[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]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 261
[FRL-6232-3]
RIN 2050-AE61
Hazardous Waste Management System; Identification and Listing of
Hazardous Waste; Petroleum Refining Process Wastes; Exemption for
Leachate from Non-Hazardous Waste Landfills; Final Rule.
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: Today EPA is temporarily deferring from the definition of
hazardous waste landfill leachate and landfill gas condensate derived
from previously disposed wastes that now meet the listing descriptions
of one or more of the recently added petroleum refinery wastes (waste
codes K169, K170, K171, and K172, promulgated August 6, 1998, 63 FR
42110). Pending further study of this issue, this deferral is provided
to landfill leachate and gas condensate that is subject to regulation
under the Clean Water Act (CWA). EPA is also stipulating that as one
condition of this deferral, this leachate may not ordinarily be managed
in surface impoundments or otherwise placed on the land after February
13, 2001.
EFFECTIVE DATE: This rule is effective February 5, 1999.
ADDRESSES: Supporting materials are available for viewing in the RCRA
Information Center (RIC), located at Crystal Gateway I, First Floor,
1235 Jefferson Davis Highway, Arlington, VA. The Docket Identification
Number is F-1999-PR3F-FFFFF. The RIC is open from 9 a.m. to 4 p.m.,
Monday through Friday, excluding federal holidays. To review docket
materials, it is recommended that the public make an appointment by
calling 703 603-9230. The public may copy a maximum of 100 pages from
any regulatory docket at no charge. Additional copies cost $0.15/page.
The index and some supporting materials are available electronically.
See the Supplementary Information section for information on accessing
them.
FOR FURTHER INFORMATION CONTACT: For general information, contact the
RCRA Hotline at 800 424-9346 or TDD 800 553-7672 (hearing impaired). In
the Washington, DC, metropolitan area, call 703 412-9810 or TDD 703
412-3323. For more detailed information on specific aspects of this
rulemaking, contact Ross Elliott, Office of Solid Waste 5304W, U.S.
Environmental Protection Agency, 401 M Street, SW, Washington, DC
20460, 703 308-8748, [email protected].
SUPPLEMENTARY INFORMATION:
The index and the following supporting materials are available on
the Internet: Response to Comment Document. Follow these instructions
to access the information electronically: www.epa.gov/epaoswer/
hazwaste/id/petroleum/ FTP: ftp.epa.gov, Login: anonymous, Password:
your Internet address, Files are located in /pub/epaoswer.
In addition, the document entitled Development Document for
Proposed Effluent Limitations Guidelines and Standards for the
Landfills Point Source Category, EPA-821-R-97-022, January 1998, placed
in the docket for this notice, can be obtained through the internet at
www.epa.gov/OST/guide/2lndfls/techdev.html.
The contents of the preamble to this final rule are listed in the
following outline:
I. Affected Entities
II. Legal Authority and Background
III. Summary of NODA and Proposed Temporary Deferral
IV. Today's Action
V. Response to Comments
VI. Administrative Assessments
A. Executive Order 12866
B. Regulatory Flexibility Act
C. Unfunded Mandates Reform Act
D. Paperwork Reduction Act
E. Executive Order 12875: Enhancing the Intergovernmental
Partnership
F. Executive Order 13084: Consultation and Coordination with
Indian Tribal Governments
G. Executive Order 13045: Protection of Children from
Environmental Risks and Safety Risks
H. National Technology Transfer and Advancement Act of 1995
I. Executive Order 12898: Environmental Justice
VII. The Congressional Review Act
VIII. Rationale for Immediate Effective Date
I. Affected Entities
Entities potentially affected by this action are those landfills,
both commercial and government-owned, that historically received one or
more of the newly-listed petroleum refinery wastes (K169-K172) and that
generate landfill leachate or landfill gas condensate.
II. Legal Authority and Background
These regulations are being promulgated under the authority of
sections 2002(a) and 3001(a), (b) and (e)(2), 3004(g) and (m) of the
Solid Waste Disposal Act (commonly referred to as RCRA), as amended, 42
U.S.C. 6912(a), and 6921(b) and (e)(2).
As described in the August 6, 1998 NODA, very late in the process
of promulgating four new hazardous waste listings, the Agency was
alerted to the concern that any new listings for petroleum wastes may
have potentially significant impacts on the management of leachate
collected from certain non-hazardous waste landfills. Specifically, one
company that owns and operates non-hazardous waste landfills expressed
concern that because some of their facilities have historically
received and disposed of some or all of the waste streams listed in the
final rulemaking published August 6, 1998 (i.e., K169, K170, K171, and
K172), the leachate that is collected and managed from these landfills
would be classified by these same waste codes after the effective date
of the new petroleum waste listings. 63 FR 42190. However, if Subtitle
C regulation were to apply to leachate generated from such landfills,
leachate now trucked to POTWs would likely no longer be managed by
POTWs, since POTW owner/operators (understandably) would not wish their
facilities to become subject to RCRA Subtitle C regulation. This
company argued that this could lead to vastly
[[Page 6807]]
increased treatment and disposal costs without necessarily any
environmental benefit.
Why Would This Leachate be Regulated as Hazardous Waste?
As discussed in the NODA, leachate that is derived from the
treatment, storage, or disposal of listed hazardous wastes is
classified as a hazardous waste by virtue of the ``derived-from'' rule
in 40 CFR 261.3(c)(2). The Agency has been very clear in the past on
the applicability of hazardous waste listings to wastes disposed of
prior to the effective date of a listing, even if the landfill ceases
disposal of the waste when the waste becomes hazardous. 53 FR 31147
(August 17, 1988). EPA also has a well-established interpretation that
listings likewise apply to leachate derived from the disposal of listed
hazardous wastes, including leachate derived from wastes disposed
before a listing effective date which meet the listing description. Id.
