[Federal Register Volume 64, Number 194 (Thursday, October 7, 1999)]
[Proposed Rules]
[Pages 54604-54607]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-26070]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 264

[FRL-6452-9]
RIN 2050-AB80


Corrective Action for Solid Waste Management Units at Hazardous 
Waste Management Facilities

AGENCY: Environmental Protection Agency.

ACTION: Partial withdrawal of rulemaking proposal.

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SUMMARY: The Environmental Protection Agency (EPA) is announcing our 
decision to withdraw most provisions of the Notice of Proposed 
Rulemaking (NPRM) for corrective action for solid waste management 
units (SWMUs) at hazardous waste management facilities (also known as 
the 1990 Subpart S proposal) published on July 27, 1990. The only 
exceptions to this decision relate to two jurisdictional issues and 
those elements of the proposed rule that were promulgated as a final 
rule on February 16, 1993. The jurisdictional issues relate to the 
definition of ``facility'' for corrective action purposes and the 
question of who is responsible for corrective action when there is a 
transfer of facility property. We plan to withdraw most of the proposed 
rule because we have determined that such regulations are not necessary 
to carry out the Agency's duties under sections 3004(u) and (v). 
Additionally, attempting to promulgate a comprehensive set of RCRA 
regulations at this time could unnecessarily disrupt the 33 State 
programs already authorized to carry out the Corrective Action Program 
in lieu of EPA, as well as the additional State programs currently 
undergoing review for authorization. This decision will end uncertainty 
related to this rulemaking for State regulators and owners and 
operators of hazardous waste management facilities.


[[Page 54605]]


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-CASW-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 you make an appointment by calling 
(703) 603-9230. You 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 action, contact Barbara Foster, Office of Solid Waste 
(5303W), U.S. Environmental Protection Agency, 401 M Street SW, 
Washington, DC 20460 (703) 308-7057, e-mail address: 
[email protected].

SUPPLEMENTARY INFORMATION: The index and the following supporting 
materials are available on the Internet: (1) Letter from Mark Gordon, 
Chair, ASTSWMO Corrective Action and Permitting Task Force, to Michael 
Shapiro, January 9, 1997; (2) Memorandum from Steven A. Herman and 
Elliott P. Laws to RCRA/CERCLA National Policy Managers entitled 
Coordination between RCRA Corrective Action and Closure and CERCLA Site 
Activities, September 24, 1996; (3) Memorandum from Elliott P. Laws and 
Steven A. Herman to RCRA/CERCLA Senior Policy Managers entitled ``Use 
of the Corrective Action Advance Notice of Proposed Rulemaking as 
Guidance'', January 17, 1997; and (4) Letter from Mark Gordon, Chair, 
ASTSWMO Corrective Action and Permitting Task Force, to EPA RCRA Docket 
#F-96-CA2P-FFFFF, July 30, 1997. Follow these instructions to access 
the information electronically:

WWW: http://www.epa.gov/correctiveaction
FTP: ftp.epa.gov
Login: anonymous
Password: [email protected]
Files are located in /pub/epaoswer

I. Authority

    The provisions of the 1990 proposed rule were proposed under the 
authority of sections 1003, 1006, 2002(a), 3004(a), 3004(u), 3004(v), 
3005(c) and 3007 of the Solid Waste Disposal Act, as amended by the 
Resource Conservation and Recovery Act, as amended by the Hazardous and 
Solid Waste Amendments of 1984, 42 U.S.C. 6902, 6905, 6912(a), 6924(a), 
(u) and (v), 6925(c), and 6927.

