[Federal Register Volume 64, Number 28 (Thursday, February 11, 1999)]
[Rules and Regulations]
[Pages 6806-6814]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-3426]



40 CFR Part 261

RIN 2050-AE61

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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.


SUMMARY: Today EPA is temporarily deferring from the definition of 
hazardous waste landfill leachate and landfill gas condensate derived 
from previously disposed wastes that now meet the listing descriptions 
of one or more of the recently added petroleum refinery wastes (waste 
codes K169, K170, K171, and K172, promulgated August 6, 1998, 63 FR 
42110). Pending further study of this issue, this deferral is provided 
to landfill leachate and gas condensate that is subject to regulation 
under the Clean Water Act (CWA). EPA is also stipulating that as one 
condition of this deferral, this leachate may not ordinarily be managed 
in surface impoundments or otherwise placed on the land after February 
13, 2001.

EFFECTIVE DATE: This rule is effective February 5, 1999.

ADDRESSES: Supporting materials are available for viewing in the RCRA 
Information Center (RIC), located at Crystal Gateway I, First Floor, 
1235 Jefferson Davis Highway, Arlington, VA. The Docket Identification 
Number is F-1999-PR3F-FFFFF. The RIC is open from 9 a.m. to 4 p.m., 
Monday through Friday, excluding federal holidays. To review docket 
materials, it is recommended that the public make an appointment by 
calling 703 603-9230. The public may copy a maximum of 100 pages from 
any regulatory docket at no charge. Additional copies cost $0.15/page. 
The index and some supporting materials are available electronically. 
See the Supplementary Information section for information on accessing 

FOR FURTHER INFORMATION CONTACT: For general information, contact the 
RCRA Hotline at 800 424-9346 or TDD 800 553-7672 (hearing impaired). In 
the Washington, DC, metropolitan area, call 703 412-9810 or TDD 703 
412-3323. For more detailed information on specific aspects of this 
rulemaking, contact Ross Elliott, Office of Solid Waste 5304W, U.S. 
Environmental Protection Agency, 401 M Street, SW, Washington, DC 
20460, 703 308-8748, [email protected].

    The index and the following supporting materials are available on 
the Internet: Response to Comment Document. Follow these instructions 
to access the information electronically: www.epa.gov/epaoswer/
hazwaste/id/petroleum/ FTP: ftp.epa.gov, Login: anonymous, Password: 
your Internet address, Files are located in /pub/epaoswer.
    In addition, the document entitled Development Document for 
Proposed Effluent Limitations Guidelines and Standards for the 
Landfills Point Source Category, EPA-821-R-97-022, January 1998, placed 
in the docket for this notice, can be obtained through the internet at 
    The contents of the preamble to this final rule are listed in the 
following outline:

I. Affected Entities
II. Legal Authority and Background
III. Summary of NODA and Proposed Temporary Deferral
IV. Today's Action
V. Response to Comments
VI. Administrative Assessments
    A. Executive Order 12866
    B. Regulatory Flexibility Act
    C. Unfunded Mandates Reform Act
    D. Paperwork Reduction Act
    E. Executive Order 12875: Enhancing the Intergovernmental 
    F. Executive Order 13084: Consultation and Coordination with 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children from 
Environmental Risks and Safety Risks
    H. National Technology Transfer and Advancement Act of 1995
    I. Executive Order 12898: Environmental Justice
VII. The Congressional Review Act
VIII. Rationale for Immediate Effective Date

I. Affected Entities

    Entities potentially affected by this action are those landfills, 
both commercial and government-owned, that historically received one or 
more of the newly-listed petroleum refinery wastes (K169-K172) and that 
generate landfill leachate or landfill gas condensate.

II. Legal Authority and Background

    These regulations are being promulgated under the authority of 
sections 2002(a) and 3001(a), (b) and (e)(2), 3004(g) and (m) of the 
Solid Waste Disposal Act (commonly referred to as RCRA), as amended, 42 
U.S.C. 6912(a), and 6921(b) and (e)(2).
    As described in the August 6, 1998 NODA, very late in the process 
of promulgating four new hazardous waste listings, the Agency was 
alerted to the concern that any new listings for petroleum wastes may 
have potentially significant impacts on the management of leachate 
collected from certain non-hazardous waste landfills. Specifically, one 
company that owns and operates non-hazardous waste landfills expressed 
concern that because some of their facilities have historically 
received and disposed of some or all of the waste streams listed in the 
final rulemaking published August 6, 1998 (i.e., K169, K170, K171, and 
K172), the leachate that is collected and managed from these landfills 
would be classified by these same waste codes after the effective date 
of the new petroleum waste listings. 63 FR 42190. However, if Subtitle 
C regulation were to apply to leachate generated from such landfills, 
leachate now trucked to POTWs would likely no longer be managed by 
POTWs, since POTW owner/operators (understandably) would not wish their 
facilities to become subject to RCRA Subtitle C regulation. This 
company argued that this could lead to vastly

[[Page 6807]]

increased treatment and disposal costs without necessarily any 
environmental benefit.

Why Would This Leachate be Regulated as Hazardous Waste?