EPA's interpretations were upheld by the Court of Appeals for the
District of Columbia Circuit in Chemical Waste Management, Inc. v. EPA,
869 F.2d 1526, 1536-37 (D.C. Cir. 1989). (These points are restated
here to provide context. EPA is not reconsidering or in any other way
reopening these principles for comment or review.)
Of course, as set out in detail in the August 17, 1988 notice, this
does not mean that landfills holding wastes which are now listed as
hazardous become subject to Subtitle C regulation. However, previously
disposed wastes now meeting the listing description, including residues
such as leachate which are derived from such wastes and are actively
managed, do become subject to Subtitle C regulation. 53 FR 31149. In
many cases, indeed most circumstances, no significant regulatory
consequences under RCRA result from leachate management. Active
management of hazardous leachate would often be exempt from Subtitle C
regulation because the usual pattern of management is discharge either
to POTWs via the sewer system (where leachate mixes with domestic
sewage) or to navigable waters, where in both instances the leachate is
excluded from RCRA jurisdiction.\1\ In addition, management of leachate
in wastewater treatment tanks prior to discharge under the CWA is
exempt from RCRA regulation (40 CFR 264.1(g)(6)). However, some
management practices, such as leachate being transported off site to a
POTW in a truck, would not be exempt from Subtitle C regulation as
described in more detail elsewhere in today's document.
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\1\ See RCRA Section 1004(27) and 40 CFR 261.4(a)(1) (domestic
sewage exclusion); see also RCRA Section 1004(27) and 40 CFR
261.4(a)(2) (industrial point source exclusion).
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III. Summary of NODA and Proposed Temporary Deferral
EPA requested comment in the NODA on whether it would be
appropriate to defer temporarily the application of the new petroleum
waste codes to such leachate in order to avoid disruption of ongoing
leachate management activities while the Agency decides how to
integrate the two regulatory schemes (RCRA and CWA), consistent with
RCRA section 1006(b)(1) (which requires EPA to integrate regulations
under RCRA with those of the other statutes implemented by EPA, and to
avoid duplication, to the maximum extent possible consistent with the
goals and policies of RCRA and the other statutes). 63 FR 42192. EPA
specifically requested comment on exempting leachate that would only be
defined as hazardous waste because it was derived from the disposal of
one or more of the newly-listed petroleum refining wastes (K169-K172),
where these wastes were disposed of prior to, and not after, the
effective date of the listing. EPA also solicited comment on the
exemption being conditioned on the leachate being subject to regulation
under the CWA. Finally, EPA asked whether or not the exempt leachate
should be allowed to be managed in non-subtitle C surface impoundments,
a practice which presently occurs at some landfill facilities.
How is Leachate Currently Being Evaluated Under Clean Water Act
Regulations?
As noted in the August 6, 1998 Federal Register, EPA's Office of
Water recently proposed national effluent limitations guidelines and
pretreatment standards for wastewater discharges--most notably,
leachate--from certain types of landfills, including those that would
be covered by this notice. 63 FR 6426 (February 6, 1998). In support of
this proposal, EPA conducted a study of the volume and chemical
composition of wastewaters generated by both Subtitle C (hazardous
waste) and Subtitle D (non-hazardous waste) landfills, including
treatment technologies and management practices currently in use. EPA
proposed effluent limitations (for nine pollutants in the Non-Hazardous
Subcategory) for direct dischargers. 63 FR 6463. Most pertinently for
today's notice, EPA did not propose pretreatment standards for Subtitle
D landfill wastewaters sent to POTWs because the Agency's information
indicated that such standards were not required due to several factors,
including (1) raw leachate data were below published biological
inhibition levels, and (2) other information indicated a lack of
``pass-through'' of toxics (including lack of showing of adverse impact
on POTW sludge quality). 63 FR 6444. For example, the EPA initially
determined, among other things, that the majority of pollutants
typically found in raw, non-hazardous landfill leachate were at
relatively low concentrations that can be adequately treated by a POTW.
EPA's concern is that what appears to be a proper and reasonable
means of managing leachate would be undermined if the leachate becomes
a hazardous waste. This is because some POTWs would become subject to
RCRA permitting requirements if they accepted the leachate, and would
surely cease to accept it, even though (if the CWA proposal is correct)
POTWs can treat the leachate effectively without even the necessity of
pretreatment. Landfills no longer able to send leachate to POTWs would
be forced to develop some sort of alternative arrangement--any of
which, it appears to EPA, would result in undesirable ``duplication''
and disruption which section 1006 (b) seeks to prevent. EPA's
resolution of this problem is set out in the following section.
IV. Today's Action
A. Temporary Deferral of the Listing for Leachate
After consideration of information and comments received in
response to the NODA, the Agency is today temporarily deferring from
the hazardous waste regulations leachate derived from landfills that
have historically received petroleum refining wastes (i.e., wastes that
meet the listing description of one or more of the newly-listed K
wastes), provided the leachate is subject to regulation under the Clean
Water Act requirements, and is not managed in surface impoundments
after February 13, 2001. This deferral will remain in place while EPA
continues to examine the specific aspects of how this leachate is
currently managed, whether subtitle C regulation is appropriate or
inappropriate, and (in particular) how the eventual Clean Water Act
effluent limitation guidelines and standards for landfill wastewaters
will bear on these questions.
Today's deferral does not exempt leachate from being hazardous
waste if the leachate exhibits any of the hazardous waste
characteristics or is
[[Page 6808]]
derived from any waste codes other than the four petroleum refinery
wastes described in the deferral, and any residues from treating exempt
leachate would need to be evaluated against the hazardous waste
characteristics.
