaddressing contamination in loweraquifers that are not hydraulicallyconnected with the uppermost aquifer.Such a situation could arise if wastewere leaked from the casing of anunderground injection well. Thus, thewording of § 264.521(a) will explicitlyallow the Agency to address any suchunusual instances where solid wastemanagement units have contaminatedground water that is not in an"uppermost" aquifer as defined in§ 264.510.

The Agency also considered not usingthe term "aquifer" in § 264.521(a). Thiswould have required CorrectiveMeasure Studies for ground water to beperformed even when the ground wateris of negligible use as a resource, suchas a small pocket of soil which becomessaturated only episodically. Althoughcontamination in any saturated zonethat could act as a pathway transportingcontaminants to aquifers could be aconcern, the Agency would intend toaddress those situations in the contextof setting action levels for soils (see§ 264.521(d)), including "deep soils" thatcould act as a ground-watercontaminant pathway.

EPA has, under a number of statutes,promulgated standards and criteriarelevant to protection of environmentalmedia. Among the most important ofthese are maximum contaminant levels(MCLs) promulgated under the SafeDrinking Water Act (42 U.S.C. section300(f) et seq.), which have beenincorporated into this rule as actionlevels for ground water under§ 264.521(a)(1). MCLs promulgated underthe Safe Drinking Water Act aremaximum concentrations ofcontaminants allowed in water used fordrinking (see appendix B). The use ofMCLs for action levels is consistent withcurrent RCRA ground-water protectionstandards (40 CFR part 264, subpart F),which set the interim primary drinkingwater standards (MCLs) for 14constituents (which existed at the timesubpart F regulations were promulgated)as ground-water protection standards inthe absence of another Agency decision.Currently there are 34 MCLspromulgated, of which six aremicrobiological contaminants, three areradionuclides, and 25 are organic andinorganic contaminants; the MCLs for

the chemical contaminants are listed inappendix B.

Where MCLs are available for aparticular constituent but the groundwater at a site is not currently used for adrinking water supply, and is unsuitablefor use as a drinking water supply in thefuture, MCLs will still ordinarily be usedas action levels (i.e., to require a CMS);however, cleanup to the MCL might notbe required (see section VI.F.5 fordiscussion of media cleanup standards).The Agency is persuaded that, in caseswhere ground water is contaminated atlevels above action levels, further studyis necessary (e.g., to make sure thatsources of releases are controlled).

Where MCLs have not beenpromulgated for hazardous constituents,EPA would develop levels according tothe criteria specified in proposed§ 264.521(a)(2)(i)-(iv) and described indetail above in this preamble (seesection VI.E.2.b). In this analysis, theAgency would use the standardexposure assumptions of two liters aday for a 70 kilogram adult over a 70year lifetime (see appendix D),assumptions that are used extensivelythroughout EPA and other agencies.Appendix A lists levels that weredeveloped for water by the Agencyaccording to these principles and whichthe Agency believes would beappropriate for ground-water actionlevels. In addition, proposed (but not yetpromulgated) MCLs would also typicallymeet the criteria proposed in§ 264.521(a)(2)(i)-(iv) and could serve asground-water action levels.

Where data are insufficient to developaction levels according to these criteria,the Agency would establish levelsaccording to the procedures in proposed§ 264.521(e), which are described inmore detail in section VI.E.2.g of thispreamble. The Agency solicits commenton the proposed approach andalternative approaches to establishingaction levels for ground water.

d. Action Levels for Air. Proposed§ 264.521(b) identifies criteria forestablishing action levels for air,assuming exposure through inhalation ofair contaminated with the hazardousconstituent. Appendix A lists possibleaction levels that meet these criteria.The Agency used the followingprocedures to develop concentrations inair listed in appendix A:

Note: Appendix A action levels arecurrently taken exclusively from the IRISdata base, and developed using onlyprocedures I and 4; this appendix will bemodified to include other health-basednumbers not currently on IRIS, derived fromprocedures 2 and 3. This is consistent withcurrent Superfund practices and policy.

1. Where an Agency-verified health-based intake level for inhalation (e.g.,RfD) was available, that level was usedto calculate the concentration in air.

2. Where an Agency-verified level (asin (1), above) was not available, a levelbased on a valid inhalation study wasused, even if it had not yet gone throughthe formal intra-Agency verificationprocess.

3. If a level based on an inhalationstudy (as in (1) u~r (2) above) was notavailable, a health-based intake level(e.g., RfD) based on an oral study wasused, with a conversion factor of one forroute-to-route extrapolation to calculatethe concentration in air--except wheresuch an extrapolation factor wasdetermined to be inappropriate. Forexample, it is not appropriate where aconstituent that is a systemic toxicantthrough the oral route of exposurecauses local adverse effects on the lungthrough the inhalation route. Aconstituent might also be determined tobe an inappropriate candidate for route-to-route extrapolation due to significantdifferences in metabolism or absorption.Where the extrapolation from oral routeto inhalation route of exposure isdetermined to be inappropriate, and alevel based on an inhalation study (as in(1) or (2) above) is not available,appendix A does not list a concentrationin air (see section VI.E.2.g for adiscussion of how to set action levelswhere health- and environment-basedlevels are not available). While theconcentrations in air listed in appendixA (and C) are being evaluated further bythe Agency with regard to theappropriateness of this route-to-routeextrapolation, they will be used only asan interim measure. The Agency willadopt RfDs based on actual inhalationtoxicity data as soon as the databecome available.

4. The standard exposure assumptionfor air typically used in ,Agency riskassessments (i.e., 20m3/day for a 70kilogram adult for a 70 year lifetime)was used (see appendix D).

Under proposed § 264.521(a)(2), actionlevels would be measured or estimatedat the facility boundary, or anotherlocation closer to the unit if necessary toprotect human health and theenvironment.

The Agency has chosen the facilityboundary as the location where airaction levels are proposed to betypically measured, for several reasons.Measuring at the facility boundary Willhave the effect of requiring CorrectiveMeasure Studies to be conductedwhenever potentially health-threateninglevels of airborne constituents thatoriginate from waste management units

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are being released to areas outside thefacility property. The Agency recognizesthat in some cases this could requireowner/operators to study potentialremedial solutions where actualremediation of air releases will not berequired-under today's proposal, therequirement actually to remediate airreleases is tied to actual exposure; ie.,exceedence of health-based levels at themost exposed individual (see thediscussion of air cleanup standards insection VI.F.7.a of today's preamble).However, under this scenario, ifexposure conditions were tosubsequently change and trigger theneed for corrective action for airemissions, the owner/operator would beable to more expeditiously implementthe remedy that had already beendeveloped in the Corrective MeasureStudy. The Agency believes thatmeasuring action levels at the facilityboundary, while environmentallyconservative, will not represent anundue burden on owner/operators.

Under today's proposal, the RegionalAdministrator could, when necessary,require action levels to be measured atone or more locations within the facility.An example would be if individualswere actually residing on the facilityproperty, as might be the case at aFederal facility (e.g., a military base).On-site worker exposure would notgenerally be a determining factor inestablishing locations for action levels,since such exposure is regulated by theOccupational Safety and HealthAdministration (see further discussionin section VI.F.7.a(2) of today'spreamble).

The Agency considered, but did notpropose, other locations for establishingaction levels for air releases. Thesealternative locations would haveinvolved determining action levels at (1)the unit boundary, or (2) the mostexposed individual. The alternative ofdetermining action levels at the unitboundary was rejected as unnecessarilystringent, since it would likely have theeffect of very often triggering the needfor a Corrective Measure Study, whereno actual or potential threat to humanhealth and the environment existed. Theoption of measuring action levels at themost exposed individual was not chosenbecause in some cases a CMS would notbe triggered based on current locationsof receptors, even though futureresidential development close to thefacility were planned and could result inexposure above action levels. TheAgency specifically requests commenton the most appropriate location formeasuring action levels for the airmedium.

e. Action Levels for Surface Water.Proposed § 264.521(c) identifies actionlevels for surface water.Notwithstanding these action levels,some releases from solid wastemanagement units to surface water maybe subject to the National PollutantDischarge Elimination System (NPDESpursuant to section 402 of the CleanWater Act (CWA). The CWA prohibitsthe unregulated discharge of anypollutant to waters of the United Statesfrom any point source. Releases tosurface waters that are nonpoint sourcesmay be subject to the Nonpoint SourceManagement Program established undersections 208 and 319 of the CWA. If theAgency discovers releases from solidwaste management units which arepoint sources, but lack an NPDESpermit, CWA authorities will generallybe used to address the release. It shouldbe understood that the term surfacewater in this context includes wetlands,as prescribed under section 404 of theCWA. Section 404 permits are requiredfor dredge and/or fill into wetlands.

Proposed § 264.521(c) specifies thatState water quality standardsestablished pursuant to section 303 ofthe CWA that are expressed asnumerical values will be used as actionlevels, where they have beenestablished for the surface water bodyin question. However, EPA anticipatesthat such numerical standards may, insome cases, not have been establishedat the time when remedial investigationsare being conducted at RCRA facilities.In these cases, action levels may beestablished as numeric interpretationsof State narrative water qualitystandards.

Water quality standards bothestablish water quality goals, and serveas a basis for establishing treatmentcontrols, based on the use or uses whichthe State designates for the receivingwater (e.g., recreation or public watersupply). The standards consist of adesignated use or uses, and the waterquality criteria which will protect suchuses. Criteria are expressed as eithernumeric constituent concentration levelsor narrative statements that represent aquality of water that supports aparticular use.

In applying narrative standards tospecific water bodies, some States haveprescribed methods for calculatingnumeric values for the water body. Suchmethods vary from State to State in theircomplexity, the time required toestablish the numeric values, and theprocedures involved. Although derivingthese numeric interpretations fromnarrative standards will often bestraightforward, the Agency expects

that in some situations the derivation ofsuch values could be relatively complexand time-intensive. In such cases, theRegional Administrator could determinethat the use of numeric interpretationsof narrative water quality standardswas not appropriate for the purpose ofestablishing action levels. EPAemphasizes that the use of suchnarrative standards must not delay thecorrective action process.

Where numeric water qualitystandards have not been established bythe State, and where numericinterpretations of narrative standardsare either unavailable or inappropriate(for reasons described above), proposed§ 264.521(c)(3) provides that maximumcontaminant levels (MCLs) promulgatedunder the Safe Drinking Water Act willbe used as action levels, if the surfacewater has been designated as a drinkingwater source by the State (seediscussion in previous section on the us(of MCLs as action levels in groundwater).

In situations where a numerical waterquality standard, a numeric

'interpretation of narrative standards, oran MCL is not available for a particularhazardous constituent in surface waterdesignated by the State for drinking,proposed I 264.524(c)(4) specifies thatthe criteria under § 264.521(a)(2) (i)-(iv)be used for establishing action levels insurface water, assuming exposurethrough consumption of the watercontaminated with the hazardousconstituent. The standard exposureassumptions of two liters/day for a 70kg adult over a 70 year lifetime inappendix D should be used, unlesspeople also consume aquatic organismsfrom the surface water. In these cases,the Agency suggests that Federal WaterQuality Criteria be used as action levelssince they satisfy the criteria for actionlevels established under § 264.521(a)(2)(i)-(iv). Federal Water Quality Criteriaare concentrations of contaminantsdetermined to be protective of humanhealth and/or aquatic organisms.Criteria for protection of human healthare based on exposure through drinkingwater, as well as exposure throughdrinking water and ingesting aquaticorganisms. Criteria for protection offreshwater/estuarine and marineorganisms are also available. EPA haspromulgated water quality criteria for126 pollutants under the Clean WaterAct.

In situations where a numerical waterquality standard is not available for aparticular hazardous constituent insurface water designated by the Statefor uses other than drinking, proposed§ 264.524(c)(5) provides the Regional

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Administrator with the flexibility toconsider the State-designated use of thesurface water in establishing aconcentration as the action level. Forexample, in some surface watersdesignated for industrial uses, theAgency believes that an MCL may betoo sensitive a trigger for a CMS. Inother sitluations, MCLs may be tooinsensitive a trigger for a CMS (forexample, in trout streams). FederalWater Quality Criteria may provideuseful guidance in setting action levelsunder § 264.524(c)(5).

If Federal Water Quality Criteria areused as action levels, the purposes forwhich such criteria were developedshould be considered in determiningwhich criteria are appropriate to use.For example, for a surface water bodyused for fishing and drinking, the criteriafor protection of human health based ondrinking water and eating aquaticorganisms would be most appropriate.For Class A and Class B carcinogens,the criteria corresponding to a 10-a risklevel should be used, whereas for ClassG carcinogens, the Agency suggests thatthe criteria corresponding to 10- risklevel be used. (See discussion ofAgency-established classes ofcarcinogens and relative risk levelsconsidered appropriate in sectionVI.E.2.c of this preamble.)

If contaminants attributable toreleases from a SWMU exceed an actionlevel anywhere in surface water, aCorrective Measure Study may be.required. Proposed § 264.521(c) does notspecify where in surface watersconcentrations should be measuredagainst action levels. In determiningappropriate sampling locations, theAgency will generally attempt to specifylocations in the surface water where thehighest concentrations of hazardousconstituents released from SWMUs areexpected to occur-i.e., at or near thepoint or points where releases enter thesurface water. However, in some cases,establishing the precise point(s) wherereleases enter the surface water may bedifficult and time-consuming, such as inthe case of a ground-water plume in acomplex hydrogeologic setting thatflows into a lake. In these cases, theAgency would not wish to delay theinitiation of a Corrective Measure Studywhile the point of release is located, ifconcentrations greater than action levelscould already be detected in the surfacewater.

EPA specifically requests comment ontoday's proposal for establishing actionlevels for surface water.

Proposed § 264.520(b), which allowsthe Regional Administrator to require aCMS when necessary to protect humanhealth and the environment, even when

no action levels have been exceeded,may be particularly important forsurface water. For example, theRegional Administrator may determinethat a threat from consumption ofaquatic organisms exists at levels at orbelow the MCL, since the MCL does notincorporate exposure through ingestionof contaminated organisms.

A Corrective Measure Study may alsobe required under § 264.520(b) if theRegional Administrator determines thatthere is a threat to human health or theenvironment from contaminatedsediments even though action levels forsurface water have not been exceeded.The Agency believes it is important toclarify its authority to addresssediments contaminated by releasesfrom solid waste management unitsunder sections 3004 (u) and (v) ofHSWA, although today's proposal doesnot establish action levels specificallyfor sediments. The Agency is currentlydeveloping sediment criteria which,when promulgated, may be used asguidance in evaluating contaminatedsediments. However, no health-based orenvironmental levels are currentlyavailable which are appropriate assediment action levels. Thus, until suchcriteria are developed, the need forCorrective Measure Studies based onsediment contamination will bedetermined on a case-by-case basis. TheAgency requests comment on thisapproach to addressing sediments.

Finally, the Regional Administratormay require a Corrective Measure Studyfor surface water under § 264.520(b)when a threat to aquatic health exists atlevels at or below action levels. FederalWater Quality Criteria for protection ofaquatic health should be used asguidance in making this determination.

f. Aation Levels for Soil. Proposed§ 264.521(d) establishes criteria forestablishing action levels for soil,assuming exposure through consumptionof the soil contaminated with thehazardous constituent. Action levelswould be set on the basis of theexposure assumptions in appendix D,which assume a residential use pattern,with long-term direct contact and soilingestion by children. Action levels forsoil would typically be measured on thesurface (generally the upper two feet ofearth).

The exception to this approach, iswhere EPA has already establishedstandards for the cleanup of spilledpolychlorinated biphenyls (PCBs), whichare regulated under the ToxicSubstances Control Act (TSCA). TheAgency has determined that the use ofthese promulgated standards, as actionlevels and cleanup standards for soil, isrelevant to RCRA corrective action. This

policy is also consistent with Superfundpolicy. The PCB Spill Policy under TSCAis discussed more fully in section VII.Bof this preamble.

Although action levels for soils areestablished using direct contactassumptions most appropriate forsurficial soils, it is intended that theseaction levels will often also be used as apresumption that a GMS may benecessary for contaminated deep soilswhich may pose a threat to groundwater in aquifers. The Agency does notbelieve that generic action levels basedon the potential for hazardousconstituents in soil to contaminateground water can be developed at thistime, since the type of soil, distance toground water, and other site-specificfactors, as well as the properties of thehazardous constituent, influence thispotential. A permittee may attempt torebut this presumption by demonstratingthat there is no threat to human healthand the environment from such deep soilcontamination, either through directcontact or migration to aquifers orsurface water. Alternatively,§ 264.520(b) may be used to require aCMS in situations where deep soils arecontaminated below action levels, butpose a threat to ground water inaquifers.

Although estimates of soil intake arenot as frequently used by the Agency asare estimates of air or water intake,appendix D provides recommendedexposure assumptions for non-carcinogenic and carcinogenic soilcontaminants given an unrestricted usescenario. A soil ingestion rate of 0.1 8/day is recommended for carcinogens,and a rate of 0.2 g/day, based on anaverage child's body weight of 16 kg, isrecommended for non-carcinogens.

In the case of non-carcinogeniccontaminants, the oral RfD would beused to calculate an action level, orthreshold concentration below whichadverse effects would not occur,assuming 0.2 gram per day of soil isconsumed. Sixteen kilograms representsan average body weight for childrenaged one to six. The Agency believesthese exposure assumptions arereflective of a conservative averagescenario in which children ages 1-6years (i.e., the time period during whichchildren exhibit the greatest tendencyfor hand-to-mouth activity) are assumedto ingest an above-average amount ofsoil on a daily basis. The exposurelevels estimated in this manner arecalculated to keep exposures well belowthe population "threshold" for toxiceffects (see earlier preamble discussion).Since the toxic effect of concern isassumed to occur once the threshold

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Federal Register / Vol. 55, No. 145 1 Friday, July 27, 1990 / Proposed Rules

level is exceeded, the amount of soilingested on a daily basis becomes ofmajor importance in determining non-carcinogenic effects. Therefore, toaccount properly for the risk fromelevated exposure to non-carcinogenicsoil contaminants during earlychildhood years, it is important that theexposure not be estimated over alifetime; to do so would "smear" out thepeak exposure occurring during theabove-mentioned time period of fiveyears and result in the failure to detectan unacceptable exposure level (i.e., alevel which exceeds the RfD).

In the case of carcinogens, the actionlevel would be derived by assumingconsumption of 0.1 g/day averaged outover a lifetime, based on an adult bodyweight of 70 kilograms. Because theexpression of carcinogenic effects isprincipally a function of cumulativedose (i.e., the time course of exposure isusually secondary), the Agency believes,in general, that elevated exposuresduring early childhood are relativelyunimportant in determining lifetimecancer risk. Therefore, total lifetime(cumulative) soil ingestion can beaveraged to derive a per day value.These exposure assumptions do,however, reflect a reasonable worst-case scenario--0.1 g/day is an upper-range estimate of soil ingestion for olderchildren and adults.

The above recommendations arebased on the conservative assumptionsthat 100 percent of the ingested non-carcinogenic and carcinogenic soilcontaminants are absorbed across thegastrointestinal tract and that ingestionoccurs 365 days/year, regardless ofclimatic conditions or age. The Agencysolicits comment on the aboveassumptions for soil exposure forestablishing action levels.

The Agency considered the use ofother generic exposure assumptions forestablishing action levels for soil basedon direct contact (e.g., exposure throughdermal contact, exposure throughingestion under a non-residentialscenario), but rejected these alternativesfor several reasons. First, establishingaction levels based on genericassumptions for dermal exposure orexposure via ingestion of soil under anon-residential scenario would be a farless sensitive trigger, and could in effectcause a "false negative" in situationswhere the Agency believes correctiveaction would be necessary. Second, thedata base for developing action levelsbased on dermal exposure or exposurevia ingestion of soil under a non-residential exposure scenario is limited.

In addition to considering genericexposure assumptions, the Agencyconsidered the use of site-specific, direct

contact exposure factors for derivingsoil action levels. However, the Agencybelieves that assessing site-specificexposure in setting action levels wouldbe a resource-intensive process, andwould run counter to the objective ofusing action levels as a simple screeningmechanism. lhe Agency recognizes thatthe proposed approach is conservative.Nevertheless, the Agency believes thatthese levels are appropriate as actionlevels (as opposed to cleanup targets)-that is, they can reasonably serve asrebuttable presumptions that furtherstudy, including analysis of possibleremedies, is necessary.

Soil cleanup levels are discussed inmore detail in section VI.F.5 of thispreamble. However, it should berecognized that facilities with soilcontamination above an action level-particularly where the levels would poseno threat under current conditions ofexposure-would have a wide range ofremedial options open to them, including"conditional" remedies (for which thepermit would specify appropriateexposure controls), or the covering ofthe contaminated soil with a soil cap. Inthis case, a Corrective Measure Studymight simply be a proposal to clean upto protective levels, assuming industrialland use, and to ensure restricted accessfor the life of the permit. This raises theissue of "conditional" remedies, whichis discussed in more detail in sectionVI.F.8 of this preamble.

g. Action Levels Where Health- andEn vironmental-Based Levels Are NotAvailable. If, for any medium, Agency-promulgated standards or criteria, orother health-based levels meeting theproposed criteria are not available or

,cannot be developed for use as actionlevels, § 264.521(e) allows the RegionalAdministrator to set an action level forany constituent on the basis of availabledata and reasonable worst-caseassumptions. In most cases, partial dataor data on structural analogs will allowthe Regional Administrator to estimatewhether the detected level of acontaminant is likely to cause aproblem. In other cases, othercontaminants will be present at highlevels (triggering a CMS in any case),and it will be clear that the constituentis not a driving factor in determining therisk at the site, even under worst-caseassumptions concerning its toxicity. Insuch cases it may not be necessary tospecify an action level for theconstituent. Finally, under proposed§ 264.521(e)(2), the RegionalAdministrator would have the authorityto set the action level at background fora hazardous constituent for which datawere inadequate to set a health- orenvironment-based action level. This

option, however, is providad primarilyas a fall-back position. The Agencybelieves that it will very rarely benecessary to set action levels atbackground.

As indicated earlier, appendix A listspossible action levels for a range ofhazardous constituents based on thecriteria proposed in § 264.521(a)(2).EPA's Office of Solid Waste (OSW) isdeveloping, for the purpose of guidance,health-based numbers on additionalconstituents. These levels would alsosatisfy the criteria of proposed§ 264.521(a)(2). As these additionalhealth-based levels are developed, theywill be entered into tha Integrated RiskInformation System (IRIS). Forinformation on these guidance numbers,the OSW Technical AssessmentBranch/Health Assessment Sectionshould be consulted at (202) 382-4761.

h. Authority to Require a CorrectiveMeasure Study Where Action LevelHave Not Been Exceeded. The Agencybelieves it is important to provide theRegional Administrator authority torequire a CMS under § 264.520(b) evenwhen no constituents exceed actionlevels. For example, a CMS could berequired if there are threats to certainsensitive environmental receptors at aparticular facility with contamination ator below action levels. Also, a CMScould be required in situations wherethe risk posed by the presence ofmultiple contaminants may be highenough to warrant a Corrective MeasureStudy even if no single constituentexceeds the individual action level forthe constituent. Similarly, if individualsliving near the site are receivingsignificant exposures from sources otherthan SWMUs at the site, the incrementalexposure due to SWMUs at the site mayresult in a cumulative risk large enoughto warrant a CMS. In addition, theremay be situations where "cross-media"risks could indicate the need for a CMS,even though action levels in a particularmedium have not been exceeded. Anexample might be where at nearbyresidences releases in both the air andground water are present at very lowlevels, but the cumulative risks fromboth pathways of exposure aresufficient to be of concern. Althoughsuch situations are expected to berelatively rare, the Agency will examinesuch cross-media risks when site-specific conditions indicate the potentialfor such exposure factors.

A CMS may also be required ifconstituents pose a threat throughexposure pathways other than thatassumed in setting action levels. Forexample, constituents in surface waterthat do not exceed MCLs may still pose

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a threat to persons who ingest fishcaught from that surface water.Constituents in ground water that do notexceed MCLs may still pose a threatthrough ponding or basement seepage.Nevertheless, the Agency believes that,with few exceptions, proposed actionlevels will be adequate to identifypotential threats to human health andthe environment which necessitate aCMS.

3. Scope of Corrective Measure Study(§ 264.522). In the RCRA program,corrective action requirements will beimplemented at facilities with a widerange of different types ofenvironmental problems. Some RCRAfacilities might, if evaluated according toSuperfund's Hazard Ranking System(HRS), score high enough to be-includedon the National Priority List. On theother hand, most RCRA facilities havemuch less extensive environmentalproblems, and are maintained by viableowner/operators, who may be expectedto operate at the site for an extendedperiod of time. Recognizing the diversityof the RCRA facility universe, today'sproposal has been structured to providethe Agency considerable flexibility indefining the scope and analyticapproach to developing CorrectiveMeasure Studies, consistent with theextent and nature of the environmentalproblems at the facility.

EPA anticipates that for most RCRAfacilities, the studies needed fordeveloping sound, environmentallyprotective remedies can be relativelystraightforward, and may not requireextensive evaluation of a number ofremedial alternatives. Such"streamlined" Corrective MeasureStudies can be tailored to fit thecomplexity and scope of the remedialsituation presented by the facility. Forexample, if the environmental problemat a facility were limited to a small areaof soils with low-level contamination,the Corrective Measure Study might belimited to a single treatment approachthat is known to be efctive for suchtypes of contamination. In a differentsituation, such as with a largemunicipal-type landfill, it may beobvious that the source control elementof the CMS should be focused oncontainment options. EPA anticipatesthat a streamlined or highly focusedCMS will be appropriate to thefollowing types of situations:

e "Low risk" facilities. Facilities whereenvironmental problems are relatively small,and where releases present minimal exposureconcerns.

* High quality remedy proposed by theowner/operator. Owner/operators maypropose a remedy which is highly protective(e.g., equivalent to a RCRA "clean closure"),

and which is consistent with all otherremedial objectives (reliability, etc.).

* Facilities with few remedial options. Thiswould include situations where there are fewpracticable cleanup solutions (e.g., largemunicipal landfills), or where anticipatedfuture uses of the property dictate a highdegree of treatment to achieve very lowlevels of residual contamination.

* Facilities with straightforward remedialsolutions. For some contamination problems,standard engineering solutions can beapplied that have proven effective in similarsituations. An example might be cleanup ofsoils contaminated with PCBs.

* Phased remedies. At some facilities thenature of the environmental problem willdictate development of the remedy in phases,(see the discussion of phased approach under§ 264.526(d)), which would focus on oneaspect (e.g., ground-water remediation) of theremedy, or one area of the facility thatdeserves immediate measures to controlfurther environmental degradation orexposure problems. In these situations, theCorrective Measure Study would be focusedon that specific element of the overallremedy, with follow-on studies asappropriate to deal with the remainingremedial needs at the facility.

EPA recognizes that, in contrast to theabove situations, some facilities withvery extensive or highly complexenvironmental problems will requireCorrective Measure Studies that assessa number of alternative remedialtechnologies or approaches. Thefollowing are examples of situationswhich would likely need relativelyextensive studies to be done to supportsound remedy selection decisions:

e "High risk" facility with complexremedial solutions. Such facilities might havelarge volumes of both concentrated wastesand contaminated soils, for which severaldifferent treatment technologies could beapplied to achieve varying degrees ofeffectiveness (i.e., reduction of toxicity orvolume), in conjunction with different typesof containment systems for residuals.

9 Contaminant problems for which several,very different approaches are practicable.There may be several, quite distinct technicalapproaches for remediating a problem at afacility, each of which offers varying degreesof long-term reliability, and would beimplemented over different time frames, withsubstantially different associated costimpacts. In such cases, remedy selectiondecisions will necessarily involve a difficultbalancing of competing goals and interests.Such decisions must be supported withadequate information.

In addition to the above examples ofsituations calling for either a limited, orrelatively complex CMS, other studieswill fall in the middle of that range.Given this "continuum" of possibleapproaches to structuri~g CorrectiveMeasure Studies, it is the Agency'sgeneral intention to focus these studieson plausible remedies, tailoring the

scope and substance of the study to fitthe complexity of the situation.

The general types of analyses andinformation requirements that maypotentially be required of the permitteein conducting a Corrective MeasureStudy are outlined in today's proposed§ 264.522(a). Note that this provisiondoes not prescribe that any specifictypes of remedies be analyzed, nor doesit define a decision process by whichremedial alternatives are "screened" orevaluated. It is intended to provide thedecisionmaker with a range of optionsfor structuring a study to support theultimate remedy selection for thefacility.

Proposed § 264.522(a)(1) lists itemsthat the Regional Administrator mayrequire in a CMS for any remedy(s)evaluated. In general, sufficientinformation should be provided for theAgency to determine that the remedyselected can meet the remedy standardsof § 264,525(a).

Section 264.522(a)(1) would give theRegional Administrator authority torequire the permittee to perform anevaluation of the performance,reliability, ease of implementation, andimpacts (including safety, cross-mediacontaminant transfer, and control ofexposures to residual contamination)associated with any potential remedyevaluated. In evaluating theperformance of each remedy, theAgency would expect the permittee toevaluate the appropriateness of specificremedial technologies to thecontamination problem being addressedand the ability of those technologies toachieve target cleanup concentrations(per following discussion on "targetlevels").

To evaluate these factors for aspecific remedy, the owner/operatormay be required to develop specificdata. Data may be needed on generalsite conditions, waste characteristics,site geology, soil characteristics, ground-water characteristics, surface watercharacteristics, and climate. The Agencyanticipates that permittees will collectmuch of this information duringremedial investigations required under§ 264.510. In some cases, importantrelevant information may be included inthe part B application. To the extent thatpotential remedies are identified early inthe remedial investigation process, thepermittee can streamline his or her datacollection efforts to include data neededfor the evaluation of specific remedialalternatives.

Analysis of a remedy's performanceand reliability should include anassessment of the effectiveness of aremedy in controlling the source of

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release and its kng-term reliability.Where treatment is planned, anassessment of treatment capabilityshould be provided. where waste will bemanaged on-site, the details of themanagement (including a description ofthe units in which it is treated ordisposed of) should be supplied.Potential safety impacts [e.g., associatedwith excavation, trnspurftation, etc.) ofthe remedy should also be considered inmost cases. Further, th Agenzy mayrequire information onimplementabiity-s-h as capaziyavailability or State or local permittingrequirements--to determine whether aremedy is feasible.

The Agency is pa.-ticu.larly concernedabout potential cross-media impacts(intermedia transfer of contaminants) ofremedies, and therefore specificalyidentified them as an area that mayrequire stady. In addition, cross-mediaimpacts will be one of the factorsconsidered in remedy selection (seeproposed § 24.525). Some remedialtechnologies may cause secondaryimpacts that must be considered inselecting remedies. For example, insome circumstances, air stripping ofvolatile organic compounds (VOCs)from ground water may release theseVOCs to the air unless specific emissioncontrol devices are installed on the airstripper. The Corrective Measure Studyshould also determine whether otheradverse impacts from a potentialremedy will reduce its effectiveness inachieving the cleanup goal. For example,removal of contaminated sediments inlarge, slow-moving rivers mayresuspend sediments and cause moreharm than allowing the sediments toremain in place.

Proposed § 264.522(a)(2) would allowthe Regional Administrator to requirethat the Corrective Measure Studyassess the extent to which appropriatesource controls could be implemented,and contaminant concentrationsappropriate to the constituent(s) couldbe reached by the remedy. In somecases, bench- or pilot-scale stadies maybe required to determine the giventreatment technology's performance onthe particular waste at the facility. Suchstudies can often save both time andmoney in addressing environmentalremediation.

It will often be appropriate for theRegional Administrator to specify, priorto or during the course of the CMS,preliminary "target" cleanup levels forcontaminants which the permiteeshould use in evaluating the items under§ 264.522(a) (1) and (2). These targetconcentrations would thus serve aspreliminary estimates of the media

cleanup standards to be established inthe remedy selection process. Targetlevels might be specified to cover acleanup range (e.g., 10-4 level and a 10level), or a specific level for aconstituent that would be EPA's bestestimate of the ultimate cleanupstandard, based on the informaticnavailable at the time.

There will be many situations wherethe levels of cleanup that must beachieved will dictate the kinds ofcleanup technologies c nsidered, andthus, the target levels Epesified in thecontext of the CNIS process will be acritical element in shaping the study.-However, there may aiso be manysituations where it would not benecessary to specify preliminary targetlevels, such as where the remedyinvolves only removal of a specifiednumber of drums, or construction of atank for dewe.temnS sludges. Other suchsituations might be where zleanupconcentration levels do not greatlyaffect the actual design of the remedialtechnology (e.g., a ground-waterextraction system), or where the owner/operator proposes a remedy that willeffectively achieve highly protective'levels of cleanup. In any case, however,when target levels for a remedy arespecified, the Agency would reserve theright to set cleanup standards differentfrom the target levels that wereidentified, since those standards mayoften be affected by remedy factors thatcannot be fully evaluated until the CMShas been completed.

Today's proposal would also allowthe Regional Administrator to require anevaluation of the timing of the potentialremedy (I 264.522(a)(3J), includingconstruction time, start-up, andcompletion. The timing of a remedy willbe particularly important wherecontamination has migrated beyond the.facility boundary or is nearing potentialreceptors. In these cases, a promptremedy would be necessary. In othercases, timing will be important indistinguishing among remedies. Sometechnologies may requie considerablyless construction and start-up time thanothers, but would require more time toachieve the cleanup standard. Forexample, if the permittee has a largevolume of waste which must beincinerated to achieve BDAT under theland disposal restriction requirementsimposed in HSWA, s/he may need tbuild an incinerator and successfullycomplete the reqi:ements for a ticlburn. If, on the CIrer Ind, the wastes tobe removed nram a SWAMIU are notwastes subjeet to the land dis-posalrestrictions and may be disposed in anoperating hazardous waste disposal unit

at the site, far less time will be requiredboth to initiate and complete theremedy. The Agency, therefore, mayrequire the permittee to includeinformation on factors affecting bothremedy initiation and completion.

The Regional Administrator may alsorequire the permittee to include costestimates for alternatives considered(§ 264.522(a)(4)). Cost information maybecome a factor in the remedy selectionprocess when evaluating alternativeremedies which will achieve anadequate level of protection. Thisinformation will also serve as a firstestimate of the cost estimate required todetermine the level of financialassurance that the permittee mustdemonstrate when the final remedy isselected.

Finally, § 264.522(a][5) would providethe Regional Administrator authority torequire the permittee to assessinstitutional requirements, such as Stateor local permit requirements, or ttherenvironmental or public healthrequirements, that may be applicable tothe remedy and that may substantiallyaffect implementation of the remedy.State and local governments may havespecific requirements related to theremedial activities that could affectimplementation of the remediesevaluated in the Corrective MeasureStudy.

In addition to the elements listed inproposed § 264.522(a), the RegionalAdministrator may include otherrequirements in the scope of the CMS asneeded. Such requirements will bespecified in the permit schedule ofcompliance.

As indicated above, proposed§ 264.522(b) would allow the RegionalAdministrator to specify one or morepotential remedies which must beevaluated in the CMS. The Agency ispersuaded that this authority isnecessary to ensure that delays ininitiating cleanup will not result fromCMS reports which evaluate only pooror inappropriate remedial solutions.

Requirements for Corrective MeasureStudies in two particular circumstancescontemplated under today's proposalmerit special attention. When either aphased remedy (see § 264.526(d)) or aconditional remedy (see § 264.525(f) iscontemplated for the facility, the scopeand timing of Corrective MeasureStudies may be adjusted to fit theparticular requirements for suchremedies.

Proposed § 264.526(d) allows theRegional Administrator to speify (in thepermit modification for remedyselection) that a remedy be implementedin phases. Such an approach is

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anticipated where separable activitiesare being addressed at the facility andwhere, in many cases, imposition offurther remedial requirements may bedependent on the experience and /orknowledge gained during precedingphases. In such a case, the CMS mayalso be divided into phases to match theremedial phases specified in the permitmodification.

Conditional remedies are authorizedunder proposed § 264.525(f). Conditionalremedies are not final remedies sincethey do not necessarily meet allstandards for remedies included in§ 234.525(a); decisions must be revisitedbefore the permit can be terminated. Ifthe conditional remedy is found to meetall § 264.525(a) standards, it may bedeclared the final remedy when thedecision is revisited. If, however, furthercorrective action is required to satisfyrequirements for a final remedy, afollow-up CMS may be necessary priorto a final remedy decision.

4. Plans for Corrective Measure Study(§ 264.523). This section would give theRegional Administrator authority torequire the submission of a plan forconducting the Corrective MeasureStudy at the time s/he determines that aCMS is necessary. Specific requirementsfor the plan and a schedule for itssubmission would be included in thepermit schedule of compliance.

Typically, a plan would include adescription of the general approach toinvestigating and evaluating potentialremedies, a definition of the overallobjectives of the study, a schedule forthe study, a description of the specificremedies which will be studied, and adescription of how each potentialremedy will be evaluated. Further, toguarantee an orderly presentation ofstudy results, the RegionalAdministrator may require the permitteeto include as part of the plan the formatfor presenting the results of the CMS.Discussions between the permittee andthe Regional Administrator before theplan is drafted will generally be neededto ensure that appropriate remedialalternatives are considered, thatappropriate target concentration levelsof contaminants are used, and that theunnecessary expenditures of time orother resources for revisions whichotherwise might be required areavoided.

Upon receipt of the correctivemeasures plan, the RegionalAdministrator will evaluate itsadequacy. If the plan is deficient,proposed § 264.523(a) would allow theRegional Administrator to modify theplan or require the owner/operator tomake the appropriate modifications. Insome cases the plan will require only

slight modification, and by actuallymaking those modifications the RegionalAdministrator will be able to eliminatethe need for further iterations of thesubmission and approval process. Inother cases, where a submitted plan isdeficient even after modifications havebeen made by the owner/operator,modifying the plan will allow theRegional Administrator to cut short theiterative process that has not producedan acceptable document. This provisionof § 264.523(a) is analogous to theauthority provided to the RegionalAdministrator for modifying interimstatus closure plans (see § 265.112). It isalso similar to the process involved inobtaining complete permit applications.

Upon approval of the plan by theRegional Administrator, § 264.523(b)would require that the permitteeconduct the CMS according to theapproved plan, including the schedule.Both the plan and the schedule includedin the plan will become an enforceablepart of the permit schedule ofcompliance.

5. Reports of Corrective MeasureStudy (§ 264.524). As proposed, § 264.524would provide authority for the RegionalAdministrator to require progressreports on the Corrective Measure Studyat intervals appropriate to the site-specific study requirements. Progressreports would serve two functions-theywould keep the Regional Administratorinformed of the progress of the study,and would provide the basis for aperiodic review to determine whethermidcourse corrections to the study areneeded. For example, if a pilot-scalestudy is conducted for a specifictreatment technology and early resultsindicate that the technology does notconsistently achieve the expectedconcentration level, it may beappropriate to eliminate further study ofthat particular remedy and to considerother approaches.

Today's proposal would require, in allcases, submission of a final report of theCMS which summarizes the results ofthe investigations for any remedystudied, and any pilot tests conducted.The report would evaluate eachalternative in terms of its anticipatedperformance in achieving the standardsfor remedies, which are provided intoday's proposal at § 264.525(a).

Proposed § 264.524(c) would give theAgency the authority, upon review ofthe CMS report, to require the permitteeto evaluate one or more additionalremedies or to develop in greater detailspecific elements of one or moreremedies previously studied. Thisprovision would ensure that appropriateremedies are evaluated by the permitteein sufficient detail to allow the Agency

to determine its feasibility andeffectiveness. In a case where thepermittee does not identify anappropriate remedy during theCorrective Measure Study, the Agencymay require him or her to evaluateadditional remedies as necessary toensure that a suitable remedy, meetingthe standards established under§ 264.525(a), is developed.

F. Selection of Remedy (Section 264.525)

1. General (§ 264.525). Proposed§ 264.525 outlines the generalrequirements for selection of remediesfor RCRA facilities. As structured, itestablishes four basic standards whichall remedies must meet and specifiescertain decision criteria which will beconsidered by EPA in selecting the mostappropriate remedy which meets thosestandards for individual facilities. Inaddition, decision factors for settingschedules for initiating and completingremedies are outlined, and specificrequirements for establishing mediacleanup standards, includingrequirements for achieving compliancewith them, are also contained in thissection. The section also specifiesrequirements for conditional remedies.

2. General Standards for Remedies(§ 264.525(a)). Proposed § 264.525(a)specifies that remedies must:

e Be protective of human health andthe environment;

e Attain media cleanup standards asspecified pursuant to § 264.525 (d) and(e);

* Control the sources of releases soas to reduce or eliminate, to the extentpracticable, further releases that maypose a threat to human health and theenvironment; and

o Comply with standards formanagement of wastes as specified in§ § 264.550-264.559.

These standards reflect the majortechnical components of remedies:cleanup of releases, source control, andmanagement of wastes that aregenerated by remedial activities. Thefirst standard-protection of humanhealth and the environment-is ageneral mandate derived from the RCRAstatute. This overarching standardrequires remedies to include thosemeasures that are needed to beprotective, but are not directly related tomedia cleanup, source control, ormanagement of wastes. An examplewould be a requirement to providealternative drinking water supplies inorder to prevent exposures to releasesfrom an aquifer used for drinking water.Another example would be arequirement for the construction ofbarriers or for other controls to prevent

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harm arising from direct contact withwaste management units.

Remedies will be required to attainthe media cleanup standards that willbe specified by EPA according to therequirements outlined in subsection (d)of this section. The media cleanupstandards for a remedy will often play alarge role in determining the extent ofand technical approaches to the remedy.In some cases, certain technical aspectsof the remedy, such as the practicalcapabilities of remedial technologies,may influence to some degree the mediacleanup standards that are established.It is because of this interplay betweencleanup standards and other remedygoals and limitations that today's ruleestablishes media cleanup standardswithin the overall remedy selectionstructure of 1 264.525.

Section 264.525(a)[3) is the sourcecontrol standard for remedies. A criticalobjective of remedies must be to stopfurther environmental degradation bycontrolling or elininating furtherreleases that may pose a threat tohuman health and the environment.Unless source control measures aretaken, efforts to clean up releases maybe ineffective or, at best, will involve anessentially perpetuml cleanup situation.EPA is persuaded that effective sourcecontrol actions are an important part ofensuring the long-term effectiveness andprotectiveness of corrective actions atRCRA facilities. The proposed sourcecontrol standard is not intended tomandate a specific remedy or class ofremedies. EPA encourages theexamination of a wide range ofremedies. This standard should not beinterpreted to preclude the equalconsideration of using other protectiveremedies to control the source, suih aspartial waste removal, cappin8, sulrrywalls, in-situ treatment/stabilizatonand consolidation. Overall, EPA z.ectsthis policy t be no more si.ge.:t thanthe threshold criteria usad for s2.eLtngremedies under the NationalContingency Plan.

Proposed § 254.525[ajS} requires thatfurther relzases from sources 31contaminaman be conr-alled to the"extent pr71isle." Th_ qualfier isintended to a-count for the ta.ebricallimitations that my In 6oMe casZ3 beencountered in a-hievuig effezt-esource controls. For szme very -irgelandfills, or large areas of widespreadsoil conta=riatin, en'neerlngsoluticons suzh as treament or cappingto prevent further leazh,-ig may not betechnically practicable, or completelyeffective in eliminating further'releasesabove health-based contaminationlevels. In such cases, source controls

may need to be combined with othermeasures, such as plume management orexposure controls, to ensure an effectiveand protective remedy.

The proposed remedy standard of§ 264.525(a)(4) requires that remedialactivities which involve management ofwastes must comply with therequirements for solid wastemanagement, as specified in § § 264.550-264.559 in today's proposed rule. RCRAremedies will often involve treatment,storage or disposal of wastes,particularly in the context of sourcecontrol actions and cleanup of releases.This standard will assure thatmanagement of wastes during remedialactivities will be conducted in aprotective manner.

3. Remedy Selection Decision Factors(§ 264.525(b)). Proposed § 264.525(b)specifies five general factors which shallbe considered as appropriate by EPA inselecting a remedy that meets the fourstandards for remedies, and thatrepresent an appropriate combination oftechnical measures and managementcontrols for addressing theenvironmental problems at the facility.The five general decision factors inproposed § 264.5Z5(b) are:

* Long-term reliability andeffectiveness;

* Reduction of toxicity, mobility orvolume of wastes;

* Short-term effectiveness;" Implementability; and" Cost.Any remedy proposal developed

under a Corrective Measure Study andpresented to EPA for final remedyselection must, at a minimum, meet thefour standards of § 264.525[a). TheAgency will then evalaate potentialremedies against the five decisionfactors lEs~eJ in propoSed § 264,525(b),as appropriate to the specificcircumstances of the facilfty.

The order of he deaiSi-n factorslisted in proposed § 254.525'tb is notintended to establish an implicitranking, nor does it suggest the relativeimportar.ce each factor m.i-,t have atany particular fazility or across faciltiesin general. There are circumstances inwhich ary one of theie factors rightreceive particular weigt.

For example, lomg term effectivenessmay rule out alternative remedies thatmight achieve clean up t-rgets in theshort term, but at the expense ofcreating new or greater future risks thatmay necesaitzte a futuire correctiveaction. Conversely, remedies thatsignificantly reduce actual or Lmminenthuman exposure in the short term maybe preferred over alternatives thateliminate long term risks, but at the cost

of lengthening the period during whichexposure persists. Reductions intoxicity, mobility, or volume areespecially valuable in situations wherethe wastes or constituents may degradeinto more hazardous or toxic products,or fail to naturally attenuate. Finally,cost may be determinative when morethan one alternative remedy can reachthe established cleanup target. Inpractice, the relative weights assigned tothese five factors will vary from facilityto facility according the sitecharacteristics. EPA is solicitingcomment today on situations in whichthese tradeoffs may significantly affectthe remedy in ways which wouldsuggest that a more prescriptiveweighting of the factors might bedesirable.

The following is a general explanationof the five decision factors, and howthey may generally be used in remedydecisions.

The Agency intends to place specialemphasis in selecting remedies on theability of any remedial approach toprovide adequate protection of humanhealth and the environment over thelong term. Thus, source controltechnologies that involve treatment ofwastes, or that otherwise do not rely oncontainment structures or systems toensure against future releases, will bestrongly preferred to those that offermore temporary, or less reliable,controls. Whenever practicable, RCRAcorrective action remedies must be ableto ensure with a high lei el of confidencethat environmental damage from thesources of contamination at the facilitywill not occur in the future. EPAbelieves that long-term reliability ofremedies is an essential element inensuring that actions under section3004(u) satisfy the fundamental mandateof RCRA to protect human health andthe environment

The second decision factor-eluctionof toxicity, mobilIty or volume -isdirectly related to the concept of long-term reliabili-y of remed_:es. As ageneral goal, remedies wil be preferredthat employ techniques, such astreatment technologies, that are capableof permanently reducing the overmlldegree of risk posed by the wastes andconstituents at the farility. Redu-tion oftoxicity, mobility or volume is thus ameans of achleving the broaderobjective of long-term reliability. EPArecognizes, however, that fur somesituations, achieving substantialreductions in toxicity, mobiity crvolume may not be practicabie or evendesirable. Examples might include large,municipal-type landfills, or wastes suchas unexploded munitions that would be

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extremely dangerous to handle. and forwhich the short-term risks of treatmentoutweigh potential long-term benefits.

The third decision factor-short termeffectiveness--may be particularlyrelevant when. remedial activities willbe conducted in densely populatedareas, or where waste characteristicsare such that risks to workers are high,and special. protective measures areneeded. Implementability, the fourthdecision factor, will often be adetermining variable in shapingremedies. Some technologies willrequire State or local permits prior toconstruction, which may increase thetime needed to implement the remedy.

One of the decision factors whichraises particular issues in the context ofRCRA remedies is that of cost. RCRA'soverriding mandate is protection ofhuman health and the environment.However, EPA believes that relativecost is a relevant and appropriateconsideration when selecting amongalternative remedies that achieve theclean up range.

EPA's experience in Superfund hasshown that in many cases severaldifferent technical alternatives toremediation will offer equivalentprotection of human health and theenvironment, but may vary widely incoat. The Agency believes that it isappropriate in these situations to allowcost to be one of the several factorsinfluencing the decision for selectingamong such alternatives.

The exact emphasis placed on thesedecision factors, and how they-will bebalanced by EPA in selecting the mostappropriate remedy for a facility; willnecessarily depend on the types of risksposed by the facility, and theprofessional judgment ofthedecisionmakers. Comment is specificallyinvited on" the remedy- selectionapproach outlined in today's proposedrule and preamble.