    As discussed in the NODA, leachate that is derived from the 
treatment, storage, or disposal of listed hazardous wastes is 
classified as a hazardous waste by virtue of the ``derived-from'' rule 
in 40 CFR 261.3(c)(2). The Agency has been very clear in the past on 
the applicability of hazardous waste listings to wastes disposed of 
prior to the effective date of a listing, even if the landfill ceases 
disposal of the waste when the waste becomes hazardous. 53 FR 31147 
(August 17, 1988). EPA also has a well-established interpretation that 
listings likewise apply to leachate derived from the disposal of listed 
hazardous wastes, including leachate derived from wastes disposed 
before a listing effective date which meet the listing description. Id. 
EPA's interpretations were upheld by the Court of Appeals for the 
District of Columbia Circuit in Chemical Waste Management, Inc. v. EPA, 
869 F.2d 1526, 1536-37 (D.C. Cir. 1989). (These points are restated 
here to provide context. EPA is not reconsidering or in any other way 
reopening these principles for comment or review.)
    Of course, as set out in detail in the August 17, 1988 notice, this 
does not mean that landfills holding wastes which are now listed as 
hazardous become subject to Subtitle C regulation. However, previously 
disposed wastes now meeting the listing description, including residues 
such as leachate which are derived from such wastes and are actively 
managed, do become subject to Subtitle C regulation. 53 FR 31149. In 
many cases, indeed most circumstances, no significant regulatory 
consequences under RCRA result from leachate management. Active 
management of hazardous leachate would often be exempt from Subtitle C 
regulation because the usual pattern of management is discharge either 
to POTWs via the sewer system (where leachate mixes with domestic 
sewage) or to navigable waters, where in both instances the leachate is 
excluded from RCRA jurisdiction.\1\ In addition, management of leachate 
in wastewater treatment tanks prior to discharge under the CWA is 
exempt from RCRA regulation (40 CFR 264.1(g)(6)). However, some 
management practices, such as leachate being transported off site to a 
POTW in a truck, would not be exempt from Subtitle C regulation as 
described in more detail elsewhere in today's document.

    \1\ See RCRA Section 1004(27) and 40 CFR 261.4(a)(1) (domestic 
sewage exclusion); see also RCRA Section 1004(27) and 40 CFR 
261.4(a)(2) (industrial point source exclusion).

III. Summary of NODA and Proposed Temporary Deferral

    EPA requested comment in the NODA on whether it would be 
appropriate to defer temporarily the application of the new petroleum 
waste codes to such leachate in order to avoid disruption of ongoing 
leachate management activities while the Agency decides how to 
integrate the two regulatory schemes (RCRA and CWA), consistent with 
RCRA section 1006(b)(1) (which requires EPA to integrate regulations 
under RCRA with those of the other statutes implemented by EPA, and to 
avoid duplication, to the maximum extent possible consistent with the 
goals and policies of RCRA and the other statutes). 63 FR 42192. EPA 
specifically requested comment on exempting leachate that would only be 
defined as hazardous waste because it was derived from the disposal of 
one or more of the newly-listed petroleum refining wastes (K169-K172), 
where these wastes were disposed of prior to, and not after, the 
effective date of the listing. EPA also solicited comment on the 
exemption being conditioned on the leachate being subject to regulation 
under the CWA. Finally, EPA asked whether or not the exempt leachate 
should be allowed to be managed in non-subtitle C surface impoundments, 
a practice which presently occurs at some landfill facilities.

How is Leachate Currently Being Evaluated Under Clean Water Act 

    As noted in the August 6, 1998 Federal Register, EPA's Office of 
Water recently proposed national effluent limitations guidelines and 
pretreatment standards for wastewater discharges--most notably, 
leachate--from certain types of landfills, including those that would 
be covered by this notice. 63 FR 6426 (February 6, 1998). In support of 
this proposal, EPA conducted a study of the volume and chemical 
composition of wastewaters generated by both Subtitle C (hazardous 
waste) and Subtitle D (non-hazardous waste) landfills, including 
treatment technologies and management practices currently in use. EPA 
proposed effluent limitations (for nine pollutants in the Non-Hazardous 
Subcategory) for direct dischargers. 63 FR 6463. Most pertinently for 
today's notice, EPA did not propose pretreatment standards for Subtitle 
D landfill wastewaters sent to POTWs because the Agency's information 
indicated that such standards were not required due to several factors, 
including (1) raw leachate data were below published biological 
inhibition levels, and (2) other information indicated a lack of 
``pass-through'' of toxics (including lack of showing of adverse impact 
on POTW sludge quality). 63 FR 6444. For example, the EPA initially 
determined, among other things, that the majority of pollutants 
typically found in raw, non-hazardous landfill leachate were at 
relatively low concentrations that can be adequately treated by a POTW.
    EPA's concern is that what appears to be a proper and reasonable 
means of managing leachate would be undermined if the leachate becomes 
a hazardous waste. This is because some POTWs would become subject to 
RCRA permitting requirements if they accepted the leachate, and would 
surely cease to accept it, even though (if the CWA proposal is correct) 
POTWs can treat the leachate effectively without even the necessity of 
pretreatment. Landfills no longer able to send leachate to POTWs would 
be forced to develop some sort of alternative arrangement--any of 
which, it appears to EPA, would result in undesirable ``duplication'' 
and disruption which section 1006 (b) seeks to prevent. EPA's 
resolution of this problem is set out in the following section.

IV. Today's Action

A. Temporary Deferral of the Listing for Leachate

    After consideration of information and comments received in 
response to the NODA, the Agency is today temporarily deferring from 
the hazardous waste regulations leachate derived from landfills that 
have historically received petroleum refining wastes (i.e., wastes that 
meet the listing description of one or more of the newly-listed K 
wastes), provided the leachate is subject to regulation under the Clean 
Water Act requirements, and is not managed in surface impoundments 
after February 13, 2001. This deferral will remain in place while EPA 
continues to examine the specific aspects of how this leachate is 
currently managed, whether subtitle C regulation is appropriate or 
inappropriate, and (in particular) how the eventual Clean Water Act 
effluent limitation guidelines and standards for landfill wastewaters 
will bear on these questions.
    Today's deferral does not exempt leachate from being hazardous 
waste if the leachate exhibits any of the hazardous waste 
characteristics or is