EPA is deferring the listing's applicability to the leachate to
avoid the problems alluded to above. Specifically, EPA believes that
current indirect dischargers would have to create some type of
unnecessarily duplicative way of managing the leachate if it becomes a
listed hazardous waste. The most likely alternatives are a sewer hookup
with the POTW or construction of an on-site wastewater treatment
system. It appears that any alternative would be unnecessarily
duplicative (putting aside for the moment the issue of management in
surface impoundments), assuming the rationale of the proposed CWA rule
holds, because POTWs can already fully treat the leachate without need
for treatment by any other entity. Indeed, this same concern is
expressed in the Clean Water Act, which states that pretreatment
standards are only to be established for pollutants which interfere
with, pass through or otherwise are incompatible with treatment by the
POTW. CWA section 307(b)(1). Put another way, EPA is concerned about
forcing pretreatment of leachate even though pretreatment is neither
required by the CWA nor needed. EPA is also concerned about other
potential disruption of existing, reasonable methods of leachate
management. The Agency believes that the issue of whether disruptions
can be minimized through integration of CWA and RCRA rules will be more
amenable to resolution once the CWA rulemaking in completed.
EPA is therefore acting to prevent this potential needless
duplication and disruption by deferring the applicability of the
listing to leachate which is subject to regulation under the CWA, which
in this case includes not only direct discharges under NPDES and
indirect discharges to POTWs through a sewer system, but also transfers
to POTWs by truck, rail, or dedicated pipeline (a chief concern
motivating today's rule). Therefore, today's regulatory text
specifically mentions transfers of leachate to POTWs by truck, rail, or
dedicated pipeline as a means to satisfy the condition of managing
leachate subject to regulation under the CWA. Since this deferral is
directly tied to the on-going CWA rulemaking for landfill wastewaters,
the deferral will last at least until that rulemaking is completed.
However, the Clean Water Act rules, because they apply to leachate
when it is discharged, do not on their own assure safe management
upstream of that point. These rules on their own, therefore, do not
address the prime RCRA concern: assuring safety of wastes when they are
land disposed, particularly when disposed in surface impoundments. Such
disposal is a key RCRA concern. See RCRA section 1002 (b)(7) (``certain
classes of land disposal facilities are not capable of assuring long-
term containment of certain hazardous wastes, and to avoid substantial
risk to human health and the environment, reliance on land disposal
should be minimized or eliminated and land disposal, particularly
landfill and surface impoundment, should be the least favored method
for managing hazardous wastes''); see also, American Mining Congress v.
EPA, 907 F. 2d 1179, 1187 (D.C. Cir. 1990) (statutory antipathy to
management in surface impoundments). It is also clear that section
1006(b) cannot be invoked to ``wholly circumvent'' critical statutory
provisions. Chemical Waste Management v. EPA, 976 F. 2d 2, 25 (D.C.
Cir. 1992). The fact that the leachate may not warrant pretreatment
before discharge of course does not mean that the leachate can be
safely discharged into groundwater via leaking impoundments. On August
6, 1998 EPA listed four petroleum refining process wastes as hazardous
(63 FR 42110). Under the derived-from rule, EPA presumes that the
leachate derived from these listed wastes may pose risks, particularly
when managed in land-based units such as surface impoundments. In light
of this, EPA believes the approach that best integrates RCRA and the
CWA during EPA's examination of a long-term accommodation, is to
condition the deferral on replacing existing surface impoundment
storage with storage in tanks (or operate with fully regulated subtitle
C impoundments). The EPA intends to continue studying the broader issue
of the risks that may be posed by managing wastewaters in surface
impoundments, and is conducting a surface impoundment study that will
characterize these types of risks. The scope of this study will include
surface impoundments in use at various types of facilities, including
certain landfills that manage industrial and municipal solid waste.
EPA received support for this position from commenters. One
commenter representing a national environmental organization strongly
favored this result. Some MSWLF owner/operators also stated that they
would replace their surface impoundments with leachate storage tanks,
provided sufficient time is allowed to retrofit.
EPA agrees that surface impoundments cannot be replaced
immediately. The statute, in fact, contemplates a four year period to
replace or retrofit impoundments. See RCRA section 3005(j)(1). EPA
believes further, however, that a period shorter than four years is
appropriate here. Based on the information received during the comment
period, it appears that the use of surface impoundments at MSWLFs to
manage this leachate is not widespread (e.g., approximately 8
impoundments were identified out of 52 ``affected'' landfills)
2. Given the reported volumes of leachate generated from
MSWLFs that were identified in comments as affected by the new
petroleum refinery waste listings, the projected size of these
impoundments also is relatively small. One commenter representing a
large number of affected landfills in fact stated that 24 months was
adequate time to allow for the construction and operation of tanks to
replace the impoundments at those MSWLFs that are affected by the
petroleum refinery waste listings and are presently using impoundments
to manage some or all of their leachate. EPA therefore believes that
two years is a reasonable time for impoundment replacement and
accordingly is providing in today's rule that the temporary deferral
applies to leachate derived exclusively from the newly-listed petroleum
wastes, and that the deferral is conditioned on managing the leachate
in tanks or other non-land disposal units. This condition takes effect
in two years. During the two year period, the temporary deferral
applies to the leachate even if managed in impoundments. Impoundments
which stop receiving the leachate (or any other hazardous waste) after
two years are inactive units which are not subject to subtitle C
requirements. See generally 55 FR 39409 (Sept. 27, 1990) (disposal
units holding hazardous wastes on date of listing or identification of
that waste as hazardous are not subject to subtitle C requirements so
long as additional hazardous wastes are not added to the unit and the
hazardous wastes in the unit are not actively managed). Should the
impoundments receive hazardous waste (including leachate which
otherwise would be subject to this temporary deferral) after the two
year date, the impoundment unit would
[[Page 6809]]
become a regulated unit subject to all subtitle C requirements. The EPA
feels that this approach minimizes the immediate disruption that would
occur should these impoundments suddenly be forced to close, while
providing an environmentally beneficial result in the expeditious
conversion of these impoundments to tanks.