II. Background

    In the 1984 Hazardous and Solid Waste Amendments (HSWA) to the 
Resource Conservation and Recovery Act (RCRA), Congress expanded EPA's 
authority to address cleanup at permitted RCRA hazardous waste 
management facilities by providing new corrective action authority 
under RCRA sections 3004(u) and (v). Section 3004(u) requires that RCRA 
regulations and permits require corrective action as necessary to 
protect human health and the environment at facilities seeking a 
permit. Section 3004(v) extended the requirement to releases beyond the 
facility boundary. EPA codified this broad authority in RCRA section 
3004(u) essentially verbatim at 40 CFR 264.90(a)(2), 264.101, 
270.60(b), and 270.60(c) in a final rule published on July 15, 1985 (50 
FR 28702). EPA later did the same for section 3004(v) on December 1, 
1987 (52 FR 45785).1
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    \1\ In the December 1, 1987 final rule, the Agency also 
promulgated corrective action permit application requirements and 
modified corrective action requirements for underground injection 
wells.
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    On July 27, 1990 (55 FR 30798), EPA published a NPRM detailing 
substantive and procedural requirements under 40 CFR Part 264 Subpart S 
to implement the corrective action program. The Agency promulgated a 
few elements of the 1990 proposal on February 16, 1993 (58 FR 8658). 
These elements included final provisions for Corrective Action 
Management Units (CAMUs) and Temporary Units, and a definition of 
``facility'' for corrective action. The remainder of the 1990 proposal 
has not been made final. However, EPA and authorized States began using 
the proposed rule and preamble as the primary guidance for the 
corrective action program soon after it was published.
    RCRA section 3006(g) called for the corrective action requirements 
imposed by sections 3004(u) and 3004(v) to take effect in all States at 
the same time they would take effect federally, regardless of the 
State's authorization status. The statute further directed the Agency 
to carry out those requirements until the State is granted 
authorization to do so. To date, EPA has authorized 33 States to 
implement the requirements of sections 3004(u) and (v) in lieu of EPA. 
To determine whether the State program was ``equivalent'' to the 
Federal program, EPA referred to the Federal regulations pertaining to 
corrective action, the guidance provided by the 1990 Subpart S 
proposal, and other Agency guidance.
    On May 1, 1996 (61 FR 19432), the Agency published an ANPRM. In the 
1996 ANPRM, EPA introduced its new ``Subpart S Initiative,'' which was 
designed to identify and implement improvements to the protectiveness, 
responsiveness, speed, and efficiency of the corrective action program. 
The Agency also discussed corrective action implementation and the 
evolution of the program since 1990, and set forth its goals and 
strategy for the future of the corrective action program. The 1996 
ANPRM provided guidance on areas of the program not addressed by the 
1990 proposal, and replaced the 1990 proposal as the primary guidance 
for much of the corrective action program (see memorandum from Elliott 
P. Laws and Steven A. Herman to RCRA/CERCLA Senior Policy Managers 
entitled ``Use of the Corrective Action Advance Notice of Proposed 
Rulemaking as Guidance'', January 17, 1997, located in the docket for 
this action). Finally, in the 1996 ANPRM, the Agency requested comment 
on the future direction of the corrective action program, including 
resolution of the 1990 proposal.

III. Decision To Withdraw the Majority of the Notice of Proposed 
Rulemaking

    As part of the Subpart S Initiative, the Agency assessed the issue 
of whether to promulgate a final Subpart S rule (see 61 FR 19455-6 
asking for comment on the appropriate ``balance between guidance/policy 
documents and regulations'' for implementing RCRA corrective action 
authorities). As was discussed in the ANPRM (see 61 FR 19432 at 19440), 
the Agency has long recognized that no one approach to corrective 
action is likely to be appropriate at all sites. The diversity of 
facilities subject to RCRA corrective action, the degree of 
investigation and subsequent corrective action necessary to protect 
human health and the environment varies greatly across facilities. 
Because of this, some facilities require no cleanup at all or only 
minor corrective action, while others are as complex and highly 
contaminated as sites on the CERCLA National Priorities List (Superfund 
sites). Thus, in drafting the 1990 proposal, the Agency sought to 
create a rule that, although it contained extensive procedures for 
making corrective action decisions, would

[[Page 54606]]