[[Page 6808]]

derived from any waste codes other than the four petroleum refinery 
wastes described in the deferral, and any residues from treating exempt 
leachate would need to be evaluated against the hazardous waste 
    EPA is deferring the listing's applicability to the leachate to 
avoid the problems alluded to above. Specifically, EPA believes that 
current indirect dischargers would have to create some type of 
unnecessarily duplicative way of managing the leachate if it becomes a 
listed hazardous waste. The most likely alternatives are a sewer hookup 
with the POTW or construction of an on-site wastewater treatment 
system. It appears that any alternative would be unnecessarily 
duplicative (putting aside for the moment the issue of management in 
surface impoundments), assuming the rationale of the proposed CWA rule 
holds, because POTWs can already fully treat the leachate without need 
for treatment by any other entity. Indeed, this same concern is 
expressed in the Clean Water Act, which states that pretreatment 
standards are only to be established for pollutants which interfere 
with, pass through or otherwise are incompatible with treatment by the 
POTW. CWA section 307(b)(1). Put another way, EPA is concerned about 
forcing pretreatment of leachate even though pretreatment is neither 
required by the CWA nor needed. EPA is also concerned about other 
potential disruption of existing, reasonable methods of leachate 
management. The Agency believes that the issue of whether disruptions 
can be minimized through integration of CWA and RCRA rules will be more 
amenable to resolution once the CWA rulemaking in completed.
    EPA is therefore acting to prevent this potential needless 
duplication and disruption by deferring the applicability of the 
listing to leachate which is subject to regulation under the CWA, which 
in this case includes not only direct discharges under NPDES and 
indirect discharges to POTWs through a sewer system, but also transfers 
to POTWs by truck, rail, or dedicated pipeline (a chief concern 
motivating today's rule). Therefore, today's regulatory text 
specifically mentions transfers of leachate to POTWs by truck, rail, or 
dedicated pipeline as a means to satisfy the condition of managing 
leachate subject to regulation under the CWA. Since this deferral is 
directly tied to the on-going CWA rulemaking for landfill wastewaters, 
the deferral will last at least until that rulemaking is completed.
    However, the Clean Water Act rules, because they apply to leachate 
when it is discharged, do not on their own assure safe management 
upstream of that point. These rules on their own, therefore, do not 
address the prime RCRA concern: assuring safety of wastes when they are 
land disposed, particularly when disposed in surface impoundments. Such 
disposal is a key RCRA concern. See RCRA section 1002 (b)(7) (``certain 
classes of land disposal facilities are not capable of assuring long-
term containment of certain hazardous wastes, and to avoid substantial 
risk to human health and the environment, reliance on land disposal 
should be minimized or eliminated and land disposal, particularly 
landfill and surface impoundment, should be the least favored method 
for managing hazardous wastes''); see also, American Mining Congress v. 
EPA, 907 F. 2d 1179, 1187 (D.C. Cir. 1990) (statutory antipathy to 
management in surface impoundments). It is also clear that section 
1006(b) cannot be invoked to ``wholly circumvent'' critical statutory 
provisions. Chemical Waste Management v. EPA, 976 F. 2d 2, 25 (D.C. 
Cir. 1992). The fact that the leachate may not warrant pretreatment 
before discharge of course does not mean that the leachate can be 
safely discharged into groundwater via leaking impoundments. On August 
6, 1998 EPA listed four petroleum refining process wastes as hazardous 
(63 FR 42110). Under the derived-from rule, EPA presumes that the 
leachate derived from these listed wastes may pose risks, particularly 
when managed in land-based units such as surface impoundments. In light 
of this, EPA believes the approach that best integrates RCRA and the 
CWA during EPA's examination of a long-term accommodation, is to 
condition the deferral on replacing existing surface impoundment 
storage with storage in tanks (or operate with fully regulated subtitle 
C impoundments). The EPA intends to continue studying the broader issue 
of the risks that may be posed by managing wastewaters in surface 
impoundments, and is conducting a surface impoundment study that will 
characterize these types of risks. The scope of this study will include 
surface impoundments in use at various types of facilities, including 
certain landfills that manage industrial and municipal solid waste.
    EPA received support for this position from commenters. One 
commenter representing a national environmental organization strongly 
favored this result. Some MSWLF owner/operators also stated that they 
would replace their surface impoundments with leachate storage tanks, 
provided sufficient time is allowed to retrofit.
    EPA agrees that surface impoundments cannot be replaced 
immediately. The statute, in fact, contemplates a four year period to 
replace or retrofit impoundments. See RCRA section 3005(j)(1). EPA 
believes further, however, that a period shorter than four years is 
appropriate here. Based on the information received during the comment 
period, it appears that the use of surface impoundments at MSWLFs to 
manage this leachate is not widespread (e.g., approximately 8 
impoundments were identified out of 52 ``affected'' landfills) 
2. Given the reported volumes of leachate generated from 
MSWLFs that were identified in comments as affected by the new 
petroleum refinery waste listings, the projected size of these 
impoundments also is relatively small. One commenter representing a 
large number of affected landfills in fact stated that 24 months was 
adequate time to allow for the construction and operation of tanks to 
replace the impoundments at those MSWLFs that are affected by the 
petroleum refinery waste listings and are presently using impoundments 
to manage some or all of their leachate. EPA therefore believes that 
two years is a reasonable time for impoundment replacement and 
accordingly is providing in today's rule that the temporary deferral 
applies to leachate derived exclusively from the newly-listed petroleum 
wastes, and that the deferral is conditioned on managing the leachate 
in tanks or other non-land disposal units. This condition takes effect 
in two years. During the two year period, the temporary deferral 
applies to the leachate even if managed in impoundments. Impoundments 
which stop receiving the leachate (or any other hazardous waste) after 
two years are inactive units which are not subject to subtitle C 
requirements. See generally 55 FR 39409 (Sept. 27, 1990) (disposal 
units holding hazardous wastes on date of listing or identification of 
that waste as hazardous are not subject to subtitle C requirements so 
long as additional hazardous wastes are not added to the unit and the 
hazardous wastes in the unit are not actively managed). Should the 
impoundments receive hazardous waste (including leachate which 
otherwise would be subject to this temporary deferral) after the two 
year date, the impoundment unit would

[[Page 6809]]

become a regulated unit subject to all subtitle C requirements. The EPA 
feels that this approach minimizes the immediate disruption that would 
occur should these impoundments suddenly be forced to close, while 
providing an environmentally beneficial result in the expeditious 
conversion of these impoundments to tanks.