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\2\ Comments PR3A-00002, 00007, L0001, L0002, L0003; also, Notes
from Meeting Between EPA and Representatives of Landfill Industry,
Memo to Docket F-98-PR3A-FFFFF from Ross Elliott, January 16, 1999.
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V. Response to Comments
EPA was specific in stating in the NODA that the scope of this
proceeding is the narrow classification and management of leachate
generated from landfills that disposed of one or more of the newly-
listed petroleum wastes prior to the effective date, where the
leachates are not defined as hazardous for any other reason, and are
(in particular) being managed pursuant to Clean Water Act requirements.
The EPA received comments primarily on this issue, and is responding to
those comments in this preamble. EPA is not addressing comments raising
regulatory and policy issues not directly related to the temporary
deferral. EPA is retaining those comments as part of the record of this
action.
A. Need for Temporary Deferral
Nearly all commenters agreed that a deferral for landfill leachate,
that would otherwise be classified as listed hazardous waste due to the
new petroleum refinery listings, was necessary to avoid disrupting
current leachate management practices while allowing the EPA to
evaluate the issue more carefully.
One commenter, however, found the Agency's record in support of the
NODA to be lacking sufficient information to determine whether a
deferral is necessary. This comment seemed to state that there should
be more available information before EPA makes a risk-based
determination regarding whether to regulate these leachates. Today's
action is a narrower determination, however, and rests on bases fully
set out in the NODA. EPA is issuing the temporary deferral to avoid the
potential duplication and disruption which could be created when
integrating the requirements imposed on leachate management by the
petroleum listing rule, and the pending Clean Water Act regulation. EPA
needs to take action now since affected persons would face a shutdown
of current leachate management systems (in particular, by POTWs
receiving trucked leachate) and be forced immediately to construct
alternative leachate treatment facilities which could well prove to be
unnecessary. There will be opportunities to revisit the temporary
deferral, most logically at the conclusion of the Clean Water Act
rulemaking.
B. What Are the Implications of the Temporary Deferral for Related
Management Practices Preceding Discharge Pursuant to CWA Limitations
and Standards?
1. Landfill Gas Condensate
One commenter asked whether landfill gas condensate would be
regulated as a derived-from hazardous waste, should the landfill owner/
operator determine that the landfill disposed of any of the petroleum
refinery wastes prior to, but not after, the effective date. Landfill
gas condensate is the liquid (primarily water) from moisture within the
landfill gas being recovered, which is generated as a result of gas
recovery processes at the municipal solid waste landfill (see 40 CFR
258.28(c)(2)) (see item B.4. below). The commenter stated that landfill
gas condensate is often co-managed with leachate, by either treatment
and discharge under the Clean Water Act, or by recirculation (discussed
in more detail later). Based on the limited data currently available,
it appears that this condensate is substantially identical (in terms of
identity and concentration of hazardous constituents) to the leachate.
In fact, EPA's proposed rule on effluent guidelines and pretreatment
standards for landfills includes condensate along with leachate in the
group of ``landfill wastewaters'' subject to that rulemaking. 63 FR
6429. Therefore, the Agency is including landfill gas condensate along
with landfill leachate in the scope of today's deferral.
2. Leachate Collected and Recirculated Within the Landfill
Two commenters also questioned how a temporary deferral would
affect leachate (and condensate) which is recirculated within the
landfill, a relatively common practice (see 56 FR 51055 (October 9,
1991)). Under existing interpretations, movement of waste within a land
disposal unit is not itself land disposal. See, e.g., 55 FR 8758-8760
(March 8, 1990); 55 FR 30843 (July 27, 1990). Consequently, such
activity would not result in subtitle C regulation of the unit so long
as the leachate was merely recirculated in the unit. 55 FR 8760; 55 FR
30843. This would be the result whether or not EPA adopted the
temporary deferral in today's rule.3
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\3\ EPA thus disagrees with the implication of the comment that
a section 1006 rationale would not apply to such recirculation,
since the comment's premise is that recirculation of collected
leachate within the landfill automatically makes the landfill a
regulated unit if the leachate is a hazardous waste.
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3. Wastes Derived From the Leachate
Two commenters asked about the status of solids generated from on-
site wastewater treatment (e.g., filter cake). They stated that this is
particularly important because these solids are put back into the
landfill from which the leachate was collected for treatment. Because
today's deferral applies at the point of generation of the leachate,
which would be prior to any wastewater treatment the leachate might
undergo as part of compliance with the CWA (including on-site
wastewater treatment), these solids would be derived from treating a
non-listed waste. Therefore, assuming the conditions of the deferral
promulgated today for leachate apply (and therefore the leachate is
temporarily not a listed waste), solids from treating this leachate
would only be hazardous wastes if they are listed independently (which
they are not under existing rules), or exhibit a characteristic of
hazardous waste. EPA considered whether there should be a concern about
the fate of the hazardous constituents that might be contained in the
solids, particularly if the source of the constituents was from the
previously disposed refinery wastes. EPA believes this concern is
reduced, however, because the hazardous constituents of concern that
caused most of these newly-listed petroleum wastes to be listed
(benzene and arsenic) are covered by the Toxicity Characteristic (TC).
Further, an estimate of the volume of sludges generated from treating
leachate (using leachate volumes submitted to EPA in comments, and
assuming a 0.1% solids content and a 50% recovery efficiency) is about
100 metric tons per year, much lower than the volume of the newly-
listed refinery wastes used in the risk assessment in support of the
listings (70,300 metric tons per year in 1992).
