[Federal Register Volume 63, Number 229 (Monday, November 30, 1998)]
[Rules and Regulations]
[Pages 65874-65947]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-30269]



[[Page 65873]]

_______________________________________________________________________

Part III





Environmental Protection Agency





_______________________________________________________________________



40 CFR Part 260, et al.



Hazardous Remediation Waste Management Requirements (HWIR-Media); Final 
Rule

  Federal Register / Vol. 63, No. 229 / Monday, November 30, 1998 / 
Rules and Regulations  

[[Page 65874]]



ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 260, 261, 264, 265, 268, 270 and 271

[FRL-6186-6]
RIN 2050-AE22


Hazardous Remediation Waste Management Requirements (HWIR-media)

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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

SUMMARY: As part of President Clinton's March 1994 environmental 
regulatory reform initiative, the United States Environmental 
Protection Agency (EPA) is issuing new requirements for Resource 
Conservation and Recovery Act (RCRA) hazardous remediation wastes 
treated, stored or disposed of during cleanup actions. These new 
requirements make five major changes: First, they make permits for 
treating, storing and disposing of remediation wastes faster and easier 
to obtain; second, they provide that obtaining these permits will not 
subject the owner and/or operator to facility-wide corrective action; 
third, they create a new kind of unit called a ``staging pile'' that 
allows more flexibility in storing remediation waste during cleanup; 
fourth, they exclude dredged materials from RCRA Subtitle C if they are 
managed under an appropriate permit under the Marine Protection, 
Research and Sanctuaries Act or the Clean Water Act; and fifth, they 
make it faster and easier for States to receive authorization when they 
update their RCRA programs to incorporate revisions to the Federal RCRA 
regulations.

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

ADDRESSES: Supporting materials are available for viewing in the RCRA 
Information Center (RIC), located at Crystal Gateway I, First Floor, 
1235 Jefferson Davis Highway, Arlington, VA. The Docket Identification 
Number is F-98-MHWF-FFFFF. The RIC is open from 9 a.m. to 4 p.m., 
Monday through Friday, excluding Federal holidays. To review docket 
materials, it is recommended that the public make an appointment by 
calling (703) 603-9230. The public may copy a maximum of 100 pages from 
any regulatory docket at no charge. Additional copies cost $0.15/page. 
The index and some supporting materials are available electronically. 
See the Supplementary Information section for information on accessing 
them.

FOR FURTHER INFORMATION CONTACT: For general information, contact the 
RCRA Hotline at (800) 424-9346 or TDD (800) 553-7672 (hearing 
impaired). In the Washington, DC, metropolitan area, call (703) 412-
9810 or TDD (703) 412-3323.
    For more detailed information on specific aspects of this 
rulemaking, contact Michael Fitzpatrick, Office of Solid Waste 5303W, 
U.S. Environmental Protection Agency, 401 M Street, SW, Washington, DC 
20460, (703) 308-8411, [email protected].

SUPPLEMENTARY INFORMATION: The index and supporting materials are 
available on the Internet. Follow these instructions to access the 
information electronically:

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

Outline

    The information presented in this preamble is organized as follows:

I. Overview Information
    A. Why do This Rule and Preamble Read so Differently From Other 
Regulations?
    B. What Law Authorizes This Rule?
II. Background Information
    A. What Problems Does Today's Rule Address?
    1. Response-oriented Programs Have Different Objectives and 
Incentives Than Prevention-oriented Programs
    2. LDRs, MTRs, and Permitting Raise Problems When Applied to 
Remediation Wastes
    B. How has EPA Tried to Solve These Problems in the Past?
    C. How did the Proposed Rule Attempt to Solve These Problems?
    1. The ``Bright Line'' Approach for Contaminated Media
    2. Other Options Within the ``Bright Line'' Approach
    3. The ``Unitary'' Approach--An Alternative to the ``Bright 
Line'
    D. What General Comments did EPA Receive About the Two Major 
Proposed Options?
    E. What did EPA Decide to do After Considering Those Comments?
III. Definitions Used in this Rule (Sec. 260.10)
    A. Corrective Action Management Unit (CAMU)--Changes to the 
Existing Definition, and Changes to the CAMU and Temporary Unit 
Regulations at Secs. 264.552(a) and 264.553(a)
    1. Definition of CAMU
    2. Secs. 264.552 and 264.553
    B. Remediation Waste--Changes to the Existing Definition
    C. Remediation Waste Management Site and Facility--New 
Requirements for Remediation Waste Management Sites
    1. EPA Changed the Term From ``Media Remediation Site'' in the 
Proposal to ``Remediation Waste Management Site'' in the Final Rule
    2. EPA has Created Different Requirements for Remediation Waste 
Management Sites than for Facilities Managing ``As-generated'' 
Hazardous Wastes
    3. Differences Between the Proposed Definition of Media 
Remediation Site and the Final Definition of Remediation Waste 
Management Site
    4. Remediation Waste Management Sites are Not Subject to 
Facility-wide Corrective Action
    5. Remediation Waste Management Sites are Excluded From Only the 
Second Part of the Definition of Facility
    6. Facility
    D. Staging Pile--A New Kind of Unit
    1. Differences Between the Definition of Staging Pile and the 
Existing Definition of Pile
    2. Differences Between the Proposed Definition of Remediation 
Pile and the Final Definition of Staging Pile
    E. Miscellaneous Unit--An Edit to the Existing Definition
IV. Information on Remedial Action Plans (RAPs) (Secs. 270.2, 270.68 
and 270.80-270.230)

General Information About RAPs

    A. What are EPA's Objectives for RAPs?
    B. What is a RAP? (Secs. 270.68, 270.2 and 270.80)
    1. The Differences Between a RAP and a Traditional RCRA Permit
    2. Some Advantages of a RAP Compared to a Traditional RCRA 
Permit
    3. Differences Between ``Remediation Management Plans'' in the 
Proposal and ``Remedial Action Plans'' in the Final Rule
    C. When do I need a RAP? (Sec. 270.85)
    1. What Activities Require RCRA Permits?
    D. Does my RAP Grant me Any Rights or Relieve me of Any 
Obligations? (Sec. 270.90)

Applying for a RAP

    E. How do I Apply for a RAP? (Sec. 270.95)
    F. Who Must Obtain a RAP? (Sec. 270.100)
    G. Who Must Sign an Application for a RAP? (Sec. 270.105)
    H. What Must I Include in my Application for a RAP? 
(Sec. 270.110)
    1. Description of the Specific Content Requirements
    2. Comments on the Contents of RAPs
    3. Contents of RAPs in the Proposal that are Not Required in the 
Final Rule
    I. What if I Want to Keep this Information Confidential 
(Sec. 270.115)
    J. To Whom Must I Submit my RAP Application? (Sec. 270.120)
    K. If I Submit my RAP Application as Part of Another Document, 
What Must I do? (Sec. 270.125)
    1. Provisions From the Proposal that are Not Included in the 
Final Rule

Getting a RAP Approved

    L. What is the Process for Approving or Denying my Application 
for a RAP? (Sec. 270.130)
    M. What Must the Director Include in a Draft RAP? (Sec. 270.135)
    1. Provisions of the Proposal that are Not in the Final Rule
    N. What Else Must the Director Prepare in Addition to the Draft 
RAP or Notice of Intent to Deny? (Sec. 270.140)

[[Page 65875]]

    O. What are the Procedures for Public Comment on the Draft RAP 
or Notice of Intent to Deny? (Sec. 270.145)
    1. A Description of the Requirements
    2. Commenters Requested More Flexibility
    P. The Importance of Public Involvement in the RAP Process
    Q. How Will the Director Make a Final Decision on my RAP 
Application? (Sec. 270.150)
    1. A Description of the Requirements
    2. Comments on the Proposed Requirements
    R. May the Decision to Approve or Deny my RAP Application be 
Administratively Appealed? (Sec. 270.155)
    S. When Does my RAP Become Effective? (Sec. 270.160)
    T. When May I Begin Physical Construction of New Units Permitted 
Under the RAP? (Sec. 270.165)

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

    U. After my RAP is Issued, How May it be Modified, Revoked and 
Reissued, or Terminated? (Sec. 270.170)
    V. For What Reasons May the Director Choose to Modify my Final 
RAP? (Sec. 270.175)
    W. For What Reasons May the Director Choose to Revoke and 
Reissue my Final RAP? (Sec. 270.180)
    X. For What Reasons May the Director Choose to Terminate my 
Final RAP, or Deny my Renewal Application? (Sec. 270.185)
    Y. May the Decision to Approve or Deny a Modification, 
Revocation and Reissuance, or Termination of my RAP be 
Administratively Appealed? (Sec. 270.190)
    Z. When Will my RAP Expire? (Sec. 270.195)
    AA. How May I Renew my RAP if it is Expiring? (Sec. 270.200)
    BB. What Happens if I Have Applied Correctly for a RAP Renewal 
But Have Not Received Approval by the Time my Old RAP Expires? 
(Sec. 270.205)

Operating Under Your RAP

    CC. What Records Must I Maintain Concerning my RAP? 
(Sec. 270.210)
    DD. How are the Time Periods in the Requirements in this Subpart 
and my RAP Computed? (Sec. 270.215)
    EE. How May I Transfer my RAP to a New Owner or Operator? 
(Sec. 270.220)
    FF. What Must the State or EPA Region Report About Non-
compliance with RAPs? (Sec. 270.225)

Obtaining a RAP for an Off-site Location

    GG. May I Perform Remediation Waste Management Activities Under 
a RAP at a Location Removed From the Area Where the Remediation 
Wastes Originated? (Sec. 270.230)
    HH. Comparison of the RAPs Process to that for Traditional RCRA 
Permits
V. Requirements Under Part 264 for Remediation Waste Management 
Sites (Sec. 264.1(j))
    A. Comments on Applying Part 264 Standards to Remediation Waste 
Management Sites
    B. EPA's Response to These Comments
    C. EPA is Providing Relief From Part 264, Subparts B, C, and D
VI. Application of RCRA Sections 3004(u) and (v), and Sec. 264.101 
to Remediation Waste Management Sites (Sec. 264.101(d))
VII. Staging Piles (Secs. 260.10 and 264.554)
    A. Introduction and Background
    B. A Summary of Principal Changes From the Proposal
    1. Changes From the Proposal
    2. Consistent With the Proposal
    C. What is a Staging Pile? (Sec. 264.554(a))
    D. How is a Staging Pile Designated? (Sec. 264.554(b))
    E. What Information Must I Provide to get a Staging Pile 
Designated? (Sec. 264.554(c))
    F. What Performance Criteria Must the Staging Pile Satisfy? 
(Sec. 264.554(d))
    1. Performance Standards for Staging Piles (Sec. 264.554(d)(1))
    2. Decision Factors for Staging Piles (Sec. 264.554(d)(2))
    G. May a Staging Pile Receive Ignitable, Reactive, or 
Incompatible Wastes? (Sec. 264.554(e))
    H. How do I Handle Incompatible Remediation Wastes in a Staging 
Pile? (Sec. 264.554(f))
    I. Are Staging Piles Subject to Land Disposal Restrictions 
(LDRs) and Minimum Technological Requirements (MTRs)? 
(Sec. 264.554(g))
    J. How Long May I Operate a Staging Pile? (Sec. 264.554(h))
    K. May I Receive an Operating Term Extension for a Staging Pile? 
(Sec. 264.554(i))
    L. What is the Closure Requirement for a Staging Pile Located in 
a Previously Contaminated Area? (Sec. 264.554(j))
    M. What is the Closure Requirement for a Staging Pile Located in 
an Uncontaminated Area? (Sec. 264.554(k))
    N. How May my Existing Permit (for Example, RAP), Closure Plan, 
or Order be Modified to Allow me to Use a Staging Pile? 
(Sec. 264.554(l))
    O. Is Information About the Staging Pile Available to the 
Public? (Sec. 264.554(m))
    P. What is the Relationship Between Staging Piles, Corrective 
Action Management Units, and the Area of Contamination Policy?
VIII. Corrective Action Management Units (CAMUs) (Sec. 264.552)
IX. Dredged Material Exclusion (Sec. 261.4(g))
    A. What is the Dredged Material Exclusion?
    B. Regulation of Dredged Material Under CWA and MPRSA
    C. Dredged Material and RCRA Applicability
    D. Determination of Regulatory Jurisdiction
    E. Clarification of Future Practice
    F. Comments on the Dredged Material Exclusion
    G. Dredged Material as a Solid Waste
    H. Clarification of Terms Related to Dredged and Fill Material
    I. Normal Dredging Operations and the Exclusion
    J. The Exclusion of Nationwide Permits
X. State Authority (Sec. 271.1(j))
    A. Applicability of Rules in Authorized States
    B. Effect on State Authorization
    1. Staging Piles
    C. Authorization for Today's Rule
    D. Authorization of State Non-RCRA RAP Authorities
XI. Abbreviated Authorization Procedures (Sec. 271.21(h))
    A. Existing Authorization Process
    B. Summary of Comments on the August 22, 1995 Proposal
    C. Basis and Rationale for Today's New Procedures
    D. Rules Listed in Table 1 to Sec. 271.21 to Which the 
Abbreviated Procedure Applies
    E. Use of Today's Abbreviated Procedure for the Authorization of 
Previously Promulgated Rules
    F. Final Abbreviated Authorization Procedures
    G. Authorization Application Requirements
    H. Procedures for Reviewing and Approving Applications
    I. EPA's Decision to Not Promulgate Proposed Category 1 and 2 
Procedures
    J. Improvements to the Existing Authorization Process
XII. Conforming Changes (Secs. 265.1(b), 268.2(c), 268.50(g), 
270.11(d), and 270.42 Appendix I)
XIII. How Does Today's Rule Relate to Other EPA Regulations, 
Initiatives and Programs?
    A. Subpart S Initiative
    B. Suspension of the Toxicity Characteristic for Non-UST 
Petroleum Contaminated Media and Debris
    C. Deferral of Petroleum Contaminated Media and Debris from 
Underground Storage Tank Corrective Actions
    D. Hazardous Waste Identification Rule (HWIR-waste) (May 20, 
1992, and December 21, 1995)
    E. CERCLA
    F. Legislative Reforms
    G. Brownfields
    H. Land Disposal Restrictions (Part 268)
XIV. When Will the Final HWIR-media Rule Become Effective?
XV. Regulatory Requirements
    A. Assessment of Potential Costs and Benefits
    1. Executive Order 12866
    2. Background
    3. Need for Regulation
    4. Assessment of Potential Regulatory Costs
    B. Executive Order 12898: Environmental Justice
    C. Unfunded Mandates Reform Act
    D. Executive Order 12875: Enhancing the Intergovernmental 
Partnership
    E. Regulatory Flexibility Act
    F. Paperwork Reduction Act
    G. National Technology Transfer and Advancement Act
    H. Submission to Congress and the General Accounting Office
    I. Executive Order 13045: Protection of Children from 
Environmental Health Risks and Safety Risks
    J. Executive Order 13084: Consultation and Coordination with 
Indian Tribal Governments

[[Page 65876]]

I. Overview Information

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

    Today's regulatory language and accompanying preamble are written 
in a ``readable regulations'' format. The authors tried to use active 
rather than passive voice, plain language, a question-and-answer 
format, the pronouns ``we'' for EPA and ``you'' for the owner/operator 
(in the regulatory text), and other techniques to make it easier for 
readers to find and understand the information in today's rule and 
preamble.
    This new format is part of the Agency's ongoing efforts at 
regulatory reinvention, and may be unfamiliar to readers as it looks 
very different from the existing regulatory text of the Parts affected 
by today's rule. However, the Agency believes that this new format will 
increase readers' abilities to understand the regulations, which should 
then increase compliance, make enforcement easier, and foster better 
relationships between EPA and the regulated community.
    All of the requirements found in today's final regulations, 
including those set forth in table format, constitute binding, 
enforceable legal requirements. The plain language format used in 
today's final regulations may appear different from other rules, but it 
establishes binding, enforceable legal requirements just as those in 
the existing regulations.

B. What Law Authorizes This Rule?

    These regulations are finalized under the authority of sections 
2002(a), 3001, 3004, 3005, 3006, 3007 and 7004 of the Solid Waste 
Disposal Act of 1970, as amended by the Resource Conservation and 
Recovery Act of 1976 (RCRA), as amended by the Hazardous and Solid 
Waste Amendments of 1984 (HSWA), 42 U.S.C. 6912(a), 6921, 6924, 6925, 
6926, 6927 and 6974.

II. Background Information

A. What Problems Does Today's Rule Address?

    Currently, hazardous wastes managed during cleanup are generally 
subject to the same RCRA Subtitle C requirements as newly generated 
hazardous wastes. Often those Subtitle C requirements are not 
appropriate for the cleanup scenario, as described below.
1. Response-oriented Programs Have Different Objectives and Incentives 
Than Prevention-oriented Programs
    Since 1980, EPA has developed a comprehensive regulatory framework 
under Subtitle C of RCRA for identifying, generating, transporting, 
treating, storing and disposing of hazardous wastes. The RCRA program 
is generally considered prevention-rather than response-oriented. The 
regulations center around two broad objectives: to prevent releases of 
hazardous wastes and constituents through a comprehensive and 
conservative set of management requirements (commonly referred to as 
``cradle-to-grave management''); and to minimize the generation and 
maximize the legitimate reuse and recycling of hazardous wastes. 
However, in the remediation programs, EPA wants to develop a regulatory 
regime that encourages people to cleanup contaminated areas thereby 
generating potentially large volumes of hazardous waste.
    The RCRA regulations constitute minimum national standards for 
managing hazardous wastes. With limited exceptions, they apply equally 
to all hazardous wastes, regardless of where or how generated, and to 
all hazardous waste management facilities, regardless of how much 
government oversight any given facility receives. To ensure an adequate 
level of protection nationally, the RCRA regulations have been 
conservatively designed to ensure proper management of hazardous wastes 
over a range of waste types, environmental conditions, management 
scenarios, and operational contingencies. This causes remediation 
activities to be subject to conservative, and often inappropriate 
requirements. For example, all waste piles must have a leachate 
collection and removal system under Sec. 264.251(a)(2). This is 
appropriate when highly concentrated wastes will be stored in a pile 
for an extended time, but may not be necessary for less-concentrated 
wastes, or shorter-term activities, or cleanup actions when the level 
of oversight is high. However, to account for any activities that may 
take place nationally, EPA wrote the regulations conservatively to 
require all waste piles to comply with these requirements, even when 
they will contain less-concentrated waste for a short time. Nationally 
applicable requirements must be written in this manner to provide 
protective requirements for the highest risk activities that the 
regulations allow.
    As opposed to requirements designed for on-going waste management, 
remediation activities often involve less-concentrated wastes, one-time 
activities, and shorter-term activities. Remediation activities are 
also conducted under close EPA or State oversight. However, the current 
regulations do not allow EPA or the State to modify the requirements 
for piles, or many other Subtitle C requirements, to make them more 
appropriate for the specific circumstances of the remediation taking 
place.
    In administering current RCRA regulations for hazardous waste 
generated during cleanup, EPA and States have recognized fundamental 
differences in both incentives and objectives for prevention- and 
response-oriented programs. In prevention-oriented programs, the 
regulations require taking appropriate precautions against causing 
contamination before an activity takes place, such as the regulations 
that require liners and leachate collection systems. Also, because the 
regulations provide an incentive to minimize waste production, from the 
beginning, the activity is planned and managed to carefully control the 
appropriate factors such as amount of waste produced, concentrations, 
and handling practices to prevent unacceptable situations such as 
releases. However, in administering remedial programs such as Superfund 
and the RCRA Corrective Action program, EPA and the States already face 
an unacceptable situation (contaminated sites) that must be remedied. 
Response-oriented programs must address already existing problems. 
Response-oriented programs cannot pre-determine the location of the 
contamination, but must respond where contamination has already 
occurred, which may be close to sensitive ecosystems or populated 
areas. Response-oriented programs cannot control the volumes or 
concentrations of remediation wastes, but must manage what wastes have 
already been released into the environment in varying volumes, 
concentrations and matrices. Often the site-specific situations facing 
response-oriented programs make waste management difficult, such as 
complex matrices and combinations of constituents of concern, or 
concerns over on-site treatment or disposal units to manage the wastes 
that must be cleaned up.
    In a prevention-oriented system, if the community objected to 
building new on-site units, the facility could decide not to engage in 
business practices that would generate the waste that would need to be 
managed. In the response-oriented situation, however, the facility (or 
the regulatory agency) must deal with existing contamination, and must 
find an acceptable response.
    Also, remedial actions generally receive intensive government 
oversight, and remedial decisions are made by a State or Federal Agency 
only after they thoroughly investigate site-specific

[[Page 65877]]

conditions. In contrast, prevention-oriented hazardous waste 
regulations are generally implemented independently by facility owner/
operators through complying with national regulatory requirements.
2. LDRs, MTRs, and Permitting Raise Problems When Applied to 
Remediation Wastes
    In the HWIR-media proposed rule, EPA identified the application of 
three RCRA requirements to remediation wastes as the biggest problems 
to address; Land Disposal Restrictions (LDRs), Minimum Technological 
Requirements (MTRs), and permitting.
    The LDRs (which appear in 40 CFR part 268) generally prohibit land 
disposal (or ``placement'' in land-based units) of hazardous wastes 
until the wastes have met the applicable treatment standards. Often 
this placement is appropriate and desirable when managing remediation 
wastes to excavate them from their current locations, and temporarily 
store the wastes before on-site treatment, or to excavate the wastes 
and accumulate enough volume to ship off-site cost effectively. By not 
allowing temporary storage and accumulation in land-based units, the 
LDRs can be a strong disincentive to excavating and managing 
remediation waste. The staging pile provisions of today's final rule 
address this issue by allowing temporary storage and accumulation of 
remediation wastes in a staging pile without being subject to LDR.
    Another example of the problems with LDRs in the cleanup scenario 
is that contaminated media are often physically quite different from 
as-generated process wastes. Contaminated soils often contain complex 
mixtures of multiple contaminants and are highly variable in their 
composition, handling, and treatability characteristics. For this 
reason, treating contaminated soils can be particularly complex, 
involving one or sometimes a series of custom-designed treatment 
systems. It can be very difficult to treat contaminated soils to the 
LDR treatment levels. The parts of the HWIR-media proposal that 
addressed this issue have been finalized in the LDR Phase IV rule (63 
FR 28556 (May 26, 1998)).
    The MTR requirements were designed as preventative standards for 
wastes generated through industrial processes. They were not designed 
for the remedial context. For example, under 40 CFR Subpart F, surface 
impoundments, waste piles, and land treatment units or landfills must 
have specific detection, compliance monitoring programs, and corrective 
action programs for potential groundwater contamination from the unit. 
These are appropriate preventative requirements for units managing 
process wastes. However, many cleanup actions involve short-term 
placement of remediation wastes into a waste pile, and all of these 
requirements may not be necessary. The staging piles provisions of 
today's rule address this issue by allowing the Director to determine 
appropriate design criteria for the staging pile based on the site-
specific circumstances such as the concentration of the wastes to be 
placed in the unit and the length of time the unit will operate. EPA 
also explained in the preamble to the CAMU rule additional reasons why 
LDR and MTR requirements can be counterproductive when managing 
remediation waste as opposed to as-generated process wastes. To read 
about these additional reasons, see 58 FR 8658 (8659-8661)(February 16, 
1993).
    Finally, another area creating roadblocks is permitting. The time-
consuming process for obtaining a RCRA permit can delay cleanups, 
thereby delaying the environmental and public health benefits of 
cleaning up a contaminated site. For example, the traditional RCRA 
permitting process requires the facility owner/operator to submit a 
great deal of information on activities at the facility to EPA or the 
State, and the permit must include terms and conditions to protect 
against any improper waste management practices over the long-term 
active life of an operating facility. Because of the large volume of 
information submitted, these permits are huge documents and approval 
often takes several years. However, in the remedial scenario, cleanup 
activities are generally a one-time project; once the cleanup is 
completed and the remediation waste is properly treated and disposed, 
then the activities are completed. Also, these activities are limited 
to addressing the contamination at the site, and therefore are often 
more limited in scope than the operating practices of a facility that 
is engaged in on-going waste treatment, storage and disposal. To 
overcome the limitations discussed above from traditional RCRA permits, 
the new Remedial Action Plans (RAPs) requirements in today's rule 
streamline the process for receiving a permit for treating, storing and 
disposing of remediation wastes, and require the facility owner/
operator to submit significantly less information than for a 
traditional RCRA permit. However, the information submitted for a RAP 
application and RAP terms and conditions must be sufficient to ensure 
proper waste management of the remediation wastes involved during the 
life of the cleanup activities.
    Furthermore, a facility seeking a traditional RCRA permit to manage 
remediation wastes on-site must investigate and cleanup their entire 
facility (facility-wide corrective action). This requirement can deter 
potential cleanups from happening at all. For instance, facility owners 
and operators may wish to clean up a small portion of their facility 
for any number of reasons, such as to avoid future liability, to free 
the property for sale or other uses, or because they simply wish to 
restore the environmental health of their property. However, they may 
not be willing to take on the burden of investigating and cleaning up 
their entire facility, when it is only a small portion they wish to 
voluntarily clean up, and they may be reluctant to conduct the cleanup 
under the RCRA corrective action program. Therefore, to encourage 
cleanups, under today's final rule, facilities that need a RCRA permit 
only to treat, store, or dispose of remediation wastes (remediation-
only facilities) are not subject to the facility-wide corrective action 
requirement.

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

    EPA has tried to solve these problems in the past through a series 
of regulations and policies; for example;
     The ``Area of Contamination'' (AOC) policy;
     The ``contained-in'' policy; and
     The regulations for Corrective Action Management Units 
(CAMUs), and temporary units.1
---------------------------------------------------------------------------

    \1\ 61 FR 18780, 18782 (April 29, 1996), memorandum from Michael 
Shapiro, Director, Office of Solid Waste, Stephen D. Luftig, 
Director, Office of Emergency and Remedial Response, and Jerry 
Clifford, Director, Office of Site Remediation Enforcement, EPA to 
RCRA Branch Chiefs and CERCLA Regional Managers, (March 13, 1996); 
55 FR 8666, 8758-8760 (March 8, 1990); and 58 FR 8658 (February 16, 
1993).
---------------------------------------------------------------------------

    All of these regulations and policies help alleviate some of the 
problems facing cleanups, but none have completely solved these 
problems. (See the October 1997 report by the United States General 
Accounting Office, ``Remediation Waste Requirements Can Increase the 
Time and Cost of Cleanups.'' 2)
---------------------------------------------------------------------------

    \2\ Hazardous Waste: Remediation Waste Requirements Can Increase 
the Time and Cost of Cleanups, U.S. General Accounting Office, GAO/
RCED-98-4, October 1997.
---------------------------------------------------------------------------

    The AOC policy allows important flexibility for activities done 
within a contiguous contaminated area. For example, hazardous 
remediation wastes may be consolidated or treated in situ

[[Page 65878]]

within an AOC without triggering the LDRs or MTRs. However, the AOC 
policy does not address the permitting issues today's rule is 
addressing, nor does it address LDR and MTR for wastes removed from an 
AOC, or treated ex situ.
    The contained-in policy defines when some contaminated media can be 
considered to no longer ``contain'' hazardous waste. When EPA or an 
authorized State determines that media do not ``contain'' hazardous 
waste, RCRA does not generally pose a barrier to remediation because 
permitting requirements, LDRs (generally), and MTRs do not apply to 
media that do not contain hazardous waste. However, the contained-in 
policy is limited to media only, and does not provide any flexibility 
for other remediation wastes, nor does it provide needed flexibility 
for highly concentrated media.
    The CAMU and temporary unit rules provide much-needed flexibility 
for unit-specific standards at cleanup sites. CAMUs and temporary units 
are not subject to LDRs or MTRs. The requirements for these units are 
set on a site-specific basis, depending on site-specific factors such 
as the types of wastes being managed (for example, concentrations, 
volumes, other characteristics) and the period of time the unit will 
operate. However, CAMUs and temporary units do not address any of the 
permitting issues that cause problems for remediation wastes.
    Because each of these regulations or policies is limited in solving 
the problems inherent to managing hazardous remediation waste under the 
RCRA Subtitle C system, EPA felt it was necessary to propose additional 
solutions.

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

    EPA recognized a continuing need for further reforms than the 
regulations and policies discussed above had provided, and yet knew 
that these reforms would be controversial. In 1993, EPA convened a 
committee under the Federal Advisory Committee Act (FACA) to provide 
recommendations to EPA on how to make these reforms. The FACA Committee 
included representatives from environmental groups, regulated industry, 
the waste management industry, States, and EPA. The FACA Committee met 
numerous times between January 1993 and September 1994. EPA based the 
options in the April 29, 1996 HWIR-media proposal on the 
recommendations and discussions of the FACA Committee.
    EPA presented several options for reforms in the HWIR-media 
proposal. EPA presented two comprehensive options (the Bright Line and 
the Unitary Approach), and requested comment on sub-options and issues 
within those comprehensive options.
1. The ``Bright Line'' Approach for Contaminated Media
    The first comprehensive option, which formed the basis for the 
proposed rule, was the ``Bright Line'' option. The Bright Line option 
would have been limited to ``contaminated media'' only. Contaminated 
media was defined to include soils, groundwater, and sediments, but not 
debris, nor other remediation wastes such as sludges. The Bright Line 
option got its name from a ``line'' dividing more highly contaminated 
media from less contaminated media. That Bright Line was a set of 
constituent-specific concentrations based on the risks from those 
constituents. Media found to contain constituents above these 
concentrations would have remained subject to Subtitle C management 
requirements (however, the proposal requested comment on some potential 
modifications to those requirements), and media containing constituents 
below the concentrations would have been eligible for a determination 
that it no longer ``contained'' hazardous waste, thereby generally 
removing it from Subtitle C jurisdiction.
    The determinations of which media were and were not subject to 
Subtitle C requirements were to be documented in a Remediation 
Management Plan (RMP) approved by EPA or an authorized State. The RMP 
would have been an enforceable document that would also have included 
any requirements for managing media below the Bright Line, and would 
have served as a RCRA Subtitle C permit for treatment, storage or 
disposal of media above the Bright Line. The RMP process would have 
been more streamlined than that required for RCRA permits obtained 
under the current regulations, and also, at remediation-only 
facilities, would not have required 3004(u) and (v) facility-wide 
corrective action, as is required for all RCRA permits before today's 
rule.
2. Other Options Within the ``Bright Line'' Approach
    Other requirements that EPA proposed to modify were LDR treatment 
standards for soils that remained subject to Subtitle C requirements, 
standards applicable to on-site storage and/or treatment of cleanup 
wastes during the life of the cleanup, and State authorization 
requirements. New treatment standards would have applied to soils that 
remained subject to LDRs under the Bright Line approach. EPA also 
proposed a new unit called a ``remediation pile.'' Remediation piles 
could have been used temporarily without triggering LDRs and MTRs, for 
the on-site treatment or storage of remediation wastes subject to 
Subtitle C. States picking up any revisions to their RCRA programs (the 
proposal was not limited to the revisions to remediation waste 
management programs) could have followed new streamlined authorization 
procedures. Also, EPA proposed to withdraw the CAMU regulations if the 
final HWIR-media rule would sufficiently replace the flexibility 
currently available under the CAMU rule.
    Finally, EPA proposed excluding dredged materials from Subtitle C 
if they were managed under permits issued under the Clean Water Act 
(CWA) or Marine Protection Research and Sanctuaries Act (MPRSA).
3. The ``Unitary'' Approach--An Alternative to the ``Bright Line''
    As an alternative to the Bright Line approach, EPA requested 
comment on the ``Unitary Approach.'' The Unitary Approach excluded all 
remediation wastes (irrespective of the concentration of hazardous 
constituents in the waste and including non-media remediation wastes) 
managed under a Remedial Action Plan (RAP) (which was very similar to a 
RMP) from Subtitle C management requirements and made them subject to 
site-specific requirements in the RAP.
    Again, EPA requested comment on the two main comprehensive options, 
the Bright Line and the Unitary Approach, and on all the sub-issues, 
such as the proposed elimination of CAMUs, and the new requirements for 
remediation piles, LDR, RMPs and RAPs, dredged materials, and State 
authorization.

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

    Some commenters supported the Bright Line option and thought it was 
appropriate to distinguish between highly contaminated media and media 
that were less contaminated, and to regulate them differently.
    However, most commenters on the Bright Line option believed that 
the Bright Line would be too difficult to implement, and therefore 
should not be finalized. There were several elements of the Bright Line 
option that commenters were concerned about implementing. One concern 
was sampling to determine whether media was above or below the Bright 
Line.

[[Page 65879]]

Concentrations of contaminants in environmental media typically are not 
heterogeneous, and it is difficult to make assumptions about the 
concentrations of large areas of contamination without taking many 
samples.
    Another concern was how to differentiate between media, debris, and 
other remediation wastes, such as sludges. Commenters stated that often 
these different types of remediation waste are all found at the same 
site and they will all need to be managed, and it would be unduly 
complicated to have to separate the different types of remediation 
wastes and manage them separately under separate regulatory 
requirements.
    Also, commenters were concerned about the methodology that EPA used 
to determine the Bright Line levels themselves. EPA received many 
specific comments on the proposed Bright Line constituent specific 
numbers, as well as the choice of which constituents were assigned 
Bright Line numbers.
    With regard to the Unitary Approach, many industry and State 
commenters supported the Unitary Approach, saying that the flexibility 
would greatly streamline cleanups and allow more appropriate decisions 
for managing remediation waste. These commenters emphasized that 
flexibility was needed so that States could develop cleanup programs 
with oversight and public participation requirements specific to the 
concerns, needs, and resources of individual States, and felt that the 
Unitary Approach most closely addressed those concerns. However, some 
commenters were concerned that the lack of any national requirements 
was too open-ended and would not guarantee protectiveness. Commenters 
were also concerned about the resources required for States and Regions 
to make site-specific determinations of the appropriate management 
requirements for remediation wastes at each different site.
    Finally, commenters had many specific comments on the elements of 
these options such as RAPs and RMPs, remediation piles, LDRs, etc. 
Major comments and EPA's responses are summarized under those more 
specific sections of this preamble, and all comments are answered 
specifically in the ``response to comments'' document for today's rule.

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

    EPA has decided to promulgate only selected elements of the HWIR-
media proposal in today's rule, rather than go forward with a more 
comprehensive approach as proposed. EPA plans to complement the 
elements finalized today by leaving the CAMU regulations in place, 
rather than withdrawing these regulations as proposed.
    Although EPA conducted a lengthy outreach process before developing 
the HWIR-media proposal and made every effort to balance the concerns 
and interests of various stakeholder groups, public comment on the 
proposal makes it clear that stakeholders fundamentally disagree on 
many remediation waste management issues.
    EPA agreed with commenters' concerns that the Bright Line approach 
would be too difficult to implement, and that a Bright Line that would 
satisfy commenters who wanted the Bright Line levels to consist of very 
conservative levels would not sufficiently reform the system to remove 
the existing barriers to efficient, protective remediation waste 
management. EPA has concluded that pursuing broader regulatory reform 
would be a time- and resource-intensive process that would most likely 
result in a rule that would provoke additional years of litigation and 
associated uncertainty. This uncertainty would be detrimental to the 
program and have a negative effect on ongoing and future cleanups. 
Based on these conclusions, the Agency has decided not to finalize 
either the Bright Line or the Unitary Approach, and recognizes that a 
purely regulatory response will not solve all of the remediation waste 
management issues that HWIR-media was designed to solve.
    While EPA believes the elements finalized today along with the 
retention of the CAMU rule, will improve remediation waste management 
and expedite cleanups, the Agency is also convinced that additional 
reform is needed to expedite the cleanup program, especially to provide 
greater flexibility for non-media remediation wastes like remedial 
sludges, address certain statutory permitting provisions, and more 
appropriate treatment requirements for remediation wastes (for example, 
treatment that focuses on ``principal threats'' rather than all 
underlying hazardous constituents). Therefore, the Agency continues to 
support appropriate, targeted legislation to address application of 
RCRA Subtitle C land disposal restrictions, minimum technological and 
permitting requirements to remediation waste and will continue to 
participate in discussions on potential legislation. If legislation is 
not forthcoming, the Agency may reexamine its approach to remediation 
waste regulation and may take additional administrative action.
    The elements finalized in today's rule are:
     Streamlined permitting for treating, storing and disposing 
of remediation wastes generated at cleanup sites that, among other 
things, eliminates the requirement for facility-wide corrective action 
at remediation-only facilities;
     A variation on the proposed remediation piles, called 
staging piles, modified in response to public comments;
     A RCRA exclusion for dredged materials managed under Clean 
Water Act (CWA) or Marine Protection Research and Sanctuaries Act 
(MPRSA) permits; and
     Streamlined procedures for State authorization.
    EPA also finalized, in a separate document (63 FR 28604 (May 26, 
1998)), the LDR treatment standards specific to hazardous contaminated 
soil that were proposed in the HWIR-media proposal. EPA is deferring 
action on the Treatability Sample Exclusion Rule, that EPA requested 
comments on expanding in the HWIR-media proposal at 61 FR 18817.
    EPA will withdraw all other portions of the proposal, such as the 
proposal under the Bright Line option to distinguish between lower- and 
higher-risk contaminated media and give regulatory agencies the 
flexibility to exempt lower-risk contaminated media from RCRA 
requirements, and the portion of the proposal that proposed to withdraw 
the CAMU rule.
    Existing areas of flexibility for managing remediation waste, such 
as the contained-in and AOC policies, and site-specific land disposal 
restrictions treatability variances, continue to be available.

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

    Some terms defined in today's rule may be difficult to understand 
when discussed out of context of the rest of the rule; therefore, 
readers may wish to read the preamble sections on RAPs and staging 
piles before reading this section on definitions. To discuss related 
terms together in this preamble, discussion of the definitions is not 
in alphabetical order (which is how the terms appear in the rule 
language). The section discusses:
     First the revised definition of ``corrective action 
management unit'' or ``CAMU,'' then
     The definition of ``remediation waste,'' then
     ``Remediation waste management site'' and ``facility,'' 
then
     ``Staging pile,'' then finally,
     ``Miscellaneous unit.''

[[Page 65880]]

A. Corrective Action Management Unit (CAMU)--Changes to the Existing 
Definition, and Changes to the CAMU and Temporary Unit Regulations at 
Secs. 264.552(a) and 264.553(a)

1. Definition of CAMU
    In today's final rule, the Agency has revised the definition of 
CAMU, as well as the CAMU and temporary unit regulations themselves. 
This revision clarifies the Agency's interpretation of these provisions 
and accommodates EPA's new interpretation, promulgated today, that 
remediation-only facilities are not subject to the facility-wide 
corrective action requirement under RCRA section 3004(u). (See 
discussion under the definition of remediation waste management site 
below.) Specifically, the Agency has added to both the CAMU definition 
(Sec. 260.10) and Secs. 264.552 and 264.553 language providing that 
CAMUs and temporary units are not limited to facilities subject to RCRA 
sections 3004(u) or 3008(h), but may also be approved at other cleanup 
facilities, as well.\3\
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    \3\ When using the term ``remediation-only'' facilities, EPA 
means facilities that require RCRA permits solely for the purposes 
of treating, storing or disposing of remediation wastes due to 
cleanup at the facilities. EPA uses this term to distinguish these 
facilities from operating treatment, storage and disposal facilities 
that manage as-generated process wastes as part of ongoing facility 
operations.
---------------------------------------------------------------------------

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

    Corrective action management unit (CAMU) means an area within a 
facility that is used only for managing remediation wastes for 
implementing corrective action or cleanup at the facility.

    EPA is amending the definition of CAMU by deleting the parts of the 
definition that referred to corrective action authorities under 
Sec. 264.101 and RCRA section 3008(h). This change will accommodate 
RAPs and permits for the management of remediation waste as defined in 
today's rule that are not subject to Sec. 264.101 or RCRA section 
3008(h). Also, the reference in this definition (as well as in the 
definition of remediation waste) to actions taken ``for the purpose of 
implementing corrective action requirements under Sec. 264.101 and RCRA 
section 3008(h)'' implied that EPA intended to restrict CAMU to these 
authorities. In fact, EPA did not intend to restrict the CAMU (or the 
temporary unit) to wastes generated solely through specific RCRA 
regulatory mechanisms, or to cleanup wastes generated solely at RCRA 
treatment, storage or disposal facilities.
    For example, EPA anticipated that CAMUs or temporary units might be 
used as applicable or relevant and appropriate requirements (ARARs) for 
the remediation of many CERCLA sites, especially where CERCLA 
remediation involves management of RCRA hazardous wastes. EPA tied its 
definition of CAMUs and remediation waste to RCRA Federal authorities 
applicable to TSD's (that is, 40 CFR 264.101 and RCRA section 3008(h)) 
because the Agency developed the CAMU and temporary unit rules within 
that context--that is, they were developed as Federal rules to 
implement corrective action at facilities subject to RCRA sections 
3004(u) or 3008(h). Yet, EPA also expected that the CAMU would be 
appropriate as ARARs at Superfund sites; at the Regional 
Administrator's discretion for purposes of remediation under RCRA 
section 7003 (even if not at a Subtitle C facility); and under State 
authorities analogous to section 7003 or CERCLA (which provide a waiver 
from otherwise applicable State RCRA requirements).\4\
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    \4\ For a discussion of State permit waiver authorities, see the 
memorandum from J. Winston Porter, Assistant Administrator, Office 
of Solid Waste and Emergency Response, EPA to Regional 
Administrators, Regions I-X, EPA (November 16, 1987), available in 
the docket to today's rule.
---------------------------------------------------------------------------

    The revised definition of CAMU makes it clear that the CAMU is also 
available under RAPs and other permits for remediation-only facilities 
that under the new interpretation in today's rule are not subject to 40 
CFR 264.101 or RCRA section 3008(h).
    Without this change, the current definitions of CAMU and 
remediation waste might be interpreted to preclude the use of CAMUs and 
temporary units at remediation-only facilities operating under RAPs. 
Yet these facilities are clearly among the type of facilities for which 
CAMUs and temporary units would be beneficial--that is, facilities at 
which remediation should be expedited and encouraged.
    For this reason, EPA has removed the section of the CAMU definition 
(and also parallel provisions in the definition of remediation waste) 
that appeared to limit CAMUs (and temporary units) to facilities 
subject to Sec. 264.101 or section 3008(h). This change should 
eliminate any confusion over the scope of CAMUs and remediation waste, 
and it is consistent with the central purpose of today's rule--
expediting cleanup at sites overseen by Federal and State cleanup 
authorities, whether these sites are within the corrective action 
universe, or whether they are ``remediation-only'' or ``remediation 
waste management sites'' where RCRA hazardous waste is being managed.
    Without this change, the Agency's new interpretation that 
remediation waste management sites are not subject to section 3004(u) 
corrective action requirements, which is intended to stimulate 
cleanups, would have had the unintended effect of eliminating the 
availability of two of the waste management options, CAMUs and 
temporary units, that were designed for the same purposes.
2. Secs. 264.552 and 264.553
    The removal of the language referencing activities performed under 
Sec. 264.101 or RCRA 3008(h) from the definition of CAMU does not 
change the scope of CAMUs. EPA simply removed the language discussing 
authorities from the definition, and added it to the regulatory 
language for CAMUs and temporary units at Secs. 264.552 and 264.553. 
EPA also added specific language clarifying that CAMUs and temporary 
units may be approved at permitted facilities that, under today's rule, 
are not subject to Sec. 264.101. EPA believes these provisions are more 
appropriate in the regulatory text of the CAMU and temporary unit 
requirements instead of in the definitions because they identify the 
mechanisms by which CAMUs and temporary units are approved, rather than 
define the scope of the unit itself. By including these authorities in 
the text of Secs. 264.552 and 264.553, EPA is clarifying that CAMUs and 
temporary units are intended to implement corrective action consistent 
with the requirements in Sec. 264.101 and 3008(h) requirements, as well 
as cleanup under today's RAPs, which do not require compliance with 
Sec. 264.101. The mechanisms for approval of CAMUs and temporary units 
will be the permit and order procedures, and the RAP procedures. Of 
course, Federal and State authorities with permit waiver provisions may 
also use CAMUs, as discussed above and in the preamble to the CAMU rule 
at 58 FR 8658 (p. 8679) (February 16, 1993).
    EPA is also adding language to Secs. 264.552 and 264.553, and has 
included language in the new Sec. 264.554 created in today's rule, to 
specify that CAMUs, temporary units, and staging piles may only be used 
within the contiguous property under the control of the owner/operator 
where the wastes to be managed in the CAMU originated. EPA added this 
language because the Agency removed that limitation from the definition 
of remediation waste, as discussed below. EPA believes these 
restrictions are more appropriate in the regulatory text of the CAMU, 
temporary unit, and staging pile requirements instead of in the 
definitions.

[[Page 65881]]

    EPA is retaining the current limitation that CAMUs and temporary 
units may only be used within the contiguous property under the control 
of the owner/operator, and creating the same limitation for staging 
piles created under today's rule. However, EPA believes that it may be 
advantageous in some cases to use CAMUs, temporary units, and staging 
piles at off-site facilities. Today's rule provides some relief for 
off-site management of remediation wastes, but does not allow off-site 
CAMUs, temporary units, or staging piles. EPA may reconsider the need 
for and appropriateness of allowing off-site CAMUs, temporary units and 
staging piles in the future.

B. Remediation Waste--Changes to the Existing Definition

    Under current regulations, the term ``remediation waste'' defines 
wastes that can be managed in a CAMU or temporary unit. Today's rule 
amends the definition for the same reason that EPA made the same change 
to the definition of CAMU--to remove the limitation to wastes managed 
under Sec. 264.101 and RCRA Sec. 3008(h). The new definition retains 
the term's current use, and makes the definition conform with the new 
RAPs and staging piles provisions by not limiting remediation wastes to 
wastes managed under certain specific corrective action authorities. 
Wastes managed under the provisions of today's rule will be managed 
during the course of a wide range of cleanups conducted under many 
different types of cleanup authorities.
    The existing definition of remediation waste (in Sec. 260.10) might 
be read as limiting the term to wastes managed under the RCRA 
corrective action cleanup authorities of 40 CFR 264.101 and RCRA 
section 3008(h). In the preamble to the proposed rule (61 FR 18836), 
EPA requested comment on a revised definition of remediation waste that 
eliminated the limitation to wastes ``managed for the purpose of 
implementing corrective action requirements under Sec. 264.101 and RCRA 
section 3008(h),'' and added that wastes from a ``media remediation 
site'' could be considered remediation wastes. Today's definition is 
based on this definition and reads as follows:

    Remediation waste means all solid and hazardous wastes, and all 
media (including groundwater, surface water, soils and sediments) 
and debris that contain listed hazardous wastes or that themselves 
exhibit a hazardous characteristic and are managed for implementing 
cleanup.

The Agency has made two changes to the existing Sec. 260.10 definition 
of remediation waste originally promulgated for the CAMU and temporary 
unit rules. The first change removes references to RCRA corrective 
action authorities, and the second change eliminates the restriction 
that remediation wastes may originate only from within the facility 
boundary.
    The first reference that was eliminated defined remediation waste 
as wastes ``managed for the purpose of implementing corrective action 
requirements under Sec. 264.101 and RCRA section 3008(h).'' The revised 
definition refers to wastes ``that are managed for implementing 
cleanup,'' without specifying the authority under which owner/operators 
must address these wastes. As mentioned above, the Agency specifically 
suggested this change in the preamble of the proposed rule (61 FR 
18836) in a discussion of the Unitary.
    No comments were submitted specifically on the definition of 
remediation waste, although several commenters expressed their views on 
the general issue of what materials should be subject to the proposed 
rule, which is the issue addressed by the definition of ``remediation 
waste.'' For example, one commenter expressed support for the approach 
envisioned by the proposal, and finalized in today's clarification to 
the definition, stating that ``the HWIR-media rule should be applied to 
any management of hazardous contaminated media (and further, to all 
remediation waste . . .), regardless of whether this remediation is 
conducted under RCRA, CERCLA, or other State or Federal authority.''
    In view of the statements made by commenters expressing support for 
allowing the use of different State and Federal authorities, EPA 
continues to believe that the purpose behind the provisions finalized 
today--to encourage cleanup by removing unnecessary regulatory 
barriers--is best served by the broad definition finalized today.\5\
---------------------------------------------------------------------------

    \5\ Many commenters on the proposal addressed the issue of the 
types of materials that should be eligible for the relief offered by 
the proposed rule--most notably, whether relief should be provided 
for both contaminated media and hazardous wastes that are managed 
during cleanup (for example, sludges that have not commingled with 
media). Because this issue was addressed differently under the 
various provisions of the proposed rule, these comments are 
addressed in the discussion of each specific provision finalized 
today.
---------------------------------------------------------------------------

    The second change has removed the limitation that waste must 
originate from ``within the facility boundary.'' This allows 
remediation waste managed at off-site locations, such as those 
permitted under Sec. 270.230 to continue to meet the definition of 
remediation waste even though they are removed from the original site.
    The changes made to the definition of remediation waste parallel 
changes in the definition of CAMU, and changes to the CAMU and 
temporary units regulations at Secs. 264.552 and 264.553.6
---------------------------------------------------------------------------

    \6\ Today, EPA is also modifying Secs. 264.552 and 264.553 to 
allow implementation of CAMUs and temporary units under permits 
(including RAPs) at facilities that are not subject to Sec. 264.101 
and 3008(h) as discussed in today's preamble under the definition of 
CAMU.
---------------------------------------------------------------------------

    Commenters were concerned about the status of wastes that have 
migrated beyond the traditional RCRA ``facility'' boundary, and the 
need to include those wastes in remediation waste. Some commenters were 
concerned that, as proposed, owners and operators would be required to 
obtain a RAP for on-site activities and an RCRA permit for off-site 
locations where wastes had migrated. Some were concerned that they 
would not be able to bring wastes that had migrated off-site back to 
the site for management; still others were concerned that they would be 
forced to manage wastes on-site even if it was not the most protective 
option. EPA has retained the inclusion of wastes that have migrated 
beyond the facility boundary by removing the clause that limited from 
where remediation waste could originate. EPA expects this to resolve 
the concerns of these commenters.
    Finally, it is important to stress two points. First, it should be 
noted that remediation waste includes only waste managed because of 
cleanup, and does not include wastes generated from on-going hazardous 
waste operations, which are commonly referred to as ``newly 
generated,'' ``as generated,'' or ``process'' wastes. When managed as 
part of a legitimate cleanup action, any (non-``as-generated'') 
hazardous wastes (for example, media, debris, sludges, or other wastes) 
are all remediation waste. Second, remediation waste includes both 
hazardous and non-hazardous solid wastes managed as a result of 
cleanup, including any wastes generated from treating remediation 
wastes (for example, carbon canisters and sludges generated from 
groundwater pump-and-treat or soil vapor extraction systems). Third, 
the changes made to the definition of remediation waste do not, in any 
way, change the scope of the CAMU and temporary unit regulations. EPA 
has replaced the limitation on contiguous property removed from this 
definition with a limitation in the CAMU and temporary unit regulations 
themselves at Secs. 264.552 and 264.553. That same limitation also 
applies to staging piles created in today's rule.

[[Page 65882]]

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

    The final definition for remediation waste management site included 
in Sec. 260.10 in today's rule is:

    Remediation waste management site means a facility where an 
owner or operator is or will be treating, storing or disposing of 
hazardous remediation wastes. A remediation waste management site is 
not a facility that is subject to corrective action under 
Sec. 264.101 of this chapter, but is subject to corrective action 
requirements if the site is located in such a facility.

    Traditionally, RCRA has focused on ``facilities'' when applying 
hazardous waste regulations. These are generally properties where 
industrial operations manage hazardous wastes that they have generated, 
or where commercial operations or entities conduct hazardous waste 
treatment, storage, and/or disposal operations. For corrective action 
under Sec. 3004(u) and (v) (implemented through Sec. 264.101) and 
3008(h), a facility was defined (see Sec. 260.10) as ``all contiguous 
property under the control of the owner or operator'' where hazardous 
wastes are managed.
    In the proposal, EPA defined ``media remediation site'' as a new 
term that would apply to a location where certain remediation waste 
management activities were taking place, and might or might not include 
all or part of a pre-existing RCRA ``facility.'' EPA felt that it was 
important to differentiate between existing ``facilities'' and a new 
kind of site that would be eligible for the streamlined permits 
(Remedial Action Plans or RAPs) promulgated in today's rule, and would 
be exempt from Sec. 264.101 and certain other Part 264 requirements 
that are not necessary or appropriate for areas used solely to manage 
cleanup wastes.
1. EPA Changed the Term From ``Media Remediation Site'' in the Proposal 
to ``Remediation Waste Management Site'' in the Final Rule
    EPA has replaced the term ``media remediation site'' with the more 
descriptive term ``remediation waste management site.'' Commenters 
generally supported the concept of a media remediation site, but the 
term ``media remediation site'' caused confusion for some, because 
``remediation site'' implies an area that is being cleaned up, not, as 
is meant in this case, an area where hazardous remediation wastes are 
being managed.
    Also, the proposed rule allowed only contaminated media to be 
exempted from Subtitle C requirements, and the word ``media'' in the 
title ``media remediation site'' was meant to emphasize that the 
exemptions were only for contaminated media. In today's final rule, EPA 
is not exempting any wastes from Subtitle C, and all provisions of this 
final rule apply to all remediation wastes, so the term ``media'' is no 
longer needed in the definition of the site.
    These are the reasons EPA changed the term from ``media remediation 
site'' to ``remediation waste management site.'' Changes to the 
definition of the proposed term are discussed later in this section.
2. EPA has Created Different Requirements for Remediation Waste 
Management Sites Than for Facilities Managing ``As-generated'' 
Hazardous Wastes
    Throughout today's rule and the proposal, EPA has emphasized that, 
to stimulate cleanup, it is important to regulate remediation waste 
management activities differently from as-generated process waste 
management where appropriate. This definition of remediation waste 
management site allows EPA to apply requirements to remediation waste 
management activities that are more appropriate for the remediation 
scenario than the current requirements that, until today's rule, have 
applied to both remediation waste management and as-generated process 
waste management.
    In today's rule, to facilitate prompt and protective treatment, 
storage, and disposal of hazardous remediation wastes, EPA has created 
three new requirements for remediation waste management sites that are 
different from those for other facilities:
     A new form of an RCRA permit for treating, storing and 
disposing of hazardous remediation wastes (a RAP) that streamlines the 
permitting process for remediation waste management sites to allow 
cleanups to take place more quickly (Part 270, Subpart H);
     Performance standards for remediation waste management 
sites that replace the detailed requirements in Part 264 Subparts B, C, 
and D (General Facility Standards, Preparedness and Prevention and 
Contingency Plans and Emergency Procedures) (Sec. 264.1(j)); and
     A provision excluding remediation waste management sites 
from RCRA Sec. 3004(u)'s requirement for facility-wide corrective 
action(Secs. 264.1(j) and 264.101(d)).
    As noted above, EPA believes it is appropriate to regulate 
facilities that manage as-generated process wastes and those that 
manage remediation wastes differently, and the designation of a 
remediation waste management site defines when the new provisions 
unique to areas that manage remediation wastes will apply.
3. Differences Between the Proposed Definition of Media Remediation 
Site and the Final Definition of Remediation Waste Management Site
    The definition of media remediation site in the proposal which, 
like today's definition of remediation waste management site, was used 
to define where reduced permitting requirements would apply, was:

    An area contaminated with hazardous waste that is subject to 
cleanup under State or Federal authority, and areas in close 
proximity to the contaminated area at which remediation wastes are 
being or will be managed pursuant to State or Federal remediation 
authorities (such as RCRA Corrective Action or CERCLA). A media 
remediation site is not a facility for the purposes of implementing 
corrective action under 40 CFR 264.101, but may be subject to such 
corrective action requirements if the site is located within such a 
facility (as defined in 40 CFR 260.10).