    \2\ Comments PR3A-00002, 00007, L0001, L0002, L0003; also, Notes 
from Meeting Between EPA and Representatives of Landfill Industry, 
Memo to Docket F-98-PR3A-FFFFF from Ross Elliott, January 16, 1999.

V. Response to Comments

    EPA was specific in stating in the NODA that the scope of this 
proceeding is the narrow classification and management of leachate 
generated from landfills that disposed of one or more of the newly-
listed petroleum wastes prior to the effective date, where the 
leachates are not defined as hazardous for any other reason, and are 
(in particular) being managed pursuant to Clean Water Act requirements. 
The EPA received comments primarily on this issue, and is responding to 
those comments in this preamble. EPA is not addressing comments raising 
regulatory and policy issues not directly related to the temporary 
deferral. EPA is retaining those comments as part of the record of this 

A. Need for Temporary Deferral

    Nearly all commenters agreed that a deferral for landfill leachate, 
that would otherwise be classified as listed hazardous waste due to the 
new petroleum refinery listings, was necessary to avoid disrupting 
current leachate management practices while allowing the EPA to 
evaluate the issue more carefully.
    One commenter, however, found the Agency's record in support of the 
NODA to be lacking sufficient information to determine whether a 
deferral is necessary. This comment seemed to state that there should 
be more available information before EPA makes a risk-based 
determination regarding whether to regulate these leachates. Today's 
action is a narrower determination, however, and rests on bases fully 
set out in the NODA. EPA is issuing the temporary deferral to avoid the 
potential duplication and disruption which could be created when 
integrating the requirements imposed on leachate management by the 
petroleum listing rule, and the pending Clean Water Act regulation. EPA 
needs to take action now since affected persons would face a shutdown 
of current leachate management systems (in particular, by POTWs 
receiving trucked leachate) and be forced immediately to construct 
alternative leachate treatment facilities which could well prove to be 
unnecessary. There will be opportunities to revisit the temporary 
deferral, most logically at the conclusion of the Clean Water Act 

B. What Are the Implications of the Temporary Deferral for Related 
Management Practices Preceding Discharge Pursuant to CWA Limitations 
and Standards?

1. Landfill Gas Condensate
    One commenter asked whether landfill gas condensate would be 
regulated as a derived-from hazardous waste, should the landfill owner/
operator determine that the landfill disposed of any of the petroleum 
refinery wastes prior to, but not after, the effective date. Landfill 
gas condensate is the liquid (primarily water) from moisture within the 
landfill gas being recovered, which is generated as a result of gas 
recovery processes at the municipal solid waste landfill (see 40 CFR 
258.28(c)(2)) (see item B.4. below). The commenter stated that landfill 
gas condensate is often co-managed with leachate, by either treatment 
and discharge under the Clean Water Act, or by recirculation (discussed 
in more detail later). Based on the limited data currently available, 
it appears that this condensate is substantially identical (in terms of 
identity and concentration of hazardous constituents) to the leachate. 
In fact, EPA's proposed rule on effluent guidelines and pretreatment 
standards for landfills includes condensate along with leachate in the 
group of ``landfill wastewaters'' subject to that rulemaking. 63 FR 
6429. Therefore, the Agency is including landfill gas condensate along 
with landfill leachate in the scope of today's deferral.
2. Leachate Collected and Recirculated Within the Landfill
    Two commenters also questioned how a temporary deferral would 
affect leachate (and condensate) which is recirculated within the 
landfill, a relatively common practice (see 56 FR 51055 (October 9, 
1991)). Under existing interpretations, movement of waste within a land 
disposal unit is not itself land disposal. See, e.g., 55 FR 8758-8760 
(March 8, 1990); 55 FR 30843 (July 27, 1990). Consequently, such 
activity would not result in subtitle C regulation of the unit so long 
as the leachate was merely recirculated in the unit. 55 FR 8760; 55 FR 
30843. This would be the result whether or not EPA adopted the 
temporary deferral in today's rule.3

    \3\ EPA thus disagrees with the implication of the comment that 
a section 1006 rationale would not apply to such recirculation, 
since the comment's premise is that recirculation of collected 
leachate within the landfill automatically makes the landfill a 
regulated unit if the leachate is a hazardous waste.