4. Landfill Gas Management
Landfills can generate gas, which is derived not from the leachate
but from the disposed solid wastes. It is highly desirable to control
these gaseous emissions both for safety reasons (to avoid potential
fires and explosions) and to prevent air pollution (especially from
methane, a significant greenhouse gas). Municipal landfills do
typically monitor and control the emission of explosive gases (methane
in particular). See 40 CFR 258.23. Clean Air Act regulations further
require municipal landfills above a given design capacity (2.5 million
megagrams and 2.5 million cubic meters) to capture and control
[[Page 6810]]
non-methane organic compounds (NMOCs) if greater than 50 megagrams of
NMOCs per year are emitted. See 40 CFR part 60, subparts Cc and WWW
(implementing section 111 of the Clean Air Act). EPA does not regard
any of these salutary landfill gas management techniques as
constituting active management of the landfilled waste which could
result in subtitle C regulation of the landfill. See generally 54 FR
36597 (Sept. 1, 1989; 55 FR 39409 (Sept. 27, 1990). The concept does
not include management of releases from otherwise inactive units.
Indeed, a different reading would create an incentive not to control
such releases. EPA consequently does not view the August 6, 1998
listing rule as triggering subtitle C regulation of landfill gas
control operations at landfills which previously received the listed
wastes. (It should also be noted that the burning of landfill gas for
energy recovery, even if the gas is hazardous waste, is exempt from
Subtitle C regulation. 56 FR 7203, February 21, 1991.)
C. Conditions of Temporary Deferral
As described earlier in this document, EPA requested comment on
several conditions of the temporary deferral. The question of whether
the proposed deferral should apply to impoundments managing the
leachate generated comments on both sides of the issue. Some commenters
felt that well-designed surface impoundments located at municipal solid
waste landfills provided adequate protection to groundwater. As
discussed earlier, EPA generally disagrees and has conditioned the
temporary deferral on cessation of use of surface impoundments within
two years. There is one type of impoundment, however, that could
continue to receive the leachate without losing the benefit of the
temporary deferral. A commenter stated that one of their landfill
facilities historically received some of the newly-listed petroleum
refinery wastes, and that facility maintains a surface impoundment with
the capacity to store 30 days worth of leachate accumulation in the
event of an emergency shutdown of the treatment plant located on site.
The commenter stated that this impoundment has not been used in over
two years, is constructed with two synthetic liners, and has a floating
roof. The commenter explained that requiring this impoundment to be
replaced with tanks would be an unnecessary expense with little
environmental benefit. The Agency agrees with this commenter that it
may not make sense to replace an impoundment that is not in use, or
that is used infrequently in emergency situations, while this temporary
deferral is in effect. This is because the critical risk normally posed
by impoundments, creation of a pressure head that forces downward
dispersion of leachate and other liquid in the impoundment (see
Chemical Manufacturers Ass'n v. EPA, 919 F. 2d 158, 166-67, (D.C. Cir.
1990)) would be less present for this type of emergency impoundment
since by definition it is only used in emergency situations, and
therefore will not contain liquid most of the time. It seems better
policy not to require replacement of this type of impoundment pending
more analysis of the leachate. Therefore, the EPA is adding a provision
to the temporary deferral to allow the use of surface impoundments for
the non-routine, emergency storage of leachate exempted under today's
final rule, provided the exempt leachate is removed from the
impoundments and either returned to the tank-based wastewater treatment
system, or otherwise discharged under the CWA, as soon as practicable
after the emergency ends.
D. Determining Whether a Landfill Previously Received the Newly Listed
Wastes
One commenter requested that EPA clarify what specific records or
other information are required to determine whether a landfill
historically received and disposed of one or more of the newly-listed
petroleum wastes. Specifically, the commenter cited a situation where
several petroleum refineries are located within a landfill's service
area, and whether they must presume that the landfill accepted the
refinery wastes that the Agency later listed as hazardous. Determining
whether a landfill accepted a particular listed waste is a case-by-case
factual determination. Ordinarily, however, the presence of a petroleum
refinery in the general service area of the landfill, without more
information, would not require a determination that the listed wastes
were disposed at the facility. See 53 FR 51444 (Dec. 21, 1988); 55 FR
8758 (Mar. 9, 1990); also 61 FR 18805 (April 29, 1996), 63 FR 28619
(May 26, 1998).
VI. Administrative Assessments
A. Executive Order 12866
Under Executive Order 12866, EPA must determine whether a
regulatory action is significant and, therefore, subject to OMB review
and the other provisions of the Executive Order. A significant
regulatory action is defined by Executive Order 12866 as one that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or rights and obligations or recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
Executive Order 12866.
Pursuant to the terms of Executive Order 12866, it has been
determined that this rule is a ``significant regulatory action''
because of policy issues arising out of legal mandates. The leachate
management option elected by the Agency does not, since its expected
annual cost is so low (see Economic Analysis for explanation), affect
the Executive Order 12866 determination that would otherwise be made.
As such, this action was submitted to OMB for review. Changes made in
response to OMB suggestions or recommendations are documented in the
public record.