    In response to the limitations to ``contaminated areas'' and 
``areas in close proximity,'' several commenters identified specific 
situations where those limitations might prevent owners and operators 
from conducting environmentally beneficial activities under a RAP. 
These comments are addressed in today's rule under new Sec. 270.230, 
and the preamble discussion of that section instead of in today's 
definition.
    EPA has removed from the proposed definition the requirement that 
limits media remediation sites to areas subject to cleanup under State 
or Federal authority, and wastes managed under State or Federal 
remediation authorities. EPA has always intended that today's rule 
would promote voluntary initiation of cleanup activities by people not 
already required to conduct cleanup under other authorities. EPA 
continues to hope that this will be a result of today's rule.
    Therefore, EPA has removed this limitation to make it clear that 
people voluntarily initiating cleanup can have their properties 
designated as remediation waste management sites. These activities 
would still ordinarily require a RCRA permit (for example, a RAP) if 
owner/operators were to treat, store or dispose of hazardous 
remediation wastes, so that the proper requirements would be applied, 
and the public would have the opportunity to participate in the waste 
management decisions.
    Finally, EPA has kept in the final rule the part of the proposed 
definition of

[[Page 65883]]

media remediation site that stated that these were not facilities for 
implementing facility-wide corrective action. As discussed elsewhere in 
this preamble, EPA believes that applying 3004(u) and (v) and 3008(h) 
requirements to facilities not already subject to these requirements is 
such a disincentive to voluntarily initiated cleanup actions that 
people often choose options that do not require permitting, rather than 
face such a responsibility.
4. Remediation Waste Management Sites Are Not Subject to Facility-wide 
Corrective Action
    Today's rule, like the proposal, provides that a remediation waste 
management site is not subject to the requirements in RCRA section 
3004(u) for facility-wide corrective action. EPA believes, as discussed 
more fully in the proposal, that requiring facility-wide corrective 
action for facilities that are or will be engaged in ongoing hazardous 
waste management outside the context of an environmentally beneficial 
cleanup activity may properly be seen as a quid pro quo for the costs 
of doing business in, and in some way profiting from, the management of 
hazardous wastes. In a remedial context, however, there is no profit or 
advantage gained by owners and operators from managing hazardous 
wastes; it is simply a necessary part of performing an act that is 
environmentally beneficial (that is, cleaning up a site). To view 
remediation-only sites as traditional hazardous waste facilities (which 
would impose additional cleanup responsibilities) can have the effect 
of penalizing those who wish to clean up their properties. EPA does not 
believe that this result is one that Congress intended. (See 61 FR 
18792-93).
    The large majority of commenters on this issue supported the 
interpretation, because it is widely recognized that the facility-wide 
corrective action requirement often acts as disincentive to cleanup of 
wastes subject to Subtitle C. Some commenters, however, expressed 
concern over the Agency's legal theory supporting the interpretation. 
This concern appears to stem from the commenters' perception that the 
Agency is making a purely semantic argument--that is, that by being 
renamed ``media remediation sites,'' these sites are no longer the 
``facilities'' to which section 3004(u) applies.
    The Agency understands the commenters' confusion on this point. The 
corrective action requirement of section 3004(u) applies to ``a 
treatment, storage, or disposal facility seeking a permit.'' Today EPA 
clarifies that the Agency's view is not that remediation-only 
facilities do not constitute ``facilities'' for RCRA purposes, but 
simply that they should not be interpreted to be the ``facilities 
seeking a permit'' to which the requirements in section 3004(u) apply. 
In the Agency's opinion, the reference to ``a treatment, storage, or 
disposal facility seeking a permit'' clearly refers to facilities that 
need permits because they are in the business of hazardous waste 
management. Remediation-only facilities, because they only obtain a 
permit to engage in remediation, do not fit into that category. EPA 
believes that it is a reasonable interpretation of section 3004(u) that 
sites that are or will be conducting hazardous waste management only as 
part of cleanup activities are not the types of facilities to which 
Congress intended to apply the section 3004(u) facility-wide corrective 
action requirements. (See 61 FR 18792-93).
    In addition, in light of the disincentive to cleanup created by 
applying the facility-wide corrective action requirement to 
remediation-only facilities, to continue to apply the requirement would 
appear to be contrary to one of Congress' clear goals in enacting 
section 3004(u)--to ensure that currently unmanaged remediation wastes 
that pose a risk to human health and the environment are addressed.
    Today's rule differs in one significant respect from the proposal: 
this interpretation is no longer limited to facilities that obtain 
RAPs, but also applies to remediation-only facilities that obtain 
traditional RCRA permits. Thus, any facility that meets the definition 
of a ``remediation waste management site'' (promulgated today), 
regardless of whether its hazardous waste management activities are 
authorized by a RAP or traditional RCRA permit, will not be subject to 
the facility-wide corrective action requirement. The Agency agrees with 
the one commenter who argued that there was no reason to limit the 
relief from section 3004(u) to facilities addressed under the RAP 
framework. After all, because the RAP standards are less stringent than 
existing requirements, States may choose not to adopt them as part of 
their authorized programs. There is no reason to prevent these States, 
however, from nonetheless amending their programs to reflect the 
section 3004(u) interpretation finalized today. Similarly, if a State 
not authorized for corrective action issues a RCRA permit for 
remediation-only sites (remediation waste management sites), Federal 
corrective action requirements will not attach.
    Although the above discussion stresses the use of RAPs as the 
vehicle for permitting a remediation waste management site and for 
applying the benefits of RAPs, the new requirements in Sec. 264.1(j), 
and the elimination of Sec. 264.101 facility-wide corrective action 
through the new Sec. 264.101(d) provision for remediation waste 
management sites are not limited to sites permitted under RAPs. States 
wishing to use the traditional RCRA permits process for activities at 
remediation waste management sites may do so, and the other benefits of 
remediation waste management sites (Sec. 264.1(j), and 264.101(d)) 
continue to apply to remediation waste management sites under permits, 
as well as under RAPs. The preamble discussion explaining the need and 
rationale for these other provisions can be found in the section of the 
preamble discussing those provisions.
5. Remediation Waste Management Sites Are Excluded From Only the Second 
Part of the Definition of Facility
    This exclusion from the definition of facility is strictly limited 
to the definition of facility for purposes of corrective action, which 
is found in part (2) of the definition of facility. Remediation waste 
management sites are not excluded from part (1) of the definition of 
facility for other purposes.
6. Facility
    EPA is revising the definition of facility, (to make conforming 
changes with the definition of remediation waste management site), as 
follows:
    Facility means ... (3) Notwithstanding paragraph (2) of this 
definition, a remediation waste management site is not a facility that 
is subject to Sec. 264.101, but is subject to Sec. 264.101 corrective 
action requirements if the site is located within such a facility.
    EPA requested comment on this change to the definition of facility 
at Sec. 260.10 of the proposal, and did not receive any comments 
opposing this change, and is therefore finalizing this amendment with 
only two minor changes.
    First, the proposed rule language stated that ``notwithstanding (1) 
and (2)'' remediation waste management sites were not subject to the 
facility-wide corrective action requirement, but on further reflection, 
it has become clear that the reference to paragraph (1) was an 
oversight. This is because the proposed definition clearly stated that 
remediation waste management sites are only not ``facilities'' ``for 
the purposes of Sec. 264.101.'' The facility definition in paragraph 
(1) is not used for those

[[Page 65884]]

purposes. In addition, because the facility definition in paragraph (1) 
is used in implementing the rest of the RCRA hazardous waste 
regulations, which continue to apply to activities at remediation waste 
management sites, paragraph (1) must remain applicable.
    Second, the proposed definitional change did not include the 
current language that states ``but may be subject to such corrective 
action requirements if the site is located within such a facility.'' 
EPA has added this clause to make the language consistent with the 
definition of remediation waste management site, which was included in 
this language at proposal.
    As the Agency stated in the preamble to the proposed rule, this 
language is meant to provide for the following situation: ``In some 
cases a media remediation site could be part of an operating (or 
closing) RCRA hazardous waste management facility that is already 
subject to the Sec. 3004(u) and (v) corrective action requirements; in 
those cases, identifying an area of the facility as a media remediation 
site [today's remediation waste management site] would not have any 
effect on the corrective action requirements for that site or the rest 
of the facility.'' (61 FR 18793).

D. Staging Pile--A New Kind of Unit

    The definition of staging pile states that ``[s]taging pile means 
an accumulation of solid, non-flowing remediation waste (as defined in 
40 CFR 260.10) that is not a containment building and that is used only 
during remedial operations for temporary storage at a facility. Staging 
piles must be designated by the Director according to the requirements 
in 40 CFR Sec. 264.554.''
1. Differences Between the Definition of Staging Pile and the Existing 
Definition of Pile
    This definition uses a slight alteration of the definition of 
``pile,'' as defined in Sec. 260.10 for waste piles (Sec. 264.250), 
which better fits the purposes of today's staging pile rule. The 
definition of pile differs from the staging pile definition in three 
ways; the definition of pile:
     Is limited to non-containerized waste;
     Addresses the ``accumulation of solid, nonflowing 
hazardous waste,'' rather than ``solid, nonflowing remediation waste;'' 
and
     Allows for ``treatment or storage'' rather than simply 
temporary storage.
    First, EPA believes it may often be environmentally protective or 
simply more convenient to move remediation wastes in bags or other 
containers when placing them into a staging pile. Because bags may 
reduce blowing of wastes in a pile, or volatilization of hazardous 
constituents, EPA did not want to eliminate the option of bagging, or 
other protective activities, of wastes in a staging pile.
    Second, because today's rule does not allow ``as-generated'' 
hazardous waste to be stored or treated in a staging pile, the 
rationale behind using the term remediation waste rather than simply 
hazardous waste should be clear. EPA also included the ``solid, non-
flowing'' portion of the definition of pile to ensure that liquid 
wastes will not be placed in the staging pile. Liquid wastes are 
inappropriate for storing in staging piles because of the possibility 
of releases and run-off.
    Third, the definition of ``piles'' allows both storage and 
treatment. However, as discussed below, staging piles allow only 
storage.
2. Differences Between the Proposed Definition of Remediation Pile and 
the Final Definition of Staging Pile
    In the proposed rule, the definition of remediation pile reads 
that, ``[r]emediation [p]ile means a pile used only for the temporary 
treatment or storage of remediation wastes, including hazardous 
contaminated media (as defined in Sec. 269.3), during remedial 
operations.''
    This definition was altered for a number of reasons. First, the 
Agency felt that including the term ``pile'' in the staging pile 
definition would only serve to confuse staging piles with waste piles. 
Furthermore, because staging piles will accept hazardous remediation 
waste, rather than only hazardous contaminated media for the reasons 
previously discussed, this portion of the definition also had to be 
changed. Finally, treatment is not mentioned in today's staging pile 
definition, because treatment will not be allowed in staging piles. No 
commenters provided comments directly addressing the definition of 
remediation pile. For a fuller discussion of staging piles, and the 
comments EPA received, see the discussion of staging piles in section 
VII of this preamble.

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

    EPA is simply adding the unit ``staging pile'' to the list of units 
excluded from the definition of miscellaneous unit. The revised 
definition is as follows:

    Miscellaneous Unit means a hazardous waste management unit where 
hazardous waste is treated, stored, or disposed of and that is not a 
container, tank, surface impoundment, pile, land treatment unit, 
landfill, incinerator, boiler, industrial furnace, underground 
injection well with appropriate technical standards under 40 CFR 
Part 146, containment building, corrective action management unit, 
unit eligible for research, development, and demonstration permit 
under Sec. 270.65, or staging pile.

    Miscellaneous units are meant to cover units that do not have 
regulatory provisions specific to that individual type of unit. Because 
EPA is today adding provisions for staging piles, staging piles should 
likewise be excluded from the definition of miscellaneous units.

IV. Information on Remedial Action Plans (RAPs) (Secs. 270.2, 
270.68 and 270.80--270.230)

General Information About RAPs

A. What Are EPA's Objectives for RAPs?

    After considering the public comments on the proposal, the Agency 
crafted the final RAP regulation with the following six objectives in 
mind:
    One, RAPs should be suited to the specifics of managing remediation 
waste in the context of cleanup, both in procedure and in substantive 
requirements;
    Two, RAPs should ensure compliance with the applicable requirements 
for safe hazardous remediation waste management;
    Three, RAPs should provide certainty and protection to the 
permitted party, as appropriate;
    Four, the RAP approval process should provide opportunities for 
meaningful public involvement;
    Five, because RAPs constitute RCRA permits, the RAP approval 
process must, at the least, follow the statutory minimum requirements 
for obtaining a permit; and
    Six, RAPs, and the RAP approval process should accomplish the 
previous objectives through the most streamlined, reasonable, and 
understandable regulations possible.
    In today's rule, EPA believes that it has reached a reasonable 
compromise consistent with these objectives. In summary, the RAP 
requirements promulgated today:
     Significantly reduce procedural steps in permitting, while 
retaining the minimum statutory public participation requirements and 
certain basic permitting steps or conditions (for example, permit 
appeal procedures);
     Replacing the detailed requirements in Secs. 270.3--270.66 
with broader performance standards;
     Significantly reducing and focusing information 
requirements; and
     Removing the requirement for facility-wide corrective 
action.

[[Page 65885]]

    Given this flexibility, EPA believes that it will be possible for 
EPA and authorized States to develop RAPs that are much more suited to 
cleanups than are current RCRA permits--that is, a RAP will generally 
fit the model of a Superfund Record of Decision or an approval of a 
cleanup workplan, rather than that of a RCRA Part B permit. EPA 
believes this flexibility is essential for an effective cleanup 
program.
    At the same time, EPA recognizes that its approach to RAPs in 
today's rule (and more broadly today's rule as a whole) only partially 
solves the long-standing problems associated with remediations 
involving hazardous waste regulated under RCRA Subtitle C. For example, 
as EPA and others have long emphasized, the statutory public 
participation requirements (newspaper notices and radio spots) are 
highly prescriptive without, in fact, ensuring effective public 
involvement. EPA believes a more flexible approach could better reflect 
the wide variety of cleanup actions, while still providing a full 
opportunity for public involvement. EPA also recognizes that it has 
made less extensive changes to Subtitle C permitting requirements as 
they apply to remediation waste than some have recommended. Indeed, EPA 
believes that, in the long run, further changes are appropriate.
    For example, EPA has left the substantive, unit-specific 
requirements in 40 CFR part 264 intact (although the Agency has added 
new flexibility for staging piles), even though EPA recognizes that 
these requirements do not always make sense in a remedial context. (For 
example, secondary containment may not always be needed for tanks 
within an area of contamination.) EPA took this approach in today's 
rule because it has not yet aired these issues in detail in previous 
proposals. EPA is deferring action here, however, the issues are 
continuing to be discussed more fully in the context of possible 
statutory changes to RCRA.
    In the meantime, EPA emphasizes that today's rule, in combination 
with existing rules and policies, provides important flexibility in 
cleanup scenarios. EPA not only expects that today's rule will provide 
significant benefits; EPA also intends (and encourages authorized 
States) to use existing flexibility in EPA land disposal standards for 
soils, the CAMU rule (which today's rule is retaining), the Agency's 
contained-in policy for contaminated media, the AOC concept for 
contaminated sites, and similar tools to expedite effective cleanups. 
The flexibility provided by today's rule should be understood within 
this broader context.

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

Sec. 270.68
    To make it clear that RAPs are subject to different, more 
streamlined requirements than other RCRA permits, EPA created a 
separate Subpart (40 CFR Part 270, Subpart H) for RAPs. The provision 
in today's rule in Sec. 270.68 simply points readers who may look for 
RAPs in the existing Subpart F (Special Forms of Permits) to the 
section for RAPs in the new Subpart H.
1. The Differences Between a RAP and a Traditional RCRA Permit
Secs. 270.2 and 270.80(a)
    EPA defines a RAP in Secs. 270.2 and 270.80(a) as a ``special form 
of RCRA permit that you [a facility owner/operator] may obtain instead 
of a permit issued under sections 270.3-270.66, to authorize you to 
treat, store, or dispose of hazardous remediation waste (as defined in 
Sec. 260.10) at a remediation waste management site.'' Often, remedies 
selected for cleanup sites involve treating, storing or re-disposing of 
hazardous remediation waste. RCRA permits are required whenever you 
treat, store or dispose of hazardous waste (unless a specific permit 
exemption or exclusion applies). Until now, treating, storing or re-
disposing of hazardous remediation wastes required the same type of 
permit as that for as-generated process waste management. Traditional 
RCRA permits, however, were designed for operating hazardous waste 
treatment, storage, and disposal facilities managing as-generated 
process wastes. The permit procedures, requirements, and contents were 
designed specifically for those situations. Traditional RCRA permits 
also require facility-wide corrective action under RCRA Sections 3004 
(u) and (v). Many of these requirements are not well suited to cleanup 
activities.
    Section 270.80(a) also limits RAPs to permit activities done in the 
area of contamination or areas in close proximity. This is because EPA 
generally wishes to encourage owners and operators to conduct 
remediation waste management activities on-site. EPA does allow RAPs 
for off-site locations for limited circumstance under Sec. 270.230, 
when managing the remediation waste off-site will be more protective 
than managing it on-site.
2. Some Advantages of a RAP Compared to a Traditional RCRA Permit
    EPA believes that the traditional RCRA permitting requirements are 
not well suited for cleanup activities for many reasons.
    First, flexibility in public participation for RAPs, as opposed to 
the more specific requirements for traditional RCRA permits, is 
necessary because cleanup activities vary greatly in volumes of waste 
to be managed; amount of time allocated for the project; types of 
activities to take place; and risks posed by the cleanup activities. 
Also, EPA and State cleanup programs generally involve ongoing dialogue 
with the surrounding community about choices of remedies and other 
considerations. Many of these programs have developed creative and 
successful public participation strategies which may vary slightly from 
specific procedures that could be set out in a nationally applicable 
Federal regulation.
    Second, the more streamlined and flexible requirements for RAPs are 
better designed for the cleanup scenario than requirements for 
traditional RCRA permits in 40 CFR Part 270 because the Part 270 
standards are designed specifically to mirror and implement the 
requirements throughout Subtitle C for as-generated process wastes. As 
discussed earlier, the Subtitle C requirements are designed for the on-
going management of as-generated waste, and are designed to be a 
``cradle-to-grave'' system of regulations that will prevent new 
releases from the possible mismanagement of hazardous wastes. While 
this ``cradle-to-grave'' system has been successful in preventing new 
releases and in providing incentives to minimize the amount of waste 
generated, the system is often cumbersome when applied to remediation 
wastes. Remediation wastes have already escaped into the environment, 
and often are found in unique volumes, matrices, mixtures, etc. The 
nationally applicable Subtitle C requirements do not often have the 
flexibility to respond to unique circumstances encountered at cleanup 
sites. Therefore, the permitting requirements based on the Subtitle C 
requirements also do not have the proper flexibility to respond to 
unique circumstances encountered at cleanup sites.
    Third, information requirements for traditional RCRA permits are 
generally based on those nationally applicable requirements mentioned 
above, and so are not necessarily appropriate for all cleanup sites.

[[Page 65886]]

    Fourth and finally, as discussed below, EPA believes that requiring 
facility-wide corrective action for all new RAPs provides disincentives 
to cleanups and to remedies that involve excavating and treating or 
moving wastes. These disincentives are discussed below.
    In implementing, overseeing, and observing the hazardous waste 
cleanup programs under RCRA Corrective Action and State cleanup 
programs, EPA has concluded that the requirement to obtain a RCRA 
permit for on-site treatment, storage or disposal of hazardous 
remediation wastes often acts as a disincentive to cleanup, 
particularly in the cases where the site is not otherwise subject to 
RCRA. Cleanups may be desirable at these sites for many reasons (for 
example, a State or Federal cleanup authority might determine that the 
site presents a hazard; the facility owner/operator may wish to clean 
up the property voluntarily; or a potential future facility owner may 
hope to acquire and reuse the property.) Before today's rule, if 
facility owners and operators of these sites chose to treat, store, or 
dispose of hazardous remediation wastes on-site, they generally would 
be required to obtain a RCRA permit, along with all the requirements 
(including facility-wide corrective action) that come with that permit. 
Obtaining these permits can be very time-consuming and expensive, and 
facility-wide corrective action provides a strong disincentive to any 
action that would require a permit. This requirement to obtain a RCRA 
permit, especially the requirement for facility-wide corrective action, 
was found by EPA's Permits Improvements Team (PIT) 7 to be a 
major disincentive to cleanup. A recent study by the Government 
Accounting Office (GAO) came to a similar conclusion.8 To 
avoid having to secure a RCRA permit, many remedial decision-makers 
often choose options for remediation that avoid application of the 
permit requirements, such as capping in place, which may not be the 
best remedial option for the site.
---------------------------------------------------------------------------

    \7\ EPA's Permits Improvement Team (PIT) was created in 1994 to 
identify specific actions that could be taken by EPA to increase the 
efficiency and effectiveness of environmental permitting programs. 
The PIT held numerous stakeholder meetings throughout the country 
and prepared a draft set of recommendations before it finished its 
work in 1997.
    \8\ Hazardous Waste: Remediation Waste Requirements Can Increase 
the Time and Cost of Cleanups, U.S. General Accounting Office, GAO/
RCED-98-4, October 1997.
---------------------------------------------------------------------------

    Under the streamlined approach to permitting promulgated today, 
these sites (which have sometimes been referred to as ``remediation-
only sites'') can receive a RAP for remediation waste management 
activities that take place at the site rather than a traditional RCRA 
permit. EPA has designed the RAPs process to be more streamlined than 
that for existing permits to reduce disincentives to cleanups. As 
opposed to traditional RCRA permits, RAP procedures, requirements, and 
contents are designed specifically for the cleanup scenario.
    The differences between the processes for receiving approval of 
RAPs and for receiving approval of traditional permits are described 
more fully in the sections that follow, as well as in the section 
entitled ``Comparison of RAPs Process to That for Other Permits.''
    As discussed more fully in the preamble discussion of the 
definition of remediation waste management site, RAP recipients (other 
than those who are already subject to the corrective action 
requirements because of independent RCRA permitting requirements), are 
also not required to perform facility-wide corrective action. The 
regulatory language for the exemption from the requirements in RCRA 
sections 3004 (u) and (v) does not actually appear in the RAPs section 
of the regulatory language. Instead, because the requirements for RCRA 
sections 3004 (u) and (v) are implemented through the regulatory 
language at Sec. 264.101, the exemption from these requirements in 
today's rule is found in Part 264 at Secs. 264.1(j) and 264.101(d), as 
well as in the definition of remediation waste management site and 
facility in Sec. 260.10, instead of part 270.
    RAPs cannot be used to permit treatment, storage, and disposal of 
``as-generated'' process wastes. RAPs are limited to authorizing the 
treatment, storage, or disposal of hazardous remediation wastes. As 
this preamble discusses, the definition of remediation waste is limited 
to wastes that are managed to implement cleanup. This does not include 
``as-generated'' process waste or wastes from any activities that are 
not specifically implemented for the purposes of cleanup.
3. Differences Between ``Remediation Management Plans'' in the Proposal 
and ``Remedial Action Plans'' in the Final Rule
    EPA proposed streamlined permits for remediation-only sites under 
the name Remediation Management Plans, or RMPs. The RMP concept was 
proposed at Secs. 269.40 through 269.45. As in today's rule, RMPs were 
proposed as a special form of a permit for hazardous remediation 
wastes; however, RMPs 9 were also the vehicle by which EPA 
or a State could exempt low-level hazardous contaminated media from 
Subtitle C management requirements, and could impose any necessary 
site-specific management requirements on these wastes. As discussed in 
section II. E. of this preamble, the Agency is not finalizing the 
aspects of the proposed rule that exempt hazardous remediation waste 
from Subtitle C, but is finalizing the streamlined permitting process 
for treating, storing, and disposing of hazardous remediation waste 
(that is, wastes that would have remained within Subtitle C 
jurisdiction under the proposal). However, in the final rule, EPA has 
named these permits Remedial Action Plans or RAPs.
---------------------------------------------------------------------------

    \9\ EPA has chosen to use the term RAP in the final rule because 
it is more commonly understood than RMP.
---------------------------------------------------------------------------

    In today's rule, as in the proposal, RAPs streamline the permitting 
process but, unlike in the proposal, a RAP in today's rule is not used 
to document and enforce alternative management requirements for 
remediation wastes that are exempt from Subtitle C. Hazardous 
remediation wastes remain subject to the applicable requirements in 
parts 260-271. Many of the provisions of the proposed RMPs have been 
eliminated or revised to accommodate this change.
    The specific differences between RMPs, as proposed, and RAPs, as 
finalized, are discussed under the description of each section of the 
final regulation. EPA emphasizes that the contained-in principle, which 
provided a legal rationale for the proposed approach exempting low-
level contaminated media, remains an existing EPA policy. EPA continues 
to encourage States to apply this policy, where appropriate, to 
expedite cleanups.

Section 270.80(b)

    In Sec. 270.80(b) EPA states that the requirements in Secs. 270.3-
270.66 do not apply to RAPs unless those traditional RCRA permit 
requirements are specifically required under Secs. 270.80-270.230, but 
that the definitions in Sec. 270.2 do apply to RAPs. This is meant 
simply to identify those requirements that apply to RAPs and those that 
do not. Where appropriate, the RAPs requirements in Subpart H include 
their own provisions instead of those in Secs. 270.3-270.66.

Section 270.80(c)

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

[[Page 65887]]

provision of [Part 270] or Part 124, any document that meets the 
requirements in this section constitutes a RCRA permit under RCRA 
section 3005(c). This is to ensure that, although RAPs may not be 
expressly referred to in other provisions of Parts 270 and 124, they 
are indeed RCRA permits. Although today's rule contains additional 
language to enhance the reader's understanding, these two new 
provisions are the same as proposed at Sec. 269.40(c). The Agency did 
not receive any negative comments on this provision, and has therefore 
finalized the approach as proposed.

Section 270.80(d)

    To facilitate streamlining at cleanup sites, EPA included the 
provision at Sec. 270.80(d), which states that a RAP may be either: (1) 
a stand-alone document that includes only the information and 
conditions required by this Subpart; or (2) part (or parts) of another 
document that includes information and/or conditions for other 
activities at the remediation waste management site, in addition to the 
information and conditions required by this Subpart.
    EPA anticipates that RAPs will often be granted at the same time 
that other decisions, such as remedy selection, are made at a cleanup 
site. Under the cleanup program, the facility owner/operator or the 
Director may be preparing other documents, such as remedy decision 
documents, which may cover much if not all of what a RAP will cover. 
EPA has included this provision to make it clear that the facility 
owner/operator and the Director do not have to duplicate efforts, and 
can create one document that serves both purposes. This approach was 
proposed at Sec. 269.40(e), and again, the Agency did not receive any 
negative comment on this provision. In this case--where the issuing 
authority is an authorized State--only the portion of the RAP imposed 
under today's rule will be enforceable as part of the Federal RCRA 
program.

Section 270.80(e)

    Throughout the development of the HWIR-media rule, there has been 
much confusion about the relationship between RAPs and cleanup 
requirements. Notwithstanding the confusion, EPA believes this is a 
very simple relationship. Cleanup programs dictate the goals of cleanup 
(that is, ``how clean is clean'' and how to select remedies, 
investigate sites, and conduct other related activities). Frequently, 
the remedies selected under these cleanup programs involve treating, 
storing, or disposing of hazardous remediation wastes in a way that 
would require a RCRA permit.
    RAPs are simply the permitting mechanism for authorizing (according 
to RCRA requirements) this treatment, storage or disposal. In 
Sec. 270.80(e), EPA has clarified that, if you are treating, storing or 
disposing of hazardous remediation wastes as part of a cleanup 
compelled by Federal or State cleanup authorities, your RAP does not 
affect your cleanup obligations under those authorities in any way. The 
RAP does not affect ``how clean is clean'' (cleanup standards), and 
does not affect, in any way, existing legal obligations to perform 
cleanup actions. This was proposed at Sec. 269.1(c), and the Agency did 
not receive any negative comments on this provision, and so it is being 
finalized as proposed, except for edits to make it easier to 
understand.

Section 270.80(f)

    New Sec. 270.80(f) provides that interim status facilities that 
treat, store or dispose of remediation waste under a RAP will not lose 
their interim status by virtue of receiving an approved RAP, because 
the RAP applies only to the remediation waste management activities 
that take place as a result of the cleanup, and not to any obligations 
under other authorities.
    Under today's rule RAPs can now be used to designate CAMUs, 
temporary units and staging piles (as well as other non-combustion 
remediation waste management units and operations). Owner/operators of 
interim status facilities who wish to construct CAMUs, temporary units 
or staging piles may now apply for a RAP as the vehicle for imposing 
the site-specific requirements, providing a mechanism for enforcing 
those requirements and providing for public participation. RAPs provide 
for all three of these functions, and may be a desirable alternative to 
a 3008(h) enforcement order.
    EPA is concerned that allowing a RAP at an interim status facility 
may cause confusion about the impact on that facility's interim status, 
and therefore has included Sec. 270.80(f). Because RAPs are RCRA 
permits, and because permit issuance at an interim status facility 
often terminates interim status for that facility, EPA is concerned 
that some may think that issuing a RAP at an interim status facility 
terminates that facility's interim status. Existing Sec. 270.1(c)(4) 
already provides that, if EPA issues or denies a permit for one or more 
units at a facility without simultaneously issuing or denying a permit 
to all units at the facility, this does not affect the interim status 
for any unit for which a permit has not been issued or denied. Section 
270.80(f) in today's rule serves a similar function by providing that 
RAP issuance does not terminate interim status for the other parts of 
the facility not covered by the RAP (or for facility-wide corrective 
action purposes).
    EPA did not specifically propose this provision, but has included 
it in the final rule to avoid confusion. In the proposed rule (see for 
example, 61 FR 18791), EPA stated that these provisions would be 
implemented under many different programs and agencies. In the proposed 
rule at 61 FR 18814, EPA gave examples of CERCLA sites and permitted 
treatment, storage and disposal facilities (TSDFs), but did not clarify 
how these requirements would apply at interim status TSDFs. This was an 
oversight and is corrected by Sec. 270.80(f) in today's final rule.

C. When Do I Need a RAP? (Sec. 270.85)

Section 270.85(a)

    Section 270.85(a) states that ``whenever you treat, store, or 
dispose of hazardous remediation waste in a manner that requires a RCRA 
permit under Sec. 270.1, you must either obtain: (1) a RCRA permit 
according to Secs. 270.3--270.66 of [Part 270]; or (2) a RAP according 
to [Part 270 Subpart H].''
1.What Activities Require RCRA Permits?
    Section 270.1 describes what activities require RCRA permits. If 
the facility owner/operator intends to perform activities that require 
permits, but is managing only hazardous remediation waste and not as-
generated process wastes, he may take advantage of the streamlined 
procedures for RAPs, or may obtain a traditional RCRA permit. There are 
also instances where treating, storing or disposing of remediation 
wastes do not require a RCRA permit. Today's rule, like the proposal, 
will not change, in any way, when a RCRA permit is required. Thus, no 
RAP is needed where a permit would not otherwise be required.
    One example of when neither RAPs nor traditional RCRA permits would 
be required is CERCLA removal and remedial actions. CERCLA Section 
121(e) grants a RCRA permit waiver for on-site response actions 
selected under CERCLA Section 121. Generally, however, a Record of 
Decision (ROD) or other CERCLA decision document would specify the 
requirements for complying with the substantive RCRA Subtitle C 
requirements for treating, storing, or disposing of remediation waste 
on-site. Another example would be when State that is authorized to

[[Page 65888]]

implement the RCRA program has a permit waiver authority that is 
analogous to EPA's authority under CERCLA Section 121(e) or RCRA 
Section 7003. This permit waiver policy is described in a memorandum 
from J. Winston Porter, Assistant Administrator, Office of Solid Waste 
and Emergency Response, EPA to Regional Administrators, Regions I--X, 
EPA, (November 16, 1987) available in the docket to today's rule. 
Today's rule does not change or affect this policy in any way.
    In addition, facility owner/operators may manage hazardous 
remediation wastes in a way that does not require a RCRA permit. For 
example, contaminated remediation wastes can be capped in place, or 
excavated and transported off-site to a designated, permitted facility 
for treatment or disposal. Another example is that wastes can be 
treated or stored on-site in units that are exempt from permitting 
requirements, such as wastewater treatment units. (See 40 CFR 
Secs. 264.1(g)(6), 265.1(c)(10), and 270.1(c)(2)(v)). Still another 
example is that remediation wastes can be treated or stored on-site for 
less than 90 days in tanks, containers, or containment buildings (see 
40 CFR 262.34), which also does not require a permit.

Section 270.85(b)

    In the proposed rule at Sec. 269.43(f), EPA proposed that RMPs 
involving on-site combustion of hazardous remediation wastes would have 
to follow the requirements for issuance of RCRA permits in 40 CFR parts 
270 and 124, and would not be eligible to obtain RMPs. EPA has 
finalized that requirement at new Sec. 270.85(b).
    EPA received one negative comment on that provision, which stated 
that the Agency had not demonstrated how combustion of hazardous 
remediation waste is different from other management techniques. 
However, the Agency continues to believe, as stated in the preamble to 
the proposed rule (61 FR 18818), that it is necessary to include this 
provision because Secs. 270.16 and 270.62 include requirements for 
trial burns and other important procedures for incinerators that EPA 
continues to believe are necessary, even for combustion units handling 
hazardous remediation waste. Also there is a high level of public 
interest in hazardous waste combustion, which EPA believes merits the 
extra public participation steps of the traditional RCRA permitting 
process.
    Another commenter asked that EPA clarify the procedures required 
for permitting of combustion units under RAPs. The proposed rule stated 
that ``for remedial actions involving on-site combustion of hazardous 
remediation wastes, the procedural requirements for issuance of RCRA 
permits . . . shall at a minimum be followed for review and approval of 
RMPs [which are RAPs in today's final rule].'' This language led to 
confusion over what requirements are considered ``procedural.'' Today's 
final rule states that ``[t]reatment units that utilize combustion of 
hazardous remediation wastes at a remediation waste management site are 
not eligible for RAPs under this Subpart.''
    EPA believes that this revised regulatory language makes it clear 
that permitting for combustion units does not follow any of the RAP 
requirements, but instead the traditional RCRA permitting requirements. 
(However, 40 CFR 264.101(d) of today's rule would exempt a facility 
receiving a permit for a combustion unit from facility-wide corrective 
action, if that facility were a remediation-only site (remediation 
waste management site).)

Sec. 270.85(c)

    The proposed rule provided for the situation where a facility 
owner/operator permitted for on-going hazardous waste operations sought 
a RAP for cleanup activities at the facility. Under the proposed rule, 
a facility owner/operator might desire a RAP for two reasons--the RAP 
was the vehicle by which remediation wastes could become exempt from 
Subtitle C, and, for wastes that remained in Subtitle C, the 
application and procedural requirements for RAPs were more streamlined 
and better tailored to the remediation scenario.
    To accommodate these situations, the proposed rule would have 
allowed traditional RCRA permits to serve as RAPs (Sec. 269.40(e)(2)), 
and also would have allowed the permitted facility to obtain a RAP, 
which would only cover the remedial operations at a site, in addition 
to its RCRA permit, (see 61 FR 18814). Because under the final rule, 
RAPs are not a vehicle for obtaining an exemption from Subtitle C, 
there is no need to finalize the proposed rule provision allowing 
traditional RCRA permits to serve as RAPs. On the other hand, the 
Agency continues to believe it is appropriate to allow permitted 
facilities to obtain the benefits provided by the RAP format and has 
crafted today's rule accordingly.
    Specifically, today's rule (Sec. 270.85(c)) states:

    You may obtain a RAP for managing hazardous remediation waste at 
an already permitted RCRA facility. You must have these RAPs 
approved as a modification to your existing permit according to the 
requirements in Secs. 270.41 or 270.42 instead of the requirements 
in this Subpart. When you submit an application for such a 
modification, however, the information requirements in 
Sec. 270.42(a)(1)(i), (b)(1)(iv), and (c)(1)(iv) do not apply; 
instead, you must submit the information required under 
Sec. 270.110. When your permit is modified, the RAP becomes part of 
the RCRA permit. Therefore when your permit (including the RAP 
portion) is modified, revoked and reissued, terminated, or when it 
expires, it will be modified according to the applicable 
requirements in Secs. 270.40 through 270.42, revoked and reissued 
according to the applicable requirements in Secs. 270.41 and 43, 
terminated according to the applicable requirements in Sec. 270.43, 
and expire according to the applicable requirements in Secs. 270.50 
and 270.51.

    This approach differs from the proposal in that a facility with a 
permit covering ongoing hazardous waste operations would not obtain a 
RAP as a separate authorizing document for the hazardous waste 
management activities conducted during the course of cleanup. The 
Agency made this change to avoid potential overlaps, gaps or confusion 
in having two authorizing documents at one facility. Instead, the rule 
provides that a RAP at a permitted facility be integrated into the 
permit as a permit modification. Thus, the more streamlined RAP 
application content requirements in Sec. 270.110 apply, but the 
procedures for RAP approval in these cases are the permit modification 
procedures Sec. 270.41 or Sec. 270.42.
    The Agency chose the permit modification procedures over the RAP 
procedures because it believes that establishing two different 
procedures for permit modifications--depending on whether you were 
modifying permits to include a RAP, or doing any other form of permit 
modification under Secs. 270.41 and 270.42--would be unnecessarily 
confusing.
    Comments were mixed. Two commenters stated that the proposed rule 
was unclear as to how RAPs would apply at facilities that already had a 
RCRA permit. One commenter said that EPA should not require both a RAP 
and a permit for the same activity. Another commenter suggested 
amending permits to require compliance with RAPs. Two other commenters 
disagreed with each other. One stated that RAPs would be beneficial 
because they would avoid the cumbersome and costly permit modification 
process. The other stated that it was unnecessary and inappropriate to 
allow separate and less rigorous procedures at facilities already 
subject to permitting. EPA agrees with this commenter to the extent 
that today's rule requires issuance,

[[Page 65889]]

modification, revocation and reissuance, and termination of RAPs 
through standard permit procedures at permitted facilities. But, EPA 
also believes that the relief provided by the content requirements for 
RAPs at Sec. 270.100 should be available at permitted facilities. EPA 
developed the standards of today's rule with cleanups specifically in 
mind. The Agency believes that they are generally appropriate for 
cleanups taking place at TSDs, as well as to cleanups taking place 
under RAPs elsewhere.
    There are three classes of modifications for traditional permits, 
Classes 1, 2, and 3. When modifying a permit to incorporate a RAP, the 
Director and the facility owner/operator must follow the Class 
modification procedure that is appropriate for the activities being 
permitted under the RAP. The last sentence of new Sec. 270.85(c) 
provides that once the RAP is part of the permit, the applicable permit 
procedures must be followed for modification, revocation and 
reissuance, termination and expiration. However, the content 
requirements for RAPs will always remain those in Sec. 270.110. EPA 
included this provision to avoid confusion about which requirements 
apply when making changes to RAPs that are part of RCRA permits.
    This does not mean that RAPs at permitted facilities must follow 
two procedures, one for approval of the RAP and one for permit 
modification. On the contrary, RAPs at permitted facilities need only 
follow one process, the permit modification procedure, to receive 
approval.

D. Does my RAP Grant me Any Rights or Relieve me of Any Obligations? 
(Sec. 270.90)

    Today's rule at new Sec. 270.90 applies the Sec. 270.4 provisions 
to RAPs. Section 270.4(a) is known as ``permit as a shield,'' and 
protects the facility owner/operator in that as long as they comply 
with the terms of their RAP, they will be considered in compliance with 
RCRA Subtitle C for enforcement purposes, except for the four 
exceptions noted below. This means that EPA will not take enforcement 
actions against facility owner/operators for activities that are in 
compliance with their RAP, unless one of the four exceptions in 
Sec. 270.4(a) applies. Although the proposed rule did not contain this 
provision, EPA requested comment on applying it at 61 FR 18815 of the 
proposal.
    One commenter expressed concern about EPA granting ``permit as a 
shield'' to RAPs, arguing that the shield concept presumes that all 
RAPs will be properly drafted, and that this presumption is 
inappropriate, given the Agency's own acknowledgment, embodied in the 
proposed rule's requirements for State HWIR-media program withdrawal, 
that improper drafting may occur. Several other commenters, however, 
stated that it is appropriate to specify that compliance with a RAP 
constitutes compliance with RCRA.
    The Agency agrees with these latter commenters. The Agency believes 
that including this provision is necessary to provide facility owners 
and operators with a measure of assurance that activities performed 
under an approved RAP will be recognized by the Agency as satisfying 
Subtitle C requirements for those activities expressly addressed and 
permitted by the RAP. EPA articulated the rationale for a ``shield'' 
provision in the May, 19 1980 final rule, which established this 
provision for permits (see 45 FR 33311). Specifically, EPA stated:

    EPA believes that this ``shield'' provision is one of the 
central features of EPA's attempt to provide permittees with maximum 
certainty during the fixed terms of permits. . . . This new 
provision gives a permittee the security of knowing that, if it 
complies with its permit, it will not be enforced against for 
violating some requirement of the appropriate Act [e.g. , RCRA] 
which was not a requirements of the permit . . . EPA agrees that one 
of the most useful purposes of issuing a permit is to prescribe with 
specificity the requirements that a facility will have to meet, both 
so that the facility can plan and operate with knowledge of what 
rules apply, and so the permitting authority can redirect its 
standard-setting efforts elsewhere. If all the 3004 standards were 
fully enforceable against a permitted RCRA facility even though they 
were not reflected in the permit (or, perhaps, not consistent with 
it), facilities would be exposed to unavoidable uncertainty as to 
the standing of their operations under the law. In addition, such a 
provision would increase pressure on EPA and States to keep permit 
conditions applicable to a given facility in a perpetual state of 
re-examination. EPA's resources will at most be barely sufficient to 
issue and renew RCRA permits, and review State permits, at the time 
of their initial issuance and periodic renewal. EPA and States are 
likely to make much better use of their resources if they restrict 
examination of permits between issuance and renewal to monitoring 
compliance and taking enforcement action where necessary.... [The 
shield] now places the burden on permit writers rather than 
permittees to search through the applicable regulations and 
correctly apply them to the permittee through its permit. This means 
that a permittee may rely on its . . . permit document to know the 
extent of its enforceable duties.

    With regards to the commenter who was concerned about granting 
``permit as a shield'' to RAPs, EPA believes that the commenters 
concerns are alleviated by the differences between the proposed and the 
final rule. RAPs under the proposed rule performed a different function 
from RAPs under the final rule. In the proposed rule, RAPs were the 
vehicle for excluding remediation wastes from Subtitle C requirements 
and instead imposed site-specific requirements on these wastes. The 
commenter who was concerned about the permit as a shield provision may 
have been concerned that a poorly written RAP might include site-
specific requirements for wastes excluded from Subtitle C that were not 
protective of human health and the environment. Because today's final 
rule does not exclude any wastes from Subtitle C requirements, that is 
no longer a concern.
    As mentioned above, Sec. 270.4(a) includes four exceptions to the 
``shield'' provision. Specifically, the permit does not shield the 
facility owner/operator from enforcement for requirements not included 
in the permit which:
    (1) Become effective by statute;
    (2) Are promulgated under Part 268 of this chapter restricting the 
placement of hazardous wastes in or on the land;
    (3) Are promulgated under Part 264 of this chapter regarding leak 
detection systems; or
    (4) are promulgated under Subparts AA, BB or CC of Part 265 of this 
chapter limiting air emissions.
    With respect to the fourth exception, under Sec. 264.1080(b)(5) the 
requirements in Part 264 Subpart CC do not apply to ``a waste 
management unit that is used solely for on-site treatment or storage of 
hazardous waste that is generated as the result of implementing 
remedial activities required under the corrective action authorities of 
RCRA sections 3004(u), 3004(v) or 3008(h), CERCLA authorities, or 
similar Federal or State authorities.'' Therefore, remediation waste 
management units permitted by RAPs will not be subject to Subpart CC 
requirements. EPA expects that any of these four exceptions to the 
shield, especially numbers (3) and (4), will often not be relevant to 
activities taking place under RAPs.
    Also, in the same way as for traditional RCRA permits, the shield 
provisions cover only activities that are authorized by the RAP, not 
any other hazardous waste management activities the facility owner/
operator may perform at the site. For example, if the RAP covers a 
treatment unit, then activities performed in compliance with the RAP 
requirements for that treatment unit are covered by the ``shield.''
    However, if the operator decides to build and use a disposal unit 
on-site that is not addressed in the RAP, the

[[Page 65890]]

operator must either obtain a modification to the RAP, or a traditional 
RCRA permit for that new activity, or they will not be shielded from an 
enforcement action under RCRA for operating that unit without a permit. 
In no way does this provision be shield a facility owner or operator 
from an enforcement action for a RCRA violation for any as-generated 
waste management requirements (as those activities are excluded from 
coverage under RAPs). Finally, because a RAP is simply a permitting 
mechanism for managing remediation waste, but does not address cleanup 
obligations, Sec. 270.4(a) does not shield a facility owner/operator 
from cleanup obligations that apply to facilities subject to Federal or 
State remedial authorities.
    Section 270.4(b) and (c) address property rights, privileges, and 
authorization of injury, invasion of rights, or infringement of State 
or local law or regulations. Because the Agency received no adverse 
comments on these provisions proposed at Sec. 269.40(f) and (g), and 
because they were the same as Sec. 270.4(b) and (c) for traditional 
RCRA permits, EPA is not creating new provisions specific to RAPs, but 
is applying the identical Sec. 270.4(b) and (c) provisions to RAPs as 
proposed.

Applying for a RAP

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

    The first step towards obtaining RAP approval is to apply for a 
RAP. This section simply states that to apply for a RAP the owner/
operator must complete an application, sign it, and submit it to the 
Director according to the requirements in part 270 Subpart H.

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

    This requirement explains that if the site is owned by one person, 
but the activities are operated by another person, then it is the 
operator's duty to obtain a RAP, except that the facility owner must 
also sign the RAP application. It mirrors the requirement for other 
permits in Sec. 270.10(b). The operator is the person responsible for 
the activity being permitted by the RAP, is the most familiar with the 
proposed activity, and is therefore, the most reasonable choice for who 
should be responsible for obtaining the RAP. The proposed rule stated 
that ``the owner/operator must receive approval by the Director of a 
Remediation Management Plan (RMP).'' The proposal did not distinguish 
between the facility owner and operator, but the Agency believes that 
this provision of today's rule will provide additional clarity about 
who is responsible for obtaining a RAP.

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

    The proposed rule (at Sec. 269.43(b)) (like the final rule today) 
required both the facility owner and operator to sign the application 
for a RAP according to Sec. 270.11. Their signatures are meant to 
certify that the information contained in the RAP application, to the 
best of the signatory's knowledge and belief, is true, accurate, and 
complete (see Sec. 270.11 (d)).
    In response to the Agency's request for comment on whether 
signatures of both the facility owner and operator should be required ( 
61 FR 18817), several commenters objected to the proposed requirement, 
pointing out that in many instances one party may take a completely 
passive role in the cleanup process. One commenter pointed out that the 
current owner of a site may not have technical involvement in the 
cleanup or may be unwilling to commit resources to the cleanup.
    These commenters felt that it could obstruct or delay cleanup 
efforts if both parties are required to sign the RAP application, 
especially if the passive party was fearful of incurring liability by 
signing. Other commenters felt that both parties should be required to 
sign the RAP application (as is required for traditional RCRA permits) 
as an indication that they both agree with the provisions in it. One of 
these latter commenters pointed out that States still hold the facility 
owner responsible for activities on his property regardless of whether 
another party operates the site. This commenter felt that requiring the 
facility owner to sign as well as the operator would signify that the 
property owner is aware of the activities occurring on his property.
    EPA has sympathy with commenters on this issue who argue that in 
some cases owners may take a passive role, especially with respect to 
how the remediation waste is managed. At the same time, EPA notes that, 
under the statute, RCRA permits must be issued to both the owner and 
the operator. EPA also believes that owners, as well as operators, 
should ordinarily be responsible for the conduct of cleanup activities. 
Finally, owners may know about activities on the property that the 
operator is not involved in or aware of, and can provide valuable 
information for the permit. To be sure, one of the prime justifications 
for requiring the facility owner's signature on the permit--that the 
facility owner is liable for facility-wide corrective action--does not 
apply in this case. Nevertheless, the facility owner's signature is 
generally important to confirm that the cleanup is proceeding with his 
knowledge and approval, and to put the facility owner on notice of 
potential liabilities. Where it is difficult to get a facility owner to 
agree to a RAP, EPA may find that an enforcement action is more 
appropriate than a permit.
    As proposed (Sec. 269.43(b)), Sec. 270.105 in today's rule requires 
the RAP application to be signed according to Sec. 270.11. The 
requirements in Sec. 270.11(a) specify the appropriate person to sign 
the RAP application in the case of a corporation, partnership, sole 
proprietorship, municipality, State, Federal, or other public agency. 
Section 270.11(b) requires that any reports required by the RAP be 
signed by the person specified in Sec. 270.11(a) or a duly authorized 
representative. Section 270.11(c) describes what to do if authorization 
under Sec. 270.11(b) changes. Section 270.11(d) requires a person 
signing a document under Sec. 270.11(a) or (b) to certify that the 
documents were prepared under their direction, that the information is 
accurate and complete, and that they understand the penalties of 
submitting false information. EPA has provided that the facility owner 
may choose an alternative certification under Sec. 270.11(d)(2) if the 
operator certifies under Sec. 270.11(d)(1).
    After reviewing comments on the respective role of the operator and 
the land owner, EPA concluded that a less rigorous certification may be 
appropriate for the land owner, if the operator is more familiar with 
the cleanup activities than the facility owner. As explained earlier, 
EPA expects that the operator will be preparing the RAP application and 
will be familiar with its details. He will also be responsible for 
carrying out the cleanup. Therefore, it makes sense to have the 
operator provide the certification. At the same time, as a signatory to 
the permit, the landowner remains jointly and severally liable with the 
operator, and EPA retains the ability to enforce the terms of the RAP 
against the landowner where this enforcement is appropriate in EPA's 
discretion.
    EPA believes that the less rigorous certification in 
Sec. 270.11(d)(2) is appropriate because it continues to require the 
facility owner to make appropriate inquiries and provide any 
information he has about the property that will be the subject of the 
RAP. Other than general comments on who should submit the permit 
application, EPA did not receive comment on these requirements. 
Therefore, with this one exception, EPA has finalized the requirements 
as proposed.