4. Schedule fbr-Remedy- (§ 264.525(c)).Proposed § 264.525(c) would require theRegional Administrator to specify aschedule for initiating and completingremedial activities as. a part, of theselection of remedy process. Some of thefactors that will be considered whensetting the schedule are enumerated inproposed § 264.525(c) (1)-(5), Thesefactors include:

a Extent and nature of contaminationat the facility;

- -Practical capabilities of remedialtechnologies as assessed againstcleanup standards and other remedialobjectives;

* Availability of treatment or disposalcapacity for wastes to be managed aspart of the remedy;

9 Desirability of utilizing emergingtechnologies not yet widely availablewhich may offer significant advantagesover currently available technologies;and

* Potential risks to human health andthe environment from exposure tocontamination prior to remedycompletion.

Proposed § 264.525(c){8l would allowthe Regional Administrator flexibility toconsider-other relevant factors in settinga schedule for remedy initiation andcompletion. Such factors could relate tothe remedial technology to be employed'or the characteristics of the particularwaste or facility being addressed.

The timing of remedy implementationand completion will be determined afterthese and other factors are consideredby the Regional Administrator, and aschedule of compliance will be includedin the modified permit. The Agencywishes to emphasize, however, thatexpeditious initiation of remedies and,rapid restoration of contaminated. mediais a high priority and a major goal' of the,RCRA corrective action program. Theschedule included in the permit Will bean enforceable permit condition, and theowner/operator will be obligated toseek any change in the schedule forremedy implementation and completibn,prior to, milestones established. Thisapproach is consistent with theAgency's application of schedules ofcompliance to other aspects of thecorrective action program proposed.today.

EPA expects that many. differentspecific factors will influence the timingof remedies. For example, the level oftechnical expertise required andavailable to implement a particularremedial technology could be animportant factor, or the amount andcomplexity of construction which mustprecede actual cleanup, or the amount oftime which would routinely be neededto achieve the media cleanup standardsset in remedy selection, given aspecified technology- AlL majorvariables which will. affect remedytiming are expected to be assessedroutinely in the CMS, and will beconsidered'by EPA in setting aggressiveyet realistic schedules for remedial"activities.

While the Agency's strong preferenceis for rapid and active restoration ofcontaminated media, it is recognizedthat there may be limited cases where aless aggressive schedule may beappropriate. For example, in situationswhere. ground-water cleanup standardscan be achieved through naturalattenuation within a reasonabletimeframe, and where the likelihood ofexposure and potential risks to human

health and the environment fromexposure to contaminated ground' waterprior to the attainment of cleanupstandards is minimal, a remedy schedulebased on natural attenuation could bedetermined to be the most appropriatesolution far a site. Thus, such factors aslocation, proximity to population, andlikelihood for exposure may allow moreextended timeframes for remediatingground waters.

Management strategies adopted in theremedy selection decision also mayaffect the timing of remedies. Forexample, proposed § 264.526(d)(discussed later in this preamble wouldallow the Regional Administrator torequire implementation of remedies indiscrete-phases or incrementalsegments. Such a phased approach oftenwill affect overall timing of the finalcleanup for the facility. As- one or morephases of the required remedy arecompleted, the Regional Administratormay choose to review the resultsachieved by that phase prior to requiringsubsequent stages. For example, ifresults of an initial" treatment process forwastes in a SWMIY are successful, thenext phase of the remedy might applythat treatment technology to theremainder of the wastes at the facility.Similarly, timing of remedies often maybe influenced by the need to address themost important environmental problemsfirst. This might be the case whereground-water contamination has-migrated beyond the facility boundary;the initial remedial step would be torequire installation of a pump and treatsystem to stop further migration. (Thiscould also be done as an interimmeasure prior to final remedy selectior,see § 264.540.) Subsequent actions toperform source control, or otherremedial action might then be phased inas dictated by their environmentalpriority, practicability, or' other factors.

In addition to these' kinds ofconsiderations, adequate time must beallowed in the schedule of the remedyfor the owner/operator todecontaminate and remove, close ordispose of units, equipment, devices, orstructures used to implement theremedy. The time needed to performspecific activities associated with thisrequirement necessarily will beevaluated on a site-specific basis.

5. Media Cleanup Standards(§ 264.525(d))-- a. General. Section264.525(d)(1)(i)-(iv) outlines theAgency's proposed approach fbrestablishing media cleanup standards(MCS) through the remedy selectionprocess.

Media cleanup standards representconstituent concentrations in ground

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water, surface water, soils, and air thatremedies must achieve to comply withstandards for remedies under§ 264.525(a)(2). Media cleanup standardsare established at concentrations thatensure. protection of human health andthe environment, and are set for eachmedium during the remedy selectionprocess.

The Agency is proposing to set mediacleanup standards within the overallcontext of the remedy selection process.As part of the Corrective Measure Studydevelopment process, the Agency willtypically provide the owner/operatorwith target cleanup levels for significanthazardous constituents in each mediumof concern when he/she is required toperform a CMS. For carcinogens, thesetargets will be established within theprotective risk range of l X10- 4to

I X 10-6, based on site-specific factors,unless another level is deemednecessary to protect environmentalreceptors. EPA may start the analysesby establishing target cleanup levels atthe action level, understanding thataction levels are set under conservativeassumptions and that the cleanup levelsmay be modified as appropriate. Theremedies analyzed by the owner/operator would generally be designed tomeet these targets. After reviewing thepermittee's Corrective Measure Study(CMS) using the remedy selectionfactors given in § 264.525(b), the Agencywill select a remedy and set mediacleanup standards that must beachieved.

The Regional Administrator willspecify media cleanup standards thatthe remedy must achieve, as necessaryto protect human health and theenvironment. The RegionalAdministrator may set a media cleanupstandard for each constituent for whichan action level has been exceeded, aswell as other hazardous constituentswhich the Regional Administratordetermines to pose a threat to humanhealth and the environment (e.g.,constituents considered under§ 264.520(b)). Alternatively, the RegionalAdministrator may specify mediacleanup standards for a subset ofhazardous constituents present at thesite which are the most toxic, mobile,persistent and difficult to remediate,considering the concentrations at whichthey are present at the site. Thisapproach may be most appropriatewhere there are large numbers ofhazardous constituents present in amedium. The Regional Administratormay determine in the remedy selectionprocess that some cause exists for notsetting a standard for certainconstituents, as discussed later in this

section of the preamble. Section264,525(d)(1) describes the specificapproach the Agency proposes to followin setting these levels.

b. Protectiveness. A primary goal ofcorrective action is to achieve cleanupconsistent with existing media-specificcleanup standards, or, when suchstandards do not exist, to achieveprotection against risks to human healthsuch that the excess lifetime risk fromexposure to a carcinogenic hazardousconstituent in soil, air, ground water orsurface water does not exceed 10- . Avariety of practical constraints, asdescribed later, can prevent theconsistent achievement of that goal.However, the risks to an individual fromexposure to a hazardous constituent incontaminated media should not exceedapproximately 10-t

In the corrective action program,remediation decisions must be made athundreds of diverse sites across thecountry. Therefore, as a practicalmatter, the human health goal willtypically be established by means of atwo-step approach. First, EPA intends touse a lifetime excess cancer risk of 10- 6

as a point of departure for establishingremediation goals for the risks fromhazardous constituents at specific sites.This starting point is generallyconsistent with historical Agencypractice. While it expresses EPA'spreference, it is not a strict presumptionthat the final cleanup will attain thatrisk level.

The second step involvesconsideration of a variety of site-specificor remedy specific factors. Such factorswill enter into the determination ofwhere within the risk range of 10-' to10-6 the media cleanup standard for agiven hazardous constituent will beestablished.

This means that a risk level of 10-6 isused as the starting point fordetermining the most appropriate risklevel that alternatives should bedesigned to attain. The use of 10-6expresses EPA's preference for remedialactions that result in risks at the moreprotective end of the risk range, but thisdoes not reflect a presumption that thefinal remedy should attain such a risklevel. The ultimate decision of whatlevel of protection will be appropriatedepends on the selected remedy, whichis, in turn, based on the criteria listed inproposed § 264.525(b). Because offactors related to exposure, uncertainty,and technical limitations, EPA expectsthat the entire risk range will beavailable and utilized at various sites.

In the Agency's view, it is important-to have an initial value to whichadjustments can be made, particularly

since the risk range covers two orders ofmagnitude. By using 10-6 as the point ofdeparture, EPA intends that there be apreference for setting remediation goalsat the more protective end of the range,other things being equal. EPA does notbelieve that this preference will be sostrong as to preclude appropriate site-specific factors.

Several examples illustrate how undertoday's proposal EPA might adjustcleanup standards in light of potentialuses. First, ground water that is not apotential source of drinking water wouldnot require remediation to a 10- 4 to 10- 6level (although cleanup to addressenvironmental concerns or to allowother beneficial uses might be required).Second, ground water in a broadlycontaminated area would typically beremediated to specific backgroundlevels as described below, except where'the remediation took place as part of anarea-wide cleanup. Finally,contaminated soil at an industrial sitemight be cleaned up to be sufficientlyprotective for industrial use but not.residential use, as long as there isreasonable certainty that the site wouldremain industrial.

At the same time, in exceptionalcircumstances, other site-specificexposure factors may indicate the needto establish a risk goal for a particularcontaminant that is more protective thanthe overall goal of 10- . These site-specific exposure factors may include:The cumulative effect of multiplecontaminants (see following discussion):the potential for human exposure fromother pathways at the facility;population sensitivities; potentialimpacts on environmental receptors;and cross-media impacts.

In summary, EPA has proposed anapproach that allows a pragmatic andflexible evaluation of potential remediesat a site while still protecting humanhealth and the environment. Thisapproach emphasizes the overall goal of10- 6 as the point of departure (insituations where there are not existingstandards, such as MCLs), whileallowing site or remedy-specific factors,including reasonably foreseeable futureuses, to enter into the evaluation ofwhat is appropriate at a given site. Asrisks increase above 10- 6. they becomeless desirable, and the risks toindividuals should not exceedapproximately 10-t

Proposed § 264.525(d)(1)(iii) lists fourconsiderations which may be used inestablishing media cleanup standards.These considerations apply to settingstandards for both carcinogens and non-carcinogens. The factors listed abovewhich may be used in determining

II -- --30826




cleanup standards for carcinogenswithin the risk range are intended to beincluded broadly within these fourgeneral considerations.

(1) Multiple Contaminants. The firstconsideration under§ 264.525(d)[1)iii)(A) is multiplecontaminants in the medium. In order toensure that individuals exposed to amedium (e.g., via drinking ground water)will be protected it may be necessary toconsider the risks posed by otherconstituents in that medium before amedia cleanup standard for a singleconstituent can be established. Inconsidering the risks posed by fmultiplecontaminants, the Agency will followthe procedures and principlesestablished in its "Guidelines for theHealth Risk Assessment of ChemicalMixtures" (51 FR 34014). The cumulativerisk posed by multiple contaminantsshould not exceed a 1x 10-4 cancer risk.All other factors being the same, themedia cleanup standard for aconstituent present in a medium that iscontaminated with many otherconstituents posing significant risks maybe established at a lower concentrationthan if that constituent were the solecontaminant in the medium.

(2) Environmental Receptors.Remedies must be protective for theenvironment as well as human health.Section 264.525(d)(1)(iii)(B) allows theRegional Administrator to consideractual or potential exposure threats tosensitive environmental receptors inestablishing media cleanup standards.Standards, criteria, and other health-based levels are often based onprotection of human health, since moreinformation is usually available oneffects of contaminants on humans (orlaboratory animals) than onenvironmental receptors. Levels set forprotection of human health willfrequently also be protective of theenvironment. However, there may beinstances where adverse environmentaleffects may occur at or below levels thatare protective of human health.Sensitive ecosystems (e.g., wetlands) orthreatened or endangered species orhabitats that may be affected byreleases of hazardous waste orconstituents should be considered inestablishing media cleanup standards.The Agency plans to develop guidanceon evaluating ecological impacts. Untilmore substantial guidance is developed,the Agency intends to determine on acase-by-case basis when standards mustbe established at lower concentrationsto protect sensitive ecosystems orenvironmental receptors. For releases tosurface water, Federal Water Quality

Criteria may be used as guidance inmakiig this determination.

(3) Other Exposures. Generally, theAgency will only consider thecontamination contributed by thereleases subject to corrective action insetting protective cleanup levels. Inunusual situations, however, it may benecessary to consider the presence ofother exposures or potential exposuresat the site (§ 264.525(d)(1)(iii)(C)). Forexample, if residents living in closeproximity to a facility receive unusuallyhigh exposures to lead due to thepresence of a lead smelter in their town,it may be necessary to set lower cleanuplevels for lead in ground water from aSWMU than would otherwise benecessary. Remedies whose cumulativeexposures (i.e., mixtures of chemicals, ormultiple pathways of exposure) fallwithin the risk range for carcinogens(1X10-4 to 1X10-9, or meet acceptablelevels for non-carcinogens, areconsidered protective of human health.

Chronic exposure to multiple SWMU-contaminated media, although not likelyat most sites, may be considered underproposed § 264.525(d)(1)(iii)(C) inestablishing media cleanup standards.An example might be where releasesfrom solid waste management units arepresent in both ground water and soils(from wind blown particulates) atnearby residences. In this case, it mightbe appropriate to set cleanup standardsfor either or both releases at moreconser ative levels, to account for suchcumulative risk concerns. The Agencywill examine such cross-media effects,when appropriate, on a case-by-casebasis.

(4) Remedy-Specific Factors. Section264,525(d)(1)(iii(D) allows the RegionalAdministrator to consider the reliability,effectiveness, practicability, and otherrelevant factors of the remedy inestablishing media cleanup standards.These factors are related to the remedyselection decision factors specified in§ 264.525(b). An example of how thesefactors may be considered by theAgency in establishing media cleanupstandards under § 264.525(d) is thefollowing. Suppose that one remedialalternative can theoretically treatconstituents in soil to concentrationsposing a 1X 10-6 risk level, but relies ona technology that has not beensuccessfully demonstrated underconditions analogous to those at the sitein question, or may be unreliable forother reasons. In this situation,consideration of the long-term reliabilityand effectiveness of the remedy mayresult in the selection of anothertechnology that can achieve a I x10- 5

risk level, but has been demonstrated tobe more reliable.

A variety of exposure-related factorsmay be considered in establishing mediacleanup standards. For example, the Ipotential and pathways for exposure tosoils may vary greatly across sites.Media cleanup standards will generallybe established for soils to protectindividuals from health threats resultingfrom direct contact to soils. In somecases, however, individual health maybe threatened due to the absorption ofcontaminants in soils by plants and inturn by grazing animals used for humanconsumption. In these cases, cleanupstandards might be set on the basis ofprotecting health from this exposurepathway.

In establishing media cleanupstandards for soil based on exposure viadirect contact, the Agency may use theexposure assumptions listed inAppendix D. These exposureassumptions are based oh a daily intakeof soil through ingestion, of particularconcern for young children (seepreamble section VI.E.2.f for a detaileddiscussion of soil exposureassumptions. However, the Agencyrecognizes that these exposureassumptions would be appropriate onlywhere soil ingestion is plausible. TheAgency is considering using differentexposure assumptions where differentexposure scenarios are likely based oncurrent and projected future land use at/near the site. For example, for siteslocated in industrial areas that are likelyto remain industrial in the foreseeablefuture, exposure assumptions moreappropriate to industrial land use mightbe used. Thus, the exposureassumptions proposed in Appendix Dwould apply to sites near areas that arenow residential or are reasonablyprojected to become residential.However, the Agency recognizes thatconsiderable uncertainty is involved inforecasting future land use. The Agencyrequests comment on the generalconcept of using current and projectedland use to develop likely exposurescenarios for different sites indeveloping media cleanup standards,and on specific exposure assumptionswhich are reasonable for these differentexposure scenarios.

It should be understood that theAgency does not intend typically toestablish cleanup standards per se (i.e.,according to § 264.525(d)(1)) for "deep"soils that do not pose a direct contactexposure threat. Such contaminatedsoils can, however, often be a transfersource of contaminants to other media,such as through leaching of wastes intoground water or surface water. In such

-- -- Illl I --- II --

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cases the contaminated soils would bedealt with as a source, rather than as arelease; that is, the remedy wouldspecify rantainment, 'ean-il nrtreatment meaures for the soils in thesame maimer a s for other sournes ofreleases {egl landfills). Such measures

would be required as necessary toensure that media cleanup standards forthe -affected media are not exceeded.

There are several mea n ofinvesti.ating e Ity ofcontaminants in sofl, includiagadescriplive approach (Le, considerationof constituent and soil properties), and/or the use of mathematical models orleaching tests (for mobility to groundwater). The Agency is further evaluatingthe use of different leach tests, andrequests comments on these and otherways of estimating media transfer of soilcontaminants.

The Agencyarecognizes that there arealso technical limitations which must beconsidered, in addition to scientificinformation about the hazards to humanhealth and the enviromnent, inestablishingmedia cleanup standards.For example, media cleanup standardswould not be setlower than detectablelevels. Consideration of xeliahility,effectiveness, practicability, and otherfactors will generally be considered on acase-by-case'basis.

c. Cleanup Levels and Other Sourcesof Contamination. In some cases, solidwaste management units will be locatedinareas contaminated from othersources. For example, a solid wastemanagement unitmay lie over anaquifer already contaminated from off-site sources or from other activities atthe facility. Similarly, an area ofcontaminated soil resulting from wastemanagement may lie in a broader areaof high naturally occurringcontamination. In such cases, section3004(u) gives EPA authority only torequire -cleanup of contaminantsreleased from on-site solid wastemanagement units. This authority doesnot extend to cleanup of releases fromproduction areas (unless the releasesare "routine end systematic") or -fromoff-site sources (unless those sourcesare also at a RCRA facility).

Proposed J 124.525(d){1)(v) -codifiesthis limitation on section 3004[u)authority by allowing the -facility owner/operator to demonstrate that a specificconcentrtion.f a consttuent in !hevicinity nf a salid waz te mz _nEmtunit does not ume frm !hat unit, butrather is fribul table to smuz es o erthan on-site solid w_ te mianagementunits.If the owner/oiparaor cansuccessfully make this den.stration,EPAw wnuld mat ive the 'authority undersubpart'S to require cleanup below that

concentration. Proposed§ 264.525(d)(1)(v) provides, however,that the Regional Administrator maydetermine that dleanup to levels belowthe background concentration isnecessary for the protection of humanhealth or the environment in connectionwith an area-wide cleanup .mder P.CRAor other authorities.

The best example of this limitation onsection 3004[u) is found in contaminatedground water. .f a specific constituent isfound in ground water downgradient ofa solid waste management unit at'levelsexceeding action levels, a CMS wouldordinarily be required. However, if thefacility owner/operator can demonstratethat the constituent levels did notexceed upgradient "background" levels,and that the upgradient backgroundlevels did not come from other solidwaste management units -on the facility,cleanup would not be required.Similarly, even if the downgradientconcentration exceeded -upgradientbackground, cleanup -could be requiredonly to the upgradient backgroundlevels. This a-prnrach to "background" isthe samee as the one found in subpart F.

In the case f soil, the same principleapplies. Section 1S4(u)provides EPAthe authority unly to require owner/operators tolean up 'cntaminated soilsto the extent tha1'the 'ontaminationderives from releases from a solid wastemanagement unit (= that the area itselfis a solid waste mamagement nnit).Therefore, 'cleanup of soils would not bereqired under subpart S below"background" levels. The best measureof background levels for soils willgenerally be naturally occurring soils inareas not contaminated by a facility'sactivities-for example, off-site soils.However, in areas broadlycontaminated with nonslituents notsubject to section 3004(u) (for example,from manufacturing or-off-site airemissions), an owner/operator may beable to argue successfully thatconstituents found on a facility below acertain level cannot be attrihuted toreleases from a solid waste managementunit.

Today's proposal, however, does notallow RCRA facilities located incontaminated areas to ignore facilitycontributions to the contamination. Thepermittee will be required to clean Uplthe contamination caused by his/herwaste management actvities, unless adeterminaion i.s nmiade under proposedsection 2ii . .5Zd{l2) tht remed iiai,,na ofthe release is zot ra2ez.

In reviewLn*, the montia'on under

constitueat() at a spec ific cancentrationin a medium is naturay occurring or isfroma source other than a solid waste

management unit at the facility, theRegional Administrator wo-ud evaluatesampling data developed by thepermittee. The Regional Administratorwould assess the accuracy of these dataand evaluate the statistical procEduresused by thelpermittee to characterizethese concentrations. The ReginalAdministrator may use the perf=ancestandards proposed on August 24, 19B7,at 40 CFR 264.97 tomake thisassessment (52 FR 31948).

6. Dated nnt that lenmadiation DfReleaseto rMedia Clearmp Standard IsNot Required. Proposed J 264.525(d)(2)identifies three situations in which theRegional Administrator may decide notto require cleanup of a release ofhazardous waste nr hazardousconstituents from a SWMU to a mediacleanup standard meeting the conditionsof § 264.525(d)(1). These situations arelimited to cases where there is no threatof exposure to releases from SV¢1MUs;cases where cleanup to a level meetingthe standards of § 264.525(d)(1) will notresult in any significant reduction in riskto humans or the environment; or istechnically impracticable. In situationswhere the Regional Administratordetermines that cleanup to alevelmeetingthe conditions of § 264.25(d)(1)is technically impracticable, the owner/operator may be Tequired to remediateto levels which are technicallypracticable 'and which significantlyreduce threats tohuman health and theenvironment.

The Agency does not believe thatcontinued further degradation of theenvironment should be allowed, even inthose situations -where actual cleanup ofreleases may mot be required. Asprovided-by § 264.525(d)(3), the RegionalAdministrator may require sourcecontrol measures to control furtherreleases into the environment, or othermeasures to protect against exposure tocontaminated media. If source control orother measures are not necessary (e g.,the source no longer exists), adetermination of no further action maybe made pursuant to § 264.514.

a. Areas of Broad Contamination. Insome cases, SWMUs releasinghazardous 'cnfituents to theenvironment will be located in areasthat already are significantlycontaminated."Where the risks fromreleaaes from the SWMUs are trivialcomparaed'to the ieik already presentfrom vrall #rea-wide cnitaminmtion,or whar remedial measures zubed atthe SW -woul not cjnflyreduce risk, IPA believes Lhatremediation of reJeases from the SWMUto a de--up]levelr=BEeing the standardsof § 24.525(d)(1) would not'be

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necessary or appropriate. In thesesituations, proposed § 264.525(d)(2)(i)would allow the facility owner/operatorto provide the Regional Administratorinformation demonstrating that suchremediation would provide nosignificant reduction in risk. If thedemonstration were successful, theRegional Administrator woulddetermine that remediation to a levelmeeting the standards of § 264.525(d)(1)was not necessary.

For example, ground water below aleaking SWMU might be heavily.contaminated from off-site sources. Inthis case, removal of the SWMU'scontribution to the contamination mighthave very limited benefit, particularly ifthat contribution was relatively minor.Similarly, a SWMU such as a surfaceimpoundment might be contributingrelatively trivial amounts to area-wideair problems. Control of the SWMUreleases might do very little, in suchcases, to improve the overall situation inthe area, yet (in the case of an operatingunit) could be extremely burdensome tothe owner/operator.

In such cases, EPA believes that itwill make more sense to attack area-wide problems, where they are-determined to threaten human health ortheenvironment, on a morecomprehensive basis and to focus on theprimary sources of release-forexample, under RCRA section 7003,CERCLA, or other environmentalauthorities. The Agency does not believethat it makes sense routinely to requireremediation of SWMU releases wherethey represent only a trivial contributionto an area's problems.

Two points should be stressed here,however. First, the facility owner/operator would be required to takecorrective action where it could have asignificant effect on reducing risks-forexample, as part of an area-widecleanup strategy. The fact of area-widecontamination would not eliminateEPA's authority to require action in thiscase. It should be noted that an area-wide cleanup might not be coordinatedunder a single authority, or within aspecific narrow time frame; rather theRegional Administrator may use avariety of authorities to address anarea-wide contamination problem overtime. Second, EPA in any case wouldhave the authority under proposed§ 264.525(d)(3) to require source controlto prevent further releases, or to requireother measures such as those necessaryto protect against exposure to theaffected medium.

The Agency has not attempted todefine "significant reductions"-in risk inthis rulemaking, and believes thedecision is best made on a case-by-case

basis. However, the Agency seekscomment on whether a more specificdefinition is necessary for the purposesof this rulemaking.

b. Ground Water. Under proposed§ 264.525(d)(2](ii), the RegionalAdministrator may determine thatremediation of a hazardous constituentreleased from a SWMU into groundwater to a media cleanup standardmeeting the standards of § 264.525(d)(1)is not necessary to protect human healthand the environment if: (1) The groundwater is not a current or potentialsource of drinking water; and (2) theground water is not hydraulicallyconnected with waters to which thehazardous constituents could migrate inconcentrations which could increasecontamination in the water toconcentrations that exceed actionlevels.

In interpreting whether the aquifer is acurrent or potential source of drinkingwater, the Agency will generally use theapproach outlined in the Agency'sGround-Water Protection Strategy(August 1984 and as subsequentlymodified) as guidance. Generally, ClassIII aquifers will be considered to meetthe requirements specified in§ 264.525(d)(2](ii]. Class III aquifers areground waters not considered potentialsources of drinking water and areconsidered to be of limited beneficialuse. They are ground waters that areheavily saline, with total dissolvedsolids (TDS} levels over 10,000 mg/l, orare otherwise contaminated beyondlevels that allow cleanup using methodsreasonably employed in public watersystem treatment. These ground watersalso must not migrate to Class I or I1ground waters or have a discharge tosurface water that could causedegradation.

A determination under§ 264.525(d)(2)(ii) that remediation to amedia cleanup standard is not necessarymight be made in situations where aSWMU located in a heavilyindustrialized area has released toground water in an aquifer that issurrounded by ground water that hasbeen heavily contaminated from non-SWMU sources. It is not the intention ofthe Agency to create a ground-water"island of purity" that is unlikely to beused for drinking water or other (non-industrial) beneficial purposes due to itslocation in an area historically usedonly for industrial purposes.

Information from the State and/orlocal government as to the beneficialuse of the ground water may also beuseful if the ground water has beenclassified for specific uses. If the groundwater is not a potential source ofdrinking water but has other beneficial

uses (e.g., agricultural), then remediationto a media cleanup standard may not berequired; however, remediation of theground water to its beneficial use wouldbe required, as provided under§ 264.525(d)(3).

If a determination under§ 264.525(d)(2)(ii) is made where theground water poses a threat toenvironmental receptors, or poses athreat to human health through anunusual exposure pathway (e.g., pondingor basement seepage from shallowaquifers), remediation to alternativelevels could likewise be requiredpursuant to § 264.525(d)(3). The Agencybelieves that health-based concerns maybe secondary to environmental concernsfor releases to Class III ground waters.The need to remediate Class lII groundwaters will be assessed on a case-by-case basis. In any case, cleanup levelsfor ground water that is not a potentialsource of drinking water would beestablished at other than "drinkable"levels.

In other cases, ground water may notfall into Class Il1, but, because of itsdistance from any population or otherfactors, is unlikely to become a source ofdrinking water in the foreseeable future.In these cases, remediation might becarried out over an extended period oftime, and natural attentuation mightplay a major role in the remedy. Theissue of timing of remedies is discussedin more detail in section VI.F.4 of thispreamble.

To demonstrate whether the groundwater is hydraulically connected withwaters to which the hazardousconstituents are migrating, samples ofwater should be taken within thedischarge zone of the ground-watercontamination plume. The dischargezone will have to be determined on asite-specific basis, and is dependent onthe local hydrogeology. If, uponsampling in the discharge zone, thelevels of the constituent of concern arenot detectable a statistical comparisonof sampling data does not need to beperformed. However, if the dischargelevels are detectable, an appropriatestatistical procedure should be used tocompare the constituent concentrationin the discharge zone to the constituentconcentration upstream. Guidance onappropriate statistical techniques maybe obtained from the proposal onstatistical methods for use in the RCRAsubpart F program dated August 24, 1987(proposed as 40 CFR 264.97; see 52 FR31948). In addition, the Agency expectsto develop further guidance onappropriate statistical techniques formaking these determinations.

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Federal Register / Vol. 55, Ni. 145 :1Friday, July 27, 1990 / Proposed Rules

The determination of whether -theground water islhydraulically 1connectedwith waters towhich the'hazardousconstituents are likely to migrate inconcentrations which exceed adtionlevels will be made on a site-specificbasis. The physical and chemicalcharacteristics vffhe hazardousconstituents in ground water, theconcentratims f the hazardousconstituents-in ground water andsurface water, and ilal hydrogeologicalcharactemistics'should be nonsidered inmaking this deterninatiom.

c. Technia/llmpmrilitty.Proposed I 2N.5$dJ(2]iii} would allowthe Reginnal Admdistrator to make adetemitnati that remediafion of arelease -to arnedia cl maup standardmeeting the mcntamf i 26045(d}l[] isnot required whimn zmediation stechrdiallyimpr tica e. Thedetermination rifmlmhnicalimpractfimility involves aconsideration oflboth engineeringfeasibility and reliability. Such adetermination may be made, forexample, in some cases where thenature of the waste and thehydrogeolgic setting would 'eitherprevent insal.lation of a ground-waterpump and treatsystam (or othereffectie cleenup technology), or limitthe effectiveness of such a .sys ter-e.g.,dense, imniAcible contaminants inmature Karst formations or in highlyfractured bedrock. In other situations adetermination under § 264.525(d)(g2)iii)may be made when remediation may betechnicallypossible, but the scale ofoperations required mighibe of such amagnitude and complexity that thealternative wmld be impracticable. TheAgency is persuaded that in these andother situations determined to betechnically impracticable from aremedial perspective the RegionalAdministrator should have the authorityto not require rernediatinn to mediacleanup standards.

Decisions regarding the technicalimpracticability oT achieving mediacleanup standards must be mna:e uponcareful evaluation of the technicalcircumstances involved. Facility owner/operators will be required to provideclear and convincing information- tosupport any assertion that such cleanupis technically impracticable.

As suggested in the examplesprovided above, the Agency believesthat the concept of technicalimpracticability may in some cases alsoapply to situations in which use ofavailable remedial technologies wouldcreate unacceptable risks to workers orsurrounding populations, or wherecleanup would create unacceptable

cross-media impacts. For example, somewastes present a high potential forexplosion during excavation. TheAgency expects that these types ofsituations which could lead to adetermination of technicalimpracticability will be quite rare. In thecase of cross-media impacts, it isexpected that sound techniques andengineering controls-or-other remedialalternatives-should be available toeffectively minimize such cross-mediatransfer effects. In the absence of suchcontrols Dralternatives, however,remediation of such situations could hedetermined technically impracticable.The Agency is specifically solicitingcomment today on the types ofsituations whichmight warrant adetermination that remediation of arelease to a media cleanup standardmeeting the standard of § 264.526(d)(1)is technically impracticable, and wouldnot, therefore, be required.

7. Demonstration of Compliance WithMedia Clernup Standards (§ 264,525f(e).Section 26U525(e) outlines the Agencsproposed approach to establishingconditions the permittee must fulfill toachieve and demonstrate rompliancewith the media cleanup standards (oralternative cleanup levels) establishedduring the remedy selection process.Media cleanup standards arecontaminant concentration limits set ona constituent-specific basis in eachenvironmental medium in which thepermittee is required toremediate arelease. (See proposed J 264.525(d).) Thesite-specific conditions which would beestablibhed l-.y the RegionalAdministrator in the permit under§ 264.525(e) include compliance points(where cleanup standards must beachieved) for each medium; sampling,analytical, and stati rc.methtds theowner/opt ,r. 'r must use in con,lianuedemonstratims: and the length of timeover which the d-ta must shovL iat the

,media cleanup standard (or Lil.ernrtivecleanup level) has not been exneeded tosuccessfully dieimstrz te romrU._nce.Each of these Teu 'rements is Lsacussedbelow.

a. Pcrits of Coanpiance--(1) CroumdWater. Proposed § 264.525[e)(ljli)wou]establish that the media cleanupstandard would ger-rally be required tobe achieved throughout the area ofcontaminated ground water. This wouldrequire tat, if the ground water were adrinking water source, the entire phmeof contamination would have to becleaned up to levels acceptable fordrinking. EPA is proposing thisalternative since exposure tocontaminated ground water may

potentially occur anywhere within anarea ,dffgrmund-water contamination.

Proposed I 264.525(](1)W would alsoprovide Iheff gional Adminigtralor withthe discretion to establish a point ofcompliance for ground water at theboundary -'fihe waste when waste isleft in place. Such discretion maybenecessary where 'it is impossible orinappropriate'to install monitoring wallsat cer'tain locations. For example, in thecase of a large landfill, it would usuallybe unwise to install monitorg wellsthrough the landfill itself. In addition,there will be circumstances whereground water contamination is causedby releases from several distinct units orsources that are in close geogrevpbicalproximity. In such cases, the mostfeasible .and effective ground-wa tarcleanup strategy may well be .to addressthe problem as a whole, rather tban unitby unit, and to draw the plume ofcontamination back to a point ofcompliance encompassing the sources ofrelease. Proposed § 264.525(e)(1)(i)therefore explicitly gives the RegionalAdministrator the autharity to set thepoint of compliance at a lineencompassing the original sources of.therelease.

The Agency Ftresses that its generalgoal is to clean up the entire plume ofcontaminatinm; however, it belieaes 113atfor very practical ieasons it must havethe discretion'to set an alternative poitof compliance for ground water aroundone rT more mommn sources of release.In determiningwlhere lo draw the pointof compliance in'such situations, theRegional Administrator will considersuch factors as the proxmity -f theunits, the tenlnaiaprntinabilities ofground-water remediation at thatspecific ste, the vuhlerability of lheground w.,aeand its ashle uses,exposure nd ldxllhond of uxp sure,and simlar zansideratinn.

Further, in rituatirns where therewould be Id e kE'lihood of expcraredue to the rexteness of Lhe sitc,alternu'e poin's bf comn Timnce may beconsidered, proVded uL-ta;mL;n inthe aquifer Is cortroileI from furrrmigration.

Proposed § ZI.525{e)(i)(i) pruvidesthat the location of gro.nd-itermonitoring weils will be specifled by theRegional Administrator. The monitoringwells -will serve.both to monitor tieeffectiveness of the ground-waterremediation program, and to sllow thepermittee to demonstrate compliancewith the media cleanup standardscontained in the permit for releases toground water."Where waste is leT inplace (either at facility closure or atoperating waste management units),

.30830




wells will generally be located up to theboundary of the waste Ii.e., the -unitboundary -for operating wastemanagement units].

In establishing the point ofcompliance for remediaion of groundwater faor today's proposed rule, EPAconsidered several differentalternatives. These include thefollowing:

* Throughout the ground water,* At the hazardous waste unit

boundary-,* At the edge of the existing

contamination not to exceed a "buffer"zone inside the facility boundary (e.g., aline describing the point at which it -

would take at least five years for thecontamination to reach the facilityboundary ifit was left unabated); and• At the facility boundary.The alternative considered by the

Agency which would have establishedthe point of compliance at the facilityboundary would recognize that thelikelihood of exposure to ground-watercontamination is ext ely unlikely onthe property of an actively managedfacility. Owners and operators of thesefacilities are required to identify andmonitor existing contaminatho underexisting regulations. Where existingcontamination would result in exposure(or to any contamination beyond thefacility boundary), owner/operatorswould be required to cleanup thiscontamination. A point of compliance atthe facility boundary would reduce costsin certain cases, while providingprotection from adverse exposure.However, the Agency is not proposingthis alternative because it may allow thespread of contamination wAithin thefacility boundary, and provides asmaller margin of safety than a morestringent point of compliance.

Another alternative would be to setthe point of compliance at the edge ofthe existing contamination, with a"buffer" zone insi-d the facilityboundary. This would prohibit thecontinued spread of contamination andprovide a margin of safety between thefacility boundary and any existingcontamination. The size of the "buffer"could be determined by the expectedmobiity of the contamination ht thatsite. For instance, the buffer could be setso that it would take at least five yearsfor contamination to reach the facilityboundary. Once identified,contamination entering the buffer zonewould be required to undergo correctiveaction.

EPA requests comments on itsproposal and on alternatives to thisapproach. In any case, if the Agencyadopted a point of compliance lessstringent than the waste unit boundary,

the Regional Administrator would havethe discretion to adopt a more stringentpoint of compliance where warranted bysite specific characteristics.

(2) Air. Proposed I 264.525(e}[ll[ii)would generally establish thecompliance point for hazardousconstituents released to air at thelocation of the most exposed individual.This is intended to be the point[s) wheremaximum long-term human exposurewould occur. It is expected that thepoint of compliance will typically beoutside the facility boundary.

In determining the location of themost exposed individuaL the Agencywill evaluate the risks where peoplespend a significant amount of their timeon a daily basis rather than addresstemporary or transient exposures to airemissions le.g., persons driving by thefacility). Thus, cleanup standards mightbe set at any dwelling, private, or publicbuilding, or other public or private areawhere exposures could occur on aregular or continuous basis if releasescontinue. This exposure might occurthrough windblown particles le.g., fromcontaminated soil), windblown volatileemissions, or toxic gases migrating fromthe subsurface into dwellings or otherstructures. These kinds of potentialexposures are evaluated during thefacility investigation, and will generallyrequire source controls when they posean actual or potential threat.

In establishing the location(s) of themost exposed individual(s), EPA willgeherally not include on-site facilityworkers, but would include people wholive on-site, such as military personneland families who reside at a Federal.faciLty requiied to obtain a RCRApermit Orccpational exposuresgenerally are the purview of theOccupational Safety and HealthAdm~-istratiun [OSHA). Under OSHAInstruction CPL 2-2.37A of January 29,1986, OSHA and EPA have agreed thatOSHA has the lead rle in providing forthe safety and health of workers athazardous waste sites. OSHA hasestablished standards for suchexposures in 29 CFR :910.120. AlthoughEPA has the authority to addressoccupational exposures, it will generallydo so only when the RegionalAdministrator has cause to believe thatinadequate controls are being exercisedat the site.

The Agency believes that achievingcompliance at the location of actualhuman exposure will in most cases, befully protective. However, the Agencyrecognizes that some sites may presentcircumstances in which a differentcompliance point may be necessary toprotect human health and theenvironment, and has provided the

Regional Administrator the flexibility toset a compliance point other than at themost exposed individual. This mayparticularly apply where exposure ofenvironmental receptors are a concern.For example, the Regional Administratorcould specify that a permittee mustdemonstrate compliance with thecleanup standard at the location of themost exposed environmental receptor ifsite conditions warranted.

The Agency considered other pointsof compliance for media cleanupstandards for air, including the unitboundary and the facility boundary. TheAgency, however, believes thatrequiring compliance with air cleanupstandards at these locations would beunnecessarily stringent, and wouldprovide very little, if any, real additionalhealth or environmental protection. Forexample, if the point of compliance wereset at the unit boundary, releases fromthe unit would have to be controlled tohealth-based levels, assuming life-timeexposure at that unit. In practical terms,this would require that emissions fromunits such as surface impoundmentswould in some cases have to becontrolled virtually to zero. The Agencybelieves that such a standard would beunrealistic. Similarly, the Agencybelieves that it is unnecessary to set thepoint of compliance as a routine matterat the facility boundary, since in many,if not most, cases the actual location ofexposed populations will be someconsiderable distance from the site.

As discussed earlier in today'spreamble (section VLE.2.d), action levelsfor air are determined at the facilityboundary in order to ensure that therewill be a plan in place to address thecontingency of receptors moving closeenough to the facility to be adverselyaffected by air releases from SWVIUs.Recognizing that residential patternsmay change after a remedy has beenselected and implemented, proposed§ 264.560(b) would require the facilityowner/operator to notify EPA and anyindividuals who may be exposed to thecontaminated air if, at any time, airconcentrations exceed the action levelbeyond the facility boundary. The needfor interim measures or additionalstudies would be assessed at that time.

The approach proposed today forestablishing points of compliance for airreleases differs somewhat from theproposed approach for other media,such as ground water. This is due tobasic differences in the behavior ofcontaminants in air as compared toground water. When a release intoground water occurs, typically theresulting ground-water contaminationwill remain at or near the facility for an

30831




extended period of time. Thus, if thecontamination is not remediated,exposure to the contamination (i.e.,through drinking water wells) can occurfor years thereafter. In contrast, when arelease into air occurs, typically it willmigrate and disperse relatively rapidly;the time when individuals who arelocated close to the facility could beexposed to the air toxicants would be amatter of minutes or hours. Thus, an airrelease that is occurring at any giventime does not present a long-termexposure threat to those individuals, aswould a ground-water release. Remediesfor an air release problem will mostoften involve stopping or controlling therelease itself from continuing to occur;the released chemicals will not actuallybe "cleaned up" per se.

Although the Agency recognizes thatthere can be other effects from airreleases from solid waste managementunits (e.g., formation of ozone), thegeneral objective under subpart S is toprevent exposure of nearby individualsto harmful levels of airborne toxicantsand carcinogens released from SWMUs(see section VII.C.3 of this preamble fora discussion of the relationship ofsubpart S to section 3004(n) standardsand ozone concerns]. Therefore, EPAbelieves that the proposed approach forsetting points of compliance for airreleases at the most exposed individualis sensible and realistic. Requiringcompliance at the unit boundary (whichwould follow the approach for groundwater) would, in essence, create astandard based on protecting against animplausible exposure scenario.

Proposed § 264.525(e)(1](ii) alsoprovides that the RegionalAdministrator will specify locationswhere air monitoring devices must beinstalled and what emission modeling ortesting, atmospheric dispersion models,or other methods must be used todemonstrate that a permittee hasachieved compliance with the mediacleanup standards. Methods ofdemonstrating compliance with aircleanup standards will vary from site tosite. At many sites, emission modelingor monitoring air close to the unit maybe coupled with air dispersion modelingto estimate concentrations of hazardousconstituents at the point of compliance.At other sites, monitoring of air qualityat the actual point of compliance may bethe most accurate and reliable methodof demonstrating compliance with themedia cleanup standard. In other cases,corrective measures taken to control thesource of the release may eliminate therelease to air altogether. In such cases,continued air monitoring or modelingwould not generally be required.

(3) Surface Water. For surface water,the Agency is proposing the point wherereleases enter the surface water as thepoint of compliance. (See§ 264.525(e)(1)(iii).) This compliancepoint will be used for releases to surfacewater that are ongoing, such as wouldbe the case with contaminated groundwater that flows into a surface waterbody, or non-p oint runoff which occursduring rainfall events. The Agencybelieves that achieving compliance withthe media cleanup standard for suchreleases at the point of entry intosurface water will be necessary toassure that human health and theenvironment are protected.

EPA recognizes, however, that insome cases releases from solid wastemanagement units that have occurred inthe past have settled and accumulatedin surface water sediments. Whereactual cleanup of contaminatedsediments is determined to benecessary, and cleanup standards havebeen specified for the sediments in thecontext of a remedy, proposed§ 264.525(e)(1)(iii) would allow theRegional Administrator to designatelocations (i.e., areas and depths in thesediments) where compliance with thestandards would be required.

The Regional Administrator willspecify the locations where surfacewater must be sampled to monitor thewater quality. The Agency recognizesthat in some cases (e.g., fast movingstreams) there may be some dilution ofhazardous constituents before samplescan be collected; however, the goal inestablishing sampling locations shouldbe to minimize such dilution effects. TheRegional Administrator also may specifylocations where sediment samples willbe collected and analyzed todemonstrate compliance with mediacleanup standards. Such considerationswill be particularly important where thesurface water is an importantenvironment for aquatic life and/or fishor other organisms which are likely tobe ingested by a nearby population.

(4) Soils. Today's proposal wouldestablish the point of compliance forsoils at any point where direct contactexposure to the soils may occur. In mostcases this point will be near the surfaceof soils, because this is where thegreatest likelihood exists of humancontact.

b. Methods. Under § 264.525(e)(2), theAgency proposes that the RegionalAdministrator specify in the permit thesampling and analytical methods to beused, methods of statistical analyses, ifrequired, and the frequency of samplingor monitoring that may be required tocharacterize levels of hazardous

constituents in all media, and todemonstrate compliance with mediacleanup standards (or alternativecleanup levels). In many cases thepermittee may have proposed, in theCorrective Measure Study, sampling andother analytic methods that would beappropriate for the remedial alternativeas part of an implementability oravailability of needed services analysis.In such cases, the RegionalAdministrator may consider and adoptthe proposed methods or other methodsthat he/she believes to be moreappropriate for the environmentalproblem being addressed or may requirethe parmittee to use methods he/shebelieves more reliable.

c. Timing of Demonstration ofCompliance. The Agency is alsoproposing under § 264.525(e)(3) that theRegional Administrator specify in theremedy the length of time during whichthe permittee must demonstrate thatconcentrations of hazardousconstituents have not exceededspecified concentrations in order toachieve compliance with media cleanupstandards (or alternative cleanuplevels). Under the existing subpart Fregulations (§ 264.100), the Agency hasrequired that facility owner/operatorsremediating ground-watercontamination from regulated unitscontinue corrective action until thedesignated ground-water protectionstandard has not been exceeded for aperiod of three years. The Agency hasfound that, given the variety ofhydrogeologic settings of facilities andcharacteristics of the hazardousconstituents it is difficult todemonstrate reliably that the ground-water protection standard has beenachieved by imposing a uniform time fordemonstrating compliance.

The Agency is not proposing a specifictime period under the subpart Sregulations for achieving compliancewith cleanup standards beforediscontinuing corrective action. Instead,the Agency is proposing that theRegional Administrator specify thelength of time required to make such ademonstration as appropriate for a givenmedia cleanup standard. As describedunder proposed J 264.525(e)(3) (i)-(v),the Regional Administrator mayconsider five factors in setting thistiming requirement: (1) The extent andconcentration of the release; (2) thebehavior characteristics of thehazardous constituents in the affectedmedium; (3) the accuracy of themonitoring techniques; (4)characteristics of the affected media;and, (5) any seasonal, meteorological, orother environmental variables that may

I30832




affect the accuracy of the monitoringresults. The Agency .believes thatconsideration of these factors will allowthe Regional Administrator to set anappropriate time period fordemonstrating compliance with cleanupstandards rather than Telyn on anarbitrary time period for all facilities orall situations at the same facility.

One exampe of how theseconsiderations might affect a decisionon the time a cleanup standard must notbe exceeded to demonstrate complianceis given here. The Agency expects thatpump and treat ystems will be requiredat many facilities where hazardouswastes or hazardous constituents havemigrated to ground water from SWMUs.Experience in the RCRA subpart Fprogram (which addresses releases ofhazardous constituents to ground waterfrom regulated units) has shown thatcontinuous operation of a pump andtreat system may interfere with theowner/operator's ability to obtainaccurate sampling data on constituentconcentration levels. Allowing naturalrestoration of chemical equilibrium inthe affected ground water after thepump and treat system is turned off willbe necessary to obtain accuratereadings of constituent concentrations.If the concentration(s) rise tounacceptable levels after the remedialtechnology is disconnected, reinitiationof treatment may be required. Thisprocess would have to be repeated untilacceptable concentration levels areachieved after chemical equilibrium hasbeen reached in the ground water withthe treatment system suspended. In suchcases it may be necessary to extend thelife of the permit until required remedialresults have been achieved even whenwaste management operations haveceased at all active hazardous wasteunits at the facility.

8. Conditia wRemedies [§264.525[f)).Proposed I 264.5(f) would allow EPAto select a "conditional" remedy. Aconditional remedy would allow, atEPA's or the authorized State'sdiscretion, an owner/operator to phase-in a remedy over time, as long as certainconditions are met. EPA recognizes thatin some cases completing cleanup willbe sufficiently complex and costly towarrant a phased approach to cleanup.Generally, a conditional remedy wouldallow existing contamination(sometimes at existing levels) to remainwithin the facility boundary, providedthat certain conditions are met. Theseconditions would include achievingmedia cleanup standards for anyreleases that have migrated beyond thefacility boundary as soon as practicable,implementing source control measures

that will ensure that continued releasesare'effectively controlled, controlling thefurther migration of on-sitecontamination, and providing financialassurance for the ultimate czmpletion ofcleanup. TJ-e length of time thatcontamination could be allowed toremain within the facility boundarywould be established on a site-specificbasis, but could be for as long as thepermit remains in effect. Nothing in thisprovision, of course, would prevent thetransfer of property subject to aconditional remedy or other correctiveaction requirements. For a furtherdiscussion of the property transfer issue,see section VL1.1. of this preamble.