1. Economic Analysis
Background
Common disposal practices for the four petroleum refining wastes
are off-site disposal in industrial and municipal solid waste
landfills. Design criteria require the installation of leachate
collection systems at new landfills (or lateral expansions of existing
landfills). Subsequently, leachate derived from the four petroleum
wastes has traditionally been collected and recirculated, treated, or
discharged under the Clean Water Act. As described in more detail in
the August 6, 1998 NODA, as well as in today's rule, the listing for
the four petroleum refinery wastes on August 6, 1998 (63 FR 42110),
results in leachate that is actively managed from these landfills to be
hazardous under the derived-from rule. Also, when the leachate from
these four wastes mixes with leachate from other wastes disposed in
these landfills, the entire leachate quantity is considered hazardous
under the mixture rule. By changing the regulatory status of this
leachate to be covered under Subtitle C of RCRA, these landfills may
bear an increase in management costs. EPA estimates that between 58 to
125 landfills may be affected. The range
[[Page 6811]]
reflects the difference between known recipients of the wastes (based
on information received in comments), and information about other
landfills that possibly received the wastes, from the economic analysis
in support of the petroleum waste listing rulemaking.
Regulatory Options
The following two regulatory actions have been evaluated:
1. Temporary Deferral (including Surface Impoundments Converted to
Tanks within 2 Years): Upon signature the leachate is exempt from being
regulated as hazardous under RCRA Subtitle C if it is appropriately
managed under the Clean Water Act (e.g., NPDES discharge, POTW disposal
via pipeline, and trucking to an off-site POTW). After two years,
surface impoundments will no longer be allowed to manage exempt
leachate. If the leachate is managed in a surface impoundment after two
years the impoundment will be subject to regulation under Subtitle C.
This regulatory option assumes that landfill operators will avoid
Subtitle C regulation by building tank systems to replace their
impoundments before the two-year deadline. However, after two years
impoundments can still be used for emergency storage of exempt leachate
and it will continue to remain exempt from Subtitle C regulation.
2. Standard Listing: Treat the Leachate as Hazardous Waste and
Subject to Subtitle C Regulation under the Derived-From and Mixture
Rules. Existing exemptions apply under the Standard Listing regulatory
option including the wastewater treatment unit exemption (on-site tanks
and associated piping are not Subject to Subtitle C permits and
standards if they meet the definition of wastewater treatment unit,
discussed in detail in the August 6, 1998 NODA). In addition, leachate
collection sumps are considered to be an integral part of the leachate
collection system at Subtitle C landfills and do not need to meet
Subpart J standards for tanks. Leachate collected and recirculated back
into the landfill the Agency considers not to be ``actively managed''
and therefore does not trigger listing regulations. Indirect discharge
of leachate through the sewer to non-POTWs, and transfer of leachate to
a POTW by truck, rail, or dedicated pipe, are both practices under
which the leachate would not be excluded from the definition of solid
waste; transfer of non-exempt leachate off-site for treatment is a
practice that would preclude the wastewater treatment unit exemption at
the landfill site; and management of leachate in surface impoundments
is a management practice that is not exempt.
Cost Methodology
The basic cost methodology involved the following steps:
1. Estimate number of facilities involved. The uncertainty in this
is the primary reason for the costs range given below.
2. Estimate current or baseline costs. These include costs based on
data provided in comments submitted by industry, and reflect costs
prior to the date on which the petroleum listings become effective
(February 8, 1999).
3. Determine procedures for the management of the wastes under
proposed regulatory option(s). Many steps are involved in this waste
management train.
4. Determine leachate quantities involved.
5. Determine costs to manage leachate under the proposed option(s).
6. Determine the incremental cost associated with each option.
Compliance Cost Estimates
Table 1 below presents estimated incremental costs for the two
options noted. The very marked difference between the costs of the two
options is attributable largely to the costs associated with trucking
hazardous leachate to commercial wastewater treatment facilities
instead of POTWs, costs which are not relevant under the Temporary
Deferral option. The difference between ``known'' and ``worst case''
costs is attributable to the uncertainty in landfill count as noted
above. The following summarizes Table 1:
Incremental compliance costs for the known (58 landfills) and
estimated worst case (125 landfills) population of affected landfills
that received these four waste streams are estimated to range from $62
to $219 million under the Standard Listing regulatory option. This
range is due to the two different populations of affected landfills
used (i.e., known and worst case), and also reflects a 10-year period
of leachate generation and a 20-year amortization period. However, the
upper bound of this cost range may be considerably lower as the result
of possible savings gained through contract negotiations for repeat
customers who provide consistent revenue streams to shipping companies
through their regularly scheduled shipments of leachate. The Cost
Impact Analysis background document prepared in support of today's rule
contains additional incremental cost estimates under the Standard
Listing option, using differing periods of leachate generation and cost
amortization.
Incremental costs are estimated to be between $130,000 and $280,000
annually for the Clean Water Act Exemption with Two-year Impoundment
Replacement Deferral regulatory option, with only 8 to 17 of the
affected landfills expected to currently operate a surface impoundment.
Table 1.--Compliance Costs Estimated for Landfills that Received Petroleum (K169--K172) Wastes
--------------------------------------------------------------------------------------------------------------------------------------------------------
Trucked to Truck to POTW/ Recirculate Evaporation No leachate
POTW Recirculate only POTW hardpipe NPDES pond or condensate Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
STANDARD LISTING REGULATORY
OPTION
Incremental Average $2.64-$4.34 $2.16-$3.54 0 0 $0.01 $0.01 0 .............
Annual Compliance Cost
per Landfill.
($million/landfill)......
Known Total.............. $47-$78 $15-$25 0 0 $0.05 $0.01 0 $62-$103
($ million/year)......... (18 LF; 0 SI) (7 LF; 1 SI) (11 LF; 2 SI) (12 LF; 0 SI) (5 LF; 4 SI) (1 LF; 1 SI) (4 LF; 0 SI) (58 LF; 8 SI)
Worst Case............... $103-$169 $30-$50 0 0 $0.11 $0.02 0 $133-$219
($ million/year)......... (39 LF; 0 SI) (14 LF; 2 SI) (23 LF; 4 SI) (27 LF; 0 SI) (11 LF; 9 SI) (2 LF; 2 SI) (9 LF; 0 SI) (125 LF; 17
SI)
TEMPORARY DEFERRAL REGULATORY
OPTION (Surface Impoundments
Converted to Tank Systems w/
in 2 Years)\1\
Incremental Average 0 $0.006 $0.002 0 $0.012 $0.009 0 .............