[[Page 65891]]

H. What Must I Include in My Application for a RAP? (Sec. 270.110)

1. Description of the Specific Content Requirements
    This subsection lists the specific pieces of information that the 
owner/operator must include in a RAP application, and also requires the 
facility owner/operator to submit any other information the Director 
considers necessary. The information required under Sec. 270.110(a) 
through (e) includes names and addresses, latitude and longitude of the 
site, a map showing site location, and scaled drawings of the 
remediation waste management site features and boundaries.
    The proposal did not explicitly list in the ``Content of RMPs'' 
section the information required in the final rule under 
Sec. 270.110(a) through (e). However, these details were suggested by a 
commenter on the proposal. EPA expected that this information would 
generally have been required under the proposed rule. Because the 
information would be important in identifying the activities to be 
authorized by a RAP, the information generally would either have been 
included in the RAP application, or if not, would have been required by 
the Director under the proposed Sec. 269.41(c)(10) (``other information 
determined by the Director to be necessary'').
    The Agency, however, agrees with the commenter that it should be 
added as an express requirement, to avoid any unnecessary delay caused 
by an applicant's failure to submit it in the first instance. In 
addition, these information requirements are similar to the types of 
information required under a Part A application in Sec. 270.13, 
although better tailored to the remediation scenario.
    New Sec. 270.110(f) requires the application to specify the 
hazardous remediation waste to be treated, stored, or disposed of, to 
estimate the quantity of waste to be managed, and to describe the 
processes to be used for treating, storing, and disposing of the waste. 
This provision finalizes appropriate aspects of what was required under 
proposed Secs. 269.41 (c)(1) through (6).
    Specifically, the proposed rule differs from the rule promulgated 
today in that it required information regarding not only what under 
today's rule constitutes ``hazardous remediation waste,'' but also what 
constitutes ``non-hazardous contaminated media.'' The Agency has 
eliminated references to ``non-hazardous contaminated media'' because, 
as discussed more fully in preamble section II. E., EPA has decided not 
to finalize any of the approaches from the proposal that would have 
excluded remediation waste from Subtitle C, and had the RAP address 
non-hazardous media. The Agency has therefore eliminated requirements 
that were proposed to implement that portion of the proposed rule 
(proposed Sec. 269.41(c)(1) and (3)).
    Section 270.110(g) requires the facility owner/operator to submit 
information to demonstrate that the remediation wastes will be managed 
according to the applicable hazardous waste management requirements 
found in Parts 264, 266 and 268. This provision finalizes the proposed 
provision of Sec. 269.43(c)(2). Although many commenters would have 
preferred all remediation wastes to be exempt from the Subtitle C 
requirements, including Parts 264, 266 and 268, for the reasons 
discussed earlier in this preamble, the Agency has decided not to 
finalize either the Bright Line or Unitary approaches which would have 
exempted remediation wastes from Subtitle C, and therefore, all 
hazardous remediation wastes remain subject to these requirements.
    This flexible requirement replaces the detailed, unit-specific 
requirements in 40 CFR 270.14 through 270.27 that apply to traditional 
RCRA permits, and which lay out the information required in a Part B 
permit application. EPA has taken this more flexible approach, both 
because of the wide variation in cleanup activities, and because of the 
Agency's interest in streamlining the permit process for remediation 
activities. In implementing current remedial programs, including CERCLA 
and EPA's RCRA enforcement programs, the regulated community, the 
regulators, and interested members of the public successfully work 
together to develop enforceable remediation plans, and EPA believes 
there is no need for the Agency at this point to mandate detailed 
``information'' requirements for RAPs based on part B requirements. 
Thus today's rule simply requires the RAP applicant to provide enough 
information to demonstrate compliance.
    Section 270.110(h) requires the RAP applicant to submit enough 
information for the Director to comply with other Acts, as required for 
traditional RCRA permits under Sec. 270.14(b)(20). In approving any 
form of permit, the Director must comply with the requirements in other 
applicable laws, and therefore, may need information from the RAP 
applicant to determine the applicability of these other Acts. This was 
not specifically discussed in the proposal, but where applicable, could 
have been required under proposed Sec. 269.41(c)(10). The Agency 
believes that making this requirement explicit will eliminate delays 
that might result from any potential confusion on this point.
    The wide variation in possible hazardous remediation waste 
management that may take place under RAPs makes it difficult to 
anticipate all of the Director's information needs. Therefore, 
Sec. 270.110(i) requires the RAP applicant to submit any other 
information the Director determines to be necessary for demonstrating 
compliance with the provisions of Subpart H of part 270 or for 
determining additional conditions necessary to protect human health and 
the environment.
    The first part of Sec. 270.110(i) was proposed at 
Sec. 260.41(c)(10); because EPA received no comment on this provision, 
it is finalized as proposed. The second part Sec. 270.110(i) about 
information for determining additional conditions necessary to protect 
human health and the environment simply makes express the Director's 
authority to request information necessary to enable him to fulfill his 
duty under the ``omnibus'' authority of RCRA section 3005(c) to include 
conditions in permits necessary to protect human health and the 
environment. This statutory provision is codified in today's rule at 
Sec. 270.135(b)(4).
    All of the information required under Sec. 270.110 forms the basis 
for the Director's determination of whether or not to approve the RAP 
application. The Agency expects RAPs to be more streamlined than 
traditional permits and therefore expects that, as a general matter, 
the information the facility owner/operator will need to submit for a 
RAP application will be significantly less than is traditionally 
required for a RCRA Part B permit application under Secs. 270.14 
through 270.27. This is because the specific Part B requirements for 
units, which are much more extensive that what is required by today's 
rule, were designed with long-term operation of a TSDF in mind. This 
operation is generally very different from the activities that take 
place as part of a one-time remediation waste management activity.\10\
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    \10\ It should be noted that EPA is also developing a proposal 
to streamline (and in most cases eliminate) information requirements 
for RCRA permits covering on-site storage or treatment of hazardous 
waste in tanks or containers.
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    Also, the Agency believes that, due to the wide range of activities 
that might take place under a RAP, it is more appropriate to provide 
flexibility so that the appropriate amount of information can be 
determined by the site-specific action. RAPs may permit many different

[[Page 65892]]

types of activities, from on-site storage of investigation-derived 
waste to treatment and permanent disposal under RCRA requirements. EPA 
has allowed considerable flexibility in what information is required to 
be submitted, to allow for the variation in the types of activities 
being performed under a RAP, and the anticipated generally shorter 
time-frames for remediation waste management activities.
2. Comments on the Contents of RAPs
    Several commenters agreed with EPA's basic framework for the 
contents of RAP applications. Commenters suggested additional 
information that should be included in a RAP application if it were the 
vehicle for determining when hazardous contaminated media could be 
exempt from Subtitle C, but because the RAP is not serving that 
function, those comments no longer apply. One commenter was concerned 
that EPA would require information on management of wastes off-site, 
but that information is not required in today's rule.
    One commenter was concerned that the requirements to include 
volumes of the waste being managed would require excessive site 
characterization. However, the regulatory language in Sec. 270.110(f) 
reads, ``an estimate of the quantity of these wastes,'' which is the 
same language used for Part A permit applications in Sec. 270.13(j). 
The purpose of this information is simply to provide an idea of the 
scope of the operation, not to require an exhaustive site 
characterization effort. EPA understands that the estimated volume of 
waste to be managed may change significantly in the course of the 
cleanup.
    Another commenter noted that the different types of wastes 
regulated under the proposed ``Bright Line'' approach made the contents 
of RAPs overly complicated, but EPA is not finalizing that option in 
today's rule, and so has eliminated that complication.
    Several commenters asked that EPA allow the RAP to be coordinated 
with other submittals of the same information, so that efforts need not 
be duplicated to prepare numerous submittals. It is for precisely that 
reason that EPA has allowed other documents (or parts of other 
documents) to serve as parts or all of the RAP if they contain the 
information and conditions necessary for RAPs, so that the facility 
owner/operator does not have to duplicate efforts. This can be found at 
new Sec. 270.125.
    Finally one commenter suggested that EPA make it possible for a 
facility owner/operator to incorporate ``presumptive remedies'' into 
RAPs similar to the approach EPA developed in the CERCLA program. While 
EPA is not addressing issues such as proper cleanup levels or remedies 
under today's rule, EPA could develop a set of ``standard'' RAP 
provisions to cover commonly encountered situations at sites managing 
hazardous remediation wastes. These generic provisions could be 
customized, as necessary, to address appropriate site-specific 
considerations.
    EPA believes that a ``generic RAP provisions'' approach can be 
appropriate at RCRA sites, and it agrees this approach can 
significantly streamline the development of new documents. EPA will 
consider creating such a model as guidance for the HWIR-media rule.
    However, in the meantime, EPA encourages States, or even large 
companies with multiple sites, to develop model RAPs. For example, 
commenters have told EPA that there are multiple, similarly 
contaminated areas in Alaska involving petroleum product spills. EPA 
believes that this may be an appropriate situation for regulated 
industries, the State of Alaska, and EPA to work together to develop a 
model RAP that would cover the situations frequently encountered in 
Alaska with petroleum and other contaminants. Such a model RAP could be 
used, with minor modifications to consider any unique, site-specific 
circumstances, and would be faster to develop and approve if EPA, the 
State, and the facility owner/operator had already agreed on the basic 
principles in the model.
3. Contents of RAPs in the Proposal That Are Not Required in the Final 
Rule
    Several parts of the proposed ``RAPs contents'' requirements are 
not included in the final rule. First, proposed Sec. 269.41(c)(8) 
required facility owners and operators to submit information that 
describes planned sampling and analysis procedures. This requirement is 
not necessary because waste analysis is required under today's rule at 
Sec. 264.1(j)(2).
    Proposed Secs. 269.41(c)(9) and 269.42(b) required facility owners 
and operators to submit data from treatability studies and full scale 
implementation of treatment systems to EPA. The Agency has not included 
that requirement in the final rule. EPA proposed to require the 
collection of treatability data so that it could set treatment 
standards with reasonable confidence that those standards could be met 
with available technologies, and to provide information on the 
effectiveness of available technologies in treating different kinds of 
contaminated media.
    One of the proposed rule's goals was to provide data to ensure 
appropriate future treatment requirements. To collect this data, the 
proposed rule would have required owners and operators to submit data 
to EPA upon completing remedial treatment (both full-scale as well as 
treatability studies). EPA has decided not to mandate the collection of 
treatability data for contaminated media as originally proposed. Since 
the proposal, EPA has finalized new LDR treatment standards for 
contaminated soils. EPA believes that those new standards are supported 
by the available data and does not feel it is necessary to burden the 
regulated community with the requirement to submit treatability data. 
Treatability data is discussed more fully in the preamble to the LDR 
Phase IV rule (63 FR 28556 (May 26, 1998)), in which EPA finalized the 
soil treatment standards proposed in the HWIR-media proposal.
    Also, in the proposed rule at Sec. 269.42(a), EPA proposed that 
treatability studies that would require a RCRA permit could be 
conducted under a RMP instead. The significant benefit of this 
requirement was that those wastes in the treatability study could be 
excluded from Subtitle C requirements under the RMP. Because RMPs no 
longer serve that function, the remaining benefit would be the more 
streamlined process for receiving RAP approval under the final rule 
instead of a traditional permit.
    As discussed throughout the RAPs section of today's rule, any on-
site treatment, storage or disposal of hazardous remediation waste that 
would have otherwise required a RCRA permit may be authorized under a 
RAP, which would include any treatability studies. Therefore, a 
separate provision allowing treatability studies under a RAP is not 
necessary.
    EPA recognizes that treatability studies conducted off-site may 
still confront the problem of needing a traditional RCRA permit, and 
EPA will evaluate this and any remaining issues with regard to 
treatability studies in the future.
    In the preamble to the proposed rule at 61 FR 18817, EPA requested 
comment on the limits on the existing Treatability Sample Exclusion 
Rule (Sec. 261.4(e) and (f)), which exempts the generator of wastes for 
treatability studies from 40 CFR Parts 261 through 263, and from 
notification under RCRA Section 3010. The rule also exempts the 
facility conducting the study from 40 CFR parts

[[Page 65893]]

124, 261-266, 268 and 270 and from notification under RCRA Section 
3010. This exemption is currently limited to volumes of no more than 
10,000 kg of media contaminated with non-acute hazardous waste, 1000 kg 
of non-acute hazardous waste other than contaminated media, 1 kg of 
acute hazardous waste, and 2500 kg of media contaminated with acute 
hazardous waste for each process being evaluated for each generated 
waste stream.
    This exemption remains in effect for no more than 90 days after the 
study is completed or one year (two years for bioremediation) after the 
shipment of the same sample, whichever comes first. The Regional 
Administrator may grant requests case by case for up to an additional 
two years for treatability studies involving bioremediation. The 
Regional Administrator may grant requests case by case for extensions 
of the quantity limits for up to an additional 5000 kg of media 
contaminated with non-acute hazardous waste, 500 kg of non-acute 
hazardous waste, 2500 kg of media contaminated with acute hazardous 
waste, and 1 kg of acute hazardous waste.
    When EPA requested comment on whether it should amend the rule to 
allow EPA to expand those limits on a site-specific basis; the Agency 
received several comments. All comments favored giving site-specific 
discretion to the Director to determine appropriate volumes of wastes 
to be included in the treatability study, and to determine appropriate 
timeframes. Despite the favorable comment, EPA is not including this 
provision in the final rule. The Agency is reviewing more broadly the 
issue of treatability studies and may consider more extensive relief at 
a future date.

I. What if I Want to Keep This Information Confidential? (Sec. 270.115)

    Some information required under Sec. 270.110 may be confidential 
business information, such as the design of treatment units. This 
provision simply requires the facility owner/operator to assert a claim 
of confidentiality at the time the information is submitted, and EPA 
will treat the information according to 40 CFR part 2 (Public 
Information).
    EPA has included this provision in the final rule, which is 
substantially the same as Sec. 270.12 (with only minor changes meant to 
make the regulation more readable), to allow the facility owner/
operator to protect this information. This provision was not discussed 
in the proposal, but EPA has added it to allow for confidentiality in 
the same way as with other permitting requirements, and to protect 
legitimate confidential business information of RAP applicants.

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

    This provision simply requires that the facility owner/operator 
submit the RAP application to the Director. This was proposed at 
Sec. 269.41(a). The ``Director'' is the EPA or State official 
responsible for the RCRA hazardous waste management program in the 
relevant State or Tribal lands, and is defined in Sec. 270.2.

K. If I Submit My RAP Application as Part of Another Document, What 
Must I do? (Sec. 270.125)

    To avoid duplicative processes, today's rule (Sec. 270.80(d)) 
allows RAPs to be a part of another document, such as a State cleanup 
program's remedy selection document, or a workplan for a cleanup. In 
many cases, the Agency expects RAPs to be issued at the time that a 
site manager is selecting a remedy, which will often include a 
mandatory process for including the public in the remedy selection 
process, and completion of remedy decision documents, under a cleanup 
program. Therefore, it would be a waste of time and resources to 
require a separate RAP application. If the facility owner/operator is 
preparing the other document(s), then today's rule, at new 
Sec. 270.125, allows the facility owner/operator to submit the RAP 
application as a part(s) of those documents. In this case, the rule 
requires that the facility owner/operator identify the parts of the 
document that make up the RAP application, so that the Director can 
develop an appropriate draft RAP, and so the public can comment on it. 
Often, however, it will be the Director who is preparing the other 
documents, in which case, the facility owner/operator may choose to 
submit a separate RAP application, and the Director may incorporate the 
elements that make up the draft RAP into the other document(s) that he 
is preparing prior to public comment.
1. Provisions From the Proposal That Are Not Included in the Final Rule
    The proposed rule required that ``such [other] documents must be 
approved by the Director according to procedures that allow equivalent 
or greater opportunities for public involvement than those prescribed 
in Sec. 269.43.'' This statement was confusing as to whether those 
``other'' documents would be considered RAPs.
    Any RAP application to receive approval as a RAP must follow the 
authorized RAP procedures of the authorized State or EPA. However, EPA 
expects that different States will apply for authorization of different 
types of programs and processes to qualify as RAPs. Therefore, RAPs in 
different States may look somewhat different, and the processes may 
vary, but all RAPs must be approved under a program authorized for this 
regulation.
    Because this is already required under the State authorization 
procedures, and therefore language in the RAPs section of the 
regulations is not necessary, EPA has not included it in the final 
rule. In addition, EPA intends it to be clear that the Director may do 
more in the way of public involvement than is required under today's 
rule and the facility owner/operator is certainly encouraged to do so. 
However, that is always possible under RCRA authorized programs, and 
again it is not necessary to include this statement in the RAPs 
regulatory language.
    As mentioned elsewhere, EPA has written the process for RAP 
approval to be as flexible as possible so that approval of RAPs, be 
they stand alone documents or parts of other documents, can be 
integrated as smoothly as possible into other approval and public 
comment procedures taking place at the site. EPA expects EPA Regional 
and State programs implementing the RAP provisions to merge processes 
at cleanup sites as much as possible to streamline the approval and 
public participation processes. At the same time, since RAPs will be 
issued under a Federally authorized program, and will be Federally 
enforceable, it will be important for States to identify when 
requirements are imposed under RAPs, and when they are imposed under 
independent sate authority.

Getting a RAP Approved

L. What Is the Process for Approving or Denying My Application for a 
RAP? (Sec. 270.130)

    Section 270.130 specifies the basis upon which the Director will 
determine whether to tentatively decide to either approve the RAP 
application and therefore prepare a draft RAP, or to deny the RAP 
application and therefore prepare a notice of intent to deny the RAP 
application (``notice of intent to deny''). If the Director finds that 
the RAP application includes all of the information required under 
Sec. 270.110 (correct signatures, names addresses, maps, drawings, 
specifications of the wastes; information to demonstrate compliance 
with applicable part 264, 266 and 268 requirements; information 
necessary for the Regional Administrator to carry out his duties

[[Page 65894]]

under Sec. 270.3; and other information specified by the Director) and 
he determines that the information is in fact sufficient to show 
compliance with the regulatory standards, then he will make a tentative 
decision to approve the RAP application and prepare a draft RAP. If the 
Director finds that the RAP application does not meet these criteria, 
and if the facility owner or operator fails or refuses to correct any 
deficiencies, then the Director will make a tentative decision to deny 
the RAP application, and prepare a notice of intent to deny. The most 
critical parts of the Director's determination is whether or not 
operation according to the RAP will ensure compliance with applicable 
Part 264, 266, and 268 requirements.
    As with any permit, the Director may deny the RAP application 
either in its entirety or in part. If the Director decides to either 
approve or deny the RAP application, he will then solicit, consider, 
and respond to public comments before making his final decision on the 
RAP application. The Director's decision is called a ``tentative'' 
decision at this stage until he has solicited, considered, and 
responded to public comments.
    Because it is important for the regulated community, the 
regulators, and the public to clearly understand the basis for the 
Director's decision to approve or deny a RAP application, EPA has added 
these provisions to provide clarity.
    The proposed rule at Sec. 269.43(e) simply stated that ``[w]hen the 
Director determines that a draft RAP is complete and adequately 
demonstrates compliance with applicable requirements, the RMP shall be 
approved according to the [certain specified] procedures.'' Today's 
final rule provisions of Sec. 270.130 make express both what was meant 
by ``complete and adequate,'' and the Agency's underlying assumption 
that, like the traditional permit process, the RAP approval process 
will be one of interaction between the applicant and the Agency. In 
addition, the regulations allow the Director to tentatively deny the 
RAP in whole or in part, where appropriate.
    Thus, in a tentative permit decision, the Director would solicit 
public comment both on the parts of the RAP that are tentatively 
approved and on the parts that are tentatively denied.
    As stated above, EPA expects the RAP approval process will be one 
of interaction between the RAP applicant and the Director until the 
Director is satisfied that he has enough information to tentatively 
approve or deny the RAP application. Thus, the rule has been written to 
make this expectation clear. Of course, the exact number of 
opportunities the Director should provide to correct deficiencies will 
depend on site-specific circumstances. The rule does make clear, 
however, that some opportunity to correct deficiencies must be given 
before a RAP application is denied.

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

    Sections 270.135(a) and (b) specify the contents of a draft RAP. In 
today's rule, EPA is allowing flexibility in the format for RAPs. EPA 
expects that the RAP application will form the basis of the draft RAP. 
EPA does not expect the regulatory agency to engage in a time-consuming 
process of re-creating or re-formatting all of the information in the 
RAP application. Generally, EPA believes that records of decision, 
workplans, and other documents developed under existing cleanup 
programs such as CERCLA and RCRA will provide good models for RAPs. 
Under Sec. 270.135(a) and (b) the Director is required to include in 
the draft RAP:
    (1) The information from the RAP application discussed above 
(Sec. 270.110(a)-(f)) (for example, name of the facility, ID number, 
site boundaries, etc.); and
    (2) Terms and conditions required under this section.
    Section 270.135(b) specifies that RAPs must include:
    (1) Terms and conditions necessary to ensure that the operating 
requirements specified in the RAP comply with the applicable provisions 
of parts 264, 266, and 268;
    (2) Terms and conditions in Sec. 270.30;
    (3) Terms and conditions for modifying, revoking and reissuing, and 
terminating the RAP; and
    (4) any additional terms and conditions necessary to protect human 
health and the environment.
    The Agency received no adverse comment on the proposed requirement 
that RAPs include terms and conditions that ensure compliance with the 
applicable provisions of Parts 264, 266, and 268 (proposed sections 
269.40(b) and 269.41(c)(2)), and therefore today is finalizing this 
requirement at Sec. 270.135(b)(i) with minor editorial changes. To 
promote streamlining, however, the final rule also expressly allows 
these requirements to be specified ``expressly or by reference.'' In 
other words, when RAP conditions are based solely on what is required 
by the regulations (that is, there is no need to establish site-
specific conditions), the RAP may either duplicate the text of the 
requirements from the regulations in describing what is required under 
the RAP, or may simply cite the applicable requirements. Of course, 
many Subtitle C requirements, such as design requirements for CAMUs, 
temporary units, and staging piles in Part 264, must be derived site-
specifically, and therefore, must be included in each individual RAP if 
these units will be used.
    The Agency did not specifically request comment on requiring the 
terms and conditions in Sec. 270.30 to apply to RAPs. However, the 
Agency believes these terms and conditions provide legal clarity on 
such issues as ``duty to comply,'' ``duty to reapply,'' and 
``inspection and entry,'' and will ensure effective implementation of 
the RAP.
    Therefore, EPA has added this requirement to RAPs at 
Sec. 270.135(b)(2). Many of the conditions in Sec. 270.30 will not 
apply to specific actions taken under a RAP. For example, if all 
remediation waste is managed on-site under the RAP, then there will be 
no requirement for manifests, and therefore the manifest discrepancy 
report required under Sec. 270.30(l)(7) will not apply to that RAP. 
Similarly, the monitoring requirements in Sec. 270.30(j) would apply 
only to monitoring associated with units regulated under the RAP. It 
would not apply to general site investigation or monitoring at the 
cleanup site. In the future, EPA may further simplify these 
requirements and revise them so they are tailored more specifically to 
cleanup, and so that they provide greater flexibility.
    Section 270.135(b)(3) requires the Director to include in the draft 
RAP the procedures for modifying, revoking and reissuing, and 
terminating the RAP, as is required under Secs. 270.175, 270.180 and 
270.185. These procedures are discussed fully in the preamble sections 
discussing the procedures for modification, revocation and reissuance, 
and termination in Secs. 270.175, 270.180 and 270.185.
    Finally, the requirement of Sec. 270.135(b)(4) for the Director to 
include ``any additional terms or conditions necessary to protect human 
health and the environment,'' is simply a codification of RCRA section 
3005(c)(3), commonly referred to as RCRA's ``omnibus permit authority 
provision.'' This provision allows the Director to add terms and 
conditions necessary to protect human health and the environment as 
concerns the activities expressly permitted under the RAP.
    However, the Agency has also added a degree of specificity to this 
provision in the final rule. Specifically, today's rule expressly 
provides that these

[[Page 65895]]

additional terms or conditions include, ``any additional terms and 
conditions ... necessary to respond to spills and leaks during use of 
any units permitted under the RAP.''
    The Agency added this provision to clarify that, although 
remediation-only facilities are no longer subject to RCRA section 
3004(u) facility-wide corrective action, they do not escape cleanup 
responsibilities for the units permitted by the RAP. Because any units 
permitted under a RAP will be subject to the applicable part 264 
requirements and must be approved by the Director in the RAP, EPA 
believes that most units will not experience problems with spills or 
leaks, because they will be well designed and maintained.
    Also, most units permitted under RAPs will be shorter term than 
most units at operating TSDF, and so will be less likely to develop 
leaks. However, if unlikely spills or leaks occur, these units are not 
exempt from spill response and cleanup requirements specific to these 
units. The omnibus provisions in Sec. 270.135(b)(4) provide an added 
option for dealing with these events from activities permitted under 
the RAP.
    The RAP is not required to include information or conditions 
related to cleanup levels, site investigation, remedy selection, or 
similar requirements not specifically related to hazardous remediation 
waste management subject to RCRA permitting.
    New Sec. 270.135(c) provides that if the draft RAP is part of 
another document, as described in Sec. 270.80(d)(2), the Director must 
clearly identify the components of that document that constitute the 
draft RAP. This is the same requirement for the Director as the earlier 
requirement for the RAP applicant (in new Sec. 270.125), that if the 
RAP applicant prepares the RAP application as part of another document, 
he must identify the portions of the other document that make up the 
RAP application. This simply allows for consolidation of documents when 
other decisions, such as remedy selection, are occurring at the same 
time as decisions on the RAP, and allows the Director to prepare only 
one document instead of several. This approach was proposed at 
Sec. 269.40(e)(2) and EPA did not receive any negative comments on this 
procedure.
1. Provisions of the Proposal That Are Not Included in the Final Rule
    The proposed rule also contained several additional requirements 
for RAP terms and conditions that the Agency is not finalizing today. 
First, during the development of the proposal, some of the FACA 
Committee members expressed concerns that certain cleanup activities 
may unintentionally cause additional contamination through cross-media 
transfer of contaminants (that is, transfer of contaminants to clean 
soil, air, and surface or ground water).
    In response to these concerns, EPA proposed (at Sec. 269.41(c)(7)) 
to require the facility owner/operator to submit information that 
demonstrates that any proposed treatment system will be designed and 
operated in a manner that will adequately control the transfer of 
pollutants to other environmental media. This aspect of the proposal 
was important because the proposal exempted significant portions of 
remediation waste from unit-specific standards.
    However, in today's final rule all hazardous remediation wastes 
remain subject to Subtitle C requirements, including those designed to 
prevent cross media contamination (for example, the requirements in 
Sec. 264.175 for tanks, Sec. 264.221 for surface impoundments, and 
Sec. 264.251 for waste piles, covering such cross-media prevention 
techniques as liners and covers, and controls to prevent migration into 
groundwater or surface water). This requirement therefore is no longer 
generally necessary and the Agency did not include it in the final 
rule. In addition, the Director may address any remaining concerns 
about cross-media transfer of contaminants related to the remediation 
waste management activities permitted by the RAP under the Agency's 
omnibus permitting authority, addressed above.\11\
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    \11\ In addition to the existing regulatory requirements, since 
proposal, EPA has developed the Best Management Practices (BMPs) for 
Soil Treatment Technologies (EPA530-R97-007, May 1997) guidance 
document on how to identify and minimize the potential for causing 
cross-media contamination during implementation of cleanup 
technologies for contaminated soils or solid media. The guidance 
outlines the potential cross-media concerns for specific activities 
and recommends approaches for preventing cross-media transfer of 
contaminants. Its primary purpose is to prevent the cross-media 
transfer of contaminants during implementation of contaminated soils 
or solid media treatment technologies in compliance with applicable 
State and/or Federal regulations.
    This document does not replace any existing State or Federal 
regulations or guidance. It was developed to support the HWIR-media 
rule. The BMPs guidance was not developed for and should not be used 
as a compliance guide for any particular set of cleanup standards, 
but instead as a reference during implementation of those standards. 
Similarly, BMPs are not meant as a selection tool for remedial 
treatment technologies; they should be used during the 
implementation stage of remedies once they are selected. The 
facility owner/operator and the Director should consider whether 
this guidance will provide helpful recommendations for the 
remediation waste management taking place under the RAP.
---------------------------------------------------------------------------

    In addition, Secs. 269.43(c) and (d) of the proposal allowed the 
Director to add provisions to the RAP specifying the conditions under 
which the owner/operator would manage media under a RAP, and 
concentration levels below which the Director would no longer consider 
the media to contain hazardous waste, and to add provisions (if 
necessary) specifying when the Director would consider threats to human 
health and the environment from the media to be minimized. These 
provisions were based on the proposed rule's provisions that would 
allow the Director to exempt hazardous contaminated media from Subtitle 
C if it were below the proposed Bright Line levels (see proposed 
Sec. 269.4, and preamble about the Bright Line at 61 FR 18794; about 
the LDR requirements at 18804; and about treatability variances at 
18810).
    In some cases, under the proposal, the media would have been exempt 
from most of Subtitle C, but remain subject to LDR treatment standards. 
In those cases, the Director might specify minimize threat levels under 
a treatability variance as an alternative LDR level (instead of 
requiring treatment to the levels required in part 268). This approach 
was finalized in the recent Phase IV Land Disposal Restrictions Rule 
(63 FR 28556 (May 26, 1998)).

N. What Else Must the Director Prepare in Addition to the Draft RAP or 
Notice of Intent to Deny? (Sec. 270.140)

    Once the Director has prepared the draft RAP or notice of intent to 
deny, Sec. 270.140(a) requires the Director to prepare a statement of 
basis supporting the RAP decision. Section 270.140(b) requires the 
Director to compile an administrative record and specifies the contents 
of the administrative record for the draft RAP, which are:
    (1) The RAP application and any supporting data;
    (2) The draft RAP or notice of intent to deny;
    (3) The statement of basis and all the documents cited in the 
statement of basis; and
    (4) Any other documents supporting the decision to approve or deny 
the RAP.
    Today's rule also provides that any documents which are readily 
available to the public do not need to be physically included in the 
administrative record as long, as these documents are specifically 
referenced. This eliminates the need to unnecessarily copy documents 
such as regulations and statutes, and other commonly available 
documents, and to crowd each administrative record with

[[Page 65896]]

documents that can be easily found elsewhere.
    The statement of basis and the administrative record are essential 
to explain and document the basis for the Director's decision to 
approve or deny the RAP, and if the RAP is appealed, they provide the 
record for review by the Environmental Appeals Board or similar State 
body. The information in the administrative record allows members of 
the public to review the basis for the Director's decision in order to 
participate in a meaningful way during the comment period. The 
requirements for a statement of basis and administrative record are the 
same as the requirements in Secs. 124.7 and 124.9 for other RCRA 
permits, except that they have to be re-worded to be more readable.
    The proposed rule did not allow for administrative appeals and did 
not expressly require a statement of basis or compilation of an 
administrative record. However, because (in response to public 
comments) the final rule does allow for administrative appeals, as 
discussed later, the statement of basis and administrative record are 
essential to successful operation of the appeals process, and EPA has 
therefore added them to the requirements for RAPs in today's final 
rule.
    New Sec. 270.140 (c) requires that information contained in the 
administrative record be made available for public review upon request. 
This ensures that the public can review all relevant documents in 
preparing their comments on the draft RAP.

O. What Are the Procedures for Public Comment on the Draft RAP or 
Notice of Intent to Deny? (Sec. 270.145)

1. A Description of the Requirements
    Today's rule sets out procedures for reviewing and approving RAPs. 
EPA considers public review and comment procedures an extremely 
important part of the review and approval process for remedial 
activities. EPA recognizes that remediation waste management activities 
will vary greatly in scope and risk involved, and the Agency in turn 
believes that public participation should vary depending on the scope 
and risk involved with the remediation waste management taking place. 
EPA expects that States that apply for authorization for today's rule 
may request authorization for programs that vary somewhat from today's 
requirements, and EPA wants to allow for flexibility in this process. 
EPA expects States and Regions issuing RAPs to make appropriate 
decisions about what levels of public participation are appropriate in 
different situations. However, to receive authorization for RAPs, 
States must at least require the minimum public participation 
requirement mandated by RCRA section 7004(b) and must have requirements 
equivalent to the other requirements in today's rule. For further 
discussion of State authorization issues, see the State Authority 
section of today's preamble.
    EPA is finalizing its proposal to require the use of the statutory 
public participation requirements in RCRA section 7004(b). Thus, if the 
Director makes a tentative decision to approve or deny the RAP 
application, he must:
     Send notice to the facility owner/operator of his decision 
with a copy of the statement of basis (Sec. 270.145(a)(1);
     Publish that decision in a major local newspaper of 
general circulation (Sec. 270.145(a)(2);
     Broadcast his decision over a local radio station 
(Sec. 270.145(a)(3);
     Send a notice of his intent to approve or deny the RAP to 
each unit of local government having jurisdiction over the area in 
which the site is located, and to each State agency having any 
authority under State law with respect to any construction or 
operations at the site (Sec. 270.145(a)(4).
    This was proposed at Sec. 269.43(e)(1)(i) and (ii).
    Section 270.145(b) requires that this notice provide the public 
with the opportunity to submit written comments on either the draft RAP 
or the notice of intent to deny within no fewer than 45 days. This was 
proposed at Sec. 269.43(e)(1)(ii).
    Section 270.145(c) specifies the information requirements for the 
notice, which are:
    (1) The name and addresses of the office processing the RAP 
application;
    (2) The name and address of the RAP applicant and the site or 
activity;
    (3) A description of the activity;
    (4) The name, address, and phone number of a person from whom 
interested persons may obtain further information;
    (5) A description of the comment procedures and other procedures by 
which the public may participate;
    (6) If a hearing is scheduled, the date, time, location, and 
purpose of the hearing;
    (7) If a hearing is not scheduled, a statement of procedures to 
request a hearing;
    (8) The location of the administrative record and times when it 
will be open for public inspection; and
    (9) Additional information the Director considers necessary or 
proper.
    These requirements ensure that the public will have enough 
information to participate in a meaningful way in the comment process.
    The proposed rule required the same procedures. Proposed 
Sec. 269.43(e)(1)(i) required notice according to the procedures of 40 
CFR 124.10(d) for the contents of the notice. In the final rule, EPA 
has incorporated applicable requirements in Sec. 124.10(d) directly 
into the regulations for RAPs (with non-substantive changes made to 
incorporate the requirements into today's readable format) to avoid 
potentially confusing cross-referencing.
    Section 270.145(d) requires that if within the comment period the 
Director receives written notice of opposition to his decision to 
approve or deny the RAP and a request for a hearing, the Director must 
hold an informal public hearing. The Director may also determine on his 
own initiative that a hearing is appropriate. The hearing must include 
an opportunity for any person to present written or oral comments. 
Whenever possible, the Director must:
     Schedule the hearing at a location convenient to the 
nearest population center to the remediation waste management site;
     Give notice again in the newspaper and on the radio and to 
the local government including the information described above; and
    (1) Reference the date of any previous public notices relating to 
the RAP application;
    (2) Include the date, time, and place of the hearing; and
    (3) Provide a brief description of the nature and purpose of the 
hearing, including procedures.
    Again, these hearing requirements are identical to what was 
proposed at Sec. 269.43(e)(2), but with minor editorial changes to 
increase readability. These requirements are also required under RCRA 
section 7004(b).
2. Commenters Requested More Flexibility
    Several commenters requested additional flexibility in the public 
participation process under today's Sec. 270.145 requirements. 
Commenters suggested that RAPs for media that were excluded from 
Subtitle C should not have to follow the RCRA statutory public 
participation requirements. Today's rule does not exempt any hazardous 
remediation waste from Subtitle C, so RAPs always must serve as RCRA 
permits and must follow the RCRA statutory requirements for permits. 
Commenters specifically mentioned the 45-day comment period, the 
requirement to hold a hearing if one is requested, and the requirement 
to send a copy of the RAP to each State

[[Page 65897]]

agency having any authority under State law with respect to any 
construction or operations at the site. Commenters generally suggested 
that EPA should allow flexibility in how public participation was 
performed, depending on the activities taking place at the site.
    However, under today's rule, RAPs constitute RCRA permits, and 
therefore, the statute mandates certain very specific public 
participation activities in RCRA section 7004(b) including the 45-day 
comment period, hearings, and sending copies of the RAP to State 
agencies. EPA has limited any additional specificity (for example, the 
requirements for the contents of a notice in Sec. 270.145(c)) of 
today's rule to information or procedures necessary for smooth 
implementation of those statutory requirements, and has not included 
other procedural requirements, such as Secs. 124.31-124.33.
    The requirements in Sec. 270.145(a)(2), (3), (4), (b) and (d) are 
direct requirements from section 7004 of RCRA. The only requirements 
that EPA has added beyond the statutory requirements are:
     For the Director to send a notice of his decision to the 
RAP applicant (Sec. 270.145(a)(1));
     The content requirements for the public notice of the RAP 
decision (Sec. 270.145(c)); and
     The content requirements for the public notice for any 
hearings (Sec. 270.145(d)(1)-(3)).
    EPA believes that it is important to notify the RAP applicant of 
the Director's decision, and for public notices to include sufficient 
information about RAP decisions and public hearings to allow meaningful 
public participation. This is why EPA has added these few requirements 
to the statutory minimum procedures, and these requirements are the 
same as the equivalent requirements for traditional RCRA permits. It 
is, however, the Agency's policy on public participation to stress the 
importance of appropriate public participation in environmental 
decision-making.
    EPA has acknowledged repeatedly that the Agency believes that the 
RCRA statute is overly prescriptive in its definition of public 
participation requirements for RCRA permits applying to remediation-
only sites. Indeed, cleanups under EPA's own Superfund program--which 
provides a full and extensive opportunity for public participation--
might not meet all of the RCRA statutory standards. Ideally, EPA would 
provide significantly greater latitude for State programs in today's 
rule; however, the Agency believes it is constrained by the statute. 
For this as well as other reasons, the Administration is supporting 
legislative reform of RCRA specific to remediation waste.

P. The Importance of Public Involvement in the RAP Process

    It is EPA's policy to encourage public involvement early and often 
in the permitting process, in its remediation programs, as well as in 
other Agency actions. EPA intends this rule, and its implementation, to 
be consistent with that policy.
    EPA also recognizes that existing State and Federal authorities 
provide for public involvement through widely varying processes. EPA, 
in crafting today's rule, intends to provide enough procedural 
flexibility so that States will not have to either modify their public 
involvement policies, or duplicate their efforts towards public 
participation in order to comply with slightly different requirements 
under today's rule.
    EPA recognizes that meaningful public participation means that all 
potentially affected parties have an opportunity to participate early 
in the process and have ample time to participate in the remediation 
waste management decisions. Today's rule establishes the minimum 
procedures for public involvement--public notice and opportunity for 
comment when the authorized regulatory agency makes a preliminary 
decision to either approve or deny a draft RAP. EPA wishes to encourage 
involvement of the public throughout the remediation waste management 
process. EPA also believes that particular situations may warrant more 
than these minimum requirements.
    In general, the level of public involvement will depend on the 
action--for example, the Agency may simply provide the minimum required 
opportunity for public comment on a proposed RAP for on-site storage of 
waste with low levels of contamination before it is removed, but may 
provide higher levels of involvement when a RAP includes treatment of a 
large quantity of remediation waste or on-site waste disposal. For 
these reasons, EPA believes that public involvement should be tailored 
to the needs at the site, and has therefore provided necessary 
flexibility in this rule.
    Some cases may warrant more than notice and opportunity for 
comment. The Director or the facility owner/operator may choose to 
voluntarily take additional steps beyond what is required in today's 
regulations when additional involvement is warranted. In some cases, 
meaningful public notice may include bilingual notifications, 
publication of site fact sheets or of legal notices in city or 
community newspapers (or other media, such as radio, church 
organizations, and community newsletters) at key milestones in the 
remediation waste management decision process. Existing forums of 
communication, such as regular community meetings and electronic 
bulletin boards can be used to provide regular progress reports on 
remediation waste management activities.
    The idea of different levels of public involvement is not new. EPA 
has long recognized that the level of public involvement should be 
determined by the action taking place. As an example of EPA's 
recognition that different activities warrant different levels of 
public participation, in a final rule dated September 28, 1988 (53 FR 
37936), EPA promulgated regulations to govern modification of permits. 
Those regulations established different levels of public involvement 
depending on the significance of the permit modification.
    Class 1 modifications, which apply to minor changes to permits, 
require minimal public involvement. The permittee must send a notice of 
the permit modification to all persons on the facility mailing list, 
and to the appropriate units of State and local government. Interested 
persons may request review of these permit modifications.
    Class 2 permit modifications require increased public involvement, 
and Class 3 modifications, for major modifications to permits, require 
far more extensive involvement of the public--publication in a local 
newspaper, a public meeting, and a public comment period. To assist 
facility owners and operators in implementing the rule, EPA classified 
different activities as Class 1, 2, or 3 modifications, based on the 
significance of the action in Appendix 1 to Sec. 270.42. These 
different classes of permits show that EPA has long agreed that 
different levels of public participation are appropriate for different 
activities.
    EPA has also issued guidance on public involvement which may, as 
appropriate, be used as guidance in implementing today's rule (see the 
RCRA Public Participation Manual, September, 1996, EPA 530-R-96-007). 
This manual provides guidance on addressing public participation in the 
permit process, including permitting and enforcing corrective action 
activities. The manual emphasizes the importance of cooperation and 
communication and highlights the public's role in providing valuable 
input. It stresses the importance of early and meaningful involvement 
of the

[[Page 65898]]

public in Agency activities, and of open access to information.
    In addition to the manual, EPA fully encourages the Director and 
the RAP applicant to consider, as appropriate, The Model Plan for 
Public Participation, developed by the Public Participation and 
Accountability Subcommittee of the National Environmental Justice 
Advisory Council (a Federal Advisory Council to the U.S. Environmental 
Protection Agency) when taking actions that would benefit from 
additional public involvement beyond what is required in today's rule. 
The Model Plan encourages public participation in all aspects of 
environmental decision making. It emphasizes that communities, 
including all types of stakeholders, and regulatory agencies should be 
seen as equal partners in any dialogue on environmental justice issues. 
The model also recognizes the importance of maintaining honesty and 
integrity in the process by clearly articulating goals, expectations, 
and limitations.
    Most recently, the Agency issued the Enhanced Public Participation 
Rule (60 FR 63431 (December 11, 1995)), which amended 40 CFR parts 124 
and 270 to provide for public participation earlier in the permitting 
process, and expanded public access to information throughout the 
permitting process and the operational lives of facilities. It requires 
the person associated with the facility, usually the facility operator, 
to notify the public before applying for a permit under Sec. 124.31.
    The Agency encourages using this rule, as appropriate, as guidance 
for cleanups that require a RAP, especially when there is a highly 
toxic or large volume of remediation waste. Where a cleanup involves 
treating, storing or disposing of hazardous remediation waste and a RAP 
is issued, public participation on the RAP should generally be folded 
into the broader strategy for encouraging public involvement in the 
cleanup. EPA encourages regulators and facility owners/operators 
implementing the provisions of today's final rule to refer to these 
regulations and guidance documents as guidance in developing 
appropriate public participation activities for individual RAPs.

Q. How Will the Director Make a Final Decision on My RAP Application? 
(Sec. 270.150)

1. A Description of the Requirements
    Section 270.150(a) requires the Director to consider and respond to 
any significant comments raised during the public comment period, or 
during any hearing on the draft RAP or notice of intent to deny. 
Section 270.150(b) and (c) require that, when the Director has 
responded to all significant comments and revised the RAP as 
appropriate and has determined whether the RAP includes all the 
required information and terms and conditions, he must issue a final 
decision on the RAP application, and notify in writing the RAP 
applicant and all commenters on the draft RAP or the notice of intent 
to deny. This was proposed at Sec. 269.43(e)(4), on which the Agency 
received no adverse comment.
    Section 270.150(d) specifies that if the Director's final decision 
is that his tentative decision to deny the RAP application was 
incorrect, he will withdraw the notice of intent to deny and proceed to 
prepare a draft RAP. This is the same as the approach taken for 
traditional RCRA permits (see Sec. 124.6(b)), and the Agency sees no 
reason to deviate from that approach in today's rule.
    Under new Sec. 270.150(e), when the Director issues his decision, 
he must include reference to the procedures for appealing the decision. 
Because appeals were not provided for in the proposed rule, this is a 
new requirement EPA has added to the final rule. This is the same 
requirement as for permits under Sec. 124.15(a), and EPA did not see 
any reason to differ from these existing requirements for permits.
    New Sec. 270.150(f) requires that, before issuing the final RAP 
decision, the Director compile an administrative record that includes 
the information from the administrative record from the draft RAP and 
also:
    (1) All comments received;
    (2) Tapes or transcripts of hearings;
    (3) Written materials submitted at hearings;
    (4) Responses to comments;
    (5) New material placed in the record since the draft RAP was 
issued;
    (6) Other documents supporting the RAP; and
    (7) The final RAP.
    This section again repeats that material readily available need not 
be included. This is the same as for the administrative record for 
draft RAPs and also for traditional RCRA permits.
    Section 270.150(g) requires that the administrative record must be 
made available for review by the public upon request.
    As described for the administrative record for the draft RAP, EPA 
believes that express requirements for compiling administrative records 
are essential for successful hearing of appeals, and because appeals 
were not permitted in the proposal, EPA did not include this 
requirement in the proposal. However, an administrative record is now a 
necessary part of today's final rule. The elements of the 
administrative records for RAPs are the same as those required for 
traditional RCRA permits under Sec. 124.18. EPA believes that the same 
information that is necessary to understand the decision-making on a 
traditional RCRA permit is also appropriate for RAPs.
2. Comments on the Proposed Requirements
    The proposed rule requirement for the Director to consider and 
respond to any significant comments, and to modify the RAP as 
appropriate, was at Sec. 269.43(e)(3). (The final rule uses the word 
``revised'' instead of ``modified'' to avoid confusion with 
Secs. 270.170 and 270.175 pertaining to post-issuance modifications.) 
Several commenters were concerned that the Director would unilaterally 
modify RAPs due to public comments without consulting with the facility 
owner or operator. They asked that EPA require the Director to consult 
or negotiate with the facility owner or operator before making 
modifications due to public comment. One commenter explained that 
changes resulting from public comment may substantially increase the 
cost of compliance, or otherwise significantly affect the facility's 
ability to complete remedial actions, in which case the facility would 
have no choice but to comply, or suspend remedial activities while 
seeking judicial review. Commenters were also concerned that any action 
that requires approval from the Agency takes a very long time to get 
approved. The commenter asked for EPA to limit the Director's review 
period to 60 days, and if the Director had not acted on the RAP within 
60 days, the RAP would go into effect automatically.
    EPA considers open communication with the facility owner/operator 
important to successful implementation of the RCRA program. EPA 
encourages Regional offices and States implementing today's rule to 
discuss, when appropriate, any revisions that may be made to the RAP in 
response to public comment with the facility owner/operator before 
making them. The Agency has not added this as a requirement to the 
approval process, however. An overriding objective of today's rule is 
to eliminate unnecessary process from the regulations. The Agency 
believes that a mandatory consultation process such as that suggested 
by the commenter is unnecessary because today's rule, unlike the 
proposal, provides for appeal of the Director's final decision to EPA's 
Environmental Appeals Board. Facility

[[Page 65899]]

owner/operators who are unhappy with changes made in response to public 
comment will have ample opportunity, at that time, to convince the 
Agency to change the contested provisions.
    EPA has also decided not to limit the amount of time the Director 
has to review and approve RAPs so that if the Director does not act, 
the RAP becomes effective. EPA does not believe that the Agency would 
be fulfilling its statutory obligation to ensure compliance with RCRA 
requirements if RAPs could become effective without an affirmative 
decision from the Director (see RCRA section 3005). In addition, this 
would be especially problematic because under new Sec. 270.90, the RAP 
generally serves as a shield against enforcement, and therefore the 
Director must make an affirmative decision that the RAP will ensure 
compliance with the applicable Subtitle C requirements before the RAP 
can become effective.
    Commenters also asked that the facility owner or operator be 
required to provide copies of all documents he is required to maintain 
during the remedial activity into a local library to allow for public 
review. EPA encourages any steps the Director can take to facilitate 
meaningful public involvement, but again has chosen to limit actual 
regulatory requirements in an effort to maintain a more flexible 
process. EPA already requires the Director to make the administrative 
record available under both Secs. 270.140(c) and 270.150(g). In 
addition, the Director can require the facility owner/operator to set 
up an information repository as a part of the RAP under the terms and 
conditions imposed at Sec. 270.135, if the Director considers a 
repository appropriate. We believe these authorities allow the full 
range of options to assure easy public access to information so that 
meaningful public involvement can occur.
    The requirement for the Director to make a determination at 
Sec. 270.150(b) and (c) was proposed at Sec. 269.43(e)(4), and stated 
``When the Director determines that the RMP adequately demonstrates 
compliance with all applicable requirements. . . .'' The requirements 
in Sec. 270.150 of today's final rule clarify what the proposal meant 
by ``all applicable requirements.''
    The proposed rule did not expressly outline the procedures if the 
Director decided to deny a RAP. This was an oversight. To correct that 
oversight, EPA has made denial procedures for RAPs equivalent to 
approval procedures for RAPs.

R. May the Decision To Approve or Deny My RAP Application Be 
Administratively Appealed? (Sec. 270.155)

    The Agency had originally proposed to eliminate administrative 
appeals (that is, to the EPA Environmental Appeals Board) because EPA 
felt that allowing facility owner/operators to proceed directly to 
judicial review (if necessary) after the Director's decision on the RAP 
would streamline the process. However, numerous commenters did not 
believe that this particular part of the proposal resulted in any 
beneficial streamlining. Commenters expressed an interest in being able 
to avoid expensive and time-consuming judicial proceedings by first 
requesting an administrative appeal. Also, one commenter pointed out 
that in instances where the RAP applicant is a Federal agency, the 
judicial review process is not available because Federal administrative 
agencies are unable to seek judicial review of final actions of other 
Federal administrative agencies. No commenters wrote to support EPA's 
proposal to not provide for appeals.
    The Agency agrees with these commenters that allowing for further 
review within the Agency will, in many cases, help avoid time-consuming 
and costly litigation. Because, in the remediation setting, this is 
time and money better spent on cleanups, the Agency has decided in this 
final rule to provide for administrative appeals for RAPs. Thus, the 
procedure in new Sec. 270.155 requires facility owner/operators to 
follow the procedures of Sec. 124.19 for appeals. The only difference 
between the process EPA requires for RAPs, and the traditional 
Sec. 124.10 requirements is that when the Director gives public notice 
of appeals decisions for RAPs, (under Sec. 124.19(c)), he will follow 
the RAPs public participation procedures in Sec. 270.145 instead of 
those in Sec. 124.10, which are used to give public notice of appeals 
decisions for traditional RCRA permits.
    Sections 270.155(a)(1)-(3) include requirements for what the public 
notice of the appeal must include, which are: (1) the briefing schedule 
for the appeal; (2) a statement that any interested person may file an 
amicus brief with the Environmental Appeals Board; and (3) the 
appropriate information from Sec. 270.145(c), such as the name and 
address of the remediation waste management site and a description of 
the proposed activities.
    The requirements under Sec. 270.155(a)(1) and (2) for what to 
include in the public notice already appear in Sec. 124.19(c), but are 
repeated in Sec. 270.155 for clarity. Section 124.19(c) also specifies 
that public notice of appeals decisions will be given as provided in 
Sec. 124.10. However, EPA has specified in today's rule that public 
notice of appeals decisions for RAPs will follow the procedures of 
Sec. 270.145, and will contain the information from Sec. 270.145 (c), 
instead of Sec. 124.10.
    For clarity, new Sec. 270.155(b) repeats the requirement in 
Sec. 124.19 that exhausting the administrative appeals procedure of 
Sec. 124.19 is a prerequisite to judicial review under RCRA section 
7006(b). This is the same requirement as in place for traditional RCRA 
permits under Sec. 124.19(e), and EPA saw no reason to differ from the 
current requirements.

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

    Section 270.160 states that the RAP is effective 30 days after the 
Director has notified the facility owner and operator and all 
commenters that he approves the RAP. This is the same as the effective 
dates for traditional RCRA permits. The 30-day period allows time for 
parties to appeal the Director's final decision before the RAP is 
effective. EPA stated in the preamble to May 19, 1980 rulemaking, when 
these provisions for permits were promulgated, that the 30 days ``is a 
necessary part of a party's right to request an evidentiary hearing.''
    Under Sec. 270.160(a), the Director may specify a later effective 
date in the final RAP decision if he feels that a longer time is 
necessary to allow facility owners and operators more time to come into 
compliance with the new requirements, or knows of other necessary 
reasons for a later effective date.
    Section 270.160(b) specifies that if a RAP has been appealed, and 
the appeal is granted, conditions of the RAP will be stayed according 
to the provisions of Sec. 124.16, pending the outcome of the appeal. 
The Director may identify which conditions of the RAP are severable, 
and therefore are not stayed. However, the provisions that are appealed 
and any provisions that are not severable from the appealed provisions 
will be stayed.
    Section 270.160(c) specifies that the RAP may become effective 
immediately if no commenters requested a change from the draft RAP. 
This is because if no one requested a change, then no one would have 
the right to an appeal. Only parties who comment on the draft RAP may 
request appeal.
    The proposed rule did not specify effective dates for RAPs. This 
was an oversight EPA has corrected in today's final rule. These 
effective date requirements are the same as those currently required 
for traditional RCRA permits under Sec. 124.15(b), and EPA saw

[[Page 65900]]

no reason to differ from these existing requirements.

T. When May I Begin Physical Construction of New Units Permitted Under 
the RAP? (Sec. 270.165)

    Section 270.165 specifies that the RAP applicant cannot begin 
physical construction of new units before receiving a finally effective 
RAP. This is the same as the requirements for traditional RCRA permits 
at Sec. 270.10(f)(1).

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

U. After My RAP Is Issued, How May It Be Modified, Revoked and 
Reissued, or Terminated? (Sec. 270.170)

    Plans for remedial actions sometimes need to be modified, revoked 
and reissued, or terminated. Often, modifications, revocations and 
reissuances, or terminations are necessary as new information becomes 
available. To retain reasonable flexibility in the remedial process--
where it is difficult to predict all contingencies, and where different 
State programs may have different existing requirements for when plans 
need to be modified, revoked and reissued, or terminated--today's rule 
(as did the proposal), does not include specific procedures for RAP 
modification, revocation and reissuance, or termination but requires 
the Director to specify these procedures in the RAP. This provides 
authorized State or Federal programs the ability to allow 
modifications, revocations and reissuances, and terminations when and 
how they would fit efficiently into the State or Federal program. 
Today's rule at Sec. 270.170 requires (the same as the proposal) that 
the Director include these procedures in the RAP, and also requires 
that these procedures provide for public review and comment if there is 
a ``significant'' change in the management of hazardous remediation 
waste at the site, or in circumstances which otherwise merit public 
review and comment. This was proposed at Sec. 269.44(a) and is 
consistent with EPA's preference for involving the public in important 
decisions.
    While commenters agreed with this general approach, two commenters 
asked for clarification on what constitutes a ``significant'' 
modification. EPA expects the Director to consider examples such as 
changes in treatment processes, use of new units, or activities that 
would require Class 2 or 3 modifications in Appendix 1 to Sec. 270.42 
as ``significant'' modifications (see also Sec. 270.42(d)(2)). EPA 
expects that activities that would require Class 2 or 3 modifications 
would generally be the same kinds of activities that would be 
considered ``significant'' in this case. However, because activities 
that take place at cleanup sites are so often influenced by the site-
specific factors that affect the management of remediation wastes at 
each site, EPA has decided not to put any limits into the regulatory 
language defining a ``significant'' change. This allows the Director 
full discretion to determine what constitutes ``significant'' for any 
given site.
    The proposed regulatory language explaining which modifications 
should include public participation included modifications that were 
``major or significant.'' EPA considers ``major'' and ``significant'' 
to mean the same thing in this instance--and so has eliminated that 
redundancy by limiting the final rule to the term ``significant.''
    Proposed Sec. 269.44 referred only to modifications and not to 
revocation and reissuance, which was an oversight. Proposed Sec. 269.45 
included revocation with expiration and termination. The requirements 
for both proposed sections were the same, stating that the Director 
would specify procedures for these actions. EPA has decided to move the 
requirement to specify procedures for all these activities into one 
section (Sec. 270.170) because the same requirement applies to all of 
these activities, that the Director must specify procedures for 
modification, revocation and reissuance, and termination in the RAP.
    Today's final rule also allows the Director to specify these 
modification, revocation and reissuance, or termination procedures 
individually or to incorporate them by reference. EPA expects that 
State programs may already have or may develop standard modification 
and revocation and reissuance procedures. EPA intended for the proposed 
rule language, which simply stated that the ``Director shall specify . 
. . procedures,'' to allow States having existing procedures to 
incorporate these procedures by reference, but the final rule language 
makes that explicit. EPA believes that incorporating already approved 
procedures by reference can save time and controversy in preparing and 
approving RAPs.
    Section 270.170 also specifies that if your RAP has been 
incorporated into a traditional RCRA permit, then the RAP will be 
modified, revoked and reissued, or terminated according to the 
applicable traditional RCRA permit requirements. Of course, the 
Director may, as appropriate, specify in the RAP additional grounds or 
procedures, at his discretion. This is conforming change to make this 
requirement consistent with Sec. 270.85(c), which allows RAPs to be 
incorporated into traditional RCRA permits.

V. For What Reasons May the Director Choose To Modify My Final RAP? 
(Sec. 270.175)

    Today's rule specifies at Sec. 270.175 that the Director may 
determine on his own initiative that a modification is necessary. New 
Secs. 270.175(a) (1)-(8) specify the causes that justify a Director-
initiated modification. The only cause specified in the proposal for 
Director initiated modifications was ``new information which indicates 
that such modification may be necessary to ensure the effective 
implementation of remedial actions at the site'' (see 61 FR 18854). The 
Agency received no adverse comment on limiting the Director's 
discretion in this area. However, the Agency has decided to clarify the 
causes for Director-initiated modifications in today's RAPs regulations 
to include the same causes for Director-initiated modifications as for 
traditional RCRA permits under Secs. 270.41 and 270.43. EPA believes 
this is an outgrowth of the proposed requirement, and responds to 
commenters' concerns that the Director had too much discretion as to 
when he could modify RAPs.
    As discussed above, the proposed rule allowed the Director to make 
``unilateral'' modifications based on ``new information which indicates 
that such modification may be necessary to ensure the effective 
implementation of remedial actions at the site.'' Commenters expressed 
concern about what they saw as the Director's too-broad discretion to 
make ``unilateral'' modifications. In response to these comments, 
today's final rule requirements for ``causes'' adds more specificity to 
what that ``new information'' may be.
    Section 270.175(b) allows the Director to modify the RAP as 
necessary to ensure the facility continues to comply with the currently 
applicable requirements of parts 124, 260-266 and 270 when he reviews a 
RAP for a land disposal facility every five years, as is required under 
Sec. 270.195. This same requirement applies to traditional RCRA permits 
under Sec. 270.41(a)(5).
    Also to protect the facility owner/operator, at new Sec. 270.175(c) 
the Agency has included the provision that applies currently to 
traditional RCRA permits which specifies that the Director will not 
reevaluate the suitability of the location of the facility at the time 
of RAP modification. This would cause too

[[Page 65901]]

much disruption to facility operations. The location will be evaluated 
once when the RAP is initially approved, but once approved it will not 
be reevaluated unless new information or standards indicate that a 
threat to human health or the environment exists that was unknown at 
the time of RAP issuance.