accommodate the need to vary those procedures based on site-specific 
circumstances. It has been the Agency's experience, however, that the 
Subpart S proposal as guidance has, at times, been implemented 
prescriptively and the intended flexibility underused. Commenters on 
the ANPR echoed the Agency's assessment on this point.
    Therefore, the Agency concluded, if we were to proceed with a final 
rule instituting a comprehensive regulatory scheme for RCRA corrective 
action, it would be appropriate to rethink the general approach to 
writing a set of comprehensive regulations. In particular, since the 
instances of program inflexibility could be attributed, at least in 
part, to rule language that heavily emphasized standard processes for 
making corrective action decisions, the Agency reasoned that it would 
be appropriate to recraft the proposed RCRA regulations to take the 
focus off process and place it on results.2
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    \2\ For example, among the options considered by the Agency in 
the 1996 ANPR was a ``performance standards'' approach (see 61 FR 
19432 at 19456). Under this approach, the Agency would craft a rule 
establishing performance standards or goals with very little detail 
concerning procedures.
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    Likewise, many commenters urged the Agency to reject the approach 
of the 1990 proposal in favor of a more ``holistic'' and flexible 
approach. However, commenters also urged the Agency not to go forward 
with any final rule without first reproposing the entire program, to 
provide opportunity for public comment on the overall approach. The 
Agency agrees with commenters that, if we were to go forward with 
regulations significantly different from the 1990 proposal, fairness 
would dictate an additional round of public comment.
    Therefore, before proceeding anew down the resource-intensive path 
of promulgating a comprehensive rule, we decided it was appropriate to 
reevaluate the pros and cons of proceeding with a comprehensive rule, 
especially since the program has been conducted without one for 14 
years, and the landscape of the RCRA corrective action program has 
changed significantly over that time. Having engaged in this analysis, 
we have decided not to promulgate a final rule for the corrective 
action program at this time. Instead we will continue to rely on 
existing regulations (including those provisions of the Subpart S 
proposal already promulgated), supplemented by current and planned 
guidance and enhanced training, to implement the corrective action 
program. We chose this approach for several reasons.
    First, one of our primary objectives for promulgating a 
comprehensive rule in 1990 was to ``establish standards to which States 
seeking authorization for RCRA section 3004(u) corrective action must 
demonstrate equivalence'' (55 FR 30800). While it is true that detailed 
regulations can make authorization determinations somewhat easier, 
circumstances have changed in the years since publication of the 
proposal. We now believe that it is not necessary to promulgate 
additional regulations to review State programs. To date, EPA has 
authorized 33 State programs to implement the corrective action program 
in lieu of the Federal government. The authorization process consists 
of extensive up-front review of State programs, using existing 
regulations supplemented by existing guidance (including, most 
recently, the ANPRM and portions of the 1990 proposal that were not 
superceded) outlining what types of corrective action are generally 
``necessary to protect human health and the environment.'' There have 
been no legal challenges to these determinations, and EPA has not 
instituted withdrawal proceedings for any State corrective action 
program it has authorized. Thus, EPA has found in practice that the 
current regulations, supplemented by current and planned guidance, 
provide us an adequate foundation to authorize State programs, and that 
additional regulations are not necessary at this time.
    Second, we are concerned additional regulations might disrupt State 
programs that are authorized to date. We recognize that new 
regulations, whether detailed substantive and procedural or performance 
standards, would, at least, raise the possibility of reanalysis of 
these authorized State programs. This would create unnecessary 
uncertainty in these programs that would very likely slow their 
progress. Similar concerns have been expressed by the States (see 
letter from Mark Gordon, Chair, ASTSWMO Corrective Action and 
Permitting Task Force to RCRA Docket #F-96-CA2P-FFFFF, July 30, 1996, 
located in the docket for this Federal Register notice). Given the 
limited added benefit of additional regulations, we do not believe the 
potential disruption to State programs is warranted.
    Third, in addition to providing a basis for evaluating State 
programs, another objective in promulgating a comprehensive corrective 
action rule in 1990 was to establish national consistency in the 
corrective action program. We have become increasingly aware that 
corrective action sites differ in significant respects and that 
consistent application of rules and standards at all sites is not 
always appropriate. For areas of the program where consistency from 
site-to-site is generally important (e.g., cleanup levels), we have 
been successful in using guidance and training to promote appropriate 
consistency. Thus, rather than issuing a rule to achieve consistency at 
all sites, we believe it would be more appropriate to develop guidance 
and training to promote consistency, where appropriate. Such guidance 
and training would apply not only within the corrective action program, 
but also with other cleanup programs as well (see memorandum from 
Steven A. Herman and Elliott P. Laws to RCRA/CERCLA National Policy 
Managers entitled Coordination between RCRA Corrective Action and 
Closure and CERCLA Site Activities, September 24, 1996).
    Fourth and finally, promulgation of a corrective action rule is not 
necessary to ensure that affected parties have a chance to influence 
our corrective action decisions. The comments we received on the 1990 
proposal and the 1996 ANPRM have informed this decision, as well as the 
content of Agency guidance and other initiatives undertaken (such as 
the training initiative discussed in footnote 3). Perhaps more 
important, however, is the fact that we provide RCRA owners and 
operators and the public with ample procedures to raise any objections 
(e.g., through permit appeals) to each decision the Agency makes with 
respect to corrective action--whether it be the number of reports 
required of the facility, the area and materials that are subject to 
corrective action requirements, or the levels to which the facility 
must be cleaned.
    For the reasons stated above, we have decided to withdraw all of 
the proposed rulemaking except for those provisions that already have 
been made final and those provisions relating to two jurisdictional 
issues--i.e., the definition of ``facility'' for corrective action 
purposes, and provisions concerning corrective action responsibilities 
upon transfer of facility property. More specifically we preserve the 
discussions concerning these issues beginning at 55 FR 30808 (as 
supplemented by additional discussion and request for comment in the 
1996 ANPRM beginning at 61 FR 19442 and 19460, and any other relevant 
discussions in either notice) and 55 FR 30845 and 30882 (as 
supplemented by additional discussion and request for comment in the 
1996 ANPRM at 61 FR 19463, and any other relevant discussions in either 
notice). We have singled out these two

