[Federal Register Volume 65, Number 163 (Tuesday, August 22, 2000)]
[Proposed Rules]
[Pages 51080-51135]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-20534]



[[Page 51079]]

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Part III





Environmental Protection Agency





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40 CFR Parts 260, 264, and 271



Amendments to the Corrective Action Management Unit Rule; Proposed Rule

  Federal Register / Vol. 65, No. 163 / Tuesday, August 22, 2000 / 
Proposed Rules  

[[Page 51080]]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 260, 264, and 271

[FRL-6850-3]
RIN 2050-AE77


Amendments to the Corrective Action Management Unit Rule

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

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SUMMARY: In today's action, the Agency is proposing amendments to the 
regulations governing Corrective Action Management Units (CAMUs) 
concerning: the types of wastes that may be managed in a Corrective 
Action Management Unit (CAMU), the design standards that apply to 
CAMUs, the treatment requirements for wastes placed in CAMUs, 
information submission requirements for CAMU applications, responses to 
releases from CAMUs, and public participation requirements for CAMU 
decisions. In addition, today's proposed amendments would 
``grandfather'' certain categories of CAMUs and create new requirements 
for CAMUs used only for treatment or storage (i.e., those in which 
wastes will not remain after closure). Today's action also requests 
comment on a potential change to the staging pile regulations. Finally, 
today's action proposes an approach to state authorization that would, 
as part of this rulemaking, grant ``interim authorization'' for today's 
amendments to most states currently authorized for the CAMU rule and 
would expedite the authorization process for states authorized for 
corrective action but not the CAMU rule. Today's proposed amendments 
are intended to make clearer the Agency's general minimum expectations 
for CAMUs and to make the CAMU process more consistent and predictable, 
as well as more explicit for the public.

DATES: EPA will accept public comment on this proposed rule until 
October 23, 2000.

ADDRESSES: Those persons wishing to submit public comments must send an 
original and two copies of their comments referencing EPA docket number 
F-2000-ACAP-FFFFF to: RCRA Docket Information Center (5305W), U.S. 
Environmental Protection Agency Headquarters (EPA)(5305G), Ariel Rios 
Building, 1200 Pennsylvania Avenue NW., Washington, DC, 20460. Hand 
deliveries of comments, including courier, postal and non-postal 
express deliveries, should be made to the Arlington, VA address below.
    Comments may also be submitted electronically through the Internet 
to: [email protected]. Comments in electronic format should also 
identify the docket number F-2000-ACAP-FFFFF. All electronic comments 
must be submitted as an ASCII file avoiding the use of special 
characters and any form of encryption. Commenters should not submit 
electronically any confidential business information (CBI). An original 
and two copies of CBI must be submitted under separate cover to: RCRA 
CBI Document Control Officer, Office of Solid Waste (5305W), U.S. EPA, 
Ariel Rios Building, 1200 Pennsylvania Avenue NW., Washington, DC 
20460.
    Public comments and supporting materials are available for viewing 
in the RCRA Docket Information Center (RIC), located at Crystal Gateway 
I Building, First Floor, 1235 Jefferson Davis Highway, Arlington, VA. 
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 per page. The Proposed Rule is 
also available electronically. See the Supplemental Information section 
below for information on electronic access.

FOR FURTHER INFORMATION CONTACT: For general information, contact the 
RCRA Hotline at (800) 424-9346 or TDD (hearing impaired) (800) 553-
7672. In the Washington, DC metropolitan area, call (703) 412-9810 or 
TDD (703) 412-3323. For more detailed information on specific aspects 
of today's action, contact Bill Schoenborn, U.S. Environmental 
Protection Agency (5303W), Ariel Rios Building, 1200 Pennsylvania Ave., 
NW., Washington, DC 20460, at (703) 308-8483, or e-mail: 
[email protected].