W. For What Reasons May the Director Choose To Revoke and Reissue My 
Final RAP? (Sec. 270.180)

    The Agency has specified in new Sec. 270.180(a) causes for when the 
Director may modify or revoke and reissue a RAP. Again, these causes 
are the same as those for permits under the current regulations at 
Secs. 270.41 and 270.43, and are intended to provide assurance to the 
facility owner/operator security that they can operate in compliance 
with their permit without fear that their permit will be modified 
without a good cause.
    EPA explained its original reasoning for promulgating causes for 
Director-initiated modifications and revocation and reissuances of 
traditional RCRA permits at 45 FR 33314 (May 19, 1980). That preamble 
stated that ``EPA has rewritten the permit modification section . . . 
to provide greater certainty to permittees during the period when they 
hold permits and thereby make it easier to make business decisions and 
obtain financing . . . Normally, a permit will not be modified during 
its term if the facility is in compliance with the conditions of the 
permit. The list of causes for modifying a permit is narrow; and absent 
cause from this list, the permit cannot be modified.'' In that notice, 
EPA also explains the specific rationale for each of the causes for 
Director-initiated modifications, revocations and reissuances, which 
are the same causes as allowed in today's rule. EPA included the same 
protection for owners and operators when RAPs are revoked and reissued 
at Sec. 270.180(b) as is provided for when RAPs are modified at 
Sec. 270.175(c). That is that the Director will not reevaluate the 
suitability of the location of the facility at the time of RAP 
revocation and reissuance. The reasons for this protection are 
discussed above at Sec. 270.175(c).

X. For What Reasons May the Director Choose To Terminate My Final RAP, 
or Deny My Renewal Application? (Sec. 270.185)

    Unlike in the proposed rule, the Agency has decided to retain the 
requirements in Sec. 270.43 for causes for permit termination. Thus in 
new Sec. 270.185, EPA cites the three reasons from Sec. 270.175 why 
RAPs may be terminated. They are that:
    (1) The facility owner/operator violates the RAP;
    (2) The facility owner/operator did not fully disclose or 
misrepresented information during the application process; or
    (3) The activity authorized by the RAP endangers human health or 
the environment, and can only be remedied by termination.
    The Agency believes it is appropriate to retain these requirements 
for RAPs because they specify the basis of what EPA believes should be 
potential grounds for termination, while providing assurances of 
certainty to the facility owner/operator by limiting the reasons the 
Director may terminate the RAP. The proposed rule did not specify 
detailed reasons for why RAPs could be terminated, but simply left that 
up to the Director to specify in the RAP.

Y. May the Decision To Approve or Deny a Modification, Revocation and 
Reissuance, or Termination of My RAP Be Administratively Appealed? 
(Sec. 270.190)

    Section 270.190(a) states that any commenter on the modification, 
revocation and reissuance or termination, or any participant in any 
hearings on these actions, may appeal the decision to modify, revoke 
and reissue or terminate a RAP to the Environmental Appeals Board, 
using the same procedures as those used for appealing the original RAP 
decision in Sec. 270.155. Appeals of approvals of modifications, 
revocation and reissuances, and terminations of traditional RCRA 
permits follow the same process as appeals of original permit 
decisions. EPA has decided that it will be easiest to understand if 
RAPs follow the same construct as traditional RCRA permits. Also, 
modifications of RAPs could possibly include significant changes in the 
remediation waste management activities at the remediation waste 
management site, and so the right to appeal these decisions is 
important to the facility owner/operator and to the community.
    Section 270.190(b) specifies that denials of requests for RAP 
modification, revocation and reissuance or termination may be 
informally appealed, and Sec. 270.190(c) sets out the procedures for 
informal appeals which are that: (1) The person appealing the decision 
must send a letter to the Environmental Appeals Board; (2) the Board 
has 60 days to act; and (3) if the Board does not take action within 60 
days, the appeal will be considered denied.
    In the May 19, 1980 final rule which created the Sec. 124.5 
requirements for informal appeals, EPA explained the Agency's rationale 
in this way: ``EPA rejected comments urging that modification denials 
be appealable through the same agency procedures as permit issuance or 
denial. Departures from the cycle of permit issuance and periodic 
examination should not be encouraged in such a manner. If encouraged, 
they could keep many permits in a state of perpetual reexamination thus 
impeding the control program being implemented.'' EPA has chosen to 
apply the same process for RAP modification, revocation and reissuance 
and termination denials as applies to the same decisions for 
traditional RCRA permits. This process for informal appeals is the same 
as the process for informal appeals of denials of requests for permit 
modification, revocation and reissuance and termination in 
Sec. 124.5(b), except that it has been re-written to be more readable. 
EPA sees no reason why the processes should differ.
    Section 270.190(d) states that this appeal is a prerequisite to 
judicial review of these actions. This same requirement applies to 
traditional RCRA permits under Secs. 124.19(e) and 124.5(b).
    Of course, because the proposal did not allow for appeal of RAPs, 
it also did not allow for appeal of RAP modification, revocation and 
reissuance, or termination. However, the Agency has provided these 
provisions in response to commenters' requests, as more fully discussed 
in the preamble section for Sec. 270.155 entitled ``May the decision to 
approve or deny my RAP application be administratively appealed?''

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

    As with all RCRA permits, Sec. 270.195 requires (as proposed at 
Sec. 269.45) that RAPs have a maximum life of 10 years, and that RAPs 
that permit land disposal units be reviewed every five years. This 
requirement is a statutory requirement under RCRA section 3005(c)(3). 
Of course, in many cases, remedies will be short-term; in those cases, 
the RAP would specify a shorter term than the 10-year maximum. The 
Agency did not receive any adverse comment on this requirement.

AA. How May I Renew my RAP if It Is Expiring? (Sec. 270.200)

    Like the rule for traditional RCRA permits (see Sec. 270.10(a)), 
today's rule provides that the procedures for renewing RAPs (new 
Sec. 270.200) are the

[[Page 65902]]

same as the procedures for issuing RAPs. The proposed rule's silence on 
this issue was an oversight.

BB. What Happens if I Have Applied Correctly for a RAP Renewal, But 
Have Not Received Approval by the Time My Old RAP Expires? ( 
Sec. 270.205)

    The same as Sec. 270.51 provides for traditional RCRA permits, new 
Sec. 270.92(e) provides assurances to the facility owner/operator by 
stating that an expiring RAP remains in effect until a new RAP is 
effective, as long as a timely application has been submitted and, 
through no fault of the facility owner/operator, the Director has not 
issued an effective RAP before the previous RAP expires. This will 
ensure that remediation waste management will not be interrupted 
because the Director was unable to renew the RAP before the previous 
RAP expired. Again, EPA did not specify requirements in the proposed 
rule for this situation, but is expressly including these requirements 
in today's rule to ensure effective implementation.

Operating Under Your RAP

CC. What Records Must I Maintain Concerning My RAP? (Sec. 270.210)

    As discussed above, the administrative record for RAPs must be kept 
by the Director under Secs. 270.140 and 270.150. Under new 
Sec. 270.210, however, the facility owner or operator is required to 
keep records of all data used to complete the RAP application and any 
supplemental information that is submitted for at least 3 years from 
the date the application is signed, and any operating and/or other 
records the Director requires the facility owner/operator to maintain 
as a condition of the RAP.
    This language is included to remind the facility owner/operator 
that recordkeeping and reporting requirements may be imposed under the 
Director's authority to impose ``terms and conditions necessary to 
ensure that the operating requirements specified in your RAP comply'' 
with applicable requirements (Sec. 270.135). Although the Agency 
proposed that all recordkeeping and reporting requirements would be set 
on a site-specific basis (see 61 FR 18817), the Agency is including 
these requirements in today's rule to avoid unnecessary disputes each 
time a RAP is issued. In addition, the facility owner/operator must 
comply with recordkeeping requirements from the applicable Part 264 
requirements.
    The requirements in new Sec. 270.210 are the same as those for 
traditional RCRA permits required under Sec. 270.10(i), except that 
they have been reworded to be more readable. In the May 19, 1980 notice 
where EPA first promulgated the Sec. 270.10(i) requirements, EPA 
justified the requirement saying that ``[t]he recordkeeping 
requirements are necessary to support any subsequent EPA enforcement 
action for false reporting'' (45 FR 33300 (May 19, 1980)).
    Several commenters supported EPA's proposal to allow the Director 
to set all recordkeeping and reporting requirements site-specifically 
in the RAP. However, two commenters requested that EPA require the 
owner/operator to maintain certain records in all cases. One requested 
that EPA require the facility owner/operator to maintain records about 
waste that is shipped off-site for management to provide EPA the 
ability to track the waste if a non-hazardous determination was found 
to be inappropriate. Another commenter suggested requiring the facility 
owner/operator to maintain a copy of the RAP, testing results, and 
manifests and/or bills-of-lading for wastes moved off-site.
    All of these comments were based on the premise that EPA was 
allowing some contaminated media to be exempted from Subtitle C 
requirements. However, in today's rule, all hazardous remediation 
wastes remain subject to Subtitle C, including the requirements for 
manifests, which should alleviate the concerns of the two commenters 
who recommended requiring manifests. Also, all hazardous remediation 
wastes remain subject to the applicable requirements in Part 264, some 
of which require the facility owner/operator to maintain certain 
records.
    In addition to those requirements, EPA decided it was appropriate 
to require the same recordkeeping requirements for RAPs as are required 
for traditional RCRA permits under Sec. 270.10(i). These provisions 
require the facility owner/operator to maintain records of data used to 
prepare the RAP application and supporting documents. EPA believes that 
these requirements sufficiently respond to the concerns raised by the 
two commenters.

DD. How Are the Time Periods in the Requirements of This Subpart and My 
RAP Computed? (Sec. 270.215)

    Although the proposal did not discuss this issue, to avoid 
unnecessary disputes over the computation of time, EPA has decided to 
add new Sec. 270.215, which keeps the provision at Sec. 124.20 
clarifying how time periods specified in the permitting rules will be 
computed. Specifically, Sec. 270.215(a) specifies that any time period 
scheduled to begin on the occurrence of an act or event must begin on 
the day after the act or event. Section 270.215(b) specifies that any 
time period scheduled to begin before the occurrence of an act or event 
must be computed so that the period ends on the day before the act or 
event. Section 270.215(c) specifies that if the final day of any time 
period falls on a weekend or legal holiday, the time period shall be 
extended to the next working day. Finally, Sec. 270.215(d) specifies 
that whenever a party or interested person has the right or is required 
to act within a prescribed period after the service of notice or other 
paper upon him or her by mail, 3 days must be added to the prescribed 
term. The regulatory language includes examples to make these 
requirements easier to understand.

EE. How May I Transfer My RAP to a New Owner or Operator? 
(Sec. 270.220)

    The Agency has decided to apply the same requirements to RAPs 
(under new Sec. 270.220) that Sec. 270.40 requires for traditional RCRA 
permits. This requires that if the ownership or operational control of 
the facility changes, the RAP must be modified or revoked and reissued 
to reflect this change. Again, although this was not proposed, the 
Agency added it to ensure that the appropriate person is responsible 
for activities permitted under the RAP.
    Note, however, that a change in facility ownership or operational 
control should not be considered a ``significant'' change; the 
regulations for traditional RCRA permits in Sec. 270.40 allow a change 
in facility ownership to be made as a Class 1 modification to a permit, 
which is not a significant change.
    Like Sec. 270.40, new Sec. 270.220 requires the new facility owner 
or operator to submit a revised RAP application no later than 90 days 
before the scheduled change, and requires a written agreement for the 
date for transfer of RAP responsibility, and includes requirements for 
Part 264, Subpart H, Financial requirements. The requirement to submit 
the revised RAP application to the Director 90 days before the change 
allows adequate time to revise the RAP before the change occurs, makes 
clear when facility ownership or operational control is transferred, 
and ensures that a responsible person will be fulfilling the Part 264, 
Subpart H, financial responsibility requirements for the facility at 
all times. These requirements in new Sec. 270.220 are identical to the 
requirements in Sec. 270.40, except that they have been rewritten to be 
more readable and to use the words ``RAP'' and ``remediation waste 
management site'' instead of ``permit'' and ``facility.''

[[Page 65903]]

FF. What Must the State or EPA Region Report About Non-compliance With 
RAPs? (Sec. 270.225)

    Section 270.225 requires the State or EPA Region implementing RAPs 
to report to the EPA Regional Administrator or to EPA headquarters, 
respectively, on noncompliance with RAPs according to Sec. 270.5. The 
proposed rule did not explicitly include this permitting requirement, 
which is currently imposed for traditional RCRA permits. However, 
without soliciting comment on this issue more explicitly, EPA is 
reluctant to eliminate this requirement for RAPs.

Obtaining a RAP for an Off-site Location

GG. May I Perform Remediation Waste Management Activities Under a RAP 
at a Location Removed From the Area Where the Remediation Wastes 
Originated? (Sec. 270.230)

    New Sec. 270.80(a) states that a RAP may only be issued for the 
area of contamination where the remediation wastes to be managed under 
the RAP originated and areas in close proximity to the contaminated 
area, except as allowed in limited circumstances under this section. 
This limitation was originally included in the definition of 
remediation waste management site in the proposal for today's rule. 
Many commenters addressed this limitation in their comments. One 
commenter argued that managing remediation waste away from the area of 
contamination might be the most environmentally protective option in 
some cases. For example, permafrost in many areas in Alaska means that 
surface water is abundant and floodplains are extensive, so if the area 
of contamination were in these areas, it would be more environmentally 
protective to treat, store, or dispose the remediation waste at a more 
suitable, possibly remote, location. Other commenters suggested that it 
would be environmentally beneficial to locate remediation waste 
management sites away from the area of contamination if the 
contaminated area were located in a potable well field or over a sole-
source aquifer.
    One commenter raised the point that ``pipelines and other 
industries that operate facilities on extensive linear rights-of-way 
frequently must deal with historical contamination of soils at 
multiple, noncontiguous locations, many of which may be extremely 
remote. In these instances, it is most cost-effective to establish a 
centralized remediation site, rather than to carry out remedial 
treatment at each site of original deposition. This allows the remedial 
treatment to be carried out at a location selected for characteristics 
to minimize exposure to sensitive environments and to resident human 
populations.''
    Other commenters pointed out that some large facilities may limit 
public access, and that plant services and equipment, such as waste 
water treatment plants and paved areas for staging may be far away from 
the contaminated areas. These commenters suggested expanding the 
definition to include, if necessary, the entire facility boundary (that 
is, areas under common ownership) to allow the use of an area that may 
be several miles away, but better suited or safer for remedial 
functions, yet contained within the perimeter of the facility's 
security fence.
    Another commenter raised the point that contaminated areas are 
often located in areas of a site remote from utilities such as 
electricity, steam, roadways, etc., and that it would be reasonable to 
allow these remediation wastes to be managed in other areas of the site 
where these utilities were available. Finally, the Department of Energy 
(DOE) commented that there are locations where space is limited, and 
the remediation site needs to be expanded to a location that is removed 
from general employee access, and that at large sites with multiple 
areas of contamination, it might be most efficient to consolidate those 
wastes into one centralized management area within the boundaries of 
the facility.
    The Agency proposed to limit media remediation sites to the ``area 
of contamination'' and ``areas in close proximity'' to ensure adequate 
oversight of the waste management activities, to ensure that the 
process was streamlined, and to reduce administrative complications. 
Many commenters considered EPA's concerns and also added additional 
potential concerns that locations away from the area of contamination 
might become contaminated in the course of waste management, that 
surrounding communities might be affected by this waste management, and 
that these might be long-term actions which might not be desirable to 
the surrounding community.
    However, commenters also suggested solutions. Commenters suggested 
that the Agency set up a preference for locating remediation waste 
management sites in the area of contamination or areas in close 
proximity, unless good justification could be made why other locations 
would be preferable. In light of concerns about control over the 
boundaries of a remediation waste management site, and community 
involvement, commenters suggested that the RAP approval process would 
provide the Director the opportunity to approve or deny the designation 
of the boundaries of the remediation waste management site, would allow 
the surrounding community to participate in the decisions for 
activities that might affect them, and would provide the oversight to 
ensure proper waste management.
    EPA agrees that in some cases, such as the commenters have raised, 
it may be preferable to designate alternative locations for remediation 
waste management, and has added the special requirements under 
Sec. 270.230 for performing remediation waste management activities at 
a location removed from the area where the remediation wastes 
originated, to respond to these comments. Section 270.230(a) and (b) 
allow the facility owner/operator to request and the Director approve a 
RAP for an alternative location if performing the remediation waste 
management activities at such a location will be more protective than 
managing the remediation in the area of contamination or areas in close 
proximity. Section 270.230(c) specifies that a RAP for an alternative 
location will be approved or denied according to the procedures and 
requirements for RAPs in this Subpart.
    EPA expressed concern about the possibility of contaminated areas 
being located in floodplains in the proposal, and was persuaded by the 
other examples provided by commenters such as permafrost areas, potable 
well fields, and sole source aquifers. EPA agrees that it would not be 
environmentally desirable to designate remediation wastes management 
sites in these locations. EPA agrees that centralized treatment, in the 
types of situations described by the commenters, may be environmentally 
beneficial. The Agency does not want to inhibit the remediation of 
contaminated properties.
    The Agency has set specific requirements in Sec. 270.230(d) for 
RAPs at alternative locations. First, EPA has specified in 
Sec. 270.230(d)(1) that the RAP for the alternative location must be 
issued to the person responsible for the cleanup from which the 
remediation wastes originated. EPA wants to encourage environmentally 
beneficial cleanups, but does not want to allow a commercial 
remediation waste management facility to open as an ``alternative 
location'' which is owned and operated exclusively by someone who is 
not involved in the cleanup activities, and then be exempt from 
facility-wide corrective action

[[Page 65904]]

requirements. Therefore this limitation ensures that the facility owner 
or operator performing the cleanup activities be a permittee at the 
remote location, as either the operator or the owner, or both. Of 
course, others can also be permittees (for example, the land owner, if 
not the same as the person performing the cleanup). For example, in the 
situation discussed above where it may be more protective to remove 
remediation wastes for management outside of a floodplain in Alaska, 
the remote location may be owned by someone other than the person 
responsible for the cleanup, such as the Federal government. In that 
case, the person responsible for the cleanup and the Federal agency 
responsible for the land would be the permittees for the remote 
location.
    Sections 270.230(d)(2) and (3) require that RAPs for alternative 
locations are subject to the expanded public participation requirements 
in Secs. 124.31, 124.32, and 124.33, and the public notice requirements 
in Sec. 124.10(c). EPA has required this additional public 
participation for these alternative locations to give the community 
surrounding the alternative location ample opportunity to participate 
in the decisions about managing remediation waste in their community.
    Remediation waste management sites located in contaminated areas 
will presumably be subject to extensive public participation as part of 
the remedy selection process, and also the community will be receiving 
the benefit that a contaminated area in their community will be cleaned 
up. In alternative locations, the community would not be involved in 
the process of selecting the remedy for the contaminated area, nor 
would they be receiving the benefit of their community being cleaned 
up. Therefore, EPA felt it was important to require this additional 
public participation.
    Section 270.230(d)(4) requires these alternative locations to 
comply with the location standards of Sec. 264.18. Remediation waste 
management sites located in areas of contamination cannot choose their 
location. The area of contamination is already established, and 
therefore it does not make sense to require these remediation waste 
management sites to comply with the seismic location standard. However, 
owners and operators of these alternative locations can choose the 
location and so should comply with this standard.
    Finally, Sec. 270.230(e) specifies that these alternative locations 
are remediation waste management sites, and retain the benefits of 
remediation waste management sites, that is, the exclusion from 
facility-wide corrective action, and the application of the performance 
standards in Sec. 264.1(j) instead of Part 264, Subparts B, C, and D. 
EPA believes that the disincentives to cleanup would remain if EPA 
required facility-wide corrective action for these alternative 
locations, and so is keeping this exclusion the same as it applies to 
other remediation waste management sites to eliminate disincentives to 
cleanup. Also, the same reasons why the Sec. 264.1(j) performance 
standards are more appropriate for remediation waste management sites 
than Part 264, Subparts B, C, and D, also apply to why Sec. 264.1(j) is 
more appropriate for these alternative locations than Part 264, 
Subparts B, C, and D.
    EPA believes that the requirements for the Director to approve the 
designation of the remediation waste management site in the RAP or 
other permit will assure that the location will be decided for the best 
environmental reasons. Also, the RAP or other permit approval process 
for designating the remediation waste management site will ensure that 
the public has the opportunity to comment on the decisions of where to 
locate the remediation waste management site.
    Finally, the Agency wishes to make it clear that if an owner/
operator manages hazardous remediation wastes as part of cleanup on 
their facility, and ships that waste off-site, then, of course, they 
become a generator. Therefore, when they ship the waste off their 
facility, including shipping it to a facility under an off-site RAP 
under Sec. 270.230, they must comply with the applicable requirements 
for generators, such as manifesting and transportation requirements.
    If an owner/operator will be treating, storing, or disposing both 
on-site and off-site (in a way that triggers the requirement for a 
permit in Sec. 270.1), the owner/operator must get a separate RAP (or a 
traditional RCRA permit) for both the on-site and the off-site 
activities. Only the off-site RAP, however, is subject to Sec. 270.230.

HH. Comparison of the RAPs Process to That for Traditional RCRA Permits

    The procedures for approving RAPs in today's rule are more 
streamlined than the requirements for traditional RCRA permits. EPA 
expects that RAPs will most often be developed concurrently with the 
cleanup's remedy selection process. Most cleanup programs contain a 
remedy selection process requiring the Director's approval and public 
participation. (As discussed in the State authorization section of this 
preamble, a program without the required RAP public participation 
provisions will not be authorized to implement today's rule.)
    As described elsewhere in today's preamble, EPA has intentionally 
constructed the RAP requirements to allow enough flexibility to 
integrate them with remedy selection requirements. EPA expects remedy 
selection and RAP approval will most often occur together, and 
therefore has designed the RAPs process to allow this. EPA expects 
joint issuance of RAPs and remedy selection documents that will be 
significantly more streamlined than separate permitting and remedy 
selection processes and will still maintain meaningful public 
involvement.
    In addition to general streamlining, there are eight specific steps 
in the traditional permitting process that EPA has eliminated for RAPs.
     First, and perhaps most significantly, in an effort to 
better tailor the RAPs requirements to the cleanup setting, the content 
requirements for RAP applications (from Sec. 270.110) are significantly 
less than those required in a RCRA Part B permit application.
     Second, Sec. 124.3(c) requires a ``completeness check'' 
for traditional permits, which EPA does not require for RAPs. Instead, 
for RAPs, new Sec. 270.130 describes the finding that the Director will 
make to determine whether to tentatively approve or deny a RAP 
application. Obviously, if the Director feels that a RAP application is 
incomplete, the Director will communicate with the RAP applicant to 
fill in any gaps, but it is not a specific additional step in the 
process.
     Third, EPA has removed the facility mailing list 
(Sec. 124.10(c)(1)(ix)) requirements; and
     Fourth, has reduced the Director's public notice 
requirements under Sec. 124.10(c)(1). (For RAPs, the Director must send 
notices to local and State agencies as required under RCRA 7004(b), and 
to the RAP applicant.)
     Fifth, EPA is not requiring a pre-application public 
meeting and notices (Sec. 124.31); nor
     Sixth, public notice at the application stage 
(Sec. 124.32); nor
     Seventh, the requirements for an information repository 
(Sec. 124.33) at remediation waste management sites, but encourages the 
Director and the RAP applicant to conduct these activities where 
appropriate.
     Eighth and finally, the procedural requirements for 
modification and termination, revocation and reissuance are much more 
flexible for RAPs than for traditional RCRA permits. Today's

[[Page 65905]]

rule allows the Director to specify these requirements site-
specifically in the RAP, instead of the EPA-promulgated requirements 
such as in Secs. 270.41, 270.42, and 270.43. EPA expects that many 
States will have established procedures in their remedial programs for 
modifying, terminating and revoking and reissuing RAPs. EPA is allowing 
for any of these State requirements as long as they meet the threshold 
requirements of including an opportunity for public participation 
whenever significant modifications are made (see Sec. 270.170).\12\
---------------------------------------------------------------------------

    \12\ Note that by complying with the public participation 
requirements for RAPs, a facility owner/operator may not have 
automatically fulfilled all applicable public participation 
requirements for corrective action, closure/post-closure, or any 
other cleanup-related activities that require public participation 
and the facility owner/operator needs to remain cognizant of these 
separate public participation requirements.
---------------------------------------------------------------------------

V. Requirements Under Part 264 for Remediation Waste Management 
Sites (Sec. 264.1(j))

    In the proposed rule at Sec. 269.40(b), EPA proposed that media 
remediation sites (finalized in today's rule as remediation waste 
management sites) would be subject to the applicable provisions of part 
264 except Subparts B (General Facility Standards) and C (Preparedness 
and Prevention). Subparts A and D-DD would continue to apply unchanged, 
at least for wastes above the Bright Line. EPA proposed this approach, 
as one option, because the unit specific standards of part 264 provided 
ready-made standards to ensure protection of human health and the 
environment. However, EPA recognized that part 264 standards other than 
those in Subparts B and C also may not be appropriate and solicited 
comment on which, if any, other provisions of part 264 should not apply 
to media remediation sites (61 FR 18814). EPA also requested comment on 
the ``Unitary Approach'' that would remove all part 264 standards for 
remediation wastes.
    After examining public comments on this part of the proposal, EPA 
has decided to finalize a somewhat different approach from what was 
proposed. Specifically, today's rule at Sec. 264.1(j) provides that 
remediation waste management sites must comply with all parts of part 
264 except Subparts B, C, D (Contingency Plan and Emergency 
Procedures), and Sec. 264.101.\13\ In place of the requirements in 
Subparts B, C, and D, however, EPA is finalizing performance standards 
based on the general requirement goals in these sections.\14\ These new 
standards eliminate the specific requirements of Subparts B, C, and D, 
which for two reasons can be inappropriate for remediation-only sites. 
Either the requirements were not specifically designed for the 
treatment, storage, and disposal activities during cleanups, or they 
are likely to duplicate or conflict with requirements imposed under the 
remedial authority compelling cleanup.
---------------------------------------------------------------------------

    \13\ Note that Sec. 264.1080(b)(5) already includes an exemption 
from Subpart CC for certain wastes that are generated as the result 
of implementing remedial activities.
    \14\ Of course, facilities other than remediation-only 
facilities must comply with Subparts B, C, and D.
---------------------------------------------------------------------------

    Thus, the provisions finalized today ensure that the concerns 
addressed by these provisions will be addressed by the Director in the 
permit or RAP, without requiring specific conditions that may be 
inappropriate. At the same time, EPA has chosen not to amend the unit-
specific standards of Part 264 for remediation waste, although the 
Agency continues to believe a more extensive revision of these 
requirements is appropriate. The applicability of Sec. 264.101 is 
discussed in section VII. of this preamble.

A. Comments on Applying Part 264 Standards to Remediation Waste 
Management Sites

    Many commenters, arguing for the Unitary Approach, suggested that 
Part 264 standards should not apply to remediation waste management, 
and that regulatory Agencies overseeing cleanup should have broad 
flexibility in imposing conditions on specific units.
    Other commenters suggested more narrowly that several of the 
specific Part 264 management provisions included in the HWIR-media 
proposal are unnecessary for managing remediation wastes under a RAP. 
The earlier commenters argued that these requirements were clearly 
intended for the long-term management of hazardous waste at facilities 
which manage these materials on an on-going basis, whereas many 
cleanups are short-term and do not lend themselves to these restrictive 
provisions. These commenters argued that more flexibility is necessary 
to allow cleanups to take place quickly and to proceed unencumbered by 
regulatory provisions more appropriate for the risks posed by managing 
hazardous ``as-generated'' process wastes.
    Specifically, several commenters suggested that the Agency should 
allow the Director to waive specific requirements from Part 264 or make 
site-specific adjustments under appropriate site-specific 
circumstances.
Part 264, Subpart E
    Commenters specifically mentioned Part 264, Subpart E, requirements 
for manifesting, and commented that these requirements should not apply 
to wastes managed on-site. One commenter stated that manifesting 
requirements were not appropriate for all corrective action activities 
and that specific manifesting requirements should be set out in the RAP 
for that site. EPA disagrees; the Agency believes that manifesting is 
no less important when hazardous wastes are being transported off-site 
in the remedial context than in the as-generated waste context, and so 
these requirements continue to apply to hazardous remediation wastes. 
However, manifests are not required when wastes are managed on-site.
Part 264, Subpart F
    Another commenter stated that Subpart F Secs. 264.90-264.100 
groundwater monitoring and corrective action requirements should not 
apply to remediation waste units, because that would lead to a 
perpetual cycle of waste management activities. This commenter, in 
EPA's view, has raised a complex and important issue. EPA believes 
that, where a new land based unit is created as part of corrective 
action, it should be handled as a landfill--subject to Subpart F 
groundwater requirements (including Subpart F Sec. 264.100 corrective 
action)--or as a CAMU, under which EPA establishes alternative site-
specific conditions to protect groundwater.
    On the other hand, where an old regulated unit has released 
hazardous constituents into the environment, and releases from the unit 
are being addressed as part of a cleanup, EPA believes that Subpart F 
requirements do not make sense (since these requirements were designed 
primarily as preventive standards for units that had not yet had 
releases into the environment); instead, remedial authorities like 
CERCLA or RCRA 3004(u) are better suited for defining groundwater 
monitoring and cleanup requirements at these units.
    EPA's post-closure rule, which was promulgated on October 22, 1998 
(63 FR 56710), is designed to allow integration of cleanup requirements 
at closing regulated units into broader cleanup requirements at 
specific sites, and may address the commenters' concerns. Areas of 
contamination, which are not typically ``regulated units'' subject to 
Subpart F or unit-specific RCRA requirements would be handled in a 
similar fashion. The regulatory agency facing an area of contamination 
would

[[Page 65906]]

base specific decisions on groundwater monitoring, cleanup levels, and 
cover requirements on the remedial authorities being invoked, rather 
than on RCRA Subpart F or other unit-specific requirements.
    In summary, where a new land-based unit is created, EPA disagrees 
with the commenter; in this case, current Part 264 standards (including 
the CAMU) should continue to apply. But where an old or existing unit 
is being addressed as part of a cleanup, EPA shares the commenter's 
concerns. EPA believes that considerable flexibility already exists in 
the RCRA regulations to address this situation, but the Agency also 
acknowledges that further evaluation (including possible statutory 
changes) is appropriate.
Part 264, Subpart G
    Another commenter stated that Subpart G closure requirements could 
be incorporated into the RAP, and therefore a separate closure plan or 
permit would be redundant. EPA agrees with this commenter, and 
throughout the RAPs section of today's preamble stresses the importance 
of integrating processes and documents whenever possible and helpful. 
EPA agrees that, if closure requirements can be integrated into the 
RAP, then two separate documents will not be necessary.
    At the same time, today's rule does not alter the way that Subpart 
G or unit specific closure requirements apply to cleanup sites. Subpart 
G and unit specific closure requirements apply to new units permitted 
under a RAP, but not to areas of contamination, or to old units not 
already subject to Subtitle C (for example, units where non-hazardous 
wastes that subsequently became hazardous were disposed). This is how 
closure requirements apply at any other regulated facility. Thus, if a 
new landfill were created under a RAP in the course of a remediation, 
it would be subject to Subpart G closure standards. Or, the Director 
might approve a CAMU, which would provide greater flexibility than the 
landfill closure standards.
    Subpart G or unit-specific closure standards will not apply in 
areas of contamination where new ``placement'' of hazardous wastes has 
not occurred.\15\ Closure, and monitoring, at these units or areas will 
be a remedial issue, to be addressed under the remedial authority under 
which the cleanup is being performed.
---------------------------------------------------------------------------

    \15\ For a description of what constitutes ``placement'' in an 
area of contamination, see the March 13, 1996 memorandum from 
Michael Shapiro, Director, Office of Solid Waste, Stephen D. Luftig, 
Director, Office of Emergency and Remedial Response, and Jerry 
Clifford, Director, Office of Site Remediation Enforcement, 
regarding ``Use of the Area of Contamination (AOC) Concept During 
RCRA Cleanups.''
---------------------------------------------------------------------------

Part 264, Subpart H
    Several commenters focused on Part 264, Subpart H, financial 
assurance. They suggested that financial assurance for corrective 
action has a very different purpose from the propose it has for 
operating facilities. Also, they suggested that sites should be allowed 
to set up site-specific plans for financial assurance, depending on the 
specifics of the site and the activities taking place.
    Today's rule, however, does not address financial assurance for 
corrective action requirements, such as the ability to finance a 
cleanup and meet remedy goals. It does not impose any additional 
requirements for financial assurance for corrective action, beyond what 
a facility may already be subject to under other authorities. Thus, at 
a remediation-only site, today's rule would impose no financial 
assurance for corrective action. However, if the site is located at a 
facility subject to corrective action, then the financial assurance 
requirements for the corrective action activities will still apply to 
the full extent provided by this Subpart (that is, on a facility-wide 
basis). That is, designation as a remediation waste management site 
does not eliminate otherwise applicable financial assurance 
requirements.
    At the same time, however, EPA has chosen to retain the unit-
specific financial assurance requirements for third-party liability and 
closure. EPA recognizes that the very detailed nature of the Agency's 
current requirements in these areas may constrain some State programs, 
and that in some cases it may be better for the environment if marginal 
facility owners are allowed (or required) to proceed with cleanup, even 
if they cannot secure financial assurance mechanisms. (In this case, an 
enforcement mechanism may be preferable to a permit mechanism.) EPA, 
however, did not solicit, or receive, sufficient comment in this area 
to change the current requirements. Thus, remediation units permitted 
under a RAP will remain subject to the unit-specific RCRA financial 
assurance requirements for third-party liability and closure.
Part 264, Subparts I, J, K, L, M, N, and O
    One commenter suggested that the requirements in 40 CFR part 264, 
Subparts I, J, K, L, M, N, and O, be specifically incorporated into 
RAPs only as necessary. The commenter suggests that they might not be 
necessary for managing low-risk media. However, EPA is not finalizing 
the Bright Line which would have distinguished between high- and low-
risk media. EPA agrees that these requirements only need to be 
incorporated into the RAP if they apply to units being permitted under 
the RAP.

Part 264, Subpart BB

    Finally, one commenter suggested dividing Subpart BB into three 
tiers:
    (1) Subpart BB would not apply to actions that would take place for 
a shorter time than one year;
    (2) The Director would apply Subpart BB, as appropriate, to actions 
that would take between one and three years; and
    (3) Subpart BB would apply in its entirety for actions taking 
longer than three years. Again, EPA has chosen not to amend the unit 
specific standards of part 264 for remediation waste, although the 
Agency continues to believe a more extensive revision of these 
requirements is appropriate.
    EPA believes that it will be extremely rare for the Part 264, 
Subpart BB, requirements to apply to units managing remediation waste. 
The Subpart BB requirements only apply to units managing wastes with 
organic concentrations of at least 10 percent by weight. EPA believes 
that concentrations at that high a level are rarely found in 
remediation wastes. Also, if the Director determines that the Subpart 
BB requirements do apply, but are not appropriate for a particular 
cleanup site, the Director can designate the unit as a temporary unit. 
That allows the Director to modify the unit-specific standards as 
appropriate in cleanup situations. However, temporary units may only be 
used for a limited period of time.

B. EPA's Response to These Comments

    The Agency agrees with the many commenters who pointed out that 
more flexibility is desirable for many cleanups, but does not believe 
at this point that a blanket exemption from Part 264 is appropriate. In 
the first place, certain requirements (for example, MTRs for landfills) 
are imposed by statute, and EPA does not believe the Agency has the 
authority to eliminate them in today's rule. In addition, EPA does not 
believe the Agency has fully aired the issues for public comment. For 
example, EPA is not convinced that secondary containment is needed for 
tanks in all remedial situations. However, EPA did not solicit comment 
specifically on this issue, and the Agency is not prepared today to 
finalize amendments to the current regulations.

[[Page 65907]]

    At the same time, EPA believes that the current regulations already 
provide significant flexibility in remedial contexts. Secondary 
containment, for example, is not necessarily required for tanks or 
other units used in remediation if they were approved as temporary 
units under Sec. 264.553. Innovative technologies can often be 
permitted under the flexible standards of Subpart X. As discussed 
earlier, the CAMU regulations provide flexibility for land-based units, 
as do staging piles, which are promulgated in today's rule and 
discussed elsewhere in this preamble.
    On the question of air emissions, raised specifically by one 
commenter, EPA notes that the temporary unit standards allow the 
Director to develop alternative operating standards for temporary tanks 
and containers managing remediation waste (which would include 
alternative standards to Subpart BB; if they applied). And furthermore, 
EPA has explicitly exempted on-site remedial activities under EPA or 
State cleanup authorities from Subpart CC standards. Thus, while EPA 
believes that further review and tailoring of the current technical 
permitting standards for remediation waste is appropriate, the Agency 
also concludes that considerable flexibility already exists.

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

    On the other hand, in today's rule, EPA is amending the general 
facility standards of Subparts B, C, and D to provide greater 
flexibility for owner/operators of remediation waste sites. Instead of 
the current, detailed requirements in these Subparts, persons managing 
remediation waste sites will be able to meet general performance 
standards. These performance standards define the facility requirement, 
such as ``inspect the facility . . . often enough to identify problems 
in time to correct them,'' but allow considerable flexibility to the 
regulator in determining how an owner/operator will meet those 
standards. The Agency believes that the basic goals of Subparts B, C, 
and D continue to be important, but also EPA believes that the 
protection desired under Subparts B, C, and D can be achieved at 
remediation waste management sites by applying the performance 
standards of today's rule.
    Flexibility in applying many of these substantive requirements is 
important because of the wide variety of remediation waste management 
activities that may be permitted under a RAP, everything from managing 
small volumes of investigation-derived wastes, to remediating large 
volumes of contaminated soils, or treating highly concentrated 
remediation wastes. Also, some activities permitted under RAPs may be 
very short-term actions, and yet some may involve multi-year treatment 
of remediation wastes at a large remediation waste management site. The 
following paragraphs describe the flexibility EPA is providing for 
general RCRA facility standards in Sec. 264.1(j).
    The opening sentences of Sec. 264.1(j) provide for applicability of 
these provisions instead of Sec. 264.10.

Section 264.1(j)(1)

    Instead of Sec. 264.11, new Sec. 264.1(j)(1) requires the facility 
owner/operator to obtain an EPA identification number. These 
identification numbers are important to allow EPA and States to track 
activities at facilities that generate hazardous wastes, whether as a 
result of ongoing processes or during cleanup. This is a simple 
procedure and can be done quickly. This standard is only different from 
Sec. 264.11 entitled ``identification number,'' because of editorial 
changes to enhance readability.
    The requirements in Sec. 264.12 do not apply to remediation waste 
management sites because they are requirements for receiving wastes 
from foreign (Sec. 264.12(a)) and off-site (Sec. 264.12(b)) sources, 
which will not occur at remediation waste management sites. (Owner/
operators are exempt from the Sec. 264.12(b) requirements when they are 
also the generator. The only way an owner/operator can have a RAP at an 
off-site location is if they are both the generator and the owner/
operator of the off-site location. Therefore, this requirement will 
never apply to RAPs.)

Section 264.1(j)(2)

    Instead of ``general waste analysis'' (Sec. 264.13), today's rule 
requires a chemical and physical analysis of the hazardous remediation 
waste under new Sec. 264.1(j)(2) , which at a minimum must contain all 
the information needed to treat, store, or dispose of the waste 
according to this part and part 268. The waste analysis must be 
accurate and up to date.
    This requirement mirrors the existing requirement in 
Sec. 264.13(a)(1), which sets out the general goal of the waste 
analysis requirement. However, this standard eliminates requirements 
that:
    (1) Were written with facilities engaged in the business of 
hazardous waste operations in mind (for example, Sec. 264.13(a)(3), 
which addresses analysis of wastes from unfamiliar off-site sources); 
or
    (2) Are likely to duplicate or conflict with requirements imposed 
by the remedial authority at the site (for example, 264.13(b) to 
develop an analysis plan that may duplicate testing done for site-
characterization and remedy selection).
    EPA expects that waste analysis plans developed under a reliable 
cleanup program, such as EPA's RCRA corrective action program or its 
CERCLA program, will provide enough data to meet this requirement. EPA 
emphasizes that waste analysis should be tailored to provide 
information needed to manage cleanup wastes successfully. EPA does not 
encourage analysis for analysis' sake.

Section 264.1(j)(3)

    Instead of the ``security'' provision (Sec. 264.14), EPA has 
promulgated a performance standard at Sec. 264.1(j)(3) to warn 
potential intruders and to minimize the unauthorized entry of persons 
or livestock onto the active portion of the remediation waste 
management site. EPA allows an exemption from this requirement if the 
facility owner or operator can show that this entry will not injure 
these persons or livestock or cause violations of the requirements in 
part 264.
    For traditional RCRA permits, this requirement and the exemption 
are at Sec. 264.14(a). However, Sec. 264.14(b) and (c) are very 
detailed in exactly how to provide that security. EPA has determined 
that, for remediation waste management sites, the performance standard 
reasonably provides that the site will be secure, but allows 
flexibility in achieving that goal. This takes into account the 
different types of activities that may be taking place at remediation 
waste management sites.

Section 264.1(j)(4)

    Instead of the ``general inspection requirements'' ( Sec. 264.15), 
EPA has promulgated a performance standard at Sec. 264.1(j)(4) 
requiring facility owner/operators to inspect the facility often enough 
to identify problems in time to correct them before a problem leads to 
a human health or environmental hazard. This performance standard, 
which is the same as the current permitting requirement, also:
     Requires the facility owner/operator to take action 
immediately if a hazard is imminent or has already occurred;
     Is drawn from the language in Sec. 264.15(a) and (c);
     Ensures that the facility owner/operator will make 
appropriate inspections; but
     Allows for flexibility in how these inspections will be 
done.
    EPA is not requiring the other parts of Sec. 264.15(b) and (d) 
regarding a written schedule and log, but instead, new

[[Page 65908]]

Sec. 264.1(j)(12) and (13) require the facility owner/operator to have 
a plan and records. EPA expects this approach will be more streamlined 
than requiring a separate plan and record for each activity under 
264.1(j).

Section 264.1(j)(5)

    Instead of the ``personnel training'' requirements at Sec. 264.16, 
EPA has promulgated Sec. 264.1(j)(5) requiring the facility owner/
operator to train personnel to perform their duties in a way that 
ensures the facility's compliance with the requirements in this part, 
and to respond effectively to emergencies. This performance standard is 
derived from the requirements in Sec. 264.16(a)(1) and (3).
    Training is important when personnel are dealing with hazardous 
substances, not only to ensure proper precaution during normal 
operations, but also to ensure that well-trained personnel are 
available and can respond effectively in emergencies. This performance 
standard requires training, but is flexible enough to cover a wide 
range of reasonable programs. For example, where a site is subject to 
Occupational Safety and Health Administration (OSHA) or similar 
training standards for hazardous waste site workers, additional 
standards probably will not be necessary. EPA does not want to create 
duplicative requirements where training is already adequate.
    EPA is not specifying all of the details of how to provide and keep 
records of training as is required under Sec. 264.16(a)(2), (b), (c), 
(d), and (e). EPA believes that each site will be very different and 
require different intensities of training. Also, Sec. 264.1(j)(13) will 
ensure proper records are maintained.

Section 264.1(j)(6)

    Instead of the Sec. 264.17 ``general requirements for ignitable, 
reactive, or incompatible wastes,'' EPA has promulgated the performance 
standard at Sec. 264.1(j)(6). This standard requires facility owners 
and operators to take precautions when managing ignitable, reactive and 
incompatible wastes. This performance standard is similar to the 
Sec. 264.17(a) and (b) requirements.
    Because ignitable and reactive wastes can be highly dangerous 
materials, and because different properties of different hazardous 
wastes can cause explosions, toxic fumes, or other hazards if they 
react with other incompatible materials, it is important to take 
appropriate precautions when dealing with these wastes. EPA did not 
include the specifics of how to separate wastes from potential sources 
of ignition or reaction or what kinds of reactions to avoid or how to 
document compliance. EPA believes that, due to the level of oversight 
at cleanup sites, these precautions will be adequately addressed, and 
recordkeeping will be addressed under new Sec. 264.1(j)(13).
    Section 264.18(a) does not make sense for remediation waste 
management sites, as contaminated areas are already located in a 
certain location, and if the remediation waste management site must be 
located in the area of contamination or areas in close proximity, there 
is not much choice about where to locate the remediation waste 
management site. Therefore, EPA has not included a performance standard 
for remediation waste management sites instead of Sec. 264.18(a). 
However, EPA expects facility owners and operators to do their best to 
locate units a safe distance from faults whenever possible. EPA has 
required compliance with this standard under Sec. 270.230(d)(4) when 
alternative locations are approved for remediation waste management.

Section 264.1(j)(7)

    Section 264.1(j)(7) is the same requirement as the provisions of 
Sec. 264.18(b) for floodplains, but re-written to enhance readability. 
Section 264.18(b) already provides some flexibility for locating within 
a floodplain (provided certain mitigating design or operating criteria 
are met). Today's performance standard allows the same flexibility.

Section 264.1(j)(8)

    Section 264.1(j)(8) is the same requirement as Sec. 264.18(c) for 
salt dome formations, salt bed formations, underground mines, and 
caves. This is also a RCRA statutory requirement at RCRA Sec. 3004(b), 
and is the same as that in Sec. 264.18(c), but is re-written to enhance 
readability. EPA believes that it is unlikely that the situation 
contemplated in this provision would arise during a remediation, but--
because the requirement is statutory--EPA included it in today's rule.

Section 264.1(j)(9)

    Section 264.1(j)(9) requires the facility owner/operator to have a 
construction quality assurance (CQA) program for all new surface 
impoundments, waste piles (except staging piles), and landfill units at 
the remediation waste management site according to the requirements in 
Sec. 264.19. While this requirement is included under ``General 
Facility Standards,'' EPA views the requirement as more akin to the 
unit-specific, technical standards that appear later in Part 264. 
Because EPA did not specifically solicit comment on the technical need 
for these requirements in a remedial context, or the possibility of 
more flexible alternatives, the Agency is not prepared at this point to 
revisit them. Therefore, EPA (consistent with the Agency's decision to 
leave Part 264 unit-specific requirements intact) has simply required 
compliance with the existing requirements in Sec. 264.19. EPA notes, 
however, that these requirements do not apply to CAMUs or to already 
existing areas of contamination where waste is left in place.

Section 264.1(j)(10)

    Section 264.1(j)(10) requires that, instead of Subpart C--
Preparedness and Prevention (Secs. 264.30 through 264.37) and Subpart 
D--Contingency Plan and Emergency Procedures (Secs. 264.50 through 
264.56), the facility owner/operator must have accident preparedness 
and prevention procedures and a contingency and emergency plan. These 
plans must: (1) ensure that the hazardous waste units at remediation 
waste management sites are designed, constructed, maintained, and 
operated to minimize the possibility of an emergency; and (2) minimize 
hazards to human health or the environment from any emergencies from 
treating, storing, and disposing of the hazardous remediation waste.
    The performance standard embodies the requirements in Sec. 264.31 
and Sec. 264.51. However, the Part 264, Subparts C and D, requirements 
include considerable detail about preparing for and responding to 
emergencies. In the cleanup scenario, this detail can become a problem 
because of the wide variety of activities taking place. Detailed 
requirements may be redundant with other cleanup requirements or simply 
unnecessary in many cases. For example, the cleanup program overseeing 
the remediation may already have procedures for notifying police, fire 
departments, and emergency personnel. In this case, the specific 
requirements in Part 264, Subparts C and D, would be redundant. Because 
of the wide variety of activities that may be taking place at a 
remediation waste management site, and the fact that these activities 
may often be short-term, EPA is allowing considerable flexibility in 
these preparedness requirements.

Section 264.1(j)(11)

    New 264.1(j)(11) requires the facility owner/operator to designate 
one or more employees as an emergency coordinator. This is the same 
requirement as under Sec. 264.55. This requirement makes it possible to 
implement the emergency

[[Page 65909]]

procedures in the contingency and emergency plan quickly and 
efficiently. In any circumstance involving treating, storing, or 
disposing of hazardous wastes, including hazardous remediation wastes, 
an emergency coordinator facilitates an effective response.

Sections 264.1(j)(12) and (13)

    New Sec. 264.1(j)(12) requires the facility owner/operator to have 
and implement a plan or plans to meet the requirements in subparagraphs 
(j)(2) through (j)(6) and (j)(9) through (j)(11). Thus, the facility 
owner/operator must have a plan to address waste analysis, security, 
inspection, training, waste compatibility, construction quality 
assurance, and accident preparedness. Also, new Sec. 264.1(j)(13) 
requires the facility owner/operator to maintain records documenting 
compliance with subparagraphs (j)(1) through (j)(12).
    In the existing Subparts B, C, and D, each of the individual 
sections has requirements to have plans and keep records. New 
Secs. 264.1(j)(12) and (13) streamline those requirements by requiring 
only one plan and one set of records to cover the requirements instead 
of several plans and sets of records. Note, however, that the owner/
operator is not limited to one plan; more than one plan would be 
perfectly acceptable if that is more appropriate for the particular 
site. These plans and records are necessary so that the Agency or the 
public can inspect the facility's compliance with these requirements. 
EPA believes that any well-managed remediation project will have plans 
and records of this type, and the Agency does not anticipate that sites 
with acceptable plans as part of their remedial activities will have to 
reformat or rewrite these plans solely to meet the performance 
standards of today's rule.
    It is important to note that, in the same way as the current Part 
264 standards apply to facilities, these new standards under 
Sec. 264.1(j) apply at remediation waste management sites only to 
hazardous remediation waste management units, not to units that are not 
otherwise subject to Part 264 requirements, such as solid waste 
management units, or exempt hazardous waste units. 16
---------------------------------------------------------------------------

    \16\  Of course, solid waste management units are subject to 
Sec. 264.101 corrective action requirements at facilities subject to 
corrective action.
---------------------------------------------------------------------------

    In the proposed rule, the requirements in Subparts B and C were 
waived for media remediation sites (which in the final rule are 
remediation waste management sites) under RAPs. There was no mention 
that there could possibly be a media remediation site that was not 
permitted by a RAP. Under the final rule, EPA acknowledges that there 
may be remediation waste management sites that are permitted under a 
traditional RCRA permit, and so has not specified that the new part 264 
requirements for remediation waste management sites are limited to 
those permitted under RAPs, but are available for all remediation waste 
management sites.
    The arguments for alternative standards still apply, even without 
the limitation to RAPs. Remediation waste management sites will vary 
greatly between the different types of remediation wastes and 
activities taking place. They will be subject to cleanup requirements 
under the programs requiring cleanup at these sites, and often cleanup 
requirements and the traditional part 264 standards may be duplicative. 
Therefore, today's rule makes these new part 264 performance standards 
available for all remediation waste management sites.