3. Wastes Derived From the Leachate
    Two commenters asked about the status of solids generated from on-
site wastewater treatment (e.g., filter cake). They stated that this is 
particularly important because these solids are put back into the 
landfill from which the leachate was collected for treatment. Because 
today's deferral applies at the point of generation of the leachate, 
which would be prior to any wastewater treatment the leachate might 
undergo as part of compliance with the CWA (including on-site 
wastewater treatment), these solids would be derived from treating a 
non-listed waste. Therefore, assuming the conditions of the deferral 
promulgated today for leachate apply (and therefore the leachate is 
temporarily not a listed waste), solids from treating this leachate 
would only be hazardous wastes if they are listed independently (which 
they are not under existing rules), or exhibit a characteristic of 
hazardous waste. EPA considered whether there should be a concern about 
the fate of the hazardous constituents that might be contained in the 
solids, particularly if the source of the constituents was from the 
previously disposed refinery wastes. EPA believes this concern is 
reduced, however, because the hazardous constituents of concern that 
caused most of these newly-listed petroleum wastes to be listed 
(benzene and arsenic) are covered by the Toxicity Characteristic (TC). 
Further, an estimate of the volume of sludges generated from treating 
leachate (using leachate volumes submitted to EPA in comments, and 
assuming a 0.1% solids content and a 50% recovery efficiency) is about 
100 metric tons per year, much lower than the volume of the newly-
listed refinery wastes used in the risk assessment in support of the 
listings (70,300 metric tons per year in 1992).
4. Landfill Gas Management
    Landfills can generate gas, which is derived not from the leachate 
but from the disposed solid wastes. It is highly desirable to control 
these gaseous emissions both for safety reasons (to avoid potential 
fires and explosions) and to prevent air pollution (especially from 
methane, a significant greenhouse gas). Municipal landfills do 
typically monitor and control the emission of explosive gases (methane 
in particular). See 40 CFR 258.23. Clean Air Act regulations further 
require municipal landfills above a given design capacity (2.5 million 
megagrams and 2.5 million cubic meters) to capture and control

[[Page 6810]]

non-methane organic compounds (NMOCs) if greater than 50 megagrams of 
NMOCs per year are emitted. See 40 CFR part 60, subparts Cc and WWW 
(implementing section 111 of the Clean Air Act). EPA does not regard 
any of these salutary landfill gas management techniques as 
constituting active management of the landfilled waste which could 
result in subtitle C regulation of the landfill. See generally 54 FR 
36597 (Sept. 1, 1989; 55 FR 39409 (Sept. 27, 1990). The concept does 
not include management of releases from otherwise inactive units. 
Indeed, a different reading would create an incentive not to control 
such releases. EPA consequently does not view the August 6, 1998 
listing rule as triggering subtitle C regulation of landfill gas 
control operations at landfills which previously received the listed 
wastes. (It should also be noted that the burning of landfill gas for 
energy recovery, even if the gas is hazardous waste, is exempt from 
Subtitle C regulation. 56 FR 7203, February 21, 1991.)

C. Conditions of Temporary Deferral

    As described earlier in this document, EPA requested comment on 
several conditions of the temporary deferral. The question of whether 
the proposed deferral should apply to impoundments managing the 
leachate generated comments on both sides of the issue. Some commenters 
felt that well-designed surface impoundments located at municipal solid 
waste landfills provided adequate protection to groundwater. As 
discussed earlier, EPA generally disagrees and has conditioned the 
temporary deferral on cessation of use of surface impoundments within 
two years. There is one type of impoundment, however, that could 
continue to receive the leachate without losing the benefit of the 
temporary deferral. A commenter stated that one of their landfill 
facilities historically received some of the newly-listed petroleum 
refinery wastes, and that facility maintains a surface impoundment with 
the capacity to store 30 days worth of leachate accumulation in the 
event of an emergency shutdown of the treatment plant located on site. 
The commenter stated that this impoundment has not been used in over 
two years, is constructed with two synthetic liners, and has a floating 
roof. The commenter explained that requiring this impoundment to be 
replaced with tanks would be an unnecessary expense with little 
environmental benefit. The Agency agrees with this commenter that it 
may not make sense to replace an impoundment that is not in use, or 
that is used infrequently in emergency situations, while this temporary 
deferral is in effect. This is because the critical risk normally posed 
by impoundments, creation of a pressure head that forces downward 
dispersion of leachate and other liquid in the impoundment (see 
Chemical Manufacturers Ass'n v. EPA, 919 F. 2d 158, 166-67, (D.C. Cir. 
1990)) would be less present for this type of emergency impoundment 
since by definition it is only used in emergency situations, and 
therefore will not contain liquid most of the time. It seems better 
policy not to require replacement of this type of impoundment pending 
more analysis of the leachate. Therefore, the EPA is adding a provision 
to the temporary deferral to allow the use of surface impoundments for 
the non-routine, emergency storage of leachate exempted under today's 
final rule, provided the exempt leachate is removed from the 
impoundments and either returned to the tank-based wastewater treatment 
system, or otherwise discharged under the CWA, as soon as practicable 
after the emergency ends.

D. Determining Whether a Landfill Previously Received the Newly Listed 

    One commenter requested that EPA clarify what specific records or 
other information are required to determine whether a landfill 
historically received and disposed of one or more of the newly-listed 
petroleum wastes. Specifically, the commenter cited a situation where 
several petroleum refineries are located within a landfill's service 
area, and whether they must presume that the landfill accepted the 
refinery wastes that the Agency later listed as hazardous. Determining 
whether a landfill accepted a particular listed waste is a case-by-case 
factual determination. Ordinarily, however, the presence of a petroleum 
refinery in the general service area of the landfill, without more 
information, would not require a determination that the listed wastes 
were disposed at the facility. See 53 FR 51444 (Dec. 21, 1988); 55 FR 
8758 (Mar. 9, 1990); also 61 FR 18805 (April 29, 1996), 63 FR 28619 
(May 26, 1998).