Annual Compliance Cost
per Landfill.
($million/landfill)......
Known Total.............. 0 $0.042 $0.022 0 $0.060 $0.009 0 $0.13
($ million/year)......... (18 LF; 0 SI) (7 LF; 1 SI) (11 LF; 2 SI) (12 LF; 0 SI) (5 LF; 4 SI) (1 LF; 1 SI) (4 LF; 0 SI) (58 LF; 8 SI)
[[Page 6812]]
Worst Case............... 0 $0.084 $0.046 0 $0.132 $0.018 0 $0.28
($ million/year)......... (39 LF; 0 SI) (14 LF; 2 SI) (23 LF; 4 SI) (27 LF; 0 SI) (11 LF; 9 SI) (2 LF; 2 SI) (9 LF; 0 SI) (125 LF; 17
SI)
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ This regulatory option assumes that surface impoundments will be closed and replaced with newly constructed tank systems w/in 2 years. It assumes
that an exemption from Subtitle C regulation is granted up until the point the leachate enters any impoundment.
B. Regulatory Flexibility Act
Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as
amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996) whenever an agency is required to publish a notice of
rulemaking for any proposed or final rule, it must prepare and make
available for public comment a regulatory flexibility analysis that
describes the effect of the rule on small entities (i.e., small
businesses, small organizations, and small governmental jurisdictions).
However, no regulatory flexibility analysis is required if the head of
an agency certifies the rule will not have a significant economic
impact on a substantial number of small entities.
SBREFA amended the Regulatory Flexibility Act to require Federal
agencies to provide a statement of the factual basis for certifying
that a rule will not have a significant economic impact on a
substantial number of small entities. The following discussion explains
EPA's determination.
The Regulatory Flexibility Act (RFA) of 1980 requires Federal
agencies to consider impacts on ``small entities'' throughout the
regulatory process. Section 603 of the RFA calls for an initial
screening analysis to be performed to determine whether small entities
will be adversely affected by the regulation. Larger, regional
landfills are more likely to have managed industrial waste along with
municipal waste (and therefore be potentially affected by this rule),
and are typically entities of larger business organizations. However,
the costs for the selected management option are very low, even for
those small and municipally-owned landfills that have determined they
are affected by today's deferral (the average annual cost of the
selected management option is approximately $15,000/year per facility
for those facilities managing leachate in surface impoundments).
Therefore, EPA concludes that there will be no significant impact on
small entities from the regulatory action selected.
C. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of the UMRA generally requires EPA to identify
and consider a reasonable number of regulatory alternatives and adopt
the least costly, most cost-effective or least burdensome alternative
that achieves the objectives of the rule. The provisions of section 205
do not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including tribal governments, it must have developed under
section 203 of the UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments, enabling
officials of affected small governments to have meaningful and timely
input in the development of EPA regulatory proposals with significant
Federal intergovernmental mandates, and informing, educating, and
advising small governments on compliance with the regulatory
requirements.
The Agency's analysis of compliance with the Unfunded Mandates
Reform Act (UMRA) of 1995 found that the proposed action imposes no
enforceable duty on any State, local or tribal governments or the
private sector; thus today's rule is not subject to the requirements of
sections 202 and 205 of UMRA.
D. Paperwork Reduction Act
This rule does not contain any new information collection
requirements subject to OMB review under the Paperwork Reduction Act of
1995, 44 U.S.C. 3501 et seq. Facilities will have to comply with the
existing Subtitle C recordkeeping and reporting requirements for the
newly listed waste streams.
To the extent that this rule imposes any information collection
requirements under existing RCRA regulations promulgated in previous
rulemakings, those requirements have been approved by the Office of
Management and Budget (OMB) under the Paperwork Reduction Act, 44
U.S.C. 3501 et seq., and have been assigned OMB control numbers 2050-
0009 (ICR no. 1573, Part B Permit Application, Permit Modifications,
and Special Permits); 2050-0120 (ICR 1571, General Facility Hazardous
Waste Standards); 2050-0028 (ICR 261, Notification of Hazardous Waste
Activity); 2050-0034 (ICR 262, RCRA Hazardous Waste Permit Application
and Modification, Part A); 2050-0039 (ICR 801, Requirements for
Generators, Transporters, and Waste Management Facilities under the
Hazardous Waste Manifest System); 2050-0035 (ICR 820, Hazardous Waste
Generator Standards); and 2050-0024 (ICR 976, 1997 Hazardous Waste
Report.
E. Executive Order 12875: Enhancing the Intergovernmental Partnership
Under Executive Order 12875, EPA may not issue a regulation that is
not required by statute and that creates a mandate upon a State, local
or tribal government, unless the Federal government provides the funds
necessary to pay the direct compliance costs incurred by those
governments, or EPA consults with those governments. If EPA complies by
consulting, Executive Order 12875 requires EPA to provide to the Office
of Management and Budget a description of the extent of EPA's prior
consultation with representatives of affected State, local and tribal
governments, the nature of their
[[Page 6813]]
concerns, any written communications from the governments, and a
statement supporting the need to issue the regulation. In addition,
Executive Order 12875 requires EPA to develop an effective process
permitting elected officials and other representatives of State, local
and tribal governments ``to provide meaningful and timely input in the
development of regulatory proposals containing significant unfunded
mandates.''