VI. Application of RCRA Sections 3004(u) and (v), and Sec. 264.101 
to Remediation Waste Management Sites (Sec. 264.101(d))

    EPA proposed that the 3004(u) and (v) facility-wide corrective 
action requirement (which is implemented through Sec. 264.101) would 
generally not apply to facilities that obtain RMPs (see proposed 
Sec. 269.40(d)). EPA has included in the final rule in Sec. 264.1(j) 
that Sec. 264.101 does not apply to remediation waste management sites. 
However, some remediation waste management sites may be part of a 
facility that is subject to a traditional RCRA permit because that 
facility also treats, stores, or disposes of hazardous wastes that are 
not remediation wastes. The rule does clarify that in these cases, 
Subparts B, C, and D, and Sec. 264.101 do apply to the facility subject 
to the traditional RCRA permit. EPA also amended Sec. 264.101 to add a 
paragraph (d) as follows: ``(d) This section does not apply to 
remediation waste management sites unless they are part of a facility 
subject to a permit for treating, storing or disposing of hazardous 
wastes that are not remediation wastes.'' Subpart F Sec. 264.101 
facility-wide corrective action does not apply to remediation waste 
management sites. 17 This issue is more fully discussed in 
today's preamble section on the definition of remediation waste 
management site.
---------------------------------------------------------------------------

    \17\  The exclusion of remediation waste management sites from 
the definition of facility in today's rule is strictly limited to 
the definition of facility for purposes of corrective action, which 
is found in part (2) of the definition of facility. Remediation 
waste management sites are not excluded from part (1) of the 
definition of facility for other purposes.
---------------------------------------------------------------------------

VII. Staging Piles (Secs. 260.10 and 264.554)

A. Introduction and Background

    Today's rulemaking establishes a new type of unit-- the staging 
pile-- which will provide needed regulatory flexibility for the 
facilitation of certain cleanup activities, while ensuring 
environmentally protective results. A staging pile is an accumulation 
of solid, non-flowing remediation waste (as defined today in 40 CFR 
260.10) that is not a containment building and is used only during 
remedial operations for temporary storage at a facility. Today's 
regulations provide the Director with the authority to designate and 
approve staging piles for the purpose of storing remediation waste. In 
today's staging pile provisions, EPA has modified the remediation pile 
concept proposed in the HWIR-media proposal on April 29, 1996 in 
response to comments and also to correspond with other changes that 
have been made to the rule since its proposal.
    A goal repeated throughout today's final rule is the achievement of 
environmental progress by facilitating the cleanup of as many 
contaminated sites as possible. The physical, economic, and technical 
limitations on the operation of a cleanup program often dictate that 
remediation wastes be temporarily stored on-site prior to completion of 
the remedial activity. The regulations establishing staging piles are 
designed to provide greater flexibility for decision-makers to 
implement protective, reliable, and cost-effective remedies. Staging 
piles will allow short-term storage to occur under circumstances that 
are protective of human health and the environment, without the 
extensive set of prescriptive standards that may be required for units 
in long-term use.
    EPA believes that the additional flexibility provided by staging 
piles will improve the ability of program implementors and facility 
owner/operators to implement the most effective remedy for any given 
facility. For example, the use of staging piles will facilitate short-
term storage of remediation wastes so that sufficient volumes can be 
accumulated for shipment to an off-site treatment facility, or for 
efficient on-site treatment. The Agency also anticipates, for example, 
that staging piles will facilitate treatment technologies such as 
chemical extraction by allowing on-site accumulation of sufficient 
treatment

[[Page 65910]]

volumes. In addition, staging piles should be useful since they will 
allow storage of wastes during the conduct of interim measures at a 
facility, while decisions on the final remedy are being formulated. 
Longer-term and more complex activities such as land-based treatment 
and permanent disposal will not be allowed in staging piles. As 
discussed more fully below, the Agency believes that these activities 
are more properly conducted in CAMUs (Sec. 264.552, promulgated on 
February 16, 1993; 58 FR 8658).
    To facilitate the cleanup of sites contaminated with hazardous 
waste, the Agency believes that it must remove some of the obstacles to 
cleanup that exist in the RCRA Subtitle C program. These obstacles stem 
from the Subtitle C program's structure as primarily a ``prevention 
oriented'' program, with requirements that can act as a disincentive to 
protective remedies in ``response-oriented'' programs and can limit the 
flexibility of decision-makers to choose the most appropriate remedy at 
a site. Although LDRs and MTRs, established in RCRA Section 3004 (m) 
and (o) respectively, are appropriate to ensure proper ongoing 
management or permanent disposal of hazardous industrial waste, these 
sections of the statute often become a barrier to cleanup and overall 
environmental protection when applied to remediation waste.
    Under current regulations, waste piles are considered land disposal 
units, and all hazardous wastes must therefore be treated to LDR 
standards before being placed into a waste pile. Large volumes of waste 
and contaminated media are often encountered during remedial actions 
and, because LDR and MTR often create a disincentive to exhuming 
hazardous remediation waste, EPA believes that allowing these wastes to 
be temporarily stored in on-site piles without meeting LDR and MTR 
standards will significantly further prompt remediation. Accommodating 
the need for temporary storage in piles without imposing LDRs and MTRs 
was also generally supported by the Committee authorized by the Federal 
Advisory Committee Act (FACA), representing the interests of industry, 
government and environmental groups, whose recommendations formed the 
basis for the proposed rule. In addition, the overwhelming majority of 
commenters that addressed the proposed remediation piles expressed 
support for a new type of unit that would allow for temporary storage 
in piles. A number of commenters emphasized that, even if EPA decided 
to retain the CAMU regulation, piles would be useful as a reasonable 
option for storage of materials awaiting transport or on-site 
treatment. Although many of the commenters also supported treatment in 
piles (which is not allowed under today's rule), the consensus of 
commenters was that the ability to operate some kind of temporary pile 
that would not trigger LDRs or MTRs would be beneficial to the remedial 
process by promoting efficient cleanups. Not one of the commenters 
disputed that LDRs and MTRs can be a barrier to increasing the rate and 
quality of cleanups. It was with the backing of this consensus that 
today's staging pile regulation was formulated.
    Applying LDRs to temporary placement of remediation waste often 
makes it impractical to store hazardous remediation wastes in a pile 
pending its ultimate disposition, since this land placement generally 
may not occur prior to treatment to LDR standards. This essentially 
presents the remedial decision maker with three options:
     Leaving remediation waste in place;
     Storing it in a tank or container (or temporary unit, when 
available) prior to further management;
     Or seeking a CAMU.
    Leaving waste in place is often an unsatisfactory solution due to 
the potential for future risks to public health, an outcome that EPA 
strives to discourage. Temporary unit or tank and container storage, 
although sometimes preferable in cases where the volume of waste is not 
particularly large, may cause delay and add complexity for sites with a 
large volume of waste, while providing little, if any, additional 
benefit to human health and the environment. CAMUs are also an option, 
but they have proved to be administratively complex for relatively 
short-term storage. The Agency therefore believes that the temporary 
storage in staging piles, subject to regulatory imposition of site-
specific requirements and oversight, is preferable to the present 
regime, which encourages the continuing, unmanaged presence of 
remediation waste for an indefinite period of time.
    Staging piles do not replace existing mechanisms that allow 
remediation waste managers to tailor RCRA requirements to accommodate 
site-specific circumstances. These include CAMUs, temporary units 
(Sec. 264.553), treatability variances (Sec. 268.44), and the Area of 
Contamination (AOC) policy.18 Rather, staging piles provide 
an additional mechanism which may be used for short-term storage when, 
for example, the AOC policy does not apply and tank, container, or 
temporary unit storage is not feasible. Below is a comparison chart of 
the units most applicable to today's rulemaking:
---------------------------------------------------------------------------

    \18\ Memorandum from Michael Shapiro, Director, Office of Solid 
Waste, Stephen D. Luftig, Director, Office of Emergency and Remedial 
Response, and Jerry Clifford, Director, Office of Site Remediation 
Enforcement, EPA to RCRA Branch Chiefs and CERCLA Regional Managers 
(March 13, 1996).

--------------------------------------------------------------------------------------------------------------------------------------------------------
          Type of unit               Unit structure       Kind of waste         Time limit                        Management activities
--------------------------------------------------------------------------------------------------------------------------------------------------------
Staging Pile Sec.  264.554......  Pile...............  Remediation Waste..  2 years plus one    Storage.
                                                                             180-day extension
                                                                             period.
CAMU Sec.  264.552..............  Designated Area or   Remediation Waste..  None..............  Treatment, Storage, and/or Disposal.
                                   Unit within a
                                   Facility.
Temporary Unit Sec.  264.553....  Tank or Container    Remediation Waste..  1 year plus a 1     Treatment and/or Storage.
                                   Storage Area.                             year extension
                                                                             period.
Area of Contamin-ation..........  Land-based Area of   Remediation Waste..  None..............  Storage, In-Situ Treatment, Disposal.
                                   Contamination.
--------------------------------------------------------------------------------------------------------------------------------------------------------

B. A Summary of Principal Changes From the Proposal

1. Changes From the Proposal
    The staging pile regulation promulgated today is based on the 
remediation pile regulation proposed on April 29, 1996 in the HWIR-
media proposal. Today's regulation differs from the remediation pile 
proposal in five main ways:
     The name is changed;
     Treatment in the pile is not allowed;
     ``Temporary'' is defined;
     A more specific performance standard is added; and

[[Page 65911]]

     The closure requirements are defined.
    These changes, as well as other issues and responses to major 
comments, are discussed below.
    First, EPA changed the name from ``remediation piles'' to ``staging 
piles'' to make it clear that these piles are to be used only for the 
temporary storage of remediation wastes, and not for other remediation 
activities such as treatment.
    Second, the primary difference between the staging pile regulation 
finalized today and the proposed remediation pile regulations is that 
today's rule does not allow for treatment in the pile. The Agency 
recognizes the effectiveness of many treatment approaches relying on 
engineered piles, and does not wish to discourage their use, where 
appropriate. At the same time, one commenter vigorously opposed 
treatment in remediation piles. The Agency acknowledges that some forms 
of ``treatment,'' (for example, air stripping, or in some cases, 
biological treatment) may raise concerns with regard to air emissions. 
Therefore, for today's rule, EPA has restricted treatment to units 
other than staging piles, such as CAMUs. The CAMU decision criteria, as 
applied through the overseeing agency designation process, provide a 
way to ensure that the activities that occur in a CAMU have more 
protective design and operating controls than what is called for in the 
case of the short term, generally lower risk activities, allowed to 
take place in staging piles. The CAMU regulation includes, for example, 
a specific ground water monitoring requirement and an associated 
performance standard (40 CFR 264.552(e)(3)). Furthermore, the 
designation of a CAMU through a permit modification requires the more 
extensive Class 3 procedures while today's staging pile regulation 
requires Class 2.
    In addition, the temporary unit regulation (Sec. 264.553, 
promulgated on February 16, 1993; 58 FR 8658) allows for treatment, as 
well as storage, of hazardous remediation waste in tanks or containers. 
19 Like the CAMU rule, the regulations governing temporary 
units are designed to address the risks posed by treatment in the 
remedial setting. First, temporary units are containerized, rather than 
land-based, and therefore generally pose less risk of releases or 
cross-media transfer than do the land-based staging piles. In addition, 
temporary units may only operate for one year unless they receive an 
extension. The temporary unit extension, which can be granted once for 
one year, can only be provided after a site-specific determination is 
made by the Director that continued operation of the unit will not pose 
a threat to human health and the environment and is necessary to ensure 
timely and efficient implementation of remedial actions at the facility 
(Sec. 264.553(e)). The temporary unit time limitation is more stringent 
than the time limit provided in today's staging pile regulation. In 
general, the relatively short amount of time allowed for treatment in a 
temporary unit addresses the greater risk to human health and the 
environment that may arise through treatment activities.
---------------------------------------------------------------------------

    \19\ Using the temporary unit regulation, the Director imposes 
alternative requirements, based on site-specific conditions, for 
temporary tank or container units used for the treatment or storage 
of remediation waste during a remedial action.
---------------------------------------------------------------------------

    Third, unlike the proposal, the final rule defines the temporary 
nature of staging piles as a two-year lifetime for the pile. At the end 
of the operating term for the staging pile (which can be designated by 
the Director as any amount of time up to two years), all hazardous 
remediation waste and residues in the pile must be removed unless an 
operating term extension (of up to 180 days) is granted by the 
Director.
    Fourth, the Agency believes that the process and analysis necessary 
for the designation of a staging pile should be more straightforward 
than that needed for a CAMU due to the lower level of potential risks 
presented from the nature of activities that can take place in a 
staging pile, and EPA has designed today's regulation accordingly. 
Because staging piles are intended for the temporary storage of 
remediation waste, they will complement CAMUs and temporary units by 
providing program implementors and facility owners/operators with an 
intermediate option to use in a number of circumstances, such as when 
temporary units do not have the capacity for the chosen remedial 
strategy, but a CAMU is not necessary.
    A modest difference between the proposed remediation piles and the 
staging piles promulgated today is that the Director will have more 
than the temporary unit decision factors (as proposed) to guide the 
establishment of design and operating criteria for a staging pile. In 
response to commenters' requests, today's rule includes a more specific 
performance standard, set out in Sec. 264.554(d)(1), which expands upon 
the temporary unit decision factors to assist the Director in 
determining appropriate staging pile design and operating standards 
based on conditions at a particular site. This performance standard 
will be discussed in detail in the section of this preamble dealing 
with the staging pile performance criteria. The Agency's goal in 
providing this performance standard is to ensure that the design 
criteria used for a staging pile correspond to site- and waste-specific 
characteristics. The proposed regulation for remediation piles included 
only a reference to the decision factors for temporary units as a guide 
to the Director in setting case-by-case standards for remediation 
piles. Today's staging pile regulatory text includes language similar 
to the temporary unit decision factors, as well as a performance 
standard, both of which are incorporated directly into the regulation 
to add more predictability and assurance of protectiveness into the 
process of designating a staging pile. Clear expectations for 
performance should provide a beneficial focus for both the program 
implementor and the facility owner/operator.
    Fifth, at the end of the staging pile's operating term or extension 
period, the staging pile is subject to one of two sets of closure 
requirements based on whether the staging pile has been located on 
either a previously contaminated or a previously uncontaminated area of 
the facility. If the pile has been located in an uncontaminated area of 
the site, any remaining contamination (containment system components, 
subsoils, etc.) must be decontaminated according to the clean closure 
standard for waste piles in Sec. 264.258(a) and the closure performance 
standard of Sec. 264.111. (For interim status facilities, the standards 
to be used are located in Sec. 265.258(a) and Sec. 265.111.) On the 
other hand, if the pile has been located on a previously contaminated 
area of the site, all remediation waste, contaminated containment 
system components, and structures and equipment contaminated with waste 
and leachate must be removed or decontaminated within 180 days after 
the expiration of the operating term of the staging pile. Also, the 
facility owner/operator must decontaminate contaminated subsoils in a 
manner and pursuant to a schedule that the Director determines will 
protect human health and the environment. These closure requirements 
were added to the final rule in response to comments pointing out that 
despite mentioning that ``clean closure'' was a requirement in the 
proposed rule preamble, the Agency had not included this language in 
the rule text.
2. Consistent With the Proposal
    In keeping with the proposal, staging piles will be able to accept 
all types of solid, non-flowing remediation waste, rather than only 
hazardous

[[Page 65912]]

contaminated media. Like CAMUs and temporary units, staging piles 
cannot be used to manage hazardous waste from ongoing industrial 
processes, commonly referred to as ``as-generated'' hazardous waste. In 
addition, as proposed, a staging pile may be used only for the storage 
of ``solid, non-flowing'' hazardous remediation waste. Flowing wastes 
are inappropriate for staging piles because of the possibility of 
releases and run-off of these wastes.
    Also unchanged from the proposal is the provision that staging 
piles will not be considered land disposal units and therefore 
placement of remediation waste into a staging pile will not trigger 
LDRs or applicable MTRs (RCRA section 3004(o). However, assuming the 
waste is subsequently managed in a way that triggers these 
requirements, LDRs and MTRs will ultimately apply to the remediation 
waste.

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

    Section 264.554(a) states that ``a staging pile is an accumulation 
of solid, non-flowing remediation waste (as defined in 40 CFR 260.10) 
that is not a containment building and is used only during remedial 
operations for temporary storage at a facility. A staging pile must be 
located within the contiguous property under the control of the owner/
operator where the wastes to be managed in the staging pile originated. 
Staging piles must be designated by the Director according to the 
requirements in this section.'' This provision includes the definition 
of staging pile from Sec. 260.10 which is discussed in the definitions 
section of this preamble. This provision also limits where the owner/
operator may locate a staging pile to within the contiguous property 
under the control or the owner/operator. This limitation was originally 
in the definition of remediation waste, however, as discussed in the 
definitions section of this preamble, EPA believed this limit was more 
appropriate in the regulatory text rather than in definitions. Finally, 
this provision specifies that staging piles must be designated by the 
Director according to this section. Without designation as a staging 
pile, a pile will be considered a ``waste pile'' under Sec. 264.250, 
and therefore subject to the requirements in that section (including 
LDRs and applicable MTRs). Since today's staging pile regulation is not 
self-implementing, the Director must incorporate the provisions for a 
staging pile into a permit (either traditional permit or RAP), closure 
plan, or order in which it is designated.
    In keeping with the proposal, staging piles will be able to accept 
all types of solid, non-flowing remediation waste, rather than only 
hazardous contaminated media. Despite criticism from one commenter who 
stated that only media should be allowed to be managed in a remediation 
pile, not other forms of remediation waste, the Agency has retained 
this approach because non-media wastes can be generated in very high 
volumes creating remedial obstacles similar to those created by large 
volumes of hazardous contaminated media. In support of the proposed 
approach, another commenter argued that because contaminated media is 
often ``found in the same shovel'' as sludges and debris it would be 
both difficult and inefficient to attempt to regulate these 
differently. At sites where this occurs, staging piles would likely not 
facilitate an appropriate remedy if limited to accepting only media.
    One commenter suggested that the Agency should encourage the 
management of sludges and other non-media remediation wastes in tanks 
and containers instead of piles. EPA believes that the Agency has at 
least partially addressed the commenter's concern by limiting the use 
of staging piles to non-flowing wastes. This restriction serves to 
eliminate some sludges as well as other problematic wastes. EPA also 
emphasizes that tanks and containers can provide important protection 
in certain circumstances (for example, to address run-off concerns), 
and the Agency recommends the use of these units where appropriate. At 
the same time, EPA disagrees with the commenter's premise that a 
waste's status as ``media'' or ``non-media'' is particularly relevant 
to the kind of unit that waste should be stored in. The concentration 
of hazardous constituents, their leachability, and their volatility are 
far greater concerns. More generally, EPA believes that the decision on 
which specific remediation unit is most appropriate at a given cleanup 
depends on numerous site-specific factors, and that this decision 
should be made through the site-specific permit process. EPA has issued 
extensive guidance on the management of remediation waste, both under 
RCRA and CERCLA (including the Best Management Practices Guidance 
developed in conjunction with this rule), which site managers and 
regulators can use in making their decision. EPA, however, has 
concluded that more specific direction on this issue is not appropriate 
or necessary in today's rule.
    Finally, as mentioned above, the final rule provides that staging 
piles may be used only for storage of remediation wastes. ``Treatment'' 
will not be permitted primarily for the reasons outlined in the ``A 
Summary of Changes from the Proposal'' section of this preamble. To 
summarize, treatment was a particularly sensitive issue for one 
commenter and EPA acknowledges that treatment, in some cases--such as 
air stripping--may involve higher levels of risks than typical storage. 
Furthermore, treatment, especially biological treatment, is often a 
long-term activity. Since staging piles are to be temporary, they will 
not necessarily require fixed controls such as leachate collection and 
removal systems, which are more appropriate for long-term use. Instead, 
staging piles should be relatively easy to create and dismantle given 
their temporary nature and to expedite remedial activities by providing 
the opportunity for short-term storage. Given these considerations, EPA 
has decided that treatment should occur in units that provide more 
specific safeguards; that is, treatment units meeting 40 CFR Part 264 
requirements, including those units specifically designed for treatment 
in the cleanup context (for example, CAMUs and temporary units).
    Although many commenters supported both treatment and storage in 
temporary piles, no commenter suggested that, without including the 
possibility of treatment, the piles would not facilitate the remedial 
process. Rather, a number of commenters directly supported the need for 
temporary storage of remediation waste in piles, without LDR or MTR 
applicability, before subsequent management. One commenter specifically 
stated that EPA should limit these piles to storage only, citing the 
increased potential for emissions to the air and other pathways if 
treatment were allowed. The Agency believes that today's staging pile 
regulation adequately addresses the commenters' concerns.

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

    Staging piles are subject to a few key limitations. First, today's 
rule specifies that the facility owner/operator may use a staging pile 
to store hazardous remediation waste (or remediation waste otherwise 
subject to LDRs) 20 only if you follow the standards and 
design criteria the Director has designated for that staging pile. This 
language is an outgrowth of the language proposed in Sec. 264.554(a), 
which provided that a

[[Page 65913]]

remediation pile would only be used for the storage of remediation 
waste based on design and operating standards the Director had 
designated on a case-by-case basis. Both versions of this language make 
it clear that remediation piles would not be self-implementing and 
would have standards that must be designated by the Director. The 
Agency received no adverse comments on this aspect of the proposal, and 
so has only re-worded this requirement for readability in the final 
rule.
---------------------------------------------------------------------------

    \20\ For a discussion of situations where remediation wastes 
that are no longer ``hazardous'' may nonetheless remain subject to 
LDRs see 63 FR 28617-28620 (May 26, 1998).
---------------------------------------------------------------------------

    Second, the final rule states that the Director must designate the 
staging pile in either a permit or, at an interim status facility, in a 
closure plan or order (consistent with Secs. 270.72(a)(5) and (b)(5)). 
Consequently, staging piles can also be approved under a RAP as 
finalized by today's rule in Part 270 (because a RAP is a form of a 
permit). The proposed rule would have required remediation piles to be 
designated in a ``permit or order'' (proposed Sec. 264.554(a)). 
Commenters did not question this approach; however, today's rule 
includes one clarifying change to the proposed regulatory language, as 
well as an additional mechanism for designating a staging pile.
    The Agency adds a clarifying change to today's final rule language 
which specifies that staging piles may be designated in orders at 
interim status facilities only. In the proposal, the Agency did not 
specify when orders could be used to designate a staging pile. EPA 
intended that the same mechanisms be used under today's rule to 
designate staging piles as can be used under the current regulations to 
designate other types of units. At most facilities, it is necessary to 
receive a permit to implement hazardous waste management units. 
However, at interim status facilities, units can be implemented 
according to Secs. 270.72(a)(5) and (b)(5) when required under an 
order. EPA, therefore, has included the language in the final staging 
pile rule clarifying that orders may be used to designate a staging 
piles at interim status facilities to be consistent with how other 
types of units can currently be designated.
    In today's rule EPA has included an additional mechanism--the 
closure plan--for the designation of staging piles at interim status 
facilities, since the Agency believes that staging piles will be useful 
to facility owner/operators where remediation is conducted during the 
closure of waste management units. EPA believes it is appropriate to 
allow staging piles to be designated through closure plans since final 
closure plans are enforceable and because the closure plan approval 
process, both at permitted and interim status facilities, incorporates 
sufficient public participation. In addition, EPA believes it is also 
appropriate to make closure plans available for the approval of staging 
piles at interim status facilities because an order may not always be 
suitable. For example, the owner/operator of an interim status facility 
may wish to conduct cleanup at a regulated unit and achieve closure by 
removal even when he is not required to do so under an order. As part 
of the closure, the facility owner/operator may find it most practical 
to stage the removed waste in a pile, before it is moved to an on or 
off-site treatment unit. In this case, the facility owner/operator can 
include staging piles, if necessary for voluntary cleanup, into his 
closure plan.
    At a permitted facility, a closure plan is a part of the original 
permit, and so is approved following the traditional permit approval 
process. Modifications to closure plans are incorporated into permits 
as permit modifications and follow the appropriate permit modification 
procedures found in Sec. 270.42. Because staging piles require a Class 
2 permit modification, as discussed in the ``How may my existing permit 
(for example, RAP), closure plan, or order be modified to allow the use 
of a staging pile?'' section of today's preamble, a staging pile 
incorporated into a closure plan modification would also require at 
least Class 2 procedures. Because staging piles can be approved through 
permits, it follows that a staging pile can be designated in a closure 
plan at a permitted facility. Nonetheless, EPA wanted to make this 
clear, and therefore has explicitly stated that staging piles can be 
designated in closure plans.
    At interim status facilities, the process used to gain approval of 
a closure plan also requires an opportunity for public notice and 
comment. Specifically, these closure plans are approved according to 
the requirements in Sec. 265.112(d). These requirements include the 
opportunity, available through a newspaper notice, for the facility 
owner/operator and the public to submit written comments on the closure 
plan and request modifications to the plan within 30 days of the date 
of the notice. In addition, the Director can hold a public hearing to 
clarify any issues regarding the closure plan. Therefore, approved 
closure plans can be used to designate staging piles under today's 
rule.
    The regulations regarding staging piles are expected to be 
applicable or relevant and appropriate requirements (ARARs) for the 
remediation of RCRA hazardous wastes at CERCLA sites. In these cases, 
staging pile requirements would be incorporated into CERCLA decision 
documents rather than permits, closure plans, or orders. This section 
of the rule also includes language to make it clear that a staging pile 
only need be designated in a permit (for example, a RAP), closure plan, 
or order when hazardous remediation waste (or remediation waste 
otherwise subject to LDRs) is being stored. Non-hazardous remediation 
waste or remediation waste that is no longer subject to LDRs can, of 
course, be stored in a pile without being designated as a ``staging 
pile.''
    The third provision of new Sec. 264.554(b) is the provision that 
the Director must establish conditions in the permit, closure plan, or 
order that comply with paragraphs (d)-(k) of the staging pile 
regulation. This portion of the regulation simply serves to affirm that 
the provisions of the staging pile regulation will be incorporated by 
the Director into the designating mechanism for the pile.

E. What Information Must I Provide To Get a Staging Pile Designated? 
(Sec. 264.554(c))

    Section 264.554(c)(1) sets out the requirement that the facility 
owner/operator must provide information to the Director that will 
enable him to designate a staging pile according to the regulatory 
requirements in today's rule. The Agency does not believe that the 
evaluation of these performance criteria will generally involve 
detailed quantitative analyses; the level of detail needed by the 
Director to make decisions on appropriate design and operating criteria 
will vary case-by-case depending on site-specific factors, such as 
proximity to points of exposure, physical and chemical characteristics 
of the waste, and hydrogeological conditions at the site. The Agency 
anticipates that the information contained in the RCRA Facility 
Investigation or an analogous document will contain most of the 
information necessary to designate a protective staging pile. The 
Agency's intention with this portion of the regulation is not to create 
a burdensome reporting requirement, but rather to authorize the 
Director to require sufficient information to enable him to designate a 
staging pile.
    Today's rule also requires a certification by an independent, 
qualified, registered professional engineer for technical data, such as 
design drawings and specifications, and engineering studies, unless the 
Director determines, based on information provided by the facility 
owner/operator, that this certification is not necessary to

[[Page 65914]]

ensure a staging pile that is protective of human health and the 
environment (Sec. 264.554(c)(2)). This certification should be 
incorporated into any documentation necessary for the permit, closure 
plan, or order in which the staging pile is designated. The Agency's 
intention is not to create an obstacle for the facility owner/operator, 
but rather to provide assurance that the technical information is 
accurate, has been prepared by technically competent personnel, and can 
be relied upon by the Director. If the Director believes that this 
certification is unnecessary, such as in a case where the staging pile 
design is to be very simple due to a short term of storage or 
relatively low constituent concentrations, the Director may waive the 
need for the professional engineer certification. Finally, RCRA 
Sec. 264.554(c)(3) enables the Director to request any additional 
information that he determines is necessary to protect human health and 
the environment. EPA expects that this provision will be used 
infrequently, but considers it important to ensure that all pertinent 
information is available to the Director when making a decision on 
designating a staging pile or staging pile extension. Because this is 
not intended to be a burdensome provision, the Director should restrict 
any information request to that which is necessary to protect human 
health and the environment. The Agency intends this portion of the 
regulation to reinforce the Director's ability to request additional 
information to ensure that, for example, staging piles are designed so 
as to prevent or minimize releases of hazardous wastes and hazardous 
constituents into the environment (Sec. 264.554(d)(1)(ii)).
    Although an information requirement was not included explicitly in 
the proposed remediation pile regulation, EPA believes that the 
Director's need for information to designate a protective staging pile 
was a principle embedded in the proposal. The proposed remediation pile 
regulation was centered around providing, both the regulatory agency 
and the facility, site-specific flexibility with the goal of matching 
the risk-based regulatory requirements with the conditions at a 
particular site. This flexibility can only be granted when there is an 
exchange of accurate and sufficient information between the facility 
and the regulatory agency. Moreover, under the proposal, the Director 
could, of course, have denied a request to designate a remediation pile 
if he did not have sufficient information to make a sound 
protectiveness judgement, so his ability to obtain additional 
information was implicit. Therefore, to clarify this expectation, 
today's Sec. 264.554(c) explicitly defines what kind of information 
must be provided to the Director to enable him to make the findings 
mandated by the regulations.

F. What Performance Criteria Must the Staging Pile Satisfy? 
(Sec. 264.554(d))

1. Performance Standards for Staging Piles (Sec. 264.554(d)(1))
    Many commenters requested that the Agency avoid prescriptive 
national standards that would not take into account site-specific 
considerations and therefore would be likely to over or under estimate 
the exact design and operating requirements needed at any given 
facility. There were, however, persuasive comments suggesting that a 
performance standard for staging pile design and operation is 
necessary, in addition to the decision factors, to better guide the 
program implementor and facility owner/operator in setting site-
specific design and operating criteria that will protect human health 
and the environment. Consequently, today's rule finalizes a performance 
standard that, in combination with a specific time limit for the piles, 
will ensure that staging piles are protective without sacrificing the 
flexibility that helps make staging piles an implementable option at 
facilities.
    The Agency proposed a standard for remediation piles that reads 
``the Director may prescribe on a case-by-case basis design and 
operating standards for such units that are protective of human health 
and the environment.'' In response to comments suggesting a more 
specific performance standard for staging piles, the Agency has 
promulgated today's performance standard for staging piles. The staging 
pile performance standard is based on the principles underlying the 
staging piles provisions, as well as provisions that were already 
included in the proposed remediation pile regulation. In designating 
the performance standard the Agency looked to the standard in the CAMU 
rule as guidance (Sec. 264.552(c)).
    The performance standard finalized in today's rule 
(Sec. 264.552(d)(1)) supplements the decision factors for temporary 
units as proposed. The Agency believes that finalizing more than the 
decision factors provides the designating authority with more complete 
guidance for the establishment of protective design and operating 
criteria. Under the rule, the decision factors are elements that must 
be considered when establishing standards for the staging pile. The 
performance standard is the Agency's overall requirement for the 
construction and engineering of the unit. There were some commenters 
that suggested the Agency promulgate specific technical requirements 
for the staging piles. These comments appear to be based on the concern 
that the proposed remediation piles, which allowed treatment and longer 
term storage, did not have baseline standards. EPA believes that 
today's staging pile regulation, which allows short-term storage only, 
would not be improved by prescriptive standards due to the relatively 
low risk posed by the piles and the requirement that the Director take 
into account site-specific conditions in setting standards.
    The performance standard for staging piles has three parts. First, 
``the staging pile must facilitate a reliable, effective and protective 
remedy.'' (Sec. 264.552(d)(1)(i)) Second, ``the staging pile must be 
designed so as to prevent or minimize releases of hazardous wastes and 
hazardous constituents into the environment, and minimize or adequately 
control cross-media transfer, as necessary to protect human health and 
the environment (for example, through the use of liners, covers, run-
off/run-on controls, as appropriate),'' (Sec. 264.552(d)(1)(ii)). 
Finally, ``the staging pile must not operate for more than two years, 
except when the Director grants an operating term extension under 
paragraph (i) (entitled ``May I Receive an Operating Extension for a 
Staging Pile?'') of this section. You must measure the two-year limit, 
or other operating term specified by the Director in the permit, 
closure plan, or order, from the first time you place remediation waste 
into a staging pile. You must maintain a record of the date when you 
first placed remediation waste into the staging pile for the life of 
the permit, closure plan, or order, or three years, whichever is 
longer,'' (Sec. 264.552(d)(1)(iii)).
    Therefore, in designating a staging pile, the first consideration 
of the Director will be whether the pile will facilitate the 
implementation of a reliable, effective, and protective remedy 
(Sec. 264.554(d)(1)(i)). This criterion is designed to require a site-
specific showing that the premise behind allowing for these piles (see 
61 FR 18831) is satisfied at each site where they are used. By 
including this criterion, the Agency is emphasizing that the goal of 
today's staging pile regulation is not to undercut the protectiveness 
of the existing Subtitle C regime, but rather to assist in the 
execution of reliable, effective, and protective remedies.
    The second criterion requires that activities associated with the 
design and

[[Page 65915]]

operation of the staging pile must prevent or minimize releases of 
hazardous wastes and hazardous constituents into the environment, and 
minimize or adequately control cross-media transfer, as necessary to 
protect human health and the environment (Sec. 264.554(d)(1)(ii)). This 
portion of the performance standard is an outgrowth of the proposed 
remediation pile regulation, because it simply adds specificity to the 
proposed rule's requirement that the standards must be ``protective of 
human health and the environment'' (proposed Sec. 264.554(a)) and that 
the ``Director shall specify in the permit or order . . . any 
requirements for control of cross-media contaminant transfer'' 
(proposed Sec. 264.554(d)). Section 264.554(d)(1)(ii) also builds upon 
the fourth and sixth decision factors mentioned later in this section 
of the preamble (Sec. 264.554(d)(2)(iv) and (vi) which require the 
Director to consider the potential for releases from the unit and the 
potential for human and environmental exposure when establishing 
standards for the staging pile). A similarly worded performance 
standard was suggested by one of the commenters on the proposal. The 
Agency agrees with the commenter that it is advantageous to include a 
provision directly in the performance standard for staging piles, as is 
finalized in today's rule. The Agency emphasizes that minimizing or 
adequately controlling cross-media transfer (for example, transfer to 
air through volatilization or particulate matter) is vital to the 
protectiveness of a staging pile.21
---------------------------------------------------------------------------

    \21\ Consulting the Agency's Best Management Practices (BMPs) 
for Soil Treatment Technologies (EPA530-R97-007, May 1997) guidance 
document, which was developed to provide guidance on how to identify 
and minimize the potential for causing cross-media contamination 
during implementation of cleanup technologies for contaminated soils 
or solid media, is recommended to assist in ensuring that this 
portion of the performance standard is achieved.
---------------------------------------------------------------------------

    This second criterion is also included to ensure that there will be 
no unacceptable risks created by the storage of hazardous remediation 
waste in a staging pile either during the remedial activities or 
afterwards. Liners, covers, and run-off/run-on controls are all 
examples of design stipulations that might be appropriate in specific 
circumstances, and these examples have been included directly in the 
regulation to assist the Director. These examples, however, are in no 
way a definitive list of possible design stipulations that could be 
included in the permit, closure plan, or order, nor would they always 
be necessary. Depending on site-specific circumstances, ground water 
and air monitoring equipment may also be appropriate to ensure adequate 
attention to cross-media transfer from a staging pile. However, the 
Agency anticipates that this monitoring equipment will often be 
installed as part of the overall cleanup at the site rather than for 
the staging pile itself. In addition to the type of substantive 
standards and design criteria described above, the rule also allows the 
Director to specify operating requirements for the staging pile by 
providing that the Director must include ``standards.'' Examples of 
these operating requirements include appropriate inspection schedules 
and recordkeeping.
    The Agency believes that the Director will be able to make a 
determination of what design and operating requirements are necessary 
to prevent or minimize releases from the staging pile based on 
information from the facility owner/operator, site assessments, past 
overseeing agency experience, and standard good engineering practices. 
If the facility owner/operator does not provide the information 
necessary for an informed decision to be made regarding what 
requirements are protective, the staging pile should not be designated 
by the Director.
    One commenter suggested a ``no significant migration'' standard be 
included in the rule. The Agency agrees that a staging pile should be 
designed to prevent any significant additional migration of hazardous 
waste and hazardous constituents. However, EPA did not include this 
precise language in the final rule because EPA believes that the 
requirement that a staging pile be designed so as to prevent or 
minimize releases of hazardous waste and hazardous constituents into 
the environment and minimize or adequately control cross-media transfer 
will have an equivalent effect.
    The final performance criterion (Sec. 264.554(d)(1)(iii)) limits 
the use of staging piles to two years, unless a 180-day extension is 
provided, and establishes a recordkeeping requirement. Refer to the 
discussion later in this section on time limits for details of this 
provision.
2. Decision Factors for Staging Piles (Sec. 264.554(d)(2)
    In the proposal, EPA requested comment on whether to prescribe any 
specific design or operating standards for remediation piles or to 
allow the Director to establish requirements on a case-by-case basis 
using the decision factors specified for temporary units. The Agency's 
intent to use the slightly modified temporary unit decision factors, as 
expressed in the proposal, received no negative comments and 
consequently they are finalized in today's rule. The Agency continues 
to believe that these decision factors are reasonable and will result 
in sound decisions for staging pile design. Specifically, the rule 
requires the Director to consider the following factors in establishing 
the standards and design criteria for the staging pile:
    (1) Length of time the pile will be in operation;
    (2) Volumes of wastes to be stored;
    (3) Physical and chemical characteristics of the wastes to be 
stored in the unit;
    (4) Potential for releases from the unit;
    (5) Hydrogeological and other relevant environmental conditions at 
the facility which may influence the migration of any potential 
releases; and
    (6) Potential for human and environmental exposure to potential 
releases from the unit.
    EPA believes that these considerations will help ensure that the 
staging pile will be designed to protect human health and the 
environment.

G. May a Staging Pile Receive Ignitable, Reactive, or Incompatible 
Remediation Wastes? (Sec. 264.554(e))

    The final rule contains a new provision, Sec. 264.554(e), that 
addresses the handling of ignitable or reactive remediation wastes in a 
staging pile. This new provision is a modification of Sec. 264.256, the 
special requirements for ignitable and reactive wastes in a waste pile. 
Section 264.554(e) prohibits placement of ignitable or reactive 
remediation waste into a staging pile unless the waste is made non-
ignitable or non-reactive as these characteristics are defined in 
Sec. 261.21 and Sec. 261.23, while also complying with Sec. 264.17(b) 
(which lists reactions that precautions must be taken to prevent) or 
the waste is managed in such a way that it is protected from materials 
or conditions which may cause it to ignite or react. EPA expects that 
non-flowing wastes encountered during cleanup will rarely be ignitable 
or reactive.
    When they are, however, they clearly require continuing protection 
from conditions which may cause them to ignite or react. An important 
factor to note is that mixing of wastes in a staging pile is relatively 
common when storing large volumes of waste. Unless these wastes are 
rendered non-ignitable or non-reactive, the facility owner/operator may 
find it difficult to protectively manage these wastes in a staging 
pile. Reactive wastes may be particularly difficult to manage since a 
staging pile can be directly exposed to the

[[Page 65916]]

environment. The Agency will allow the management of ignitable or 
reactive wastes in a staging pile, as long as the wastes are protected 
from the material or conditions which may cause them to ignite or 
react. The modification to Sec. 264.256 makes the provision applicable 
to remediation waste in staging piles rather than hazardous waste in 
waste piles and enhances its readability. Also, the language modified 
from that of Sec. 264.256 does not allow waste to be treated, rendered, 
or mixed immediately after placement in a staging pile, although this 
language is included in the waste pile regulation (Sec. 264.256(a)).
    Since treatment is not permitted in a staging pile, this portion of 
the waste pile regulation was considered by the Agency to be 
inappropriate and therefore was not included in today's rule.

H. How Do I Handle Incompatible Remediation Wastes in a Staging Pile? 
(Sec. 264.554(f))

    The final rule also contains a new provision, (Sec. 264.554(f)), 
that deals with the handling of incompatible wastes in a staging pile. 
This provision is a modification of Sec. 264.257, the special 
requirement for incompatible wastes in waste piles. The modification 
makes the provision applicable to remediation waste in staging piles 
rather than hazardous waste in waste piles and enhances its 
readability. The potential dangers from the mixing of incompatible 
wastes include, but are not limited to, extreme heat, fire, explosion, 
and violent reaction. Clearly, the potential impacts on human health 
and the environment which could result from these conditions must be 
avoided.
    To this end, the regulation includes a provision that staging piles 
should not contain incompatible wastes unless precautions are taken to 
avoid the reactions listed in Sec. 264.17(b). The regulation also 
states that if remediation waste in a staging pile is stored near 
incompatible wastes, precautions must be taken to ensure that these 
materials are protected or separated from one another. Finally, for the 
same reasons as those provided above, today's regulation states that 
remediation waste must not be piled on the same base where incompatible 
wastes or materials were previously piled, unless the base has been 
decontaminated sufficiently to ensure compliance with Sec. 264.17(b).
    Although these provisions were not included in the proposed rule, 
EPA believes that it is reasonable to include them in today's final 
rule because the provisions do not create an additional regulatory 
burden for either the Director or facility owner/operator. The Director 
would normally examine the possibility of risk from ignitable, 
reactive, or incompatible wastes being placed in a pile before 
designating a pile, so these provisions simply serve to ensure that 
this caution will be exercised in every case.

I. Are Staging Piles Subject to Land Disposal Restrictions (LDR) and 
Minimum Technological Requirements (MTR)? (Sec. 264.554(g))

    Like placement of remediation waste into CAMUs, placement of 
remediation wastes into staging piles will not trigger RCRA LDRs. 
Because staging piles are generally a subset of units that, absent 
today's rule, would be CAMUs, this provision is based on the Agency's 
view, fully explained in the preamble to the CAMU rule, that placement 
into these units does not constitute ``land disposal'' under RCRA 
section 3004(k) (See 58 FR 8658, 8662 (February 16, 1993)). As stated 
in that preamble, EPA believes this interpretation is reasonable 
``since remedial areas are not a listed regulatory unit under 3004(k), 
because Congress recognized that the application of LDRs to remediation 
wastes might require a different framework than that developed for the 
application to as-generated wastes, and, . . . because the direct 
application of preventive standards to remediation wastes is often 
inappropriate and counterproductive.'' (See 58 FR 8662). Also, as 
explained in the preamble to the CAMU rule, staging piles would not be 
subject to the MTRs under section 3004(o), because the pile is not a 
land disposal unit subject to those requirements.

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

    The remediation pile provisions, as proposed, did not set limits on 
the amount of time that remediation waste could be in the pile, other 
than to say that these piles would be ``temporary'' and only available 
for use during remedial operations. The proposal requested comment on 
whether time limits and renewals that prescribe the lifetime of 
remediation piles should be set at the national level.
    Only one commenter agreed with the proposal that EPA should not set 
a specific limit, but instead allow the staging pile to operate 
indefinitely.
    All other commenters on this issue recommended that EPA set a 
specific time limit for operation of staging piles. Suggestions ranged 
from six months to three years, however, the majority of commenters 
recommended two years. Several commenters also suggested that EPA allow 
a limited extension of the time limit when necessary. Suggestions for 
extensions ranged from six months to three years.
    EPA has decided to impose a two-year time limit on staging piles, 
with the opportunity to obtain a six month extension, when necessary. 
EPA agrees with commenters who feel that there is a need to define 
``temporary'' in the context of staging piles. The Agency also agrees 
with commenters who argued that a two-year time limit is reasonable for 
the staging piles and therefore has promulgated this limit in today's 
rule. The Agency does not believe that staging piles should exist 
indefinitely or with an undefined ``temporary'' lifetime because these 
units might not be designed in a manner protective enough for the ``de 
facto'' disposal that might occur. In other words, if ``temporary'' was 
left as the only standard, the storage in staging piles could take 
place for such a long period of time that the risks to human health and 
the environment would be essentially equivalent to a disposal scenario, 
which the staging piles standards in today's rule are not designed to 
address. The Agency does not believe it is necessary to create 
standards in today's rule to accommodate a long-term storage scenario 
because long-term storage and disposal can be conducted in CAMUs and, 
as discussed below, the operations the Agency intends to accommodate in 
this rule--staging--can generally be conducted during the 2-year time 
period.
    EPA believes that a time limit that generally corresponds to the 
length of time needed for staging or storage activities at a site is 
appropriate. EPA consulted with program implementers at the Regional 
and State level who agreed that 2 years was an appropriate limit for 
staging piles.
    In response to commenters' suggestions, EPA has decided to allow a 
6-month extension for staging pile operation when necessary (see the 
preamble discussion for Sec. 264.554(i)). EPA again consulted with 
Regional and State program implementers who agreed that six months was 
an appropriate amount of time to allow for an extension. As discussed 
below in section K, EPA believes that six months provides an adequate 
balancing of interests in providing flexibility while ensuring that 
staging piles are indeed temporary.
    In practice, a facility owner/operator could request, or the 
Director could designate on his own initiative, a shorter lifetime for 
a staging pile and consequently the Director could set design and 
operating requirements that

[[Page 65917]]

would take into account this shorter period of storage. The Director is 
encouraged to establish a duration shorter than two years, when 
appropriate.
    Longer-term use of a staging pile, however, is much more similar to 
``disposal'' activities which provide a greater opportunity for 
releases. As stated in the ``Summary of Principal Changes from the 
Proposal'' section above, the Agency has concluded, for the purposes of 
today's rule, that land-based treatment activities, long-term storage, 
and permanent disposal are more appropriately addressed using the CAMU 
provisions in Sec. 264.552.
    One commenter suggested that a two-year time limit on staging piles 
is also consistent with the limits on the storage of prohibited wastes 
under Sec. 268.50, EPA's regulations implementing RCRA section 
3004(j).22 In response to this comment, which highlighted 
the relationship between the staging pile provisions and Sec. 268.50, 
the Agency today is also amending Sec. 268.50 to expressly provide that 
storage of hazardous wastes in approved staging piles is not subject to 
the prohibition contained in that section (Sec. 268.50(g)).
---------------------------------------------------------------------------

    \22\ RCRA section 3004(j) provides that wastes prohibited from 
land disposal may be stored ``solely for the purpose of the 
accumulation of such quantities of hazardous waste as are necessary 
to facilitate proper recovery, treatment or disposal.''
---------------------------------------------------------------------------

    Section 268.50 provides that hazardous wastes prohibited from land 
disposal may not be stored unless certain conditions are met. For 
treatment, storage, or disposal facilities, those conditions are that 
this storage takes place in tanks, containers or containment buildings 
and is ``solely for the purpose of accumulation of such quantities of 
hazardous waste as necessary to facilitate proper recovery, treatment, 
or disposal.'' In addition, dates of accumulation generally must be 
clearly marked and recorded.
    EPA believes an express exemption from these requirements (as 
opposed to amending them to add staging piles to the list of units in 
which storage may conditionally take place) will eliminate the need for 
regulatory agencies and site owner/operators to engage in unnecessarily 
duplicative factual findings, because the concerns underlying the 
requirements in Sec. 268.50 (that is, that storage of prohibited wastes 
only occur ``as necessary to facilitate proper recovery, treatment, or 
disposal'') will necessarily be satisfied during approval of the 
staging pile. Specifically, as discussed above, by imposing a two-year 
time limit on staging pile operation, today's rule is consistent with 
the time limits in Sec. 268.50 (and, by way of analogy, the two-year 
cap on case-by-case capacity variances under RCRA section 3004(h)(3)). 
In addition, staging piles will only be used during remediation, a 
process that is specifically designed to ``facilitate proper recovery, 
treatment or disposal'' of wastes. The final staging pile rule 
promulgated today will further ensure this result, since it 
specifically requires that staging piles only be approved where they 
will ``facilitate the implementation of a reliable, effective and 
protective remedy.''
    The final rule also makes clear that the operating term limit 
(Sec. 264.554(h)) is to be measured from the initial placement of 
remediation waste in a staging pile. The closure process must begin at 
the end of the operating term or extension term (if approved by the 
Director) for the staging pile. EPA believes that, to make this 
requirement implementable, a record must be kept which defines the date 
of initial placement of waste into the staging pile. Therefore, EPA has 
included a provision in the staging pile performance standard 
(Sec. 264.554(d)(2)(iii)) that requires that a record of initial 
placement date be kept by the facility owner/operator for the life of 
the permit, closure plan, or order or for three years, whichever is 
longer. This will aid in the enforcement of staging pile time limits by 
providing a specific date by which to measure how long remediation 
waste has been stored in the pile. The three-year period used in 
today's rule as the minimum period of record retention, is in keeping 
with the recordkeeping requirement of ``at least three years'' found in 
Sec. 270.30(j) (which outlines the monitoring and recordkeeping 
regulations applicable to all permits) and a number of other 
recordkeeping requirements in RCRA regulations (for example, 
Sec. 262.40).

K. May I Receive an Operating Term Extension for a Staging Pile? 
(Sec. 264.554(i))

    In the proposal, the Agency requested comment on whether any time 
limits placed on remediation piles should be renewable. In response, an 
operating term extension period was suggested by a number of 
commenters. Recommendations for the length of this extension period 
varied from six months to three years. The Agency agrees with these 
commenters in that it can be difficult to judge in advance the amount 
of time that will be necessary to store remediation wastes in 
furtherance of a remedy. EPA recognizes that in some cases unforeseen 
circumstances may dictate that a staging pile remain in service beyond 
the limit originally set in the permit, closure plan, or order. For 
example, unexpectedly large volumes of waste may need to be handled to 
complete the remedy, or the remedial process may be slowed by forces 
beyond the control of the facility owner/operator or Director. An 
extension would be appropriate, for example, when wastes being stored 
in a staging pile are to be taken to an off-site facility, but that 
facility no longer has the capacity, or is unwilling, to accept the 
wastes. Consequently, today's rule includes a provision, 
Sec. 264.554(i), that states the Director may provide one extension of 
up to 180 days as a modification of the original permit, closure plan, 
or order.
    To justify to the Director the need for an operating term 
extension, the facility owner/operator must provide sufficient 
information to enable the Director to make a determination that 
continued operation of the unit:
     Will not pose a threat to human health and the 
environment; and
     Is necessary to ensure timely and efficient implementation 
of remedial actions at the facility. In addition, the regulation states 
that the Director may, as a condition of the extension, specify further 
standards and design criteria in the permit, closure plan, or order, as 
necessary to ensure protection of human health and the environment. 
This language is based, in large part, on the time limit extension 
language for temporary units, which provides a one-year extension 
beyond a one-year operational limit (Sec. 264.553(e)). EPA believes 
that this language is both appropriate and reasonable for staging 
piles. The Agency believes that the language addresses the concerns of 
commenters who suggested, among other things, that the extension should 
be consistent with the extension in Sec. 264.553, especially since the 
temporary unit extension provision can only be approved after a showing 
that a time extension will not threaten increased environmental risk. 
The Agency agrees with these comments, as well as with other commenters 
who saw the need for an extension period to ensure that unexpected 
circumstances will be accommodated by the staging pile regulations. The 
Agency believes that the criteria that must be met before the Director 
grants an extension of the operating term for a staging pile are 
appropriate as they correspond to the overall goals of the staging pile 
regulation.
    The initial criterion, ensuring that continued operation of the 
unit will not pose a threat to human health and the environment, is a 
reasonable test to maintain the protective nature of the staging pile 
despite the increased

[[Page 65918]]

storage time. The second criterion allows the Director to specify 
further standards or design criteria for the staging pile if the 
increased storage time requires more protective or different 
specifications. EPA believes that it is unlikely that additional 
standards will be necessary for only a 180 day extension; however, this 
criterion will allow the Director to impose these standards in unusual 
circumstances. One commenter stated that the temporary unit extension 
provision ofSec. 264.553(e) was too prescriptive to be appropriate for 
remediation piles. This commenter felt that any extension should be 
approved or rejected based solely on site-specific considerations. 
However, EPA believes that the criteria finalized today leave the 
Director with ample discretion to consider site-specific factors in 
making decisions on extensions, and yet place appropriate limits on 
that discretion. The Agency also believes that limiting the number of 
extensions to one of up to 180 days will reduce the potential 
administrative burden that could be created by facility owner/operators 
seeking multiple extensions for staging pile operations, as well as 
ensuring that staging piles are indeed ``temporary.''
    Furthermore, if the facility owner/operator or Director can 
anticipate, before designating the staging pile, that additional time 
will be necessary for staging activities, EPA recommends the use of a 
CAMU instead of a staging pile. If the facility owner/operator and 
Director are not able to anticipate that a CAMU will be preferable to a 
staging pile, the option remains to designate an existing staging pile 
as a CAMU through the CAMU approval process. This might require 
modifications to the design of the staging pile to address the risk 
posed by longer-term storage. Modifications necessary to designate a 
CAMU from what was previously a staging pile might include leak 
detection systems, run-off controls, air emissions controls, ground 
water monitoring systems, and leachate collection systems. However, the 
specific modifications will depend on the nature of the unit and the 
future plans for it.

L. What Is the Closure Requirement for a Staging Pile Located in a 
Previously Contaminated Area? (Sec. 264.554(j))

    The preamble to the proposal stated that ``remediation piles would 
be required to close by removal of all wastes (i.e. `clean close').'' 
This requirement, however, was not explicitly stated in the proposed 
regulation. This created confusion with some commenters, who requested 
that ``clean closure'' be defined and stated clearly in the final rule. 
In response to these comments, explicit closure requirements are 
included in today's rule. EPA foresees two scenarios applicable to 
closure in which a staging pile might be designated: (1) in an area of 
previous contamination, with remediation waste consolidated from non-
contiguous areas of contamination (designation of a staging pile is not 
necessary if all the wastes are consolidated from within one area of 
contamination, see discussion below); and (2) in an uncontaminated area 
of the site. Consequently, the closure requirement is divided into two 
parts: Sec. 264.554(j), which applies to staging piles designated at 
contaminated areas of the site; and Sec. 264.554(k), which applies to 
staging piles designated at uncontaminated areas of the site.
    At closure of staging piles located in previously contaminated 
areas, the final rule requires the facility owner/operator to ``remove 
or decontaminate all remediation waste, contaminated containment system 
components, and structures and equipment contaminated with waste and 
leachate within 180 days after the expiration of the operating term of 
the staging pile.'' The Agency included this provision, which contains 
typical ``clean closure'' language (see Sec. 264.258(a)), to ensure 
that closure of staging piles at facilities is completed in a safe and 
protective manner, as well as within a reasonable time frame. The 180-
day time limit for removal and decontamination is an outgrowth of 
comments made requesting that the Agency ensure that temporary piles 
will indeed be temporary and of the intention expressed in the preamble 
to the proposal to require clean closure, a process under the Agency's 
regulations that must be complete within 180 days (Sec. 265.113). The 
Agency believes that a 180-day period is reasonable, as well as 
comparable to existing closure requirements in Parts 264 and 265.
    The closure standard for staging piles designated in previously 
contaminated areas differs from the typical clean closure standard in 
the way that any contaminated subsoils created by the staging pile will 
be addressed. 23 Today's standard, instead of simply 
requiring ``removal or decontamination,'' specifies that the facility 
owner/operator, ``must also decontaminate contaminated subsoils in a 
manner, and pursuant to a schedule, that the Director determines will 
protect human health and the environment.'' This change was made in 
response to a commenter who identified the utility of considering the 
closure of a pile as part of the ongoing remedial process at a site. 
The Agency was persuaded by this comment to design a standard that 
recognizes that staging piles will only be used in the cleanup context, 
where the staging piles will likely be an intermediate step towards the 
cleanup of a site. In addition, since the portion of the facility where 
the staging pile will be located will have been previously 
contaminated, it may be very difficult to distinguish this previous 
contamination from residues that may have been left by the staging 
pile. Therefore, in designing today's standard, the Agency felt it was 
appropriate to include a standard that would allow any cleanup of soils 
contaminated by the staging pile to be coordinated with the site 
remedy, rather than addressed under a distinct set of resource-
intensive requirements.
---------------------------------------------------------------------------

    \23\ Of course, EPA expects (and today's rule requires) that 
staging piles located in previously contaminated areas will be 
designed and operated in a manner that prevents or minimizes the 
release of additional contaminants to the degree technically 
practicable. A prime objective of remedial waste management is 
preventing further releases that will require cleanup. Consequently, 
EPA fully expects that at the majority of facilities that use 
staging piles, no decontamination of subsoils will be necessary due 
to the protective structure of the site-specific staging pile design 
and operating standards. However, as with other units regulated 
under Subtitle C, the Agency acknowledges the possibility that 
residues can remain after all remediation waste is removed from the 
pile and containment system components are decontaminated.
---------------------------------------------------------------------------

    Because the final remedy at the site may not occur within 180 days 
after the operating term of the staging pile expires, the closure 
requirement does not include a time limit for this decontamination of 
contaminated subsoils. It is the Agency's expectation that the 
decontamination of any contaminated subsoils will be consistent with 
the overall remedy at the site. The Agency expects that the Director 
will often incorporate the schedule and cleanup levels for the chosen 
remedy at the site as the closure standards for the staging pile in the 
authorizing vehicle (for example, the RAP). By providing that 
contaminated subsoils must be decontaminated ``in a manner, and 
pursuant to a schedule, that the Director determines is necessary to 
protect human health and the environment,'' the Agency believes it is 
providing essential flexibility, while at the same time ensuring that 
the use of a staging pile does not increase contamination where it was 
located. The Agency believes that this design fulfills the goal of 
protection of human health and the environment in these unique 
circumstances.

[[Page 65919]]

M. What Is the Closure Requirement for a Staging Pile Located in an 
Uncontaminated Area? (Sec. 264.554(k))

    Under today's rule (Sec. 264.554(k)), staging piles located in 
previously uncontaminated areas of the site must be closed according to 
the closure requirement for waste piles in Sec. 264.258(a) as well as 
the closure performance standard of Sec. 264.111 (or the requirements 
in Sec. 265.258(a) and Sec. 265.111) within 180 days after the 
expiration of the operating term of the staging pile (Part 265 is 
applicable to staging piles designated at interim status facilities). 
The Agency does not prefer the siting of staging piles in previously 
uncontaminated areas of the facility, yet acknowledges that site 
conditions may dictate such a siting (for example, to site the staging 
pile outside of a floodplain or lagoon area). As stated above, the 180-
day time limit for removal and decontamination is, in part, in response 
to comments made requesting the Agency to ensure that staging piles 
would indeed be temporary. It should be noted that the reference to 
``post-closure escape of hazardous wastes'' in the Sec. 264.111 and 
Sec. 265.111 does not eliminate the need for clean closure of staging 
piles. As stated in Sec. 264.258(a) and Sec. 265.258(a), all waste 
residues, contaminated containment system components, contaminated 
subsoils, and structures and equipment contaminated with waste and 
leachate must be removed or decontaminated. The closure requirements 
that a staging pile located in a previously uncontaminated area of the 
site must fulfill should be included, according to currently applicable 
procedures, directly into the permit, closure plan or order in which 
the staging pile is designated to ensure a clear and enforceable 
outcome.