This type of remedial approach mayoften be appropriate for RCRA facilities,for several reasons. First, permittedRCRA facilities will typically be activelymanaged prcperties, with viable owner/operators ,4i' rn cDntrol and restrictaccess to the property. Typically,exposure at such facilities (which havepermits to manage hazardous waste)will be significanitly less than at siteswhere access is unrestricted. Forexample, actual drinking of groundwater under the facility will notgenerally occur, nor would residencestypically be found-as long as the siteremained a RCRA permitted facility.Therefore, an appropriate remedy forsuch a site might be the cleanup ofground water contamination under thesite to a level consistent with currentexposures. Most RCRA facilities posesignificantly lower environmental andhuman health risks than Superfund sites,and therefore the need to pursuecomplete cleanup at such facilities willoften be less urgent The use ofconditional remedies in appropriatesituations complements EPA's overallmanagement goal of addressing the mostsignificant and urgent environmentalproblems first

The Agency anticipates that theremay be a variety of facility-specificsituations -under which a conditionalremedy would be appropriate, given thenature of the contamination problem atthe facility, the capabilities of theowner/operator and other factors suchas the level of risk and local publicconcerns. One example could be a largefacility where the contaminant sourcesand releases are of no current threat, arerelatively remote from any potentialreceptors and ran be reliably controlledto prevent further significantdegradation, and where the owner/operator ran be reasonably txpected tomaintain an effective, long-termpresence at the facility, and thus able toprevent exposure to contaminantsduring the conditional remedy. EPA

recognizes that decisions regarding theappropriateness of conditional remediescould often have important implicationsfor ownerloperators, as well as otherswho may be affected by or who haveinterest in the long-term environmentalconditions of these facilities. Suchdecisions must be made in carefulconsideration of relevant, site-specificfactors. 1T:e Agency specificallyrequests comment regarding whichfactors should be-considered-andhow-in determining theappropriateness of conditional remedies,and whether more formal criteria shouldbe specified in the rule for making suchdecisions.

Conditional remedies would not beappropriate in situations where EPA orthe authorized State lacks reasonableassurance that further environmentaldegradation will not occur. For example,a conditional remedy would not beappropriate in the case of a fast movingplume or in circumstances where thehydrogeology of the area suggests thatadditional-verical migration will likelyoccur despite the implementation ofengineered systems or devices to controlplume migration. Further, conditionalremedies may not be appropriate insituations where a gte with groundwater contamination is located in closeproximity to an environmentallysensitive area. In the case of Federalfacilities, conditional remedies may befrequently used because of acombination of factors, includingtechnical limitations on the ability toachieve complete cleanup at facilitieswhich are often extremely large andcomplex, and the unique financialconstraints placed on Federal facilitiesby the nature of the federal budgetprocess.

The media cleanup standards, sourcecontrol actions, or other actions requiredunder a conditional remedy may or maynot be sufficient for a final remedy.Today's rule recognizes that in somecases, there are technical limitations toachieving complete cleanup of groundwater contamination. The proposalrecognizes this and allows technicalpracticability to be factored into thedecisionmaking process at a particularsite both during the selection ofremediation alternatives to beconsidered and in the finaldetermination of appropriate remedies.

The Agency is particularly interestedin comments on ,is issue from theStates, who will ultimately be theimplementing agencies for correctiveaction. Comments are solicited as towhether States support this approach,and whether they believe it reasonably

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addresses corrective action problems atfacilities operating under State permits.

Section 264.525(f)(2) outlines the sevenspecific requirements-or conditions--that conditional remedies must complywith. Should any of these conditions notbe met during the term of a facility'spermit, EPA would either impose new oradditional conditions to ensureprotection, or require the owner/operator to implement a "final" remedy;i.e., a remedy that fully meets thestandards of § 264.525(a). In any event,such a final remedy would ultimatelyhave to be implemented and completedat the facility before termination of thepermit.

Under a conditional remedy theowner/operator would be required toachieve media cleanup standards forany releases that have migrated beyondthe facility boundary as soon aspracticable. In addition, the remedywould have to prevent against anyfurther significant environmentaldegradation This will typically involveimplementing source control measuresthat will ensure that continued releases(e.g., leachate from a landfill to groundwater) are effectively controlled. Inorder to achieve this standard ofprotection, substantial treatment ofwastes or other containment measureswill often be required. In addition tosuch source control measures, aconditional remedy would also berequired to have implementedengineered systems or devices to controlthe further migration of on-site releasesthat have already occurred. Forexample, in the case of a plume of "on-site" contamination (i.e., that had notyet reached the facility boundary], thatwould continue to migrate and furthercontaminate the aquifer if leftunchecked, the owner/operator wouldbe required to install, at a minimum,some type of ground-water interceptionsystem or barrier system that wouldreliably halt such continued migration.

The source control actions or otheractions required under a conditionalremedy to prevent further environmentaldegradation may or may not besufficient for a final remedy. In somecases, further treatment of wastes orextra engineered features might berequired to achieve final remedial goals,consistent with the provisions forremedies under § 264.525 (a) and (b).Likewise, the final remedy would alsorequire compliance with standards forattaining media cleanup standardswithin the facility boundary, as well asoutside the facility.

Under a conditional remedy, anytreatment, storage or disposal of wastesrequired by the remedy would have tobe done in accordance with the

requirements for management of wastes,as specified in proposed §§ 264.550-264.559.

Today's proposal would require thatfinancial assurance for the remedy bedemonstrated. The Agency recognizesthat financial assurance may often bevery important in ensuring theeffectiveness of a conditional remedy,as well as ensuring that final cleanup ofthe facility will be achieved. Comment issolicited as to the types of financialassurance requirements that should beimposed on conditional remedies.

Since a conditional remedy may allowsome contaminated media to remain onthe facility during the course of theremedy, a critical feature of the remedywill be ensuring adequate controls toprevent against exposure to suchcontamination. Controls could beengineered features, such as fences orother physical barriers to restrict accessto those areas of the facility. Other non-engineered controls, such asprohibitions against use of on-siteground water for drinking water, couldalso be required and written into thepermit.

EPA solicits comments on the overallconcept of conditional remedies, and onthe specific conditions and requirementsthat should be imposed in implementingsuch remedies.

G. Permit Modification for Selection ofRemedy (Section 264.526)

After a preliminary selection ofremedy, the Agency will need to revisethe permit to incorporate the remedy.This decision (selection of remedy) is amajor one in the corrective actionprocess, and the public is entitled toreview and comment on the Agency'spreliminary decision concerningappropriate remedial activities at thefacility. Moreover, this modificationprovides an opportunity for the public tocomment on activities (e.g., the remedialinvestigations and the CMS) that haveled up to the identification and selectionof the remedy. As a result, the Agencybelieves that a major modification of thepermit is appropriate. Therefore, theAgency is proposing today in§ 264.520(a) to require a major permitmodification for the purpose ofspecifying the selected correctivemeasures and imposing a schedule ofcompliance for implementing theremedy.

The regulatory authority for a majorpermit modification is found in 40 CFR270.41, as amended by proposed§ 270.41(a)(5)(ix) of today's regulation.No changes are being proposed intoday's rule for the major modificationprocess, which requires a 45-day noticeand comment period, a response to

comments, and a public hearing if such ahearing is requested. (Regulationsconcerning standards for majormodifications are located at 40 CFR270.41; governing procedures are foundin 40 CFR part 124.)

Opportunities for public involvementin the corrective action process beyondthe modification for selection of remedyare discussed in Section VIII of today'spreamble.

Proposed § 264.526(b) specifies sevenelements that would be included in themodified permit. The proposedmodification and its accompanyingstatement of basis would provide aframework for the facility owner/operator's and the public'sunderstanding of the remedial activitiesselected for the facility. First, theproposed modification would have toinclude a description of the technicalfeatures of the remedy necessary toachieve standards for remedies asstated in proposed § 264.525(a). Thisdescription must be complete enough toenable a reviewer to determine that itcomplies with the standards forprotectiveness, attainment of mediacleanup standards, source control, andwaste management practices imposedon all RCRA remedies under§ 264.525(a). For instance, if anincinerator is to be constructed toincinerate waste at the facility, thedescription would generally indicate thetype of incinerator proposed, the part264 performance standards theincinerator would meet, the capacity,etc. The remedy description might alsoneed to specify equipment or designfeatures needed to address air releasesfrom the treatment process (e.g., airstrippers used to remove volatileorganics will generally be required tohave a control device such as a carbonadsorption unit). The technical featuresrequired should be provided in sufficientdetail to allow meaningful comment andto provide the facility owner/operatorclear guidance in developing a remedialdesign. (See discussion of remedy designunder section VI.H of today's preamble.)At the same time, EPA believes thatmany details of the remedy-forexample, the operating conditions of theincinerator needed to meet theperformance standards or the exactnature of emissions control devices ontanks-might not be available at thisstage and would be addressed duringapproval of the remedy design.

Second, today's proposal wouldrequire in § 284.526(b)(2) that mediacleanup standards established duringremedy selection be included in themodified permit.

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Third, proposed § 264.526(b)(3) wouldrequire that the modified permitdescribe conditions the permittee mustfulfill to demonstrate compliance withthe media cleanup standardsestablished in the remedy selectionprocess under § 264.525(e). For example,the modified permit might require theowner/operator to continue monitoringground water over a certain period oftime after a cleanup standard has beenachieved to ensure that the level is notsubsequently exceeded. In addition, thepermit might specify where groundwater would be monitored to measurecompliance. Again, specific details oncompliance measurements might not beavailable at remedy selection, but wouldbe addressed through remedy design.

Proposed § 264.526(b)(4) wouldrequire the Regional Administrator tospecify standards applicable to themanagement of corrective action wastesin the permit. For example, if the remedyselected specifies use of a temporarytank at the facility for the purpose ofwaste treatment, any design, operatingor performance standard deemedapplicable to the operation of the unitwould be included in the modifiedpermit by the Regional Administrator.

Fifth, any procedures the permitteemust follow to remove, decontaminate,or close units or structures used duringremedy implementation would bespecified in the permit, as well as anypost-closure care required. In theexample of the temporary unit usedabove, the Regional Administratorwould specify any closure standardsthat applied to the temporary unit if theunit was employed to treat hazardouswaste.

Proposed § 264.526(b)(6) wouldrequire that the modified permit includea schedule for initiating and completingall major technical features andmilestones of the remedy.

Finally, the modified permit mustinclude (under § 264.526(b)(7)) anyrequirements for submission of programreports or other information deemednecessary by the RegionalAdministrator for the purpose ofoverseeing remedy implementation andprogress. For further discussion of theremedy selection process andcomponents of the decision-makingprocess, see section VI.F of today'spreamble.

The Agency believes that theseminimum requirements-a description ofthe remedy's technical features, thecleanup standards that must beachieved, the standards that must bemet to demonstrate compliance with themedia cleanup standards, standardsapplicable to the management ofcorrective action wastes, requirements

for removal, decontamination, closure,or post-closure of units or devicesemployed during remedyimplementation, a schedule ofcompliance, and requirements forreporting-are the most importantdecisions the modified permit mustreflect. Further, they are essential toinform the public fully of the Agency'spreliminary decision when the draftpermit modification is issued for noticeand comment.

In addition to the draft permitmodification itself, EPA would also berequired to publish, under the permitmodification requirements, a statementof basis. This statement, which wouldbe roughly analogous to the SuperfundRecord of Decision (ROD), wouldgenerally describe the basis for EPA'stentative remedy selection or approvaland an explanation for the cleanuplevels chosen. In addition, EPA wouldgenerally make the remedialinvestigation and the CMS reportsavailable to the public for review. Thescope and content of the statements ofbasis will vary widely, of course,depending on the complexity of the site,the nature of the proposed remedy, thelevel of public interest, and otherrelevant factors. In any case, theyshould be sufficiently detailed for thepublic and the facility owner/operatorto understand and comment on theAgency's tentative decision, and thestudies and conclusions leading up tothe decision.

The permittee, based on the remedyselected and approved in the finalmodified permit, will be required underproposed § 264.526(c) to demonstratefinancial assurance for completing allrequired remedial actions specified inthe modified permit. The proposedregulations for financial assurance forcorrective action (FACA) (51 FR 37854),as discussed in sections IV.D andVII.C.5 of today's preamble, may beused as guidelines by owner/operatorsfor demonstrating the required financialassurance.

Today's proposed § 264.526(c) wouldrequire the permittee to demonstratefinancial assurance no later than 120days after the modified permit becomeseffective. The Agency believes that thisapproach is needed since the remedyproposed for the facility in the draftpermit modification may be altered inresponse to comments, and since finaldetailed remedy design, construction,operation, and maintenance plans whichwill provide significantly improved costestimates may not be submitted untilafter the modified permit is in effect.The Agency chose 120 days to promoteconsistency with other RCRA financialassurance provisions. Experience in

implementing the financial assuranceprovisions under 40 CFR part 264,subpart H, has shown that 120 days is areasonable period of time for owners oroperators to obtain financial assurancemechanisms. The Agency is specificallysoliciting comment on this proposedprovision today, and whether 120 daysafter the final remedy decision isimposed is an appropriate length of timefor demonstrating financial assurance.

In addition, proposed § 264.525(c)(2)would allow the Regional Administratorin certain circumstances to release thefacility owner/operator's mechanismsestablishing financial responsibility forclosure and post-closure financialassurance at the time financialassurance for corrective action isestablished. This amendment isnecessary to address situations wherecorrective action is conducted atregulated units-particularly under thesubpart F requirements of § 264.100-and the corrective action schedule ofcompliance replaces the unit's closureplan. In these cases, it will generally beappropriate for the RegionalAdministrator to release the facility'sfinancial assurance for closure and post-closure for that unit and allow thefacility to apply the mechanisms tofinancial assurance for correctiveaction. In addition, at the point wherethe unit subject to corrective action iseffectively closed in accordance withthe corrective action schedule ofcompliance, the Regional Administratorwould have the authority under today'sproposal to release the owner/operatorfrom third-party liability requirementswith respect to that unit. This proposedrequirement is consistent with thecurrent provisions of subpart H, whichgenerally provide for the release ofthird-party liability mechanisms at thetime an owner/operator certifies finalclosure.

Section 264.526(d) provides for phasedremedies when considered appropriateby the Regional Administrator. Theconcept of phased remedies is similar tothe designation of "operable units" inCERCLA. Remedial actions at CERCLAsites are often managed in stages calledoperable units since it is often notfeasible, for a variety of reasons, toclean up an entire site in one action.Operable units under CERCLA, orremedial phases under RCRA, mayconsist of any logically connected set ofactions performed sequentially overtime, or concurrently at different partsof a site.

One example of a situation where aphased remedial approach would beuseful is where treatment of waste isdesirable, but where a suitable

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treatment technology or adequatetreatment capacity is not currentlyavailable, although it is expected to beavailable in the foreseeable future. Insuch cases, remedial phases mightconsist initially of limited measures tostabilize the wastes, to be followed by acomplete response action when anappropriate treatment teohnology orcapacity becomes available.

Another example of a phasedapproach would be a requirement toinstall a ground-water pump and treatsystem to control further movement of acontaminant plume and begin thecleanup process, prior to specifying thesource control measures nocessary forthe releasing unit(s). Conversely, sourcecontrols at a SWMU (or SWMUs) mightbe required prior to installing the pumpand treat system. This kind of approachwould be desirable, in many cases,where the disintegration of theengineered structure of the unit(s) isresulting in continued significantreleases, but the concentration of thehazardous constituents in the groundwater had not reached levels orlocations that threaten exposure ofhumans or sensitive environmentalreceptors to hazardous constituents atharmful levels in the near term.

Any initial remedy phases should beconsistent with, and complementary to,the final remedy that is selectedaccording to § 264.525. The separation ofa remedy into phases should in no wayimpede future cleanups; rather, thisapproach should often be useful intaking early action to prevent furtherdegradation while other problems arestill in a study phase

The Agency has determined that theuse of phased remedies for managingcorrective action at RCRA facilities isappropriate for many of the samereasons the concept is used atSuperfund sites. Using remedial phasesat RCRA sites will provide the Agencywith more flexibility to require remediestailored to site-specific considerations. Itmay be advantageous at a particularRCRA facility to address releases froman individual SWMU or group ofSWMUs in stages, focusing first onthose releases that pose the greatest riskto human health and the environment,while allowing releases posing less riskto be addressed later.

H. Implementation of Remedy (Sections264.527-264.531)

1. Remedy Design (§ 264.527). AfterEPA has approved the remedy throughthe permit modification process, thefacility owner/operator will often berequired in the modified permit todevelop a remedy design. Proposed§ 264.527 would require the permittee to

prepare detailed construction plans andspecifications for implementing theremedy. The schedule for submission ofthe plans would be included in aschedule of compliance detailed in thepermit. This proposed requirement isanalogous to the Superfund program'sadoption of design standards followingthe Record of Decision on remedyselection. The Agency would approve ormodify the design and incorporate it intothe schedule of compliance.

Designs required under § 264.527 mustinclude specifications that demonstratecompliance with the applicablestandards for management of hazardousand/or solid wastes duringimplementation of the remedy, asdetermined by § § 264.550 through264.552 of today's proposal. Theinformation required would be similar tothe information typically required aboutunits and processes at facilities in part Bapplications.

The permittee would also be requiredunder proposed § 264.527 to submitimplementation and long-termoperation, monitoring, and maintenanceplans, a project schedule, and a programto assure quality assurance during theconstruction phase (if any) of remedyimplementation. Such information wouldinclude specific dates for majormilestones and project completion aswell as other significant events.

Proposed § 264.527(b) would requirethe permittee to implement the remedyaccording to the plans and schedulesapproved by the Regional Administratorand in a manner consistent with theobjectives specified for the correctivemeasures during remedy selection.Section 264.527(a) will provide that theapproved schedule and specificationsbecome an enforceable part of thepermit.

Proposed § 264.527(b)(2) wouldrequire the permittee to place a copy ofthe approved design plans andspecifications in the informationrepository if the facility is required bythe Regional Administrator to maintainsuch a repository under the authority of§ 270.30. All permittees would berequired, under proposed § 264.527(b)(3),to provide written notice of approval ofremedy design to those persons on thefacility mailing list. This notice wouldprovide individuals on the facilitymailing list a notice of the location ofthe approved remedy design andspecifications and provide informationon the availability of those documentsfor public review.

Additionally, proposed § 264.527(b)(4)would require the permittee to amendthe corrective action cost estimate andadjust the amount of financial assurancedemonstrated, if necessary, after

approval of the remedy constructionplans and specifications. These planswill provide improved cost estimatescompared to those developed duringmodification of the permit. Therefore, toensure that adequate amounts of fundsare available to cover corrective actioncosts, the amount of financial assurancedemonstrated must reflect the revisedcost estimate derived from the finalconstruction plans and specifications.

.2. Progress Reports (§ 264.528). Sinceimplementation of remedies will often'take place over extended time periods,§ 264.528 of today's proposal providesthat the Regional Administrator mayrequire periodic progress reports fromthe permittee. These progress reportsmay contain information onconstruction, operation, andmaintenance of the selected remedy.The Regional Administrator wouldspecify the frequency and format of suchreports in the permit schedule ofcompliance, when s/he approved theremedy design. Such reports Would bedesigned to summarize the progress ofremedy implementation, discusschanges or problems with the remedy,and provide data obtained duringremedy implementation.

The timing and content of progressreports will vary from site to site.Factors that may be used by theRegional Administrator in determiningwhat progress reports are necessary fora given site include complexity of thewaste mixture, complexity of theremedy, hydrogeologic and climaticconditions, and potential for exposure.These factors are qualitative measuresof the risks posed by contamination at aspecific site. The Agency intends tomonitor closely those sites at which therisk to human health and theenvironment is greatest. For example,the frequency of progress reports may'be greater at sites where there arecomplex remedies and/or a highpotential for exposure to contamination.than at sites where remedies are simpleand the potential for exposure is low.

Reports required by the RegionalAdministrator will be tailored to meetsite-specific conditions. Wherenecessary, progress reports may berequired to contain detailed informationon remedy implementation. In othercases, such as where the remedy issimple, the progress reports may be lessdetailed.

The Agency considered severalalternatives to today's proposal forallowing discretion to the RegionalAdministrator in requiring progressreports. These included: Not requiringprogress reports from any facility;requiring submission of reports on a

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routine basis from all facilitiesimplementing remedies; and requiringdevelopment of progress reports whichwould be kept on file at the facility andavailable for inspection by EPA. TheAgency has tentatively rejected thesealternatives, because it believes that thevariation among sites will require thatreporting (including frequency ofreporting) be tailored to the specific site.

All raw data and informationdeveloped or submitted during remedyimplementation (including design,laboratory reports, etc.) must bemaintained in the operating record ofthe facility as long as the facilityoperates under a RCRA permit,including any reissued permit followinginitiation of corrective action. Thisrequirement is proposed in § 264.528(b)and is necessary to ensure that periodicreviews at the site will have all dataavailable for inspectior.

3. Review of Remedy Implementation(§ 264.529). Under the regulatoryauthority proposed in J 264.529, EPAwould review remediation activities ona periodic basis. Such reviews will takeplace throughout the design.construction, operation, andmaintenance of the correctivemeasure(s). The Agency's review ofremediation activities will consist bothof a review of progress reportssubmitted by the permittee and, wherenecessary, on-site inspections andoversight of remedy design,construction, operation, andmaintenance. The Agency intends tofocus on-site inspections on areasidentified for oversight in progressreports or prior Agency reviews.

The Agency believes that theauthority to perform close reviews ofremediation activities is an essentialelement of the corrective actionprogram. Experience in the HSWAcorrective action program and theCERCLA remedial program hasdemonstrated that timely and closeoversight of cleanup activities isessential in many cases to ensure thatremedies are effectively implemented.For example, oversight of the remedymay indicate that the technologyoriginally called for in the design plansis not in fact successfully neeting themedia cleanup standards. Proposed§ 264.529 provides EPA with theauthority to take steps to remedy suchimplementation problems.

The Agency intends to work closelywith permittees by overseeing remedyimplementation and addressingproblems in a timely manner. Whereproblems arise during implementation ofthe selected remedy, the Agency willattempt to settle such problemsinformally with permittees to ensure

prompt completion of the remedy in amanner which adequately protectshuman health and the environment. Insome cases, the Agency may determinethat an enforcement action undersection 3008(a) is necessary to compelcompliance with the permit. In othercases, where no resolution ofdisagreements appears possible, orwhere the contemplated change is onethat warrants additional publicparticipation, proposed § 264.529 wouldallow the Regional Administrator toinitiate a permit modification using theprocedures laid out in 40 CFR 270.41 orthose proposed today under § 270.34(c).If the Regional Administrator believesthat a disagreement over a proposedprovision is suited to alternative disputeresolution, she/he may seek resolutionusing the procedures described insection VLL7 of today's preamble. Amore detailed discussion ofcircumstances which may require permitmodifications may be found in sectionVI.L of today's preamble.

The Agency also considered, butrejected, requiring a specific number offacility inspections during remedyimplementation. Because the variety ofproblems to be addressed under today'sproposed regulation is extensive (as isthe range of proven reliability oftechnologies which may be employed toaddress the problems, complexity of thesite, and potential for exposure, theAgency has concluded that frequency ofsite reviews must be a case-by-casedecision.

4. Completion of Remedies (§ 264.530),Proposed § 264.530 would establishcriteria by which the owner/operatorwould demonstrate the completion ofremedies.

Section 264.530 would specify thatcorrective measures required in thepermit are complete when threeconditions have been met. First, underproposed § 264.530(a)(1), therequirements for compliance with allmedia cleanup standards (or alternativecleanup levels) as specified in the permitwould have to be met For example, ifboth a ground-water and soil cleanupstandard are specified in the permit, thecleanup standard must have beenachieved for each medium before thefacility meets the criterion ofcompliance with all media cleanupstandards. In addition, after initiallyachieving the cleanup standard thepermittee generally would be required tomonitor the medium for an additionalperiod of time to ensure that the remedywas in fact complete and thatcontaminant levels did not subsequentlyexceed the cleanup standards under theprovisions of proposed § 264.525(e). This

requirement is discussed in sectionVI.F.7.c of this preamble.

Second, under proposed§ 264.530(a)(2), all actions required inthe permit to address the source orsources of contamination must havebeen satisfied. This provision isdesigned to prevent continuedcontamination in the future. One type ofsource control which may be required isconstruction of a structurally sound capon an inactive SWMU to prevent futurecontaminant migration to surface waterwhich could potentially result fromrainfall runoff from an uncoveredSWMU.

Third, under proposed § 264.530(a)(3),the permittee would have to complywith procedures specified in the permitfor removal or decontamination of units,equipment, devices, or structuresrequired to implement the remedy. Inother words, temporary structures orequipment necessary to conduct theremedy must be removed ordecontaminated to complete the remedy.For example, liners or the contents oftemporary waste piles would have to bedisposed of according to appropriatewaste management practices. Unitsemployed during the remedial activitiesto manage hazardous waste will berequired to meet the closureperformance standards for theappropriate type of unit (Closure wouldnot be required, of course, if the owner/operator wished to continue use of theunit to manage waste and continued usewas allowed in the permit.)

Proposed § 26.530(b] would establishprocedures that permittees must followto document that corrective measureshave been completed in accordancewith the requirements of § 264.530(a).Upon completion of-the remedy, thepermittee would be required to submit awritten certification to the RegionalAdministrator by registered mail statingthat the remedy has been completed inaccordance with the requirements of thepermit. The certification must be signedby the permittee and by an independentprofessional skilled in the appropriatetechnical discipline. The Agencybelieves that a certification by anindependent professional is necessarybecause the permittee may lack theexpertise and the incentive to judgeadequately the compliance of theremedy with the applicablerequirements specified in the permit.

The Agency is not proposing tospecify the types of independentprofessionals who must certifycompletion of the remedy. The Agencyproposes to require certification by anappropriate independent professional inrecognition that different certifications

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may require different skills (e.g., anengineer may be appropriate in somecases whereas a hydrogeologist mightbe more appropriate in another).

The Agency considered, but is notproposing, a requirement that allsupporting documentation be submittedalong with the certificate of completion.Since, in most cases, the RegionalAdministrator would have requiredsubmission of periodic progress reportson remedial activities and since thesupporting information must beavailable at the facility for inspection,the Agency believes that submission ofall documentation will not be necessary.

Upon icceipt of the certificate ofcompletion, the Regional Administratorwould determine whether the remedyhas been completed in accordance withthe requirements of proposed § 264.530.If the Regional Administratordetermines that the applicablerequirements for remedy completionestablished in the permit schedule ofcompliance have not been met, theRegional Administrator would generallynotify the permittee of such a decisionand of the steps that must be taken tocomplete the remedy. After such stepshave been taken, the permittee shouldsubmit a new certificate of completionin accordance with the requirements ofthis section.

When the Regional Administrator hasdetermined that the remedy is complete,the permittee will be released from thefinancial assurance requirements forcorrective action under § § 264.500(c)and 24.526(c).

The Agency is proposing, in§ 264.530(c)(1), that the permit will bemodified according to the Class IIIprocedures for owner/operator-initiatedmodifications (§ 270.42), to terminate thepermit schedule of compliance when allrequired corrective action is determinedto be complete.

Generally, remedies required undersubpart S will be considered completeonly when all measures at a facilityhave been completed. Thus, if separateremedies are implemented for severalunits at a facility, all remedies must becompleted before the Agency considerscorrective action at the facility to becomplete. For example, if a remedy forreleases from two units at a facility iscomplete, but a different remedy forreleases from three other units at thefacility is incomplete, the Agency willnot consider corrective action for thefacility complete.

In some situations, however (eg.,where essentially separate remedialactivities addressing releases widelyseparated in location and affectingdifferent environmental media), it maybe possible for the owner/operator to

demonstrate that some portion of theremediation required has beensuccessfully completed though otherrequired actions are still underway. Thiswill usually be the case where theremedy chosen for a facility is a phasedremedy divided under proposed§ 264.526(d). In such cases, the RegionalAdministrator may allow submission ofcertifications of partial completion ofremedies by the owner/operator.Certifications of partial completion willbe handled in a manner analogous tocertifications of partial closure and areprovided today in proposed § 264.530(d),which includes a provision for partialrelease of the financial assurancemechanism as well. However, until allcorrective action activities required inthe permit are complete the owner/operator must continue to comply withall implementation and reportingrequirements specified In the permitwhich have not been specificallysatisfied to date.

5. Determination of TechnicalImpracticability (§ 264.531). Thisproposed section is intended to addresssituations where a performancerequirement set for a selected remedy inthe permit cannot technically beachieved after reasonable efforts to doso have been made by the permittee. Anexample of such a situation might bewhere hydrogeologic and geochemicalfactors that were not fully understood atthe time of remedy selection prevent theattainment of a media cleanup standardfor ground water

EPA will require owner/operators toput forth active efforts to achieve allrequirements of the selected remedy. Ifthe selected remedial technology provesnot to be capable of attaining a mediacleanup standard or other remedyrequirement (such as a source controlmeasure), EPA may require the owner/operator to examine alternativetechnologies that are available and thatmay be able to achieve the requirement.If such an alternative technology isidentified, and is compatible with theoverall remedial objectives (e.g., wouldnot create unacceptable cross-mediaimpacts), the permit will be modified torequire implementation of thetechnology. (Sed discussion of review ofremedy implementation under§ 264.529.)

EPA will examine, on a case-by-casebasis, the owner/operator's efforts toachieve remedy requirements.Comments are solicited as to whatobjective factors may be examined inmaking these judgments.

If the Regional Administratordetermines that attainment of a remedyrequirement is not technicallypracticable and no practicable

alternative technologies are available, itwill be necessary to determine whatalternative, or additional, requirements,if any, will be needed to ensure that theremedy adequately protects humanhealth and the environment. If, forexample, attainment of a cleanupstandard for ground water is determinedto be technically impracticable,additional measures (e.g., facility accesscontrols) to control long-term exposureto the ground water may be needed ifthe ground water is not drinkable.Likewise, if treatment of contaminatedsoils to specified levels were nottechnically feasible, the soils may needto be covered or disposed of in a unitwith upgraded engineering controls forrelease prevention. In some cases, theRegional Administrator may determinethat no alternative or additionalrequirements are necessary. Forexample, the total risk from the site maybe acceptable, although somecarcinogenic constituents may exceedthe desired risk level established by themedia cleanup standard.

If attainment of a media cleanupstandard is determined to be technicallyimpracticable, it is not the intention ofEPA to modify the standard to a lessstringent level. Media cleanup standardsrepresent levels that are determined tobe protective of human health and theenvironment; a finding that suchstandards cannot be met does not affectthe desirability of achieving thoselevels. A determination of technicalimpracticability thus represents afinding that remediation to protectivelevels cannot be accomplished from atechnical standpoint, and that theowner/operator will not be required tocontinue to expend resources to meetthe standard.

A determination of technicalimpracticability does not relieve theowner/operator of his ultimateresponsibility to achieve the specificremedy requirement. If such adetermination is made, but subsequentadvances in remedial technology orchanges in site conditions makeachievement of the requirementtechnically practicable, EPA reservesthe authority to modify the permit (if thepermit is still in force) or take otherappropriate action to require attainmentof the standard or other requirement.

1. Interim Measures (Section 264.540)

This section would establish theAgency's regulatory authority to compelpermittees to conduct interim measures.As part of its overall strategy forimplementing the corrective actionprogram, EPA intends to place strongemphasis on using this interim measure

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authority to expeditiously initiatecleanup actions, especially in situationswhere it is clear that such a measurewill be a necessary component of thefinal remedy. The need for interimmeasures should be assessed early inthe corrective action process, as well asin subsequent phases as moreinformation on releases and potentialremedial solutions become known.

Under proposed § 264.540(a), theAgency could require the permittee toconduct interim measures at a facilitywhenever the Agency determines that arelease from a SWMU (or, based on site-specific circumstances, a threatenedrelease) poses a threat to human healthor the environment. Interim measureswill be specified in the schedule ofcompliance, and will generally serve tomitigate actual threats and preventimminent threats from being realizedwhile a long-term comprehensiveresponse can be developed.

Interim measures may encompass abroad range of possible actions. In somecases, such measures will involvecontrol of the source of the release,while in other cases, control of thecontaminated medium, or otherexposure controls, will be necessary.For example, a permittee responsible forcontamination of a public drinkingwater supply may be required to makeavailable an alternate supply of drinkingwater as an* interim measure, until thecontaminated surface or ground watercan be remediated. A permittee couldalso be required, as an interim measure,to initiate a ground-water pump andtreat system to control the furthermigration of contamination, if it weredetermined that further significantdegradation of the aquifer would occurwhile options for the ultimate remedyfor the facility are being studied. Otherexamples of interim measures includefencing off an area of contaminated soilsto prevent public access, or overpackingof drums that are in poor condition toprevent possible leakage.

The Regional Administrator willconsider the immediacy and magnitudeof the threat to human health or theenvironment as primary factors indetermining whether an interimmeasure(s) is required. Proposed§ 264.540(bil-(9) lists factors which theRegional Administrator may consider indetermining whether an interim measureis required. These factors include: (1]The time required to develop andimplement a final remedy; (2) actual orpotential exposures of nearbypopulations or animals to hazardousconstituents; (3) actual or potentialcontamination of drinking watersupplies or sensitive ecosystems; (4)

further degradation of the mediumwhich may occur if remedial action is'not initiated expeditiously; (5) presenceof hazardous wastes or hazardousconstituents in drums, barrels, or otherbulk storage containers that may pose athreat of release; (6) presence of highlevels of hazardous constituents in soilsat or near the surface which maymigrate; (7) weather conditions whichmay cause releases of hazardousconstituents or migration of existingcontamination; (8) risks of fire orexplosion or the potential for exposureto hazardous constituents as a result ofan accident or failure of a container orhandling system; and, finally, (9] anyother situations that may pose threats tohuman health or the environment. Forexample, consideration of high levels ofhazardous constituents in surficial soilsat a facility located adjacent to asurface water body (see § 264.540(b)(6))used as a drinking water source maylead the Regional Administrator toconclude that immediate excavation ofthe contaminated soil or othercontainment measures are needed toprevent a threat to the surface waterwhich could result from runoff after aheavy rain.

Proposed § 264.540(c) would requirethe Regional Administrator to notify thepermittee in writing of required interimmeasures, and would require thepermittee to initiate the interimmeasures as soon as practicable. Insome situations, such as an actualemergency situation, the RegionalAdministrator might require the interimmeasure to be initiated immediately,with little if any formal procedures.More typically, however, the RegionalAdministrator will initiate a permitmodification under either § 270.34 or§ 270.41 as appropriate, to specify therequired interim measure. Section 270.41modification might be used, for example,if installation of an extensive ground-water pump and treat system wererequired. This would be appropriatesince such a requirement would beresource-intensive for the owner/operator, would likely serve as the basisfor a final remedial action at the facilityduring a later decision-making processconducted by the Agency, and wouldindicate a serious concern forconcentrations of contaminants in theground water about which the publicshould receive the extensive notice andcomment opportunities provided by thatprocedure. Conversely, if the interimmeasure were designed to addressproblems of lesser magnitude, theprocedural requirements of the permitmodification proposed today in § 270.34may be sufficient.

The proposed regulations in thissubsection are similar to those in theremoval section of the NCP underCERCLA (see 40 CFR 300.415). In manycases, the Agency expects that neededinterim measures will be undertakenvoluntarily by the owner/operatorwithout the need for permitmodification. In some cases, however,the use of CERCLA removal authoritiesor Section 7003 of RCRA may beappropriate; as in a situation where thepermittee is unwilling to respond quicklyto an exposure problem that merits animmediate response; and where a permitmodification to compel the responsewould cause unacceptable delay. Forexample, this would be the case if highlevels of constituents had migrated fromthe facility and were affecting nearbydrinking water supplies and the owner/operator was unwilling to voluntarilymake available an alternate source ofdrinking water to affected populations.The Agency would first act to protectagainst potential exposures, then act tocompel the permittee to comply withother conditions necessary to protecthuman health and the environment.

Section 264.540(d) indicates theAgency's intent for interim measurestaken at a facility to be consistent withany further remedy that will beimplemented at the facility after fullcharacterizations of the contaminationunder the RFI and selection of the finalremedy under proposed § 264.525.

The Agency has developed guidancefor imposing interim measures underRCRA. Interim Final RCRA CorrectiveAction Interim Measures; OSWERDirective 9902.4, May, 1988. Contact:Tracy Back (202) 382-3122.

As the discussion above indicates,interim measures are one type ofcorrective measure which may berequired under the authority of section3004(u) of RCRA. In considering thestatutory requirements for ademonstration of financial assurance byowner/operators for taking correctiveaction, the Agency evaluated severalapproaches to financial assurance forinterim measures.

In many cases, a requirement todemonstrate financial assurance forinterim measures may serve no usefulpurpose and may actually contribute todelays in facility cleanups. For example,where an interim measure is imposedrequiring removal of barrels containinghazardous constituents (similar to aremoval action under CERCLA) it wouldbe unnecessary to require ademonstration of financial assurance,since compliance would be relativelyinexpensive and could be quicklycompleted.

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In other cases, interim measures couldbe relatively extensive and could beconducted over a period of severalyears. This could be the case, forexample, where a well system must beinstalled to stop a plume ofcontamination from further migration ata highly complex site until a finalremedy could be implemented, or wherea soil treatment system is installedv. hich would require several years toachieve required contaminantconcentration levels. In these kinds ofcases, a demonstration of financialassurance for interim measures will notsubstantially impact the implementationof the interim measures and wouldpromote the Congressional intent ofensuring that adequate funds areavailable to complete the requiredactions. In such a case, requiring ademonstration of financial assurance foran interim measure within 120 days ofthe imposition of the interim measuremay be reasonable.

Another option for addressing thequestion of financial assurance that wasconsidered by the Agency, but wasrejected, would have interpreted therequirement for financial assurance toapply only to final remedial actionsrequired by the Agency. Still anotherpossible reading of the statute mightlead to the conclusion that imposition ofany type of corrective action wouldrequire a full demonstration of financialassurance. The Agency has concludedthat the objective of the correctiveaction provisions, which is to remediateenvironmental problems in anexpeditious manner and the financialassurance objective of ensuringadequate funding for remediation,should be balanced on a case-by-casebasis for interim measures. The Agencyspecifically solicits comments on thisapproach.

. Management of Wastes (Sections264.550-264.552)

1. Overview. In the course ofcorrective action, facility owner/operators will manage a wide range ofwastes, including both wastes that meetthe RCRA definition of hazardous wasteand those that do not. Sections 264.550-264.552 of the proposed regulationswould establish standards for themanagement of these wastes duringcorrective action. Under these sections,wastes that meet the RCRA regulatorydefinition of hazardous waste must bemanaged in accordance with theapplicable standards of 40 CFR parts262, 264, 268, and 269, with certainexceptions (see following discussion oftemporary units). In addition, statutoryland disposal restrictions will betriggered when restricted hazardous

wastes are placed into a land disposalunit, and minimum technologyrequirements will apply to new orreplacement units and lateralexpansions of existing units. Finally,non-hazardous solid waste must behandled according to applicable subtitleD standards, except where the RegionalAdministrator determines thatadditional controls are necessary toprotect human health and theenvironment.

In general, owner/operators will alsohave to comply with all other applicableFederal, state, and local regulations. Thebasic responsibility for complying withany applicable permits andrequirements will be the owner/operator's; however, the EPA or Statepermit writer will consider theserequirements in selecting a remedy andwill take steps to ensure that remediesselected are consistent with otherFederal or State standards.

2. General Performance Standard(§264.550). Section 264.550 proposes ageneral performance standard formanagement of all wastes duringcorrective action. Under this standard,the Regional Administrator may imposeany requirements on the management ofcorrective action waste that s/he deemsnecessary to protect human health andthe environment. This standard appliesboth to solid and to hazardous wastemanaged as part of RCRA correctiveaction requirements. This generalstandard derives from the statutorymandate of section 3004(u) to requirecorrective action; as a .corollary to thisauthority, the Agency is authorized toensure that actions taken to implementcorrective actions do not themselvespose unacceptable threats. EPA istherefore obligated to impose controlson management of wastes, pursuant toremedial activities, as necessary toprotect human health and theenvironment.

EPA believes this generalperformance standard is necessarybecause current regulations governingtreatment, storage, and disposal of solidor hazardous wastes may not beadequate in all situations involvingcorrective action. In particular, manycleanup activities that do not involvetreatment, storage, or disposal ofhazardous waste require special care toprevent release of hazardousconstituents. For example, dredging ofsurface impoundments or excavation ofsoils containing volatile organics canlead to significant releases of hazardousconstituents to the air, potentiallyendangering workers or neighboringpopulations. When such siiuations havearisen in Superfund actions, EPA has

imposed controls on cleanup activities,such as prohibiting cleanup when thewind was blowing in a certain directionor requiring air monitoring and thecessation of activity when a specificlevel was exceeded. Requirements tocontrol air emissions from RCRApermitted unitswhen promulgated, maynot be strictly applicable to certainSWMUs. Proposed § 264.550 would giveEPA the authority to impose suchconditions, or other controls, as part ofcorrection action under section 3004(u).

Section 264.550 proposes generalperformance standards for managementof all wastes during corrective action.Under proposed § 264.550(a), wastesmust be managed in a way that isprotective of human health and theenvironment and that complies withapplicable Federal, State, and localregulations. Facility owner/operatorswill be required to comply with allapplicable regulations in carrying outcorrective action; proposed§ 264.550(a)(2) codifies this requirementas a reminder to owner/operators thatRCRA corrective action permitconditions do not absolve them of otherlegal responsibilities.

However, there may be cases where aState or local law stands as an obstacleto the accomplishment of Congress'purpose in enacting section 3004(u), ordirectly conflicts with regulationsdeveloped under section 3004(u]. EPAbelieves that in such rare cases whereState or local laws could be said tofrustrate the purposes of the statute, acourt might find such laws to bepreempted by RCRA. See, e.g. ENSCO,Inc. vs. Dumas, 807 F.2d.745 (8th Cir.1986). Alternatively, in the case of aState requirement that could jeopardizeimplementation of a remedy, it may bepossible for the State to waive thatrequirement.

3. Management of Hazardous Wastes(§264.551(a)). In many cases, wastesubject to corrective action will meet theregulatory definition of RCRAhazardous waste. A facility owner/operator would be handling hazardouswaste at a SWMU, for example, if itcontains listed wastes disposed ofbefore November 19, 1980, or the wastesfail the characteristic test. Also, releasesfrom hazardous waste managementunits exempted from permittingrequirements, such as wastewatertreatment units or 90-day accumulationtanks, may be hazardous waste eventhough the units in which they aremanaged are exempt from permitting.Similarly, soils and ground watercontaminated with releases of listedhazardous waste will generally besubject to subtitle C standards. Under

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current rules, a contaminated mediumthat exhibits any of the characteristicsidentified in subpart C of part 261 orcontains a listed hazardous waste,including (with certain exceptions) anyconstituent generated by a listed waste(e.g., leachate), must be managed ashazardous waste until it no longercontains any of the waste, is delisted, orfor characteristic wastes, until it nolonger exhibits any of thecharacteristics. Where wastes meetingthe RCRA regulatory definition of"hazardous" are treated, stored, ordisposed of during corrective action,they will be subject (with certainexceptions; see discussion below) to thestandards of 40 CFR parts 262, 264, and268 (or, in the case of air emissions, part269 or the Clean Air Act). Proposed§ 264.551(a) clarifies this point.

Proposed § 264.551(a), however,would also allow the RegionalAdministrator discretion to waive mostprocedural requirements associatedwith closure of hazardous wastemanagement units (subpart G of 40 CFRpart 264) for units created for thepurpose of managing corrective actionwastes. Procedural requirements thatmay be waived include submission andapproval of closure plans, and specifictime frames for submission and reviewof the plan and other activitiesassociated with closure.

EPA believes that the process fordeveloping and reviewing remedies asoutlined in today's proposal, coupledwith the procedures that will befollowed in modifying permits to specifyremedies, provides an equivalent andequally effective means of ensuring thatthe applicable closure and post-closuretechnical requirements are required ofunits that are created and operated forthe purpose of implementing remedies.Were the subpart C proceduralrequirements to remain applicable tothose units, the result would be to havetwo parallel, and essentially redundant(and sometimes inconsistent), processesfor establishing technical requirementsfor remedial units. It should beunderstood, however, that the generalperformance standard for closure (see§ 264 111), and the unit-specifictechnical closure standards could not bewaived, and will be applied to new unitscreated during the remedy.

Waiver of the subpart G procedures isat the discretion of the RegionalAdministrator. In some situations itwould be appropriate to require theowner/operator to follow the subpart Gprocess for closure/post-closure for aunit used in remediation activities. Anexample could be where a unit (such asa tank) is constructed and operated for

the purpose of implementing the remedyfor the facility, but the owner/operatorsubsequently chooses to continue to usethe tank after the remedial activity iscompleted, for other hazardous wastemanagement purposes. Since the tankwould no longer be part of the remedy,the owner/operator would have theobligation to follow the normaladministrative procedures for closure ofthe tank.

a. Temporary Units (§ 264.551(b)).EPA is concerned that some technicalrequirements for units prescribed in thecurrent 40 CFR part 264 regulations maybe inappropriate for management ofhazardous waste during correctiveaction, and may in fact discourageprompt cleanup. The Superfund programhas frequently found it necessary tobuild temporary units to store wastes forshort periods of time before treatment orfinal disposal. In many cases, theAgency has found that full RCRA 40CFR part 264 regulatory standards maynot be necessary for such short-termstorage taking place during the course ofremedy implementation, and that fullcompliance with these standards couldin fact delay cleanup. For example, forsome remedies it will be necessary toexcavate soils contaminated withhazardous wastes and store them in apile for a short time (e.g., a few days orweeks), prior to treatment. Undercurrent RCRA regulations, the pilewould have to comply with the part 264requirements applicable to waste piles,such as minimum technology linerrequirements, ground-water monitoring,and other operating and maintenancerequirements. As another example,tanks will often be used for short-termstorage of hazardous wastes in thecourse of a remedy; such tanks wouldaccordingly be required to have fullsecondary containment. EPA believesthat in many cases applying thesestringent part 264 standards, which aredesigned to ensure adequate protectionfor long-term management of hazardouswastes in such units, would beunnecessary from a technicalstandpoint, as well as counterproductivein many cases. In the above example ofthe temporary pile, a single liner mightbe adequate, with some limitedmonitoring, depending on the nature ofthe wastes, the environmental setting,and other factors: Requiring the pile tomeet full part 264 standards wouldresult in delays in constructing the pile,and increased expense to the owner/operator which could otherwise bedirected to other remedial work, withoutappreciably increased environmentalbenefits. Note that adjustments to -

minimum technology standards

applicable to the pile would have to bedone in accordance with certainstatutory requirements (see followingdiscussion).

Proposed § 264.551(b)(1) provides EPAauthority to modify 40 CFR part 264regulatory design, operating, or closurestandards for temporary units, as longas alternative standards that areprotective of human health and theenvironment and comply with statutoryrequirements are imposed. In the case oftemporary tanks, for example, theRegional Administrator would bemaking a determination generallyanalogous to risk-based variances fromsecondary containment requirements fortanks in § § 264.193(g) and 265.193(g).

The Agency believes that thisapproach to temporary units; that is,adjusting design and operatingstandards for such units on a site-specific basis, is sensible and practicalwithin the context of the correctiveaction process. The process ofexamining and selecting correctiveaction remedies will involve a highdegree of Agency oversight, andremedial decisions will be made inconsideration of a number of site-specific factors. Since remedies can betailored to site-specific conditions, adegree of protection of human healthand the environment equivalent to thegeneric national standards can beachieved, while facilitating thetimeliness and implementability of theremedies.

This provision for temporary unitscould apply to any unit used duringcorrective action, except incineratorsand non-tank thermal treatment units(e.g., pyrolysis units). EPA believes thatmodifications of 40 CFR part 264 designstandards should not be allowed forincinerators and non-tank thermaltreatment units because of thecomplexity of these devices and the highlevel of public concern about theiroperation. Furthermore, the RegionalAdministrator would be authorized tomodify only technical standards fortemporary units under this authority, notperformance standards. For example,secondary containment for tanks mightbe modified in specific situations;however, basic performance standardsrelating to releases to the environment-such as performance standards in the 40CFR part 269 air emissions regulations-could not be modified.

It should be understood that underthis provision for temporary units, onlyrequirements applied solely byregulation, and not directly by statute,may be modified. Statutoryrequirements may be modified only tothe extent authorized by statute.