SUPPLEMENTARY INFORMATION:

Customer Service

    In developing the Proposed Rule, we tried to address the concerns 
of all our stakeholders. Your comments will help us improve this 
regulatory action. We invite you to provide different views on options 
we propose, new approaches we have not considered, new data, 
information on how this regulatory action may affect you, or other 
relevant information. Your comments will be most effective if you 
follow the suggestions below:
     Explain your views as clearly as possible and why you feel 
that way.
     Provide solid technical and cost data to support your 
views.
     If you estimate potential costs, explain how you arrived 
at the estimate.
     Tell us which parts you support, as well as those you 
disagree with.
     Provide specific examples to illustrate your concerns.
     Offer specific alternatives.
     Refer your comments to specific sections of the notice.
     Make sure to submit your comments by the deadline in this 
notice.
     Be sure to include the proposal name, date, and docket 
number with your comments.
     Copies of today's proposal, titled Amendments to the 
Corrective Action Management Unit Rule, are available for inspection 
and copying at the EPA Headquarters library, at the RCRA Docket (RIC) 
office identified in ADDRESSES above, at all EPA Regional Office 
libraries, and in electronic format at the following EPA Web site: 
http://www.epa.gov/osw/special.htm. Printed copies of the proposal and 
related documents can also be obtained by calling the RCRA/Superfund 
Hotline at (800) 424-9346 or (703) 412-9810.
    The index and some of the supporting materials are available on the 
Internet. Follow these instructions to access the information 
electronically:

WWW: http://www.epa.gov/epaoswer/....
FTP: ftp.epa.gov
Login: anonymous
Password: Your internet address
Files are located in /pub/epaoswer.

    The official record for this action will be kept in paper form. 
Accordingly, EPA will transfer all comments received electronically 
into paper form and place them in the official record, which will also 
include all comments submitted directly in writing. The official record 
is the paper record maintained at the address in ADDRESSES at the 
beginning of this document.
    EPA responses to comments, whether the comments are written or 
electronic, will be published in a notice in the Federal Register or in 
a response to comments document placed in the official record for this 
proposed rulemaking. EPA will not immediately reply to commenters 
electronically other than to seek clarification of electronic comments 
that may be garbled in transmission or during conversion to paper form.

Outline

    The contents of today's document are listed in the following 
outline:

I. Authority

[[Page 51081]]