N. How May My Existing Permit (for Example, RAP), Closure Plan, or 
Order Be Modified To Allow Me To Use a Staging Pile? (Sec. 264.554(l))

    The proposal did not specifically address the process for 
designating a staging pile at an already permitted facility. EPA 
anticipates that staging piles will most often be designated as part of 
the approval of remedy selection at a site; and therefore, like 
selection of the remedy, staging piles will generally be approved using 
the Agency's permit modification procedures. To add certainty to this 
process, today's rule specifically requires that incorporation of a 
staging pile, or staging pile extension, into an existing permit be 
conducted according to the Agency-initiated permit modification 
procedures (Sec. 270.41) or the Class 2 permit modification procedures 
under Sec. 270.42. The Agency believes that a Class 2 designation is 
generally appropriate as it corresponds to the Class 2 permit 
modification necessary for the approval of temporary units, a close 
analogue to staging piles. If the Agency did not specify permit 
modification procedures in today's rule, the procedure outlined in 
Sec. 270.42(d) would have been necessary, requiring a Class 3 
modification unless the modification requestor could have provided 
information sufficient to support the requested classification. EPA 
believes that it is preferable to explicitly state that Class 2 
procedures should be used to designate a staging pile or staging pile 
operating term extension, rather than default to Sec. 270.42(d) 
procedures. Furthermore, the Class 3 modification procedures that would 
be required under Sec. 270.42(d) are inappropriate for staging piles. 
Class 3 permit modification procedures are designed for changes that 
substantially alter the facility or its operations 
(Sec. 270.42(d)(2)(iii)). EPA believes the additional requirements in 
the Class 3 procedures would unnecessarily delay the process of 
designating a staging pile, diminishing the ability of staging piles to 
facilitate the remedial process. The subject of what permit 
modification procedure to use when designating a staging pile did not 
surface in the comments on the proposal.
    Other than through a traditional permit modification, a staging 
pile or staging pile operating term extension can also be designated 
through modification of a RAP, closure plan, or order. As finalized by 
today's rule, RAPs are a new type of permit in which staging piles can 
be approved. Because traditional permit modification procedures are 
available when incorporating a staging pile or staging pile operating 
term extension into a traditional RCRA permit, EPA also believes it is 
reasonable to allow staging piles and staging pile operating term 
extensions, designated through a RAP, to be modified through RAP 
modification procedures. Therefore, as stated in the staging pile 
regulations at Sec. 264.554(l)(2), ``[t]o modify a RAP to incorporate a 
staging pile or staging pile operating term extension, you must comply 
with the RAP modification requirements under Secs. 270.170 and 
270.175.'' Although this language was not used in the proposed 
remediation pile regulation, it is an outgrowth of the RAP section of 
the proposal to use the RAP modification procedures to incorporate 
staging piles or staging pile operating term extensions, similar to the 
way traditional permit modification procedures would be used.
    In addition, modification of a closure plan to incorporate a 
staging pile or staging pile operating term extension should proceed 
according to the requirements in Sec. 264.112(c) at permitted 
facilities or the requirements in Sec. 265.112(c) at interim status 
facilities. As discussed in the ``How is a Staging Pile Designated?'' 
section of today's preamble, the closure plan is an additional 
mechanism by which a staging pile can be designated. In keeping with 
the use of closure plans, the Agency believes that the use of the 
established closure plan modification procedures cited above is 
reasonable.
    Finally, modification of an order to incorporate a staging pile or 
staging pile operating term extension must occur according to the terms 
of the order and the applicable provisions of Sec. 270.72 (a)(5) or 
(b)(5). Any inclusion will be governed by the standards promulgated 
today and, as noted below, the Agency's policy on public participation 
and corrective action orders should be followed.
    The Agency received no comments on the proposal regarding the use 
of these, or any other, modification procedures to designate a staging 
pile or staging pile operating term extension.

O. Is Information About the Staging Pile Available to the Public? 
(Sec. 264.554(m))

    Section 264.554(m) requires the Director to document the rationale 
for designating a staging pile or operating term extension for a 
staging pile and to explain the basis for the designation. The 
rationale for these decisions should be incorporated as part of the 
Statement of Basis in a permit, closure plan or order modification. 
Documentation of staging pile decisions is analogous to the 
documentation the Agency currently makes to support the selection of a 
remedy. Therefore, if a staging pile is incorporated as part of a final 
remedy, this explanation would be incorporated into the Statement of 
Basis for the remedy under a permit modification, closure plan or under 
an order. The staging pile rationale, as determined by the Director, 
will be available to the public through the appropriate public 
participation process. This requirement was not included in the 
proposal, but is intended simply to clarify and emphasize that staging 
pile decisions must be documented and explained as part of the existing 
notice and comment procedures for orders, permits, and closure plans. 
EPA believes that documenting the designation rationale is necessary to 
ensure that the public

[[Page 65920]]

has access to information relevant to the designation of a staging pile 
which is both substantial and clear. The Agency believes that including 
regulatory language to this effect is in keeping with EPA policy with 
regard to the importance of meaningful public 
participation.24
---------------------------------------------------------------------------

    \24\ For more information see the September 1996 RCRA Public 
Participation Manual, Chapter 4, EPA530-R-96-007.
---------------------------------------------------------------------------

    Public participation during the staging pile designation process, 
when implemented through the traditional (non-RAP) permit process, will 
proceed as prescribed in the Class 2, or Agency initiated, permit 
modification procedures. If the staging pile is designated in an order, 
it is the Agency's current policy that the order provide a level of 
public participation and comment comparable to that provided for in a 
permit modification (see RCRA Public Participation Manual, Chapter 4; 
and ``Corrective Action for Releases from Solid Waste Management Units 
at Hazardous Waste Management Facilities; Proposed Rule,'' 61 FR 19432; 
(19453-19454) (May 1, 1996)). Since a staging pile has been designated 
as a Class 2 permit modification, these procedures should be used for 
public participation under an order. Documentation should be made 
available to the public through the order approval or order 
modification process.

P. What Is the Relationship Between Staging Piles, Corrective Action 
Management Units, and the Area of Contamination Policy?

    The CAMU rule provides flexibility to EPA and implementing States 
to specify site-specific design, operating, and closure/post closure 
requirements for units used for land-based storage, or for treatment of 
wastes that are generated during cleanup at a RCRA facility. The CAMU 
regulations also specify requirements for units that are used as long-
term repositories for cleanup wastes. The proposed remediation piles 
were intended to replace, to some extent, the flexibility that would be 
lost if the CAMU rule was withdrawn and the use of CAMUs was no longer 
available. However, as discussed more fully above, the Agency believes 
that, although CAMUs are retained in today's rule, staging piles will 
be a useful part of a remedial strategy in cases where waste is 
temporarily staged during remediation.
    The staging piles provisions in today's rule will not affect 
current implementation of the AOC policy. The AOC policy is an 
interpretation of the statutory RCRA term, ``land disposal'' (section 
3004(k)). The AOC policy, first elucidated in the March 8, 1990 
``National Oil and Hazardous Substances Pollution Contingency Plan 
(NCP, 55 FR 8758-8760),'' equates dispersed areas of contamination with 
RCRA landfills, and clarifies that hazardous wastes may be moved within 
the AOC without triggering LDRs.25 The Agency anticipates 
that staging piles will aid in situations in which the AOC policy does 
not apply. For example, a staging pile will be a valuable option in 
cases where a site has non-contiguous areas of contaminated soil, and 
where waste is being staged in a pile within one of the areas prior to 
further management. A staging pile will allow for consolidation of 
remediation waste into the pile without triggering RCRA LDRs. In cases 
where a facility owner/operator would like to consolidate remediation 
waste within one area of contamination, this can be accomplished under 
the AOC policy, and therefore a staging pile would not be necessary.
---------------------------------------------------------------------------

    \25\ For more information consult the March 13, 1996 Memorandum: 
``Use of the Area of Contamination (AOC) Concept During RCRA 
Cleanups,'' from Michael Shapiro, Director Office of Solid Waste, 
Stephen D. Luftig, Director, Office of Emergency and Remedial 
Response, and Jerry Clifford, Director, Office of Site Remediation 
Enforcement to RCRA Branch Chiefs and CERCLA Regional Managers.
---------------------------------------------------------------------------

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

    This final rule retains the regulations for Corrective Action 
Management Units (CAMUs) promulgated on February 16, 1993 at 
Sec. 264.552 (see 58 FR 8658).
    The CAMU regulations allow EPA to impose site-specific standards 
for on-site units used to manage remediation wastes. As discussed in 
the preamble of that final rule, the CAMU regulations were adopted by 
EPA to provide remedial decision-makers with flexibility to expedite 
and improve remedial decisions by removing barriers to cleanup created 
by RCRA hazardous waste requirements--specifically, the LDRs in Part 
268 and the MTRs in Parts 264 and 265 applicable to land-based units . 
As is discussed in the preamble to the CAMU rule, the Agency believed 
(and still believes) that these Subtitle C requirements, when applied 
to remediation wastes, can act as a disincentive to more protective 
remedies, and can limit the flexibility of a regulatory decision maker 
in choosing the most practicable remedy at a specific site (see 58 FR 
8658 at 8660).
    Under the final CAMU regulations, LDRs do not apply to CAMUs 
because placement of remediation wastes into or within a CAMU does not 
constitute land disposal of hazardous waste, and MTRs do not apply 
because consolidation or placement of remediation wastes into or within 
a CAMU does not constitute creation of a unit subject to MTRs (see 58 
FR 8658 at 8661). The purpose of the CAMU regulations is to provide for 
more and improved cleanup of wastes, thus, providing increased 
protection of human health and the environment (see 58 FR 8658 at 
8659).
    While the CAMU regulations provided some flexibility to address the 
problems described above, the April 29, 1996 HWIR-media proposal was 
intended to be a more comprehensive response to the problems faced when 
applying traditional RCRA Subtitle C standards to the management of 
remediation wastes. In developing the HWIR-media proposal, EPA 
evaluated the CAMU regulations in the context of the proposed 
provisions and recognized that the proposed revisions to Part 269 in 
the HWIR-media rule, if promulgated, would provide flexibility similar 
to that provided by the CAMU regulations. EPA considered that the CAMU 
regulations might not be necessary if the HWIR-media proposal was 
promulgated, and thus the Agency proposed to withdraw the CAMU 
regulations if the proposed revisions to Part 269 were promulgated. The 
Agency noted in that preamble, however, that it did not intend to 
withdraw the CAMU regulations without, at the same time, substituting 
one of the two major options proposed in the HWIR-media proposal in its 
stead. The preamble of the proposed HWIR-media rule made clear that the 
Agency believed the CAMU regulations provided needed flexibility to 
remediation sites, and that the Agency intended to withdraw the CAMU 
regulations only if the site-specific flexibility provided in the CAMU 
rule would be preserved by the final HWIR-media rule (see 61 FR 18780 
at 18829).
    When EPA promulgated the CAMU final regulations in 1993, the Agency 
explained that, in implementing CAMUs, the Agency would have a 
preference for ``treatment-based remedies'' and that ``long-term 
reliability and protectiveness of remedial activities is directly tied 
to effective treatment of wastes that pose future release threats'' 
(see 58 FR 8658 at 8670). In retaining the CAMU regulations, EPA does 
not alter that long-standing position and further notes that it is 
consistent with EPA's coordination and ``principle of parity'' between 
RCRA and CERCLA cleanup activities (see Memorandum from Steven A. 
Herman and Elliott P. Laws to RCRA/CERCLA Policy Managers,

[[Page 65921]]

September 24, 1996, entitled ``Coordination Between RCRA Corrective 
Action and Closure and CERCLA Site Activities''). EPA considers the 
CAMU requirements, and in particular Sec. 264.552(c)(6), as the 
functional equivalents of CERCLA's expectation that treatment should be 
used, whenever practicable, to address principal threats posed by a 
site (see 40 CFR 300.430(a)(1)(iii)(A)). EPA continues to believe that 
the implementation of the CAMU regulations, as described above, 
enhances protection of human health and the environment.
    While EPA recognized that the proposed HWIR-media rule would have 
provided flexibility similar to that provided by the CAMU regulations, 
EPA also recognized that the proposed rule applied to a more limited 
spectrum of waste--the proposed rule covered only contaminated media, 
whereas the CAMU regulations allowed all types of cleanup wastes to be 
managed. Thus, when it proposed to withdraw the CAMU regulations, the 
Agency also requested comment on what benefits might accrue if the CAMU 
rule were retained, and on what the ramifications might be if the final 
rule failed to provide the degree of relief that the CAMU rule has 
provided.
    A majority of commenters favored the retention of the CAMU 
regulations. In many cases, commenters favored the retention of the 
CAMU regulations, even if EPA promulgated extensive regulatory reforms 
in this final rule. (Two commenters voiced their support for withdrawal 
of the CAMU rules, but did not explain their specific objections). Many 
commenters argued that EPA had failed to articulate a persuasive 
rationale for removing the CAMU regulations.
    Many commenters on the proposal to withdraw the CAMU regulations 
believed that the CAMU regulations are important and should be retained 
because the proposed HWIR-media rule would have been limited to 
contaminated media. Commenters pointed out that contaminated debris, 
remediation sludges, and other waste generated as part of corrective 
action activities would not qualify for any site-specific flexibility 
that might be provided by the final HWIR-media rule. Without the CAMU 
regulations, commenters believed, the site decision makers would lose a 
large amount of flexibility (that is, LDR/MTR relief). One commenter 
pointed out that, because the HWIR-media proposal would only have 
applied to contaminated media, withdrawing the CAMU regulations would 
create a disincentive to remediation of non-media wastes. EPA agrees 
with these commenters.
    This final rule does not include the extent of additional 
flexibility for remediation wastes that EPA anticipated when it 
proposed to withdraw the CAMU provisions. As is discussed in section II 
of this preamble, either the Bright Line or the Unitary approach of the 
proposed rule would have exempted certain remediation wastes from 
Subtitle C requirements (such as LDRs and MTRs), and subjected them, 
instead, to site-specific requirements. Neither of those options is 
promulgated in this final rule; thus, this type of flexibility is 
currently available only to remediation wastes managed in CAMUs. EPA 
believes this flexibility is vital to remove impediments to cleanup 
imposed by certain Subtitle C requirements. For these reasons, EPA is 
retaining the CAMU regulations in this final rule.
    Since the promulgation of the CAMU regulations, just more than 30 
CAMUs have been approved by the Agency. Though this small number might, 
on its face, appear to indicate that CAMUs have not proved useful to 
the regulated community, EPA believes, and commenters on the proposed 
HWIR-media rule verified, that this number is misleadingly low. EPA 
believes, and again commenters verified, that litigation on the CAMU 
regulations 26 has resulted in uncertainty about the future 
of CAMUs and, consequently, provides a disincentive to their use. Thus, 
despite the low number of CAMUs approved to date, EPA continues to 
believe that CAMUs provide a valuable tool to promote more and better 
cleanup of remediation wastes.27 In fact, EPA expects that 
the use of CAMUs will increase as more corrective action sites move to 
the remedy selection phase, and the Agency strongly encourages States 
who are the major implementers of the corrective action program, to 
adopt and take advantage of this mechanism for cleanup.
---------------------------------------------------------------------------

    \26\ On May 14, 1993, a petition for review of the final CAMU 
rule was filed with the U.S. Court of Appeals for the District of 
Columbia Circuit (see Environmental Defense Fund v. EPA No. 93-1316 
(D.C. Cir.)). Petitioners challenged both the legal and policy basis 
for the final CAMU regulations. On October 27, 1994, the litigation 
was stayed pending EPA's publication of a final HWIR-media rule, to 
allow parties to determine whether the final rule would resolve 
issues raised in the petition for review.
    \27\ The October 27, 1994 stay of the CAMU litigation provided 
that within 91 days after the final HWIR-media rule is published in 
the Federal Register, the parties will inform the court whether they 
intend to dismiss the petitions for review, enter into settlement 
discussions, or proceed with the litigation. Thus, the litigation 
should be resolved in the near future, thereby removing the 
uncertainty surrounding implementation of the CAMU regulations.
---------------------------------------------------------------------------

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

A. What Is the Dredged Material Exclusion?

    Today's final rule contains an exclusion from the definition of 
hazardous waste for dredged material subject to a permit that has been 
issued under section 404 of the Federal Water Pollution Control Act 
Amendments of 1972 as amended by the Clean Water Act of 1977 (CWA) or 
under section 103 of the Marine Protection, Research, and Sanctuaries 
Act (MPRSA, also known as the Ocean Dumping Act).28 EPA 
proposed this change to reduce potential overlaps between the CWA or 
MPRSA and RCRA regulation of dredged material disposal. At present, if 
dredged material proposed for disposal in the aquatic environment is 
contaminated or suspected of being contaminated with hazardous waste, 
the potential application of both RCRA Subtitle C regulations and 
dredged material regulations under CWA or MPRSA complicates efficient 
assessment and management of dredged material. Today's rule eliminates 
the overlap of RCRA Subtitle C with the CWA and MPRSA programs by 
excluding dredged material managed under a CWA or MPRSA permit from 
RCRA Subtitle C, while ensuring an accurate and environmentally sound 
evaluation of any potential impacts to the aquatic environment. This 
exclusion will not alter existing practice significantly, but it 
clarifies regulatory roles within EPA in an effort to avoid duplication 
of administrative efforts and is authorized under RCRA section 1006.
---------------------------------------------------------------------------

    \28\ ``Permit'' also includes the administrative equivalent of a 
CWA or MPRSA permit for U.S. Army Corps of Engineers' civil works 
projects.
---------------------------------------------------------------------------

    The U.S. Army Corps of Engineers (``Corps'') and other entities 
must dredge large volumes of sediment and other materials to maintain 
navigable waterways, ports and marinas. Dredged material can be 
mechanically or hydraulically dredged, and disposed of by barges or 
pipelines into river channels, lakes, and estuaries. Of the total 
amount of dredged material excavated, approximately one-fifth is 
disposed of in the ocean at designated sites in accordance with section 
103 of the MPRSA. Most of the remaining dredged material is discharged 
into waters of the United States, either in open water, at confined 
disposal facilities (CDFs), or for beneficial uses, which are all 
regulated under the CWA. Any discharge of dredged material that

[[Page 65922]]

occurs in upland areas and has return flow to waters of the United 
States is regulated under the CWA. However, if upland-disposed dredged 
material were to have no return flow to waters of the United States, as 
defined by CWA section 404, that dredged material would not be 
regulated under the MPRSA or CWA, and is not, therefore, subject to the 
exclusion under today's rule. 29
---------------------------------------------------------------------------

    \29\ Ground water flow is not considered return flow under CWA 
section 404 unless there is a ``direct hydrogeological connection'' 
to a surface water body.
---------------------------------------------------------------------------

B. Regulation of Dredged Material Under CWA and MPRSA

    Section 404 of the CWA establishes a permit program to regulate the 
discharge of dredged material into waters of the United States that is 
administered by the Corps and EPA. Proposed discharges must comply with 
the environmental criteria provided in 40 CFR part 230 to be authorized 
by a CWA 404 permit. The EPA and Corps regulations under section 404 
define dredged material as ``material that is excavated or dredged from 
waters of the United States.'' In addition to such discharges as open 
water disposal from a barge, the section 404 regulations specifically 
identify the runoff or return flow from a contained land or water 
disposal area into waters of the United States as a discharge of 
dredged material. In most cases, this type of discharge occurs from a 
weir and outfall pipe to drain water from a confined disposal facility, 
including the water entrained with the solid portion of the dredged 
material discharged at the site and from rainwater runoff.
    The MPRSA regulates the management of material, including dredged 
material, that will be dumped into ocean waters. Section 102 of the 
MPRSA requires that EPA, in consultation with the Corps, develop 
environmental criteria for reviewing and evaluating applications for 
ocean dumping permits. Section 103 of the MPRSA assigns to the Corps 
the responsibility for authorizing the ocean dumping of dredged 
material, subject to EPA review and concurrence. In evaluating proposed 
ocean dumping activities, the Corps is required to determine whether 
these proposals comply with EPA's ocean dumping criteria (40 CFR parts 
220-228).

C. Dredged Material and RCRA Applicability

    RCRA regulates the management of hazardous wastes at treatment, 
storage, and disposal facilities (TSDFs). Hazardous wastes are a subset 
of solid wastes. A solid waste is considered hazardous for regulatory 
purposes if it is listed as hazardous in RCRA regulations or exhibits 
any of four hazardous waste characteristics: ignitability, corrosivity, 
reactivity, or toxicity. Dredged material could trigger RCRA's Subtitle 
C requirements by exhibiting any of the four characteristics or by 
containing a listed hazardous waste. Environmental media (such as the 
sediments which make up dredged material) is not itself waste, but is 
sometimes contaminated with hazardous waste and must be managed as a 
hazardous waste when it exhibits a characteristic or ``contains'' a 
listed waste. These media would be subject to the RCRA requirements 
applicable to the contaminated waste. As a practical matter, naturally 
occurring sediments will not normally be associated with any specific 
industrial waste stream, so as to ``contain'' listed waste. 
Consequently, the most likely means by which dredged sediments could 
become subject to RCRA Subtitle C regulation is by failing one of the 
tests for characteristic hazardous waste. Given the nature of 
sediments, they would be most likely to become subject to RCRA Subtitle 
C if they fail toxicity testing (that is, Toxicity Characteristic 
Leaching Procedure, or TCLP). In fact, dredged sediments from 
navigational dredging projects very rarely, if ever, fail TCLP tests. 
In all but a very small number of cases, RCRA has not been applied in 
practice to proposed discharges of dredged material. Nevertheless, as 
asserted by the commenters, the potential applicability of RCRA 
Subtitle C requirements has been a concern at many dredging operations.
    The Agency is confident that today's exclusion will promote 
efficient handling of dredged material since future use of the TCLP 
will not be necessary for dredged material subject to a permit issued 
under CWA Section 404 or MPRSA Section 103. Specifically, today's rule 
will eliminate the unnecessary expense and effort, currently borne by 
the Corps and other entities, of applying the TCLP to large volumes of 
dredged material. The Corps and other entities typically apply testing 
procedures under CWA and MPRSA that are better suited to the chemical 
and biological evaluation of dredged material disposed of in the 
aquatic environment, where the vast majority of dredged material is 
managed. These tests are specifically designed to evaluate effects such 
as the potential contaminant-related impacts associated with the 
discharge of dredged material into oceans and waterways of the United 
States. Thus it is appropriate to assess and manage dredged material 
under the aquatic testing and management protocols developed by the 
Corps and EPA under the MPRSA and CWA.

D. Determination of Regulatory Jurisdiction

    Today's rule establishes an integrated approach to the regulation 
of dredged material disposal that will avoid duplicative regulatory 
processes while ensuring an accurate, appropriate, and environmentally 
sound evaluation of potential impacts to the environment. This approach 
is authorized under section 1006(b) of RCRA, which states that ``the 
Administrator * * * shall avoid duplication, to the maximum extent 
practicable, with the appropriate provisions of * * * the Federal Water 
Pollution Control Act (CWA), * * * the Marine Protection, Research and 
Sanctuaries Act, * * *, and such other Acts of Congress as grant 
regulatory authority to the Administrator.'' Section 1006(b) of RCRA 
calls for the provisions of RCRA to be integrated with other statutes, 
including the CWA and the MPRSA, to avoid duplication when the 
integration ``can be done in a manner consistent with the goals and 
policies expressed'' in RCRA and the other Acts. Applying the RCRA 
Subtitle C program together with the CWA and MPRSA permitting programs 
can be redundant and unduly burdensome, and may cause unnecessary 
procedural difficulties (for example, by requiring duplicate permit 
applications and procedures). It is also possible that the duplicative 
nature of the programs could in fact increase environmental risks by 
causing delays in proper disposal. The Agency believes that today's 
rule is appropriate and consistent with the goals and policies in each 
of these statutes.
    The Agency believes that the CWA and MPRSA permit programs protect 
human health and the environment from the consequences of dredged 
material disposal to an extent that is at least as protective as the 
RCRA Subtitle C program. These programs incorporate appropriate 
biological and chemical assessments to evaluate potential impacts on 
water column and benthic organisms, and the potential for human health 
impacts caused by food chain transfer of contaminants. As improved 
assessment methods are developed, they can be incorporated into these 
procedures. The programs also make available appropriate control 
measures (for example, 40 CFR 230.72) for addressing contamination in 
each of the relevant pathways.
    The Agency believes that RCRA Subtitle C coverage of dredged 
material

[[Page 65923]]

disposal in the aquatic environment, whether or not this disposal is 
considered to be ``land disposal'' under RCRA, is duplicative and 
unnecessary when considered alongside the CWA and MPRSA coverage of 
these activities. The overriding goal of each of the three statutory 
programs is to protect human health and the environment, and the CWA 
and MPRSA programs achieve this goal appropriately by addressing the 
proposed aquatic disposal of dredged material.
    The exclusion also applies in the case of a Corps civil works 
project which receives the administrative equivalent of a CWA or MPRSA 
permit, as provided for in Corps regulations. This regulatory language 
refers to the fact that the Corps does not process and issue permits 
for its own activities, but authorizes its own discharges of dredged or 
fill material by applying the same applicable substantive legal 
requirements, including public notice, opportunity for public hearing, 
and application of the section 404(b)(1) guidelines or MPRSA criteria. 
EPA has the authority to develop environmental guidelines and the 
authority to prohibit or conduct further review of a proposed discharge 
by the Corps, in the same manner as it can with a private permit 
applicant. Thus, the exclusion in today's rule includes CWA and MPRSA 
permits, as well as their administrative equivalents in the case of 
Corps civil works projects.

E. Clarification of Future Practice

    With the promulgation of today's rule, the regulation of dredged 
material will generally proceed in one of the following two ways, with 
the vast majority of activities expected to fall under the first 
example:
    1. If the dredged material is subject to a permit that has been 
issued under CWA section 404 or MPRSA section 103, RCRA Subtitle C 
requirements do not apply.
    2. If the dredged material disposal is not subject to a CWA section 
404 or MPRSA section 103 permit, RCRA Subtitle C requirements may 
apply. (For example, if dredged material were to be disposed in upland 
facilities with no runoff or return flow to waters of the United 
States, this material would not be under the jurisdiction of the CWA or 
MPRSA and therefore would be subject to RCRA Subtitle C if it meets the 
definition of an RCRA hazardous waste.)
    For dredged material covered by a CWA or MPRSA permit, the 
combination of statute, Federal regulations, and Regional guidance, 
along with the testing and management protocols that have been 
developed jointly by EPA and the Corps, will be adequate to address 
potential contaminant-related impacts in both ocean and inland waters. 
Examples of the existing testing and management protocols include: 
Evaluation of Dredged Material Proposed for Discharge in Waters of the 
U.S.--Testing Manual (EPA-823-B-98-004) and Evaluation of Dredged 
Material Proposed for Ocean Dumping--Testing Manual (EPA-503-B-91-001), 
which contain current procedures on implementing the dredged material 
testing requirements under the CWA and MPRSA respectively. The manuals 
contain tiered evaluation systems that include, as appropriate: 
physical analysis of sediment; chemical analysis of sediment, water, 
and tissue; bioassay tests; and bioaccumulation tests of contaminant 
impacts. EPA believes that CWA and MPRSA permits coupled with these 
testing manuals and relevant Regional guidance will ensure the 
protective management and discharge of dredged material.

F. Comments on the Dredged Material Exclusion

    Comments from 18 sources mentioned the dredged material exclusion. 
These sources included various industries and trade groups, as well as 
federal and state agencies. These comments are included in the record 
and are available for review in the RCRA docket. Commenters generally 
supported the exclusion of dredged material from RCRA Subtitle C 
regulation when the discharge is covered by a permit issued under the 
CWA or MPRSA. There was also general concurrence among commenters that 
this exclusion would avoid current unnecessary and duplicative 
regulation under RCRA. The proposed dredged material exclusion received 
only one comment that could be considered adverse. The comment was from 
a state environmental agency and addressed only a portion of the 
exclusion. The commenter stated that dredged material disposed upland 
should not be excluded from RCRA Subtitle C requirements. EPA agrees 
with this concern when there would be no return flow to waters of the 
United States since, under these circumstances, CWA section 404 or 
MPRSA 103 permits would not be issued. However, for the reasons 
provided in today's rule, EPA does not agree with the commenter in 
cases where there is return flow to waters of the United States and the 
dredged material is subject to a permit under CWA section 404 or MPRSA 
section 103. Moreover, the commenter provides no rationale as to why 
dredged material disposed upland under a CWA section 404 or MPRSA 
section 103 permit should not be excluded from the definition of 
hazardous waste. Therefore, EPA has finalized the rule as proposed. In 
addition to this comment, several commenters raised further issues that 
are outlined and discussed below.

G. Dredged Material as a Solid Waste

    The Agency proposed that the dredged material exclusion apply only 
to the hazardous waste requirements of RCRA Subtitle C and not to the 
solid waste requirements of RCRA Subtitle D. Today's final rule adopts 
this approach as proposed.
    Some commenters noted that the context and wording of the proposed 
dredged material exclusion implied that all dredged material is solid 
waste. They were concerned that excluding dredged material from the 
definition of hazardous waste could be interpreted to mean that all 
dredged material is inherently a hazardous waste, and consequently, 
also a solid waste. They believe that is not the case, and asked EPA to 
clarify this matter in the final rule.
    EPA agrees with these comments. Nothing in the proposal or in 
today's final rule is meant to imply that dredged material is always a 
solid waste. Dredged material, which is media, may or may not contain a 
RCRA solid or hazardous waste. Dredged material should not be assumed, 
a priori, to contain a solid waste and today's rule does not expand the 
scope of dredged material regulation under RCRA.
    In cases where dredged material may be both a solid and a hazardous 
waste, today's rule excludes these materials from the hazardous waste 
requirements only. Two commenters requested that the dredged material 
exclusion extend to all aspects of RCRA (that is, that dredged material 
be excluded not only from hazardous waste requirements, but also from 
solid waste requirements). EPA has not adopted this suggestion. While 
EPA believes that excluding dredged sediments from Subtitle C 
regulation is appropriate, the Agency is not persuaded that these 
sediments should be excluded from all RCRA jurisdiction. It would be 
inappropriate to extend the exclusion to Subtitle D because, in certain 
circumstances, this exclusion would remove the ability of states to 
exercise authority over dredged material under their RCRA Subtitle D 
programs. (For example, in some States, State authorities preclude 
State regulations from being more stringent than Federal regulations.) 
Also, because there is no federal permit program for Subtitle D, state 
and local authorities have well-established regulatory discretion in 
the non-hazardous waste

[[Page 65924]]

arena, which the Agency does not wish to alter at this time. 
Consequently, today's rule does not alter the existing abilities of 
States and local authorities to regulate dredged material as a solid 
waste under RCRA.
    Furthermore, although certain dredged materials will no longer be 
considered hazardous wastes under today's rule, this exclusion does not 
affect whether dredged materials are considered solid wastes for the 
purposes of RCRA section 7003. As advanced in the proposal, EPA may 
take action under RCRA section 7003 to address the past or present 
handling, storage, treatment, transportation or disposal of any solid 
waste or hazardous waste that may present an imminent and substantial 
endangerment to human health or the environment. This authority remains 
intact, regardless of the Agency's decision to exclude dredged 
materials from RCRA's hazardous waste provisions. Thus, this rule does 
not diminish in any way the Administrator's authority to take action 
under section 7003 in connection with dredged material. EPA believes 
this authority provides an important backstop to the regulatory 
authorities of the CWA and MPRSA. Emergency powers under these other 
two statutes are different from and not co-extensive with RCRA section 
7003 authority. Furthermore, many States have comparable authorities 
over non-hazardous waste, which EPA does not wish to undercut.
    In sum, the status of dredged material as potentially a solid waste 
under RCRA is unchanged by today's rule. Where dredged material is (or 
contains) both a solid and a hazardous waste and is subject to a permit 
that has been issued under CWA section 404 or MPRSA section 103, 
today's rule excludes it from RCRA's hazardous waste requirements, but 
not from solid waste requirements.

H. Clarification of Terms Related to Dredged and Fill Material

    Two commenters stated that transferring the term ``discharge of 
dredged material'' from CWA section 404 regulations into the dredged 
material exclusion regulation, as was done in the proposal, would 
complicate the exclusion unnecessarily. EPA agrees with these comments. 
The term ``discharge of dredged material,'' which was incorporated into 
the proposed exclusion, is defined in 40 CFR 232.2 (and the Corps' 33 
CFR 323.2) and includes descriptions of the scope of these discharges. 
The definition also describes discharges that do not require a section 
404 permit. Confusion could have resulted, for example, over whether 
dredged sediments should be removed from RCRA regulation when they are 
within the scope of a section 404 permit exclusion. The references to 
this term and its definition have been removed from the rule to avoid 
confusion and misinterpretation, and only the term ``dredged material'' 
(which is defined in 40 CFR 232.2 as ``material that is excavated or 
dredged from the waters of the United States'') is used in the final 
rule.
    Similarly, EPA stated that the exclusion did not address ``fill 
material''. The Agency's goal is to ensure that upland-derived fill 
material is not eligible for the exclusion, but the language in the 
proposal did not distinguish between dredged material used as fill and 
fill material not excavated from waters of the U.S. The ``fill 
material'' that is not included in the exclusion is any material that 
does not meet the definition of dredged material. For example, dredged 
material can be used as fill under a CWA 404 permit for beneficial 
purposes, such as the creation of an underwater berm for erosion 
control. EPA sees no reason to differentiate between dredged material 
that is discharged for disposal and dredged material that is used as 
fill, as long as both are subject to the CWA or MPRSA dredged material 
permitting requirements.
    As a result, as in the case of the term ``discharge of dredged 
material,'' ``discharge of fill material'' and ``fill material'' are 
not terms pertinent to the dredged material exclusion and therefore are 
not included in today's regulatory language.

I. Normal Dredging Operations and the Exclusion

    Two commenters recommended extending the exclusion to normal 
dredging operations for navigation or flood control that are subject to 
some form of federal regulation other than CWA or MPRSA permitting, in 
particular when the dredged material would be disposed in upland 
facilities with no return flow. EPA was asked to interpret RCRA section 
1006(b) expansively to avoid regulatory duplication with the Rivers and 
Harbors Act of 1899 (RHA, 33 U.S.C. 403) which regulates normal 
dredging operations. However, section 1006(b) of RCRA requires EPA to 
avoid duplication with Acts of Congress that grant regulatory authority 
to the Administrator, and RHA does not grant regulatory authority to 
the Administrator. Furthermore, the proposed rule's exclusion for 
dredged material was premised only on the applicability of CWA or MPRSA 
permitting, and the proposal did not request comments on expanding the 
exclusion from RCRA Subtitle C for dredged material that is not subject 
to CWA or MPRSA permits. Therefore, the Agency will limit the scope of 
the exclusion to dredged material subject to a permit that has been 
issued under CWA section 404 or MPRSA section 103, as proposed.

J. The Exclusion and Nationwide Permits

    One commenter asked whether the proposed exclusion would not only 
apply to project-specific individual permits issued by the Corps, but 
also to general permits.30 The proposed rule and the 
preamble implied to this commenter that the scope of the exclusion 
includes only individually-issued permits. Although under today's rule 
the exclusion applies to any dredged material subject to a section 404 
permit and, therefore, would technically extend to Corps general 
permits (those which allow for certain dredging activities without 
requiring an individual application), it is important to note that it 
is very unlikely that any dredged material suspected of being 
contaminated would be authorized under a general permit. General 
permits may not authorize discharges where contaminant-related impacts 
are expected to be more than minimal, evaluated separately, as well as 
cumulatively. However, in the unlikely event that these discharges are 
authorized under a general permit, both the Corps and the appropriate 
state regulatory agency retain the authority to impose individual 
permit requirements or deny a permit to avoid impacts of concern. 
Therefore, EPA believes that it is appropriate, and in keeping with the 
logic of the proposal, to retain dredged material managed under CWA 
section 404 general permits within the exclusion from RCRA Subtitle C.
---------------------------------------------------------------------------

    \30\ The Agency notes that there are no nationwide permits under 
MPRSA that are applicable to dredged material, so the following 
discussion is in the context of CWA section 404.
---------------------------------------------------------------------------

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

A. Applicability of Rules in Authorized States

    Under section 3006 of RCRA, EPA may authorize qualified States to 
administer and enforce the RCRA Subtitle C program within the State. 
Following authorization, EPA retains independent enforcement authority 
under sections 3008, 3013, and 7003 of RCRA to initiate an action, 
although authorized States have primary enforcement responsibility. The

[[Page 65925]]

standards and requirements for authorization are found in 40 CFR part 
271.
    Prior to the Hazardous and Solid Waste Amendments of 1984 (HSWA), a 
State with final authorization administered its hazardous waste program 
instead of EPA administering the Federal program in that State. The 
Federal requirements no longer applied in the authorized State, and EPA 
could not issue permits for any facilities that the State was 
authorized to permit. When new, more stringent Federal requirements 
were promulgated or enacted, the State was obliged to enact equivalent 
authority within specified time frames. New Federal requirements did 
not take effect in an authorized State until the State adopted the 
requirements as State law.
    In contrast, under RCRA section 3006(g), (42 U.S.C. 6926(g)), new 
requirements and prohibitions imposed by HSWA take effect in authorized 
States at the same time that they take effect in unauthorized States. 
Although the States are still required to update their hazardous waste 
programs to remain equivalent to the Federal program, EPA is directed 
to carry out HSWA requirements and prohibitions in authorized States, 
including the issuance of permits implementing those requirements, 
until the State is granted authorization to do so.
    Authorized States are required to modify their programs only when 
EPA promulgates Federal requirements that are more stringent or broader 
in scope than existing Federal requirements. RCRA section 3009 allows 
the States to impose standards more stringent than those in the Federal 
program. See also, 40 CFR 271.1(i). Therefore, authorized States can, 
but are not required to, adopt Federal regulations, both HSWA and non-
HSWA, that are considered less stringent. Less stringent regulations, 
both HSWA and non-HSWA, do not go into effect in authorized States 
until those States adopt them and are authorized to implement them.

B. Effect on State Authorization

    Today's rule is promulgated, in part, pursuant to non-HSWA 
authority and, in part, pursuant to HSWA. Requirements applicable to 
Remedial Action Plans (RAPs) and the dredged material exclusion are 
promulgated pursuant to non-HSWA authority. Therefore, these 
requirements are effective on the effective date of this rule only in 
those States without final authorization. They will become effective in 
States with final authorization once the State has amended its 
regulations and the amended regulations are authorized by EPA.
    The requirements for staging piles are promulgated pursuant to 
HSWA. Specifically, as discussed in the HWIR-media proposal (see 61 FR 
18830-18831), the requirements relating to staging piles are based on 
an interpretation of RCRA sections 3004(k) and (o). (See below for 
details regarding implementation in authorized States.) Also, the 
provisions exempting remediation waste only management sites from the 
requirements in RCRA section 3004(u), namely Secs. 264.1(j) and 
264.101(d), are promulgated under HSWA authority. The Agency is adding 
these requirements to Table 1 in Sec. 271.1(j), which identifies 
rulemakings that are promulgated pursuant to HSWA.
    As noted above, authorized States are only required to modify their 
program when EPA promulgates Federal standards that are more stringent 
or broader in scope than the existing Federal standards. The standards 
promulgated today (including those promulgated under HSWA authority) 
are less stringent than the existing Federal standards. Therefore, 
States are not required to modify their programs to adopt today's 
rulemaking. However, EPA strongly encourages States to adopt the 
provisions promulgated today, as the Agency believes that they will 
increase the pace and efficiency of hazardous waste cleanups. The swift 
authorization of States that have adopted provisions equivalent to 
those promulgated today is a high priority for EPA.
1. Staging Piles
    The implementation of the provisions regarding staging piles will 
vary, depending on the authorization status of a particular State. 
Although these provisions are promulgated under HSWA authority, they 
are less stringent than the existing Federal provisions, namely the 
Land Disposal Restrictions (LDR) and Minimum Technology Requirements 
(MTR) that apply to waste piles. Thus, if a State is authorized for the 
LDR and MTR provisions, EPA will not implement the provisions regarding 
staging piles in that State, even where it is conducting a corrective 
action. In some cases, however, a State that has LDR and MTR 
authorization and has adopted the staging pile provision, but is not 
yet authorized for staging piles may be able to implement its staging 
pile provisions if, under State law, it has a waiver authority 
comparable to the Federal authorities under RCRA section 7003 and 
CERCLA section 121(e). (A State's waiver authority is discussed further 
below.) If, prior to authorization for staging piles, the State 
exercises this authority in a way that is consistent with today's 
provisions regarding staging piles, EPA would not consider the State's 
program to be less stringent than the Federal program. These approaches 
should be used only to cover the transition period during which the 
State amends its regulations and obtains formal authorization for the 
staging pile provisions.
    In those States that do not have authorization for the LDR and MTR 
rules, EPA is responsible for implementing the provisions regarding 
staging piles, because they are part of the Federal RCRA program 
operating in these States. EPA will use the Federal procedures for the 
implementation of the staging pile. For example, if the facility at 
which the staging pile is to be located holds a RCRA permit, EPA will 
modify the HSWA portion of the permit using the Federal permit 
modification procedures. However, EPA will not implement the staging 
pile provisions if this implementation is in conflict with a State's 
hazardous waste program. In some cases, States may have adopted the LDR 
or MTR provisions in their regulations, but may not have received 
authorization from EPA. Thus, these provisions may be effective under 
State law, preventing the implementation of the staging pile 
provisions. To address this situation, to the extent permitted by EPA 
regulations, EPA may modify its action so it is consistent with State 
law, or structure its action to mirror existing State requirements 
which allow waiver of the authorized State LDR and MTR provisions. 
Alternately, the State may use an authority under its own laws to 
provide a waiver.

C. Authorization for Today's Rule

    In today's rule (as described later in the preamble), EPA 
establishes streamlined procedures for authorizing States for routine 
or minor program revisions of RCRA requirements. Streamlined 
authorization procedures were a major feature of the HWIR-media 
proposal, as well as several other recent regulatory proposals, and 
they are a key feature of EPA's program to reinvent the RCRA State 
authorization process.
    The specific substantive provisions of today's rule, however, are 
not eligible for these streamlined procedures. This is because EPA 
considers today's rule to be fairly complex, and not part of a series 
of routine rulemakings. For these reasons EPA disagrees with the 
several commenters who wanted the abbreviated authorization procedures 
promulgated today to apply to the authorization of the HWIR-media rule.

[[Page 65926]]

At the same time, EPA is placing a high priority on authorization of 
States who seek to implement today's rule. The success of the 
regulatory reforms in today's rule depends on its rapid adoption by the 
program implementers, that is, the States. Furthermore, EPA intends to 
use its existing discretion under 40 CFR 271.21(b), to follow the 
streamlined procedure for the authorization of States which only adopt 
Sec. 264.101(d) of today's rule. This provision eliminates Sec. 264.101 
facility-wide requirements from RCRA permits or RAPs issued to 
facilities not otherwise subject to facility-wide corrective action. 
The streamlined authorization procedure and EPA's existing discretion 
are discussed below.
    Although today's HWIR-media rule is not eligible for the 
streamlined authorization procedures, EPA believes that in most cases, 
the authorization of States for this rule should be straightforward. 
Today's rule, for the most part, does not change the current regulatory 
standards for waste management, but merely streamlines procedures for a 
particular category of waste (that is, remediation waste). Any State 
currently authorized to implement RCRA hazardous waste regulations, 
particularly those States authorized for the LDR program and for 
corrective action, should have little difficulty becoming authorized 
for today's rule, as long as the State adopts a program that meets the 
minimum standards in today's rule.
    EPA particularly emphasizes that, in authorizing States for the RAP 
part of today's rule, it will not be judging the adequacy, the 
stringency, or the resources of State clean-up programs. This is 
because today's rule does not modify or alter in any way clean-up 
requirements, but simply streamlines the permitting process for 
management of hazardous remediation wastes.
    EPA will be reviewing the State's regulations and program for 
managing hazardous remediation waste to determine whether they are 
equivalent to the standards promulgated in today's rule. If a State 
program is already authorized to regulate hazardous waste under the 
base RCRA program, there is every reason to presume it can adequately 
regulate that same waste under a RAP or in a staging pile. The main 
task for EPA will be to ensure that States, in providing relief for 
remediation waste, meet the national minimum standards. EPA anticipates 
that, in most cases, this will be a clear and simple standard for 
States to meet, and authorization will be correspondingly expedited.
    EPA also emphasizes that State programs seeking authorization must 
be equivalent to and no less stringent than the program EPA will be 
administering under today's rule. State programs, however, do not need 
to be identical to the federal program. EPA included considerable 
detail on procedural requirements in today's rule, because it will be 
implementing the rule in unauthorized States. Thus, the Agency needed 
to spell out permitting procedures, information requirements, and 
similar provisions explicitly and in detail. Although some States may 
choose to adopt these requirements verbatim or by reference, EPA 
expects that other States will prefer to establish different procedures 
(e.g., for RAP issuance or revisions, appeal rights, computation of 
time periods, and similar requirements), analogous to the situation 
regarding 40 CFR part 124 requirements such as administrative permit 
appeals that States are not required to adopt for authorization (see 
Secs.  270.155, 270.190, and 270.215). EPA stresses that State programs 
will be eligible for authorization, as long as they comply with the 
statutory minimum in areas like public participation, their 
requirements apply equivalent (or more rigorous) procedures, they 
provide for adequate enforcement, and they meet the substantive 
standards of the federal regulations.

D. Authorization of State Non-RCRA RAP Authorities

    In some instances, States may want to use as RAPs, enforceable 
documents issued by a State program other than the State's authorized 
RCRA program (see section IV of today's preamble for further 
discussion). Enforceable documents containing hazardous remediation 
waste management requirements that are not specifically issued through 
EPA's or an authorized State's RCRA program are not considered to be 
RAPs (this is, RCRA permits). Where a State wishes to use enforceable 
documents issued under authorities other than State RCRA authorities to 
implement hazardous waste remediation requirements, this will require 
specific authorization review to determine whether the State has the 
requisite implementation and enforcement authority and whether the 
provisions are consistent and equivalent to those promulgated today. In 
order to provide EPA with a basis for its authorization determination, 
during the authorization process for this rule, the State should 
specifically identify the enforceable documents it intends to use as 
RAPs, as well as the State authorities under which they are issued. If 
EPA approves the authorization, then the enforceable documents become a 
part of the RCRA program and the State will have the discretion to use 
such documents as RAPs. As part of RCRA, the RAP portion (i.e., 
hazardous remediation waste requirements and conditions) of the 
enforceable document is enforceable pursuant to the State RCRA 
enforcement authorities and by EPA pursuant to its independent RCRA 
enforcement authority. 31
---------------------------------------------------------------------------

    \31\ Nothing in either the State's authorized ``enforceable 
document'' or in the State's law can restrict EPA's independent 
authority to enforce the authorized RCRA program.
---------------------------------------------------------------------------

    Elsewhere in this preamble, EPA discusses the appropriate level of 
public involvement in site cleanups, given the need for flexibility to 
do what makes sense in a given situation. Thus, States need to ensure 
in particular, that any enforceable documents to be used as RAPs will 
be developed through procedures that meet the public participation 
requirements in Sec. 270.145; otherwise they will not meet the 
standards for authorization. Further, the authorities used to issue 
these documents must also ensure that hazardous waste is managed under 
the appropriate standards of the hazardous waste program.
    As noted earlier, nothing in today's rule limits or expands the 
authorities States may already have to waive RCRA permit requirements, 
consistent with EPA's authority in section 7003 of RCRA or section 
121(e) of CERCLA. RCRA section 7003 allows EPA to order response 
actions in the case of imminent and substantial endangerment to health 
or the environment, ``notwithstanding any other provision in this 
Act.'' An authorized State may use a comparable authority to authorize 
activities consistent with today's rule. Similarly, where comparable 
authority exists under a State Superfund program, the State may use 
that authority. As explained in EPA guidance, the two preconditions to 
allowing the use of this authority are that: ``(1) the State has the 
authority under its own statutes or regulations to grant permit 
waivers; and (2) the State waiver authority is used in no less 
stringent a manner than allowed under Federal permit waiver authority, 
for example, section 7003 of RCRA or section 121(e) of CERCLA.'' (See 
the Memorandum, ``RCRA Permit Requirements for State Superfund 
Actions'', from J. Winston Porter to Regional Administrators, Region I-
X (Nov. 16, 1987) (OSWER Dir. No. 9522.00-2).) A State cannot, however, 
waive applicable Federal requirements. Thus, if a State is not 
authorized to

[[Page 65927]]

implement a portion of the RCRA program in that State, the exercise of 
the State's waiver authority does not waive the Federal portion of the 
RCRA requirements. Also, EPA recognizes that many States have 
enforcement authorities allowing them to compel corrective action at 
interim status facilities comparable to EPA's section 3008(h) 
authority. States with appropriate regulatory and enforcement authority 
would be able to use these authorities in the same way EPA uses its 
section 3008(h) authority, for example, to approve the use of a staging 
pile outside the context of a RAP. As long as the authorized State 
acted in a way that was consistent with Federal requirements, its 
program would be considered to be as stringent as the Federal program.

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

    EPA and States have recognized the need to improve the RCRA State 
authorization procedures for many years. For example, in the 1990 RCRA 
Implementation Study, the authorization process was identified as being 
too slow and cumbersome. In response to these longstanding concerns, 
the practices used by EPA and States have evolved over the years. The 
purpose of these attempts has been to make the authorization process 
operate more smoothly. Further, because Federal regulatory revisions 
promulgated under non-HSWA statutory authority do not go into effect 
until States have adopted them and received authorization, a more 
speedy authorization process will enhance environmental protection.
    In several notices published during the past three years, EPA has 
proposed abbreviated authorization procedures intended to expedite the 
review and approval of revisions to authorized State programs. In the 
August 22, 1995, Land Disposal Restrictions (LDR) Phase IV proposal, 
EPA proposed a procedure (subsequently called Category 1) for 
authorizing minor or routine rules (see 60 FR 43654). This abbreviated 
procedure would require an application that was reduced in scope and 
composed of a statement from the State that its laws provide authority 
that is equivalent to and no less stringent than EPA's regulations, and 
a copy of those State statutes and regulations. After a complete 
application was submitted, EPA would then conduct a speedy review, and 
within 60 days after receiving an acceptable application, finish its 
action by publishing a Federal Register notice. With this notice and 
the associated public comment period, EPA would provide notice to the 
public of authorization decisions in the same fashion as is currently 
done. This procedure was proposed to apply to certain minor amendments 
to the LDR program that had become a routine part of the LDR program. 
EPA also requested comment on the future applicability of this 
procedure.
    EPA modified this proposal in the January 25, 1996, LDR Phase IV 
supplemental proposal (see 61 FR 2338). EPA also proposed streamlined 
procedures for the authorization of more significant rules in the April 
29, 1996, HWIR-media proposal (see 61 FR 18818). This proposed 
procedure was known as Category 2.
    However, after carefully evaluating the comments received on these 
proposals, as well as the Agency's goal of speeding up the State 
authorization process, EPA has decided to promulgate abbreviated 
authorization procedures based on the procedures proposed in the August 
22, 1995, LDR Phase IV notice. Thus, EPA is not promulgating the more 
extensive proposed Category 2 procedures from the HWIR-media proposal 
and the modifications to the proposed Category 1 procedures outlined in 
the January 25, 1996 LDR supplemental proposal. This preamble explains 
the details of today's abbreviated procedures, and discusses EPA's 
overall approach towards streamlining and improving the authorization 
process for all State authorization revisions.

A. Existing Authorization Process

    During the past 15 years, EPA has frequently amended the Federal 
RCRA program by promulgating rulemakings to reflect statutory mandates, 
court decisions, and technical and scientific progress. EPA Regions and 
States have worked together to incorporate these regulatory amendments 
into revised State hazardous waste programs. This has been accomplished 
through the State adoption of rules equivalent to the Federal 
rulemakings, and the subsequent authorization of States. The existing 
regulations regarding the revision of a State's authorized program are 
located in 40 CFR 271.21.
    Authorization revision applications generally consist of a copy of 
the State regulations, a revised Attorney General's (AG) statement, a 
revised Program Description (PD), a revised Memorandum of Agreement 
(MOA), or other documents EPA determines to be necessary (see 40 CFR 
271.21(b)(1)). This provision does provide EPA with flexibility 
regarding the content of authorization applications. However, all of 
these components are generally submitted to EPA because the State 
applications often cover Federal rulemakings promulgated during a 
period of one to several years and therefore address significant 
Federal rulemakings. This practice is based on provisions located in 40 
CFR 271.21(e). These provisions set forth the concept of ``clustering'' 
rules, and established deadlines for State submission of applications. 
Because State applications address Federal rulemakings promulgated 
during a set period of time, it is common that these applications 
contain analogous State rules that are both very minor and quite 
significant.
    Although the regulations in Sec. 271.21 contain only general 
provisions regarding the EPA review and approval process, over time EPA 
Regions and States have developed practices for the development and 
review of State applications that vary according to the content of the 
application, method of State adoption, and the individual approaches of 
State and EPA staff. Of course, all of these practices are based on the 
standards for review set forth in the RCRA statute, along with other 
sections of 40 CFR part 271, and the content and nature of the 
individual applications. Typically, the State provides a draft of its 
application, including draft or proposed State regulations, to the EPA 
Region for review and comment. After the Region submits comments back 
to the State, the State addresses the comments, and prepares and sends 
a final application to the EPA Region for review, comment if necessary, 
and in most cases, approval through notice in the Federal Register as 
an immediate final rule, also known as a direct final rule (see 40 CFR 
271.21(b)(3)).
    The authorization revision process as implemented does not 
incorporate formal deadlines or time lines. Many factors have 
contributed to the duration of the entire process, which EPA and States 
have often characterized as being too lengthy. One factor is the size 
and complexity of many revision applications. Another factor is the 
time necessary for a State to conduct rulemakings to revise its 
regulations, and to put together a complete application. Allowing EPA 
review of draft or proposed State regulations may also lengthen the 
process, even though it is particularly recommended in cases where 
States find it difficult to amend regulations after they are first 
promulgated.

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

    EPA did not receive any adverse comments regarding the abbreviated

[[Page 65928]]

authorization procedures that were proposed in the August 22, 1995 
notice. Some of these commenters wanted these procedures to apply to 
the authorization of States for all Federal RCRA rulemakings, and not 
just to rules that are minor in nature. Other commenters thought that 
the procedures were appropriate for the authorization of minor rules 
that would be promulgated in the future, or were already promulgated by 
EPA. One commenter maintained that the procedures should not be applied 
to authorizations involving rules that are significant, since the 
necessary EPA review may involve State enforcement and technical 
capability.