VI. Administrative Assessments

A. Executive Order 12866

    Under Executive Order 12866, EPA must determine whether a 
regulatory action is significant and, therefore, subject to OMB review 
and the other provisions of the Executive Order. A significant 
regulatory action is defined by Executive Order 12866 as one that may:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or rights and obligations or recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
Executive Order 12866.
    Pursuant to the terms of Executive Order 12866, it has been 
determined that this rule is a ``significant regulatory action'' 
because of policy issues arising out of legal mandates. The leachate 
management option elected by the Agency does not, since its expected 
annual cost is so low (see Economic Analysis for explanation), affect 
the Executive Order 12866 determination that would otherwise be made. 
As such, this action was submitted to OMB for review. Changes made in 
response to OMB suggestions or recommendations are documented in the 
public record.
1. Economic Analysis
    Common disposal practices for the four petroleum refining wastes 
are off-site disposal in industrial and municipal solid waste 
landfills. Design criteria require the installation of leachate 
collection systems at new landfills (or lateral expansions of existing 
landfills). Subsequently, leachate derived from the four petroleum 
wastes has traditionally been collected and recirculated, treated, or 
discharged under the Clean Water Act. As described in more detail in 
the August 6, 1998 NODA, as well as in today's rule, the listing for 
the four petroleum refinery wastes on August 6, 1998 (63 FR 42110), 
results in leachate that is actively managed from these landfills to be 
hazardous under the derived-from rule. Also, when the leachate from 
these four wastes mixes with leachate from other wastes disposed in 
these landfills, the entire leachate quantity is considered hazardous 
under the mixture rule. By changing the regulatory status of this 
leachate to be covered under Subtitle C of RCRA, these landfills may 
bear an increase in management costs. EPA estimates that between 58 to 
125 landfills may be affected. The range

[[Page 6811]]

reflects the difference between known recipients of the wastes (based 
on information received in comments), and information about other 
landfills that possibly received the wastes, from the economic analysis 
in support of the petroleum waste listing rulemaking.
Regulatory Options
    The following two regulatory actions have been evaluated:
    1. Temporary Deferral (including Surface Impoundments Converted to 
Tanks within 2 Years): Upon signature the leachate is exempt from being 
regulated as hazardous under RCRA Subtitle C if it is appropriately 
managed under the Clean Water Act (e.g., NPDES discharge, POTW disposal 
via pipeline, and trucking to an off-site POTW). After two years, 
surface impoundments will no longer be allowed to manage exempt 
leachate. If the leachate is managed in a surface impoundment after two 
years the impoundment will be subject to regulation under Subtitle C. 
This regulatory option assumes that landfill operators will avoid 
Subtitle C regulation by building tank systems to replace their 
impoundments before the two-year deadline. However, after two years 
impoundments can still be used for emergency storage of exempt leachate 
and it will continue to remain exempt from Subtitle C regulation.
    2. Standard Listing: Treat the Leachate as Hazardous Waste and 
Subject to Subtitle C Regulation under the Derived-From and Mixture 
Rules. Existing exemptions apply under the Standard Listing regulatory 
option including the wastewater treatment unit exemption (on-site tanks 
and associated piping are not Subject to Subtitle C permits and 
standards if they meet the definition of wastewater treatment unit, 
discussed in detail in the August 6, 1998 NODA). In addition, leachate 
collection sumps are considered to be an integral part of the leachate 
collection system at Subtitle C landfills and do not need to meet 
Subpart J standards for tanks. Leachate collected and recirculated back 
into the landfill the Agency considers not to be ``actively managed'' 
and therefore does not trigger listing regulations. Indirect discharge 
of leachate through the sewer to non-POTWs, and transfer of leachate to 
a POTW by truck, rail, or dedicated pipe, are both practices under 
which the leachate would not be excluded from the definition of solid 
waste; transfer of non-exempt leachate off-site for treatment is a 
practice that would preclude the wastewater treatment unit exemption at 
the landfill site; and management of leachate in surface impoundments 
is a management practice that is not exempt.
Cost Methodology
    The basic cost methodology involved the following steps:
    1. Estimate number of facilities involved. The uncertainty in this 
is the primary reason for the costs range given below.
    2. Estimate current or baseline costs. These include costs based on 
data provided in comments submitted by industry, and reflect costs 
prior to the date on which the petroleum listings become effective 
(February 8, 1999).
    3. Determine procedures for the management of the wastes under 
proposed regulatory option(s). Many steps are involved in this waste 
management train.
    4. Determine leachate quantities involved.
    5. Determine costs to manage leachate under the proposed option(s).
    6. Determine the incremental cost associated with each option.
Compliance Cost Estimates
    Table 1 below presents estimated incremental costs for the two 
options noted. The very marked difference between the costs of the two 
options is attributable largely to the costs associated with trucking 
hazardous leachate to commercial wastewater treatment facilities 
instead of POTWs, costs which are not relevant under the Temporary 
Deferral option. The difference between ``known'' and ``worst case'' 
costs is attributable to the uncertainty in landfill count as noted 
above. The following summarizes Table 1:
    Incremental compliance costs for the known (58 landfills) and 
estimated worst case (125 landfills) population of affected landfills 
that received these four waste streams are estimated to range from $62 
to $219 million under the Standard Listing regulatory option. This 
range is due to the two different populations of affected landfills 
used (i.e., known and worst case), and also reflects a 10-year period 
of leachate generation and a 20-year amortization period. However, the 
upper bound of this cost range may be considerably lower as the result 
of possible savings gained through contract negotiations for repeat 
customers who provide consistent revenue streams to shipping companies 
through their regularly scheduled shipments of leachate. The Cost 
Impact Analysis background document prepared in support of today's rule 
contains additional incremental cost estimates under the Standard 
Listing option, using differing periods of leachate generation and cost 
    Incremental costs are estimated to be between $130,000 and $280,000 
annually for the Clean Water Act Exemption with Two-year Impoundment 
Replacement Deferral regulatory option, with only 8 to 17 of the 
affected landfills expected to currently operate a surface impoundment.