[[Page 54607]]

jurisdictional issues because, unlike others discussed in the 1990 
proposal (e.g., definitions of release,3 hazardous waste or 
hazardous constituents, and solid waste management unit), these are 
issues about which the Agency expressed concern regarding the status 
quo, or raised questions that have not been definitively addressed by 
the Agency. (See e.g., 61 FR 19460--``EPA's definition of facility for 
purposes of corrective action has been problematic in some situations'' 
and 61 FR 19463--``The 1990 proposal identified two options: requiring 
the permittee to complete corrective action even on parcels sold to 
others, and requiring the purchaser of the parcel to complete the 
corrective action.'') We continue to believe that these issues should 
be addressed.
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    \3\ We believe it is important to emphasize in this action that 
we continue to adhere to the 1996 ANPRM interpretations of the term 
of ``release.'' In the 1996 ANPRM, we reiterated our longstanding 
position on the definition of ``release'' for corrective action (see 
61 FR 19442). There, we cited language from the preamble of the 1985 
HSWA codification rule (50 FR 28702, July 15, 1985) stating that the 
definition of ``release'' for corrective action should be at least 
as broad as the definition of release under CERCLA--thus, EPA 
interpreted the term ``release'' to mean ``any spilling, leaking, 
pumping, pouring, emitting, emptying, discharging, injecting, 
escaping, leaching, dumping, or disposing into the environment.'' In 
the ANPR, we also cited language from the preamble of the 1990 
proposal, stating that the definition of release also includes 
abandoned or discarded barrels, containers, and other closed 
receptacles containing hazardous wastes or constituents and that it 
could include releases that are permitted under other authorities, 
such as the Clean Water Act.
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    Over the years, EPA has published a number of major corrective 
action guidance documents and in 1990 proposed detailed corrective 
action regulations (see 55 FR 30798, July 27, 1990.) As discussed in 
the 1996 ANPRM, many of these documents, including the 1990 proposal, 
continue to provide useful information and guidance for corrective 
action implementation. However, the 1996 ANPRM updates our position on 
many of the issues discussed in the 1990 proposal, and should be 
considered the primary corrective action implementation guidance. In 
addition, we intend to provide any necessary additional guidance to 
assist program implementers. We believe that by focusing our resources 
on developing guidance and training,4 rather than a final 
rule, we can provide sufficient guidelines for the areas of the program 
not governed by procedural regulations, but in a more flexible format.
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    \4\ Some commenters suggested that the inflexibility of some 
corrective action program implementers could be attributed, at least 
in part, to the failure of implementers to use available 
flexibility, rather than to limitations in the regulations and 
guidance issued by the Agency. To address these concerns, the Agency 
has launched an extensive training initiative, directed at EPA 
Regions and the States, which should address this concern. The 
training is designed to direct implementers to focus the corrective 
action program on obtaining key results, rather than adherence to an 
unnecessarily prescriptive process. The Agency believes that, by 
better focusing on results, implementers will be better able to 
prioritize investigation and remediation resources, and to utilize 
innovative methods to achieve protective results effectively, 
efficiently, and quickly.
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    It should be noted that nothing in this action modifies or affects 
those regulations promulgated to date to govern the corrective action 
program. It also should be noted that the Agency may, at some time in 
the future, decide that additional regulations would improve the 
corrective action program. Should the Agency decide to promulgate 
additional regulations on issues other than the jurisdictional issues 
described in this action, however, we would propose them in the Federal 
Register for public comment.

    Dated: September 30, 1999.
Carol M. Browner,
Administrator.
[FR Doc. 99-26070 Filed 10-6-99; 8:45 am]
BILLING CODE 6560-50-P