C. Basis and Rationale for Today's New Procedures

    EPA has determined that, while the authorization processes that are 
currently employed may be appropriate for the authorization of 
significant changes to the RCRA program, a process that does not 
include all the possible components of the application, and that 
provides deadlines for certain actions is better suited for routine or 
minor changes. As discussed in the August 22, 1995 proposal, routine or 
minor rulemakings are those EPA rulemakings that do not change the 
basic structure of the RCRA hazardous waste program, or expand the 
program into significant new areas or jurisdictions. For example, a new 
waste listing which amends 40 CFR part 261, a technical correction to a 
previously promulgated rulemaking, or a rulemaking that is part of a 
series of rulemakings where the basic regulatory authority has already 
been established (and remains largely the same), could be considered a 
minor or routine rulemaking and appropriate for the abbreviated 
authorization process.
    As already discussed, these rules would have a limited impact on 
the implementation and scope of the RCRA program and therefore, the 
minor or routine rulemakings do not significantly expand or change the 
nature of existing State authorized regulatory authority. Further, such 
rules have a negligible effect on the resources necessary to implement 
the RCRA program, and do not have an effect on the intergovernmental 
relationship between EPA and States. Thus, it is appropriate to have an 
abbreviated authorization process for minor or routine rules to be used 
by States that have already received authorization for the significant 
parts of the RCRA program that are being revised, since those States 
have demonstrated capability in both the administration and 
implementation of those aspects of the program.
    Additionally, an abbreviated authorization process is appropriate 
since certain components of the normally submitted authorization 
application (such as the MOA and PD) are affected only rarely by minor 
or routine revisions. Rather, revisions to these components are usually 
required in the authorization revision application for a set of rules 
because of the presence of significant rulemakings, not the minor or 
routine rules. Likewise, much of the time and effort expended on 
reviewing and revising authorization applications is due to the 
extensive changes to the RCRA regulations caused by significant 
rulemakings.
    Further, revisions to the PD or MOA should not be necessary 
because, as already mentioned above, the minor or routine rules to 
which today's new, abbreviated procedures apply do not have any 
significant impact on the States' capability to implement the RCRA 
program, and do not present any new issues for EPA-State coordination. 
Also, due to the nature of these minor or routine rules, they should 
not have an effect on State program consistency and the adequacy of a 
State's enforcement program. Thus, EPA believes that today's procedure 
will expedite the implementation of many minor or routine rulemakings, 
and will enable EPA Regions and States, including the State Attorney 
General's Office, to devote their resources towards efficient 
authorization of more significant rules.
    EPA has always had the discretion to implement authorization 
procedures similar to those promulgated today without promulgating 
regulations. For example, Sec. 271.21(b)(1) allows EPA to determine 
what documents are necessary in a revision application, according to 
the circumstances presented by each particular rule. Nonetheless, EPA 
believes that this codification of procedures is useful for two 
reasons. First, a codification will provide a consistent procedure for 
States and EPA to use when processing an application for minor or 
routine rules. Second, since these procedures will be included in the 
CFR, all parties involved in the authorization process, including 
States and the general public, will be aware of this alternative 
procedure.
    Section 3006(b) of RCRA establishes the legal standard for State 
program approval. As detailed below, the application required in 
today's procedure includes a statement that the State's regulations for 
which the State is seeking authorization are equivalent to the Federal 
regulations. EPA has concluded that this statement, coupled with the 
review EPA conducts on these minor or routine rules as part of the 
authorization process, will provide an adequate basis for EPA to make 
its required findings and grant approval of a program revision under 40 
CFR part 271.

D. Rule Listed in Table 1 to Sec. 271.21 to Which the Abbreviated 
Procedure Applies

    In new Table 1 to 40 CFR 271.21, EPA has listed the first rule for 
which the new abbreviated procedure may be used. This rule is the 
Universal Treatment Standards (UTS) in Secs. 268.40 and 268.48 that 
were promulgated in the Phase II LDR rule (see 59 FR 47982, September 
19, 1994). Note that States are not required to use the new procedures 
in 40 CFR 271.21(h) when they seek authorization for this rule and 
other rules that may be placed in Table 1 in the future.
    Note that the August 22, 1995, notice proposed to use the 
abbreviated procedures for the authorization of other LDR rules. These 
rules were portions of the proposed Phase III LDR rule, and the Phase 
IV LDR rule (which was split up into two final rules). These LDR 
proposals have since been finalized (see 61 FR 15660, April 8, 1996, 
for the Phase III LDR rule; 62 FR 26040, May 12, 1997 for the LDR rule) 
on wood preserving wastes (part of the Phase IV; and 63 FR, 28556, May 
26, 1998 for the Phase IV LDR rule). EPA has decided not to use today's 
abbreviated procedures in 40 CFR 271.21(h) for the authorization of 
these final rules. This is because these rules, in addition to the 
routine modifications and additions to the LDR treatment standards, 
made changes to the definition of solid waste and other aspects of the 
RCRA program which affected its scope in a more significant manner.
    Today's HWIR-media final rule is also not listed in Table 1 and 
therefore, as explained earlier, the abbreviated authorization process 
will not be used for its authorization. EPA considers today's HWIR-
media rule to be a significant rule because, for example, it provides 
for a new type of permit mechanism and a new type of waste management 
unit. Although EPA believes that today's rule will have many 
environmentally beneficial effects, it involves several complex 
regulatory concepts, and thus EPA believes the abbreviated procedures 
are not appropriate for its authorization.
    In the future, as EPA proposes rulemakings under RCRA, EPA will 
also propose to list additional minor or routine rules in Table 1 to 40 
CFR 271.21, to ensure that today's procedure

[[Page 65929]]

can be used for their authorization. These future proposed additions to 
Table 1 will generally be in the same notice as the proposed minor or 
routine rule. This action was supported by commenters to the August 22, 
1995 proposal. Once public comment is received on the proposed listing 
in Table 1, EPA will promulgate it as appropriate.
    In the August 22, 1995 proposed rule, EPA discussed and requested 
comment on the rules a State must be authorized for to use the 
abbreviated process. In particular, EPA suggested that States should be 
authorized for the LDR Third Third rule (see 55 FR 22520, June 1, 1990) 
to use the new procedure for the LDR Phase II, III and IV rules, or the 
designated parts of them. Based on the comments, EPA has concluded that 
the proposed approach was reasonable. However, the prerequisite has 
been modified so that it is more generally applicable, and easier to 
understand and implement. Therefore, today's rule simply requires that 
States be authorized for the part of the program that the routine rule 
is amending. One example is a revision to an existing rule. Another 
example is a new waste listing, which amends the list of hazardous 
wastes in 40 CFR part 261. This prerequisite requirement is located in 
Sec. 271.21(h)(5).

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

    In today's rule, EPA explicitly identifies a portion of the Phase 
II LDR rule as subject to the abbreviated authorization procedures. 
However, EPA considers the development and review of an authorization 
application that contains only this rule to be inefficient, and not 
justified by the administrative resources that EPA and States would 
expend to develop and review such a small application. This situation 
would render today's new procedures largely ineffective in 
accomplishing the goal of making the authorization process more 
efficient, considering that authorization applications generally cover 
a large number of Federal rulemakings, ranging in size from about 20 to 
100 rules. Further, EPA does not believe that it should treat the 
authorization of minor or routine rules in a different manner based 
solely on when the rule was promulgated.
    Section 271.21(b)(1) provides the Agency with the flexibility to 
tailor the contents of a State's application to revise its 
authorization. Thus, under this provision, EPA could require the same 
information that is required to be in the State application under the 
new requirements in Sec. 271. 21(h)(1). EPA also has the discretion to 
review authorization applications in the same manner as promulgated in 
today's abbreviated procedures. EPA has always had the ability to 
commit to an expedited review of State applications. For example, EPA 
has committed to conducting a speedy review of State applications for 
several recent rules.
    Since today's procedure continues to meet the review requirements 
set forth in the RCRA statute and existing regulations, and EPA has 
discretion under 40 CFR 271.21(b)(1) to appropriately tailor the 
authorization application requirements and review schedules, EPA 
intends to use the timetables and application requirements in today's 
procedure for previously promulgated rules, as long as those rules are 
minor or routine in nature and scope. EPA is developing guidance to 
enable States and Regions to make speedy and proper decisions regarding 
which previously promulgated rules should be included in an 
authorization application that uses the abbreviated procedures. This 
guidance will identify those previous rulemakings which EPA considers 
to be minor or routine in nature. It will also identify those rules 
that are not minor or routine, and for which the abbreviated procedures 
will not be used. One example of such a rule is the Boilers and 
Industrial Furnace rule, which establishes authority over a new and 
complex area. This guidance will take into account the criteria EPA 
will use to propose to list a new rule in Table 1, the considerations 
discussed in the section regarding basis and rationale in today's 
preamble, and EPA's previous experience in authorizing these existing 
rules. This guidance will also consider how EPA's checklist guidance 
that is contained in the annual State Program Advisories treats these 
rules, since the guidance is widely used in those States that do not 
incorporate the Federal regulations by reference. Copies of the 
checklist guidance for all existing rules as well as other 
authorization related guidance are located on the Internet (at: http://
www.epa.gov/epaoswer/hazwaste/state/index.htm). For example, many 
technical corrections to significant rules, which on their own would be 
considered minor, are included on the same checklist as the original 
major rule. EPA does not think that States which use the checklist 
guidance would separate out these technical corrections into a second 
application because doing so would be difficult and inefficient. Thus, 
these corrections would not be listed as minor in the guidance. 
(However, if a State had already been authorized for the major rule, 
and would prefer to seek an abbreviated process for the subsequent 
technical corrections, EPA has the discretion to process it 
accordingly.) EPA encourages States to discuss and coordinate upcoming 
authorization applications with EPA Regions to determine the most 
efficient approach to take regarding the submission of revision 
applications in light of today's rulemaking.
    It is important to note that this abbreviated process for the 
authorization of minor or routine rules only addresses the procedures 
for processing certain State authorization applications. Today's 
procedure does not affect the continued responsibility of States to 
inform EPA of changes to its basic statutory or regulatory authority 
under 40 CFR 271.21(a). Likewise, today's rule does not affect EPA's 
ability under 40 CFR 271.21(d) to request a supplemental Attorney 
General's statement, program description, or other documents or 
information as necessary.
    Occasionally, EPA requests additional information from a State 
under 40 CFR 271.21(d). A prime example is when a State uses non-RCRA 
authorities to implement rule requirements. If a State were to use 
alternative authorities to seek authorization for a rule that is 
considered to be minor or routine, EPA would probably request 
additional information from the State Attorney General. Further, where 
a rulemaking would have a significant impact on the size of a State's 
universe of regulated facilities, EPA may ask for a revised Program 
Description and/or a revised MOA. Although EPA does not believe that 
situations such as this will be common, States should be aware of these 
and work with the EPA Region before an application is submitted, so 
that issues regarding the contents and review requirements for an 
application may be resolved.

F. Final Abbreviated Authorization Procedures

    Today's rule amends 40 CFR 271.21 to create a new authorization 
procedure in paragraph (h) of Sec. 271.21 that consists of an 
abbreviated application and an expedited process. Note that this 
procedure was originally proposed in a new Sec. 271.28, but then 
paragraph (h) of Sec. 271.21 was reserved for this procedure in the 
April 29, 1996, HWIR-media proposal. Likewise, in the proposal, the 
rules for which this authorization procedure would be used were listed 
in 40 CFR 271.28(a), but are now listed in new Table 1 to Sec. 271.21. 
EPA believes

[[Page 65930]]

that this table format is easier to read than the proposed listing.

G. Authorization Application Requirements

    The requirements for a State's abbreviated application are located 
at 40 CFR 271.21(h)(1). These application requirements are essentially 
unchanged from the August 22, 1995 proposal. This abbreviated 
application does not require a revised Program Description, Memorandum 
of Agreement, or Attorney General's Statement. Instead, the application 
must include a statement from the State that the laws and regulations 
of the State provide authorities that are equivalent to, and no less 
stringent than the Federal authorities for which the State is seeking 
authorization. The certification must include appropriate citations to 
the specific statutes, administrative regulations and where 
appropriate, judicial decisions. It must also include a copy of the 
applicable State laws and regulations. The cited State statutes and 
regulations must be lawfully adopted at the time the certification is 
signed and fully effective by the time the program revisions are 
approved. This statement may be signed by the signatory of the State 
application. Although the Attorney General may sign this statement, the 
signature of the Attorney General is not necessary for the 
authorization of the minor rules subject to today's procedures. These 
minor or routine rules do not affect the previously authorized legal 
authority of the State to carry out its hazardous waste program. This 
requirement is consistent with the provisions of the proposed rule, 
which did not require the Attorney General to sign the statement. EPA 
did not receive any negative comments on this aspect of the proposed 
rule.

H. Procedures for Reviewing and Approving Applications

    EPA expects that a concerted effort from both the EPA Regions and 
States will be essential to meet the deadlines specified in new 
Sec. 271.21(h). Thus, the Agencies should coordinate their efforts 
before and after the State application is submitted. EPA encourages 
States to submit applications in draft form where feasible. This will 
make it easier for the State to incorporate any changes to its 
application, and will reduce the frequency of errors in the final 
application. States should note that high level signatures, such as 
from the State Director, are not required for a draft application. 
Further, to make the Regional review more efficient, States should 
provide clear explanations regarding changes they have made to the 
Federal regulations and provide a crosswalk between State and Federal 
regulations.
    Once the State submits an application to EPA, the Agency will 
conduct an expedited review of the State's regulations. This review 
will consist primarily of a check for completeness and errors within 
the State regulations, such as LDR treatment levels that are above the 
Federal levels (and thus are less stringent). EPA anticipates that 
these errors will be rare because the rulemakings eligible for this 
abbreviated procedure are not complex, and are easily adopted by the 
State. This review will constitute the finding of equivalency required 
by section 3006 of RCRA. Note that this procedure does not affect in 
any way a State's ability to promulgate regulations more stringent than 
the Federal regulations under section 3009 of RCRA.
    Under Sec. 271.21(h)(2), EPA is required to notify the State within 
30 days of receipt of the application if EPA determines that the 
application, including the statement, is not complete or contains 
errors. The reasons why EPA can determine that an application is not 
complete are specified in Sec. 271.21(h)(3). These reasons are: (1) 
Copies of applicable statutes or regulations are not included; (2) the 
statutes or regulations relied on by the State to implement the program 
revisions are not lawfully adopted or effective by the time the program 
revisions are approved; (3) in the statement, the citations to the 
specific statutes, administrative regulations and where appropriate, 
judicial decisions are not included or incomplete; and (4) the State is 
not authorized to implement the prerequisite RCRA rules as specified in 
Sec. 271.21(h)(5). If EPA does find that an application is incomplete 
or contains errors, EPA will summarize the deficiencies in the 
completeness notice sent to the State under Sec. 271.21(h)(2).
    After the State submits an application to the Region (either in 
draft or final form), the EPA Region should discuss any questions and 
concerns with State staff. One purpose of these discussions is to seek 
clarification regarding the State's application, and to attempt to 
resolve these questions and concerns. Thus, if EPA's questions and 
concerns are resolved through these discussions, a completeness notice 
may not be necessary since there would be no outstanding issues. EPA 
Regions also should commit to conduct additional reviews only on 
application components that are new or have changed since the previous 
submission. EPA Regions will prioritize any comments submitted to the 
States regarding a draft or final application, and will make 
distinctions between those errors that cause a State's regulations to 
be less stringent and need to be changed before the application can be 
approved, and those that may be made at a State's discretion, such as 
typographical errors. After addressing EPA comments, if any, the State 
will then resubmit the application to EPA as a final application. Of 
course, EPA encourages the States to seek clarification regarding any 
of the Regional comments so they can be properly resolved before 
resubmitting an application.
    Under Sec. 271.21(h)(4), EPA will publish an immediate final rule 
in accordance with the requirements in Sec. 271.21(b)(3), within 60 
days of receiving a complete final application under paragraph (h)(2). 
Thus, if EPA does not find any deficiencies in a State's final 
application, this notice will be published within 30 days after EPA 
completes its check. Likewise, if EPA finds deficiencies in a State's 
application, this notice will be published within 60 days after receipt 
of a new corrected application. This immediate final rule is the same 
promulgation procedure used for other revision authorization decisions, 
which provides the public the ability to comment on tentative EPA 
authorization decisions before they become effective. The notice would 
provide for a 30-day public comment period, and would normally go into 
effect 60 days after publication unless an adverse comment is received 
by EPA.

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

    In comments on the proposed Category 2 procedures, most commenters 
supported the concept of improving the authorization procedures. 
However, many commenters did not support the specific procedural 
changes that would apply to the authorization of significant rules. 
These commenters maintained that the proposed Category 2 procedures 
were too complex and cumbersome, and did not address the underlying 
interactions between EPA and States within the process. In addition, 
the proposed procedures would not have affected the authorization 
process for the dozens of previously promulgated rules for which States 
are not authorized. Other commenters believed that the proposed 
Category 2 procedures would amend the EPA review process and standard 
of review in a way that was not consistent with the RCRA statutory 
requirements. As a result of these comments, EPA has

[[Page 65931]]

further evaluated the existing barriers to accomplishing the goals of 
the proposals. EPA has concluded that many of the barriers to the 
authorization of significant rules involve the process of communication 
and coordination between EPA and States that is more appropriately 
addressed through guidance and other non-regulatory means. Therefore, 
EPA is not finalizing the Category 2 procedures proposed in the HWIR-
media proposal. EPA is also not finalizing the modifications to the 
proposed Category 1 procedures that were proposed in the January 25, 
1996 notice (see 61 FR 2338). These modifications were opposed by 
commenters.

J. Improvements to the Existing Authorization Process

    EPA believes that the abbreviated procedures promulgated today will 
help make the State authorization program more efficient. However, most 
of the authorization work that confronts EPA and States will continue 
to involve rules that are considered to be significant rules, which are 
not affected by today's procedure. Examples of these rules include the 
Boiler and Industrial Furnace rule, the Used Oil rule, and today's 
HWIR-media rule. EPA believes that many of the coordination and 
communication activities recommended for today's abbreviated process 
should be applied to the development and review of all other 
authorization applications. One example is the prioritization of 
Regional comments that may be submitted to the State. Further, EPA 
recommends that EPA Regions and States hold discussions throughout the 
authorization process to foster closer coordination between the 
agencies. For example, before a State develops an application, the 
agencies should discuss what revisions to the MOA and PD may be 
necessary, and any major changes to the regulations planned by the 
State. These discussions can be used to produce an authorization 
process time line that satisfies the needs of both agencies. This time 
line should contain commitments by both the Region and State to provide 
expeditious turn-around of comments on applications, revisions to 
applications, and other correspondence. To meet these commitments, 
Regions should set internal deadlines for review based on the size of 
the application and the method a State uses to adopt the Federal 
regulations. Finally, to avoid numerous submissions of the same 
document, Regions should help the State develop acceptable language 
when appropriate or desired by the State.

XII. Conforming Changes (Secs. 265.1(b), 268.2(c), 268.50(g), 
270.11(d), and 270.42 Appendix I)

    Section 265.1(b), which discusses the applicability of part 265 and 
other standards at interim status facilities, is amended in today's 
rule to incorporate 40 CFR 264.554 (staging piles requirements) into 
the list of standards that apply to interim status facilities. Because 
today's rule for staging piles includes part 264 requirements for 
staging piles, but not part 265 requirements, EPA wanted to make this 
conforming change to make it clear that staging piles can be used at 
interim status facilities. The same conforming change was made in the 
February 16, 1993 CAMU rule to incorporate CAMUs and temporary units 
into the same provision for the same reason. The CAMU rule stated, 
``heretofore, technical requirements for interim status facilities were 
specified only under part 265. Therefore conforming changes are 
necessary * * *''. The CAMU, temporary unit and staging pile provisions 
are the only part 264 standards that apply to interim status 
facilities. The CAMU rule also made a similar conforming change to 
Sec. 264.3; however that change used the phrase ``40 CFR part 264 
Subpart S,'' which includes the provisions for staging piles, so no 
additional conforming changes to Sec. 264.3 are necessary.
    The conforming change to Sec. 268.2(c) is a change to the 
definition of land disposal. Because placement in a staging pile does 
not constitute land disposal, it is necessary to make that clear in the 
definition of land disposal. EPA made the same change for CAMUs in the 
February 16, 1993 CAMU rule. The new language changes the definition to 
read that ``land disposal means placement in or on the land, except in 
a corrective action management unit or staging pile.'' For further 
discussion of the applicability of land disposal restrictions to 
staging piles, see the staging piles of today's preamble.
    The conforming change to Sec. 268.50(g) makes it clear that storage 
in a staging pile is not prohibited under the part 268 Subpart E 
prohibitions on storage. A full discussion of this change can be found 
in the staging piles of today's preamble.
    The changes to Sec. 270.11(d) in today's rule offer an alternative 
certification for land owners applying for a RAP at a remediation waste 
management site. A full discussion of this change can be found in the 
preamble discussion of Sec. 270.82(a) in today's preamble.
    The changes to Appendix I of Sec. 270.42 specify which type (Class 
1, 2, or 3) of permit modification is necessary for using staging piles 
at closing facilities and for approval of staging piles or operating 
term extensions at corrective action facilities. Both of these 
activities require a Class 2 permit modification. This decision is 
discussed further in the staging pile of today's preamble.

XIII. How Does Today's Rule Relate to Other EPA Regulations, 
Initiatives and Programs?

A. Subpart S Initiative

    EPA expects today's rule to complement activities being done under 
the Subpart S Initiative. The Subpart S initiative is an effort to 
identify and implement broad-based improvements to the corrective 
action program, drawing upon more than ten years of experience in 
program implementation. The Subpart S Initiative addresses such issues 
as corrective action program priorities, use of administrative 
flexibility in implementing corrective action, and development of 
guidance and regulations for setting site-specific conditions in 
permits and orders for investigating and remediating releases. The May 
1, 1996 Advance Notice of Proposed Rulemaking (61 FR 19432) describes 
the Subpart S Initiative in detail. Because the HWIR-media regulations 
specifically address the management of remediation waste during site 
clean up, they complement the broader Subpart S Initiative.

B. Suspension of the Toxicity Characteristic for Non-UST Petroleum 
Contaminated Media and Debris

    EPA had hoped that the more comprehensive reforms proposed in the 
HWIR-media proposal would sufficiently address the issues raised in the 
``Suspension of the Toxicity Characteristic for Non-UST Petroleum 
Contaminated Media and Debris'' proposal. This proposal, generally 
referred to as the ``Non-UST TC Suspension,'' was published on December 
24, 1992 (57 FR 61542). EPA never finalized the Non-UST Suspension, but 
stated in the HWIR-media proposal that finalization would not likely be 
necessary because a final HWIR-media rule would solve the problems that 
the Non-UST TC Suspension was intended to address. However, especially 
in light of the more limited changes included in today's final rule, 
EPA recognizes that additional reform may be needed for the cleanup of 
non-UST petroleum contaminated media and debris.
    States have developed petroleum response programs to respond to 
petroleum contamination including contaminated media and debris.

[[Page 65932]]

However, as stated by many States with these programs, if the wastes 
must be managed as RCRA hazardous because they fail the TCLP test for 
benzene (as is sometimes the case), then the applicable Subtitle C 
requirements such as LDR, MTR and permitting delay the response 
actions, significantly increase costs, and in some cases may act as a 
disincentive to full cleanup. If remediation wastes, including 
petroleum contaminated media and debris, had been excluded under either 
the Bright Line or Unitary Approaches proposed in the HWIR-media 
proposal, then those State programs may have been able to conduct 
responses as they had planned, and the Non-UST TC Suspension may have 
no longer been needed. However, today's HWIR-media rule does not 
exclude any wastes from Subtitle C requirements, and although EPA is 
streamlining the permitting process, it is still time consuming in 
comparison to the fast response times needed by these State petroleum 
response programs. EPA will continue to review the issues addressed in 
the Non-UST TC Suspension proposal (and subsequently raised in comments 
received on the proposed HWIR-media rule); however, the Agency is not 
taking final action today on that proposal.

C. Deferral of Petroleum-Contaminated Media and Debris from Underground 
Storage Tank Corrective Actions

    Today's rule does not affect the temporary deferral from certain 
portions of EPA's hazardous waste regulations of petroleum-contaminated 
media and debris that are generated from underground storage tank 
corrective actions that are subject to Subtitle I of RCRA. This UST 
deferral was published on March 29, 1990 (55 FR 11862), and amended 
later on June 29, 1990 (55 FR 26986). The deferral appears at 40 CFR 
part 261.4(b)(10).

D. Hazardous Waste Identification Rule (HWIR-waste) (May 20, 1992, and 
December 21, 1995)

    Although today's rule and the HWIR-waste rule are often discussed 
together, they are two separate rulemaking efforts on separate 
schedules. Today's rule does not address, in any way, the key issue of 
the HWIR-waste rule, which is at what point wastes and media should 
exit the Subtitle C regulatory system. EPA will sign a new proposal for 
HWIR-waste by October 31, 1999 and a final rule by April 30, 2001.

E. CERCLA

    EPA expects that the provisions in today's rule applicable to 
staging piles will provide the CERCLA program with more flexibility at 
CERCLA sites where these provisions are ARARs. EPA does not expect the 
new RAP provisions to have any effect on CERCLA sites, because CERCLA 
sites do not require permits for on-site management of remediation 
wastes. Likewise, because the dredged sediments exclusion will not 
alter current practice significantly, EPA does not expect significant 
impact from the new dredged material provisions on the CERCLA program. 
Finally, today's streamlined State authorization procedures will have 
no effect on the CERCLA program. In summary, EPA anticipates some 
positive effect on the CERCLA programs from staging piles, but little 
or no effect on the CERCLA program from the other provisions of HWIR-
media.

F. Legislative Reforms

    While EPA believes today's rule will improve remediation waste 
management and expedite cleanups, the Agency also recognizes that 
additional reform is needed, especially for management of non-media 
remediation wastes, such as remedial sludges, and to provide for more 
tailored land disposal requirements, minimum technological 
requirements, and address certain statutory permitting requirements. 
The Agency considers today's rule to be a partial step, rather than a 
full solution to the problems raised by the application of RCRA 
Subtitle C requirements to remediation wastes. The Agency will continue 
to participate in discussions on potential legislation to promote this 
additional needed reform. If legislation is not forthcoming, the Agency 
may reexamine its approach to remediation waste management and may take 
additional administrative action.

G. Brownfields

    Today's rule complements EPA's continuing efforts to address 
Brownfields properties. The Agency defines Brownfields as abandoned, 
idled, or under-used industrial and commercial facilities where 
expansion or redevelopment is complicated by real or perceived 
environmental contamination. In February 1995, EPA announced its 
Brownfields Action Agenda, launching the first Federal effort of its 
kind designed to empower States, tribes, communities, and other parties 
to safely clean up, reuse, and return Brownfields to productive use. In 
1997, to broaden the mandate of the original agenda, EPA initiated the 
Brownfields National Partnership Agenda, involving nearly 20 other 
Federal agencies in Brownfields cleanup and reuse. Since the 1995 
announcement, EPA has funded Brownfield pilots and reduced barriers to 
cleanup and redevelopment by clarifying environmental liability issues, 
developing partnerships with interested stakeholders, and stressing the 
importance of environmental workforce training.
    As the Agency's Brownfield activities have increased, EPA and 
stakeholders have recognized that the statutory and regulatory 
hazardous waste management and permitting requirements under RCRA can 
render the cleanup and reuse of Brownfields properties cost and time 
prohibitive. In particular, certain RCRA requirements, written with 
``end of pipe'' wastes in mind, may be unnecessarily burdensome when 
applied to Brownfield cleanups. By streamlining the permitting process 
and removing the requirement for facility-wide corrective action at 
remediation-only facilities, today's rule should facilitate cleanup 
activities. Reducing RCRA impediments to cleanup activities not only 
addresses existing Brownfield sites by facilitating cleanups at these 
sites, but also helps prevent the creation of future Brownfields by 
encouraging proactive responses to site contamination during the 
productive life of a facility.

H. Land Disposal Restrictions (Part 268)

    EPA proposed revisions to the treatment standards for hazardous 
contaminated soils first in the Phase II LDR rule, ``Land Disposal 
Restrictions for Newly Identified and Listed Hazardous Wastes and 
Hazardous Soils,'' 58 FR 48092, and again in the April 29, 1996 HWIR-
media proposal, 61 FR 18780. EPA finalized the soil treatment standards 
in the final LDR Phase IV rule (63 FR 28556 (May 26, 1998).

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

    Today's rule will become effective June 1, 1999.

XV. Regulatory Requirements

A. Assessment of Potential Costs and Benefits

1. Executive Order 12866
    Under Executive Order 12866 (58 FR 51735, October 4, 1993), the 
Agency must determine whether any proposed or final regulatory action 
is ``significant'' and therefore, subject to Office of Management and 
Budget (OMB) review and the requirements in the Executive Order. The 
order defines ``significant regulatory action'' as one that is likely 
to result in a rule that may:

[[Page 65933]]

    (a) 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;
    (b) create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (c) materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs, or the rights and obligations of 
recipients thereof; or
    (d) raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    The Agency has determined that today's final rule is a 
``significant regulatory action'' because it raises ``novel legal or 
policy issues'' as specified in (d) above. OPA has submitted this 
action to OMB for review. Changes made in response to OMB suggestions 
or recommendations are documented in the public record for this 
rulemaking (see Docket # F-98-MHWF-FFFFF). The Agency has prepared an 
economic assessment background document in support of today's final 
rule which provides much greater detail than this preamble discussion 
on the analysis of today's standards (``Economic Assessment of the 
Final Hazardous Waste Identification Rule for Contaminated Media''). A 
copy of that document can be found in the docket for today's rule; a 
summary of this assessment is presented below.
2. Background
    Today's rule addresses three main issues: dredged material 
exclusion, staging piles, and remedial action plans (RAPs). Although 
still believing there is a need for comprehensive regulatory reform of 
remediation waste management requirements, the Agency has decided not 
to go forward with the comprehensive regulatory changes which were 
proposed in the April 29, 1996 HWIR-media Proposed Rule (61 FR 18780). 
(Please see section II.E. for a full discussion of the basis for the 
Agency's decision.) The economic assessment prepared in support of 
today's rule addresses only the three main issues covered in the rule, 
none of which were analyzed in the proposed rule economic assessment 
due to their relatively small scale impacts compared with the other 
proposed rule provisions. The response to comments document for today's 
rule responds to comments received on the proposed rule economic 
assessment, and is available in the docket for today's rule.
3. Need for Regulation
    Today's rule provides relief from existing regulatory requirements 
in three specific cases dealing with remediation and management of 
wastes. The dredged material exclusion excludes from RCRA requirements 
a portion of dredged material handled under CWA and MPRSA permits, and 
thus provides clarity of regulatory jurisdiction and removes the 
potential for duplicative effort. The staging pile provision allows for 
temporary storage of remediation wastes in preparation for future 
management. This temporary relief from the traditional requirements for 
land placement provides potential cost savings and encourages 
remediation of wastes. Additionally, the RAP provision allows for 
remedial activities to occur under an expedited vehicle instead of the 
customary RCRA permit requirements. Furthermore, use of this vehicle 
does not invoke RCRA 3004(u) facility-wide corrective action 
obligations; those facilities already under facility-wide corrective 
action requirements which employ a RAP remain under these requirements. 
Thus, today's rule represents a modest reform of the remediation waste 
requirements, while maintaining protection of human health and the 
environment.
4. Assessment of Potential Regulatory Costs
    The economic assessment examines the cost impacts of the provisions 
of today's rule. Benefits of the rule, in the form of human health and 
environmental risk impacts, are not examined in this assessment. The 
Agency believes, however, that these provisions will tend toward 
greater protection of human health and the environment by promoting 
more cleanups. Economic impacts to industries affected by today's rule 
have not been estimated, as the rule provides an overall cost savings.
a. Methodology and Results for Estimating Regulatory Costs
i. Dredged Material Exclusion
    The Agency did not assess impacts from the dredged material 
exclusion in the proposed rule economic assessment, and provided a 
qualitative assessment of the cost savings for this provision in the 
final rule.
    The Agency believes that this exclusion will result in minor 
reductions of compliance costs with respect to current practices of 
dredged material management. The Agency did not collect volume data on 
dredged material management under RCRA. Therefore, no estimate of the 
cost savings has been developed, although it is not expected to be 
significant. In addition to the minor cost savings associated with this 
provision, the exclusion may also decrease the potential for procedural 
delays (caused by multiple permit applications) that delay timely waste 
disposal.
ii. Staging Piles
    The Agency did not assess the impacts of remediation piles (the 
predecessor of staging piles in the proposed rule) in the proposed rule 
economic assessment, and has not quantified the impacts from this 
provision in today's final rule economic impact assessment. Because of 
the narrow scope of the staging pile provisions and their significant 
overlap with existing CAMU, temporary unit, and AOC provisions, the 
Agency believes that this portion of the rule will likely have only 
minor cost savings and economic impacts. As discussed earlier, in some 
cases, staging piles may facilitate the short-term accumulation of 
remediation wastes until a sufficient volume can be shipped to a 
treatment or disposal facility or accumulated to implement cost-
effective on-site management. In these situations, the new provisions 
will result in cost savings. The Agency, however, does not expect that 
the use of staging piles will provide significant quantifiable cost 
savings, and any savings realized must be evaluated in light of the 
costs associated with obtaining staging pile approval (either through 
an RCRA permit or a RAP). The staging pile provisions will, however, 
not result in any increase in cost because their use is voluntary.
    One alternative which the Agency has determined not to adopt in 
today's final rule is to allow treatment in staging piles. Allowing 
treatment would potentially increase the use of staging piles, making 
them more beneficial in certain cases where a CAMU is not necessary for 
disposal and a temporary unit does not provide enough management 
flexibility. However, the Agency believes that these cases would be 
relatively few, and that treatment is more appropriate in a CAMU, which 
has design and operating standards to fit the requirements surrounding 
treatment in a unit.
iii. Remediation Action Plans (RAPs)
    This section of the preamble summarizes the methodology and results 
for the cost assessment performed on the RAP provisions in today's 
final rule. The Agency estimates

[[Page 65934]]

a total cost savings of between $5 million and $35 million per year for 
the RAP provision. The Agency did not assess the impacts of RAPs in the 
proposed rule economic assessment.
    To evaluate this new provision, the Agency performed a quantitative 
analysis focusing on the cost saving opportunities provided by RAPs to 
unpermitted facilities which excavate contaminated media and send it 
off-site for treatment. An additional savings is estimated to occur at 
unpermitted facilities which are not currently undertaking remediation 
due to requirements involved in RCRA permitting; however, this savings 
has not been quantified.
    Facilities permitted under RCRA, as well as interim status 
facilities, are already under facility-wide corrective action 
obligations, and would therefore be much less likely to shift to use of 
RAPs given the relatively minor incremental savings of using a RAP over 
obtaining a permit modification. Therefore, unpermitted facilities, 
mainly from State and voluntary cleanups, were examined for a cost 
savings impact from the RAP provisions. To calculate this savings, the 
Agency: (1) Estimated the total number of unpermitted facilities 
currently sending remediation waste off site in the baseline; (2) 
determined the number of facilities in this group which will shift 
current practices to take advantage of the RAP provision (that is, will 
shift to on-site treatment); (3) projected an incremental cost savings 
for this shift; and (4) applied it to the number of facilities 
determined to shift to estimate the total cost savings for that group. 
The cost savings was quantified as the reduction in transportation 
costs for facilities which are estimated to no longer ship waste off-
site for treatment, and the reduction in treatment costs for those 
facilities projected to shift from off-site ex-situ treatment in the 
baseline to on-site in-situ treatment in the post-regulatory case. The 
Agency estimated the number of States which already have permit-waiver 
authority, and thus where the RAP provision is less likely to have a 
significant impact; this figure was employed in determining the number 
of facilities likely to be impacted.
    The total number of facilities estimated to shift to use of RAPs is 
between seven and 66 facilities, all of which currently (in the 
baseline) treat excavated contaminated media off-site. The total cost 
savings estimated for this group is between $5 million and $35 million 
per year.

B. Executive Order 12898: Environmental Justice

    Under Executive Order 12898, ``Federal Actions to Address 
Environmental Justice in Minority Populations and Low-Income 
Populations,'' as well as through EPA's April 1995, ``Environmental 
Justice Strategy, OSWER Environmental Justice Task Force Action Agenda 
Report,'' and National Environmental Justice Advisory Council, EPA has 
undertaken incorporation of environmental justice into its policies and 
programs. EPA is committed to addressing environmental justice concerns 
and is assuming a leadership role in environmental justice initiatives 
to enhance environmental quality for all residents of the United 
States. The Agency's goals are to ensure that no segment of the 
population, regardless of race, color, national origin, or income bears 
disproportionately high and adverse human health and environmental 
effects as a result of EPA's policies, programs, and activities, and 
all people live in clean and sustainable communities. To address this 
goal, EPA considered the impacts of the HWIR-media final rule on low-
income populations and minority populations.
    EPA has concluded that today's final rule will potentially advance 
environmental justice causes. The HWIR-media final rule will 
potentially assist in expediting site cleanups across the nation by 
reducing the need for time-consuming permitting of on-site cleanup 
activities, increasing the flexibility of decision-makers to respond to 
site-specific conditions, and lessening administrative and regulatory 
complications and delays. This may free remediation resources to 
address additional sites. By encouraging excavation of contaminated 
media, the HWIR-media final rule will expedite the restoration of sites 
and lead to their beneficial use, which may result in new jobs and 
increased economic activity in low-income or minority communities. This 
economic activity could take the form of increased employment of local 
community members at the cleanup sites; the sale and redevelopment of 
sites for new economic activities; and new beneficial uses for 
remediated properties, such as parks, transportation facilities, and 
even hospitals.

C. Unfunded Mandates Reform Act

    The Agency also evaluated the final HWIR-media rule for compliance 
with the Unfunded Mandates Reform Act of 1995. Title II of the Unfunded 
Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes 
requirements for Federal agencies to assess the effects of their 
regulatory actions on State, Local, and Tribal governments and the 
private sector. Under section 202 of the UMRA, EPA generally must 
prepare a written statement, including a cost-benefit analysis, for 
proposed and final rules with ``Federal Mandates'' that may result in 
expenditures to State, Local, and Tribal governments, in the aggregate 
or to the private sector, of $100 million or more in one year. Before 
promulgating a rule for which a written statement is needed, section 
205 of the UMRA generally requires EPA to identify and consider a 
reasonable number of regulatory alternatives and adopt the least 
costly, most cost-effective or least burdensome alternative that 
achieves the objectives of the rule. The provisions of section 205 do 
not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including Tribal governments, it must have developed under 
section 203 of the UMRA a small government Agency plan. The plan must 
provide for notifying potentially affected small governments, enabling 
officials of affected small governments to have meaningful and timely 
input in the development of EPA regulatory proposals with significant 
Federal intergovernmental mandates, and informing, educating, and 
advising small governments on compliance with the regulatory 
requirements.
    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 the UMRA generally excludes 
from the definition of ``Federal intergovernmental mandate'' duties 
that arise from participation in a voluntary Federal program. HWIR-
media is a voluntary program as it applies to State, Local, and Tribal 
governments. In addition, promulgation of the HWIR-media rule, because 
it is considered less stringent than current requirements, is not 
expected to result in mandated costs estimated at $100 million or more 
to any State, Local, or Tribal governments, in any one year. Thus, 
today's proposal is not subject to the requirements in sections 202 and 
205 of the UMRA. Finally, EPA has determined that the proposed HWIR-
media rule contains no regulatory

[[Page 65935]]

requirements that might significantly or uniquely affect small 
governments, and thus is not subject to the requirements in section 203 
of the UMRA. Specifically, the program is generally less stringent than 
the existing program and makes no distinctions between small 
governments and any potentially regulated party.

D. Executive Order 12875: Enhancing the Intergovernmental Partnership

    Under Executive Order 12875, EPA may not issue a regulation that is 
not required by statute and that creates a mandate upon a State, local 
or tribal government, unless the Federal government provides the funds 
necessary to pay the direct compliance costs incurred by those 
governments. If EPA complies by consulting, Executive Order 12875 
requires EPA to provide to the Office of Management and Budget a 
description of the extent of EPA's prior consultation with 
representatives of affected State, local and tribal governments, the 
nature of their concerns, copies of any written communications from the 
governments, and a statement supporting the need to issue the 
regulation. In addition, Executive Order 12875 requires EPA to develop 
an effective process permitting elected officials and other 
representatives of State, local and tribal governments ``to provide 
meaningful and timely input in the development of regulatory proposals 
containing significant unfunded mandates.''
    This rule does not create a mandate on State, local or tribal 
governments. The rule does not impose any enforceable duties on these 
entities. It provides more flexibility for States to implement already-
existing requirements.

E. Regulatory Flexibility Act

    Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601 et seq., 
as amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996) at the time the Agency publishes a proposed or final 
rule, it must prepare and make available for public comment a 
Regulatory Flexibility Analysis that describes the effect of the rule 
on small entities. However, no regulatory flexibility analysis is 
required if the Administrator certifies the rule will not have a 
significant adverse impact on a substantial number of small entities. 
The following discussion explains EPA's determination.
    The Agency has determined that today's final rule will not have a 
significant adverse economic impact on a substantial number of small 
entities, because the rule is estimated to provide regulatory relief, 
and will not impose any costs on the regulated community. (For the 
analysis of impacts showing the relief nature of today's rule, see the 
above economic assessment.) Therefore, no RFA has been prepared. Based 
on the foregoing discussion, I hereby certify that this rule will not 
have a significant adverse economic impact on a substantial number of 
small entities.

F. Paperwork Reduction Act

    The information collection requirements in this rule will be 
submitted for approval to the Office of Management and Budget (OMB) 
under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. An 
Information Collection Request (ICR) document has been prepared by EPA 
(ICR No. 1775.02) and a copy may be obtained from Sandy Farmer by mail 
at OPPE Regulatory Information Division; U.S. Environmental Protection 
Agency (2137); 401 M St., SW.; Washington, DC 20460, by e-mail at 
[email protected], or by calling (202) 260-2740. A copy may 
also be downloaded off the Internet at http://www.epa.gov/icr. The 
information requirements are not effective until OMB approves them.
    The Agency has estimated the burden associated with complying with 
the requirements in this proposed rule. Included in the ICR are the 
burden estimates for the following requirements for industry 
respondents: reading the regulations; for staging piles, applying, 
keeping records, requesting extensions, closing, and incorporating into 
permits; for general facility standards for remediation waste 
management sites, obtaining an EPA identification number, performing 
waste analysis, demonstrations for locating units in floodplains, and 
contingency and emergency plans; for RAPs at permitted facilities, the 
permit modification procedures; and finally, for RAP applicants, the 
data in the RAP application, transfer of facility ownership, and 
recordkeeping. Included also are the burden estimates for State 
respondents for applying for abbreviated State authorization.
    The Agency has determined that all of this information is necessary 
to ensure compliance with today's rule. Specifically, the information 
for staging piles is required to ensure that the design and operating 
of staging piles will comply with all applicable regulations and will 
be protective of human health and the environment, to ensure that 
staging piles are operated within the two year limit, to ensure that 
any requested extensions are necessary and will not threaten human 
health and the environment, to ensure that staging piles are closed 
according to the applicable regulations, and finally, to ensure that 
permits are modified appropriately. The information for general 
facility standards is necessary to ensure consistent and coordinated 
identification of the site, to have adequate knowledge of the waste 
being managed to ensure the appropriate waste management requirements 
are complied with, and to be adequately prepared for contingencies and 
emergencies. The information for RAPs is necessary to determine whether 
the remediation waste management activities will comply with the 
applicable regulatory requirements, to ensure smooth transfer of 
facility ownership, and to ensure that facility owners and operators 
have access to all relevant information regarding their RAP 
application. The information for State respondents seeking 
authorization is necessary to verify legal authorities and confirm that 
the State requirements are no less stringent than Federal law.
    All of the information required under today's rule is required only 
when the respondent wishes to obtain a benefit such as a staging pile, 
a RAP, or State authorization. Provisions already exist, such as other 
units in part 264, and traditional RCRA permits whereby respondents 
could perform the same functions allowed in staging piles and RAPs, 
except that staging piles and RAPs may be more desirable because they 
are more flexible and more appropriate for the cleanup scenario, so 
respondents may voluntarily choose to obtain staging piles and RAPs 
instead of other options, but they are not required to. Also, because 
today's rule is less stringent than the existing RCRA regulations, it 
is optional for States to adopt and seek authorization for this rule. 
Therefore, States could choose not to adopt today's rule.
    Section 3007(b) of RCRA and 40 CFR part 2, Subpart B, which define 
EPA's general policy on the public disclosure of information, contain 
provisions for confidentiality and apply to today's rulemaking.
    EPA has tried to minimize the burden of this collection of 
information in respondents. The universe of respondents is expected to 
be sites conducting cleanup under State and Federal cleanup programs. 
EPA expects that the industries most likely to be affected by these 
requirements will be associated with the following SIC codes:
SIC Code Industry
2491 Wood preserving
2812 Alkalies and chlorine
2819, 2869 Industrial organic chemicals

[[Page 65936]]

2821 Plastics materials and resins
2879 Agricultural chemicals
2899 Chemical preparations
2911 Petroleum refining
3000 Rubber and miscellaneous plastics products
3089 Plastics products
3229 Pressed and blown glass
3316 Cold finishing of steel shapes
3339 Primary nonferrous metals
3341 Secondary nonferrous metals
3470 Metal services
3480, 3489 Ordnance and accessories
3482 Small arms ammunition
3568 General industrial machinery
3662 Communications equipment
3674 Semiconductors and related devices
3691 Storage batteries
3728 Aircraft parts and equipment
3764 Space propulsion units and parts
3792 Travel trailers and campers
3820 Measuring and controlling devices
3840 Medical instruments and supplies
4230 Trucking terminal facilities
4581 Airports, flying fields, and services
4953 Refuse systems
7210 Laundry, cleaning, and garment services
8221 Colleges and universities
9711 National security

    EPA estimates the projected annual hour burden for industry 
respondents will be 33,733 hours, and cost of $1,967,699. Total 
estimates over three years are 101,199 hours and $5,903,097. EPA 
estimates that State agency respondent will incur a total annual burden 
of 886 hours and $22,410, which over three years would be 2,658 hours 
and $67,230. EPA estimates that the annual Agency burden will be 5,726 
hours and $176,899, which over three years would be 17,178 hours and 
$530,697. As subsets of the above total costs, EPA estimates no annual 
capital costs, and annual operation and maintenance costs for staging 
piles and RAPs of $49,902, and for State authorization of $54. As a 
subset of operation and maintenance, EPA estimates $750 each time a 
responder purchases services for waste analysis, for a total of 
$65,472. This is the only area where EPA expects purchase of services.
    For complying with the requirements in the HWIR-media rule, 
industry respondents are expected to spend an average of 13.7 hours per 
year on recordkeeping requirements and 5.0 hours per year on reporting 
requirements. State agency respondents are expected to spend no time on 
recordkeeping, as there are no recordkeeping requirements for the 
States, and 16.4 hours per year on reporting requirements.
    EPA estimates that 1,805 sites are eligible for RAPs and staging 
piles, and are assumed by EPA to be the universe of potential 
responders. These 1,805 potential responders are expected to read the 
regulations. EPA estimates that 90 responders per year will use staging 
piles, and 66 responders per year will use RAPs. EPA estimates that 18 
States per year will apply for authorization. Responders will only need 
to respond once for each activity for staging piles, RAPs, or State 
authorization.
    Burden means the total time, effort, or financial resources 
expended by persons to generate, maintain, retain, or disclose or 
provide information to or for a Federal agency. This includes the time 
needed to review instructions; develop, acquire, install, and utilize 
technology and systems for the purposes of collecting, validating, and 
verifying information, processing and maintaining information, and 
disclosing and providing information; adjust the existing ways to 
comply with any previously applicable instructions and requirements; 
train personnel to be able to respond to a collection of information; 
search data sources; complete and review the collection of information; 
and transmit or otherwise disclose the information.
    An Agency may not conduct or sponsor, and a person is not required 
to respond to a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations are listed in 40 CFR part 9 and 48 CFR chapter 15.
    Send comments on the Agency's need for this information, the 
accuracy of the provided burden estimates, and any suggested methods 
for minimizing respondent burden, including through the use of 
automated collection techniques to the Director, OPPE Regulatory 
Information Division; U.S. Environmental Protection Agency (2137); 401 
M St., SW.; Washington, DC 20460; and to the Office of Information and 
Regulatory Affairs, Office of Management and Budget, 725 17th St., NW., 
Washington, DC 20503, marked ``Attention: Desk Officer for EPA.'' 
Comments are requested by December 30, 1998. Include the ICR number in 
any correspondence.

G. National Technology Transfer and Advancement Act

    Under section 12(d) of the National Technology Transfer and 
Advancement Act, the Agency is directed to use voluntary consensus 
standards in its regulatory activities unless to do so would be 
inconsistent with applicable law or otherwise impractical. Voluntary 
consensus standards are technical standards (for example, materials 
specifications, test methods, sampling procedures, business practices, 
etc.) that are developed or adopted by voluntary consensus standard 
bodies. Where available and potentially applicable voluntary consensus 
standards are not used by EPA, the Act requires the Agency to provide 
Congress, through the Office of Management and Budget, an explanation 
of the reasons for not using these standards.
    EPA is not proposing any new test methods or other technical 
standards as part of today's final rule. Thus, the Agency has no need 
to consider the use of voluntary consensus standards in developing this 
proposed rule.

H. Submission to Congress and the General Accounting Office

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A Major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).

I. Executive Order 13045: Protection of Children from Environmental 
Health Risks and Safety Risks

    Executive Order 13045, entitled ``Protection of Children from 
Environmental Health Risks and Safety Risks'' (see 62 FR 19885, April 
23, 1997) applies to any rule that EPA determines: (1) is 
``economically significant'' as defined under Executive Order 12866, 
and (2) the environmental health or safety risk addressed by the rule 
has a disproportionate effect on children. If the regulatory action 
meets both criteria, the Agency must evaluate the environmental health 
or safety effects of the planned rule on children, and explain why the 
planned regulation is preferable to other potentially effective and 
reasonably feasible alternatives considered by the Agency.
    This final rule is not subject to E.O. 13045 because this is not an 
``economically significant'' regulatory action as defined by E.O. 
12866.

J. Executive Order 13084: Consultation and Coordination with Indian 
Tribal Governments

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

[[Page 65937]]

required by statute, that significantly or uniquely affects the 
communities of Indian tribal governments, and that imposes substantial 
direct compliance costs on those communities, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by the tribal governments, or EPA consults with those 
governments. If EPA complies by consulting, Executive Order 13084 
requires EPA to provide to the Office of Management and Budget, in a 
separately identified of the preamble to the rule, a description of the 
extent of EPA's prior consultation with representatives of affected 
tribal governments, a summary of the nature of their concerns, and a 
statement supporting the need to issue the regulation. In addition, 
Executive Order 13084 requires EPA to develop an effective process 
permitting elected and other representatives of Indian tribal 
governments ``to provide meaningful and timely input in the development 
of regulatory policies on matters that significantly or uniquely affect 
their communities.''
    Today's rule does not significantly or uniquely affect the 
communities of Indian tribal governments. In addition, this rule 
imposes no new requirements on owners and operators, but rather, allow 
flexibility to regulators to implement requirements already in place. 
Accordingly, the requirements in 3(b) of Executive Order 13084 do not 
apply to this rule.

List of Subjects

40 CFR Part 260

    Environmental protection, Administrative practice and procedure, 
Confidential business information, Hazardous waste, Reporting and 
recordkeeping requirements.

40 CFR Part 261

    Hazardous waste, Recycling, Reporting and recordkeeping 
requirements.

40 CFR Parts 264 and 265

    Air pollution control, Hazardous waste, Insurance, Packaging and 
containers, Reporting and recordkeeping requirements, Security 
measures, Surety bonds.

40 CFR Part 268

    Hazardous waste, Reporting and recordkeeping requirements.

40 CFR Part 270

    Administrative practice and procedure, Confidential business 
information, Hazardous materials transportation, Hazardous waste, 
Reporting and recordkeeping requirements, Water pollution control, 
Water supply.

40 CFR Part 271

    Administrative practice and procedure, Confidential business 
administration, Hazardous materials transportation, Hazardous waste, 
Indians-lands, Intergovernmental relations, Penalties, Reporting and 
recordkeeping requirements, Water pollution control, Water supply.

    Authority: 42 U.S.C. 6912(a), 6921, 6924, 6926, and 6927.

    Dated: November 2, 1998.
Carol M. Browner,
Administrator.

    For the reasons set out in the preamble, title 40, chapter I of the 
Code of Federal Regulations is amended as follows:

PART 260--HAZARDOUS WASTE MANAGEMENT SYSTEM: GENERAL

    1. The authority citation for part 260 continues to read as 
follows:

    Authority: 42 U.S.C. 6905, 6912(a), 6921-6927, 6930, 6934, 6935, 
6937, 6938, 6939, and 6974.

    2. Section 260.10 is amended by revising the introductory text; by 
removing the definition for ``Corrective action management unit or 
CAMU'; by revising the definitions for ``Miscellaneous unit'' and 
``Remediation waste''; by adding paragraph (3) to the definition of 
``Facility''; and by adding definitions in alphabetical order for 
``Corrective action management unit (CAMU),'' ``Remediation waste 
management site'' and ``Staging pile'' to read as follows:


Sec. 260.10  Definitions.

    When used in parts 260 through 273 of this chapter, the following 
terms have the meanings given below:
* * * * *
    Corrective action management unit (CAMU) means an area within a 
facility that is used only for managing remediation wastes for 
implementing corrective action or cleanup at the facility.
* * * * *
    Facility * * *
    (3) Notwithstanding paragraph (2) of this definition, a remediation 
waste management site is not a facility that is subject to 40 CFR 
264.101, but is subject to corrective action requirements if the site 
is located within such a facility.
* * * * *
    Miscellaneous unit means a hazardous waste management unit where 
hazardous waste is treated, stored, or disposed of and that is not a 
container, tank, surface impoundment, pile, land treatment unit, 
landfill, incinerator, boiler, industrial furnace, underground 
injection well with appropriate technical standards under part 146 of 
this chapter, containment building, corrective action management unit, 
unit eligible for a research, development, and demonstration permit 
under 40 CFR 270.65, or staging pile.
* * * * *
    Remediation waste means all solid and hazardous wastes, and all 
media (including groundwater, surface water, soils, and sediments) and 
debris that contain listed hazardous wastes or that themselves exhibit 
a hazardous characteristic and are managed for implementing cleanup.
    Remediation waste management site means a facility where an owner 
or operator is or will be treating, storing or disposing of hazardous 
remediation wastes. A remediation waste management site is not a 
facility that is subject to corrective action under 40 CFR 264.101, but 
is subject to corrective action requirements if the site is located in 
such a facility.
* * * * *
    Staging pile means an accumulation of solid, non-flowing 
remediation waste (as defined in this section) that is not a 
containment building and that is used only during remedial operations 
for temporary storage at a facility. Staging piles must be designated 
by the Director according to the requirements of 40 CFR 264.554.
* * * * *

PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE

    3. The authority citation for part 261 continues to read as 
follows:

    Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, 6924(y) and 
6938.