                             Table 1.--Compliance Costs Estimated for Landfills that Received Petroleum (K169--K172) Wastes
                                 Trucked to    Truck to POTW/    Recirculate                                  Evaporation    No leachate
                                    POTW         Recirculate        only       POTW hardpipe      NPDES           pond      or condensate      Total
    Incremental Average        $2.64-$4.34     $2.16-$3.54     0               0              $0.01          $0.01          0              .............
     Annual Compliance Cost
     per Landfill.
    Known Total..............  $47-$78         $15-$25         0               0              $0.05          $0.01          0              $62-$103
    ($ million/year).........  (18 LF; 0 SI)   (7 LF; 1 SI)    (11 LF; 2 SI)   (12 LF; 0 SI)  (5 LF; 4 SI)   (1 LF; 1 SI)   (4 LF; 0 SI)   (58 LF; 8 SI)
    Worst Case...............  $103-$169       $30-$50         0               0              $0.11          $0.02          0              $133-$219
    ($ million/year).........  (39 LF; 0 SI)   (14 LF; 2 SI)   (23 LF; 4 SI)   (27 LF; 0 SI)  (11 LF; 9 SI)  (2 LF; 2 SI)   (9 LF; 0 SI)   (125 LF; 17
 OPTION (Surface Impoundments
 Converted to Tank Systems w/
 in 2 Years)\1\
    Incremental Average        0               $0.006          $0.002          0              $0.012         $0.009         0              .............
     Annual Compliance Cost
     per Landfill.
    Known Total..............  0               $0.042          $0.022          0              $0.060         $0.009         0              $0.13
    ($ million/year).........  (18 LF; 0 SI)   (7 LF; 1 SI)    (11 LF; 2 SI)   (12 LF; 0 SI)  (5 LF; 4 SI)   (1 LF; 1 SI)   (4 LF; 0 SI)   (58 LF; 8 SI)

[[Page 6812]]

    Worst Case...............  0               $0.084          $0.046          0              $0.132         $0.018         0              $0.28
    ($ million/year).........  (39 LF; 0 SI)   (14 LF; 2 SI)   (23 LF; 4 SI)   (27 LF; 0 SI)  (11 LF; 9 SI)  (2 LF; 2 SI)   (9 LF; 0 SI)   (125 LF; 17
\1\ This regulatory option assumes that surface impoundments will be closed and replaced with newly constructed tank systems w/in 2 years. It assumes
  that an exemption from Subtitle C regulation is granted up until the point the leachate enters any impoundment.

B. Regulatory Flexibility Act

Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996) whenever an agency is required to publish a notice of 
rulemaking for any proposed or final rule, it must prepare and make 
available for public comment a regulatory flexibility analysis that 
describes the effect of the rule on small entities (i.e., small 
businesses, small organizations, and small governmental jurisdictions). 
However, no regulatory flexibility analysis is required if the head of 
an agency certifies the rule will not have a significant economic 
impact on a substantial number of small entities.
    SBREFA amended the Regulatory Flexibility Act to require Federal 
agencies to provide a statement of the factual basis for certifying 
that a rule will not have a significant economic impact on a 
substantial number of small entities. The following discussion explains 
EPA's determination.
    The Regulatory Flexibility Act (RFA) of 1980 requires Federal 
agencies to consider impacts on ``small entities'' throughout the 
regulatory process. Section 603 of the RFA calls for an initial 
screening analysis to be performed to determine whether small entities 
will be adversely affected by the regulation. Larger, regional 
landfills are more likely to have managed industrial waste along with 
municipal waste (and therefore be potentially affected by this rule), 
and are typically entities of larger business organizations. However, 
the costs for the selected management option are very low, even for 
those small and municipally-owned landfills that have determined they 
are affected by today's deferral (the average annual cost of the 
selected management option is approximately $15,000/year per facility 
for those facilities managing leachate in surface impoundments). 
Therefore, EPA concludes that there will be no significant impact on 
small entities from the regulatory action selected.

C. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local, and tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
one year. Before promulgating an EPA rule for which a written statement 
is needed, section 205 of the UMRA generally requires EPA to identify 
and consider a reasonable number of regulatory alternatives and adopt 
the least costly, most cost-effective or least burdensome alternative 
that achieves the objectives of the rule. The provisions of section 205 
do not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including tribal governments, it must have developed under 
section 203 of the UMRA a small government agency plan. The plan must 
provide for notifying potentially affected small governments, enabling 
officials of affected small governments to have meaningful and timely 
input in the development of EPA regulatory proposals with significant 
Federal intergovernmental mandates, and informing, educating, and 
advising small governments on compliance with the regulatory 
    The Agency's analysis of compliance with the Unfunded Mandates 
Reform Act (UMRA) of 1995 found that the proposed action imposes no 
enforceable duty on any State, local or tribal governments or the 
private sector; thus today's rule is not subject to the requirements of 
sections 202 and 205 of UMRA.

D. Paperwork Reduction Act

    This rule does not contain any new information collection 
requirements subject to OMB review under the Paperwork Reduction Act of 
1995, 44 U.S.C. 3501 et seq. Facilities will have to comply with the 
existing Subtitle C recordkeeping and reporting requirements for the 
newly listed waste streams.
    To the extent that this rule imposes any information collection 
requirements under existing RCRA regulations promulgated in previous 
rulemakings, those requirements have been approved by the Office of 
Management and Budget (OMB) under the Paperwork Reduction Act, 44 
U.S.C. 3501 et seq., and have been assigned OMB control numbers 2050-
0009 (ICR no. 1573, Part B Permit Application, Permit Modifications, 
and Special Permits); 2050-0120 (ICR 1571, General Facility Hazardous 
Waste Standards); 2050-0028 (ICR 261, Notification of Hazardous Waste 
Activity); 2050-0034 (ICR 262, RCRA Hazardous Waste Permit Application 
and Modification, Part A); 2050-0039 (ICR 801, Requirements for 
Generators, Transporters, and Waste Management Facilities under the 
Hazardous Waste Manifest System); 2050-0035 (ICR 820, Hazardous Waste 
Generator Standards); and 2050-0024 (ICR 976, 1997 Hazardous Waste 