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Two statutory requirements inparticular may often be applicable totemporary units, specifically, the landdisposal restriction requirements ofRCRA section 3004(d)-(g) and 40 CFRpart 268, and the minimum technologyrequirements of section 3004(o).However, the Agency expects thattemporary units may often be able tomeet the statutory provisions forwaivers from these requirements undersection 3004(g)(5) (for the land disposalrestrictions), and section 3004(o)(2) (forminimum technology requirements). Themajor permit modification associatedwith the selection of remedy wouldprovide the public notice and commentusually associated with a petitionsubmitted by the owner/operator (awaiver of land disposal restrictionrequirements would, however, also bepublished in the Federal Register, asrequired by RCRA section 3004(i)). Inaddition, the statement of basisassociated with -the permit modificationwill summarize, and the supportingAdministrative Record will provide, thedocumentation of the Agency's findingthat the statutory requirements forgranting the waiver have been met.

The Agency believes that waiversfrom these statutory requirements -willoften be appropriate for temporary units,and in some cases may also be essentialto the prompt implementation ofcorrective action. For example, in manycases it will be necessary to placewastes temporarily on the land beside ahazardous waste unit when that unit isbeing excavated; this placement wouldbe an interim step before incineration orother treatment. It has been EPA'sexperience in Superfund that fullcompliance with minimum technologyrequirements (i.e., double liners,leachate collection systems, and ground-water monitoring) in such cases mayoften be unnecessarily restrictive andcould delay cleanup. Instead, in cases ofshort-term storage, something less thanminimum technology-for example, asingle rather than double liner- couldfrequently be fully protective of humanhealth and the environment. TheRegional Administrator could requiredesign standards less stringent than thefull minimum technology requirements,so long as they would ensure (consistentwith the waiver provision of section3004(o)(2)) that the controls will be of anequivalent level of protection for the lifeof the unit.

Similarly, the application of landdisposal restrictions to the temporaryplacement of waste could impedecorrective action in some cases. If therestrictions applied it would beimpossible to store wastes on the

ground while they awaited treatment,because placement on the ground could-not occur before the treatment. The onlyalternative would be to leave the wasteuntreated in place, or to store it in tanksor containers, which in some casesmight cause a delay and add to thecomplexity of the remedy withoutserving public health or the-environment. In such cases, it would benecessary to demonstrate that thepetition standards for the land disposalban have been met, so that suchtemporary placement on the land wouldbe allowed.

In modifying 40 CFR part 264 and part269 design or operating regulatorystandards, and in establishingalternative standards, the RegionalAdministrator would be required toconsider a range of factors, which arelisted in proposed § 264.551(b)(2). Theseinclude the length of time the unit willbe in operation, the type of unit, thepotential for releases from the unit, thetype of waste, hydrogeological and otherconditions at the facility, and thepotential for human and environmentalexposure to releases if they did occur.The Regional Administrator wouldspecify in the permit design andoperating requirements that would applyto the temporary unit and the length oftime it could remain in operation, andrequirements associated with itsclosure. These conditions would besubject to publio notice and comment aspart of the process for approval ofremedy selection.

Today's proposal specifies a time limitof 180 days for temporary units. Thistime period is consistent with theclosure period for a hazardous wasteunit and the "temporary authorization"period in the new permit modificationrule. It is expected that many temporaryunits will be needed for much shorterperiods of time; however, EPA alsorecognizes that in some cases atemporary unit might have to remain inservice beyond the 180-day limit, due tounexpected circumstances. For example,if wastes being stored in a temporaryunit were to be taken to an off-sitefacility, and that facility no longer hadthe capacity or was unwilling to acceptthe waste, it might be advisable tocontinue storing the waste in thetemporary unit for a limited amount oftime (e.g., 30 days). In -such cases, thefacility owner/operator could request anextension. Requests for such extensionswould typically be processed as a ClassI modification, with RegionalAdministrator approval, under permitmodification procedures of § 270.42.Such time extensions for temporaryunits would only be approved -where it

is necessary because of unforeseen,temporary, and uncontroll dcircumstances, and when the owner/operator is actively seeking alternativesto continued use of the unit(s). If the -owner/operator failed to moveexpeditiously to remove the unit, theAgency would deny further extensionsand require the owner/operator toretrofit the unit to meet all applicableSubtitle C design and operatingstandards, or remove the waste andclose the unit.

EPA considered several alternativesin specifying time limits for temporaryunits. One alternative would have beento not specify a generic time limit fortemporary units in the rule, and allowthe Regional Administrator to set permitconditions limiting the active life of atemporary unit on a case-specific basis.This approach would allow moreflexibility in designating such units,recognizing that the amount of time atemporary unit could safely remain inservice may vary significantly,depending on the type of unit, type ofwaste, unit location and other factors.Another approach could have been tospecify a shorter time limit, such as 90days, which would be consistent withthe provision for on-site accumulation ofwastes by generators (§ 262.34).Alternatively, a specified time periodlonger than 180 days (eg., one year) fortemporary units might also beappropriate. EPA specifically requestscomments on its approach to temporaryunits, including suggestions for how"temporary" should be defined.

Today's proposal (§ 264.551(b)(2)(ii))also clarifies that off-site units (i.e., thatare located outside the facility property)will not be treated as "temporary units"for the purpose of managing hazardouswastes generated as part of a remedy orinterim measuie.

In addition, proposed§ 264.551(b)(2)(iii) specifies thattemporary units may only be used fortreatment or storage of wastes thatoriginate within the facility boundary.This would preclude, for example,wastes from a different facility frombeing brought to a temporary unit atanother facility for storage or treatment.However, wastes that were releasedfrom solid waste management units atthe facility, and that subsequentlymigrated beyond the facility property,could be recovered and managed in atemporary unit in the context ofimplementing a remedy. Comment issolicited on these limitations to -thetemporary unit concept.

b. Corrective Action ManagementUnits.(§ 264.551(c); § 264.501). In manycases, corrective action at RCRA

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facilities will address broad areas ofcontamination, which may or may notthemselves contain discrete wastemanagement units. For example, soilssurrounding one or more leaking surfaceimpoundments landfills, or tanks maybe contaminated. In devising a remedy'to address this situation the facilityowner/operator, at the direction of EPA.could consider the contaminated area asa whole and select a remedy that bestaddressed the entire area ofcontamination. In these situations, EPAbelieves that the entire area ofcontamination can properly beconsidered a waste management "unit"under the RCRA regulatory structure.Consequently, proposed J 264.551(c)gives the Regional Administrator theauthority to designate such areas ascorrective action management units(CAMUs).

As indicated in proposed §§ 264.551(c)(1) and (2), designation of-such an areaas a waste management unit will haveimportant implications for themanagement of hazardous waste withinthat area. Specificallyi movement orconsolidation of hazardous wasteswithin these areas will notautomatically trigger the statutory landdisposal restrictions (sections 3004(d)-(g)) or minimum technologyrequirements (section 3004(o)). Landdisposal restrictions are triggered byplacement of a restricted waste in awaste management unit (section3004(k)); minimum technologyrequirements are triggered by thecreation of new or replacement surfaceimpoundments or landfills, or lateral-expansions of existing surfaceimpoundments or landfills (section3004(o)(1)). Consequently, if an area ofcontamination is designated as a unit byEPA during corrective action, hazardouswaste moved within the unit would notbe subject to land disposal restrictions.Similarly, moving hazardous wastesaround inside the unit will not constituteeither creation of a new or replacementunit, or a lateral expansion of anexisting unit; therefore the minimumtechnology standards would not apply.

EPA believes that this approach todefining "unit" in the context ofcorrective action is essential to theimplementation of sections 3004(u) and3008(h) of RCRA, and that it' accuratelyreflects the realities of cleanupactivities. In addressing a broad area ofcontamination, EPA or a facility owner/operator requires the flexibility to movehazardous waste around andconsolidate it without automaticallytriggering minimum technology ortreatment requirements at every turn.For example, a typical remedy at a

corrective action sight might consist oftreatment of the most highlycontaminated soil at an off-siteincinerator, together with on-siteconsolidation and capping of remainingsoil containing hazardous constituentsat low concenatrations. Incineration orother treatment of the less contaminatedsoil might yield few, if any, benefits, andIt might in some cases delay cleanupand increase risk; for example, riskresulting from transportation of wastes.However, in moving the soils forconsolidation, a narrow application ofland disposal restrictions might requireincineration (or other treatment) of thesoil and prohibit the moststraightforward, implementable, and, insome cases, most effective remedy.Similarly, imposition of minimumtechnology requirements will add to thecost of cleanups and may, in somecases, cause delays in implementation,without providing any significantenvironmental benefit.

EPA. believes that its generalapproach to the definition of unit makessense not only within the context ofsection 3004(u) but also for otherremedial action involving waste alreadyin place--such as source control takenin the course of a final cleanup of a unitwhich will not receive waste in thefuture. Where remedial action is takingplace.within an area that has alreadybeen contaminated, there should besufficient flexibility to select effectiveremedies that can be safely and reliablyimplemented. In cleaning up existingcontamination problems, EPA believesthat it will often be unnecessary and -counterproductive to strictly apply tocleanup activities standards that weredesigned to prevent future risks atoperating facilities that will continue toreceive and manage hazardous waste.

In § 264.501, EPA is today proposing adefinition of "corrective action

* management unit," which is intended toclarify the nature and scope of the areaswhich may be given this designation.The definition is as follows:.. *an area within a facility as

designated by the Regional Administrator forthe purpose of implementing corrective actionrequirements of this subpart, which isbroadly contaminated by hazardous wastes,,(including hazardous constituents), and .which may contain discrete, engineered landbased sub-units."

This definition Is intended to placeseveral important restrictions on howCAMUs are designated, andon howhazardous wastes must be managedwithin CAMUs. It should first berecognizedthat it will be the Agency's(or State's) role to define the arealconfiguration of any CAMU at a facility.

This decision should be made -basedupon careful assessment of the extent ofthe contamination of soils, location ofexisting solid waste management units,the remedial objectives for the facility,and other relevant factors. Althoughowner/operators may wish to propose aspecific area as a CAMU, the decisionas to whether designating a CAMU isnecessary and appropriate toimplementing a remedy, and if so; theboundaries of the unit, must rest withthe Agency or the State.

In designating CAMUs, only areaswhere contaminated soils orconcentrated wastes already exist willbe included. Uncontaminated or "virgin"areas of a facility cannot be includedwithin a CAMU. Likewise, two separateareas of contamination could not becombined into one CAMU, since theycould not be considered a single unit.

In some cases, remedial solutions mayinvolve creating new "sub-units," orenlarging existing ones within a CAMU.For example, dispersed, low-levelcontaminated soils might beconsolidated into a smaller, discretelandfill which would then be capped.Similarly, in some cases an effectiveremedial approach could be to removewastes from several small landfillswithin a broad area of contamination,stage them in a waste pile prior totreatment, and dispose of the residualsin a newly engineered "sub-unit." Thus,it is intended that CAMUs may includeone or more land based sub-unitscreated or expanded as part of thecleanup action, as well as pre-existingsolid waste management units.

In specifying that a CAMU maycontain land-based sub-units, theproposed definition is meant to clarifythat non-land based units, such as atank or an incinerator, would not beconsidered part of the CANMU. Thus,while a remedy might involveconstructing a tank treatment system forcontaminated materials within the areadefined as the CAMU, the tanks wouldbe subject to all applicable part 264standards for tanks, and the residualsfrom the treatment systems would alsobe subject to any regulatory or statutoryrequirements that would apply had theCAMU not been designated.

The Agency believes that allowing thecreation of land based sub-units withina CAMU is reasonable and necessary torealizing the basic objective of theCAMU concept; i.e., allowing sensiblecleanup solutions for existingcontamination problems. In essence, aCAMU can be considered to be a large,land-based unit. Remedial actions suchas treating or consolidating wastes, orcreating new land-based units within

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the CAMU, serve In effect to enhancethe environmental performance andintegrity of the unit.

In developing the concept of theCAMU as articulated in today'sproposal, the Agency considered severalalternative approaches. One optionwould have been to only allowmovement of wastes into existinglandfill areas within the CAMU; newland-based units would not beconsidered as part of the CAMU. Thisoption could have caused land disposalban and minimum technologyrequirements to be triggered relativelyfrequently, thus restricting decisionmakers' flexibility to upgrade theseareas of the CAMU, and engineer moreeffective and protective wastemanagement systems. In addition, theoption would likely create substantialdifficulties in defining what constitutednew units within the area of existingcontamination.

EPA also considered options thatwould have significantly broadened theCAMU concept. Once such option wouldhave allowed wastes to be excavated,treated in a non land-based unit (e.g., atank) within the CAMU, and theresiduals redeposited on the landwithout triggering the land disposal ban.A variation of this approach would alsoallow an incineration or other thermaltreatment system to be considered aspart of the CAMU. Yet another optionconsidered would have allowed CAMUsto include land areas at the facility thatwere not already contaminated; suchareas might thus be used as sites forlocating new landfills. Although theseoptions would have offered moreflexibility in designing remedies, theAgency has chosen not to propose suchbroader interpretations of the CAMUconcept, for several reasons. Allowinguncontaminated land to be included aspart of a CAMU (and thus potentiallyallowing it to become contaminated)would have contradicted the overallintent of the CAMU; that is achievingreasonable cleanup solutions forexisting contamination problems. Inaddition, allowing non land-based unitsto be considered part of the CAMUwould, in effect, contradict the notion ofthe CAMU as a type of land-based unit(albeit one that is contaminated andneeds to be upgraded to improve itsprotectiveness), and could havecomplicated the ability to impose thestringent part 264 standards fortreatment units such as incinerators.

It should be understood that, giventoday's proposed definition or any of thealternative approaches described above,several fundamental requirements willapply to CAMI Is. Firstly, land disposal

restrictions will apply wheneverhazardous waste is placed into a CAMUfrom outside its defined area. Inaddition, all waste managementactivities conducted within the CAMUwill be protective of human health andthe environment, will conform to thestandards for remedies proposed in§ 264.525(a), be evaluated in terms of theremedy selection factors of proposed§ 264.525(b), and comply with thecleanup standards of proposed§ 24.525(d). Finally, all decisionsregarding the scope of CAMUs and thenature of remedial activities that will beconducted within them will be subject topublic review and comment during theremedy selection and permitmodification process.

EPA specifically invites comment ontoday's proposed approach to defining,CAMUs, and any alternativeapproaches which may be viable inachieving the remedial goals for which itis intended.

Proposed § 204.551(c)(4) lists thefactors which the RegionalAdministrator will consider inspecifying closure requirements forCAMUs. As with other units created forthe purpose of implementing correctiveaction remedies. EPA proposes to notapply part 264 subpart G proceduralrequirements for closure to CAMUs (seeprevious discussion on closure ofremedial units), in favor of using theremedy selection and permitmodification process that will serve toestablish comprehensively the technicalrequirements for the remedy. Inaddition, under today's proposal, thespecific technical standards for closureand post-closure (e.g., type of cap, scopeof post-closure ground-watermonitoring) of CAMUs would bedetermined through the corrective actionprocess rather than the unit-specifictechnical closure standards of part 264.

Technical requirements for closureand post-closure of CAMUs, therefore,will be established on a site-specificbasis. The specific requirements forCAMU closure/post-closure must bedesigned to achieve the generalperformance standard of § 264.551(c)(5).This standard is essentially the same asthe performance standard for closure insubpart G (see § 24.111). In addition tothis general standard, the RegionalAdministrator will use the decisionfactors specified in § 264.551(c)(4) indetermining the specific closure andpost-closure requirements that areappropriate for the CAMU to ensure thatthe general performance standard ismet. These decision factors will includeconsiderations of waste and unit andenvironmental characteristics, as well

as the potential for exposure tocontaminants should future releasesoccur.

This approach to determining closure/post-closure requirements for CAMUs Isintended to provide flexibility for theregulatory Agency in setting appropriatestandards specific to the site conditions,while also ensuring that adequate long-term controls are imposed for anywastes remaining within the CAMU.This approach is also consistent withthe general process for definingremedies and for management of wastesas established in proposed § § 264.525and 24.550-552.

EPA considered other approaches forprescribing closure/post-closurerequirements for CAMUs. One approachwould have been to adopt a set of morespecific requirements that would beapplied generically to all CAMUs. Thisapproach would have been similar tothe current RCRA regulations forclosure/post-closure of conventionalhazardous waste units (e.g., tanks orwaste piles). This approach wasrejected, however, for two reasons. First,the closure requirements for hazardouswaste units are designed to apply todiscrete, engineered units that must alsocomply with specific design andoperating standards under RCRA. Incontrast, CAMUs will typically bebroad, contaminated areas that maycontain discrete or non-discrete "subunits" of varying types andconfigurations. It would therefore beimpractical to specify generic nationalstandards for a class of units that willbe of such diversity, and within which itwill make sense to apply differentclosure techniques to different areas orsub-units of the CAMU.

The second reason for not applyinggeneric national standard to closure ofCAMUs relates to the nature of thecorrective action process. Undercorrective action, the Agency hasconsiderable control over the technicaldecision-making process, and cleanupproblems at facilities are typically .subjected to direct Agency review andoversight. In contrast, the closureprocess under RCRA typically involvesreview and approval of owner/operatorplans against established regulatorystandards. EPA believes that the greatercontrol over technical decisions that isprovided under corrective action allowsa more site-specific tailoring of closurerequirements based on a thoroughknowledge of site conditions.

4. Management of Non-HazardousSolid Wastes (§ 264.552). In other cases,wastes addressed under correctiveaction will not meet the specific RCRAdefinition of hazardous waste. Many

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wastes that do not meet the RCRAregulatory definition of hazardouswastes contain varying concentrationsof hazardous constituents that, if thewaste is improperly disposed of, couldbe released to ground water, surfacewater, soil, or air. The goal of correctiveaction is to protect human health andthe environment by removing thesecontaminants from the environment, andcontrolling the source of the release-even if the waste from which the releaseoriginated does not meet the regulatorydefinition of hazardous.

Proposed 204.552 states that non-hazardous wastes handled duringcorrective action must be handled inaccordance with any applicable subtitleD standards. The Agency is in theprocess of developing morecomprehensive regulations undersubtitle D, and will continue to examinein that context issues relating to theapplicability of those regulations to themanagement of solid wastes undertakenas part of subtitle C corrective actions.

n addition, the proposal provides theRegional Administrator authority, undercertain circumstances, to impose morestringent standards.than subtitle D. Forexample, a specific waste might not belisted as hazardous, but it might have ahigh concentration of specific hazardousconstituents, or it might be similar incomposition to a listed waste. In suchcases, the Regional Administrator couldimpose subtitle C standards orstandards that were protective given thecircumstances at the site andcharacteristics of the waste wherenecessary to protect human health andthe environment even though the wastedid not technically meet the definition ofhazardous waste.

K Required Notices (Section 264.560]1. Notification of Ground-Water

Contamination. Proposed § 264.560[a)would require the permittee to notifyEPA and any persons who own or resideon land adjacent to the facility inwriting within 15 days when s/hediscovers that hazardous constituentsorigins ting from a SWMU at the facilityhave migrated beyond the facilityboundary in concentrations that exceedaction levels.

Action levels are defined in proposed§ 264.521 of today's proposal, and arediscussed in detail in section VLE of thispreamble; therefore, they are notdiscussed in detail here. However, thereader should note that action levels areestablished using conservativeassumptions to protect human healthand the environment. Concentrationsexceeding action levels will notnecessarily result in adverse effects.Short term exposures to releases above

action levels may often not represent athreat to human health or theenvironment since action levels arederived using long-term exposureassumptions. In fact, in some casesconstituents at or above action levelswill not ultimately require activeremediation.

This notification requirement islimited to situations in which theadjacent land can reasonably bedetermined to overlie the contaminatedground water given current knowledgeof the direction and rate of the ground-water flow.

EPA believes that it is appropriate torequire such notification in order toprovide adequate awareness for personswho are, or who could potentially beexposed to the contaminated groundwater. It is possible that residents near afacility could be using water from wellsthat have become contaminated fromthe facility in such cases, prompt noticeto the individual would be an essentialpart of the response action.

The Agency may require the permitteeto initiate an interim measure to addressoff-site ground-water releases virtuallyimmediately, including making availablean alternative drinking water supplywhen drinking water supplies havebecome contaminated. On the otherhand, the Agency may ultimately decide,based on further study, that no furtheraction will be necessary. Such might bethe case where the ground water ishighly saline, and not usable fordrinking. As explained earlier in thispreamble, the actual response actionthat may be required when ground-water contamination is identified will bedetermined by a variety of site-specificfactors. In any case, an earlynotification that an action level hasbeen exceeded will alert the adjacentresident or owner to the potentialproblem and will allow their informedcomment on further permitting actionstaken at the facility if they have specialconcerns. EPA solicits coment as towhat alternative mechanisms orapproaches could or should be requiredto alert potential users of ground waterthat contamination has occurred from afacility.

2. Notification of Air Contamination.Proposed § 264.560(b) would require thepermittee to notify, in writing, EPA andany residents or other individuals whomay be exposed to air emissions fromSW IUs above action levels. Thisproposed notification requirementwould apply when there is exposure in aresidential setting, or other situationwhere long-term exposure to the airemissions from the facility canreasonably be assumed. This isconsistent with the overall approach to

corrective action for air releases (asdiscussed in section VIE of thispreamble).

This notification requirement for airwould also be triggered when residencesor activities that could resultrin long-term exposures become established nearthe facility after the initial releaseinvestigations have been conducted andare within an area whereair emissionshave been found to exceed action levels.Permittees whose remedialinvestigations have confirmedsubstantial air emissions migratingbeyond their property limits have acontinuing responsibility to identify andprovide notice whenever such exposuresituations occur. If concentrations ofhazardous constituents in air beyond thefacility boundary are found to be -

causing actual exposure problems ofconcern, the Regional Administratormay require the permittee, in addition tothe notice requirement, to institute aninterim measure to reduce the threat.For example, s/he could require theinstallation of a floating cover on a-surface impoundment for the purpose ofreducing the surface area of theimpoundment available to allow theescape of hazardous constituents to air.In many cases the release to air will bereduced or eliminated during the courseof remedial activities at the facility. Forexample, a permittee may be required toexcavate and treat wastes contained inthe SWMU or to cover the SWMU witha cap.

EPA solicits comments on whatalternative mechanisms or approachescould or should be required to alertpersons who may be exposed byreleases of hazardous constituents intothe air from RCRA facilities.

3. Notification of ResidualContamination. Under the regulatoryauthority proposed in J 264.560(c), theRegional Administrator may require thepermittee to provide notice wheneverhazardous wastes (including hazardousconstituents) are left in place in thesubsurface at the facility. Thisrequirement would apply whetherhazardous wastes or hazardousconstituents left in the subsurface arecontained in a discrete unit or diffusedthroughout subsurface soils. The noticewould consist of a notation in the deedto the facility property, or a notificationvia some other instrument used by theState if the instrument is routinelysearched during the course oftransferring ownership of property.When such a notice is required, thenotice must clearly indicate the types,concentrations, and locations ofhazardous wastes or hazardousconstituents that remain at the property.

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EPA believes that the Agency'sauthority to allow owner/operators tocertify completion of their corrective'action responsibilities and, in somecases, close or transfer ownership of the.property while hazardous wastes remainin place in the subsurface isaccompanied by a responsibility toensure that future owners of theprbperty do not inadvertently act in away that could result in harmfulexposures to the residual contamination.This could occur, for example, when afacility in an area where mixed landuses are common (e.g., residential andlight industrial uses) is closed inaccordance with applicable regulationsand ownership of the property istransferred several times over thecourse of a few years. If notice is notprovided in the property deed, a newowner could be unaware of its previoususe for hazardous waste management.Inadvertently, the new owner could theninitiate construction or other activitiesin a manner or at a location wheredisturbance of the subsurface couldresult in potentially harmful exposures.For example, by digging a foundation ina certain location, the owner mightunearth an old solid waste managementunit, and in doing so damage anyengineering controls designed to preventreleases from the unit. One of the mostlikely situations in which residualcontamination would remain at theproperty is where facilities have largeareas of contaminated soils deep in thesubsurface.

The residual contamination noticerequirement proposed today isanalogous to the existing requirementcontained in 40 CFR 264.119 that facilityowner/operators place a notice in thedeed (or other instrument normallyexamined in title searches) within-60days after the first and the lasthazardous waste units at the facility arecertified closed in conformance with theapproved closure plan, in compliancewith subpart G standards. This notice isrequired in recognition that post-closurecare may need to be instituted for someunits (or, in the case of corrective action,areas of contamination) wherehazardous wastes remain in place. Untilthe term of the final facility permitexpires (i.e., all closure, post-closure,and corrective action responsibilities atthe facility have been fulfilled), thepermit responsibilities shift to any newowner or operator who assumes controlof the property. After the final permithas expired, the Agency believes thatprospective purchasers of the propertyshould be made aware of the past use ofthe property, legal restrictions imposedor its future use, and the location and

details of any residual contamination onthe property which could influencedecisions of the new owner concerningallowable future uses.. In some cases it may be appropriate

to require the owner/operator to placethe deed notice well before expiration ofthe permit. For example, a selectedremedy may involve capping (thus,leaving in place) units or contaminatedsoils in an area of the facility. This partof the remedy could be implementedwell before all other corrective actionrequirements at the facility arecompleted. In this situation, it may beappropriate to require the deed notice aspart of the remedy selection permitmodification, thus providing notice toprospective purchasers if ownership ofthat portion of the facility were to betransferred at some point before thepermit is terminated.

L Permit Requirements (Sections270.1(c)-270.60(c)(3))

1. Requirement to Maintain a Permit( 270.1(c)). Today's proposal wouldrequire an owner/operator to operateunder a valid RCRA permit for the entirelength of time required to comply withrequirements of part 264, subpart S or Fcorrective action. This requirementwould be established by adding to theexisting language of 40 CFR 270.1(c),which defines the period during whichowner/operators of RCRA treatment,storage, or disposal facilities mustmaintain a permit. Where correctiveaction is required under a permit, apermit will be necessary for the durationof the activities regardless of whetherother waste management activities arecontinued at the facility. For example, ata storage or treatment facility notrequired to have a post-closure permit,the permittee may decide to ceaseoperation prior to or at the end of theterm of his/her permit and close thefacility according to applicableregulations, rather than reapply foranother permit term. If that owner/operator had any remaining correctiveaction responsibilities at the facility,today's proposal would require that thepermit be maintained even after thehazardous waste units are closed, untilall subpart S or F requirements havebeen terminated.

This provision is also likely to haveimportant implications in situationsinvolving transfer of property for whichcorrective action obligations undersubpart S have not been fullydischarged. An example would be afacility with a solid waste managementunit causing a release to ground waterthat had been issued a permit with aschedule of compliance requiring theowner/operator to investigate the

release and ultimately implement aremedy, where the owner/operatorsubsequently sold the portion of thefacility property upon which the solidwaste management unit was located. Inthis and other situations, EPA believesthat transfer of corrective actionresponsibilities to new property ownersis critical to ensuring that RCRA facilityowner/operators are not able to evadecleanup requirements by simply sellingthe contaminated portions of theirfacilities. If such a transfer of ownershipdid not also involve a transfer of legalresponsibility for complying withcorrective action permit conditions, theeffect could be a substantial number ofnew Superfund sites that could nolonger be addressed under RCRA. EPAdoes not believe that Congress intended,in enacting section 3004(u), to create orto allow such an evasion of cleanupresponsibilities. The Agency, therefore,intends to require new owners ofproperty at which corrective actionresponsibilities have been identified inthe permit, to obtain a permit andcomply with the corrective actionrequirements specified in the permitThose corrective action requirementscould, alternatively, be specified andenforced through an administrativeorder (e.g., under section 7003).

EPA specifically solicits comment oncleanup responsibilities followingtransfer of property. As an alternative tothe approach outlined above (underwhich the new owner/operator becomesresponsible for cleanup) EPA considereda provision that would require theformer owner/operator to maintaincorrective action responsibility. Undersuch an approach, it is likely that theformer owner/operator's responsibilitieswould be limited to those off-siteactivities (i.e., activities on thetransferred property) that the newowner/operator allowed him toundertake. The former or new owner/operator's responsibility to undertakecorrective action on transferred propertymay also be dependent upon the statusof corrective action activities at the timeof transfer. For example, a transfer ofproperty before permit issuance wouldprobably not implicate section 3004(u)responsibilities. Transfers occurringafter the permit is issued but beforeremedy implementation or interimmeasures have begun (e.g., sometransfers during the RFI and CMSstages) should perhaps be subject todifferent rules than transfers occurringafter remedial activities have begun.

After consideration of public commenton these questions, the Agency intendsto develop a provision governing

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corrective action responsibilities uponproperty transfer for the final rule.

2. Schedules of Compliance forCorrective Action {§ 270.34). Section3004(u) of RCRA specifies that "Permitsissued under section 3005 shall containschedules of compliance (where suchcorrective action cannot be completedprior to issuance of the permit) * * *."Section 270.34 of today's proposal wouldcodify this requirement and provides aregulatory framework for itsimplementation.

Schedules of compliance will be amajor tool for imposing corrective actionrequirements because, in most cases, thecomplex and sequential nature of thecorrective action process will not allowits completion prior to permit issuance.The provisions of today's proposedregulation, including plans and reportsfor remedial investigations andCorrective Measure Study and remedies,will, for the most part, be implementedthrough a schedule. Consequently, thequality and detail of the permit scheduleof compliance are extremely important ifthe objectives of the corrective actionprogram are to be achieved.

In addition to codifying a statutoryrequirement, proposed § 270.34(a) statesthat a corrective action schedule ofcompliance shall ".* * contain termsand conditions deemed by the Directorto be necessary to protect human healthand the environment." This provision isderived from the basic statutoryobjective of RCRA (protection of humanhealth and the environment; see section1303 of RCRA), and is a logical .extension of statutory language found insection 3004(u) which allows cleanup tobe implemented through a schedule ofcompliance specified in the permitwhere corrective action cannot becompleted prior to permit issuance. TheAgency believes that inclusion of thislanguage in proposed § 270.34 isdesirable to clearly assert the authorityof the Region or State to includerequirements in the corrective actionschedule of compliance to addresscontingencies that arise during thecorrective action process and that arenot specifically contemplated by today'sproposed regulation, but that must bedealt with in order to protect humanhealth and the environment.

Proposed § 270.34(b) would requirethe permittee to comply with theschedule imposed in the permit, andprovides a time frame for notifying theAgency when s/he finds that suchcompliance will not be possible. Whenthe permittee will not be able to meetthe schedule, s/he must initiate a permitmodification underprovisions of therecently issued permit modification rule(September 28, 1988, 53FR 37912,.

discussed below). Section 270.42(f) ofthis rule establishes procedures forowner/operators who wish to initiatepermit modifications where the desiredmodification has not been specificallylisted as either a Class I, II, or IIImodification. These procedures arediscussed in detail in the permit,modification rule and its preamble. Inaddition, a brief explanation of theprovisions of the proposed rule isincluded later in this discussion.

In § 270.34(c) the Agency proposes aspecific procedure for modifyingcorrective action schedules ofcompliance for the purpose ofimplementing subpart S requirements.The proposed § 270.34(c) mechanism isimportant for two reasons. First, sincepermits containing corrective actionschedules of compliance will often beissued before complete information hasbeen gathered as to the extent andnature of any releases at the facility,and, therefore, the corrective actionnecessary to address such releases, itwill generally not be possible toadequately predict (and thus specificallyprovide for in the schedule) allrequirements and contingenciesnecessary to develop and implementsuch corrective action at the facility.Therefore, it may often be necessary forthe Agency to modify the schedule ofcompliance to provide for new actionsor to make mid-course changes toprovisions specified in the originalschedule. Secondly, this modificationprovides a mechanism to resolvedisputes which may arise between thepermittee and the Agency concerningthe scope or meaning of conditions inthe schedule of compliance when thosedisagreements cannot be resolvedthrough less formal means. (Thepotential use of this modificationprocedure for dispute resolution isdiscussed in more detail later in thissection of the preamble.)

It should be understood that the§ 270.34(c) procedure will be appliedonly in modifying corrective actionschedules of compliance; it will not beused to modify terms or conditions ofthe permit that are outside the scope ofthe schedule. Given this narrowerapplication, a modification madeaccording to § 270.34(c) would notconstitute reissuance of the permit.

It is the Agency's objective in creatingthis modification process for correctiveaction schedules of compliance toensure that such actions areimplemented expeditiously, whilepreserving the permittee's due processrights, and ensuring adequate publicparticipation.

The procedures proposed formodifying schedules of compliance

using this proposed authority are foundin § 270.34(c) (1)-{5); there are fewerprocedural requirements for thismodification than for a majormodification initiated under the currentauthority of 40 CFR 270.41. Underproposed § 270.34(c)(1), the Directorwould notify the permittee in writing ofthe proposed permit modification. Thisnotification would include a descriptionof the exact change(s) to be made to thepermit and an explanation of why thechange is needed; it would also indicate'the date by which the Director wouldhave to receive any comments on theproposed modification. In addition, thenotification would indicate whether anysupporting documentation is availablefor review. Further, the notificationwould include the name of the Agencycontact designated to receive comments.At the same time, the Director wouldpublish a notice of the proposedmodification in a locally distributednewspaper (§ 270.34(c)(2)), providenotification to individuals on the facilitymailing list, and place a notice in theinformation repository being maintainedfor the facility, if the permit requiredthat a repository be established. Each ofthese notifications would contain all ofthe information included in the notice tothe permittee. The comment periodprovided would extend for no fewerthan twenty days after publication ofthe newspaper notice (or, for thepermittee, twenty days after receivingthe written notification if the noticewere received later than the date of thenewspaper notice publication).

If the Director does not receivewritten comments on the proposedmodification, the modification willbecome effective five days after theclose of the comment period. S/he willthen notify the permittee and individualson the facility mailing list that themodified permitis in effect, and willplace a copy of the modified permit inthe facility's information repositorywhere such a repository is maintained.

If written comments on the proposedmodification are received, as providedin § 270.34(c)(4), the Director will makea final determination as to what, if any,changes should be made to the.modification. This determination shouldgenerally be made within 30 days afterthe end of the comment period. In somecases, however, it may not bepracticable for the Director to make thedetermination within that time frame;this would not affect the legal validity ofthe modification. When thedetermination has been made, theDirector will provide notice to thepermittee In writing and to the publicthrough a notice in a local newspaper,.of

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the final decision on the modification.The notice will include an explanationof how comments received wereconsidered in the final decision, anindication of the effective date of themodification (no later than fifteen daysfollowing the notification), and a copy ofthe final modification. EPA believes thatthe abbreviated § 270.34(c) modificationprocedures will strike an appropriatebalance in most cases between thepublic and government's interest inensuring expeditious remediation ofharmful situations, and the permittee'sdue process rights.

It should be understood that theprocedure outlined above is a minimumprocess, and does not precludeproviding additional steps oropportunities for review and comment.For example, the Director could conducta public meeting during the commentperiod, if it was determined to beappropriate in addressing concerns ofthe permittee or the public, or both. Inother cases, the comment period mightbe extended for some period to allow formore thorough review or comment.Moreover, as noted later, the burdenimposed by some changes may warrantthe more extensive process provided forin § 270.41.

Section 270.34(c)(5), as proposed, doesnot provide for administrative appealsof modifications to corrective actionschedules of compliance that are madeunder the procedures of § 270.34. Theadministrative appeal process can bequite lengthy; experience with RCRApermit appeals has been that appealdecisions may often take one year ormore. If an owner/operator's appeal isdenied, s/he then has some recoursethrough judicial appeal proceedings.Thus, the proposed § 270.34(c)modification process may beadvantageous in situations wheredisputes between the Agency and theowner/operator will be most effectivelyresolved by reaching a final Agencyaction expeditiously (see discussionbelow on dispute resolution). Theabsence of an administrative appealprocedure will not affect the owner/operator's right to judicial appeal ofmodification decisions.

When initiating modifications tocorrective action schedules ofcompliance, the Director will decide ona case-by-case basis which modificationprocedure-i 270.34(c), or a majormodification under § 270.41--isappropriate. A number of factors mayinfluence this decision. Since the§ 270.34(c) procedure is less complexadministratively and should takesubstantially less time to makemodifications effective, it is anticipated

that the process will be used formodifications that are relatively routineand do not include very large additionsor changes to the requirements alreadyspecified in the schedule. An examplemight be a requirement to increase thefrequency or methods used for ground-water sampling. On the other hand,some Director-initiated modifications,because of the nature, scope, oranticipated resource burden ofcomplying with the new requirement,may be more appropriately handled as amajor modification under § 270.41. Oneexample of such a situation is the permitmodification for specifying the remedy(see proposed § 264.526); the ruleexplicitly requires the majormodification under § 270.41 in thesesituations.

In addition to the relative magnitudeof the requirement(s) being imposedthrough a modification, other factorssuch as timing and public participationconsiderations may affect decisions asto which type of permit modificationshould be used. For time-critical actions,such as might be the case for one ofseveral types of interim measures, the§ 270.34(c) modification would likely bemost appropriate, since the § 270.41process can take a number of monthsbefore the modification requirementsare effective. Likewise, for imposingrequirements that are especiallysensitive or controversial from thecommunity's perspective, majormodification procedures, which allowmaximum public input Into thesubstance of the permit modification,could be most fitting.

The two types of modificationsdiscussed above also have differentlegal conclusions, which will also be afactor in the decision as to which onemay be more appropriate The proposedmodification under § 270.41 is subject toadministrative appeal. It is subject tojudicial review only after the appealprocess has been completed. (Permitappeal procedures are described in 40CFR part 124.) As discussed earlier, the§ 270.34(c) modification would not besubject to administrative appeal. Whenit is apparent that a disagreementbetween the permittee and the Agencyover corrective action requirementscannot be resolved outside the judicialprocess (such as might be the case indealing with a recalcitrant owner/operator), this type of modificationwould likely be the most direct andtimely means of reaching suchresolution.

The need for flexibility in proceduralrequirements for initiation ofmodifications to corrective actionschedules of compliance is supported by

an analysis completed for owner/operator initiated permit modifications.EPA issued a rule on September 28,1988, concerning owner/operator-initiated permit modifications, whichwas the result of a regulatorynegotiation effort involving EPA,industry, States, and public interestgroups (see § 270.34 schedules ofcompliance for corrective action). In thisrule, the Agency recognized thatsituations in which permittees requestpermit modifications represent acontinuum of potential impacts on thepermittee, the public, and theenvironment, which, in turn, warrant acontinuum of procedural requirements.The rule does not alter major permitmodifications under § 270.41. However,for permittee-requested permitmodifications (under a new § 270.42),the rule establishes a permitmodification classification system, witheach modification defined as eitherClass I, H, or Ill. Proposed Class IIIpermit modification procedures aresimilar to the existing proceduralrequirements for a major modificationinitiated by the Director under § 270.41(additional public meetings are requiredin the Class IIl procedures). Class IIprocedures are somewhat lessextensive; and Class I modifications,which are of a limited nature, generallydo not require formal Agency approval.

Today's proposal in § 270.34(c) formodifying corrective actionschedules ofcompliance reflects a balance betweenreasonable public participation and theAgency's need for flexibility inprocedural requirements for permitmodifications similar to that affordedowner/operators in the recent permitmodification rule. The relativelystreamlined process associated withproposed § 270.34(c) will not onlyreduce the administrative requirementsimposed on the Agency, but will alsominimize delays in implementation ofnecessary corrective actionrequirements in appropriatecircumstances.

It is important to note that for thepurposes of this provision (as well as allother provisions of the regulationproposed today), any plan submitted bythe permittee pursuant to a schedule ofcompliance and approved by theDirector becomes an enforceable part ofthe schedule. Accordingly, modificationsto such plans will be required to followthe appropriate procedures of § 270.41,270.42, or 270.34(c). In addition, suchplans are subject to enforcement underRCRA section 3008(a).

As indicated earlier in this discussion,the Agency believes that the proposed§ 270.34(c) modification procedure will

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be used in the case of disputes whichmay arise between the permittee andthe Agency. In practice, the Agencypresumes that the permittee and theDirector will be able to resolve mostissues that arise during the course ofcorrective action without resorting tothe procedures of § 270.34(c). Forexample, disputes may arise over thescope of a remedial investigation andhow many monitoring wells may need tobe installed, or the appropriate soilsampling procedure. The permitmodification proposed in § 270.34(c)might be used in this case, althoughgenerally such issues can be resolvedinformally by technical staff from bothsides, or through the use of an alternatedispute resolution process (described insection VI.L of this preamble). However,in recognition that cases may arise inwhich no agreement is possible, theAgency is persuaded that it needs theregulatory authority to modify thepermit, as necessary, to specifyrequirements the permittee must fulfill,and to offer both the public and thepermittee an opportunity for formalcomment on the proposed changes.

Where situations identified by theDirector are determined by him/her torequire immediate action to protecthuman health and the environment,there may be insufficient time toundertake a permit modification evenunder the relatively streamlinedprocedures proposed in § 270.34(c). Insuch cases, the Director may take actionunder the removal authority provided inCERCIA section 104 or require actionunder CERCLA section 106 or RCRAsection 7003.

3. Conditions Applicable to AllPermits (§ 270.30(1)(12)). Under§ § 270.30(l) (1)-(11) of 40 CFR part 270,subpart C, the Agency has promulgatedregulations that specify reportingrequirements- applicable to all RCRApermittees. These permit conditions fallinto two broad categories. The firstcategory covers those situations inwhich a permittee must give notice tothe Director of changes affecting thepermit conditions (e.g., planned physicalalterations or additions to a permittedfacility). The second includes thosereports typically required of allpermittees (e.g., manifest discrepancyreports, biennial reports, etc.). Reportingrequirements contained in § 270.30 maybe incorporated into the permit eitherexpressly or by reference.

Today, EPA is proposing to add a newreporting requirement under § 270.30(1)relevant to the submittal of informationpertinent to subpart S corrective actionrequirements. Specifically, proposed§ 270.30(l)(12)(i) would require the

permittee to submit information on anyadditional solid waste managementunit(s) (SWMU) discovered at any timeduring the term of the permit within 30days of the discovery of this unit.Further, it would require the permittee tosubmit information on newly discoveredreleases of hazardous wastes orhazardous constituents from previouslyidentified or newly discovered SWMUsat the facility within 20 days ofdiscovery of the release(s).

Currently, EPA or an authorized Stateidentifies all SWMVUs at RCRA facilitiesduring the RCRA Facility Assessment(RFA) prior to permit issuance. Inaddition, § 270.14(d) requires the owner/operator to identify SWMUs as part ofthe facility's part B application. TheAgency realizes, however, thatadditional SWMIUs and releases may bediscovered at any time following permitissuance. Therefore, today's proposalrequires the facility owner/operator toprovide new data relating to SWMUsand releases from SWMUs during thelife of the permit.

Under § 270.30(l)(12)(i)(A), thepermittee would be required to submitthe following information on each newlyidentified SWMU within 30 days ofidentifying the SWMU: (1) Location; (2)type (e.g., landfill, storage tank); (3)general dimensions; (4) operatinghistory; (5) specification of all hazardousand/or solid wastes that have beenmanaged in the unit (if available); and(6) all available data pertaining to anyrelease of hazardous waste (includinghazardous constituents) to any mediafrom the unit. The location of the unitmay be indicated on the topographicmap submitted by the facility on its partB permit application in accordance with§ 270.14(b)(19) of 40 CFR, or may besubmitted on a topographic map ofcomparable scale that clearly indicatesthe location of the unit in relation toother SWMUs at the facility. These dataare the same as those now required inthe part B application under 40 CFR270.14(d). (See Second Codification Ruleof December 1, 1987, 52 FR 45788.)

Based on the information supplied bythe permittee under § 270.30(l)(12)(i)(A),EPA would require, as necessary (underproposed § 270.30(l)(12)(i)(B)) samplingand analysis data for the purpose ofdetermining whether releaseswarranting further investigations haveoccurred. Further investigations orcorrective measures as necessary wouldbe imposed by amending the existingschedule of compliance or by initiating apermit modification as provided in§ 270.34, depending upon the extent ofthe change needed to cover necessarycorrective action.

Proposed § 270.30(l)(12)(i)(C) wouldrequire the permittee to identify newlydiscovered releases from newlydiscovered SWMUs or from SWMUswhere no release had occurred at thetime of permit issuance. Informationsubmitted would include the following:(1) The type of unit and its location,clearly identified on a facility map; and(2) available data pertaining to therelease, including potential exposurepathways, controls already imposed toaddress the release, and action plannedfor further cleanup. The permittee wouldbe required to submit this informationwithin 20 days of discovery.

EPA is persuaded that theserequirements are necessary to ensurethat both the statutory requirements ofsection 3004(u) and Congressional intentare satisfied. (See e.g., S. Rep. No. 98-284, 98th Cong. 1st Sess., 32 (1983).) The-requirement for corrective action is acontinuing one, applying not just toreleases that have occurred prior topermit issuance, but also to any releasesthat occur after permit issuance.Without such requirements, the Agencymight have to wait until the time ofpermit review or reissuance (in somecases as long as ten years) before newlydiscovered units or releases could beaddressed in the permit. Including theserequirements in today's proposal willallow the Director to learn of a releaserequiring remediation in a timelymanner.

4. Information Repository (§ 270.36).Proposed § 270.36 would provide theDirector authority to require in thepermit that the permittee establish aninformation repository. The repositorywould allow interested parties access toreports, findings and other informativematerial relevant to ongoing correctiveaction activities at the facility. Arepository would generally be requiredwhere the RCRA site is similar to siteslisted on the NPL under CERCLA interms of the magnitude of contaminationand potential for exposure to hazardouswastes.

As provided by § 270.36(b), theinformation repository would contain allpublic information that the Directordetermines to be relevant to publicunderstanding of corrective actionactivities at the facility (i.e., materialdetermined to be confidential businessinformation would not be included). Forexample, copies of RFI plans and reportsand CMS plans and reports.wouldgenerally be included in the repository.Background material that would alsotypically be maintained in the repositorywould include copies of relevant RCRAregulations and'press releases.

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The repository would be located at alocal public library, town hall, publichealth office, EPA Regional or Stateoffice, or another public location withinreasonable distance of the facility. Ininstances where this is not feasible dueto the remote location of the facility, forexample, the Director would require thatthe repository be established andmaintained at the facility. Regardless ofthe location, however, interestedpersons must be allowed reasonableaccess to the repository. For example, itmay be appropriate to require a facilityto provide additional hours of access(e.g., beyond normal business hours),depending, among other things, on thedegree of public interest in correctiveaction activities at the facility and thetiming of public meetings or hearings.The Agency solicits comment on whereand when the information repositoryshould be required.

The Director would specifyrequirements that the permittee mustsatisfy in informing the public of theexistence of the information repositoryin the permit schedule of compliance.(See proposed § 270.36(d).) At aminimum, the Director would require thefacility owner/operator to notifyindividuals on the mailing list of therepository's establishment. S/he mightalso be required to provide public noticein a local newspaper. An EPA contactperson to whom comments can besubmitted will be identified.

The information repository proposedtoday is similar to the repositoryestablished at CERCLA sites.Experience under CERCLA has shownthat the public is frequently concernedabout nearby remedial activities andthat this interest is effectively served bya repository. Without such a repository,the burden would be on citizens tolocate and contact the appropriateofficials knowledgeable about the site inRegional EPA or State offices.

There are two major differencesbetween the information repositories intoday's proposal and the repositoriesincluded in the CERCLA program. First,information repositories are required forall CERCLA sites whereas they will berequired for RCRA sites only asdetermined to be appropriate by theDirector. In making such adetermination, the Director wouldconsider the extent of contamination,the scope and complexity of theremedial action, and the degree ofpublic interest. Second, designatedinformation repositories under CERCLAgenerally house the administrativerecord for CERCLA actions. Under theRCRA permitting program,administrative records, which provide

documentation for the basis of EPA'sdecisions and other parts of the record,are maintained by EPA Regional offices(or authorized States) at the location ofthe Regional office. Because the RCRArecord is kept elsewhere, where it isavailable for public inspection, theAgency does not believe it is necessaryto duplicate the entire administrativerecord for RCRA sites at informationrepositories.

5. Major Permit Modifications(§270.41(a)(5)(ix). Section270.41(a)(5)(ix) of today's proposalwould add a new provision to the majorpermit modification requirementsallowing the Agency to reopen a permitfor good cause to modify a permit forreasons arising from corrective actionrequirements under subpart S of 40 CFRpart 264. The Agency would use thisauthority to modify permits after aremedy has been selected underproposed § 264.525, or to recommencecorrective action after a no-actiondecision had been made under § 264.514.In addition, the Agency might use thisauthority to begin corrective action afternotification of a new SWMU or a newrelease under § 270.30(1)(12). TheAgency believes that it already has theauthority to modify permits in thissituation under § 270.41(a)(2), whichallows it to modify permits when newinformation justifies the application ofdifferent permit conditions. However,the Agency is proposing to amend theseregulations to clarify its authority.

