[Federal Register Volume 60, Number 132 (Tuesday, July 11, 1995)]
[Rules and Regulations]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-16951]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 264, 265, and 271
Hazardous Waste Management: Liquids in Landfills
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule to grant a petition to add a test method.
SUMMARY: On November 18, 1992, the Agency promulgated a final rule on
liquids in landfills. That rule satisfied a statutory requirement in
the Resource Conservation and Recovery Act (RCRA) as amended by the
Hazardous and Solid Waste Amendments of 1984 regarding the landfill
disposal of containerized liquids. Specifically, the statute required
EPA to issue a rule that prohibited the disposal in hazardous waste
landfills of liquids that have been absorbed in materials that
biodegrade. The November 18, 1992 rule includes two tests that could be
used to demonstrate non-biodegradability. Today's rulemaking, which is
issued in response to a petition, provides increased flexibility to the
regulated community by adding another test to demonstrate that a
sorbent is non-biodegradable.
In the proposed rules section of today's Federal Register, EPA is
proposing to grant the petition to add the additional test for
biodegradability and is soliciting public comment on the addition of
the third test. If significant adverse comments are received, EPA will
withdraw the direct final rule and address the comments received in a
subsequent final rule based on the related proposed rule. No additional
opportunity for public comment will be provided.
DATES: This final action will become effective on September 11, 1995,
unless EPA receives significant adverse comment on the proposal by
August 10, 1995. If such comments are received, EPA will withdraw this
direct final rule, and publish timely notice in the Federal Register.
ADDRESSES: Materials supporting this rulemaking are contained in EPA
RCRA Docket No. F-95-ALLF-FFFFF, Room M2616, U.S. Environmental
Protection Agency, 401 M St. SW., Washington, DC 20460. The docket is
open from 9 a.m. to 4 p.m., Monday through Friday, except Federal
holidays. Call 202-260-9327 for an appointment to examine the docket.
Up to 100 pages may be copied free of charge from any one regulatory
docket. Additional copies are $0.15 per page. Those wishing to notify
EPA of their intent to submit adverse comments on this action should
contact David Eberly, Assistance Branch, Permits and State Programs
Division, Office of Solid Waste (5303W), 401 M St. SW, Washington, DC
20460, (Docket No. F-95-ALLP-FFFFF).
FOR FURTHER INFORMATION CONTACT: The RCRA/Superfund Hotline at 1-800-
424-9346 (toll free), or 703-412-9810 in the Washington, DC area. For
information on technical aspects of this rule, contact David Eberly,
U.S. EPA, Office of Solid Waste (5303W), 401 M St. SW., Washington, DC
This rule is being issued under the authority of section 3004(c) of
the Solid Waste Disposal Act, as amended by the Resource Conservation
and Recovery Act of 1976 and the Hazardous and Solid Waste Amendments
of 1984; 42 U.S.C. 6924(c).
Section 3004(c)(2) of RCRA requires EPA to issue regulations that
``prohibit the disposal in landfills of liquids that have been absorbed
in materials that biodegrade * * *''
To demonstrate that a sorbent is non-biodegradable, the material
must be listed in paragraph (e)(1) of Sec. 264.314 or paragraph (f)(1)
of Sec. 265.314 or pass one of two tests cited in paragraph (e)(2) of
Sec. 264.314 and paragraph (f)(1) of Sec. 265.314. The two tests are
ASTM Method G21-70, a test for resistance of synthetic polymer
materials to fungi, and G22-76, a test for determining resistance of
plastics to bacteria.
At the time of proposal of the two ASTM tests, the Agency
recognized that other biodegradability tests existed, but they were not
identified in the proposal or in the comments received on the proposed
rule. The Agency, therefore, did not evaluate other tests. Instead, the
Agency decided to require that further tests be added under the already
established 40 CFR part 260 petition process.
The Agency has received a petition for another test for
biodegradability and, based on its review, has decided to include it as
one that could be used instead of the ASTM tests. The test is one that
has been recently adopted by the Organization for Economic Cooperation
and Development (OECD), of which the United States is a member. The
test, OECD 301B (Modified Sturm Test), was recommended by an OECD
Expert Group on Degradation/ Accumulation to determine the
biodegradability of organic chemicals in water. The Agency has
concluded that the test is applicable, that it effectively measures the
biodegradability of sorbents, and that its use in determining
biodegradability of sorbents in a hazardous waste landfill will not
have a negative environmental impact.