Today's rule does not create a mandate on State, local or tribal
governments. The rule does not impose any enforceable duties on these
entities. Accordingly, the requirements of section 1(a) of Executive
Order 12875 do not apply to this rule.
F. Executive Order 13084: Consultation and Coordination with Indian
Tribal Governments
Under Executive Order 13084, EPA may not issue a regulation that is
not required by statute, that significantly or uniquely affects the
communities of Indian tribal governments, and that imposes substantial
direct compliance costs on those communities, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by the tribal governments, or EPA consults with those
governments. If EPA complies by consulting, Executive Order 13084
requires EPA to provide to the Office of Management and Budget, in a
separately identified section of the preamble to the rule, a
description of the extent of EPA's prior consultation with
representatives of affected tribal governments, a summary of the nature
of their concerns, and a statement supporting the need to issue the
regulation. In addition, Executive Order 13084 requires EPA to develop
an effective process permitting elected officials and other
representatives of Indian tribal governments ``to provide meaningful
and timely input in the development of regulatory policies on matters
that significantly or uniquely affect their communities.''
Today's rule does not significantly or uniquely affect the
communities of Indian tribal governments. There is no impact to tribal
governments as the result of the leachate management action selected.
Accordingly, the requirements of section 3(b) of Executive Order 13084
do not apply to this rule.
G. Executive Order 13045: Protection of Children from Environmental
Health Risks and Safety Risks
``Protection of Children from Environmental Health Risks and Safety
Risks'' (62 FR 19885, April 23, 1997) applies to any rule that: (1) Is
determined to be ``economically significant'' as defined under E.O.
12866, and (2) concerns an environmental health or safety risk that EPA
has reason to believe may have a disproportionate effect on children.
If the regulatory action meets both criteria, the Agency must evaluate
the environmental health or safety effects of the planned rule on
children, and explain why the planned regulation is preferable to other
potentially effective and reasonably feasible alternatives considered
by the Agency.
This rule is not subject to E.O. 13045 because it is not an
economically significant rule as defined by E.O. 12866, and because it
does not involve decisions based on environmental health or safety
risks.
H. National Technology Transfer and Advancement Act of 1995
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Pub. L. 104-113, section 12(d) (15 U.S.C. 272
note) directs EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. The NTTAA directs EPA
to provide Congress, through OMB, explanations when the Agency decides
not to use available and applicable voluntary consensus standards. This
proposed rulemaking does not involved technical standards. Therefore,
EPA is not considering the use of any voluntary consensus standards.
I. Executive Order 12898: Environmental Justice
Under Executive Order 12898, ``Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income
Populations,'' as well as through EPA's April 1995, ``Environmental
Justice Strategy, OSWER Environmental Justice Task Force Action Agenda
Report,'' and National Environmental Justice Advisory Council, EPA has
undertaken to incorporate environmental justice into its policies and
programs. EPA is committed to addressing environmental justice
concerns, and is assuming a leadership role in environmental justice
initiatives to enhance environmental quality for all residents of the
United States. The Agency's goals are to ensure that no segment of the
population, regardless of race, color, national origin, or income,
bears disproportionately high and adverse human health and
environmental effects as a result of EPA's policies, programs, and
activities, and all people live in clean and sustainable communities.
To address this goal, EPA considered the impacts of this final rule on
low-income populations and minority populations and concluded that the
leachate management option selected by the Agency for this final rule
would have no impact on nearby minority and low income populations.
VII. The Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A Major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2). This rule will be effective immediately.
VIII. Rationale for Immediate Effective Date
Because this rule eliminates possible regulation, the regulated
community does not need 6 months to comply, so that the rule may be
made effective immediately pursuant to RCRA section 3010 (b) (1). For
the same reason, it is not necessary to delay the rule's effectiveness
for 30 days pursuant to 5 U.S.C. 553 (b) (1).
List of Subjects in 40 CFR Part 261
Environmental protection, Hazardous materials, Waste treatment and
disposal, Recycling.
Dated: February 5, 1999.
Carol M. Browner,
Administrator.
For the reasons set out in the preamble, title 40, chapter I, of
the Code of Federal Regulations is amended as follows:
PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE
1. The authority citation for Part 261 continues to read as
follows:
[[Page 6814]]
Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, 6924(y), and
6938.
2. Section 261.4 is amended by adding paragraph (b)(15) to read as
follows.
Sec. 261.4 Exclusions
* * * * *
(b) * * *
(15) Leachate or gas condensate collected from landfills where
certain solid wastes have been disposed, provided that:
(i) The solid wastes disposed would meet one or more of the listing
descriptions for Hazardous Waste Codes K169, K170, K171, and K172 if
these wastes had been generated after the effective date of the listing
(February 8, 1999);
(ii) The solid wastes described in paragraph (b)(15)(i) of this
section were disposed prior to the effective date of the listing;
(iii) The leachate or gas condensate do not exhibit any
characteristic of hazardous waste nor are derived from any other listed
hazardous waste;
(iv) Discharge of the leachate or gas condensate, including
leachate or gas condensate transferred from the landfill to a POTW by
truck, rail, or dedicated pipe, is subject to regulation under sections
307(b) or 402 of the Clean Water Act.
(v) After February 13, 2001, leachate or gas condensate will no
longer be exempt if it is stored or managed in a surface impoundment
prior to discharge. There is one exception: if the surface impoundment
is used to temporarily store leachate or gas condensate in response to
an emergency situation (e.g., shutdown of wastewater treatment system),
provided the impoundment has a double liner, and provided the leachate
or gas condensate is removed from the impoundment and continues to be
managed in compliance with the conditions of this paragraph after the
emergency ends.
* * * * *
[FR Doc. 99-3426 Filed 2-10-99; 8:45 am]
BILLING CODE 6560-50-P