Modifications under proposed§ 270.41(a)(5)(ix) would undergo the fullpermit modification procedures of 40CFR part 124-that is, there would bepublic notice, a 45-day comment period,and a public hearing, if requested. Inaddition, the modification could beappealed through EPA's administrativeappeal procedures.

The introductory paragraph of§ 270.41 has also been amended to makeit clear that EPA-initiated modificationsmay be made pursuant to § 270.34(c), aswell as § 270.41. This paragraph hasbeen reprinted in full for purposes ofclarity. EPA is seeking to change, and isseeking comments only, on thosereferences to new § 270.34(c) and thebalance of the paragraph.

6. Conforming Changes toRequirements for Permits-by-Rule( 270.60(b)(3); § 270.60(c)(3)(viii). Thesubpart S regulations also apply toRCRA "permits-by-rule" for Class Ihazardous waste injection wells, andpublicly owned treatment works(POTWs) that receive hazardous wasteby truck, rail or dedicated pipeline (see40 CFR 270.60 and conforming changesin today's proposal). Today's proposal

provides conforming changes to § 270.60to reflect the deletion of § 264.101 fromthe current subpart F requirements. Thecurrent "permit-by-rule" requirementsfor Class I hazardous waste injectionwells (§ 270.60(b)(3)) and POTWs thathave a National Pollutant DischargeElimination System (NPDES) permit andthat receive hazardous waste by truck,rail or dedicated pipeline(§ 270.60(c)(3)(vii)) stipulate that ownersand operators of these facilities mustcomply with the § 264.101 requirementsin order to obtain a RCRA "permit-by-rule". The referdnces to § 264.101 inthese two sections have been replacedwith references to the requirements oftoday's proposed subpart S, reflectingthat these facilities will be subject to allrequirements in this new subpart.Further information on how EPA plansto implement corrective action at thesetypes of permit-by-rule facilities can befound in the preamble to the December1, 1987, Codification Rule (52 FR 45788)for underground injection control (UIC)wells and in "Guidance forImplementing RCRA Permit-by-RuleRequirements at POTWs." issued onJuly 21, 1987 (contact Permits Division.Office of Water Enforcement'andPermits, at (202) 475--9545).

7. Alternative Dispute Resolution.During the process of investigatingreleases and studying remedies forRCRA facilities, EPA anticipates thatsome disagreements between theAgency and the owner/operator mayarise regarding various technical orprocedural issues. For example, indefining the technical scope of a workplan for remedial investigations, theAgency's technical judgment as to thenumbers or placement of ground-watermonitoring wells may differ from thepermittee's.

In most cases, the Agency anticipatesthat such disagreements can and will beresolved through continuingcommunications between the owner/operator and the Agency. However, EPArecognizes that there will inevitably besome disagreements which cannot beresolved by such means. In these cases,there are several options the Agencymay employ to resolve the dispute andprevent unacceptable delays inimplementation of corrective actionrequirements. Such options include theuse of a more formal type of disputeresolution process; enforcement actionunder RCRA section 3008(a); or amodification of the permit. The choice ofoptions will depend on the specificissues under dispute and thecircumstances at the facility. Forsituations where the requirements atissue are clearly defined in the permit

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schedule of compliance, but where thepermittee refuses, or otherwisedemonstrates an unwillingness tocomply with the requirements, EPAwould intend to utilize enforcementoptions (e.g., section 3008(a)) to compelappropriate action by the permittee.Alternatively, a modification to. thepermit schedule of compliance (such asthe process defined in today's proposed§ 270.34(c) may often be chosen as theappropriate mechanism for resolvingdisputes in situations where therequirement at issue is less specificallydefined and when the Agency and thepermittee are unable to negotiate anacceptable agreement.

The use of enforcement authorities forcorrective action, and the permitmodification process proposed today at§ 270.34(c) are discussed elsewhere intoday's preamble. The remainder of thisdiscussion focuses, therefore, on thepotential use of alternative disputeresolution techniques to resolvedisagreements.

On August 14,1987. EPA's "FinalGuidance on Use of Alternative DisputeResolution (ADR) Techniques inEnforcement Actions" discussingmultiple ADR techniques was issued. Inthis guidance document, the Agencyarticulated its intention of encouragingthe use of alternative dispute resolutiontechniques where there is reason tobelieve that one or more of thetechniques discussed in the guidancemay lead to expeditious finalcompliance agreements. The Agencybelieves that some of the techniquesdiscussed in this guidance may be usefulIn resolving disputes which arise in thecorrective action process under RCRApermits. A copy of this guidance isincluded in the docket established fortoday's rulemaking.

In particular, EPA is examining theuse of a neutral, third-party mediator inthe context of a time-limited, non-binding negotiation process to resolvecorrective action disputes. The Agencyis not prescribing the use of such aprocess as a provision of today'sproposed regulation, however, or anyother process. Given the Agency'slimited experience with ADR to date itis premature to include any specificADR technique within a RCRAregulatory framework. EPA intends toencourage, when appropriate, the use ofADR in certain situations as the RCRAcorrective action program evolves. TheAgency is specifically seeking commenttoday on several issues associated withalternative dispute resolution in thecontext of corrective action. Theseiss ues are:.(I) For what types ofcorrective action issues and disputes

would ADR techniques be most useful?(2) What techniques (e.g., mediation,fact-finding, mini-trials) are mostsuitable for this purpose? and (3) Whoshould bear the cost (e.g.. of third-partymediators) of alternative disputeresolution?M. Conforming Changes to ClosureRegulations (Section 282.113, 28512and 265.113)

1. General. As; discussed further insection VILC. of today's preamble,corrective actions undertaken at afacility may affect closure of regulatedunits under applicable standards of 40CFR parts 264 and 265, subpart G. Forexample, closure requirements forregulated units contain certain deadlinesthat may be impractical if correctiveaction is required at the facility and theclosing unit is being used to receivecorrective action wastes. EPA today isproposing to amend the: closureregulations in § § 284.113, 285.112, and265.113 to simplify extension of thesedeadlines when doing so would assist inimplementing corrective action. TheAgency is also proposing to expand part265 closure plan informationrequirements to include information onSWMUs.

It is important to note that the part 264and part 265 subpart G closureregulations apply only to hazardouswaste management units. Today'sproposed changes to closure regulationsare designed to address potential effectsof subpart S or F corrective action onthe closure of such hazardous wastemanagement units. Corrective action atSWMUs that are not used for themanagement of hazardous waste is notsubject to subpart G regulations.

In addition, as discussed earlier inthis preamble, § 264.551(a) provides theRegional Administrator with theauthority to waive subpart Grequirements (except for § 204.111) forunits created for the purpose ofmanaging corrective action waste.

The reader should note that theproposed changes are for both permittedhazardous waste units (part 264 •standards) and interim status hazardouswaste units (part 265 standards.Although today's rule primarilyaddresses corrective action at permittedfacilities, interim. status facilities whichclose without an operating permit arepotentially subject to corrective actionunder orders issued pursuant to Section3008(h) of RCRA. or they may wish toconduct corrective action voluntarily.Therefore, conforming changes are beingproposed for both permitted and interimstatus units.

2. Clarifications. The followingdiscussion clarifies several points

relating to corrective action and theclosure of hazardous waste managementunits, and explains how existingregulations and authorities can be usedto address potential conflicting Interests,

a. Extension of Closure Deadfines--(1] Notification of Closure. Undercurrent regulations, when a unit ceasesto receive hazardous waste, the owner/operator is generally required to notifythe Agency and initiate closure of theunit (§ 284.112(d) or 2 5.112(d)). Inorder to perform needed correctiveaction without posing unnecessaryimplementation problems, the RegionalAdministrator may find it necessary torequire suspension of the acceptance ofwastes at the unit temporarily. Forexample, it may be necessary to drainliquids from a surface impoundment toallow reinforcement or repair of a bermto prevent migration to a nearby surfacewater body. However, closure of theunit may not be desirable at that timesince available capacity in the unit, onceit is repaired, could be beneficially usedfor the disposal of wastes generated inthe course of corrective action. TheAgency believes that the currentrequirements at § 264.112(d) and265.112(d) provide sufficient flexibilityto accommodate temporary suspensionof waste receipts to facilitate correctiveaction without triggering the notice andclosure initiation requirements. Theseregulations allow the RegionalAdministrator to grant an extension tothe deadline for beginning partial orfinal closure if the acceptance of wasteis suspended only temporarily andadditional hazardous waste capacityremains in the unit Thus, the Directormay allow an extension of time for theinitiation of closure activities whencapacity in the unit could be beneficialfor disposal of corrective action wastesfrom other SWMUs at the facility.

(2) Time Allowed for Closure. Forhazardous waste management units thatwill be required to close, but wherecorrective action is required prior to orin conjunction with closure, the ownerloperator may find it difficult to complywith the timing requirements of§ 264.113 or § 265.113. These provisionscurrently require that within 90 daysafter receiving the final volume ofhazardous waste at a unit, the owner oroperator must treat, remove, or disposeof the waste off-site, and that closure ofthe unit be completed within 180 daysafter receiving the final volume ofhazardous- waste. However, extensionsto these deadlines may be necessarybecause corrective action may Interferewith the owner or operator's ability tocomply with the deadlines forcompletingclosure. Sections 264.113 and

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265.113 currently contain provisions forextending closure deadlines undercertain circumstances. EPA believes thatthe need to take corrective action at theunit, or to receive wastes from otherSWMUs, is already included within theexisting criteria for granting theseextensions. However, to clarify thispoint, EPA is proposing today to amend§ § 264.113 and 265.113 explicitly toinclude corrective action among thecriteria for granting an extension to thedeadline for completing closureactivities.

b. Modification of Closure Plans.Corrective actions may bring aboutchanges in unit and facility design andoperation that will require a resultingmodification to the closure plan andclosure cost estimate for a hazardouswaste management unit. For example, aunit may be expanded to accept wastegenerated during corrective action atother SWMUs as part of the remedy fora facility. Under § 264.112(c) and§ 265.112(c), amendments to closureplans are required when changes inoperating plans or facility design affectthe closure plan. When interimmeasures or the final remedy selectedaffect the closure plan for a hazardouswaste management unit, both the planand the associated cost estimate mustbe amended according to requirementsof subparts G and H. For permittedunits, the closure plan and cost estimateamendments may be included in thepermit modification for remedy selectionor in a separate permit modification, butboth must be submitted at least 60 daysprior to the proposed change in facilitydesign or operation. For interim statusfacilities, amendments to the closureplan also must be made at least 60 daysprior to the proposed change in facilitydesign brought about by.the correctiveaction, or within thirty days if thechange occurs during closure.

3. Closure Plan InformationRequirements. The Agency is alsoproposing to add § 265.112(b)(8) in thisrulemaking to require owners andoperators to include information aboutSWMUs at interim status facilities whenthey submit an interim status closureplan. This addition is consistent with thesecond HSWA Codification Rule. Thiscodification rule added § 270.14(d) torequire owners and operators to submitinformation about all SWMUs at afacility as part of the Part B permitapplication (December 1, 1987, 52 FR45788). Today's proposed change wouldaddress the need to coordinatecorrective action and closure activitiesat closing interim status units andfacilities. Since-the facility owner/operator Is not required to automatically

submit a part B application for a unitclosing under interim status, the Agencywill need a mechanism for obtaininginformation to assess the need forcorrective action at the facility. Today'sproposed addition to interim statusclosure plan information requirements isintended to provide that mechanism.

N. Conforming Change to Section264.1(g)

As a conforming change. today'sproposal includes an amendment to§ 264.1(g) that specifies certain explicitexemptions from the requirements ofpart 264. However, certain units that areexempted under § 264.1(g) are,nevertheless, considered to be solidwaste management units according tothe definition proposed in § 264.501.Such units would include on-siteaccumulation tanks and container units,recycling units, totally enclosedtreatment units, elementaryneutralization units, wastewatertreatment units, and transfer units. Thus,today's proposed amendment clarifiesthat subpart S requirements of part 264would apply to these units, although theexemption would continue to apply toall other part 264 requirements.

VII. Relationship to Other Programs

A. Superfund

1. GeneraL One of the Agency'sprimary objectives in development ofthe RCRA corrective action regulationsis to achieve substantive consistencywith the policies and procedures of theremedial action program under theComprehensive EnvironmentalResponse, Compensation, and LiabilityAct (CERCLA), as amended by theSuperfund Amendments andReauthorization Act (SARA) of 1986.The fund, which may be used for certaincleanup actions under CERCLA, iscalled the Hazardous Substances TrustFund, but is commonly known andreferred to as Superfund. Sections 104and 106 of CERCLA authorize EPA totake response actions, including removalor remedial measures, when a release orthreat of a release of a hazardoussubstance which may threaten humanhealth or the environment is discoveredGenerally, these authorities are used insituations where contamination hasoccurred at sites that are not under theactive control of a RCRA owner oroperator. Where contamination isrelated to activities at hazardous wastemanagement facilities that are currentlyoperating or have conducted treatment,storage or disposal of hazardous wasteat any time since November 19, 1980,both RCRA and CERCLA potentiallyapply.

Because the most comprehensive setof standards applicable to remediationof hazardous waste sites under thecontrol of private owners and operatorswill, when promulgated, be the Section3004(u) regulation, RCRA correctiveaction standards will be an importantpotentially applicable or relevant andappropriate requirement for theCERCLA program. As such, a primarygoal in development of the RCRAregulations will be to establish aconsistent approach between the RCRAand CERCLA programs. Consistencywill help to ensure that the regulatedindustry can gain no advantage byproceeding under one program ratherthan the other, since the Agencyanticipates that similar remedies wouldbe selected under both.

The corrective action process underRCRA will parallel the processestablished for CERCLA remedialactions. This process includespreliminary assessments and siteinvestigations to evaluate the need forremediation at specific sites, selection ofremedies where needed to protecthuman health and the environment,remedial design and implementation ofremedial action, and operation andmaintenance to-ensure continuedeffectiveness of the remedy.Procedurally, the activities under thetwo statutes may differ somewhat, sincethe permittee implements correctiveaction under RCRA, whereas theregulatory Agency, for the most part,does so under CERCLA. (In some casesCERCLA cleanups are conducted byresponsible parties according to theterms of an order or consent decree andwith Agency oversight.) Nonetheless,EPA anticipates that the two programswill arrive at similar solutions to similarenvironmental problems, and thatactions undertaken by one program willbe adopted by the other program incases where the programmaticresponsibility for a site shifts frpm oneto the other. Specifically, the Agencyanticipates that there may be a numberof facilities at which substantialCERCLA remedial studies and/or actualremediation will have been alreadyconducted at the time a RCRA permit isissued (thereby triggering the Subpart Scorrective action requirements). Thissituation is likely to be most common atFederal facilities. In such cases, if theremedial work has been conductedaccording to the CERCLA NCP, EPAwould consider that work to beconsistent with the requirements ofsubpart S, and therefore additional ordifferent studies or cleanuprequirements would be unnecessary. If,however, the remedial activities.

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conducted pursuant to the NCP at aRCRA facility addressed only a portionof the units or releases at the facilityrequiring remediation, the permit wouldaddress any such remaining correctiveaction requirements pursuant to subpartS.

2. Listing RCRA Sites on the NationalPriorities List (NPLJ. EPA isemphasizing coordinatedimplementation of the RCRA andCERCIA programs Of particularimportance Is the Agency's policy forlisting RCRA facilities on the NationalPriorities List (NPL}. Section 105(a)(8)(MBof CERCLA requires EPA to establishthe NPL list to set national prioritiesamong sites with known or threatenedreleases where action under CERCLAmay be warranted. A site must be listedon the NPL before a remedial action canbe financed by the HazardousSubstances Trust Fund establishedunder CERCLA.

The Agency's policy regarding thelisting of ROM facilities on the NPLwas outlined in a November 23,1985,Federal Register notice (50 FR 47912).The policy states that sites that can beaddressed by RCRA subtitle Ccorrective action authorities generallywill be deferred from placement unlessthey fall within certain exceptions. For amore detailed discussion of theseexceptions, see 54 FR 41004-0 (October4, 1989).

The proposed RCRA listing policy.however, does not apply to Federalfacilities. These are listed on the NPL, asrequired under CERCA I 120 asamended under SARA (52 FR 17991.May 13, 1987).

3. Use of CERCLA to SupplementRCRA Authorities. EPA intends to cleanup hazardous waste sites by selectingthe most appropriate response and/orenforcement authorities from among allof those available. Accordingly, severalCERCLA authorities may be used atRCRA facilities. For example, fund-financed removal actions underCERCLA section 104 can be taken atRCRA sites when necessary to respondprompt!y to a release. Althoughremovals may be conducted whether ornot the site is listed on the NPL, suchactions must be undertaken in responseto a release or substantial threat of arelease and must be consistent with thecriteria outlined in the NationalContingency Plan and CERCLA. EPAmay seek reimbursement of costs ofthese actions from generators,transporters, or owner/operators oftreatment, storage, or disposal facilitiespursuant to CERCLA section 107.

Where an "imminent and substantialendangerment" may be posed by arelease at a RCRA facility, the Agency

may employ either a CERCLA section106 or RCRA section 7003 order. Asnoted earlier, these authorities will beparticularly useful in addressingcontamination from SWMUs thatrequires prompt action.

The Agency may alsouse CERCLA orjoint efforts with States in conjunctionwith RCRA to address situations of"area-wide" contamination. Preliminaryinvestigations have shown that at someRCRA facilities substantial portions ofon-site contamination is contributed byadjacent facilities not under RCRAjurisdiction. Corrective action at a singleRCRA facility alone, therefore, might dolittle to restore overall environmentalquality. In these cases, itmay beappropriate to apply both RCRA andCERCLA authorities or other Agencyauthorities in a comprehensive programto address all sources of the release andprovide complete remediation of thearea. This would allow a comprehensivecleanup of an area (CERCLA trust fundswould be used only where the sitescored 28.5 or higher under the HRS)that has become contaminated as aresult of activities at multiple facilities,including both operating and abandonedfacilities.

In situations where CERCLA section104 or section 100 remedial activitieshave been initiated, and where a RCRApermit is to be issued to the facility, theAgency may choose to continue theseremedial actions under CERCIAauthority. In such cases, the CERCIAcleanup would be referenced in theRCRA permit, and the Agency wouldtake steps to ensure that further cleanupunder RCRA section -3004(u) would notbe required at the affected portion of thefacility. At the same time, RCRA may beused to address other cleanup needs atthe facility that are not addressed by theCERCLA action underway.Alternatively, the cleanup may beshifted to RCRA and the selectedremedy incorporated into the permitthrough a permit modification.

B. PCB Spill Policy Under TSCA

EPA regulations under the ToxicSubstances Control Act (TSCA)controlling the disposal of PCBs,published in the Federal Register ofFebruary 17, 1978 (43 FR 71501 and May31, 1979 (44 FR 31574), define the termdisposal-to encompass accidental aswell as intentional releases to theenvironment. When PCBs inconcentrations of 50 parts per million(ppm) or greater are improperlydisposed (or when material at less than50 ppm got that way through dilution), :EPA has the authority under section 17of TSCA to compel persons to takeactions to rectify damage or clean up

contamination resulting from the spill.Before May 4, 1987, standards for thecleanup of spilled PCBh were set by EPARegions on a case-by-case basis.

However, EPA believed that uniform,predictable, nationwide requirementsfor the majority of spillswould reducerisks to PCB spill sites by encouragingrapid and effective cleanup andrestoration of the sites; accordingly, EPAestablished a nationwide policy for PCBspill cleanup. On April 2,1987, EPApublished the TSCA policy for thecleanup of spills resulting from therelease of materials containing PCBs atconcentrations of 50 ppm or greater.(See 52 FR 1088&)

The policy requires cleanup of PCBsto different levels depending on spilllocation, the potential for exposure toresidual PCBs remaining after cleanup,the concentration of the PCBs initiallyspilled, and the nature and size of thepopulation potentially at risk ofexposure. The policy imposes the moststringent requirements on areas wherethere is the greatest potential of directhuman exposures, and less stringentrequirements where there is littlepotential for any direct human exp6sure.

While the policy is expected to applyto the majority of spill situations, thepolicy does provide for exceptionalsituations that may require additionalcleanup or less cleanup at the directionof the EPA Regional offices. Further,some spills are outside the scope of thepolicy. Such spills include: Spillsdirectly into surface water, drinkingwater, sewers, grazing lands, andvegetable gardens. Final cleanupstandards for these types of spills areestablished by the EPA Regional officeson a site-specific basis.

. RCRA corrective action authorityunder section 3004(u) applies to PCBsbecause PCBs are listed as an AppendixVIII constituent in 40 CFR part 261. PCBreleases from solid waste managementunits at permitted RCRA facilities areaddressed in accordance with TSCAPCB spill cleanup policy. These solidwaste management units would oftentechnically be considered "old spills"under the spill policy. It is the Agency'sbelief that the cleanup levels andpractices discussed in the policy will beappropriate in many situations, and thatwhen necessary, site-by-site evaluationsshould still be required.

C Other Elements of RCRA Subtitle CP ogram

1. Relationship to Subpart F Ground-Water Corrective Action. ExistingRCRA regulations for ground-watercorrective action (40 CFR Part 264,subpart F) prescribe a specific approach



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for detection, characterization, andcleanup of contaminated ground waterfrom regulated land disposal units whichreceived waste after July 26, 1982.Subpart F Is a "prospective" programrequiring that monitoring be establishedto detect contamination, and that ifdetected, contaminated ground water beremoved or treated in place if or when aground-water protection standard hasbeen exceeded. There is additionaldiscussion of current Subpart Fcorrective action in section IV of today'spreamble.

Achieving a coordinated, facility-wideapproach to cleanup of releases fromboth regulated units and other solidwaste management units is a basicobjective of the Agency. However, theuniverse of units and contaminationbeing addressed by subpart S correctiveaction regulation is somewhat broaderin scope.

To ensure consistency inimplementing corrective action at bothregulated units (a subset of SWMUs)and other solid waste managementunits, and to achieve environmentalresults as rapidly and effectively aspossible, the Agency is developing aproposal that would restructure thecurrent subpart F regulations to makethem consistent with the key features ofsubpart S. These proposed revisions tosubpart F are expected to be issuedrelatively soon. It is expected that theserevisions will reference a number ofspecific sections of today's subpart Sproposed regulations; likewise, for thesake of clarity and consistency, the finalsubpart S rule may also contain cross-references (that do not appear in today'sproposal) to certain subpart Fprovisions.

2. Land Disposal RestrictionsProgram. As enacted on November 8,1984, the Hazardous and Solid WasteAmendments (HSWA) to the ResourceConservation and Recovery Act (RCRA)impose restrictions on the land disposalof hazardous wastes. In HSWA,Congress specified dates whenparticular groups of hazardous wastesnot meeting treatment standards areprohibited from land disposal unless itcan be demonstrated that "no migrationof hazardous constituents from thedisposal unit or injection zone for aslong as the wastes remain hazardous"will occur (RCRA section 3004(d)(1),(e)(1), and (g)(5)). The dates specified byCongress for triggering the land disposalrestrictions are listed below:

* Solvents and dioxins by November8, 1986;

* California list wastes by July 8,1987; and

* Scheduled wastes by August 8, 1988(First Third), June 8,1989 (SecondThird), and May 8, 1990 (Third Third).

Note: A separate schedule was establishedfor hazardous wastes disposed of by deepwell underground injection.

HSWA required the Agency to set"levels or methods of treatment, ifany, which substantially diminish the'toxicity of the waste or substantiallyreduce the likelihood of migration ofhazardous constituents from the wasteso that short-term and long-term threatsto human health and the environmentare minimized" (RCRA section3004(m)(1)). To date, EPA has developedtreatment standards based on theperformance of best demonstratedavailable technologies (BDAT} in aseries of five rulemakings. After theappropriate effective date, wastes forwhich treatment standards have beenpromulgated must meet those standardsbefore the wastes may be land disposed.

Where adequate treatment capacitywas not immediately available on thestatutory effective date, the Agencygranted a national capacity variance.This established an alternativeprohibition effective date for the wasteof up to two years. During a variance,wastes not treated in compliance withapplicable treatment standards may bedisposed of in surface impoundments orlandfills only if they meet the minimumtechnological requirements (RCRAsection 3004(o)). Furthermore, wastesgranted this variance must be incompliance with the California listprohibitions if they are applicable, andare subject to the paperworkrequirements of 40 CFR 268.7.

The rules promulgated to date aresummarized below:

9 Solvents and Dioxins. On November 7,1986, regulations were promulgatedestablishing the implementation frameworkof the LDR program (51 FR 40572). In thisrulemaking, EPA promulgated treatmentstandards and effective dates for spentsolvents and dioxin-containing hazardouswastes identified as EPA Hazardous Wastenumbers F001-F005, F021-F023, and F026-F028 (40 CFR 268.30 and 268.31).

* California List Wastes. On July 8,1987,regulations were promulgated restricting landdisposal of the California list hazardouswastes (52 FR 25760). Treatment standardswere established for liquid and nonliquidhazardous waste containing halogenatedorganic compounds (HOCs), and for liquidhazardous wastes containing polychlorinatedbiphenyls (PCBs). The statutory prohibitionson land disposal of corrosive wastes andliquid wastes containing certain metals werecodified and became effective immediately

• The Scheduled Wastes. On August 8,1988, the Agency promulgated regulations forcertain scheduled wastes (40 CFR 268.10),referred to as First Third wastes. Treatment

standards were established for most of thewastes identified by EPA Hazardous Wastenumbers "F" and "K." Wastes scheduled'inthe First Third for which treatment standardswere not set were subject to ihe "softhammer" provisions of § 268.8. On June 8,1989, the Agency promulgated regulations forthe Second Third of the scheduled wastes (40CFR 268.11). In the Second Third final rule,the Agency 'also set standards for certainFirst Third soft hammer wastes, Third Thirdwastes, and newly listed wastes. This rulealso set effective dates for undergroundinjected wastes. On May 8, 1990, the Agencypromulgated treatment standards andeffective dates for the remaining soft hammerwastes, wastes listed in the Third Third ofthe scheduled wastes (40 CFR 268.12), wastesthat were rescheduled to the Third Third, andfive newly listed wastes.

Separate rulemakings for theunderground injection control (UIC]program established hazardous wastedisposal injection restrictions andrequirements and set effective dates forunderground injected solvents, dioxins,California list wastes, and First Thirdscheduled wastes (40 CFR parts 124, 144,146, and 148).

Corrective action taken under today'srule must comply with the land disposalrestriction requirements of 40 CFR part268. The prohibitions do not apply tohazardous wastes placed into landdisposal prior to the effective date of anapplicable land disposal restriction, ifsuch wastes do not have to be removedor exhumed for treatment. Furthermore,as explained in the preamble to the NCPrevisions (published on March 8, 1990),the Agency has determined thatplacement, and thus land disposal, ofhazardous wastes does not occur whenwaste is moved or treated in-situ withina unit. This is particularly important forRCRA corrective action since manyremedial actions are likely to involvetreatment, consolidation, and capping ofwastes within existing units. Wastesmoved or treated within such unitswould not be subject to the landdisposal restrictions. Placement doesoccur, and the land disposal restrictionsapply, when waste is removed from theunit for treatment or-other purposes andthe waste or residuals are returned tothe unit, or to a different unit.

3. Relationship to section 3004(n)Standards. RCRA section 3004(n)requires the Agency to promulgatestandards for the control and monitoringof air emissions from hazardous wastemanagement units subject to permittingstandards other than subpart S attreatment, storage, and disposalfacilities (TSDFs). The goal of thesestandards is to protect human healthand the environment as necessary fromair emissions associated with

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management of hazardous wastes. .Currently, the Agency is developingstandards under section 3004(n) that willapply to certain hazardous wastemanagement units covered'by today'sproposal under section 3004(u). Section3004(n) standards for air emissionsassociated with equipment leaks andcertain process vents at TSDFs were.proposed in February 5, 1987 (52 FR3748) and are expected to be finalized inJune, 1990; standards for volatile organicemissions from certain other TSDF ,emission.sources will be proposed at alater date.

The standards being developed undersection 3004(n) will require engineeringcontrols at units that manage hazardouswaste. Air emissions will be controlledthrough, among other things, somecombination of covers and add-oncontrol technologies which capture theair emissions for recovery ordestruction.

Although standards developed undersection 3004(n) will only address airemissions from hazardous wastemanagement units at TSDFs (a subset ofall SWMUs), they are expected toprovide valuable guidance foraddressing air emissions from otherSWMUs used for management of non-hazardous solid waste. In addition to thestandards being developed undersection 3004(n) of RCRA, the Agency isexamining technical approaches andpolicy options for regulating, under theClean Air Act, air emissions fromSWMUs in which non-hazardous solidwastes are managed.

The Agency is today proposing aspecific approach to imposing correctiveaction requirements on certain air.releases from SWMUs in today'sproposal. The proposed approach isdesigned to be flexible enough to beused in conjunction with the section3004(n) standards being developed.When the section 3004(u) standards aredeveloped, EPA will make anyadjustments to the subpart S standardsnecessary to ensure a consistent andcomplementary approach.

4. Admin.istrotive Orders UnderRCRA section 3008(h). The section3008(h) authority for interim status.corrective action orders provides asister authority to section 3004(u) for:requiing corrective action at non-permitted RCRA facilities.

Corrective action may be requiredunder section 3008(h) whether thefacility is operating (prior to receiving apermit) under interim status, is closingor is closed under interim status,'haslost interim status, or failed to properlyobtain interim status. Corrective actionorders under section 3008(h) may beissued unilaterally by the Agency or

they may be issued as consentagreements between the owner/operator and the Agency.

In many cases, the entire correctiveaction process for a facility will beimplemented under a section 3008(h)order. However, in some cases a facilitythat has been issued a section 3008(h)order will be issued a permit prior to.completion of the activities specified inthe order. In such cases, the Agencymay require theowner/operator tocontinue all or Some of the activitiesunder the order, or may incorporate therequirements of the order into the RCRApermit.

In any case, EPA intends thatequivalent environmental results will beachieved whether corrective action -requirements are imposed in an orderunder section 3008(h) or a perrit..

Accordingly. EPA expects that ordersissued under section 3008(h) generallyshould follow the substantiverequirements of today's proposal (e g.,remedy selection factors to beconsidered), as well as proceduralelements (e.g., triggers for moving fromone phase of corrective action to thenext). There will, however, be someprocedural differences between ordersand permits in implementing correctiveaction. On April 13, 1988, EPApromulgated rules for administrativeprocedures for issuing orders undersection 3008(h). (See 53 FR 12256.)

The section 3008(h) enforcementauthority will not be delegated to States.States -which desire enforcementauthorities equivalent to section 3008(h)and- do not already have suchauthorities in existing legislation willneed to enact parallel statutoryenforcement authorities. Whileprocedural aspects of issuance ofsection 3008(h) orders do not duplicatethe procedural aspects of today'sproposed rule for corrective actionunder permits, the procedures for bothare designed to ensure equivalentresults and to provide adequate.participation in the process for allinterested parties.

5. Financial Assurance for CorrectiveAction. As discussed in section IV ofthis preamble, EPA proposed financialassurance requirements for correctiveaction (FACA) on October 24, 1986 (51.FR 37854). The fourteen commenters onthe FACA proposal generally supportedthe flexibility of the Agency's approach.The procedures presented in FACA andtoday's regulatory changes to theseprocedures are summarized below.a; Timing. In today's rule, EPA isproposing specific language that willclarify when financial assurance forcorrective action must be demonstrated.Section 264.526(c) requires that. after

selection-of the remedy the Directorshall modify the facility permit-andschedule of compliance to require ademonstration of financial assurancewithin 120 days of the effective date ofthe permit modification. This*requirement, which is a clarification ofthe requirement proposed in the 1986 -

* FACA proposal, is discussed further insections VLF and VI.G of today'spreamble,

In addition to this approach, EPArequested comment in the FACAproposal on a second, more complicated,approach. In this approach, the facility.would be required to demonstratefinancial assurance once correctiveaction is determined to be necessary,but before the corrective actionmeasures and cost estimate arespecified in the permit. Adjustments tothe amount of financial assurance wouldbe required after specification of thecorrective measures and cost estimate inthe permit.

Most commenters on the FACAproposal supported the proposedapproach. However, some commentersargued that financial responsibilitydemonstrations should be made not atthe time the cost estimate is completed,but rather prior to permitting. TheAgency disagrees, since unnecessarilyearly demonstration of financialassurance may increase the number ofbankruptcies, increase the amount ofunfunded corrective actions, and thusresult in less environmental protection.* b. Cost Estimation. The 1986 FACAproposal required facility owners oroperators to submit a cost estimate forcorrective action, consisting of twoparts: (1) Ayear-by-year current costestimate of required corrective action inundiscounted current dollars; and (2) thesum of these year-by-year estimates.ofcorrecti've action costs. The Agencyproposed that third-party. costs, ratherthan first-party-costs, be used toestimate yearly and total correctiveaction costs (i.e., costs of contractorlabor .rather than the owner's oroperator's own labor). The corrective.action cost estimate must be revised ifchanges in corrective measures alter'thecost or expected duration of correctiveaction. The proposal also would require.the' owner or, operator to adjust the cost.estimate annually to account forinflation, using either recalculations incurrent dollars or an inflation factorderived from the most recent annualImplicit Price Deflator for the GrossNational Product published by theDepartment of Commerce.

n addition to the annual inflationadjustment required under the FACAproposal. EPA is today proposing in

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§ 264.527(c) to require that costestimates be revised, if necessary, uponapproval of the remedy design. Thefinancial assurance mechanisms mustbe adjusted to reflect any changes in thecost estimate. This requirement isdiscussed further in section VI.H oftoday's preamble.

c. Allowable Mechanisms. Under theOctober 24, 1986, FACA proposal,owners or operators who areresponsible for performing correctiveaction would be required to demonstratefinancial assurance through one or moreof the following mechanisms: trust fund,surety bond guaranteeing performance,letter of credit, financial test, orcorporate guarantee. A letter of creditand a trust fund may be combined todemonstrate financial responsibility anda single mechanism may be used todemonstrate financial responsibility formultiple facilities. The rationale forauthorizing the use of these mechanismsand for the regulatory framework forfinancial assurance for corrective actionis similar to that for the financialassurance requirements for closure andpost-closure care under part 204, subpartH (47 FR 15032, April 7, 1982). The keydifferences between the FACA proposaland Subpart H are that insurance andsurety bonds guaranteeing payment intoa standby trust fund were not deemedappropriate mechanisms for correctiveaction situations and are not allowed.Additionally, the proposed fundincludes a pay-in period and pay-informula which accounts for the costs ofcorrective action (see 51 FR 37854 etseq.).

Commenters on the FACA proposalgenerally supported the range ofallowable mechanisms, but offeredspecific suggestions for altering therequirements of particular mechanisms(e.g., shorten the pay-in period for thetrust fund). The Agency will address thecommenters suggestions when the finalFACA requirements are promulgated. Inthe interim, EPA intends to rely on theFACA proposal as a guide. The Agencyexpects that in most cases financialassurance will be demonstrated by useof instruments that are consistent withthe proposed regulatory language ofFACA. However, other instruments maybe permissible if the owner or operatordemonstrates. to the satisfaction of theAgency, that such instruments providean acceptable level of financialassurance.

The fundamental criteria the Agencywill use in evaluating the acceptabilityof other instruments are: (1) thecertainty of the availability of funds,and (2) the amount of funds assured.The certainty of the availability of funds

from alternate mechanisms should beequivalent to the certainty provided byexisting financial assurancemechanisms under 40 CFR part 264,subparts G and H. For example, thealternative mechanisms should providethat the Regional Administrator or StateDirector has the sole authority to directthe payment or use of funds or mustprovide for prompt notification of intentto cancel the mechanism. To be deemedequivalent in terms of the amount offunds, the alternative mechanismsshould meet several criteria, such asproviding that the funds cannot be usedfor other purposes, and providing thatthe amount of funds are equal to thecurrent cost estimate.

D. RCRA Subtitle D: Solid WasteDisposal

Today's proposal is for correctiveaction at facilities subject to RCRApermits issued under the authority ofsection 3005 of RCRA (i.e., those whichtreat, store, or dispose of hazardouswaste as defined under RCRA). Thedisposal of non-hazardous solid wastefalls under the authority of subtitle D ofRCRAL EPA has two major roles undersubtitle D. The first is to establishminimum national performancestandards (under the authority ofsection 4004) for the protection of humanhealth and the environment from solidwaste disposal facilities. The second isto help the States make appropriatesolid waste management decisions byoffering up-to-date technical assistance.

Some of the subtitle D standards forprotection of human health and theenvironment from solid waste disposalfacilities could apply or be relevant tosubtitle C facilities. For example.§ § 257.3-257.8 provides safety limits forthe concentration of explosive gases,generated by a facility (defined under§ 257.2 as any land and appurtenancesthereto used for the disposal of solidwastes). It may be appropriate to applythis requirement to subtitle C facilitieswith solid waste management units thatcould generate methane (e.g., landfills.used for disposal of municipal-typewastes). Thus, the Agency could requirecompliance with the part 257requirements for explosive gases if suchsituations were encountered at a subtitleC facility undergoing corrective actionaccording to subpart S.

Passage of HSWA added section4010(c) to subtitle D. Section 4010(c)required EPA to revise criteriapromulgated under section 4004(a) forfacilities that may receive householdhazardous wastes or small quantitygenerator hazardous wastes. The statuteindicated that these criteria mustinclude, at a minimum, ground-water

monitoring necessary to detectcontamination, location standards, andcorrective action, as appropriate. Thestatute also indicated that the criteriashould take into account the practicablecapability of such facilities.

On August 30, 1988, EPA proposedthese revised criteria for municipal solidwaste landfills (see 53 FR 33313). Thecriteria for subtitle D municipal solidwaste landfills most relevant to today'sproposal are the criteria proposed forground-water monitoring and correctiveaction under subpart G of 40 CFR part258.

The part 258 subpart G proposalwould require the owner/operator of amunicipal solid waste landfill toestablish a two-phase ground-watermonitoring program. If parametersestablished for Phase I monitoring aredetected at a statistically significantlevel above background, the owner/operator must initiate a phase IImonitoring program which includes aninitial test for all constituents listed inappendix IX of 40 CFR part 264. If theconcentration of any appendix IXconstituent exceeds the establishedtrigger lever, as discussed below, thenthe owner/operator must initiate anassessment of the nature and extent ofthe contamination.

Like the subpart F program undersubtitle C, the corrective action programproposed in 40 CFR part 258, subpart G,for municipal solid waste landfillswould be limited, to releases to groundwater. The corrective action program, asdescribed in subpart G, would have tobe designed to delineate the areal extentof the plume of contamination and toclean up to maximum allowableconstituent concentrations throughoutthe plume. Ground-water protectionstandards would be set using the samehealth and environmental based criteriaas those employed in today's proposalfor subtitle C corrective action for solidwaste management units. Therequirements for ground-water cleanupin the corrective action programdescribed in the revised subtitle Dcriteria are thus very similar to thosedescribed in today's subtitle Ccorrective action proposal. The subtitleD revised criteria will not, however,address procedural requirements;procedures for implementing the criteriawill be established by the States.E. RCRA Subtitle L UndergroundStorage Tanks

Section 9003 of subtitle I of theResource Conservation and RecoveryAct (RCRA) directs EPA to promulgateregulations applicable to owners andoperators of underground storage tank

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(UST) systems to protect human health.and the environment. Section 9003(c)specifically requires EPA to promulgateregulations applicable to owner/operators of UST systems which requirecorrective action in response to releasesfrom USTs and, further, requires theowner/operator to report the actionstaken.

Section 9003(h) was added to RCRAby. section 205 of the Superfund. -Amendments and Reauthorization Act(SARA) of 1986, which-established aLeaking Underground Storage Tank trustfund that can be used by EPA to cleanup releases of petroleum from USTsystems. Alternatively, EPA can orderUST owners and operators to- undertakesuch cleanup. Under the correctiveaction requirements of section 9003(c),all petroleum UST cleanups will.have tobe conducted in accordance with therequirements in the regulations. Theapproach to UST corrective actionadopts the same basic steps as the NcPrequirements for CERCLA actions andthose contained within today's proposedRCRA section 3004 regulation: controlthe release source, determine the extentof the contamination, determine theextent of the remediation required, andtake the necessary cleanup actions.Specific differences in the programsreflect the different scope and nature ofimplementation under the differentprograms.

EPA issued final technical standardsgoverning petroleum and CERCLAhazardous substance UST systems onSeptember 23, 1988 (- FR -- ).Approximately two million USTs will beaffected by the regulations, and a widevaridty of release situations andhydrogeologic settings are expected.These standards would require ownersand operators of leaking UST systems totake certain actions upon confirmationof a release. Owners and operators mustreport confirmed releases to the-appropriate regulatory authority andbegin immediate cleanup steps.Immediate measures required under theproposed standards include mitigationof safety and fire hazards; initiation offree product recovery, if applicable; andassembling of information on the natureand quantity of the release and sitecharacteristics. The owner/operatormust submit, to the implementingagency, reports describing theseimmediate steps, as well as the designand implementation of free productrecovery systems. A corrective actionplan would be required for longer-termcleanups addressing soil and ground-water contamination. Cleanup levelswould be established on a site-by-sitebasis as approved by the implementing'

agency (typically the State) that wouldoversee the cleanup by the owner oroperator.

The first stage of the UST correctiveaction process requires immediate stepsto abate imminent safety and healthhazards whenever a release from apetroleum UST is confirmed The ownersand operators must investigate thepresence of free product and, if present,begin free product recovery. The owner/operator must also submit informationcharacterizing the site and the nature ofthe release. If, after reviewing thispreliminary information, theimplementing agency determines thatthe product may have reached groundwater or that contaminated soil is incontact with ground water, the owner/operator must characterize the extentand location of soil and ground-watercontamination. The implementingagency will use this information as thebasis for determining, through a site-specific risk assessment, whether theowners and operators will be requiredto undertake a longer-term correctionaction.

This second stage of the correctiveaction process addresses soiland,ground-water cleanup. The site-specificanalysis is the basis for prescribing theextent and timing of cleanup that wouldbe required for longer-term correctiveaction. The assessment would be basedon analysis of site-specific conditionsand problems'posed by the release.Factors to be considered include: thequantity of material released; themobility, persistence, and toxicity of thematerial; the exposure pathways; itsrelationship to present and potentialground-water well locatiofis and uses;and any relevant standards.Technology-based cleanup requirementswould also be possible under thisa approach if: (1) The cleanup level setduring the UST corrective action processis found to be unattainable with. current.technology; (2) it is shown that theremaining contamination does not posea substantial present. or potential hazardto human health and the environment;and (3) monitoring procedures areinstituted to ensure that the conditionsremain stable or improve.

EPA's approach to corrective action atunderground storage tanks is largelyshaped by the enormous size of theregulated universe. These factors, aswell as the absence of permittingrequirements for USTs, explain theprocedural differences betweencorrective action for USTs and today'sproposal.

EPA estimates that there areapproximately two million petroleumUSTs at about 700,000 facilities as well

as 50,000 hazardous substance USTs at30,000 facilities potentially subject tosubtitle I. Because of the size of thisuniverse, EPA believes that the programis best implemented at the State andlocal level, and that it should be, to theextent possible, self-implementing. Thus,the UST rule would require that certainautomatic actions be taken at thedetermination of a release: mitigation offire and safety hazards, recovery of freeproduct, and repair of the leak orremoval of the tank. These are allstraightforward actions particularlyrelevant to the UST universe and areamenable to self-implementingstandards. At RCRA permitted facilities,contingency plans and tank standardswould require comparable action forhazardous waste units. However, theAgency did not adopt comparable self-implementing provisions--beyond theregular facility subtitle C standards--in.today's rule because of the much widervariety of units that would be subject tosubtitle C corrective action and theclose Federal or State oversight affordedby the permit process.

The UST rule would also require long--term remedial action for ground-waterand soil contamination, based upon asite-specific assessment, afterimmediate action had been taken.Because of the large size of the regulateduniverse, the absence of a nationalpermitting system under which to carryout cleanup, and the necessity of localimplementation, EPA believes aprocedurally less prescriptive approachto selectingcleanup strategies andcleanup levels is necessary for USTs.

Some USTs are potentially subject.tocorrective action requirements underboth subtitle I and today's rule.Specifically, releases from an USTcontaining solid wastes at a RCRApermitted facility may be subject tocorrective action requirements underboth programs. in order to avoid.confusion and because USTs located atRCRA facilities will be subject to theoversight provided by a site-specificpermitting process, today's regulations,when promulgated, will be theapplicable corrective actionrequirements for USTs subject to section3004(u). The final UST rules also clarifythe applicability of the subtitle.Icorrective action requirements to USTslocated at RCRA permitted facilities byexcluding them from coverage undersubtitle I.

F. Federal Facilities

Many Federal agencies have facilitieswhich require RCRA permits. Some ofthese. agencies have developed remedialprograms which apply at their facilities

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in addition to EPA programs under theRCRA and CERCLA statutes. Regardlessof any self-imposed remedial programs,federally-owned or operated facilitiesmust comply with all RCRA andCERCLA requirements (with certainlimited exceptions) in the same mannerand to the same extent as most non-governmental entities. The objective ofthe RCRA corrective action program atFederal facilities, as at all RCRAfacilities, is to ensure protection ofhuman health and the environment.

Section 6001 of RCRA requires anyagency of the Federal Governmentengaged in the management or disposalof hazardous waste to comply with bothsubstantive and proceduralrequirements under RCRA as well aswith any other applicable requirementsfor the management of hazardous waste,including Federal, State, interstate andlocal requirements. CERCLA section120(a) makes Federal facilities subject toCERCLA in the same manner and to thesame extent as private facilities. Section120(i) also makes it clear that the specialprovisions for Federal facilities inSection 120 do not impair anyobligations they have to comply withRCRA requirements, includingcorrective action. In accordance withsection 120 (c) and (d), EPA hasestablished a comprehensive Federalagency hazardous waste compliancedocket and will list Federal facilities onthe CERCLA National Priorities List(NPL) if they meet the NPL listingcriteria.

Many Federal facilities at whichhazardous wastes are managed will besubject to both CERCLA remedial actionand RCRA corrective action authoritiesIn many such cases, EPA intends tocoordinate the application of RCRA andCERCLA authorities through the use ofinteragency agreements (LAGs), asprovided under the authority of section120(e) of CERCLA. The AG will providethe vehicle for explicitly defining theproceolural and technical requirementsfor corrective action, in satisfaction ofthe statutory and regulatory authoritiesof both RCRA and CERCLA.

While it is the responsibility ofFederal facilities to comply with therequirements of both the RCRA andCERCLA programs, theAgency plans tocontinue its efforts to coordinate theactivities required under both programswith those under already-establishedFederal facility remedial programs. Forexample, the Department of Defense(DOD) has developed the InstallationRestoration Program (IRP) to identifyand cleanup contamination resultingfrom past waste management practicesat DOD facilities. IRP conducted

activities will often serve to satisfyRCRA and CERCLA requirements.Furthermore, the Agency is aware thatin some cases an Environmental ImpactStudy (EIS) will be conducted at aFederal facility during the same timeframe as the RCRA Corrective Actioninvestigations and studies areundertaken. To the extent that theinformation generated by the EIS isdeemed relevant by EPA to the needs ofCorrective Action, EPA would notintend to require duplicative informationto be generated to satisfy correctiveaction requirements. In fact, it may bepossible in some cases to merge the twostudies into one integrated document.EPA intends, however, to oversee and, ifnecessary, direct the scope andsubstance of investigations and cleanupactivities at DOD and other Federalfacilities. In addition, EPA anticipatesthat many States will exercise oversightauthority under State laws to reviewand participate in corrective actiondecisions at Federal facilities.

VIII. Public Involvement

Effective public involvement effortswithin the corrective action programwill enable the interested public toreceive accurate and timely informationabout remedial plans and progress andto comment on proposed actions atsignificant decision points. The statutorypublic involvement requirements forpermitting contained in RCRA section7004 are elaborated in regulatoryrequirements at 40 CFR parts 124 and270. Today's proposal includesadditional requirements intended topromote active and effectivecommunication between the interestedpublic, the regulatory agencyresponsible for implementation of thecorrective action program, and thepermittee.