The United States was represented on the OECD Expert Group on
Degradation/Accumulation that evaluated and recommended tests for
water, abiotic degradation, bioaccumulation, and behavior of chemicals
in soils and sediments. Tests were recommended by the group for each
The OECD adopted three tests for inherent biodegradability (in
1981) and six tests for ready biodegradability (in 1992), all in an
aerobic aqueous medium. The guidelines for all nine biodegradability
tests are in the docket. The tests for inherent biodegradability
require that the material being tested be soluble in water. As the
sorbent materials to be tested must clearly not be soluble (otherwise
they could not be used as sorbents), those tests are not applicable. In
addition, these tests assume ideal conditions for biodegradability in
an aerobic environment. Because the conditions to be encountered in a
hazardous waste landfill are not ideal for either aerobic or anaerobic
biodegradability, the tests for inherent biodegradability are not
The tests for ready biodegradability, while not simulating the
actual conditions to be found in a landfill, do provide an indication
of the propensity of the material to biodegrade without enhanced
conditions. Of the six tests adopted for ready biodegradability, test
301B is best suited for compounds that are poorly soluble, non-
volatile, and absorbing. Sorbents used in spill responses or in sorbing
liquid wastes share these properties.
The Agency recognizes that the OECD test 301B is a test for
biodegradability in an aerobic environment, as are the two ASTM tests
that were promulgated in the November 18, 1992 rule. The Agency also
recognizes that the actual environment in which the sorbents will be
used, i.e., in a container in a landfill, will be anaerobic. The Agency
does not know, however, of any published, widely accepted, tests for
the biodegradability of materials in anaerobic conditions that would be
practical for the purposes of this rule. The Agency believes, however,
that OECD 301B is an acceptable surrogate for determining if a sorbent
will biodegrade in containerized liquids in a hazardous waste landfill.
III. State Authority
Under Section 3006 of RCRA, EPA may authorize qualified States to
administer and enforce the RCRA program within the State. Following
authorization, EPA retains enforcement authority under Sections 3008,
3013, and 7003 of RCRA, although authorized States have primary
enforcement responsibility. The standards and requirements for
authorization are found in 40 CFR Part 271.
Today's amendment to the provisions of the November 18, 1992
liquids in landfills rule is being promulgated under authority that was
added to RCRA by the Hazardous and Solid Waste Amendments (HSWA) of
1984. Under RCRA Section 3006(g), new requirements imposed by HSWA take
effect in authorized States at the same time that they take effect in
non-authorized States. Today's final rule for containerized liquids in
landfills is issued under RCRA Section 3004(c), which was added by
HSWA. These HSWA-based requirements are being added to Table 1 in 40
CFR 271.1(j), which identifies the Federal program requirements that
are promulgated pursuant to HSWA.
Today's final rule adds a third test to the two already allowed
under existing Federal regulations that were promulgated on November
18, 1992, and therefore does not qualify as a ``more stringent''
requirement. Instead, today's rule in effect makes a technical
amendment to the definition of ``biodegradability'' that does not
affect the current regulations' stringency. Authorized States are only
required to modify their programs when EPA promulgates Federal
regulations that are more stringent or broader in scope than the
existing Federal regulations. Therefore, States that are authorized for
the November 18, 1992 rule are not required to modify their programs to
adopt today's rule. However, EPA strongly urges States to do so. EPA
will implement the provisions of today's rule in other States that have
not been authorized for the liquids in landfills requirements in RCRA
Section 3004(c)(2) pursuant to RCRA Section 3006(g) until they adopt
and receive authorization to implement the November 18, 1992 rule.
EPA's authorization guidance to States will link the November 18, 1992
rule and today's final amendments.
Given the minor scope of today's amendment, those States that are
authorized for the November 18, 1992 rule may submit an abbreviated
authorization revision application to the Region for today's amendment.
This application should consist of a letter from the State to the
appropriate Regional office, certifying that it has adopted provisions
equivalent to and no less stringent than today's final rule (see the
December 19, 1994, memorandum from Michael Shapiro, Director of the
Office of Solid Waste, to the EPA Regional Division Directors that is
in the docket for today's rule). The State should also submit a copy of
its final rule or other authorizing authority. A revised Program
Description, Memorandum of Agreement, and Attorney General's statement
is not necessary (see 40 CFR 271.21(b)(1)). EPA expects that this
simplified process will expedite the review of the authorization
submittal for this rule.
Finally, States authorized for the containerized liquids in
landfills requirements may accept results of the OECD test promulgated
in today's rule, consistent with State law, as evidence of non-
biodegradability, pending EPA review of a State program revision.