    4. Section 261.4 is amended by adding paragraph (g) to read as 
follows:


Sec. 261.4  Exclusions.

* * * * *
    (g) Dredged material that is not a hazardous waste. Dredged 
material that is subject to the requirements of a permit that has been 
issued under 404 of the Federal Water Pollution Control Act (33 
U.S.C.1344) or section 103 of the Marine Protection, Research, and 
Sanctuaries Act of 1972 (33 U.S.C. 1413) is not a hazardous waste. For 
this paragraph (g), the following definitions apply:
    (1) The term dredged material has the same meaning as defined in 40 
CFR 232.2;
    (2) The term permit means:

[[Page 65938]]

    (i) A permit issued by the U.S. Army Corps of Engineers (Corps) or 
an approved State under section 404 of the Federal Water Pollution 
Control Act (33 U.S.C. 1344);
    (ii) A permit issued by the Corps under section 103 of the Marine 
Protection, Research, and Sanctuaries Act of 1972 (33 U.S.C. 1413); or
    (iii) In the case of Corps civil works projects, the administrative 
equivalent of the permits referred to in paragraphs (g)(2)(i) and (ii) 
of this section, as provided for in Corps regulations (for example, see 
33 CFR 336.1, 336.2, and 337.6).

PART 264--STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE 
TREATMENT, STORAGE, AND DISPOSAL FACILITIES

    5. The authority citation for part 264 continues to read as 
follows:

    Authority: 42 U.S.C. 6905, 6912(a), 6924, and 6925.

    6. Section 264.1 is amended by adding new paragraph (j) to read as 
follows:


Sec. 264.1  Purpose, scope and applicability.

* * * * *
    (j) The requirements of subparts B, C, and D of this part and 
Sec. 264.101 do not apply to remediation waste management sites. 
(However, some remediation waste management sites may be a part of a 
facility that is subject to a traditional RCRA permit because the 
facility is also treating, storing or disposing of hazardous wastes 
that are not remediation wastes. In these cases, Subparts B, C, and D 
of this part, and Sec. 264.101 do apply to the facility subject to the 
traditional RCRA permit.) Instead of the requirements of subparts B, C, 
and D of this part, owners or operators of remediation waste management 
sites must:
    (1) Obtain an EPA identification number by applying to the 
Administrator using EPA Form 8700-12;
    (2) Obtain a detailed chemical and physical analysis of a 
representative sample of the hazardous remediation wastes to be managed 
at the site. At a minimum, the analysis must contain all of the 
information which must be known to treat, store or dispose of the waste 
according to this part and part 268 of this chapter, and must be kept 
accurate and up to date;
    (3) Prevent people who are unaware of the danger from entering, and 
minimize the possibility for unauthorized people or livestock to enter 
onto the active portion of the remediation waste management site, 
unless the owner or operator can demonstrate to the Director that:
    (i) Physical contact with the waste, structures, or equipment 
within the active portion of the remediation waste management site will 
not injure people or livestock who may enter the active portion of the 
remediation waste management site; and
    (ii) Disturbance of the waste or equipment by people or livestock 
who enter onto the active portion of the remediation waste management 
site, will not cause a violation of the requirements of this part;
    (4) Inspect the remediation waste management site for malfunctions, 
deterioration, operator errors, and discharges that may be causing, or 
may lead to, a release of hazardous waste constituents to the 
environment, or a threat to human health. The owner or operator must 
conduct these inspections often enough to identify problems in time to 
correct them before they harm human health or the environment, and must 
remedy the problem before it leads to a human health or environmental 
hazard. Where a hazard is imminent or has already occurred, the owner/
operator must take remedial action immediately;
    (5) Provide personnel with classroom or on-the-job training on how 
to perform their duties in a way that ensures the remediation waste 
management site complies with the requirements of this part, and on how 
to respond effectively to emergencies;
    (6) Take precautions to prevent accidental ignition or reaction of 
ignitable or reactive waste, and prevent threats to human health and 
the environment from ignitable, reactive and incompatible waste;
    (7) For remediation waste management sites subject to regulation 
under subparts I through O and subpart X of this part, the owner/
operator must design, construct, operate, and maintain a unit within a 
100-year floodplain to prevent washout of any hazardous waste by a 100-
year flood, unless the owner/operator can meet the demonstration of 
Sec. 264.18(b);
    (8) Not place any non-containerized or bulk liquid hazardous waste 
in any salt dome formation, salt bed formation, underground mine or 
cave;
    (9) Develop and maintain a construction quality assurance program 
for all surface impoundments, waste piles and landfill units that are 
required to comply with Secs. 264.221(c) and (d), 264.251(c) and (d), 
and 264.301(c) and (d) at the remediation waste management site, 
according to the requirements of Sec. 264.19;
    (10) Develop and maintain procedures to prevent accidents and a 
contingency and emergency plan to control accidents that occur. These 
procedures must address proper design, construction, maintenance, and 
operation of remediation waste management units at the site. The goal 
of the plan must be to minimize the possibility of, and the hazards 
from a fire, explosion, or any unplanned sudden or non-sudden release 
of hazardous waste or hazardous waste constituents to air, soil, or 
surface water that could threaten human health or the environment. The 
plan must explain specifically how to treat, store and dispose of the 
hazardous remediation waste in question, and must be implemented 
immediately whenever a fire, explosion, or release of hazardous waste 
or hazardous waste constituents which could threaten human health or 
the environment;
    (11) Designate at least one employee, either on the facility 
premises or on call (that is, available to respond to an emergency by 
reaching the facility quickly), to coordinate all emergency response 
measures. This emergency coordinator must be thoroughly familiar with 
all aspects of the facility's contingency plan, all operations and 
activities at the facility, the location and characteristics of waste 
handled, the location of all records within the facility, and the 
facility layout. In addition, this person must have the authority to 
commit the resources needed to carry out the contingency plan;
    (12) Develop, maintain and implement a plan to meet the 
requirements in paragraphs (j)(2) through (j)(6) and (j)(9) through 
(j)(10) of this section; and
    (13) Maintain records documenting compliance with paragraphs (j)(1) 
through (j)(12) of this section.
    7. Section 264.73 is amended by adding paragraph (b)(17) to read as 
follows:


Sec. 264.73  Operating record.

* * * * *
    (b) * * *
    (17) Any records required under Sec. 264.1(j)(13).
    8. Section 264.101 is amended by adding paragraph (d) to read as 
follows:


Sec. 264.101  Corrective action for solid waste management units.

* * * * *
    (d) This does not apply to remediation waste management sites 
unless they are part of a facility subject to a permit for treating, 
storing or disposing of hazardous wastes that are not remediation 
wastes.

[[Page 65939]]

    9. Section 264.552 is amended by revising paragraph (a) to read as 
follows:


Sec. 264.552  Corrective Action Management Units (CAMU).

    (a) To implement remedies under Sec. 264.101 or RCRA 3008(h), or to 
implement remedies at a permitted facility that is not subject to 
Sec. 264.101, the Regional Administrator may designate an area at the 
facility as a corrective action management unit, as defined in 
Sec. 260.10, under the requirements in this section. A CAMU must be 
located within the contiguous property under the control of the owner/
operator where the wastes to be managed in the CAMU originated. One or 
more CAMUs may be designated at a facility.
    (1) Placement of remediation wastes into or within a CAMU does not 
constitute land disposal of hazardous wastes.
    (2) Consolidation or placement of remediation wastes into or within 
a CAMU does not constitute creation of a unit subject to minimum 
technology requirements.
* * * * *
    10. Section 264.553 is amended by revising paragraph (a) to read as 
follows:


Sec. 264.553  Temporary Units (TU).

    (a) For temporary tanks and container storage areas used to treat 
or store hazardous remediation wastes during remedial activities 
required under Sec. 264.101 or RCRA 3008(h), or at a permitted facility 
that is not subject to Sec. 264.101, the Regional Administrator may 
designate a unit at the facility, as a temporary unit. A temporary unit 
must be located within the contiguous property under the control of the 
owner/operator where the wastes to be managed in the temporary unit 
originated. For temporary units, the Regional Administrator may replace 
the design, operating, or closure standard applicable to these units 
under this part 264 or part 265 of this chapter with alternative 
requirements which protect human health and the environment.
* * * * *
    11. New Sec. 264.554 is added to subpart S to read as follows:


Sec. 264.554  Staging piles.

    This section is written in a special format to make it easier to 
understand the regulatory requirements. Like other Environmental 
Protection Agency (EPA) regulations, this establishes enforceable legal 
requirements. For this ``I'' and ``you'' refer to the owner/operator.
    (a) What is a staging pile? A staging pile is an accumulation of 
solid, non-flowing remediation waste (as defined in Sec. 260.10 of this 
chapter) that is not a containment building and is used only during 
remedial operations for temporary storage at a facility. A staging pile 
must be located within the contiguous property under the control of the 
owner/operator where the wastes to be managed in the staging pile 
originated. Staging piles must be designated by the Director in 
according to the requirements in this section.
    (b) When may I use a staging pile? You may use a staging pile to 
store hazardous remediation waste (or remediation waste otherwise 
subject to land disposal restrictions) only if you follow the standards 
and design criteria the Director has designated for that staging pile. 
The Director must designate the staging pile in a permit or, at an 
interim status facility, in a closure plan or order (consistent with 
Sec. 270.72(a)(5) and (b)(5) of this chapter). The Director must 
establish conditions in the permit, closure plan, or order that comply 
with paragraphs (d) through (k) of this section.
    (c) What information must I provide to get a staging pile 
designated? When seeking a staging pile designation, you must provide:
    (1) Sufficient and accurate information to enable the Director to 
impose standards and design criteria for your staging pile according to 
paragraphs (d) through (k) of this section;
    (2) Certification by an independent, qualified, registered 
professional engineer for technical data, such as design drawings and 
specifications, and engineering studies, unless the Director 
determines, based on information that you provide, that this 
certification is not necessary to ensure that a staging pile will 
protect human health and the environment; and
    (3) Any additional information the Director determines is necessary 
to protect human health and the environment.
    (d) What performance criteria must a staging pile satisfy? The 
Director must establish the standards and design criteria for the 
staging pile in the permit, closure plan, or order.
    (1) The standards and design criteria must comply with the 
following:
    (i) The staging pile must facilitate a reliable, effective and 
protective remedy;
    (ii) The staging pile must be designed so as to prevent or minimize 
releases of hazardous wastes and hazardous constituents into the 
environment, and minimize or adequately control cross-media transfer, 
as necessary to protect human health and the environment (for example, 
through the use of liners, covers, run-off/run-on controls, as 
appropriate); and
    (iii) The staging pile must not operate for more than two years, 
except when the Director grants an operating term extension under 
paragraph (i) of this section (entitled ``May I receive an operating 
extension for a staging pile?''). You must measure the two-year limit, 
or other operating term specified by the Director in the permit, 
closure plan, or order, from the first time you place remediation waste 
into a staging pile. You must maintain a record of the date when you 
first placed remediation waste into the staging pile for the life of 
the permit, closure plan, or order, or for three years, whichever is 
longer.
    (2) In setting the standards and design criteria, the Director must 
consider the following factors:
    (i) Length of time the pile will be in operation;
    (ii) Volumes of wastes you intend to store in the pile;
    (iii) Physical and chemical characteristics of the wastes to be 
stored in the unit;
    (iv) Potential for releases from the unit;
    (v) Hydrogeological and other relevant environmental conditions at 
the facility that may influence the migration of any potential 
releases; and
    (vi) Potential for human and environmental exposure to potential 
releases from the unit;
    (e) May a staging pile receive ignitable or reactive remediation 
waste? You must not place ignitable or reactive remediation waste in a 
staging pile unless:
    (1) You have treated, rendered or mixed the remediation waste 
before you placed it in the staging pile so that:
    (i) The remediation waste no longer meets the definition of 
ignitable or reactive under Sec. 261.21 or Sec. 261.23 of this chapter; 
and
    (ii) You have complied with Sec. 264.17(b); or
    (2) You manage the remediation waste to protect it from exposure to 
any material or condition that may cause it to ignite or react.
    (f) How do I handle incompatible remediation wastes in a staging 
pile? The term ``incompatible waste'' is defined in Sec. 260.10 of this 
chapter. You must comply with the following requirements for 
incompatible wastes in staging piles:
    (1) You must not place incompatible remediation wastes in the same 
staging pile unless you have complied with Sec. 264.17(b);
    (2) If remediation waste in a staging pile is incompatible with any 
waste or material stored nearby in containers,

[[Page 65940]]

other piles, open tanks or land disposal units (for example, surface 
impoundments), you must separate the incompatible materials, or protect 
them from one another by using a dike, berm, wall or other device; and
    (3) You must not pile remediation waste on the same base where 
incompatible wastes or materials were previously piled, unless the base 
has been decontaminated sufficiently to comply with Sec. 264.17(b).
    (g) Are staging piles subject to Land Disposal Restrictions (LDR) 
and Minimum Technological Requirements (MTR)? No. Placing hazardous 
remediation wastes into a staging pile does not constitute land 
disposal of hazardous wastes or create a unit that is subject to the 
minimum technological requirements of RCRA 3004(o).
    (h) How long may I operate a staging pile? The Director may allow a 
staging pile to operate for up to two years after hazardous remediation 
waste is first placed into the pile. You must use a staging pile no 
longer than the length of time designated by the Director in the 
permit, closure plan, or order (the ``operating term''), except as 
provided in paragraph (i) of this section.
    (i) May I receive an operating extension for a staging pile? (1) 
The Director may grant one operating term extension of up to 180 days 
beyond the operating term limit contained in the permit, closure plan, 
or order (see paragraph (l) of this section for modification 
procedures). To justify to the Director the need for an extension, you 
must provide sufficient and accurate information to enable the Director 
to determine that continued operation of the staging pile:
    (i) Will not pose a threat to human health and the environment; and
    (ii) Is necessary to ensure timely and efficient implementation of 
remedial actions at the facility.
    (2) The Director may, as a condition of the extension, specify 
further standards and design criteria in the permit, closure plan, or 
order, as necessary, to ensure protection of human health and the 
environment.
    (j) What is the closure requirement for a staging pile located in a 
previously contaminated area? (1) Within 180 days after the operating 
term of the staging pile expires, you must close a staging pile located 
in a previously contaminated area of the site by removing or 
decontaminating all:
    (i) Remediation waste;
    (ii) Contaminated containment system components; and
    (iii) Structures and equipment contaminated with waste and 
leachate.
    (2) You must also decontaminate contaminated subsoils in a manner 
and according to a schedule that the Director determines will protect 
human health and the environment.
    (3) The Director must include the above requirements in the permit, 
closure plan, or order in which the staging pile is designated.
    (k) What is the closure requirement for a staging pile located in 
an uncontaminated area? (1) Within 180 days after the operating term of 
the staging pile expires, you must close a staging pile located in an 
uncontaminated area of the site according to Secs. 264.258(a) and 
264.111; or according to Secs. 265.258(a) and 265.111 of this chapter.
    (2) The Director must include the above requirement in the permit, 
closure plan, or order in which the staging pile is designated.
    (l) How may my existing permit (for example, RAP), closure plan, or 
order be modified to allow me to use a staging pile? (1) To modify a 
permit, other than a RAP, to incorporate a staging pile or staging pile 
operating term extension, either:
    (i) The Director must approve the modification under the procedures 
for Agency-initiated permit modifications in Sec. 270.41 of this 
chapter; or
    (ii) You must request a Class 2 modification under Sec. 270.42 of 
this chapter.
    (2) To modify a RAP to incorporate a staging pile or staging pile 
operating term extension, you must comply with the RAP modification 
requirements under Secs. 270.170 and 270.175 of this chapter.
    (3) To modify a closure plan to incorporate a staging pile or 
staging pile operating term extension, you must follow the applicable 
requirements under Sec. 264.112(c) or Sec. 265.112(c) of this chapter.
    (4) To modify an order to incorporate a staging pile or staging 
pile operating term extension, you must follow the terms of the order 
and the applicable provisions of Sec. 270.72(a)(5) or (b)(5) of this 
chapter.
    (m) Is information about the staging pile available to the public? 
The Director must document the rationale for designating a staging pile 
or staging pile operating term extension and make this documentation 
available to the public.

PART 265--INTERIM STATUS STANDARDS FOR OWNERS AND OPERATORS OF 
HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES

    12. The authority citation for part 265 continues to read as 
follows:

    Authority: 42 U.S.C. 6905, 6906, 6912, 6922, 6923, 6924, 6925, 
6935, 6936 and 6937, unless otherwise noted.


Sec. 265.1  [Amended]

    13. Section 265.1(b) is amended in the first sentence by revising 
``, and of 40 CFR 264.552 and 40 CFR 264.553,'' to read ``, and of 40 
CFR 264.552, 264.553, and 264.554,''.

PART 268--LAND DISPOSAL RESTRICTIONS

    14. The authority citation for part 268 continues to read as 
follows:

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

    15. Section 268.2 is amended by revising paragraph (c) to read as 
follows:


Sec. 268.2  Definitions applicable in this part.

* * * * *
    (c) Land disposal means placement in or on the land, except in a 
corrective action management unit or staging pile, and includes, but is 
not limited to, placement in a landfill, surface impoundment, waste 
pile, injection well, land treatment facility, salt dome formation, 
salt bed formation, underground mine or cave, or placement in a 
concrete vault, or bunker intended for disposal purposes.
* * * * *
    16. Section 268.50 is amended by adding new paragraph (g) to read 
as follows:


Sec. 268.50  Prohibitions on storage of restricted wastes.

* * * * *
    (g) The prohibition and requirements in this do not apply to 
hazardous remediation wastes stored in a staging pile approved pursuant 
to Sec. 264.554 of this chapter.

PART 270--EPA ADMINISTERED PERMIT PROGRAMS: THE HAZARDOUS WASTE 
PERMIT PROGRAM

    17. The authority citation for part 270 continues to read as 
follows:

    Authority: 42 U.S.C. 6905, 6912, 6924, 6925, 6927, 6939, and 
6974.

Subpart A--General Information

    18. Section 270.2 is amended by adding a definition for ``Remedial

[[Page 65941]]

Action Plan (RAP)'' in alphabetical order to read as follows:


Sec. 270.2  Definitions.

* * * * *
    Remedial Action Plan (RAP) means a special form of RCRA permit that 
a facility owner or operator may obtain instead of a permit issued 
under Secs. 270.3 through 270.66, to authorize the treatment, storage 
or disposal of hazardous remediation waste (as defined in Sec. 260.10 
of this chapter) at a remediation waste management site.
* * * * *

Subpart B--Permit Application

    19. Section 270.11 is amended by revising paragraph (d) to read as 
follows:


Sec. 270.11  Signatories to permit applications and reports.

* * * * *
    (d)(1) Any person signing a document under paragraph (a) or (b) of 
this must make the following certification:

    I certify under penalty of law that this document and all 
attachments were prepared under my direction or supervision 
according to a system designed to assure that qualified personnel 
properly gather and evaluate the information submitted. Based on my 
inquiry of the person or persons who manage the system, or those 
persons directly responsible for gathering the information, the 
information submitted is, to the best of my knowledge and belief, 
true, accurate, and complete. I am aware that there are significant 
penalties for submitting false information, including the 
possibility of fine and imprisonment for knowing violations.

    (2) For remedial action plans (RAPs) under subpart H of this part, 
if the operator certifies according to paragraph (d)(1) of this 
section, then the owner may choose to make the following certification 
instead of the certification in paragraph (d)(1) of this section:

    Based on my knowledge of the conditions of the property 
described in the RAP and my inquiry of the person or persons who 
manage the system referenced in the operator's certification, or 
those persons directly responsible for gathering the information, 
the information submitted is, upon information and belief, true, 
accurate, and complete. I am aware that there are significant 
penalties for submitting false information, including the 
possibility of fine and imprisonment for knowing violations.

Subpart D--Changes to Permits

    20. Appendix I to Sec. 270.42 is amended by adding new modification 
D.3.g. and new modification N.3. to read as follows:


Sec. 270.42  Permit modification at the request of the permittee.

* * * * *

------------------------------------------------------------------------
                         Modifications                            Class
------------------------------------------------------------------------
 
                  *        *        *        *        *
D. Closure
 
                  *        *        *        *        *
3. Addition of the following new units to be used temporarily
 for closure activities:
 
                  *        *        *        *        *
  g. Staging piles.............................................        2
 
                  *        *        *        *        *
N. Corrective Action:
 
                  *        *        *        *        *
  3. Approval of a staging pile or staging pile operating term
   extension pursuant to Sec.  264.554.........................        2
------------------------------------------------------------------------

Subpart F--Special Forms of Permits

    21. A new Sec. 270.68 is added to subpart F to read as follows:


Sec. 270.68  Remedial Action Plans (RAPs).

    Remedial Action Plans (RAPs) are special forms of permits that are 
regulated under subpart H of this part.

Subpart G--Interim Status

    22. Section 270.73 is amended by revising paragraph (a) to read as 
follows:


Sec. 270.73  Termination of interim status.

* * * * *
    (a) Final administrative disposition of a permit application, 
except an application for a remedial action plan (RAP) under subpart H 
of this part, is made.
* * * * *
    23-24. A new Subpart H is added to Part 270 to read as follows:

Subpart H--Remedial Action Plans (RAPs)

Sec.

270.79  Why is this subpart written in a special format?

General Information

270.80  What is a RAP?
270.85  When do I need a RAP?
270.90  Does my RAP grant me any rights or relieve me of any 
obligations?

Applying for a RAP

270.95  How do I apply for a RAP?
270.100  Who must obtain a RAP?
270.105  Who must sign the application and any required reports for 
a RAP?
270.110  What must I include in my application for a RAP?
270.115  What if I want to keep this information confidential?
270.120  To whom must I submit my RAP application?
270.125  If I submit my RAP application as part of another document, 
what must I do?

Getting a RAP Approved

270.130  What is the process for approving or denying my application 
for a RAP?
270.135  What must the Director include in a draft RAP?
270.140  What else must the Director prepare in addition to the 
draft RAP or notice of intent to deny?
0270.145  What are the procedures for public comment on the draft 
RAP or notice of intent to deny?
270.150  How will the Director make a final decision on my RAP 
application?
270.155  May the decision to approve or deny my RAP application be 
administratively appealed?
270.160  When does my RAP become effective?
270.165  When may I begin physical construction of new units 
permitted under the RAP?

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

270.170  After my RAP is issued, how may it be modified, revoked and 
reissued, or terminated?
270.175  For what reasons may the Director choose to modify my final 
RAP?
270.180  For what reasons may the Director choose to revoke and 
reissue my final RAP?
270.185  For what reasons may the Director choose to terminate my 
final RAP, or deny my renewal application?
270.190  May the decision to approve or deny a modification, 
revocation and reissuance, or termination of my RAP be 
administratively appealed?
270.195  When will my RAP expire?
270.200  How may I renew my RAP if it is expiring?
270.205  What happens if I have applied correctly for a RAP renewal 
but have not received approval by the time my old RAP expires?

Operating Under Your RAP

270.210  What records must I maintain concerning my RAP?
270.215  How are time periods in the requirements in this Subpart 
and my RAP computed?
270.220  How may I transfer my RAP to a new owner or operator?
270.225  What must the State or EPA Region report about 
noncompliance with RAPs?

Obtaining a RAP for an Off-site Location

270.230  May I perform remediation waste management activities under 
a RAP at a location removed from the area where the remediation 
wastes originated?

Subpart H--Remedial Action Plans (RAPs)


Sec. 270.79  Why is this subpart written in a special format?

    This subpart is written in a special format to make it easier to 
understand the regulatory requirements. Like other

[[Page 65942]]

Environmental Protection Agency (EPA) regulations, this establishes 
enforceable legal requirements. For this Subpart, ``I'' and ``you'' 
refer to the owner/operator.

General Information


Sec. 270.80  What is a RAP?

    (a) A RAP is a special form of RCRA permit that you, as an owner or 
operator, may obtain, instead of a permit issued under Secs. 270.3 
through 270.66, to authorize you to treat, store, or dispose of 
hazardous remediation waste (as defined in Sec. 260.10 of this chapter) 
at a remediation waste management site. A RAP may only be issued for 
the area of contamination where the remediation wastes to be managed 
under the RAP originated, or areas in close proximity to the 
contaminated area, except as allowed in limited circumstances under 
Sec. 270.230.
    (b) The requirements in Secs. 270.3 through 270.66 do not apply to 
RAPs unless those requirements for traditional RCRA permits are 
specifically required under Secs. 270.80 through 270.230. The 
definitions in Sec. 270.2 apply to RAPs.
    (c) Notwithstanding any other provision of this part or part 124 of 
this chapter, any document that meets the requirements in this section 
constitutes a RCRA permit under RCRA section 3005(c).
    (d) A RAP may be:
    (1) A stand-alone document that includes only the information and 
conditions required by this subpart; or
    (2) Part (or parts) of another document that includes information 
and/or conditions for other activities at the remediation waste 
management site, in addition to the information and conditions required 
by this subpart.
    (e) If you are treating, storing, or disposing of hazardous 
remediation wastes as part of a cleanup compelled by Federal or State 
cleanup authorities, your RAP does not affect your obligations under 
those authorities in any way.
    (f) If you receive a RAP at a facility operating under interim 
status, the RAP does not terminate your interim status.


Sec. 270.85  When do I need a RAP?

    (a) Whenever you treat, store, or dispose of hazardous remediation 
wastes in a manner that requires a RCRA permit under Sec. 270.1, you 
must either obtain:
    (1) A RCRA permit according to Secs. 270.3 through 270.66; or
    (2) A RAP according to this subpart.
    (b) Treatment units that use combustion of hazardous remediation 
wastes at a remediation waste management site are not eligible for RAPs 
under this Subpart.
    (c) You may obtain a RAP for managing hazardous remediation waste 
at an already permitted RCRA facility. You must have these RAPs 
approved as a modification to your existing permit according to the 
requirements of Sec. 270.41 or Sec. 270.42 instead of the requirements 
in this Subpart. When you submit an application for such a 
modification, however, the information requirements in 
Sec. 270.42(a)(1)(i), (b)(1)(iv), and (c)(1)(iv) do not apply; instead, 
you must submit the information required under Sec. 270.110. When your 
permit is modified the RAP becomes part of the RCRA permit. Therefore 
when your permit (including the RAP portion) is modified, revoked and 
reissued, terminated or when it expires, it will be modified according 
to the applicable requirements in Secs. 270.40 through 270.42, revoked 
and reissued according to the applicable requirements in Secs. 270.41 
and 270.43, terminated according to the applicable requirements in 
Sec. 270.43, and expire according to the applicable requirements in 
Secs. 270.50 and 270.51.


Sec. 270.90  Does my RAP grant me any rights or relieve me of any 
obligations?

    The provisions of Sec. 270.4 apply to RAPs. (Note: The provisions 
of Sec. 270.4(a) provide you assurance that, as long as you comply with 
your RAP, EPA will consider you in compliance with Subtitle C of RCRA, 
and will not take enforcement actions against you. However, you should 
be aware of four exceptions to this provision that are listed in 
Sec. 270.4.)

Applying for a RAP


Sec. 270.95  How do I apply for a RAP?

    To apply for a RAP, you must complete an application, sign it, and 
submit it to the Director according to the requirements in this 
subpart.


Sec. 270.100  Who must obtain a RAP?

    When a facility or remediation waste management site is owned by 
one person, but the treatment, storage or disposal activities are 
operated by another person, it is the operator's duty to obtain a RAP, 
except that the owner must also sign the RAP application.


Sec. 270.105  Who must sign the application and any required reports 
for a RAP?

    Both the owner and the operator must sign the RAP application and 
any required reports according to Sec. 270.11(a), (b), and (c). In the 
application, both the owner and the operator must also make the 
certification required under Sec. 270.11(d)(1). However, the owner may 
choose the alternative certification under Sec. 270.11(d)(2) if the 
operator certifies under Sec. 270.11(d)(1).


Sec. 270.110  What must I include in my application for a RAP?

    You must include the following information in your application for 
a RAP:
    (a) The name, address, and EPA identification number of the 
remediation waste management site;
    (b) The name, address, and telephone number of the owner and 
operator;
    (c) The latitude and longitude of the site;
    (d) The United States Geological Survey (USGS) or county map 
showing the location of the remediation waste management site;
    (e) A scaled drawing of the remediation waste management site 
showing:
    (1) The remediation waste management site boundaries;
    (2) Any significant physical structures; and
    (3) The boundary of all areas on-site where remediation waste is to 
be treated, stored or disposed;
    (f) A specification of the hazardous remediation waste to be 
treated, stored or disposed of at the facility or remediation waste 
management site. This must include information on:
    (1) Constituent concentrations and other properties of the 
hazardous remediation wastes that may affect how such materials should 
be treated and/or otherwise managed;
    (2) An estimate of the quantity of these wastes; and
    (3) A description of the processes you will use to treat, store, or 
dispose of this waste including technologies, handling systems, design 
and operating parameters you will use to treat hazardous remediation 
wastes before disposing of them according to the LDR standards of part 
268 of this chapter, as applicable;
    (g) Enough information to demonstrate that operations that follow 
the provisions in your RAP application will ensure compliance with 
applicable requirements of parts 264, 266, and 268 of this chapter;
    (h) Such information as may be necessary to enable the Regional 
Administrator to carry out his duties under other Federal laws as is 
required for traditional RCRA permits under Sec. 270.14(b)(20);
    (i) Any other information the Director decides is necessary for 
demonstrating compliance with this subpart or for determining any 
additional RAP conditions that are necessary to protect human health 
and the environment.

[[Page 65943]]

Sec. 270.115  What if I want to keep this information confidential?

    Part 2 (Public Information) of this chapter allows you to claim as 
confidential any or all of the information you submit to EPA under this 
subpart. You must assert any such claim at the time that you submit 
your RAP application or other submissions by stamping the words 
``confidential business information'' on each page containing such 
information. If you do assert a claim at the time you submit the 
information, EPA will treat the information according to the procedures 
in part 2 of this chapter. If you do not assert a claim at the time you 
submit the information, EPA may make the information available to the 
public without further notice to you. EPA will deny any requests for 
confidentiality of your name and/or address.


Sec. 270.120  To whom must I submit my RAP application?

    You must submit your application for a RAP to the Director for 
approval.


Sec. 270.125  If I submit my RAP application as part of another 
document, what must I do?

    If you submit your application for a RAP as a part of another 
document, you must clearly identify the components of that document 
that constitute your RAP application.

Getting a RAP Approved


Sec. 270.130  What is the process for approving or denying my 
application for a RAP?

    (a) If the Director tentatively finds that your RAP application 
includes all of the information required by Sec. 270.110 and that your 
proposed remediation waste management activities meet the regulatory 
standards, the Director will make a tentative decision to approve your 
RAP application. The Director will then prepare a draft RAP and provide 
an opportunity for public comment before making a final decision on 
your RAP application, according to this subpart.
    (b) If the Director tentatively finds that your RAP application 
does not include all of the information required by Sec. 270.110 or 
that your proposed remediation waste management activities do not meet 
the regulatory standards, the Director may request additional 
information from you or ask you to correct deficiencies in your 
application. If you fail or refuse to provide any additional 
information the Director requests, or to correct any deficiencies in 
your RAP application, the Director may make a tentative decision to 
deny your RAP application. After making this tentative decision, the 
Director will prepare a notice of intent to deny your RAP application 
(``notice of intent to deny'') and provide an opportunity for public 
comment before making a final decision on your RAP application, 
according to the requirements in this Subpart. The Director may deny 
the RAP application either in its entirety or in part.


Sec. 270.135  What must the Director include in a draft RAP?

    If the Director prepares a draft RAP, it must include the:
    (a) Information required under Sec. 270.110(a) through (f);
    (b) The following terms and conditions:
    (1) Terms and conditions necessary to ensure that the operating 
requirements specified in your RAP comply with applicable requirements 
of parts 264, 266, and 268 of this chapter (including any recordkeeping 
and reporting requirements). In satisfying this provision, the Director 
may incorporate, expressly or by reference, applicable requirements of 
parts 264, 266, and 268 of this chapter into the RAP or establish site-
specific conditions as required or allowed by parts 264, 266, and 268 
of this chapter;
    (2) Terms and conditions in Sec. 270.30;
    (3) Terms and conditions for modifying, revoking and reissuing, and 
terminating your RAP, as provided in Sec. 270.170; and
    (4) Any additional terms or conditions that the Director determines 
are necessary to protect human health and the environment, including 
any terms and conditions necessary to respond to spills and leaks 
during use of any units permitted under the RAP; and
    (c) If the draft RAP is part of another document, as described in 
Sec. 270.80(d)(2), the Director must clearly identify the components of 
that document that constitute the draft RAP.


Sec. 270.140  What else must the Director prepare in addition to the 
draft RAP or notice of intent to deny?

    Once the Director has prepared the draft RAP or notice of intent to 
deny, he must then:
    (a) Prepare a statement of basis that briefly describes the 
derivation of the conditions of the draft RAP and the reasons for them, 
or the rationale for the notice of intent to deny;
    (b) Compile an administrative record, including:
    (1) The RAP application, and any supporting data furnished by the 
applicant;
    (2) The draft RAP or notice of intent to deny;
    (3) The statement of basis and all documents cited therein 
(material readily available at the issuing Regional office or published 
material that is generally available need not be physically included 
with the rest of the record, as long as it is specifically referred to 
in the statement of basis); and
    (4) Any other documents that support the decision to approve or 
deny the RAP; and
    (c) Make information contained in the administrative record 
available for review by the public upon request.


Sec. 270.145  What are the procedures for public comment on the draft 
RAP or notice of intent to deny?

    (a) The Director must:
    (1) Send notice to you of his intention to approve or deny your RAP 
application, and send you a copy of the statement of basis;
    (2) Publish a notice of his intention to approve or deny your RAP 
application in a major local newspaper of general circulation;
    (3) Broadcast his intention to approve or deny your RAP application 
over a local radio station; and
    (4) Send a notice of his intention to approve or deny your RAP 
application to each unit of local government having jurisdiction over 
the area in which your site is located, and to each State agency having 
any authority under State law with respect to any construction or 
operations at the site.
    (b) The notice required by paragraph (a) of this section must 
provide an opportunity for the public to submit written comments on the 
draft RAP or notice of intent to deny within at least 45 days.
    (c) The notice required by paragraph (a) of this section must 
include:
    (1) The name and address of the office processing the RAP 
application;
    (2) The name and address of the RAP applicant, and if different, 
the remediation waste management site or activity the RAP will 
regulate;
    (3) A brief description of the activity the RAP will regulate;
    (4) The name, address and telephone number of a person from whom 
interested persons may obtain further information, including copies of 
the draft RAP or notice of intent to deny, statement of basis, and the 
RAP application;
    (5) A brief description of the comment procedures in this section, 
and any other procedures by which the public may participate in the RAP 
decision;
    (6) If a hearing is scheduled, the date, time, location and purpose 
of the hearing;
    (7) If a hearing is not scheduled, a statement of procedures to 
request a hearing;

[[Page 65944]]

    (8) The location of the administrative record, and times when it 
will be open for public inspection; and
    (9) Any additional information the Director considers necessary or 
proper.
    (d) If, within the comment period, the Director receives written 
notice of opposition to his intention to approve or deny your RAP 
application and a request for a hearing, the Director must hold an 
informal public hearing to discuss issues relating to the approval or 
denial of your RAP application. The Director may also determine on his 
own initiative that an informal hearing is appropriate. The hearing 
must include an opportunity for any person to present written or oral 
comments. Whenever possible, the Director must schedule this hearing at 
a location convenient to the nearest population center to the 
remediation waste management site and give notice according to the 
requirements in paragraph (a) of this section. This notice must, at a 
minimum, include the information required by paragraph (c) of this 
section and:
    (1) Reference to the date of any previous public notices relating 
to the RAP application;
    (2) The date, time and place of the hearing; and
    (3) A brief description of the nature and purpose of the hearing, 
including the applicable rules and procedures.


Sec. 270.150  How will the Director make a final decision on my RAP 
application?

    (a) The Director must consider and respond to any significant 
comments raised during the public comment period, or during any hearing 
on the draft RAP or notice of intent to deny, and revise your draft RAP 
based on those comments, as appropriate.
    (b) If the Director determines that your RAP includes the 
information and terms and conditions required in Sec. 270.135, then he 
will issue a final decision approving your RAP and, in writing, notify 
you and all commenters on your draft RAP that your RAP application has 
been approved.
    (c) If the Director determines that your RAP does not include the 
information required in Sec. 270.135, then he will issue a final 
decision denying your RAP and, in writing, notify you and all 
commenters on your draft RAP that your RAP application has been denied.
    (d) If the Director's final decision is that the tentative decision 
to deny the RAP application was incorrect, he will withdraw the notice 
of intent to deny and proceed to prepare a draft RAP, according to the 
requirements in this subpart.
    (e) When the Director issues his final RAP decision, he must refer 
to the procedures for appealing the decision under Sec. 270.155.
    (f) Before issuing the final RAP decision, the Director must 
compile an administrative record. Material readily available at the 
issuing Regional office or published materials which are generally 
available and which are included in the administrative record need not 
be physically included with the rest of the record as long as it is 
specifically referred to in the statement of basis or the response to 
comments. The administrative record for the final RAP must include 
information in the administrative record for the draft RAP (see 
Sec. 270.140(b)) and:
    (1) All comments received during the public comment period;
    (2) Tapes or transcripts of any hearings;
    (3) Any written materials submitted at these hearings;
    (4) The responses to comments;
    (5) Any new material placed in the record since the draft RAP was 
issued;
    (6) Any other documents supporting the RAP; and (7) A copy of the 
final RAP.
    (g) The Director must make information contained in the 
administrative record available for review by the public upon request.


Sec. 270.155  May the decision to approve or deny my RAP application be 
administratively appealed?

    (a) Any commenter on the draft RAP or notice of intent to deny, or 
any participant in any public hearing(s) on the draft RAP, may appeal 
the Director's decision to approve or deny your RAP application to 
EPA's Environmental Appeals Board under Sec. 124.19 of this chapter. 
Any person who did not file comments, or did not participate in any 
public hearing(s) on the draft RAP, may petition for administrative 
review only to the extent of the changes from the draft to the final 
RAP decision. Appeals of RAPs may be made to the same extent as for 
final permit decisions under Sec. 124.15 of this chapter (or a decision 
under Sec. 270.29 to deny a permit for the active life of a RCRA 
hazardous waste management facility or unit). Instead of the notice 
required under Secs. 124.19(c) and 124.10 of this chapter, the Director 
will give public notice of any grant of review of RAPs by the 
Environmental Appeals Board through the same means used to provide 
notice under Sec. 270.145. The notice will include:
    (1) The briefing schedule for the appeal as provided by the Board;
    (2) A statement that any interested person may file an amicus brief 
with the Board; and
    (3) The information specified in Sec. 270.145(c), as appropriate.
    (b) This appeal is a prerequisite to seeking judicial review of 
these EPA actions.


Sec. 270.160  When does my RAP become effective?

    Your RAP becomes effective 30 days after the Director notifies you 
and all commenters that your RAP is approved unless:
    (a) The Director specifies a later effective date in his decision;
    (b) You or another person has appealed your RAP under Sec. 270.155 
(if your RAP is appealed, and the request for review is granted under 
Sec. 270.155, conditions of your RAP are stayed according to 
Sec. 124.16 of this chapter); or
    (c) No commenters requested a change in the draft RAP, in which 
case the RAP becomes effective immediately when it is issued.


Sec. 270.165  When may I begin physical construction of new units 
permitted under the RAP?

    You must not begin physical construction of new units permitted 
under the RAP for treating, storing or disposing of hazardous 
remediation waste before receiving a finally effective RAP.

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


Sec. 270.170  After my RAP is issued, how may it be modified, revoked 
and reissued, or terminated?

    In your RAP, the Director must specify, either directly or by 
reference, procedures for future modifications, revocations and 
reissuance, or terminations of your RAP. These procedures must provide 
adequate opportunities for public review and comment on any 
modification, revocation and reissuance, or termination that would 
significantly change your management of your remediation waste, or that 
otherwise merits public review and comment. If your RAP has been 
incorporated into a traditional RCRA permit, as allowed under 
Sec. 270.85(c), then the RAP will be modified according to the 
applicable requirements in Secs. 270.40 through 270.42, revoked and 
reissued according to the applicable requirements in Secs. 270.41 and 
270.43, or terminated according to the applicable requirements of 
Sec. 270.43.


Sec. 270.175  For what reasons may the Director choose to modify my 
final RAP?

    (a) The Director may modify your final RAP on his own initiative 
only if one or more of the following reasons listed in this section 
exist(s). If one or

[[Page 65945]]

more of these reasons do not exist, then the Director will not modify 
your final RAP, except at your request. Reasons for modification are:
    (1) You made material and substantial alterations or additions to 
the activity that justify applying different conditions;
    (2) The Director finds new information that was not available at 
the time of RAP issuance and would have justified applying different 
RAP conditions at the time of issuance;
    (3) The standards or regulations on which the RAP was based have 
changed because of new or amended statutes, standards or regulations, 
or by judicial decision after the RAP was issued;
    (4) If your RAP includes any schedules of compliance, the Director 
may find reasons to modify your compliance schedule, such as an act of 
God, strike, flood, or materials shortage or other events over which 
you as the owner/operator have little or no control and for which there 
is no reasonably available remedy;
    (5) You are not in compliance with conditions of your RAP;
    (6) You failed in the application or during the RAP issuance 
process to disclose fully all relevant facts, or you misrepresented any 
relevant facts at the time;
    (7) The Director has determined that the activity authorized by 
your RAP endangers human health or the environment and can only be 
remedied by modifying; or
    (8) You have notified the Director (as required in the RAP under 
Sec. 270.30(l)(3)) of a proposed transfer of a RAP.
    (b) Notwithstanding any other provision in this section, when the 
Director reviews a RAP for a land disposal facility under Sec. 270.195, 
he may modify the permit as necessary to assure that the facility 
continues to comply with the currently applicable requirements in parts 
124, 260 through 266 and 270 of this chapter.
    (c) The Director will not reevaluate the suitability of the 
facility location at the time of RAP modification unless new 
information or standards indicate that a threat to human health or the 
environment exists that was unknown when the RAP was issued.


Sec. 270.180  For what reasons may the Director choose to revoke and 
reissue my final RAP?

    (a) The Director may revoke and reissue your final RAP on his own 
initiative only if one or more reasons for revocation and reissuance 
exist(s). If one or more reasons do not exist, then the Director will 
not modify or revoke and reissue your final RAP, except at your 
request. Reasons for modification or revocation and reissuance are the 
same as the reasons listed for RAP modifications in Sec. 270.175(a)(5) 
through (8) if the Director determines that revocation and reissuance 
of your RAP is appropriate.
    (b) The Director will not reevaluate the suitability of the 
facility location at the time of RAP revocation and reissuance, unless 
new information or standards indicate that a threat to human health or 
the environment exists that was unknown when the RAP was issued.


Sec. 270.185  For what reasons may the Director choose to terminate my 
final RAP, or deny my renewal application?

    The Director may terminate your final RAP on his own initiative, or 
deny your renewal application for the same reasons as those listed for 
RAP modifications in Sec. 270.175(a)(5) through (7) if the Director 
determines that termination of your RAP or denial of your RAP renewal 
application is appropriate.


Sec. 270.190  May the decision to approve or deny a modification, 
revocation and reissuance, or termination of my RAP be administratively 
appealed?

    (a) Any commenter on the modification, revocation and reissuance or 
termination, or any person who participated in any hearing(s) on these 
actions, may appeal the Director's decision to approve a modification, 
revocation and reissuance, or termination of your RAP, according to 
Sec. 270.155. Any person who did not file comments or did not 
participate in any public hearing(s) on the modification, revocation 
and reissuance or termination, may petition for administrative review 
only of the changes from the draft to the final RAP decision.
    (b) Any commenter on the modification, revocation and reissuance or 
termination, or any person who participated in any hearing(s) on these 
actions, may informally appeal the Director's decision to deny a 
request for modification, revocation and reissuance, or termination to 
EPA's Environmental Appeals Board. Any person who did not file 
comments, or did not participate in any public hearing(s) on the 
modification, revocation and reissuance or termination may petition for 
administrative review only of the changes from the draft to the final 
RAP decision.
    (c) The process for informal appeals of RAPs is as follows:
    (1) The person appealing the decision must send a letter to the 
Environmental Appeals Board. The letter must briefly set forth the 
relevant facts.
    (2) The Environmental Appeals Board has 60 days after receiving the 
letter to act on it.
    (3) If the Environmental Appeals Board does not take action on the 
letter within 60 days after receiving it, the appeal shall be 
considered denied.
    (d) This informal appeal is a prerequisite to seeking judicial 
review of these EPA actions.


Sec. 270.195  When will my RAP expire?

    RAPs must be issued for a fixed term, not to exceed 10 years, 
although they may be renewed upon approval by the Director in fixed 
increments of no more than ten years. In addition, the Director must 
review any RAP for hazardous waste land disposal five years after the 
date of issuance or reissuance and you or the Director must follow the 
requirements for modifying your RAP as necessary to assure that you 
continue to comply with currently applicable requirements in RCRA 
sections 3004 and 3005.


Sec. 270.200  How may I renew my RAP if it is expiring?

    If you wish to renew your expiring RAP, you must follow the process 
for application for and issuance of RAPs in this subpart.


Sec. 270.205  What happens if I have applied correctly for a RAP 
renewal but have not received approval by the time my old RAP expires?

    If you have submitted a timely and complete application for a RAP 
renewal, but the Director, through no fault of yours, has not issued a 
new RAP with an effective date on or before the expiration date of your 
previous RAP, your previous RAP conditions continue in force until the 
effective date of your new RAP or RAP denial.

Operating Under Your RAP


Sec. 270.210  What records must I maintain concerning my RAP?

    You are required to keep records of:
    (a) All data used to complete RAP applications and any supplemental 
information that you submit for a period of at least 3 years from the 
date the application is signed; and
    (b) Any operating and/or other records the Director requires you to 
maintain as a condition of your RAP.


Sec. 270.215  How are time periods in the requirements in this subpart 
and my RAP computed?

    (a) Any time period scheduled to begin on the occurrence of an act 
or event must begin on the day after the act or event. (For example, if 
your RAP

[[Page 65946]]

specifies that you must close a staging pile within 180 days after the 
operating term for that staging pile expires, and the operating term 
expires on June 1, then June 2 counts as day one of your 180 days, and 
you would have to complete closure by November 28.)
    (b) Any time period scheduled to begin before the occurrence of an 
act or event must be computed so that the period ends on the day before 
the act or event. (For example, if you are transferring ownership or 
operational control of your site, and wish to transfer your RAP, the 
new owner or operator must submit a revised RAP application no later 
than 90 days before the scheduled change. Therefore, if you plan to 
change ownership on January 1, the new owner/operator must submit the 
revised RAP application no later than October 3, so that the 90th day 
would be December 31.)
    (c) If the final day of any time period falls on a weekend or legal 
holiday, the time period must be extended to the next working day. (For 
example, if you wish to appeal the Director's decision to modify your 
RAP, then you must petition the Environmental Appeals Board within 30 
days after the Director has issued the final RAP decision. If the 30th 
day falls on Sunday, then you may submit your appeal by the Monday 
after. If the 30th day falls on July 4th, then you may submit your 
appeal by July 5th.)
    (d) Whenever a party or interested person has the right to or is 
required to act within a prescribed period after the service of notice 
or other paper upon him by mail, 3 days must be added to the prescribed 
term. (For example, if you wish to appeal the Director's decision to 
modify your RAP, then you must petition the Environmental Appeals Board 
within 30 days after the Director has issued the final RAP decision. 
However, if the Director notifies you of his decision by mail, then you 
may have 33 days to petition the Environmental Appeals Board.)


Sec. 270.220  How may I transfer my RAP to a new owner or operator?

    (a) If you wish to transfer your RAP to a new owner or operator, 
you must follow the requirements specified in your RAP for RAP 
modification to identify the new owner or operator, and incorporate any 
other necessary requirements. These modifications do not constitute 
``significant'' modifications for purposes of Sec. 270.170. The new 
owner/operator must submit a revised RAP application no later than 90 
days before the scheduled change along with a written agreement 
containing a specific date for transfer of RAP responsibility between 
you and the new permittees.
    (b) When a transfer of ownership or operational control occurs, you 
as the old owner or operator must comply with the applicable 
requirements in part 264, subpart H (Financial Requirements), of this 
chapter until the new owner or operator has demonstrated that he is 
complying with the requirements in that subpart. The new owner or 
operator must demonstrate compliance with part 264, subpart H, of this 
chapter within six months of the date of the change in ownership or 
operational control of the facility or remediation waste management 
site. When the new owner/operator demonstrates compliance with part 
264, subpart H, of this chapter to the Director, the Director will 
notify you that you no longer need to comply with part 264, subpart H, 
of this chapter as of the date of demonstration.


Sec. 270.225  What must the State or EPA Region report about 
noncompliance with RAPs?

    The State or EPA Region must report noncompliance with RAPs 
according to the provisions of Sec. 270.5.

Obtaining a RAP for an Off-Site Location


Sec. 270.230  May I perform remediation waste management activities 
under a RAP at a location removed from the area where the remediation 
wastes originated?

    (a) You may request a RAP for remediation waste management 
activities at a location removed from the area where the remediation 
wastes originated if you believe such a location would be more 
protective than the contaminated area or areas in close proximity.
    (b) If the Director determines that an alternative location, 
removed from the area where the remediation waste originated, is more 
protective than managing remediation waste at the area of contamination 
or areas in close proximity, then the Director may approve a RAP for 
this alternative location.
    (c) You must request the RAP, and the Director will approve or deny 
the RAP, according to the procedures and requirements in this subpart.
    (d) A RAP for an alternative location must also meet the following 
requirements, which the Director must include in the RAP for such 
locations:
    (1) The RAP for the alternative location must be issued to the 
person responsible for the cleanup from which the remediation wastes 
originated;
    (2) The RAP is subject to the expanded public participation 
requirements in Secs. 124.31, 124.32, and 124.33 of this chapter;
    (3) The RAP is subject to the public notice requirements in 
Sec. 124.10(c) of this chapter;
    (4) The site permitted in the RAP may not be located within 61 
meters or 200 feet of a fault which has had displacement in the 
Holocene time (you must demonstrate compliance with this standard 
through the requirements in Sec. 270.14(b)(11)) (See definitions of 
terms in Sec. 264.18(a) of this chapter);

    Note to paragraph (d)(4): Sites located in political 
jurisdictions other than those listed in Appendix VI of Part 264 of 
this chapter, are assumed to be in compliance with this requirement.

    (e) These alternative locations are remediation waste management 
sites, and retain the following benefits of remediation waste 
management sites:
    (1) Exclusion from facility-wide corrective action under 
Sec. 264.101 of this chapter; and
    (2) Application of Sec. 264.1(j) of this chapter in lieu of part 
264, subparts B, C, and D, of this chapter.

PART 271--REQUIREMENTS FOR AUTHORIZATION OF STATE HAZARDOUS WASTE 
PROGRAMS

    25. The authority citation for Part 271 continues to read as 
follows:

    Authority: 42 U.S.C. 6905, 6912(a), and 6926.

    26. Section 271.1(j) is amended by adding the following entry to 
Table 1 in chronological order by date of publication in the Federal 
Register, to read as follows:


Sec. 271.1  Purpose and scope.

* * * * *
    (j) * * *

[[Page 65947]]



               TABLE 1.--Regulations Implementing the Hazardous and Solid Waste Amendments of 1984
----------------------------------------------------------------------------------------------------------------
         Promulgation date               Title of regulation       Federal Register reference    Effective date
----------------------------------------------------------------------------------------------------------------
 
*                  *                  *                  *                  *                  *
                                                        *
November 30, 1998..................  Hazardous Remediation Waste  [Insert FR page numbers]...      June 1, 1999.
                                      Management Requirements
                                      \5\.
 
*                  *                  *                  *                  *                  *
                                                        *
----------------------------------------------------------------------------------------------------------------
\5\ These regulations implement HSWA only to the extent that they apply to the standards for staging piles and
  to Secs.  264.1(j) and 264.101(d) of this chapter.

    27. Section 271.21 is amended by adding paragraph (h) and table 1 
to the end of the section to read as follows:


Sec. 271.21  Procedures for revision of State programs.

* * * * *
    (h) Abbreviated authorization revisions. This abbreviated procedure 
applies to State Program revisions for the Federal rulemakings listed 
in Table 1 of this section. The abbreviated procedures are as follows:
    (1) An application for a revision of a State's program for the 
rulemakings listed in Table 1 of this section shall consist of:
    (i) A statement from the State that its laws and regulations 
provide authority that is equivalent to, and no less stringent than, 
the designated minor rules or parts of rules specified in Table 1 of 
this section, and which includes references to the specific statutes, 
administrative regulations and where appropriate, judicial decisions. 
State statutes and regulations cited in the statement shall be lawfully 
adopted at the time the statement is signed and fully effective by the 
time the program revisions are approved; and
    (ii) Copies of all applicable State statutes and regulations.
    (2) Within 30 days of receipt by EPA of a State's application for 
final authorization to implement a rule specified in Table 1 of this 
section, if the Administrator determines that the application is not 
complete or contains errors, the Administrator shall notify the State. 
This notice will include a concise statement of the deficiencies which 
form the basis for this determination. The State will address all 
deficiencies and resubmit the application to EPA for review.
    (3) For purposes of this section an application is considered 
incomplete when:
    (i) Copies of applicable statutes or regulations were not included;
    (ii) The statutes or regulations relied on by the State to 
implement the program revisions are not lawfully adopted at the time 
the statement is signed or fully effective by the time the program 
revisions are approved;
    (iii) In the statement, the citations to the specific statutes, 
administrative regulations and where appropriate, judicial decisions 
are not included or incomplete; or
    (iv) The State is not authorized to implement the prerequisite RCRA 
rules as specified in paragraph (h)(5) of this section.
    (4) Within 60 days after receipt of a complete final application 
from a State for final authorization to implement a rule or rules 
specified in Table 1 of this section, the Administrator shall publish a 
notice of the decision to grant final authorization in accordance with 
the procedures for immediate final publication in paragraph (b)(3) of 
this section.
    (5) To be eligible to use the procedure in this paragraph (h), a 
State must be authorized for the provisions which the rule listed in 
Table 1 to this section amends.

                         Table 1 to Sec.  271.21
------------------------------------------------------------------------
                                                       Federal Register
       Title of regulation         Promulgation date       reference
------------------------------------------------------------------------
Land Disposal Restrictions Phase  September 19, 1994  59 FR 47982
 II--the Universal Treatment
 Standards in Secs.  268.40 and
 268.48 of this chapter only.
------------------------------------------------------------------------

[FR Doc. 98-30269 Filed 11-27-98; 8:45 am]
BILLING CODE 6560-50-P