The first required public involvementoccurs before a draft RCRA permit isdeveloped. At the time the permitapplication is submitted, a mailing listmust be assembled by EPA or the Statefor the community in which the facilityis located. (See 40 CFR 124.10(c)(1)(viii).)The list serves as an importantcommunications tool to allow theregulatory agency to reach interestedmembers of the public withannouncements of meetings, hearings,events, and available reports anddocuments. Guidance on developing acomprehensive mailing list is availablein the January 1986 Guidance on PublicInvolvement in the RCRA PermittingProgram.

After developing a draft permit theregulatory agency is required to providepublic notice that a draft permit hasbeen prepared and Is available for

public review. (See 40 CFR 124.6.) Thenotice must be published in a majornewspaper and broadcast over localradio stations. A 45-day public commentperiod on the draft permit must followthe public notice. If a written request isreceived, EPA or the State is required tohold an informal public hearing. A 30-day advance notice containing the timeand place of the hearing is required. Inaddition, a fact sheet is developed toaccompany every draft permit. Itincludes the significant factual and legalbases used in preparing the draft permit.The comment period for the draft permitwill provide the public an opportunity tocomment on corrective action conditionscontained in the permit. In most cases,requirements for the RCRA FacilityInvestigation (where necessary) will beincluded in the schedule of compliancein the draft permit.

When a final decision is reached onwhether to issue or deny a permit, EPAregulations require that a notice of thedecision be sent to each person whosubmitted written comments on the draftdecision or who requested such a notice.In addition, a response to all significantcomments must be issued by the Agencyor the State. The response to commentsmust include a summary of substantivecomments received and an explanationof either how they were incorporated oraddressed in the final permit conditionor why they were rejected.

In addition to the established publicinvolvement activities required duringthe permitting process, today'sregulation proposes in § 270.36 toprovide the Director with the authorityto require an additional effort to keepthe interested public informed ofactivities at the site. Proposed § 270.36would allow the Director to require theestablishment of an informationrepository that would house documentspertinent to the corrective actionactivities near the facility. The details ofthe proposed repository are discussed insection VI.L of today's preamble. Inaddition, today's proposal would requirethe permittee to mail a summary of thefinal report of the RCRA FacilityInvestigation to all individuals on thefacility's mailing list to keep interestedpersons informed of findings at the site.

Today's proposal would also require amajor permit modification to incorporateremedy selection. The modificationwould provide an additional opportunityfor public involvement. Thismodification would follow establishedpublic participation procedures underpart 124 for major modifications. Inaddition, today's proposal provides thatadditional permit modifications initiatedby the Agency or the permittee will be

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classified on the basis of their potentialeffect on the permittee, the affectedpublic, and the environmental impact ofproposed changes. Those that areclassified as major modifications willfollow the existing procedures for majormodifications as described above. Thosethat have less significant impacts willfollow the procedures described undertoday's proposed § 270.34(c) or thoseissued on September 28, 1988 (53 FR37912) for owner/operator initiatedmodifications. In all cases there will bean opportunity for public review andcomment. Section VILL of today'spreamble discusses the classification ofpermit modifications for correctiveaction and their related proceduralrequirements more fully.

There may be some actions takenduring the course of a permit that arenot reflected in the initial permit and arenot the subject of a permit modification.For example, many of the detailedactivities taken by the permittee inimplementing the RFI or in designing theCMS plan may not be specified in theinitial permit. In some cases, EPA andthe permittee may reach a mutualagreement about the exact nature of therequired activities (within the generalscope of the permit), and the specifics ofthese activities may not be reflected in apermit modification. In such cases, thespecific activities agreed to will bedocumented on the permit record andthe public will have an opportunity tocomment on them when the permit ismodified at the time of remedyselection. This approach would belimited to activities that would notconstitute a major change that mightotherwise warrant application of thepublic participation requirementsspecified in 1 7004 of RCRA.

EPA believes that the approachoutlined above provides an appropriatebalance between the need to involve thepublic in the remedial process and theneed to proceed expeditiously to remedyreleases to the environment. The publicwill have a full opportunity to commenton all remedial activities undertakenduring the term of the permit, and nototherwise sibject to public scrutiny, atthe time of remedy selection. To theextent that public comment takeslegitimate issue with such activities,EPA may need to revisit some of theseactivities or modify its decisionregarding the remedy. Accordingly, EPAwill be very sensitive to possible publicreaction in specifying activities to beundertaken during the course of thepermit without public involvement.

Public involvement activities requiredin the permitting process and proposedtoday for the corrective action program

are similar, though not Identical, tothose established under the SuperfundCommunity Relations Program.Activities proposed today are inaddition to public involvement activitiesconducted at RCRA facilities targetedby the Agency for expanded publicinvolvement because of the highpotential for exposure to the populationor because of a high level of interest inthe community. Public involvementefforts at RCRA sites listed on theNational Priorities List and/or facilitieswhich will accept Superfund wastesshould be integrated with concurrentSuperfund community relations effortsto the extent possible.

EPA and State offices, as a matter ofpolicy, jointly issue permits. WhereStates are authorized to implement onlysome portions of the hazardous wasteprogram, the State and EPA may alsoconduct public involvement activitiesjointly.

IX. State AuthorizationA. Applicability of Rules in AuthorizedStates

Under section 3006 of RCRA, EPAmay authorize qualified States toadminister and enforce the RCRAprogram within the State. (See 40 CFRpart 271 for the standards andrequirements for authorization.)Following authorization. EPA retainsenforcement authority under sections3008, 7003 and 3013 of RCRA, althoughauthorized States have primaryenforcement responsibility undersection 7002.

Prior to the Hazardous and SolidWaste Amendments of 1984 (HSWA), aState with final authorizationadministered its hazardous wasteprogram entirely in lieu of EPAadministering the Federal program inthat State. The Federal requirements nolonger applied in the authorized State,and EPA could not issue permits for anyfacilities in the State which the Statewas authorized to permit. When new.more stringent Federal requirementswere promulgated or enacted, the Statewas obliged to enact equivalentauthority within specified time frames.New Federal requirements did not takeeffect in an authorized State until theState adopted the requirements as Statelaw.

In contrast, under section 3006(g)(1) ofRCRA, 42 U.S.C. 6926(g), newrequirements and prohibitions imposedby HSWA take effect in authorizedStates at the same time that they takeeffect in nonauthorized States. EPA isdirected to carry out those requirementsand prohibitions in authorized States,including the issuance of permits, until

the State is granted authorization to doso. While States must still adoptHSWA-related provisions as State lawto retain final authorization, the HSWArequirements apply in authorized Statesin the interim.

B. Effect on State Authorizations

1. Schedule and Requirements forAuthorization. Today's rule is proposedpursuant to section 3004(u), section3004(v), and section 3005(c)(3) of RCRA,provisions added by HSWA. Therefore,the Agency is proposing to add therequirements to Table I in 40 CFR271.1j), which identifies the Federalprogram requirements that arepromulgated pursuant to HSWA andtake effect in all States, regardless ofauthorization status. States may applyfor either interim or final authorizationfor the HSWA provisions identified inTable 1, as discussed in this section ofthe preamble.

EPA will implement today's rule in -authorized States until (1) they modifytheir programs to adopt these rules andreceived final authorization for themodification or (2) they receive interimauthorization as described below.Because this rule is proposed pursuantto HSWA. a State submitting a programmodification may apply to receive eitherinterim or final authorization undersection 3006(g)(2) or section 3006(b),respectively, on the basis ofrequirements that are substantiallyequivalent or equivalent to EPA's. Theprocedures and schedule for Stateprogram modifications for either interimor final authorization are described in 40CFR 271.21. It should be noted that allHSWA interim authorizations willexpire automatically on January 1, 1993(see 40 CFR 271.24(c)); EPA invitescomment on whether this deadlineshould be extended for cause.

EPA invites comment on an expeditedprocess for granting interimauthorization for today's rule, pursuantto RCRA section 3006(g)(2), to Statesalready authorized for HSWA correctiveaction pursuant to the initialcodification of section 3004(u) at 40 CFR264.101 (50 FR 28747, July 15, 1985). Anexpedited process is needed if such*States are to avoid losing their authorityto issue corrective action permits uponthe effective date of today's rule. Thisexpedited process would not involve adetailed review of the State regulations.Rather, when determining whether theState's regulations are substantiallyequivalent to today's rules, EPA wouldconsider the State's statutory authoritiesto impose similar corrective actionrequirements. Because today's rulesclarify the scope of and are consistent

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with, the July 15, 1985, codification rulefor which some States are authorized,these authorized States already shouldhave statutory authority to implementtoday's rules.

To ensure that today's rules areuniformly applied by a State grantedinterim authorization under thisapproach, a State applying for interimauthorization would be required tocommit, in the State-EPA Memorandumof Agreement, to implementing itscorrective action authorities accordingto the subpart S requirements. Inparticular, permits issued by the Statemust reflect subpart S requirements

* even prior to adoption by the State ofregulations equivalent to and no lessstringent than the subpart Srequirements. The State interimauthorization application under thisapproach, then, would consist of therevised Memorandum of Agreement(MOA), and a revised AttorneyGeneral's (AG) statement certifying thatthe State has the authority to enter intothe Memorandum of Agreement and thatpermits issued with the conditionsagreed to in the MOA would beenforceable under State law. EPAspecifically invites comment on whetherState law allows the State to make thisMOA commitment.

EPA believes this expedited processwill minimize disruptions to the Statepermit process. A State alreadyauthorized for corrective action whichapplies for interim authorization fortoday's rule shortly after its publicationas a final rule should be able to receiveinterim authorization prior to theeffective date and thus avoid the needfor EPA to resume responsibility forissuing permits containing correctiveaction conditions in that State.

Although requirements imposedpursuant to section 3006(g)(1) of HSWAtake effect in authorized States at thesame time as in unauthorized States,EPA believes that this requirementapplies only to the promulgation of theregulations identified in § 271.1(j) andonly to the extent that theserequirements put the HSWA program inplace. In passing section 3006(g)(1),Congress was concerned that no delayoccur before these requirements, once inplace in the Federal program, becameeffective in authorized States. However,Congress clearly did not intend for theauthorized State program's authority toreturn, in part, to EPA every time EPAwere to promulgate a subsequent, morestringent modification or addition tothese requirements promulgated underHSWA. Thus, once the basic frameworkfor the HSWA provisions has beenpromulgated and is essentially complete,

subsequent regulations promulgated byEPA will be adopted by Statesaccording to the timelines for non-HSWA regulations in 40 CFR 271.2i(e).In regard to today's rule, EPA issoliciting comment on whether theHSWA corrective action requirementsshould be considered essentiallycomplete with the adoption of theserequirements.

40 CFR 271.21(e)[2) requires thatauthorized States must modify theirprograms to reflect Federal programchanges, and must subsequently submitthe modifications to EPA for approval.The deadlines by which a State mustmodify its program to adopt thisproposed regulation will be determinedby the date of promulgation of the finalrule, in accordance with 40 CFR271.21(e). These deadlines can beextended In certain cases (40 CFR271.21(e)(3)). Once EPA approves themodification, the State requirementsbecome subtitle C RCRA requirements.

A State that submits its officialapplication for final authorization lessthan 12 months after the effective dateof these standards is not required toinclude standards equivalent to thesestandards in its application. However,the State must modify its program by thedeadlines set forth in 40 CFR 271.21(e).States that submit official applicationsfor final authorization 12 months afterthe effective date of these standardsmust Include standards equivalent tothese standards in their applications. 40CFR 271.3 sets forth the requirements aState must meet when submitting itsfinal authorization application.

In addition to meeting therequirements in 40 CFR part 271, a Stateseeking authorization for today's rulesmust demonstrate the ability to capablyimplement the base RCRA program aswell as the, additional HSWA elements.EPA's assessment of a State's capabilitywill reflect an evaluation of the State's.entire authorized program. Theassessment will examine not onlywhether a State is effectivelyimplementing the base program, but alsohow that State may implementadditional program areas.

2. States with Existing CorrectiveAction Programs. States that areauthorized for RCRA, but not forcorrective action may already haverequirements under State law similar tothose in today's rule. These Stateregulations have not been assessedagainst the Federal regulations beingproposed today to determine whetherthey meet the tests for authorization.Thus, a State is not authorized toimplement these requirements in lieu ofEPA until the State program

* modification is approved. Of course,States with existing standards maycontinue to administer. and enforce theirstandards as a matter of State law. Inimplementing the Federal program, EPAwill work with States under cooperativeagreements to minimize duplication ofefforts. In many cases, EPA will be ableto defer to the States in their efforts toimplement their programs, rather thantake separate actions under Federalauthority.

Additionally, some States havereceived authorization for HSWAcorrective action pursuant to the initialcodification of section 3004(u) at 40 CFR204.101 (50 FR 28747, July 15, 1985). TheJuly 15, 1985,.Codification Rule explainsat 50 FR 28730 that a State'sauthorization status may change inresponse to further implementation ofHSWA, i.e., when EPA publishesregulations that further define initiallycodified rules. A State that wasauthorized for corrective action underthe July 15, 1985, Codification Rule willno longer be authorized when today'srules are promulgated unless the Stateapplies for and receives interim or finalauthorization before the effective dateof the final promulgation of today'srules However, if such States have notobtained interim or final authorizationby the effective date, cooperativeagreements can be used so as to avoidinterruption of ongoing State correctiveaction activities. See the aboyediscussion of an expedited process forinterim authorization of such States.

C. Corrective Action and Mixed WasteAuthorization

On July 3, 1986, EPA published anotice that, to obtain and maintainauthorization to administer and enforcea hazardous waste program pursuant tosubtitle C of RCRA, States must haveauthority to regulate the hazardouscomponent of radioactive mixed wastes(51 FR 24504). Radioactive mixed wastesare wastes that contain hazardouswastes subject to RCRA and radioactivewastes subject to the Atomic Energy Act(AEA). Radioactive mixed wastes(except for the component subject toAEA) are considered to be a "solidwaste" for purposes of corrective actionat solid waste management units.Therefore, in order to obtainauthorization for corrective action,States must have previously obtained ormust simultaneously obtainauthorization for their definition of solidwaste, which must not exclude the non-AEA components of radioactive mixedwaste. This is because States must beable to apply their corrective actionauthorities to mixed waste units.

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X. Regulatory Impact Analysis

A. Executive Order No. 12291.Regulatory Impact Analysis

1. Background. In conjunction with thedevelopment of today's proposed rule,EPA performed a regulatory impactanalysis QA), as mandated byExecutive Order 12291. These analysesare required for "major" regulations,defined as those likely to result inannual effects on the economy of § 100million or more; a major increase incosts or prices for consumers orindividual industries; or significantadverse effects on competition,employment, investment, productivity.innovation, or international trade. Theresults of the RIA prepared for today'srulemaking demonstrate that the rule isa "major" regulation.

Pursuant to the Regulatory FlexibilityAct, 5 U.S.C. 601 et seq., the Agency isalso required to assess the impact of aproposed or final rule on small entities(i.e., small businesses, smallorganizations, and small governmentaljurisdictions). The results of thisassessment, which was conducted aspart of the RIA, are presented below insection X.B.

The complete regulatory impactanalysis document is available in thedocket established for this proposedrule. The following is a summary of theanalytical methodology used inconducting the RIA. and the results ofthe analysis.

2. Summary and Major Conclusions.The analysis conducted by the Agencyindicates that the corrective action rulemay result in a wide range of costs,depending on the nature of the remediesselected in site-specific decisionmnaking.Given the large, national scope of thisrule, and the flexibility provided by theprovisions outlined in this proposal,these uncertainties are expressed in thefollowing discussion.

Overall the analysis found that about31 percent of facilities are projected torequire corrective action for releases toground water from solid wastemanagement units (Media other thanground water were not analyzed due todata and modeling limitations.) Theaverage annualized per facility costs fornon-Federal facilities under today'sproposed rule are estimated to rangebetween $1.8 million to $0.4 million. Thetotal present value national cost of theproposed rule, as an increment over thepre-HSWA corrective action program, islikely to range between $7 billion and$42 billion. The costs of cleaning upFederal facilities, presented separately,are much more uncertain and couldrange between $3 billion to $18 billion.

The above results reflect two of fourregulatory alternatives that wereanalyzed which the Agency believesreflect the flexibility inherent in theproposed rule. These alternativesprovide an upper and lower bound tothe costs of the proposed rule and reflectthe Agency's uncertainty about severalof the data and assumptions used inestimating costs, such as the types ofremedial measures that will beultimately implemented. While bothregulatory alternatives would requirecleanup to health-based levels, the keydistinction between them is in thechoice of allowable corrective actionremedies. The analysis assumed that thelower bound option would be moreflexible than the upper bound (e.g., byallowing use of exposure controls incases where certain remedies weretechnically infeasible or prohibitivelyexpensive).

3. Scope and Analytical Approdch. Indeveloping the RIA for today's proposedrule, the Agency analyzed bothqualitatively and quantitatively severalbasic alternatives which could havebeen adopted in structuring thecorrective action rule The alternativesstudied cover a range, from a highlyconservative "cleanup to background"approach with very little flexibility inadjusting remedies for site-specificconditions, to alternatives which triggercleanup of releases in only limitedcircumstances, and would allow, inmany cases, contamination to remainwithin a facility's property and beyond.The analysis indicates that thesealternatives have quite differentenvironmental results, as well asimpacts on the regulated community.

In developing the RIA, EPA assembleddata to estimate the potential scope ofthe RCRA corrective action program.The data used in generating theseestimates was primarily obtained fromthe Agency's existing database onRCRA facilities (the "Hazardous WasteData Management System," orHWDMS), and an analysis conductedfor the RIA which examined a sampleset of 65 RCRA Facility Assessment(RFA) reports. These reports aretypically prepared by EPA or the Statesprior to issuance of RCRA permits, andprovide preliminary findings as to whatreleases have or may have-occurred,and what investigations should beconducted to verify and/or characterizethe releases. These preliminary RFAfindings were extrapolated to provideestimates of the numbers and types offacilities that may require correctiveaction. Certain data from the reportswere also used to support modeling forthe quantitative analysis of the RIA. Asummary of the RIA estimates as to the

size and distribution of RCRA facilitiesthat may need corrective action arepresented in the following section of thisdiscussion.

4. Potential Scope of the CorrectiveAction Program. EPA estimates thatthere are approximately 5,700 facilitiesregulated under RCRA subtitle C thatare potentially subject to the correctiveaction authorities of sections 3004(u)and 3008(h). Based on preliminarysurvey results from RFA reports, it isestimated that roughly 80,000 solidwaste management units exist at thesefacilities; this number includes some3,000 land-based hazardous wastemanagement units (e.g., hazardouswaste landfills and surfaceimpoundments) that were subject tocorrective action prior to the 1984HSWA amendments. The number ofsolid waste management units atindividual facilities varies widely, up toas many as 1,300. Federal facilities,because of their large size, typicallycontain many more solid wastemanagement units-an average of 55 perfacility, according to the RFA surveyresults. The survey indicated that thereare an average of 12 solid wastemanagement units (including hazardouswaste management units) at non-Federalfacilities.

The types of solid waste managementunits found at facilities are diverse.More than one-third (36 percent) aretanks used for storage or treatment ofwastes. Landfills comprise 16 percent,and surface impoundments 15 percentThe remainder are units such ascontainer storage areas, piles, landtreatment units. incinerators and othermiscellaneous units. The survey alsofound a wide diversity within unitcategories in terms of size, age, generalcondition, types of wastes managed, andother factors.

The survey revealed that, on average,62 percent of all facilities haveindications of possible releases, basedon RFA findings, sufficient to requirefollow-up remedial investigations (i.e.,RFIs). Typically, facilities that havesubtitle C land disposal units andincinerators are more likely to requirefollow-up investigations than aretreatment/storage facilities (74 percent,70 percent and 56 percent, respectively).The Agency's experience with thecorrective action program to date (asconfirmed by the RFAsurvey results)indicates that one-half of these Tacilities(or one-third of the total universe) will

* require some type of remedial action,based on the confirmation of a releasein the RFL

Potential releases of concern mostoften noted in RFA findings are releases

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to ground water and soil; of all facilities,30 percent have actual or suspectedreleases to ground water, 34 percent tosoil. Facilities with confirmed orsuspected releases to surface water andair are less common-17 percent and 7percent respectively, based on the RFAssurveyed.

Based on the results of the modelsused in the quantitative analysisconducted for the RIA, approximately 31percent (1,700 RCRA facilities) will haveground-water contamination requiringremediation.

5. Qualitative Analysis. EPAconsidered three strategies forimplementing corrective action underthe HSWA mandate that permits for alltreatment, storage, or disposal facilities(TSDFs) address releases from SWMUsto all environmental media. Thefollowing is a summary of eachalternative strategy.

Strategy I-Cleanup to backgroundlevels as soon as practicable for allfacilities. This strategy represented themost stringent and environmentallyconservative option of the three.Regulations modeled after this approachwould require complete restoration ofall contamination back to the unitboundary, as quickly as could bepracticably achieved. In order to ensurethat solid waste management unitswould continue to meet what wouldamount to a "zero release" standard,extensive source controls would berequired, perhaps often involvingtreatment or destruction of all wastesthat could cause future contamination.

This strategy would, if implemented,at least theoretically achieve the highestdegree of protection to human healthand the environment. Realistically,however, current technologies cannotconsistently achieve such a cleanupstandard. In addition, the economicimpacts of such a regulatory approachwould obviously be much greater thanthe other options, and could be expectedto cause substantially more owner/operators to become insolvent, therebyplacing additional demands on otherfunding sources, such as State orFederal cleanup funds.

Strategy 2-Cleanup to health-basedlevels, with flexibility in timing. Inbroad terms, this strategy would requirecleanup of releases to the unit boundaryto concentration levels safe for lifetimehuman exposure. The timing forachieving these levels would varydepending on a number of site-specificfactors, such as the extent and nature ofthe contamination, exposure potential,availability of technologies, and otherfactors. Source controls would berequired in order to prevent furtherreleases above health-based levels.

This strategy would also achieve aconservative level of protection. Theeconomic impacts of this strategy,,although substantial, would beconsiderably smaller than for Strategy 1.

Strategy 3--Cleanup to health-basedstandards only where actual orimminent exposure exists. UnderStrategy 3, corrective actions would berequired only if there was evidence ofactual or imminent exposure tocontaminated media- (e.g., contaminateddrinking water wells), above health-based standards. The extent of cleanupwould be tied to alleviating thatexposure; cleanup to the unit boundarywould not be required unless exposurewere actually of concern at that point.Required source control measures wouldbe less extensive than under Strategy 1or 2. Protection against future exposureto contamination would rely heavily oninstitutional controls.

This regulatory approach wouldachieve a minimum level of protection,as compared to the other two strategies.By allowing contaminated media toremain contaminated based on currentexposure patterns, protection againstfuture exposure could not beguaranteed. Thus, Strategy 3 is the leastprotective strategy. This strategy would,however, be substantially less costly toowner/operators, relative to Strategies Iand 2.

Today's proposed rule adopts theStrategy 2 approach. The Agencybelieves that this regulatory strategyprovides an optimum balance inensuring a high degree of protection ofhuman health and the environment,while not placing unnecessary burdenson facility owner/operators.

It should be understood that crafting acomprehensive rulemaking within thebroad confines of any of the threealternatives listed above would, ofnecessity, require addressing a largenumber of specific policy questions.Thus, a variety of specific regulatoryblueprints could be created under anyone alternative. In this regard, as notedbelow, we have developed twoalternatives for the purpose ofquantitative analysis that we believereflect the bounds of flexibility ofimplementation afforded by this ruleThis is reflected in the rule proposed.today, which is generally patterned afterStrategy 2, but also contains certainregulatory requirements that could beconsidered in line with Strategies I and3.

6. Description of Options AnalyzedQuantitatively. In developing thequantitative analysis for the RIA, asimilar range of regulatory options wereassessed as in the qualitative analysis.For comparison purposes, however, the

analysis also examined a "baseline"option-in effect, the pre-HSWAcorrective action program. In addition,the Agency developed four regulatoryoptions, two 6f which were generallybelieved to reflect the flexibilityinherent in the proposed rule. It shouldalso be noted that in structuring themodeling logic for this analysis, it wasnecessary to make certain assumptionsand use decision rules that vary slightlyfrom those used in the qualitativeanalysis; however, the broad regulatoryalternatives examined in the qualitativeand quantitative analyses are generallythe same.

The quantitative analysis examinedeach of the five regulatory options interms of the following criteria: cost,protection of human health and theenvironment, flexibility inimplementation, and technicalpracticability. This analysis evaluatesthe effects of each alternative only as itwould address contamination of groundwater.

Detailed information on the data usedin this analysis, and how the modelswere constructed, are presented in theRIA document. The following is asummary of the options modeled, andthe general assumptions used inconstructing each.

Option 1: Baseline (Pre-HSWA). Thisoption represents requirements underRCRA prior to enactment of the 1984HSWA corrective action requirementsand is used as the basis for comparisonof costs and benefits of other options.Only land disposal units that receivedhazardous waste after July 26, 1982, andthus were regulated under part 264,subpart F, were examined. Thecorrective action trigger and targetconcentrations are the same, either thebackground concentration or amaximum contaminant level. (Formodeling purposes, the baselinescenario assumed that cleanup targetswould not be established at "alternateconcentration limits" under subpart F.)Only onsite cleanup within the facilityboundary is addressed. Ground-waterremoval and treatment, or capping, arethe only corrective action remediescorlsidered.. option 2: Immediate Cleanup to

Background. This option is the strictestof those evaluated. All SWMUs,.inaddition to regulated subtitle C landdisposal units, were addressed, Anydetectable release to ground water inexcess of background levels wouldtrigger corrective action, and both on-

.site and off-site contamination must becleaned up to background levels as soonas practical. For purposes of this

•analysis, We assumed that bickground

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contamination did not exist and,therefore; assumed that cleanup tobackground was equivalent tcr cleanupto detection limits. Source controls are;requiredwith a bias toward excavation

Option 3: Immediate Cleanup toHealth-Based Standards. This option issimilar to the previous one -in that allSWMUs are addressed, source controlremedies such as excavation arerequired, and off-site contaminationmust be addressed as soon as detected.However, corrective action would betriggered only if concentrations weredetected above a health-based standard,rather than above backgroundconcentrations. This option involves astrong preference towards sourcecontrol remedies and towards cleanupof contamination as quickly as possible.Use of technical infeasibility waivers isvery limited, even if remedies cannotreasonably be expected to achieve thetarget. In addition, unlike the previousoption, cleanup of on-site contaminationcould be deferred until facility closure,at which point cleanup to health-basedlevels would be required.

Option 4: Flexible Cleanup toHealth-Based Standards. This option alsoaddresses SWMUs, and health-basedstandards are used as both trigger andtarget levels. As in the previous option.owners and operators may defercleanup of on-site releases until facilityclosure. However, in this alternativeowners and operators have considerableflexibility in identifying correctiveaction remedies. Here, remedies lesscostly than source control can be chosenif they achieve target within areasonable time frame. As a decisionrule to reflect the fact that the problemsof scale and other technical difficultieswill preclude certain remedies atcomplex sites, remedies that failed toachieve cleanup in a reasonable periodof time (assumed to be about 130 yearsfor this analysis) or that would beextraordinarily expensive (i.e., over $150million) were rejected as"impracticable." Instead. exposurecontrols would be relied on to preventrisk in these cases. It is'important tonote that this approach is not intendedto imply that remedies of this scopewould never be undertaken, or to definethe limits of technical practicability.

Option 5: Flexible Cleanup Based onActual Exposure. This option is the leaststringent of the five. It is similar toOption 4, except that cleanup of off-siteexposure could be deferred if there is noactual human exposure to the release. Ifthere is an off-site exposure, correctiveaction must address the exposure.Again, under this option, there is a

flexible approach towards remedyselection.

The Agency believes that options 3and 4 provide an upper and lower boundon the range of outcomes that may resultduring implementation of the proposedrule. This range results from the flexiblenature of the proposed rule and theuncertainty about the choice ofremediation measures in the field andthe performance of the remedies that areselected. EPA expects that the realeffects of the rule are likely to liesomewhere between these two options.

7. Results of Quantitative Analysis.The analysis estimated thatapproximately 31 percent of all RCRAfacilities will trigger corrective action inall the post-HSWA options analyzed, ascompared to 14 percent that wouldtrigger under the baseline pre-HSWAscenario. This reflects the requirementthat all SWMUs, not just land disposalunits, are subject to corrective actionunder post-HSWA options. Note thateven in the post-HSWA options,approximately two-thirds of thefacilities will not trigger correctiveaction for ground water.

It is important to note that differencesin trigger levels did not result insignificant differences in the number offacilities triggering corrective actions.However, differences in target levels forthe various regulatory options made asignificant difference in how manycorrective actions were "successful" inachieving cleanup levels, as is discussedlater in this section. In examining thepotential benefits of the proposal(Options 3 and 4) as compared to otheroptions, the Agency developed an"effectiveness' test which measures thedegree to which a particular option issuccessful in achieving its cleanup levelThe results of the test demonstrate thatOptions 3 and 4 are the most successfulin achieving the cleanup target. Thisanalysis supports the Agency's selectionof Options 3 and 4 for the proposed rule.The effectiveness test should not,however, be viewed as a measure of allthe potential benefits of remediation ofcontaminated ground water.

The point when corrective action istriggered was also analyzed. Theanalysis demonstrates that, for Option 2,in which corrective action must beginimmediately, approximately 26 percentof all existing RCRA facilities wouldinitiate corrective action in the first yearof the program. In Options 3, 4, and 5, inwhich on-site corrective action can bedeferred only about 12 percent of allfacilities would initiate corrective actionin the first year. The ability of a facilityto defer on-site corrective actions resultsin lower economic impacts.

For those facilities that triggercorrective action, the analysis estimatedthe length of time required for acorrective action to reduce contaminantconcentrations below the target levels atall wells within 1,500 meters of therelease. Under options requiring cleanupto health-based levels (i e., options 3, 4,and 5), about 51 to 56 percent of thefacilities reach cleanup targets at allwell distances within 75 years of theinitiation of corrective action. Incontrast, under the two options requiringcleanup to background, only about 34percent of facilities triggering correctiveaction are projected to achieve targetswithin 75 years: This further confirmsthe presumption that achieving cleanupto background concentrations may bedifficult or impossible to achievetechnically.

As part of the quantitative analysis,the Agency developed estimates of thecosts of corrective action under differentregulatory options on a per-facilitybasis, as well as on a national basis.Typical facility corrective action costsvary significantly depending upon thespecific regulatory option. The costanalysis demonstrates that the moststringent post-HSWA regulatory option,(i.e., Option 2, or "Immediate Cleanup toBackground") is by far the most costly*option, with a mean present value costof over $281 million per facility, and anannualized per facility cost of about $19million (at a 3 percent discount rate).

The upper bound proposed ruleoption, "Immediate Cleanup to Health-Based Standards" option (i.e., Option 3),was estimated to have a mean presentvalue per facility cost of $26.9 million,and annualized per facility costs of $1.8million. The lower bound regulatoryoption (i.e., Option 4, or "FlexibleCleanup to Health-Based Standards")was estimated to have a mean presentvalue cost per facility of $6.3 million,and annualized per.facility costs of $0.4million.

The baseline per-facility cost is thelowest of all the options at a meanpresent value cost of $3.8 million, and anannualized per-facility cost of $0.3million. The "Flexible Cleanup Based onActual Exposure" option (i.e., Option 5)was estimated to have a mean presentvalue cost of $4.8 million and annualizedper facility costs of $0.3 million.

The total national cost for EPA'scorrective action program is influencedby three parameters: The average costof each action, the number of facilitiesrequired to undertake corrective action,.and the cost to facility owners andoperators of undertaking requiredinvestigations National costs discussedbelow are presented in incremental.

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terms (i.e., after subtracting the costs ofthe baseline scenario).

The "Immediate Cleanup toBackground'" option is the mostexpensive, with an incremental totalcost above the baseline pre-HSWAscenario of $490 billion. This option wasestimated to have an annualized cost of$32.9 billion...

Among the other regulatory options,the differences in costs are primarily aresult of differences in timing of cleanupand in the flexibility afforded in terms ofchoosing corrective action remedies.Option 3 (i. e., "Immediate Cleanup toHealth-Based Standards") wasestimated at a total cost of $41.8 billion,with an annualized cost of $2.8 billion.This option is relatively costly, due inpart to modeling assumptions as to thetypes of remedial technologies thatwould be employed to meet thesestandards.

Option 4 (i.e., "Flexible Cleanup toHealth-Based Standards") was amongthe least costly, with a total cost of $7.4billion, and an annualized cost of $0.5billion. The costs are lower because, ingeneral, less expensive technologies areassumed and, for many facilities, fimal.cleanup of contaminated ground waterwould be deferred for a number ofyears, thus reducing the present valuecosts.

Option 5 (ie., "Flexible CleanupBased on Actual Exposure"), where bothon-site and off-site cleanup ofcontamination couldbe deferred untilclosure if there was no actual exposure,was somewhat less expensive than theabove option. This option had a totalcost of $5.0 billion, an annualized cost of$0.3 billion.

Today's proposed regulation is mostsimilar to Option 3 (Le., "ImmediateCleanup to Health-Based Levels") and.Option 4 (.e., "Flexible Cleanup toHealth-Based Standards"). These resultsillustrate that the total national costs ofthis rule are likely to range between $7and $42 billion. The relatively widerange reflects the uncertainty in anumber of areas, such as the timing ofcorrective action, the types of remedialmeasures that will be considered, andthe nature and difficulty of remedialmeasures that are selected. Overall, theAgency believes that this rangerepresents a reasonable bound of thepotential effects of the rule, and that inall likelihood, the actual effects will fallsomewhere within this range.

The Agency is committed to trying torefine these costs estimates beforepromulgation of the final rule. To help inthis effort, the Agency requests thatcommenters provide any data orinformation relevant to the analysisdescribed in the preamble or in the

acconipanying Regulatory ImpactAnalysis.

8. Economic lmpact& With the costinformation developed from thequantitative analysis, the RIA estimatedthe financial impacts of the proposedrule on affected firms. The results areexpressed in terms of predictions oftotal costs that facility owners andoperators would not be able to coverdue to insolvency. The results providean indication of the magnitude of coststhat could ultimately be faced byentities other than the immediate owneror operator of the facility. Alternatefunding sources might include theSuperfund (provided that the facilitywould be eligible for Superfundfunding, State remedial action funds,corporate parents of facility owners andoperators, or, through price increases,the customers of the firm owning oroperating the facility. The results of thisanalysis are presented in"'undiscounted" numbers, sinceSuperfund monies are generallydescribed in undiscounted terms. Forscenarios other than baseline, costs arepresented on an incremental basisrelative to the baseline.

Under the baseline scenario, it wasestimated that 9 percent of all firmsowning RCRA facilities would beadversely affected, creating totalunfunded costs of $97 million(undiscounted) over the next 50 years..

The "Immediate Cleanup toBackground" scenario generated by farthe highest level of unfunded costs,totaling $74 billion over the next 50years. The "Immediate Cleanup toHealth-Based Standards" option resultsin unfunded costs of over $5.1 billionover the next 50 years. The "FlexibleCleanup to Health-Based Standards"option results in unfunded costs of over$0.5 billion over the next 50 years. The"Flexible Cleanup Based on ActualExposure" option resulted in a total of$0.2 billion unfunded costs,undiscounted, over the next 50 years.

Based on the RIA analysis, EPAanticipates that the ability to fundcorrective action costs will varybetween industries. Industries that mayhave a relatively low ability to pay forcorrective actions include sanitaryservices coating, engraving, and alliedservices, and miscellaneous woodproducts. These industries haverelatively low net income levels.Industries that show a particularly highability to pay include petroleum refining,motor vehicles and motor vehicleequipment, and aircraft and aircraftparts.

9. Federal Facilities. The RIAdiscusses Federal facilities as a separateentity because, although they only

constitute 6 percent.of the total RCRAfacility universe, they contain manymore SWMUs per facility (on average,55 pet site) and therefore, may incurhigher corrective action costs. Thesecosts must be funded by public money.

Based on the RIA analysis, it isestimated that of the 32 Federal RCRAfacilities, between 61 percent and I00percent are likely to require gmund-water corrective action under theproposed rule, compared to between 17percent and 23 percent under thebaseline A rough approximation of thecosts for these corrective actions, pfacility, ranges from $17 million for thebaseline scenario to $1.3 billion for the"Immediate Cleanup to Background"option. For the options most similar tothe proposed rule (i.e., "ImmediateCleanup to Health-Based Standards"and "Flexible Cleanup to Health-BasedStandards") the mean per facility cost isestimated to range from $123 to $29million, or in annualized costs, fromabout $8 to $2 million per facility.

The total Federal facility costs,incremental to the baseline, for theoptions most similar to the proposalrange from $3 to $18 billion; theannualized costs range from $0.2 to $1.1billion. Again, this range reflects thelikely bounds on the ways in which theRCRA corrective action program willultimately be implemented for Federalfacilities. Incremental Federal facilitycosts for other regulatory approachescould be $208 billion for the "ImmediateCleanup to Background" option, or $2billion for the "Flexible Cleanup Basedon Actual Exposure" option. Baselinecosts are estimated to be $1 billion.

This analysis thus concludes that,although Federal facilities only comprise6 percent of the population affected bythe corrective action program, theycould incur roughly 30 percent of thetotal cost of the rule.

10. Further Regulatory ImpactAnalyses. Given the scope and potentialimpacts of this rulemaking, EPArecognizes the need to continue to refineits estimates of the costs and benefits ofthe rule. The Agency intends to collectadditional data and will conductsubstantial new analyses prior tofinalizing today's rule. In conductingthese studies, the Agency believes thaiit will be of particular value to examinethe experience gained in recent years inremediating Federal facilities. Largevolumes of information and extensivetechnical experience have beenaccumulated specifically by theDepartment of Defense and theDepartment of Energy. EPA intends toform an interagency working group to

,30864.




develop and conduct these furtherRegulatory Impact Analyses.

The new analyses will be conductedin accordance with the existing Agencyguidance on Regulatory Impact Analysisand the draft Regulatory ImpactAnalysis Guidance published in the 1988Regulatory Program of the United States.The analyses will explicitly examine thecosts, health and environmentalbenefits, and technological limitationsfor the key regulatory requirementscontained in the proposal-especiallyfor the several alternative approaches toground water remediation outlined inthe proposed rule. This analysis willalso estimate the aggregate impacts,identified above, for sites eligible forremediation under this rule and forthose sites which are listed on the NPL,and will, therefore, look to this rule asan ARAR, under the provisions ofCERCLA. Upon completion of therevised analyses, EPA will solicitcomment on the results of the analysesand the methodology used to derivethem. The Agency will then assess thesecomments, along with comments whichwill have been received previously onthe proposed rule. Through these actionsEPA will ensure that the net socialbenefits (including environmental andhealth benefits) of the rule proposedtoday are maximized, taking intoaccount costs, technological limitations,risks, and realistic assessments of bothactual and reasonably expected uses ofeach site. If the revised RIA, togetherwith the comments received,demonstrate that the rule proposedtoday does not-achieve this outcome, theAgency will make appropriate

modifications to the final rule, or ifnecessary, will repropose the rule.

B. Regulatory Flexibility Act

The Regulatory Flexibility Actrequires Federal agencies to fullyanalyze the economic effects ofregulations on small entities. TheAgency analyzed the economic impactsfor the regulatory options that are mostsimilar to today's proposed rule (i.e.,"Immediate Cleanup to Health-BasedStandards" and "Flexible Cleanup toHealth-Based Standards").

The RIA assumes that a smallbusiness is significantly impacted if itsexcess of cash flow over ten percent ofits total liabilities is insufficient to meetcorrective action costs, or if its netincome is insufficient to meet itscorrective action costs.

For the alternative analyzed, it wasfound that small firms encounter moresevere impacts from the correctiveaction requirements than large firms.The options most similar to theproposed rule result in incrementalimpacts (i.e., relative to the baseline) onapproximately 9 to 11 percent of smallbusinesses owning RCRA facilities.

Based on the Agency's guidelines forimplementing the Regulatory FeasibilityAct, the results of the analysis assummarized above, suggest that theproposed rule does not imposesignificant impacts on small entities.

C. Paperwork Reduction Act

The information collectionrequirements in this proposed rule havebeen submitted for approval to theOffice of Management and Budget

(OMB) under the Paperwork ReductionAct, 44 U.S.C. 3501 et seq. Reporting andrecordkeeping burden on the public forthis collection is estimated at 42,497hours for the 674 respondents, with anaverage of 1.151 hours per response.(Burden estimates should include allaspects of the collection effort and mayinclude time for reviewing instructions,searching existing data sources,gathering and maintaining the dataneeded, completing and reviewing thecollection of information. etc.)

If you wish to submit commentsregarding any aspect of the collection ofinformation, including suggestions forreducing the burden, or if you would likea copy of the information collectionrequest (please reference ICR #1451),contact Rick Westlund, InformationPolicy Branch, PM-223, U.S.Environmental Protection Agency, 401 MStreet, SW., Washington, DC 20460 (202-382-2745); and Tim Hunt, Office ofInformation and Regulatory Affairs,Office of Management and Budget,Washington, DC 20503. The final rulewill respond to any OMB or publiccomments on the information collectionrequirements contained in this proposal.

List of Subjects in 40 CFR Parts 264, 265,270, and 271

Administrative practice andprocedure, Corrective action, Hazardouswaste; Insurance, Reporting andrecordkeeping requirements.

Dated: July 5, 1990.William Reilly,Administrator.

XI. Supplementary Documents

APPENDIX A.-EXAMPLES OF CONCENTRATIONS MEETING CRITERIA FOR ACTION LEVELS

[Section 264.521 (a)(2)(i-iv)]

Constituent name Class Air(u/ Water Soils (mg/______31 (mg/L) j kg)

Acetonitrile ... . . . ............................................................. . ........................................ . . .............................................. D IAceton te ... . . ........ .

................................................................................................................................................................

D....Acetophenone .............................................................................................................................................................. .I 2E - 01.Acnitamnde ........... . . ............... ......... ............. .. ..................................................................................................... ........... : 2..... SE - 4 . ...

Acrylontile ...............................................................................................................................................................................Aldic b .......................................................................................................................................................................................Aldrn .............................................................................................................................................................................................Alyl cohol ...............................................................................................................................................................................Aluminum phosphide ............................................................................................................................................................Aniline ........................................................................................................................................................................................Antimnony ... ...................................................................... . ... .......................... ..................................................... ............... .....

Asbestos

e1 ..........

D ............

B2.D ............

D ............

B2.D ...........

1E-02.

2E-04.

7E-05 .......o1c-not

Barum cyanide ..................................................................................................................................................................... u .................................. I............................................................................................................................................................................... ............ - 1

A A.l

Benzidine .................................................................................................................................................................................. A ............ 2EUt Vil1Um ......... . . .................... ................................................. ... ...... ............................................................. 4i .......... I C --u

E-05.

tISLz-etnvIe mX ylDnnnlaie ............................................................................................................................................................. 4 0 ...............................

Bis(cnloroeU1y )eUler .............. ............................................................................................................................................. u-- .+ 0 .Bronodichloromethane (3).Bromnoform(3.........

3E-03 ........................................................................................................................................................... q ,- ..............................

irornom ethano .... .......................................................................................................................................Butyl

D .. ..... ..............

D .. 3E+01..C ............

4E-O0 .......2E-01 ........4E-O0 ........SE-06 ........6E-05 ........5E-02 ........2E-06.2E-01.1E-02.6E-03..IE-02.(1) ....... .

2E-00.(1) ................2E-07.8E-0S .......3E-03.3E-05 ........3E-05 .......7E-01.5E-02.7E-00 ........

8E+035E+028E+032E-011E-001E+024E-024E+023E+011E+023E+018E+01

6E+034E+033E-032E-015E+016E-01SE-012E+031E+022E+04

Barium,

benzyl phthalate ...............................................................................................................................................................

PUBMn ........................ .................................................................................................................................................. ....... ........ 4 ...........

% ...................................................................................................................................................................................... ............ 1 1 .....................

......... ......... .... ....................... ................ .............. . . ............ . .......................

30865

/'31

&E

4 ........B 'b



Federal Register I Vol. 55, No. 145 / Friday, Juy 27, 1990 t Proposed Rules

APPENDIX A.-ExAPLES OF CONCENTRATIONS MEETING CRITERIA FOR ACTION LEVELS-Continued

(Section 264.521(a)(2)(i-v))

Constituent name Caw A1 13) agOL) a SOi

Carbon tetrachlChloral........Chlordane-.Chlorim cyanidChlorobenzene.Chloroform (3),2-.loroprR0hrominur I

i ...........

Copper cyanide.

DOD. .DDD.

Diethyl pthalate..........Diethylnitrosamine.

Dmethylnitrm ne. ~ .-.

m-Dinitrobenzene ........2,4-Dinitrophenot ...........................2,3-Dinitrotoluene (and 2,6-, mixture)1,4-Dioxane ...........- -Diphenylamine .....................1,2-DiphenylhydrazineDisultoton .................Endosutfan ............................................Endothall.Endrin ..........EpichlorohycEthylbenzenEthylene dibFormaldehycFormic acid.

In ............

I3'~ lU~erVo..........

Heptachlor epoxide.Hexasclordlbenzo-pHexahlorobutadienalpha-HexachbrocVbeta-HexachlorocycHexachlooycloperHexactdooethane _Hexachlorophene -Hydrazine-.....-.Hydrogen cyanide-Hydrogen sulfite....Isobutyl aloDhol..Isophoroane ......Lead..............Uindane (gamma-hem-Phenylenedanin4

Maleic hydazie-Mercuwy norganic).Methacrylonitrfitl-Methomy......Methyl chloroCartioMethyl etyl keton.Methyl ISooutylMehw parathion.

. . ...........................

82.D .......2 .....D.m.

A ...D ..........D.-

0--..

D

B2.-

D;......0..-...D.

0.

D.

6..... ..

D-,

82.0.

B....

B2.

B2 ......

B2-

D---D0B2.-.

B ........D ..........

D ..........

B2....

Dt ...... .D ........-.

D2 ......

B2-IB ... ......

B2...

0.

0.

0.0.

D . ....

D ........

D ...........

B2.-..

D .........

B2 ........

B1..........D .............

D ............0.,

6E-04 w

3E-02-..

3E-03....

2E+01 -4E-02-

9E-05 .......

1E-02 ....

6E-04....

2E-i-02-.4E-02......3E-02-.....

2E-04

2E-05-_

7E-05 -.-

4E-03 -.

BE-01...t

5E-0 ...8E-0.......

8E-01 -........ .........

..... 0...........

........ .........3E-00-

2E-04....

2E+02.....

7E.............

30866

(1-. .....E-00..-4E-00 ...3E-04 ..-7E-02 .......3E-05-2E-00--7E-01.....6E-03-2E-01

2E-012E-O0.2E--O0 -

2E-O0.....7E-01.....IE-0-.3E-O01E-04-IE-04 ___IE-044E-00....6E-06_-BE-05-7E-00-..

IE-01 -

(1)-........

(1E.-.......

4E-011E-02--

2E-06...3E+01....2E-07.7E--01..7E-07.4E-03....7E-02.....5E-05--3E-03 .9E-01..4E-05-1E-03 ......2E-03 .---.

7E-01 --(1) .. ..............

4E-03....4E-00 ...........

4E-07

4E-07 ........

7E+01.......IE-2 .......8E-06

4E-0...

2E-OO-

7E-O3...

tonel. ....... ............ ....... . . ........ . ...

4E+O1

3E+038E+035E-002E+025E-014E+032E+031E+024E+024E+024E+024E+03

'4E+0340+032E+033E+037E+033E-002E-O02E-00SE+03IE-012E-O02E+04SE-OIE+012E+028E+022E+014E-026E+045E-032E+031E-02BE-O02E+02IE-O06E+012E+03QE-013E-004E-O02E+032E+017E+018E+03SE-03

2E+053E+012E-018E-02IE-049E+01IE-Or4E-O06E+028E+O2E+O12E-O12E+032E+022E+042E+03

6E-015E+028E+034E+042E+01SE-O02E+03

4E+034E+032E f01"

a -~~r CO ...

m(]o(in

.....

................. ............. ....... ............. - .1

........ ...... ............................................ I

we ......... ........




APPENDIX A.-ExAMPLES OF CONCENTRATIONS MEETING CRITERIA FOR ACTION LEVELS---Continued

[Section 264.521(a)(2)(-lv)]

Constituent name Class Air(u/ Water Soils (mg/_ m3) I (mg/L) kg)

line ....................................

line .......................................................................

n-Nitrosodiphenylamine .............n-Nitrosopyrrolidine ....................Nickel............................Nickel refinery dust ....................Nitric oxide ..................................Nitrobenzene ...............................Nitrogen dioxide ..........................Osmium tetroxide .......................Parathion .....................................Pentachlorobenzene ................Pentachloronitrobenzene ..........Pentachlorophenol .....................Phenol ..........................................Phenyl mercuric acetate ............Phosphine ....................................Phthalic anhydride ......................