E. Executive Order 12875: Enhancing the Intergovernmental Partnership

    Under Executive Order 12875, EPA may not issue a regulation that is 
not required by statute and that creates a mandate upon a State, local 
or tribal government, unless the Federal government provides the funds 
necessary to pay the direct compliance costs incurred by those 
governments, or EPA consults with those governments. If EPA complies by 
consulting, Executive Order 12875 requires EPA to provide to the Office 
of Management and Budget a description of the extent of EPA's prior 
consultation with representatives of affected State, local and tribal 
governments, the nature of their

[[Page 6813]]

concerns, any written communications from the governments, and a 
statement supporting the need to issue the regulation. In addition, 
Executive Order 12875 requires EPA to develop an effective process 
permitting elected officials and other representatives of State, local 
and tribal governments ``to provide meaningful and timely input in the 
development of regulatory proposals containing significant unfunded 
    Today's rule does not create a mandate on State, local or tribal 
governments. The rule does not impose any enforceable duties on these 
entities. Accordingly, the requirements of section 1(a) of Executive 
Order 12875 do not apply to this rule.

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

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

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

    ``Protection of Children from Environmental Health Risks and Safety 
Risks'' (62 FR 19885, April 23, 1997) applies to any rule that: (1) Is 
determined to be ``economically significant'' as defined under E.O. 
12866, and (2) concerns an environmental health or safety risk that EPA 
has reason to believe may have a disproportionate effect on children. 
If the regulatory action meets both criteria, the Agency must evaluate 
the environmental health or safety effects of the planned rule on 
children, and explain why the planned regulation is preferable to other 
potentially effective and reasonably feasible alternatives considered 
by the Agency.
    This rule is not subject to E.O. 13045 because it is not an 
economically significant rule as defined by E.O. 12866, and because it 
does not involve decisions based on environmental health or safety 

H. National Technology Transfer and Advancement Act of 1995

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Pub. L. 104-113, section 12(d) (15 U.S.C. 272 
note) directs EPA to use voluntary consensus standards in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by voluntary consensus standards bodies. The NTTAA directs EPA 
to provide Congress, through OMB, explanations when the Agency decides 
not to use available and applicable voluntary consensus standards. This 
proposed rulemaking does not involved technical standards. Therefore, 
EPA is not considering the use of any voluntary consensus standards.

I. Executive Order 12898: Environmental Justice

    Under Executive Order 12898, ``Federal Actions to Address 
Environmental Justice in Minority Populations and Low-Income 
Populations,'' as well as through EPA's April 1995, ``Environmental 
Justice Strategy, OSWER Environmental Justice Task Force Action Agenda 
Report,'' and National Environmental Justice Advisory Council, EPA has 
undertaken to incorporate environmental justice into its policies and 
programs. EPA is committed to addressing environmental justice 
concerns, and is assuming a leadership role in environmental justice 
initiatives to enhance environmental quality for all residents of the 
United States. The Agency's goals are to ensure that no segment of the 
population, regardless of race, color, national origin, or income, 
bears disproportionately high and adverse human health and 
environmental effects as a result of EPA's policies, programs, and 
activities, and all people live in clean and sustainable communities. 
To address this goal, EPA considered the impacts of this final rule on 
low-income populations and minority populations and concluded that the 
leachate management option selected by the Agency for this final rule 
would have no impact on nearby minority and low income populations.

VII. The Congressional Review Act

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

VIII. Rationale for Immediate Effective Date

    Because this rule eliminates possible regulation, the regulated 
community does not need 6 months to comply, so that the rule may be 
made effective immediately pursuant to RCRA section 3010 (b) (1). For 
the same reason, it is not necessary to delay the rule's effectiveness 
for 30 days pursuant to 5 U.S.C. 553 (b) (1).

List of Subjects in 40 CFR Part 261

    Environmental protection, Hazardous materials, Waste treatment and 
disposal, Recycling.

    Dated: February 5, 1999.
Carol M. Browner,
    For the reasons set out in the preamble, title 40, chapter I, of 
the Code of Federal Regulations is amended as follows:


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

[[Page 6814]]

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

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

Sec. 261.4  Exclusions

* * * * *
    (b) * * *
    (15) Leachate or gas condensate collected from landfills where 
certain solid wastes have been disposed, provided that:
    (i) The solid wastes disposed would meet one or more of the listing 
descriptions for Hazardous Waste Codes K169, K170, K171, and K172 if 
these wastes had been generated after the effective date of the listing 
(February 8, 1999);
    (ii) The solid wastes described in paragraph (b)(15)(i) of this 
section were disposed prior to the effective date of the listing;
    (iii) The leachate or gas condensate do not exhibit any 
characteristic of hazardous waste nor are derived from any other listed 
hazardous waste;
    (iv) Discharge of the leachate or gas condensate, including 
leachate or gas condensate transferred from the landfill to a POTW by 
truck, rail, or dedicated pipe, is subject to regulation under sections 
307(b) or 402 of the Clean Water Act.
    (v) After February 13, 2001, leachate or gas condensate will no 
longer be exempt if it is stored or managed in a surface impoundment 
prior to discharge. There is one exception: if the surface impoundment 
is used to temporarily store leachate or gas condensate in response to 
an emergency situation (e.g., shutdown of wastewater treatment system), 
provided the impoundment has a double liner, and provided the leachate 
or gas condensate is removed from the impoundment and continues to be 
managed in compliance with the conditions of this paragraph after the 
emergency ends.
* * * * *
[FR Doc. 99-3426 Filed 2-10-99; 8:45 am]