States whose programs accept the OECD test would be no less stringent
than the Federal program and would therefore be consistent with RCRA
IV. Regulatory Requirements
A. Executive Order 12866
Under Executive Order 12866 [58 FR 51735 (October 4, 1993)], EPA
must determine whether the regulatory action is ``significant'' and
therefore subject to OMB review and the requirements of the Executive
Order. The Order defines ``significant regulatory action'' as one that
is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local or tribal governments or communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
EPA has determined that this rule is not a ``significant regulatory
action'' under the terms of Executive Order 12866 and is, therefore,
not subject to OMB review.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.)
requires Federal regulatory agencies to prepare a Regulatory
Flexibility Analysis (RFA) for all regulations that have ``a
significant economic impact on a substantial number of small
entities.'' Today's rule simply adds one more test that industry may
use to test sorbents that are not listed as acceptable in the November
18, 1992 rule. Additionally,
the test need only be used once for each sorbent type. Therefore, EPA
certifies that today's regulation will not have a significant economic
impact on a substantial number of small entities. As a result, no
Regulatory Flexibility Analysis is needed.
C. Paperwork Reduction Act
This rule does not contain any information collection requirements
subject to Office of Management and Budget review under the Paperwork
Reduction Act, 44 U.S.C. 3501 et seq., because no additional
information is being required to be collected by this rule, and it does
not require that additional records be retained.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), P.L.
104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. When a written statement is needed for an EPA rule, section
205 of the UMRA generally requires EPA to identify and consider a
reasonable number of regulatory alternatives and adopt the least
costly, most cost-effective or least burdensome alternative that
achieves the objectives of the rule. The provisions of section 205 do
not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including tribal governments, it must have developed under
section 203 of the UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments, giving
them meaningful and timely input in the development of EPA regulatory
proposals with significant Federal intergovernmental mandates, and
informing, educating, and advising them on compliance with the
Today's rule contains no Federal mandates (under the regulatory
provisions of Title II of the UMRA) for State, local, or tribal
governments or the private sector because it imposes no enforceable
duties on any of these governmental entities or the private sector. The
rule merely provides an optional alternative test method for
determining biodegradability to satisfy a specific provision of RCRA.
In any event, EPA has determined that this rule does not include a
Federal mandate that may result in estimated costs of $100 million or
more to either State, local, or tribal governments in the aggregate, or
to the private sector in any one year. Thus, today's rule is not
subject to the requirements of sections 202 and 205 of the UMRA.
Similarly, EPA has determined that this rule contains no regulatory
requirements that might significantly or uniquely affect small
List of Subjects
40 CFR Parts 264 and 265
Environmental protection, Air pollution control, Hazardous waste,
Insurance, Packaging and containers, Reporting and recordkeeping
requirements, Security measures, Surety bonds, Water supply.
40 CFR Part 271
Administrative practice and procedure, Confidential business
information, Hazardous material transportation, Hazardous waste, Indian
lands, Intergovernmental relations, Penalties, Reporting and
recordkeeping requirements, Water pollution control, Water supply.
Dated: June 30, 1995.
For the reasons set forth in the preamble, 40 CFR parts 264, 265,
and 271 are amended as follows:
PART 264--STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE
TREATMENT, STORAGE, AND DISPOSAL FACILITIES
1. The authority citation for part 264 continues to read as
Authority: 42 U.S.C. 6905, 6912(a), 6924, and 6925.
2. Section 264.314 is amended by removing the period at the end of
paragraph (e)(2)(ii) and adding ``; or'' and by adding paragraph
(e)(2)(iii) to read as follows:
Sec. 264.314 Special requirements for bulk and containerized liquids.
* * * * *
(e) * * *
(2) * * *
(iii) The sorbent material is determined to be non-biodegradable
under OECD test 301B: [CO2 Evolution (Modified Sturm Test)].
PART 265--INTERIM STATUS STANDARDS FOR OWNERS AND OPERATORS OF
HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
1. The authority citation for part 265 continues to read as
Authority: 42 U.S.C. 6905, 6912(a), 6924, 6925, 6935, and 6936,
unless otherwise noted.
2. Section 265.314 is amended by removing the period at the end of
paragraph (f)(2)(ii) and adding ``; or'' and by adding paragraph
(f)(2)(iii) to read as follows:
Sec. 265.314 Special requirements for bulk and containerized liquids.
(f) * * *
(2) * * *
(iii) The sorbent material is determined to be non-biodegradable
under OECD test 301B: [CO2 Evolution (Modified Sturm Test)].
PART 271--REQUIREMENTS FOR AUTHORIZATION OF STATE HAZARDOUS WASTE
1. The authority citation for part 271 is amended to read as
Authority: 42 U.S.C. 6905, 6912(a) and 6926.
2. Section 271.1(j) is amended by adding the following entry to
Table 1 in chronological order by date of publication:
Sec. 271.1 Purpose and scope.
* * * * *
Table 1.--Regulations Implementing the Hazardous and Solid Waste
Amendments of 1984
Title of Federal Register
Promulgation date regulation reference Effective date
* * * *
* * *
July 11, 1995.... Containerized 35705........... September 11,
Liquids in 1995.
* * * *
* * *
* * * * *
[FR Doc. 95-16951 Filed 7-10-95; 8:45 am]
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