'nenvis ...............................................................................Potassium cyanioe ...........Potassium silver cyanide..Pronarnide ......Pyridine.-... ...... ..........

Selenious acid ...................Selenourea .......................Silver ...............Silver cyanide ................Sodium cyanide ................Strvchnine. ..... ...

a .............................

etracnloroetnylene ....... . . . . . . . ... . ..... . . ..............................2,3.4,6-Tetrachloropheonol .....................................................................................................Tetraethyl lead .......................................................................................................................Tetraethyldithlopyrophosphate.Thallic oxide ..............................Thallium acetate ........................Thallium carbonate ..................Thallium chloride .......................Thallium nitrate ..........................Thallium sulfate .........................Thiosemicarbazide .....................Thirarn ......................................Toluene ...............................Toxaphene ................................1 - AoTrivh-Inhnnna.

ietnane ...........................

aceuc lo ..........................................12,3-Trichloropropane ..................

Vanadium pentoxide ...................Xylenes .................. I ..................Zinc cyanide ..................................Zinc phosphide ..............................

B ............B2 ..........B ...........

'B2 ..........82 ..........82.

B2.82 .........

B ..........A ............

D ............

D ............D ............D ............

D ............D ............

D ............

D ............

D ............D ............

D ............D ............B ..........

B ..........D ............

D ............

D ............

D ............

D ............

D ............

D ............

D ............

D ............

D ............C ............

D ............

D ............

C ............ I

B ..........

B ..........D ............

D ............

D ............

D ............

D ............

D ............

D ............

D ............

D ............

D ............

D ............

B2.

D ..... ......

D ............

B2 .....

;B2 ..........D.D.

D.

D.D.

0.

3E-01 ........6E-04 ........

2E-03........

4E-03........

2E-00 ........

1E-0........

1.E-00........

1E-03 ........2E-01..E-00........

................... .....

7E+03........3E-03..E+01 .......1E+03........

... E-01........

7E+02 ........ 1E+01 .......AC -n

2E-01 .......

1E+03...

................................................................................................

2E-03 .......(1) ................2E-01.3E-01....7E+01.2E-00.1E-02.

30867

Polycnlo

5E-03 ........6E-06 ........

2E-06 .......5E-06.1E-05.7E-03 .......2E-05 ........7E-01 ........

......... .........4E-00.2E-02.4E+01.4E-04.2E-01.3E-02.1E-01.1E-O0.2E+01.3E-03.1E-02 ........7E+01.5E-06.2E-00.7E-00.3E-00 ........4E-02.IE-01 .......2E-01.(1)...............4E-00.IE-O0.1E-02.7E-00.1E-02.1E-02.1E-02.2E-03.7E-04.IE-00.4E-06.2E-02.2E-03.3E-03.3E-03.3E-03.3E-03.3E-03 .......2E-01.2E-01.IE+01 .......(1) ................7E-01.3E-00 .......6E-03.'Ii

(1) MCL available; see appendix B.(2) The air action level for asbestos is measured in units of fibers/mililiters.

(3) There is an MCL for total trihalomethanes, which includes four constituents: bromoform, br6modichloromethane, chloroform, and dibromochloromethane

Concentration derived using exposure assumptions in appendix D and reference doses for systemic toxicants and verified risk-specific doses at 10-B for Class A and

B carcinogens and 10-5 for Class C carcinogens (see section VI.F.2.6 for further discussion).A. B and C represents class A, B and C carcinogens, respectively; D represents a systemic toxicant.

9E+011E-01

3E-021E-013E-011E+023E-012E+03

8E+034E+01BE+04BE-015E+026E+012E+022E+035E+046E-002E+012E+059E-024E+032E+046E+038E+012E+024E+022E+02BE+033E+032E+012E+043E+022E+013E+024E+011E+012E+038E-034E+016E-007E-006E-006E-007E-006E-005E+024E+022E+046E-012E+037E+031E+026 6E+012E+048E+03

* 4E+018E+025E+027E+02

* 2E+05* 4E+032E+01

I ...................... I ......................................................................................

..........................

.........................

..................... ......... ................ I



30868 Federal Register / Vol. 55, No. 145 / Friday, July 27, 1990 / Proposed Rules

APPENDIX B-MAXIMUM CONTAMINANTLEVELS

Constituent MCL (ppm)

Arsenic ............. ............Barium ...................................................Benzene ........ . . .............Cadmium ..............................................Carbon tetrachloride ...........................Chromium VI ........................................p. Dichlorobenzene .............................1,2-DIchloroethane ..............................1,1.-Oichloroethyene .........................

0.0510.0050.0100.0050.050.0750.0050.007

APPENDIX B-MAXIMUM CONTAMINANTLEVELS--Continued


2,4-D ....................................................2,4,5-TP Silvex ...................................Endrin ...................................................Fluoride ................................................Lead .....................................................U ndane ................................................M ercury ................................................M ethoxychlor ......................................Nitrate ..................................................

0.10.010.00024.00.050.0040.0020.1

10

APPENDIX B-MAXIMUM CONTAMINANTLEVELS--Continued


Selenium ............................................... 0.01Silver ..................................................... 0.05Toxaphene ........................................... 0.0051,1,1-Trichloroethane .......................... 0.2Trichloroethylene .............................. 0.005Trihalomethanes, total I ................... 0.10Vinyl chloride ............................... 0.002

'Including chloroform, bromoform, bromodichloromethane, and dibromochloromethane

APPENDIX C-RANGE OF CONCENTRATIONS FOR ESTABLISHING MEDIA PROTECTION STANDARDS FOR CARCINOGENS

Constituent name Class MaxAir MinAir Max- MinWater MaxSolI MinSoil(ug/m )(ug/ (mg/L) (mg/L) (mg/kg) (mg/kg)

Aldrin .............................................................................. ...............................................Allyl alcohol ......................................................................................................................Alum inum phosphide .......................................................................................................Aniline ................................................................................................ . . .Antim ony .......................................................................................... I ................................

Asbestos IBarium cyiBarium, brBenzidine ................................................Beryllium .................................................Bis(2-ethythexy)phthlate ....................Bis(chloroethyl)ether ............................Bromodlchloromethane .........................Bromoform .............................................Bromomethane ......................................

IOe ......................................................................................................

ODD.....DDE.DDT .....

2,4-Dichlorophenoxyacetic acid.1,3-Dichloropropene ....................Dieldrin ....................................fli=,thw nhthninto------------

..................... .................... i...... I............. ...................................................................... ...... ... .... . .................... ..................... ... ................ .. . .......

8E-02 8E-04 8E-04 8E-06 2E+01 2E-011E-00 1E-02 6E-03 6E-05 I1E+02 1E-00

............. ............. i .......... .............. ................... .......... ...........

2E-02 2E-04 2E-04 2E-06 4E-00 4E-02..................... .................... ......... .. ................... . .................... ...................

.......................................... i 6E-01 6E-03 1E+04 1E+02............. ...... ...... .................... .................... .................... ...................

7E-03 7E-05.............. .........2E-00 2E-02 ............. ....................

..................... .................... .................... ................... .................... ..... .............

2E-03 2E-05 2E-05 2E-07 3E-01 3E-034E-02 4E-04 8E-04 8E-06 '2E+01 2E-01

......................................... , 3E-01 3E-03 5E+03 5E+013E-01 3E-03 3E-03 3E-05 6E+01 6E-01

....................... .................. , 3E.-03 3E-05 5E+01 5E-01

..................... ...... ;..............i ...... ............. .........................................................

6E-0 2 6E-04 ................................................................................... ........ . .................... i.................... ..................... .................... .............................. ........... .................... ............. .. ........... .........

3E-0 3E-02 3E-02 3.E-04 5E+ .02 5

3E-01 3E-03 3E-03 3E-05 5E+01 5E-01

9E-03-05........................ ........................................................ .. .......... .......... I. ....... .................... .. ..... ... ...... ..

8E-03 0E0 2+2 20

..................... I................... I.................... ..................... .................... ...................

..................... .................... I .................... ..................... .................... ...................

.................... . ............... .... ... .... .... ............ . ..... ... ..;0 ... ... .. .... 0

.................... .................... I 1E-02 I1E-04 3 E+02 3 E-0

IE-00 ' IE-02 1 1E-02 1 E-04 I 2E+02 I 2E-00

6E-02 6E-04 I 6E-04 6E-06 I 11E+01 I. 1 E-01.................... ...... ............. , 8E-03 8E-05 2E+02 I 2E-00

4E-00 4E-02 4E-02 4E-04 8E+02 8E-003E-01 3E-03 6E4-03 6E-05 I1E+02 1E-00

22-02 2E-04 2E-04 2E-06 I 4-00 4E-02

laumlIlruill ..............

Calcium cyanide.Carbon disulfide..Carbon tetrachlorChloral ..................Chlordane ............Chlorine cyanide.Chlorobenzene....Chloroform ...........2-Chlorophenol ...Chromium (VI).Copper cyanide...

I ...................................................................................................................................................................................

.................. ; ......................................................

............................................................ I .............

7 ............. ......................................... I .........................................................................................

...............................................

..................................................................................................

.......................................

.......................................

................................................................................................................................................



Federal Register / Vol. 55, No. 145 / Friday, July 27, 1990 / Proposed Rules 30869

APPENDIX C-RANGE OF CONCENTRATIONS FOR ESTABLISHING MEDIA PROTECTION STANDARDS FOR CARCINOGENS-Continued

Constituent name Class MaxAir Mi i Water i MaxSod MSol(ug/m 3) (ug/m 3)_ Waerl (mg/L) .(mg/kg) (mg/kg)

aio......... ..... ................................... .......... ....................

ami . ... . . . ............................................o ...a................ ...... . ....

C,-, I ,u p - ..................................

2,3-Dintrotoluene (and 2.6-, mixture).1,4-Dioxane ...............Diphenylam ine .........................................1.2-Diphenvlhydrazine .............................

I .......................................................... ... . . . ........ ......... ............

IUl l IuI ul U v llwU ..... ................. . ...........................................................................

Form aldehyde ................................................................................................. * *Form ic acid.................................................................................................................Glycidyaldehyde ................................................................................................. ;Heptachlor .................... ............. ..............Heptachlor epoxide ........................... ........Hexachlordibenzo-p-dioxin .... ............ .. ..................... ..... ............Hexachlorobutadiene .................................................... * ..alpha-Hexachlorocycohexane .................................. ...beta-Hexachlorocyclohpxane....--...... .............Hexachlorocyclopentadiene ................................... ..............Hexachloroethane ................... ............. ............Heaclorophene.......................................................-....-.......Hydraz~ne .......................................................-...........Hydrogen cyanide. ........................... .........-.-..Hydrogen sufte ......................................Isobutyl acohol ...................................

isopnorone ...............- . ..- ..-.....

m-PhenylenediamirnMaleic anhydrideMaleic hydra.ide.Mercury (inorganic)Methcrylontrile..

Methyl chlorocarboiMethyl ethyl ketoneMethyl Isobutyl ketcMethyl parathion...ILA .t A-u 1hlrMif.

acniorocycmonexan .. ..................

11fit .............

N k refinery dust .. ......................................... .Nitric oxide ..................................................................Nitrobenzene ............... .................................................... ...Nitrogen dioxide ............................... .............Osmium ttoxide ..............................................................................

Pentacilorobenzene ...........................................................................Pentachlornitobenzene ........ .................................

Pentachlorophenol ........................................................Phenol ............................... ....................................... .................Phenyl mercuric acetate .......................................................................Phnsohine .............................................................................Phthalic anhydride ............Polychlonnated biphenylsPotassium cyanide .....Potassium silver cyanide.Pronamide ........................................................................................Pyridine ............................. .............Selenious acid .... ........ ............... .................. .Selenourea. ................ .. . . ...............Silver . .......... ........ -.--...Silver cyanide ......... .............................

.................. .... ............... ... .......................

2E-03 2E-05 2E-05 2E-07 5E-01 5E-03B2DB2D0B2B2DB2DDDDB2DB2B1

DD82B2B2

CB2

CD

'CDB2DDDCB2

82/CDDDDDDDDDDa

B2B8282B2B2B2DAIDIDDDCDCDDDDDB2DDDDDD0DDDSodium cyanide ........

Strychnine ...-........-.

7E-03 7E-05 7E-05 7E-07 1E-00 1 E-02.................... .................... .................... k .................... ...... ............. .. .. ..........

.................... .................... .................... k .................... . ..... ......... ..... ...........

..................................... 5E-03 5E-05 IE+02 IE-00.................................... 3E-01 3E-03 6E+03 6E+01............. ..... .. ................... .................... .................. ................ ... ..................

4E-01 4E-03 4E-03 4E-05 9E+01 9E-01

.................. ...... ........... .................... ................... ............. . .... ............... ................. .................... ....... ......... ... ... ......... ..... ... ............. ...................

8E+01 8E-01 4E-01 4E-03 7E+03 7E+01

5-1 503 4E-05 4E-07 BE-01 SE-038E-00 8E-02 .................................................

8E-02 8E-0 8E-04 8E-06 2E+01 2E-014E-02 4E-04 4E-04 4E-06 8E-00 8E-026E-05 6E-07 6E-07 1 E-08 1E-02 1E-044E-00 4E-02 4E-02 4E-04 9E+02 9E-006E-02 6E-04 6E-04 6E+08 1E-01 1E-012E-01 2E-03 2E-03 2E-05 4E+01 4E-01........ .. .. ......... ........... ............... .. ...... . .. ...... .. ..... ....

3E+01 3E-01 3E-01 3E-03 5E+03 5E+01

...... ... • ........................ ............ .... ..... .. ....... ............. ...... i..............

2E-02 2E-04 1E-03 1E-05 2E+01 2E-01

..................... .. .... . . ... ...... .................. .. .. ........

........................ ........ 9E-01 9E-03 2E+04 2E+02

..................- 3E-,03 3E-05 5E+01 5E-01

........................... . .. .... ................. ................

.. ...................... ...... .......... .......... ............... ....... ............ i..............

................. ..... ........ ...... ..................... i..................... .................. . ...... ...... ....

............................................................ .............. ..................... ..................

...... ................................................. ..................... ................... I..................

.................... ..................... .............. .... ..... ... .... . ... .................... ..... .............

... t........... ......... ........... ..................... u................................. ..................

............................. ......... ................... ...+0 - E-35+01 35-01 5E-01 5E-03 9E+03 95+01

6E-02 6E-04 6E-04' 6E+08 IE-01 1E-01........ . ......... ............... .... .................... n.................... .................... i..................

..................................... 2E-04 2E-06 3E-00 3E-02.. ................. SE-04 5E-06 1E+01 1E-01

..................................... IE-03 1E-05 3E+01 3E-01..................................... 7E-01 7E-03 1E+04 1E+02

2E-01 2E-03 2E-03 2E-05 3E+01 3E-01................... .... . ... . .......... ......... ..... . .... ... .....

4E-01 4E-03 ............................ .............. . .............................. ..................... .. ...... ............. .. ........ .. ...... .

................ ........................................ . ................... ................. ................

.. .............. . ...................... ..................... n ............. ...... ................... I......... ........

...... .......... ..................... ..................... .................. ............ ....... ..................

1E-00 1E-02 ....... ...... ............ ........... .. ............................ ...................................... ................... . ....... . ..... ................................................................................ ..........................................................

................... ..... .. ........ ... ....... ............. ........ ............ ..................... ...................

................... .................. . 5E-04 I 5 E-06 9E-00 9E-02

.................. ......... ....... .................. .................... ......................................

.................. . .............. . . .................. .................... .......... ......... ..................

...................................... ...................... ................... .......................................

.............. ....................... .... ... ... ......................

.................................. . ......... -

...................................................................

........... . . -. . . . . .................. ........................ .......



0 Federal Register / Vol. 55, No. 145 / Friday, July 27, 1990 / Proposed Rules

APPENDIX C-RANGE OF CONCENTRATIONS FOR ESTABLISHING MEDIA PROTECTION STANDARDS FOR CARCINOGENS-Continued

Isies[ MaxAir MinAir Max- MinWater MaxSol MinSoil(ug/m 3) (ug/m 3) (mglL) (mg/L) (mg/kg) (mg/kg)

1,1,1,2-Tetrachlorethane .................................................................................................t,2,4,5-Tetachlorobenzene .............................................................................................1,1,1,2-Tetrachloroethane ................................. .............................................................1.1,2,2-Tetrachloroethane ..............................................................................................ITetrachloroethylene .........................................................................................................2,3,4,6-Tetrachlorophonol ................................................................................................Tetraethyl lead ...................................................................................................................Totraethyldithiopyrophosphate .........................................................................................Thallic oxide ...............................................................................................................Thallium acetate ..........................Thallium carbonate ............................................................................................................Thallium chloride ...... .......................................................................................................Thallium nitrate .......................................................Thallium sulfate .................................................................................................................Thiosemicarbazide..........................................Thiram ..............................................................................................................................Toluene..............................................................................................................................Toxaphene .................................................................................................................1,2,4-Trichlorobenzene .....................................................................................................1,1,1,T dchloroethane .......................................................................................................1,1,2-Tdchloroethane ........................................................................................................T rchloroethylene ............................................................................................................Trichlorom onofluorom ethane ...........................................................................................nA C

acetic aGia ..................................................................................

1E+01 E-0. .E-Ot 3E+03 3E+03 3E+01

1E+01 IE-01 IE-01 tE-03 3E+03 3E+012E-00 2E-02 2E-02 2E-04 4E+02 4E-00

1E+02 IE-O0 7E-02 7E-04 IE+03 1E+01.................... ................... .................... .................... .................. ,..................

..................... .................... .................... .................... .................... ..................

..................... .................... p .................... .................... .................... i..................

.................... .................... .................... ..................... .................... .................

3E-01 3E-03 3E-03 3E-05 6E+01 6E-01

6E-O0 OE-02 6E-02 6E-04 1E+03 1E+01.................... ................... ... ..-0.3E--03 6E+03 6E+01

.................... .................... .................... .................... ....................................

2E+01

Zinc cyanide ............................................................... .................................. ,........... D ...........Zinc phosphide ................................................................................................................ D ............

2E-01 2E-01 2E-03 4E+03 I- 4E+01

Appendix D: Recommended ExposusreAssumptions for Use in Deriving ActionLevels

(Sections 264.521 (a)(2); (b); (c)(3); and(d))

1. In deriving action levels for hazardousconstituents in ground-water, assume a waterintake of 2 liters/day for 70 kg adult/70 yearlifetime exposure period.

2. In deriving action levels for hazardousconstituents in air, assume air intake of 20cubic meters/day for 70 kg adult/70 yearlifetime exposure period.

• 3. In deriving action levels for hazardousconstituents in soil, which are known orsuspected to be carcinogens, assume soilintake of 0.1 gram/day for 70 kg adult/70 yearlifetime exposure period.

4. In deriving action levels for hazardousconstituents in soil, other than those whichare known or suspected to he carcinogens,assume soil intake of 0.2 gram/day for 16 kgchild/5 year exposure period (age 1-6).*'

5. In derivingaction levels for hazardousconstituents in surface water designated bythe State for use as a drinking water source,assume a water intake of 2 liters/day for 70kg adult/70 year lifetime exposure period,unless intake of aquatic organisms is also ofconcern.

*Not to be averaged over a 70-year lifetime.

Appendix E: Examples of Calculationsof Action Levels

1. Governing Equations for Calculating ActionLevels

A. Systemic ToxicantsC=[RmD*W]/[I*AIwhere:C. =action level in medium (units are

medium-dependent);RfD=reference dose (mg/kg/day);W=body weight (kg);1=intake assumption (units are medium-

dependent); andA= absorption factor I (dimensionless).

B. Carcinogenic ConstituentsCm= [R*W*LT]/[CSF'I'A*ED]where:C.= action level in medium (units are

medium-dependent);R=assumed risk level (dimensionless) (10- 6

for class A & B; 10-5 for class Ccarcinogens);

W=body weight (kg);IT= assumed lifetime (years);CSF= carcinogenic slope factor (mg/kg/"

day)- ".

I=intake assumption (units are medium-dependent);

A=absorption factor (dimensionless); andED=exposure duration (years).

Assumed to be I for this appendix, based uponthe assumption that the human absorption rate willbe the same as the rate in the study upon which theRID or CPF was developed.

II. Example Calculations for HazardousConstituents in Air

A. Systemic ToxicantsExample calculation for 2,4-dinitrophenol:

C.= [0.002 (mg/kg/d)*1000 (p.g/mg)*70(kg)]/[20 (ms/d)*11=7.0 pg/m'

where:C.= action level in air (j.g/mj)RfD=0.002 mg/kg/day

.W=70 k8 adultI=20 ms/dayA=1

B. Carcinogenic ConstituentsExample calculation for 1,1,2,2-

tetrachloroethane:C.= [10 1000 (,±g/mg)*70 :yrs)*70 (kg)]/

[0.20 (mg/k/day)- *20 (m/day)*1*70(yrs)]=.175 jg/m

where:C.=action level in air ({g/m}

R=10- (1,1,2,2-Tetrachloroethane is a ClassC carcinogen)

W=70 kg adultLT= 70 year lifetimeCSF=0,20 (mg/kg/day)-'1=20 m3 /dayA=1ED= 70 year exposure duration

1ll. Sample Calculation for HazardousConstituents in Water

A. Systemic ToxicantsSample calculation for toluene:

C.=[0.30 (mg/kg/day)*70 (kg]/[2 (LIday)*1]=10.5 mg/L

where:C.=action level in water {mg/L)

1,zi- I ncnVanadiumXylenes....

.30870




RfD=0.30 mg/kg/day for tolueneW=70 kg adultI=2 L/dayA=1

B. Carcinogenic ConstituentsSample calculation for 1,1,2,2,-

tetrachloroethane:( (=[lO-5*70.k)*7o yr)]/[0.2 (mS/kg/

day)- 1*2 (L/day)*1*70 (yr)] =1.75E-03mg/L

Where:CW=action level in Water (rmg/L)R=10

-5 (1,1,2,2-Tetrachloroethane is a Class

C carcinogen)W=70 kg adultLT=70 year lifetime

CSF=0.20 (mg/kg/day)- 1

1=2 L/dayA=1ED=70 year exposure duration

IV, Sample Calculations for HazardousConstituents in Soils

A. Systemic ToxicontsExample calculations for toluene:

Cs =[0.30 (mg/kg/day)*16 (kg)]/[0.2 (g/day)*1*0.001 (kg/g] = 24,000 mg/kg

where:Cs=action level in soil (mg/kg]RfD=0.30 mg/kg/day for tolueneW=16 kg (5 year old child)1=0.2 g/dayA=1

B. Carcinogenic ConstituentsSample calculation for 1,1,2,2,-

tetrachloroethane:

C.=[10-"70 (kg])*70 (yrs)]/[0.20 (mg/kg/day)-'*0.1 (g/day)*0.001 (kg/g)*1*70(yrs)] =35.0 mg/kg

where:C.=action level in soil (mg/kg]R=10- 5 (1,1,2,2-tetrachloroethane is a Class C

carcinogen)W=70 kg adultLT=70 year lifetimeCSF=0.20 (rg/kg/day}-

I=0.1 g/dayA=1ED=70 year exposure duration

APPENDIX F-LIST OF CONSTITUENTS SHOWING ACTION LEVEL SOURCE DATA

Noncarcinogenic effects Carcinogenic effects

Constituent name Class Oral RFD Inhalation Oral slope Inhalation(mg/kg/d) RFD (mg/ factor (mg/ slope factor

kg/d) kg/d)- (mg/kg/d) I

ne .......................................

-l v. . . .......................... I ........................

Aldicarb .......................................A lddn .............................................................................................

Aniline ....................Antimony .........................

Barium cyanide .............................................................................Barium , ionic .................................................................................Benzidine .....................................................................................Beryllium ........................................................................................Bis(2-ethylhexyt)phthlate .............................................................Bis(chiloroethyl)ether ....................................................................Brom odichlorom ethane ...............................................................Brom oform ....................................................................................Brom om ethane .............................................................................Butyl benzyl phthalate ............. . . ............Cadm ium .......................................................................................Calcium cyanide ..........................................................................Carbon disulfide ...........................................................................Carbon tetrachloride ....................................................................Chloral ......................................................................... M ................Chlordane .................................Chlorine cyanide ..........................................................................

Chromium (VI).Copper cyanidem-Cresol ..........o-Cresol ............n-r-M=

tyanogen ...............................................................................................................................Cyanogen brom ide ................................................................................................................DDD ......................................................................................................................................DDE .......................................................................................................................................DDT .......................................................................................................................................Dibutyl phthalate ............................................................................................................Dibutylnitrosam ine .................................................................................................................3.3'-Dichlorobenzidine ..........................................Dichlorodifluoromethane ....................................................i 9_n'irhinmnk thAnn ..............................................................................................................

Dieldn.........................:....:Diethyt phthalate .......... .Diethyinitrosamine .........................

B2B2B2

DB262

D82

CDDB2826DB82

1.0E-016.OE-031.0E-012.0E-04

1.3E-033.OE-055.0E-034.OE-04

4.OE-041.OE-03

5.OE-05 .................................................. 4.5E-00 4.5E-00......................... 54E-01 2.4E-01

........................ 1.7E+01 1.7E+01

5.7E-03 ......................

...................I...................I........... ........

7.0E-025.OE-023.OE-035.OE-032.OE-02

2.E-022.OE-02

1.4E- 032.OE-015.0E-044.OE-02I.0E-017.OE-042.OE-036.OE-055.OE-022.0E-021.0E-025.OE-035.OE-035.OE-035.OE-025.OE-025.OE-022.OE-024.OE-029.OE-02

5.OE-041.OE-01

2.OE-01

9.OE-033.6E-031.OE-023.OE-045.OE-058.0E-01

5.OE+012.3E-01

1.OE-04 ................................................... 2.3E+02 2.3E+02........... .......... 4.3E-00 8.4E-00......................... 1.4E - 02 .......................

........................... 1.1E-00 1.IE-00........................ 1.3E- 00 .......................

......... .. I........................ .......................8.OE-03.....................................

............ .......... 1.3E-01 1.3E-01

....................... .... . E-0.. 1.3E-00

5.0E-03 ............................................

................ 6.1E-03 8.IE-02

........ •............................................1E + 01

.......................... 2.4E-01 ................. . .......................4E -01 .......................

................ 3.4E-01 3.4E-01

.................... 5.4E-00 5.4E-00...................... .......4.5E- 01 .......................

5.OE-02 ................................................ 9.1E-02 8.1E-02

...I......... ......... ..... .0E-01 1.2E-00

..................................................... E...................

......................... 1.6E+01 1.6E+01S......................... ,......................... ,.......................

1.5E+02 1.5E+02

30871

Acetone ......Acetonitrile.AcetophenoAcrylamide.

AsbesIC (21 .................................................................................

.................................. : .......................

..........................................................

..................................... ; ....................

..........................................................

,i ..........................................................................................................

..... ... ............... ;....................;........... .,...'. ........... ;....




APPENDIX F-LIST OF CONSTITUENTS SHOWING ACTION LEVEL SOURCE DATA-Continued

Noncarinogenc effects Carcinogenic effects

Constituent name Cls Oral RFD Inhalation Oral slope Inhalation0mgmgt factor (mg/ o a

mglkgld) kg/d) kg/d)-I (m/kg/d) I

Olmethote .......O~methynfrceoam n -.

m-Oinitrobenzene.2,4-Dinitrophenol.2,3-Dinitrotoluene (and1,4-Dioxane ..............Diphenylemine ............1, -Diphenylhydrazine .........Disulfoton .................Endosuffan ..........Endothall ............................Endrin ..................................Epichlorohyddn ....................Ethyroenzene .......................Ethylene dibromide.......Formaldehyde ..................Formic acid .................G~ycldyaldehyde ._.......Hoptchlor.. . ...

Heptachlor epoxide.......Hexachlordibenzo-p-dioxin.

alpha-Hexachorocyclohexbeta-HexachlorocyclohexgHexachlorocyclopentadierHexachioroethane ............Hexachlorophene .............Hydrazine ...........................Hydrogen cyanide ............Hydrogen eulfite.......Isobuty lcohol ...............Isophorone ........................Lead ..............................Undane (gamma-hexchl(m-Phenylenediamine.Maleic anhydride ...............Maeic ...............Mercury (inorganic) ...........Methacrylonitrile ...............Methomyl ...........................Methyl chlorocabonate....Methyl ethyl ketone ..........Methyl Isobutyl ketone.Methyl parathion ...............Methylene chloride ...........n-Nitroso-di-n-butylamine.n-Nitroso-n-ethyturea ........n-Nitroso-n-methylethylarrnNitrosodt-n-propylaminen-Nitrosodiethanolamine..n-Nitrosodienylamine ........n-Nitrosopyrrolidine ...........Nickel ...........................Nickel refinery dust ...........

1.e ................................................

Nitrogen daiaNitrogen dioxide ...................Osmium tetroxide .................Parathion ....................Pentachlorobenzene ............PentachloronitrobenzenePentachlorophenol............Phenol ...................................Phenyl mercuric acetate.

rii -w lii t ................ ...........................................

Phthalic anhydride .............................................Polychlorinated biphenyls ............................Potassium cyanide ............................................Potassium silver cyanide ...................................Pronamide . ......................Pyridine .................................................................

Selenious acid ............ . .............Selenourea... ................ ............Silver ...................................................................Silver cyanide ....... ... . . .........-Sodium cyanide .................................... ...

2.0E-02

1.OE-042.OE-03

,...................

2.5E.-02

4.OE-055.0E -05

2,0E-023.0E-041.OE-01

. ......................

................ ~ .. . . .. .. . ...........o....................... 5.1E+01 5.JE+01.......... . ........ ....... . ........

. ... 6.8E-011.1E-02

........ OE- 1 .OE-01

...................................... .......... ................

.... ........ ......., ....................... ..... ................

........... ........................ E -0 . 2E --03.......

8.52+01........... . . . . . ........... I . .. ................ I .............G..

2.OE-004.OE-045.OE-041.3E-0

2.OE-03....... ...............

..... ............. I..7.0E-03

3.0E-04

2.OE-O3.OE-033.0E-012.0E-01

7.6E-014.5E-02

............. ......... .. .....................

..... .... ............... .................I.... ............... 4.5E-00 4.5E-00

5 ........................ 9.1E-00 9.E-00............................ 6.2E+03 6.2E+03

3 7.8E-02 7.8E-.-02............................ 6.3E-00 6.3E-00........................... 1.8E-00 1.8E-00

2.OE-05 . ......................3 .............. 14E-02 1.4E-02. ................... ..........

.................... ............-i.

4.1E-03 I................... .

..... ........................................ ..................... .3.OE-04 ....................... 1.3E-00 ....... ..6.0E-03 .......... . . . ..................1,0E-01 .................................................5.0E-01 ...............................................3.0E-04 ............... .... ..1.OE-04 2.OE-04 ....................................2.5E-02 ............... . .......

5.0E-02 9.0E-02 ................ ...............6.OE-02 2.0E-02 .. .............2.5E-04 ....................... ....6.0E-02 ............. 7.5E-03 1.4E-02

5.4E-00 5.4E-00..................................... i .. .. .. .. ..... .. ........

.2 .......................B2 .....................

82............ B2 .........................B2 .........................

D 2.0E-02A .........................D 1.0E-01D 5.OE-04D 1.0E-00D 1.0E-05C 6.OE-03o 8.0E-04C 3.02-03D 3.OE-02D 6.0E-01D 8.0E-05D 3.0E-04o 2.0E-00B2 .......... ......

DDDDDDDDD

5.OE-022.0E-017.5E-021.0E-033.0E-035.0E- 033.0E-031.OE-014.OE-02

2.2E+017.OE-002.8E-004.9E-0321E-00

........................ I ....................... .I.

2.12-00...... .

60E-04 ........................ .......... .............................. I ........................ .............................................................................................................................................................................................. ....... ............... ............................................... .............. .......... 2.SE- 01........................ ......................... .......................

I ................... ......................... .................... ................................................................................................ ......................... ..... ...... ............. I ..................... ......................... ..... .......... ......... .... I ................ 7.7E- 00 .. ................................. I ........... .......... I .............. ... ......... .................................................................................................... ......................... .... ........ ..... .................. ; ... ............... ...... ................. -

............ ............ ............. ......... ...... ..............

........... I ............. ........... ............. ............. .......

.............. e .......... .................... .... ...... .............

.........................

......................... .. ....................

30872

Z. -. .................

tlexCnlorogwMUMUT10 ...................

Is............ . . .... . . ......... . .............

rCICIlexaY ei .....................................................................................

line .......................

Nitric OXin

-...-- :..

...........

....... ...... ....... t........ ...................................

.... ................................... ...... ...............

....................... ......................

.........................

...... ....... ................. I .................................................

................................................................................

.............. .............................................. .............. v ......... ...... ............................................................

..................................................................................

.................................................................... I .............

.........................

.........................

.........................

.........................

.........................




APPENDIX F-ULIST OF CONSTITUENTS SHOWING ACTION LEVEL SOURCE DATA-Continued

Noncarcinogenic effects Carcinogenic effects

Constituent name Class Oral RFD Inhalation Oral slope Inhalation(mg/kg/d) RFD (mg/ factor (mg/ slope factor

kg/d) kg/d)-1 (mg/kg/d)

Strychnine .......................................................................................................................................... D 3.OE- 04 .........................................................................Styrene .............................................. ............. ................ .......................... ........................................... C 2.0E- 01 ......................... ......................... .......................1,1,1 2-Tetrachlorethane ..................................................................................................................... C 3.OE- 02 ......................... 2.6E- 02 2.6E- 02

1,2,4,5-Tetrachlorobenzene ........ ...................................................................................................... D 3.OE- 04 .........................................................................1,1,1,2-Tetrachloroethane .................................................................................................................. C 3.O 0E- 02 ......................... 2.6E- 02 2.6E- 021,1,2,2-Tetrachloroethane ...................................................................................................................... C .................................................. 2.O E- 01 2.OE- 01Tetrachloroethylene ............................................................................................................................. B2 1.0E- 02 ......................... 5. E- 02 3.3E- 032,3,4,6-Tetrachlorophenol .................................................................................................................. D •3.OE-02 ................................................ .......................Tetraethyl lead ........................................................................................................................................ D 1.01E- 07 ...........................................................Tetraet yldithiopyrophosphate ............................................................................................................ D 5.OE- 04 .........................................................................Thallic oxide ........................................................................................................................................... D 7.OE- 05 .....................................................................Thallium acetate .................................................................................................................................... D 9.0E- 05 .........................................................................Thallium carbonate ...................................... ...................................................................................... D 8.0E- 05 .........................................................................Thallium chloride .................................... ............................................................................................ D 8.OE- 05 .........................................................................Thallium nitrate .................................................................................................................................. D 9.0E- 05 .......................................................................Thallium sulffate ....................................................................................................................................... D 8.OE- 05 ........................................................................Thiosem icarbazde ................................................................................................................................. D 6.O E- 03 .....................................................................Thirarn .................................................................................................................................................... D 5.OE- 03 ............. ; .......................................................Toluene .................................................................................................................................................. D 3.OE- 01 2.0E- 00 .............................................Toxaphene ........................................ .. ................. .......... .... ................................................................. B2 ............... . .................. 1.1E- 00 1.1E- 01,2,4-T chlorobenzene ............................................................................................................ ........ ................ ..... .. E. . .1,1,1-Tdchlorc ethane ............................................................................................................................. D 9.0E- 02 3.OE- 01 ................................................1,1,2-Trchloroethane ........................................................................................................................... C 4.O 0E- 03 ........................ 5.7E- 02 5. E- 0Tdchloroethylene .................................................................................................................................. B2 ................................................... 1 E- 02 .......................

Trlchlorom onofluorom ethane ............................................................................................................... D 3.OE- 01 2.OE- 01 ................................................2,4,5-Tdchlorophenol ............................................................................................................................ D 1.OE- 01 .........................................................................2,4,6-Trichlorophenol ............................................................................................................................. B2 ................................................. 2.0E- 02 2.0E- 022,4,5-Tdchlorophenoxyacetic acid ...................................................................................................... D 1.0E- 02 .........................................................................1,2,3-Tdchlom propane ........... .............................................................................................................. D 6.OE- 03..............................Vanadium pentoxide ............................................................................................................................... D 9.0 - 03..............................Xylenes .................................................................................................................................................... 2.OE- 00 3. E-01....................Zinc cyanide ....................................................................................................................................... D 5.0E- 02 ......................................................................Zinc phosphide ................................................................................................................................ D 3.0E- 04 .....................................................................

For the reasons set out in thepreamble, 40 CFR parts 264, 265, 270.and 271 are proposed to be amended asfollows:

PART 264-STANDARDS FOROWNERS AND OPERATORS OFHAZARDOUS WASTE TREATMENT,STORAGE, AND DISPOSALFACILITIES

1. The authority citation for part 264continues to read as follows:

Authority: 42 U.S.C. 6905,6912(a). 6924, and6925.

2. Section 264.1 Is amended byrevising paragraphs (d) and (g)introductory text to read as follows:

§ 264.1 Purpose, scope and applicability.• • * • •

(d) The requirements of this part applyto a person disposing of hazardouswaste by means of undergroundinjection subject to a permit issuedunder an Underground Injection control(UIC) program approved or promulgatedunder the Safe Drinking Water Act onlyto the extent they are required by§ 144.14 of this chapter and to the extentthey are included in a RCRA permit by

rule granted to such a person under part270 of this chapter.* * * * •

(g) Except as required under subpart Sof this part governing releases fromsolid waste management units, therequirements of this part do not applyto:• * * * *

§ 264.101 [Removed]3. In 40 CFR part 264, subpart F, it is

proposed to remove § 264.101.4. In 40 CFR part 264, subpart G, it is

proposed to amend § 264.113 byredesignating paragraphs (a)(1)(ii) as(a)(1)(iii) and (b](1)(ii) as (b)(1}{iii), andby adding new paragraphs (a)(1)(iij and(b)(1)(ii) to read as follows:

1 264.113 Closure time allowed forclosure.

(a) " " *(1) * • •

(ii) Corrective action required at theunit or the facility under subpart S willdelay the completion of partial or finalclosure; or

(b) *

(ii) Corrective action required at theunit or the facility under subpart S willdelay the completion of partial or finalclosure; or0* • • •

5. 40 CFR part 264 is amended byadding subpart S to read as follows:

Subpart S--Corrective Action for SolidWaste Management Units264.500 Purpose and applicability.264.501 Definitions.264.502-264.509 [Reserved].264.510 Requirement to perform remedial

investigations.264.511 Scope of remedial investigations.264.512 Plans for remedial investigations.264.513 Reports of remedial investigations.264.514 Determination of no further action.264.515-264.519 [Reserved]264.520 Requirement to perform corrective

measure study.264.521 Action levels.264.522 Scope of corrective measure studies.264.523 Plans for corrective measure

studies.264.524 Reports of corrective measure

studies.264.525 Selection of remedy264.526 Permit modification for remedy.264.527 Remedy design.264.528 Progress reports.264.529 Review of remedy implementation.264.530 Completion of remedies.

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264.531 Determination of technicalimpracticability.

264.532-264.539 [Reserved)264.540 Interim measuras.264.541-284.549 [Reserved]264.550 Management of wastes.264.551 Management of hazardous wastes.264.552 Management of non-hazardous solid

wastes.264.553-264.559 [Reserved]264.560 Required notices.

Subpart S-Corrective Action for Solid

Waste Management Units

§ 264.500 Purpose and applicability.(a) The provisions of this subpart

establish requirements for investigationand corrective action for releases ofhazardous waste, including hazardousconstituents, from solid wastemanagement units.

(b) The owner or operator of a facilityseeking a permit under subtitle C ofRCRA must institute investigations and/or corrective action, as necessary toprotect human health and theenvironment, for all releases ofhazardous waste, including hazardousconstituents, from any solid wastemanagement unit at the facility,regardless of the time at which wastewas placed in such unit.

(c) Requirements for investigationsand/or corrective action will bespecified in the permit. The permit willcontain schedules of compliance forsuch Investigations and/or correctiveaction (where such cannot be completedprior to issuance of the permit) andassurances of financial responsibility forcompleting such corrective action., (d) The owner or operator mustimplement corrective actions beyond thefacility property boundary, wherenecessary to protect human health andthe environment, unless the owner oroperator demonstrates to thesatisfaction of the RegionalAdministrator that, despite the owner'sor operator's best efforts, the owner oroperator was unable to obtain thenecessary permission to undertake suchactions. The owner or operator is notrelieved of responsibility to clean up arelease that has migrated beyond thefacility boundary where off-site accessis denied. On-site measures to addresssuch releases will be determined on acase-by-case basis. Assurances offinancial responsibility for completingsuch corrective action must be provided.

(e) For protection of ground waterfrom landfills, surface impoundments,land treatment units, and waste pilesthat received listed or identifiedhazardous waste after July 26, 1982, theprovisions of this subpart apply only asspecifically provided herein.

(f) The provisions of this subpart donot apply to:

(1) Permits for land treatmentdemonstrations using field test orlaboratory analyses (see § 270.63).

(2) Emergency permits (see § 270.61).(3) Permits by rule for ocean disposal

barges or vessels (see § 270.60(a)).(4) Research, development, and

demonstration permits (see § 270.65).

§264.501 Definitions.For the purpose of complying with the

requirements of this subpart, thefollowing definitions apply:

Corrective Action Management Unitmeans a contiguous area within afacility as designated by the RegionalAdministrator for the purpose ofimplementing corrective actionrequirements of this subpart, which iscontaminated by hazardous wastes(including hazardous constituents), andwhich may contain discrete, engineeredland-based sub-units.

Facility means all contiguous propertyunder the control of the owner oroperator seeking a permit under subtitleC of RCRA.

Hazardous Constituent means anyconstituent identified in appendix VIII of40 CFR part 261, or any constituentidentified in appendix IX of 40 CFR part264.

Hazardous Waste means a solidwaste, or combination of solid wastes,which because of its quantity,concentration, or physical chemical, orinfectious characteristics may cause, orsignificantly contribute to, an increasein mortality or an increase in seriousirreversible, or incapacitating reversible,illness; or pose a substantial present orpotential hazard to human health or the

* environment when improperly treated,stored, transported, or disposed of, orotherwise managed. The term hazardouswaste includes hazardous constituent asdefined above.

Release means any spilling, leaking,pouring, emitting, emptying, discharging,injecting, pumping, escaping, leaching,dumping, or disposing of hazardouswastes (including hazardousconstituents) into the environment(including the abandonment ordiscarding of barrels, containers, andother closed receptacles containinghazardous wastes or hazardousconstituents).

Solid Waste Management Unit meansany discernible unit at which solidwastes have been placed at any time,irrespective of whether the unit wasintended for the management of solid orhazardous waste. Such units Include anyarea at a facility at which solid wasteshave been routinely and systematicallyreleased.

§§ 264.502-264.509. [Reserved]

§ 264.510 Requirement to- performremedial Investigations.

If the Regional Administratordetermines that hazardous waste(including hazardous constituents) havebeen, are likely to have been, or, basedon site-specific circumstances, are likelyto be released into the environment froma solid waste management unit at thefacility, the Regional Administrator mayspecify in the permit schedule ofcompliance that the permitteeinvestigate and characterize solid wastemanagement units and releases fromsolid waste, management units at thefacility.

§ 264.511 Scope of remedialInvestigations.

(a) Investigations required under§ 264.510 shall characterize the nature,extent, direction, rate, movement andconcentration of releases, as required bythe Regional Administrator. In addition,such investigations may include, but arenot limited to, the following:

(1) Characterizations of theenvironmental setting at the facility,including-

(i)Hydrogeological conditions;(ii) Climatological conditions;(iii) Soil characteristics;(iv) Surface water and sediment

quality and other characteristics, or(v) Air quality and meteorological

conditions.(2) Characterization of solid waste

management units from which releaseshave been or may be occurring,including unit and waste characteristics.

(3) Descriptions of humans andenvironmental systems which are, mayhave been, or, based on site-specificcircumstances, may be exposed torelease(s).

(4) Information that will assist theRegional Administrator In assessingrisks to human health and theenvironment from releases from -solidwaste management units.

(5) Extrapolations of future movement,degradation and fate of contaminants.

(6) Laboratory, bench-scale or pilot-scale tests or studies to determine thefeasibility or effectiveness of treatmenttechnologies or other technologies thatmay be appropriate in implementingremedies at the facility.

(7) Statistical analyses to aid in theinterpretation of data required under§ 264.510, in accordance with statisticalmethods approved by the Regional.Administrator.

(b) Samples of ground water, surfacewater, soils, or air which are collectedas part of remedial investigations

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required under J 264.510 shall beanalyzed for those constituents andparameters determined to be necessaryby the Regional Administrator toaccurately and adequately characterizethe presence of hazardous wastes(including hazardous constituents) in thesamples.

§ 264.512 Plans for remedialInvestigations.

(a) The Regional Administrator mayrequire the permittee to develop andsubmit a plan(s) for conducting anyremedial investigations required under§ 264.510 of this subpart Such plansshall be subject to review and approvalor modification by the RegionalAdministrator, and shall be developedand submitted according to a schedulespecified in the schedule of compliance.Such plans may include, but are notlimited to, the following:

(1) Overall approach, includingobjectives, schedules, and qualificationsof personnel conducting investigations.

(2) Technical and analytical approachand methods for investigations.

(3) Quality assurance procedures,including:

(i) Data collection strategy;(ii) Sampling, chain of custody

procedures; and(iii) Methods of sample analysis.(4) Data management procedures,

including formats for documentinganalytical results and tracking samplecustody, and other results ofinvestigations.

(b) Upon approval or modification ofthe plan by the Regional Administrator,the plan shall be incorporated expresslyor by reference as a part of the permitschedule of compliance. The permitteeshall conduct the studies andinvestigations in accordance with theplan and any other requirementsspecified in the permit schedule ofcompliance.

§ 264.513 Reports of remedialInvestigations.(a) The Regional Administrator may

require periodic reports to be submittedby the permittee during remedialinvestigations required under § 264.510,and may, based on information from theinvestigations, or other information,require new or modified investigations.Such modifications will, if necessary, bespecified by modifying the' permitschedule of compliance.

(b) Upon conclusion of the remedialinvestigations, the permittee shallsubmit to the Regional Administrator forapproval:

(1) A final report describing theprocedures, methods, and results of theremedial investigatidns, in suchformat

and containing such Information asspecified by the Regional Administrator,and

(2) A summary of the report.(c) If, upon receipt of the final report

and summary, the RegionalAdministrator determines that the finalreport and summary do not fully satisfythe requirements for the report andsummary specified in the permitschedule of compliance, or otherwise donot providea full and accurate summaryand description of the remedialinvestigations, the RegionalAdministrator may require the permitteeto submit a revised report.

(d) Upon approval of the summary,the permittee shall mail it to allindividuals on the facility mailing list(required under § 124.10(c)(1)(viii)).

(e) All raw data, such as laboratoryreports, drilling logs and othersupporting information generated frominvestigations required under § 264.510shall be maintained at the facility (orother location approved by the RegionalAdministrator) during the term of thepermit, including any reissued permit.

§ 264.514 Determination of no furtheraction.

(a)(1) Based on the results ofinvestigations required under § 264.510or other relevant information thepermittee may submit an application tothe Regional Administrator for a permitmodification to terminate the scheduleof compliance for corrective action,according to the procedures for Class IIIpermit modifications under § 270.42.

(2) The permit modificationapplication must contain informationdemonstrating that there are no releasesof hazardous waste (includinghazardous constituents) from solidwaste management units at the facilitythat may pose a threat to human healthor the environment.

(b) If the Regional Administrator,upon review of the request for a permitmodification, reports submitted under§ 264.513, or other information,determines that there is no such threatto human health and the environmentfrom releases from solid wastemanagement units at the facility. TheRegional Administrator shall grant thepermit modification according to theprocedures of § 270.42.' (c) Any determination made pursuant

to § 264.514(b) will not affect theauthority or responsibility of theRegional Administrator to:

(1) Modify the permit at a later date torequire the permittee to perform such-,investigations and studies as may be,necessary to comply with the:requirements of this Subpart, If new'information or subsequent .analysis

indicates that there are, or are likely tobe, releases from solid wastemanagement units at the facility that

..may pose a threat to human health orthe environment; or

(2) Require continued or periodicmonitoring under the terms of the permitif the Regional Administratordetermines, based on site-specificcircumstances, that releases are likely tooccur.

§§ 264.515-264.519 [Reserved]

§ 264.520 Requirement to performcorrective measure study.

(a) If at any time the RegionalAdministrator determines thatconcentrations of hazardousconstituents in ground water In anitquifer, surface water, soils, or airexceed an action level (as definedunder § 264.521), and there is reason tobelieve that such hazardous constituentshave been released from a solid wastemanagement unit at the facility, theRegional Administrator shall require aspart of the permit schedule ofcompliance that the permittee perform acorrective measure study, according tothe requirements of § § 204.522-264.524,except as otherwise provided under§ 264.520(c).

(b) If the Regional Administratordetermines that a constittuent(s) presentin a concentration below an action level(as defined under § 264.521) may pose athreat to human health or theenvironment, given site-specificexposure conditions, and there is reasonto believe that the constituent(s) hasbeen released from a solid wastemanagement unit at the facility, theRegional Administrator may require acorrective measure study according tothe requirements of § § 264.522-264.524.

(c) If an action level has beenexceeded (as provided under§ 264.520(a), but the RegionalAdministrator determines that therelease(s) may nevertheless not pose athreat to human health and theenvironment, the RegionalAdministrator may allow the permitteeto apply for a determination of nofurther action, according to § 264.514.

(d) The Regional Administrator shallnotify the permittee in writing of therequirement to conduct a correctivemeasure study. This notice shall identifythe hazardous constituent(s) whichexceed action levels defined under§'264.521, as well as any hazardousconstituent(s) Identified pursuant to§. 264.520(b).

(e) For purposes of § § 24.520, 264521,264.525 (d) and (e]. the term"constituent" refers, to hazardous

. . .. 3087"13fl87 ;




constituents, as defined in 1 264.501, aswell as other hazardous wastes (asdefined in § 264.501) that are singlechemical constituents.

§ 264.521 Action levels.Action levels are defined as follows:(a) Action levels for constituents in

ground water in an aquifer which theRegional Administrator has reason tobelieve may have been released from asolid waste management unit at thefacility shall be concentration levelsspecified as:

(1) Maximum contaminant levels(MCLs) promulgated under § 141.2 of theSafe Drinking Water-Act (40 CFR part141 subpart B); or

(2) For constituents for which MCLshave not been promulgated, aconcentration which satisfies thefollowing criteria, assuming exposurethrough consumption of the watercontaminated with the constituent:

(i) Is derived in a manner consistentwith Agency guidelines for assessing thehealth risks of environmental pollutants(51 FR 33992, 34006, 34014, 34028); and

(ii) Is based on scientifically validstudies conducted in accordance withthe Toxic Substances Control Act(TSCA) Good Laboratory PracticeStandards (40 CFR part 792), orequivalent; and

(iii) For carcinogens, represents aconcentration associated with an excessupper bound lifetime cancer risk oflx1O- 6 due to continuous constantlifetime exposure, and considers theoverall weight of evidence forcarcinogenicity; and

(iv) For systemic toxicants, representsa concentration to which the humanpopulation (including sensitivesubgroups) could be exposed on a dailybasis that is likely to be withoutappreciable risk of deleterious effectsduring a lifetime.

(b) Action levels for constituents in airwhich the Regional Administrator hasreason to believe may have beenreleased from a solid wastemanagement unit at the facility shall bedefined as concentrations which meetthe criteria specified in§ 264.521(a)(2)(i}-{iv), assumingexposure through inhalation of the aircontaminated with the constituent, asmeasured or estimated at the facilityboundary, or another location closer tothe unit if necessary to protect humanhealth and' the environment.

(c) Action levels for constituents insurface water which the RegionalAdministrator has reason to believemay have been released from a solidwaste management unit at the facilityshall be specified as:

(1) Water Quality Standardsestablished pursuant to section 303(c) ofthe Clean Water Act (40 CFR part 131)by the State in which the facility islocated, where such standards areexpressed as numeric values; or

(2) Numeric interpretations of Statenarrative water quality standards, ifappropriate, where water qualitystandards expressed as numeric valueshave not been established by the State;or

(3) MCLs promulgated under the SafeDrinking Water Act for constituents insurface waters designated by the Statefor drinking water supply, wherenumeric values or numericinterpretations, described in paragraphs(1) and (2), are not available; or

(4) For constituents in surface watersdesignated by the State for drinkingwater supply for which numeric values,numeric interpretations, or MCLs (asdescribed in paragraphs 1-3 above) arenot available, a concentration whichmeets the criteria specified in§ 264.521(a)(2)(i)-(iv), assumingexposure through consumption of thewater contaminated with theconstituent; or

(5) For constituents in surface watersdesignated for a use or uses other thandrinking water supply and for whichnumeric values or numericinterpretations (as described inparagraphs (1) and (2) above) have notbeen established, a concentrationestablished by the RegionalAdministrator which meets the criteriaspecified in § 264.521(a)(2)(iHiv),considering the use or uses of thereceiving waters.

(d) Action levels for constituents insoils that the Regional Administratorhas reason to believe may have beenreleased from a solid wastemanagement unit at the facility shall bedefined as concentrations which meetthe criteria specified in§ 264.521(a)(2(i)-(iv), assumingexposure through consumption of thesoil contaminated with the constituent.

(e) If, for a constituent(s) detected inground water in an aquifer, air, surfacewater or soils, a concentration level thatmeets the criteria of § 264.521(a)-(d) isnot available, the RegionalAdministrator may establish an actionlevel for the constituent as:

(1) A level that is an indicator forprotection of human health and theenvironment, using the exposureassumptions for the medium specifiedunder § 264.521(aHd); or

(2) The background concentration ofthe constituent.

§ 264.522 Scope of corrective measurestudies.

(a) As determined by the RegionalAdministrator, corrective measurestudies required under § 264.520 mayinclude, but are not limited to, thefollowing:

(1) Evaluation of performance,reliability, ease of implementation, andpotential impacts of the remedy,including safety impacts, cross mediaimpacts, and control of exposure to anyresidual contamination.

(2) Assessment of the effectiveness ofpotential remedies in achievingadequate control of sources and cleanupof the hazardous waste (includinghazardous constituents) released fromsolid waste management units.

(3) Assessment of the time required tobegin and complete the remedy.

(4) Estimation of the costs of remedyimplementation.

(5) Assessment of institutionalrequirements, such as State or localpermit requirements, or otherenvironmental or public healthrequirements which may substantiallyaffect implementation of the remedy(s).

(b) The Regional Administrator mayrequire the permittee to evaluate as partof the corrective measure study one ormore specific potential remedies. Theseremedies may include a specifictechnology or combination oftechnologies that, in the RegionalAdministrator's judgment, achieves ormay achieve the standards for remediesspecified in § 264.525(a) givenappropriate consideration of the factorsspecified in § 264.525(b).

§ 264.523 Plans for corrective measurestudies.

(a) The Regional Administrator mayrequire the permittee to develop andsubmit a plan(s) for conducting acorrective measure study required under§ 264.520. The plan shall besubject toreview and approval or modification bythe Regional Administrator, and shall bedeveloped and submitted according to aschedule specified in the permitschedule of compliance. Such plans mayinclude, but are not limited to, thefollowing:

(1) Description of the generalapproach to investigating and evaluatingpotential remedies;

(2) Definition of the overall objectivesof the study;

(3) Description of the specificremedy(s) which will be studied;

(4) Plans for evaluating remedies toensure compliance with the standardsfor remedies specified in § 264.525(a);

(5) Schedules for conducting thestudy; and

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(6) Proposed format for informationpresentation.

(b) Upon approval or modification ofthe corrective measure study plan by theRegional Administrator, the plan shallbe incorporated expressly or byreference as part of the permit scheduleof compliance. The permittee shallconduct the studies and investigations inaccordance with the plan and any otherrequirements as specified in the permitschedule of compliance.

§ 264.524 Reports of corective mesurestudies.

(a) The Regional Administrator mayrequire periodic reports during theconduct of the corrective measure study,and may, based on information fromthese reports or other information,require the permittee to modify thecorrective measure study. Suchmodifications will if necessary, bespecified by modifying the permitschedule of compliance.

(b) Upon completion of the correctivemeasure study, the permittee shallsubmit a report summarizing the resultsof the study. This report must include adetailed description of the remediesassessed pursuant to I 264.522 or5264.524(a). The report shall describehow any proposed remedy(s) meets thestandards for remedies as specified in§ 64525(a).

(c) Upon review of the correctivemeasure study report, the RegionalAdministrator may require the permitteeto evaluate further, and report upon, oneor more additional remedies, or developparticular elements of one or moreproposed remedies. Such furtherrequirements will, if necessary, bespecifiedby modifying the permitschedule of compliance.

§ 264.525 Selection of remedy.Based on the results of the corrective

measure study, and any furtherevaluations conducted underJ 264.524(c), the Regional Administratorshall, except as otherwise providedunder paragraph (f) of this section,select a remedy that, at a minimum,meets the standards listed in paragraph(a) of this section.

(a) Standards for remedies. Remediesmust.

(1) Be protective of human health andthe environment;

(2) Attain media cleanup standards asspecified pursuant to paragraphs (d) and(e) of this section;

(3) Control the source(s) of releases soas to reduce or eliminate, to the extentpracticable, further releases ofhazardous wastes (including hazardousconstituents) that may pose a threat tohuman health and the environment, and

(4) Comply with standards formanagement of wastes as specified in§ § 264.550-264.559 of this. subpart.

(b) Remedy selection factors. Inselecting a remedy which meets thestandards of § 264.525(a), the RegionalAdministrator shall consider thefollowing evaluation factors asappropriate:

(1) Long-term reliability andeffectiveness. Any potential remedy(s)may be assessed for the long-termreliability and effectiveness it affords,along with the degree of certainty thatthe remedy will prove successful.Factors that shall be considered in thisevaluation include:

(i) Magnitude of residual risks interms of amounts and concentrations ofwaste remaining followingimplementation of a remedy, consideringthe persistence, toxicity, mobility andpropensity to bioaccumulate of suchhazardous wastes (including hazardousconstituents);

(ii) The type and degree of long-termmanagement required, includingmonitoring and operation andmaintenance;

(iii) Potential for exposure of humansand environmental receptors toremaining wastes;

(iv) Long-term reliability of theengineering and institutional controls,including uncertainties associated withland disposal of untreated wastes andresiduals; and

(v) Potential need for replacement ofthe remedy.

(2) Reduction of toxicity, mobility orvolume. A potential remedy(s) may beassessed as to the degree to which Itemploys treatment that reduces toxicity,mobility or volume of hazardous wastes(including hazardous constituents).Factors that shall be considered in suchassessments include:

(I) The treatment processes theremedy(s) employs and materials itwould treat;

(ii) The amount of hazardous wastes(including hazardous constituents) thatwould be destroyed or treated;

(iii) The degree to which the treatmentis irreversible;

(iv) The residuals that will remainfollowing treatment, considering thepersistence, toxicity, mobility andpropensity to bioaccumulate of suchhazardous wastes (including hazardousconstituents).

(3) The short-term effectiveness of apotential remedy(s) may be assessedconsidering the following:

(i) Magnitude of reduction of existingrisks;

(ii) Short-term risks that might beposed to the community, workers, or theenvironment during Implementation of

such a remedy, including potentialthreats to human health and theenvironment associated withexcavation, transportation, andredisposal or containment;

(iii) Time until full protection isachieved.

(4) Implementability. The ease ordifficulty of implementing a potentialremedy(s) may be assessed byconsidering the following types offactors:

(i) Degree of difficulty associated withconstructing the technology;

(ii) Expected operational reliability ofthe technologies;

(iii) Need to coordinate with andobtain necessary approvals and permitsfrom other agencies;

(iv) Availability of necessaryequipment and specialists;

(v) Available capacity and location ofneeded treatment, storage and disposalservices.

(5) Cost. The types of costs that maybe assessed include the following:

(i) Capital costs;(ii) Operation and maintenance costs;(iii) Net present value of capital and

operation and maintenance costs;(iv) Potential future remedial action

costs.(c) Schedule for remedy, The Regional

Administrator shall specify as part ofthe selected remedy a schedule(s) forinitiating and completing remedialactivities. The Regional Administratorwill consider the following factors indetermining the schedule of remedialactivities:

(1) Extent and nature ofcontamination.

(2) Practical capabilities of remedialtechnologies in achieving compliancewith media cleanup standards, andother objectives of the remedy.

(3) Availability of treatment ordisposal capacity for wastes managedduring implementation of the remedy.

(4) Desirability of utilizingtechnologies which are not currentlyavailable, but which may offersignificant advantages over alreadyavailable technologies in terms ofeffectiveness, reliability, safety, orability to achieve remedial objectives.. (5) Potential risks to human healthand the environment from exposure tocontamination prior to completion of theremedy.

(6) Other relevant factors.(d) Media Cleanup Standards. Except

as otherwise provided by § 264.525[d)(2),the Regional Administrator shall specifyin the selected remedy requirements forremediation of contaminated media asfollows:

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(1) Regional Administrator shallspecify concentration levels ofhazardous constituents in ground water,surface water, air or soils that theremedy must achieve, as necessary toprotect human health and theenvironment. Such media cleanupstandards will be established by theRegional Administrator as follows:

(i) The cleanup standard(s) shall beconcentration levels in the affectedmedia which protect human health andthe environment.

(ii) Unless a lower concentration levelis deemed necessary to protectenvironmental receptors, cleanupstandards shall be established asfollows:

(A) For known or suspectedcarcinogens, cleanup standards shall beestablished at concentration levelswhich represent an excess upperboundlifetime risk to an iridividual of between1X 10 - 4 and I X10 - 6. The RegionalAdministrator shall use the IX 10-. risklevel as the point of departure inestablishing such concentration levels.

(B) For systemic toxicants, cleanupstandards shall represent concentrationlevels to which the human population(including sensitive subgroups) could beexposed on a daily basis withoutappreciable risk of deleterious effectduring a lifetime.

(iii) In establishing media cleanupstandards which meet the requirementsof § 264.525(d)(1) (i) and (ii), above, theRegional Administrator may considerthe following:

(A) Multiple contaminants in themedium;

[B) Exposure threats to sensitiveenvironmental receptors;

(C) Other site-specific exposure orpotential exposure to contaminatedmedia;

(D) The reliability, effectiveness,practicability, or other relevant featuresof the remedy.

(iv) For ground water and surfacewater that is a current or potentialsource of drinking water, the RegionalAdministrator shall consider maximumcontaminant levels promulgated undersection 141.2 of the Safe Drinking WaterAct (40 CFR part 141 subpart B) inestablishing media cleanup standards.

(v) If the permittee can demonstrate tothe satisfaction of the RegionalAdministrator that a specificconcentration of a constituent in amedium at the facility is naturallyoccurring or from a source other than asolid waste management unit at thefacility, the cleanup level establishedunder this Subpart for the constituent inthe medium shall not be below thatspecific concentration, unless theRegional Administrator establishes that-

(A) Remediation to levels below thatspecified concentration is necessary toprotect human health and theenvironment; and

(B) Such remediation is in connectionwith an areawide cleanup under RCRAor other authorities.

(2) The Regional Administrator maydetermine that remediation of a releaseof a constituent from a solid wastemanagement unit to a media cleanupstandard established pursuant to§ 264.525(d)(1) is notnecessary if thepermittee demonstrates to the RegionalAdministrator's satisfaction that:

(i) The affected medium is alsocontaminated by substances that arenaturally occurring or have originatedfrom a source other than a solid wastemanagment unit at the facility, andthose substances are present inconcentrations such that remediation ofthe release from the solid wastemanagement unit would provide nosignificant reduction in risks to actual orpotential receptors; or

(ii) The constituent(s) is present inground water that:

(A) Is not a current or potential sourceof drinking water, and

(B) Is not hydraulically connectedwith waters to which the hazardousconstituents are migrating or are likelyto migrate in a concentration(s) greaterthan an action level(s) specifiedaccording to § 264.522; or

(iii) Remediation of the release(s) tomedia cleanup standards is technicallyimpracticable.

(3) If a determination is madepursuant to paragraph (d)[2) of thissection the Regional Administrator mayrequire any alternative measure(s) orstandards he or she determines arenecessary to protect human health andthe environment, including the control offurther releases.

(e) Compliance with media 'leanupstandards. The Regional Administratorshall specify in the remedy requirementsfor achieving compliance with the mediacleanup standards established under§ 264 525(d) (or alternative levels under§ 24.525(d)(1)(v) or (d)(3)), as follows:

(1) The Regional Administrator shallspecify where compliance with suchstandards or levels must be achieved, asfollows:

(i) For ground water, the cleanupstandard(s) or levels shall be achievedthroughout the contaminated groundwater, or, at the RegionalAdministrator's discretion, when wasteis left in place, up to the boundary of awaste management area encompassingthe original source(s) of release.

The Regional Administrator shallspecify the locations at which ground-

water monitoring wells must be locatedfor purposes of:

(A) Monitoring the effectiveness of theground-water remediation program; and

(B] Demonstrating compliance withthe ground-water cleanup standard(s) orlevel(s).

(ii) For air, the cleanup standard(s) orlevel(s) shall be achieved at the locationof the most exposed individual, or otherspecified point(s) of exposure closer tothe source of the release, if determinedby the Regional Administrator to benecessary to protect human health andthe environment. The RegionalAdministrator shall specify locationswhere air monitoring devices must beinstalled, or what emission modeling ortesting, atmospheric dispersion models,or other methods must be used todemonstrate that compliance with anyair cleanup standard(s) or level(s) hasbeen achieved at the point(s) ofexposure.

(iii) For surface water, the cleanupstandard(s) or level(s) shall be achievedat the point where the release(s) entersthe surface water. For releases that haveaccumulated in surface watersediments, the Regional Administratormay, as necessary to protect humanhealth and the environment, require thata cleanup standard(s) or level(s) beachieved at designated locations in thesediments. The Regional Administratorwill specify the locations where surfacewater or sediment samples must betaken to monitor surface water quality,and demonstrate that compliance withany surface water cleanup standard(s)or level(s) has been achieved.

(iv) For soils, the cleanup standard(s)shall be achieved at any point where'direct contact exposure to the soils mayoccur. The Regional Administrator willspecify the locations, or methods fordetermining appropriate locations,where soil samples must be taken todemonstrate compliance with the soilcleanup standard(s) or level(s).

(v) If the owner/operator is unable toobtain the necessary permission toundertake corrective action beyond thefacility boundary, and can demonstrateto the satisfaction of the RegionalAdministration that despite the owner/operator's best efforts. she is as a resultunable to achieve media cleanup.standards or levels beyond the facilityboundary, then media cleanupstandards or levels must be achieved tothe extent practicable, as specified bythe Regional Administrator.

(2) The Regional Administrator willspecify in the remedy the sampling andanalytical methods, any statisticalanalyses that may be required. and thefrequency(s) of sampling or monitoring

v _m30878




that may be required to characterizelevels of hazardous constituents inground water, surface water, air or soils.

(3).The Regional Administrator willspecify in the remedy the length of timeduring which the permittee must, inorder to achieve compliance with amedia cleanup standard or leveldemonstrate that concentrations ofhazardous constituents have notexceeded the standard(s). Factors thatmay be considered by the RegionalAdministrator in determining thesetiming requirements include:

(i) Extent and concentration of therelease(s);

(ii) Behavior characteristics of thehazardous constituents in the affectedmedium;

(iii) Accuracy of monitoring ormodeling techniques;

(iv) Characteristics of the affectedmedia; and

(v) Seasonal, meteorological, or otherenvironmental variabilities which mayaffect the accuracy of monitoring ormodeling results

(f) Conditional remedies. (1) If thecriteria of § 264.525[f)(2) are met, theRegional Administrator may select aconditional remedy that protects humanhealth and the environment underplausible exposure conditions during theterm of the permit.

(2) A conditional remedy must:(i) Protect human health and the

environment; and(ii) Achieve all media cleanup

standards or levels as specifiedpursuant to paragraphs (d) and.(e) ofthis section beyond the facilityboundary as soon as practicable; and

(iii) Prevent further significantenvironmental degration byimplementing, as soon as practicable:

(A) treatment or other necessaryengineering controls to control anysource(s) of releases; and

(B) engineered measures'as necessaryto prevent further significant migrationof releases within the facility boundary.

(iv) Institute effective institutional orother controls to prevent any significantexposure to hazardous wastes at thefacility; and '

(v) Continue the monitoring ofreleases so as to determine whetherfurther significant environmentaldegradation occurs; and

(vi) Include assurances of financialresponsibility for the remedy; and

(vii) Comply with standards formanagement of wastes as specified in§ § 254.550-264.559 of this subpart.

(3) If at any time during the term ofthe permit, any condition of paragraph(0(2) of thls section is violated, theRegional Administrator shall modify thepermit to:

(i) Require the pernittee to performadditional studies or actions, orimplement additional controls toachieve compliance with therequirements of paragraph (f)(2) of thissection; or

(ii) Require additional studies, actions.or controls as necessary to implement aremedy which meets the standards of

264.525(a).(4) The permit shall not be terminated

until a remedy which meets thestandards of § 264.525(a) has beenimplemented and certified completeaccording to § 264.530.

§ 264.526 Permit modification for remedy.(a) The Regional Administrator shall

modify the permit to specify the remedyselected according to § 264.525,according to the procedures for majorpermit modifications under § 270.41.

(b) The permit modification shallinclude, at a minimum, the following:

(1) Description of the technicalfeatures of the remedy that arenecessary for achieving the standardsfor remedies specified in § 264.525(a)and/or (f).

(2) All media cleanup standardsestablished pursuant to § 264.525(d).

(3) Requirements for achievingcompliance with media cleanupstandards, pursuant to § 264.625(e).

(4) Requirements for complying withthe standards for management ofwastes, pursuant to § § 264.550-264.559.

(5) Requirements for removal,decontamination, closure, or post-closure of units, equipment, devices orstructures that will be used toimplement the remedy.

(6) A schedule for initiating andcompleting the major technical featuresand milestones of the remedy.

(7) Requirements for submission ofreports and other information.

(c)(1) The schedule of compliancespecified in the permit modificationshall include a schedule for thepermittee to demonstrate financialassurance for completing the remedyspecified according to J 264.526(b). Theschedule shall require the demonstrationno later than 120 days after the effectivedate of the permit modification.

(2) If the remedy requires closure of ahazardous waste management unit, andthe schedule of compliance for theremedy supplants or modifies the unit'sclosure or post-closure plan, theRegional Administrator may partially orfully release existing financial assurancefor closure, post.closure, and third party'liability required under § § 264.143,264.145, and 264.147. Such releases shallnot be effective until the financialassurance requirements at§ 264.520(c)(1) are satisfied.

(d) A remedy specified in a permitmodification may be separated intophases. A remedy phase may consist ofany set of actions performed over time,or any actions that are concurrent butlocated at different areas, provided thatthe actions are consistent with the finalremedy.

§ 264.527 Remedy design.(a) The Regional Administrator may

require the permittee, upon modificationof the permit according to § 264.526, toprepare detailed construction plans andspecifications to implement theapproved remedy at the facility, unlesssuch plans and specifications havealready been specified in the permitmodification. Such plans shall besubject to review and approval ormodification by the RegionalAdministrator, and shall be developedand submitted in accordance with thepermit schedule of compliance. Uponapproval by the Regional Administrator,the plan shall be incorporated expresslyor by reference into part of the permitschedule of compliance. The plans andspecifications must include, but are notlimited to, the following:

(1) Designs and specifications forunits in which hazardous wastes andnon-hazardous solid wastes will bemanaged, as specified in the approvedremedy.

(2) Implementation and long-termmaintenance plans.

(3) Project schedule.(4) Construction quality assurance

program.(b) Upon approval of the plans and

specifications for the remedy, thepermittee shall--

(1) Implement the remedy inaccordance with the plans andspecifications, and consistent with theobjectives of the remedy. specified in thepermit;

(2) Place the plans'and specificationsin the information repository, if requiredunder § 270.36;

(3) Provide written notice of theavailability for inspection of theapproved plans and -specifications forthe remedy to all individuals on the'facility mailing list. If an informationrepository has not been requiredpursuant to § 270.36, the notice shallspecify where the plans andspecifications are available forinspection; and

(4] Revise the cost estimate used todemonstrate financial assurance under§ 264.526(c), if necessary.

1 264.528 Progress reports.(a) The permittee may be required by

the Regional Administrator to provide

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progress reports during the design.construction., operation andmaintenance of any remedy. Frequencyand format of reports shall bedetermined by the RegionalAdministrator and specified in thepermit schedule of compliance. Suchreports may include, but are not limitedto:

(1) Summaries of progress of remedyimplementation, including results ofmonitoring and sampling activities,progress in meeting media cleanupotandards, and description of otherremediation activities.

(2) Problems encountered during thereporting period, and actions taken orproposed to resolve the problems

(3) Changes in personnel conductingor managing the remedial effort.

(4) Project work for next reportingperiod.

(5) Copies of laboratory reports andfield sampling reports.

(b) All raw data, such as laboratoryreports, drilling logs and othersupporting information generated fromthe remedial activities shall bemaintained at the facility (or otherlocation approved by the RegionalAdministrator) during the life of thepermit. including the term of anyreissued permits.

* 264.529 Review of remedyImplementation.

The Regional Administrator shallperiodically review the progress of theremedy. Based on such review, theRegional Administrator may modify thepermit schedule of compliance to requireadditional remedial measures to ensureprompt completion, safety,effectiveness, protectiveness, orreliability of the remedy.

1 264.530 Completion of remedies.(a) Remedies specified pursuant to

1 264.526 shall be considered completewhen the Regional Administratordetermines that:

(1) Compliance with all media cleanupstandards (or alternate levels) asspecified in the permit have beenachieved, according to the requirementsof I 264.525(e); and

(2) All actions required to control thesource(s) of contamination have beensatisfied. and

(3) Procedures specified for removaldecontamination, closure, or post-closure care of units, equipment, devicesor structures required to implement theremedy have been complied with.

(b) Upon completion of the remedy,the permittee shall submit to theRegional Administrator, by registeredmail, a request'for termination of thecorrective action schedule of

compliance according to the proceduresfor Class Ill modifications in § 270.42.The request shall include a certificationthat the remedy has been completed inaccordance with the requirements of§ 264.530(a), and that all other terms andconditions specified in the permitpursuant to Subpart S have beensatisfied. The certification must besigned by the permittee and by anindependent professional(s) skilled inthe appropriate technical discipline(s).

(c) When, upon receipt of thecertification, and in consideration ofpublic comments and any other relevantinformation, the Regional Administratordetermines that the corrective measureremedy has bean completed inaccordance with the terms andconditions of the permit and therequirements for remedy completionunder J 264.530(a), the RegionalAdministrator shall:

(1) Modify the permit to terminate thecorrective action schedule ofcompliance, according to the Class IIIprocedures of J 270.42.

(2) Upbn modification of the permit.release the permittee from therequirements for financial assurance forcorrective action under § 264.500(c) and§ 264.90.

(d) If a remedy includes one or moreidentified phases, the RegionalAdministrator may:

(1) Require separate certification thatthe remedy phase has been completedas specified in the permit, to be signedby the permittee and an independentprofessional(s) skilled in the appropriatetechnical discipline(s); and

(2) Release the permittee from therequirements for financial assurance forthat remedy phase, if the RegionalAdministrator determines that theremedy phase has been successfullycompleted.

§ 264.53t Determination of technicalImpractlabllty.

(a) The RegionalAdministrator may determine, based oninformation developed by the permitteeor other information, that compliancewith a requirement(s) for the remedy isnot technically practicable. In makingsuch determinations, the RegionalAdministrator shall consider.

(1) The, permittee's efforts to achievecompliance with the requirement(s); and

(2) Whether other currently availableor new and Innovative methods ortechnologies could practicably achievecompliance with the requirements.

(b) If the Regional Administratordetermines that compliance with aremedy requirement is not technicallypracticable, the Regional Administrator-shall modify the permit schedule of

compliance to specify as necessary andappropriate:

(1) Further measures that may berequired of the permittee to controlexposure of humans or the environmentto residual contamination, as necessaryto protect human health and theenvironment; and

(2) Alternate levels or measures forcleaning up contaminated media,controlling the source(s) ofcontamination, or for removal ordecontamination of equipment, units,devices, or structures required toimplement the remedy which:

(i) Are technically practicable; and(it) Are consistent with the overall

objectives of the remedy

§§ 264.532-264.539 [Reserved]

§ 264.540 Interim measures.(a) If, at any time the Regional

Administrator determines, based onconsideration of the factors specified in§ 264.540(b), that a release or, based onsite-specific circumstances, a threatenedrelease from a solid waste managementunit(s) at the facility poses a threat tohuman health or the environment, theRegional Administrator may specify inthe permit interim measures required ofthe permittee to abate, minimize,stabilize, mitigate, or eliminate therelease(s) or threat of release(s).

(b) The following. factors may beconsidered by the RegionalAdministrator in determining whetheran interim measurefs)-is required:

(1) Time required to develop andimplement a final remedy,

(2) Actual or potential exposure ofnearby populatiodis or environmentalreceptors to hazardous wastes(including hazardous constituents);

(3) Actual or potential contaminationof drinking water supplies or sensitiveecosystems;

[4) Further degradation of the mediumwhich may occur if remedial action isnot initiated expeditiously;

(5) Presence of hazardous wastes(including hazardous constituents) indrums, barrels, tanks, or other bulkstorage containers, that may pose athreat of release;

(6) Presence of high levels ofhazardous wastes (including hazardous -constituents) in soils largely'at or nearthe surface, -that may migrate; . I

(7) Weather conditions that maycause hazardous wastes (includinghazardou"sonstituents) to migrate or bereleased;

(8) Risks of fire or explosion. orpotential for exposure to hazardouswastes (Including hazardousconstituents) as a result of an accident

30880




or failure of a container or handlingsystem;

(9) Other situations that may posethreats to human health and theenvironment.

(c) If the Regional Administratordetermines that an interim measure isnecessary pursuant to § 264.540(a),. theRegional Administrator shall notify thepermittee of the necessary actionsrequired. Such actions shall beimplemented as soon as practicable, inaccordance with a schedule as specifiedby the Regional Administrator. TheRegional Administrator shall modify thepermit schedule of compliance, if ,necessary, to require implementation ofan interim measure, in accordance withthe procedures of § 270.34.or § 270.41, asappropriate.

(d) Interim measures should, to theextent practicable, be consistent withthe objectives of, and contribute to the

erformance of any remedy which maye required pursuant to § 264.525.

§§ 264.541-549 [Reserved]1 264.550 Management of wastes.

(a) All solid wastes'which aremanaged pursuant to a remedy requiredunder § 264.525, or an interim measurerequired under 1 264.540, shall bemanaged in a manner:

(1) That is protective of human healthand' the environment, andS(2) That complies with applicable

Federal, State and local requirements.(b) The Regional Administrator shall

specify in the permit requirements forunits in which Wastes will be managed,and other waste managament activities.as determined-by the RegionalAdministrator to be necessary forprotection of human health and theenvironment.

S§264.551 Management of hazardouswastes.

(a) Except asProvided herein and inparagraphs (b) and (c} of this sectionany treatment, storage or disposal of-listed or identified hazardous wastenecessary to implement a remedy or aninterim measure shall be in accordancewith 'the applicable standards.of 40 CFRparts 262, 264, 268 and 269.Requirements for closure contained, insubpart G of 40 CFR part 264, except for:,264.111, may be waived by the.Regional Administrator for units createfor the purpose of managing correctiveaction wastes.

(b)(1) For temporary units (except forncineratoij and other non-tank thermal

-treatment units) -n which hazardous .wastes will be stored or treatedi theRegional Administrator may determinethat a design,,operating, or closure.:istandard(s) applicable to such unit(s)

solely by regulation may be replaced by (3) In making determinations as toalternative requirements which are whether a corrective action managementprotective of human health and the unit Is appropriate for implementing aenvironment, remedy at a facility, andlor the nature

(2) Any temporary unit to which and configuration of a corrective actionalernative requirements are applied management unit at a facility, theaccording to paragraph (b)(1) of this Regional Administrator may considersection shall: the following:

(i) Be operated for a period not (i) The nature, extent and location ofexceeding 180 calendar days, unless the surficial cohtamination at the facility;period is extended under § 264.551(b)(3) (ii) The potential benefits of abelow; and corrective action management unit in

(ii) Be located at the facility; and achieving remedial objectives for the- (iii) Be used only for treatment or facility, including (but not limited to):

storage of hazardous wastes (including (A) Expediting the timing of remedyhazardous constituents), or other solid implementation; andwastes that have originated within the (B) Enhancing the effectiveness, cost-boundary of the facility, effectiveness, reliability or

(3) The Regional Administrator may protectiveness of a remedy;grant an extension to the 180-day period . (iii) The practicability of alternativeof a temporary unit if hazardous wastes remedial approaches; ormust remain in the unit due to (iv) Other relevant factors.unforeseen, temporary, and (4) The requirements of subpart G ofuncontrollable circumstances. The 40 CFR part 264 will not apply to.owner/operator must request this corrective action management units. Theextension as a Class I modification, with Regional Administrator will specify inDirector approval, under the procedures the permit closure requirements for any*of § 270.42. .

(4) In establishing standards to be corrective action management unit, inconsideration of the following factors:

applied to temporary units, the Regional (i) Unit characteristics;Administrator shall consider thefollowing factors: (ii) Volume of wastes which will

(i) The length of time such unit(s) will remain after closure;be in operation. (iii) Potential for releases from theI (ii) Type of unit, and volumes of unit;

wastes to be managed. (iv) Physical and chemical(iii) Potential for releases from the characteristcs of the wastes;

unit(s). iv) Hydrological and other relevant(iv) Physical and chemical environmental 'conditions at the facility

characteristics of the wastes. to be which may Influence the migration ofmanaged in the unit(s). , any potential releases; and

(v) Hydrogeological and other (vi) Potential for exposure of humansrelevant environmental conditions at the and environmental receptors if releasesfacility which may influence the were to occur from the unit.migration of any potential releases. (5) Closure requirements specified for.

(vi) Potential for exposure of humans corrective action management unitsand environmental receptors if releases under paragraph: (c)(3) of this sectionwere to occur from the unit(s). shall:

(5) The Regional Administrator shall . (I) Minimize the need for furtherspecify in the permit the length of time maintenance; andthat such units will be allowed to . . (ii) Control, minimize, or eliminate, tooperate, and specific design, operating, the extent necessary to protect humanand closure requirements for the unit(s). health and the environment, post-

(c) For the purposes of implementing ". closure escape of hazardous waste,remedies under this subpart, the hazardous constituents, leachate,Regional Administrator may designate contaminated runoff, or hazardousan area of contamination as a corrective waste decomposition products to theaction management unit. ground or surface waters or to the

(1) Movement or consolidation of atmosphere.wastes within a corrective action (6) The Regional Administrator willmanagement unit will not constitute specify in the permit post-closureplacement of hazardous wastes in a requirements for any corrective actionhazardous waste management unit. management unit, as necessary to

. ,. (2) Consolidation of wastes within.the ..,protect human health and thecorrective action management unit will , environment, including monitoring andnot constitute creation of a new, 'maintenance activities and the,-replacement, or lateral expansion of a frequency with which they will behazardous waste management unit., .-' --performed to ensure the integrity of the -

1 30881




cap, final cover, or other containmentsystem.

§ 264.552 Management of non-hazardoussolid wastes.

(a) Treatment, storage and disposal ofnon-hazardous solid wastes pursuant toa remedy or interim measure requiredunder this subpart shall be inaccordance with applicable technicalstandards for solid waste managementas specified in regulations promulgatedpursuant to RCRA subtitle D.

(b) For any unit in which non-hazardous solid wastes will be managedpursuant to a remedy or interimmeasure, the Regional Administratormay specify additional design andoperating standards for the unit(s), asnecessary to protect human health andthe environment. In determiningappropriate design and operatingrequirements for such units, theRegional Administrator shall considerthe factors specified under§ 264.551(b)(2).

9 264.%W-264.559 (Reserved]

* 264.560 Required notices.(a) Notification of ground-water

contamination. If at any time thepermitted discovers that hazardousconstituents in ground water that mayhave been released from a solid wastemanagement unit at the facility havemigrated beyond the facility boundaryin concentrations that exceed actionlevels (as defined under § 264.521), thepermittee shall, within fifteen days ofdiscovery, provide written notice to theRegional Administrator and any personwho owns or resides on the land whichoverlies the contaminated ground water.

(b) Notification of air contamination.If at any time the permittee discoversthat hazardous constituents in air thatmay have been released from a solidwaste management unit at the facilityhave or are migrating to areas beyondthe facility boundary in concentrationsthat exceed action levels (as definedunder § 264.521), and that residences orother places at which continuous, long-term exposure to such constituentsmight occur are located within suchareas, the permittee shall, within fifteendays of such discovery:

(1) Provide written notification to theRegional Administrator and

(2) Initiate any actions that may benecessary to provide notice to allindividuals who have or may have beensubject to such exposure.

(c) Notification of residualcontamination. If hazardous wastes orhazardous constituents in solid wastemanagement units, or which have beenreleased from solid waste managementunits, will remain in or on the land after

the term of the permit has expired, theRegional Administrator may require thepermittee to record, in accordance withState law, a notation in the deed to thefacility property or in some otherinstrument which is normally examinedduring title search that will, inperpetuity, notify any potentialpurchaser of the property of the types,concentrations and locations of suchhazardous wastes or hazardousconstituents.

PART 265-INTERIM STATUSSTANDARDS FOR OWNERS ANDOPERATORS OF HAZARDOUS WASTETREATMENT, STORAGE, ANDDISPOSAL FACILITIES


Authority: 42 U.S.C. 6905, 6924, and 6925.

7. In 40 CFR part 265, subpart , it Isproposed to amend § 265.112(b) byadding new paragraph (b)(8). and toamend § 265.113 by redesignatingparagraphs (a)(1)(ii) as [a)(1)(iii) and(b)(1)(ii) as (b)(1)(iii), and by adding newparagraphs (a)(1)(ii) and (b)(1)(ii) to readas follows;

§ 265.112 Closure plan, amendment ofplan.

(b) " " *

(8) Information which complies withthe requirements of 40 CFR 270.14(d) forall solid waste management units at thefacility.

§ 265.113 Closure, time allowed'forclosure.

(a) " "(1) • .(ii) Corrective action required at the

unit or the facility under subpart S willdelay the completion of partial or finalclosure; or

(b) * " "(1) " " "

(ii) Corrective action required at theunit or the facility under subpart S willdelay the completion of partial or finalclosure: or

PART 270-EPA ADMINISTEREDPERMIT PROGRAMS: THEHAZARDOUS WASTE PERMITPROGRAM


Authority: 42'U.S.C. 6905,6912,6925 6927,and 6974

9. It is proposed to amend paragraph(c) of § 270.1 by adding the followingintroductory text immediately before thesentence which begins "The denial of apermit for the active life * * %" asfollows:

§ 270.1 Purpose and scope of theseregulations.

(c) " * Owners and operators mustalso have permits covering any periodnecessary to comply with therequirements of subpart S of part264. • •

10. It is proposed to amend § 270.30(1)by adding new paragraph (1)(12) to readas follows:

§ 270.30 Condition applicable to allpermits.*l " * *

(12) Information pertinent tocorrective action requirements. (i) If thepermittee discovers additional solidwaste management units or learns ofreleases of hazardous wastes (includinghazardous constituents) from previouslyidentified or newly discovered solidwaste management units at the facility,the permittee shall submit the followinginformation to the Director.

(A) Identification of additional solidwaste management unit(s). Within thirtydays of the receipt of information abouta previously unknown and unreportedsolid waste management unit at thefacility (as defined in 40 CFR 264.501),the permittee shall submit the followinginformation to the Director:

(1) The location of the unit on thetopographic map submitted as part ofthe part B application in accordancewith 40 CFR 270.14(b)(19) or atopographic map of comparable scalewhich clearly indicates the location ofthe unit in relation to other solid wastemanagement units at the facility.

(2) Designation of type of unit.(3) General dimensions of the unit.(4) When the unit was operated.(5) Specification of all wastes that

have been managed in the unit, ifavailable.

(6) All available Informationpertaining to any release of hazardouswastes (including hazardousconstituents) from the unit.

(B) Sampling and analysis data. TheDirector may require the permittee toperform sampling and analysis ofground water (which may involve theinstallation of wells), soils, surfacewater, or air, as necessary to determinewhether a release(s) from such unit(s)

30882




has occurred, is likely to have occurred,or will likely occur.

(C) Releases of hazaoous waste. Ifthe permittee discovers a release ofhazardous wastes (including hazardousconstituents) from a solid wastemanagement unit at the facility that maypose a threat to human health and theenvironment, the pelmittee shall, withintwenty days of the discovery, submit thefollowing information to the Director:

(1) Identification of the solid wastemanagement unit(s) from which therelease has occurred, to include the typeof unit, and location of the unit clearlyindicated on a facility map; and

(2) Any other information currentlyavailable concerning the release.including potential exposure pathways.controls already imposed to address therelease, and any action planned forfurther cleanup.

(ii) Based upon information suppliedunder (A), (B), or (C) above the Directormay, as necessary, require furtherinvestigations or corrective measures inaccordance with the standards forcorrective action specified in 40 CFRsubpart S. Such additional activitiesshall, if necessary, be specified bymodifying an existing schedule ofcompliance according to § 270.34(c), orby initiating a permit modificationaccording to § 270.41.* * * * .

11. Section 270.33 is amended byadding the following sentence at the endof paragraph (a) to read as follows:

§ 270.33 Schedules of Compliance(a) * * * Schedules of compliance for

corrective action are governed solely by§ 270.34.* * S * *

12. • * It is proposed to amend 40CFR part 270, subpart C, by adding new§ 270.34 to read as follows:

§ 270.34 Schedu!os of compliances forcorrective action.

Schedules of compliance forcorrective action are governed by thissection and not § 270.33.

(a) The Director may include aschedule of compliance in the permit forpurposes of specifying the terms andconditions necessary for the permitteeto comply with the requirements ofsubpart S of part 264. Permit schedulesof compliance issued under this sectionshall contain terms and conditionsdeemed by the Director to be necessaryto protect human health and theenvironment.

(b) The permittee shall adhere to theschedules specified in the permit. If atany time the permittee determines thatschedules cannot be met, the permitteeshall, within 15 days of such -

determination, notify the Director andsubmit a request for a permitmodification under § 270.42, with anexplanation of why the current schedulecannot be met.

(c) The Director may modify thepermit to include conditions in theschedule of compliance as necessary tocomply with the requirements of subpartS of part 264. The following procedureswill be followed unless the Directordetermines instead that it is appropriateto modify the permit pursuant toI 270.41(a)(5)(ix):

(1) The Director will notify thepermittee in writing of the proposedmodification. Such notice will:

(i) Describe the exact change(s) to bemade to the permit conditions;

. (ii) Provide an explanation of why themodification is needed; and

(iii) Provide notification of the date bywhich comments on the proposedmodification must be received. Suchdate will not be less than twenty daysfrom the date the notice of proposedmodification is received by thepermittee, or after the public notice ispublished under § 270.34(c)(2);

(iv) Provide notification thatsupporting documentation or data maybe available for inspection at theRegional or State office; and

(v) Include the name and address ofan Agency contact to whom commentsmay be sent.

(2) The Director shall:[i) Publish a notice of the proposed

modification in a newspaper distributedin the locality of the facility, whichincludes notice of items (1)(i)-(v);

(ii) Mail a notice of the proposedmodification to all persons on thefacility mailing list maintainedaccording to 40 CFR 124.10(c)(1)(viii).Such notice will include items (1){i}-[v),and shall be mailed concurrently withnotice to the permittee;

(iii) For facilities which haveestablished an information repositorypursuant to § 270.36, the Director shallplace a notification of the proposedmodification, including items (1)(iHv),in the information repositoryconcurrently with actions taken under(i}-(ii).

(3) If the Director receives no writtencomment on the proposed modification,the modification will become effectivefive days after the close of the commentperiod; the Director will promptly notifythe permittee and individuals on thefacility mailing list in writing that themodification has become effective, andwill place a copy of the modified permitin the information repository if arepository is maintained for the facility.

.(4) If the Director receives writtencomment on the proposed modification.

the Director shall make a finaldetermination concerning themodification within thirty days after theend of the comment period ifpracticable. The Director shall then:

(i) Notify the permittee in writing ofthe final decision. Such notificationshall:

(A) Indicate the effective date of themodification, which shall be no laterthan fifteen days after the date ofnotification of the final modificationdecision,

(B) Include an explanation of howcomments were considered Indeveloping the final modification, and

(C) Provide a copy of the finalmodification

(ii) Provide notice of the finalmodification decision, includingparagraphs (c)(4)(i)(A) and (i)(B) of thissection, in a newspaper of localdistribution in the vicinity of the facility;and

(iii) Place a copy of items (i)(A)-(i)(C)in the information repository for thefacility if such a repository ismaintained.

(5) Modifications initiated andfinalized by the Director usingprocedures in § 270.34(c) are not subjectto administrative appeal.

B. It is proposed to amend 40 CFR part270, subpart C, by adding new

§ 270.36 Information repository.(a) At any time during conduct of

investigations or other activitiesrequired under part 264, subpart S, theDirector may require the permittee toestablish and maintain an informationrepository for the purpose of makingaccessible to interested partiesdocuments, reports and other publicinformation developed pursuant toinvestigations and activities requiredunder part 264, subpart S.

(b) The information repository shallcontain all documents, reports, data andother information which the Directordeems relevant to public understandingof the activities, findings and plans forsuch corrective action initiatives.

(c) The information repository shall,when feasible, be located withinreasonable distance of the facility, or ifnot feasible, at the facility. Therepository shall be accessible to thepublic during reasonable hours, asrequired by the Director.

(d) In the permit schedule ofcompliance, the'Director shall.specifyrequirements for informing the publicabout the information repository; At aminimum, written notice about theinformation repository shall be given -to

30883




all individuals on the facility mailinglist.

(e) Information regarding proceduresfor submission of comments shall bemade available at the repository.

14. It is proposed to amend § 27041 byrevising the introductory text and byadding new paragraph (a)(5)(lx) to readas follows:

§ 270.41 Modification or revocation andrelssuance of permits.

When the Director receives anyinformation (for example, inspects thefacility, receives information submittedby the permittee as required in thepermit (see § 270.30), receives a requestfor modification or revocation andreissuance under § 124.5, or conducts areview of the permit file) he or she maydetermine whether one or more of thecauses listed in paragraphs (a) and (b)of this section for modification, orrevocation and reissuance or both exist.If cause exists, the Director may modifyor revoke and reissue the permitaccordingly, subject to the limitations ofparagraph (c) of this section, and mayrequest an updated application ifnecessary. When a permit is modified,only the conditions subject tomodification are reopened. If a permit isrevoked and reissued, the entire permitis reopened and subject to revision and

the permit is reissued for a new term.(See 40 CFR 124.5(c)(2).) If cause doesnot exist under this section, the Directorshall not modify or revoke and reissuethe permit, except on request of thepermittee or in accordance with§ 270.34(c). If a permit modification isrequested by the permittee, the Directorshall approve or deny the requestaccording to the procedures of 40 CFR270.42. The Director may also modify thepermit schedule of compliance forcorrective action under the proceduresof § 270.34(c). Otherwise, a draft permitmust be prepared and other proceduresin part 124 (or procedures of anapproved State program) followed.

(a) * * *(5) • • *

(ix) The Director determines goodcause exists for modification of thepermit for the purposes of compliancewith subpart S of part 264.

15. It is proposed to revise paragraphs(b)(3)(i) and (c)(3)(vii) of § 270.60 asfollows:

§ 270.60 Permits by rule.* • * • *

(b) * * *(3) * * *

(i) Complies with 40 CFR subpart S;and• * * * •

(c) • • •

(3) • • •

(vii) for NPDES permits issued afterNovember 8, 1984, 40 CFR subpart S.

PART 271-REQUIREMENTS FORAUTHORIZATION OF STATEHAZARDOUS WASTE PROGRAMS


Authority: 42 U.S.C. 6905, 6912(a), and 6926.

17. It is proposed to amend § 271.1(j)by adding the following entry in Table 1in chronological order by date ofpublication:

§ 271.1 [Amended]

TABLE . 1 -REGULATIONS IMPLEMENTINGTHE HAZARDOUS AND SOLID WASTEAMENDMENTS OF 1984

.Date Title of Regulation

July 27, 1990 ............... Corrective Action for SolidWaste Management Units.

[FR Doc. 90-16737 Filed 7-26-90; 8:45 am]BILUNG CODE 6560-50-0

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