II. Background
    A. Purpose and Context for Today's Proposed Rule
    1. Corrective Action Management Units (CAMUs)
    B. Why is EPA Proposing Today's Amendments?
    C. Approach to Publishing Today's Proposed Amendments
III. Section by Section Analysis
    A. Grandfathering CAMUs (Sec. 264.550)
    B. Eligibility of Wastes for Management in CAMUs 
(Sec. 264.552(a))
    1. As-Generated vs. ``Cleanup'' Wastes
    2. Wastes Managed During Closure
    3. Wastes in Intact or Substantially Intact Containers, Tanks, 
or Other Non-Land-Based Units. (Sec. 264.552)
    4. Limited Use of ``As-Generated'' Waste in CAMUs
    C. Discretionary Kickout (Sec. 264.552(a)(2))
    D. Information Submission (Sec. 264.552(d))
    1. Availability of Information
    2. Ability to Seek Additional Information
    3. Commercial Chemical Products
    4. Alternate Approach to Proposed Sec. 264.552(d)(3)
    5. Interpretation of Existing Sec. 264.552(d)
    E. Liquids in CAMUs (Sec. 264.552(a)(3))
    1. Sec. 264.314(f) Demonstration
    F. Amendments to Design Standards For CAMUs
    1. Liner Standard (Sec. 264.552(e)(3))
    a. Alternate Liner Designs (Sec. 264.552(e)(3)(ii))
    2. Cap Standard (Sec. 264.552(e)(6)(iv))
    a. Alternate Cap Design (Sec. 264.552(e)(6)(iv)(B))
    3. Releases to Groundwater (Sec. 264.552(e)(5))
    G. Proposed Approach to Treatment
    1. Identification of ``Principal Hazardous Constituents'' (PHCs) 
(Sec. 264.552(e)(4))
    a. Constituents Subject to PHC Analysis (Sec. 264.552(e)(4)(ii))
    b. Proposed PHC Standard (Sec. 264.552(e)(4)(i))
    c. Approach to Identifying PHCs
    d. Identifying Carcinogenic PHCs Posing a Risk via Inhalation or 
Ingestion
    e. Identifying Non-Carcinogenic PHCs Posing a Risk via 
Inhalation or Ingestion
    f. Waste to Groundwater Pathway
    g. Designation of Other PHCs
    2. Treatment Standards (Sec. 264.552(e)(4)(iii))
    a. National Minimum Treatment Standards
    b. Debris
    c. CAMU-Eligible Wastes Exhibiting the Characteristics of 
Ignitability, Corrosivity, or Reactivity
    d. How is 90% Reduction Assessed?
    e. Use of the TCLP to Assess Treatment
    3. Adjustment Factors to the Treatment Standard 
(Sec. 264.552(e)(4)(v))
    a. Adjustment Factor A. Technical Impracticability 
(Sec. 264.552(e)(4)(v)(A))
    b. Adjustment Factor B. Consistency with Site Cleanup Levels 
(Sec. 264.552(e)(4)(v)(B))
    c. Adjustment Factor C. Community Views 
(Sec. 264.552(e)(4)(v)(C))
    d. Adjustment Factor D. Short-Term Risks 
(Sec. 264.552(e)(4)(v)(D))
    e. Adjustment Factor E. Engineering Design and Controls 
(Sec. 264.552(e)(4)(v)(E))
    (1). Assessment of Long-Term Protection Offered by the Unit
    f. Adjustment Factor E(1). Treatment That is Substantially Met 
(Sec. 264.552(e)(4)(v)(E)(1))
    (1). Very Low Mobility
    (2). Substantially Met
    g. Adjustment Factor E(2). Use of Cost-effective Treatment 
(Sec. 264.552(e)(4)(v)(E)(2))
    (1). What is ``Cost-Effective Treatment?
    (2). What Does a Review of Appropriate Treatment Technologies 
Constitute?
    (3). What Does it Mean That Cost-Effective Treatment is ``Not 
Reasonably Available?''
    (4). Adjustment Factor E(2)(i). Subtitle C Standards 
(Sec. 264.552(e)(4)(v)(E)(2)(i))
    (5). Adjustment Factor E(2)(ii). Cost Effective Treatment 
Reasonably Available (Sec. 264.552(e)(4)(v)(E)(2)(ii))
    (6). Adjustment Factor E(2)(iii). Cost-Effective Treatment is 
not Reasonably Available (Sec. 264.552(e)(4)(v)(E)(2)(iii))
    (7). Liner Standards for Adjustment E(2)(iii)
    4. Request for Comment on Treatment Standard Approach
    5. Treatment Within a Reasonable Time (Sec. 264.552(e)(4)(vi))
    6. Assessing Compliance with the Treatment Requirement 
(Sec. 264.552(e)(4)(vii))
    H. Constituents At Or Below Remedial Levels (Sec. 264.552(g))
    I. Treatment and/or Storage Only CAMUs (Sec. 264.552(f))
    1. Current CAMU Regulations for Treatment and/or Storage Only 
CAMUs
    2. Staging Pile Standards
    3. Proposed Standards for Treatment and/or Storage CAMUs
    J. Grandfathering CAMUs (Secs. 264.550 and 264.551)
    1. Documentation of ``Substantially in the Approval Process''
    K. Public Participation (Sec. 264.552(h))
    L. Additional Requirements (Sec. 264.552(i))
IV. Relationship Between Today's Proposed Action and Other 
Regulatory Programs
    A. Impact of Today's Amendments
V. How Would Today's Proposed Regulatory Changes be Administered and 
Enforced in the States?
    A. Applicability of Federal Rules in Authorized States
    B. Authorization of States for Today's Proposal
    C. Interim Authorization-By-Rule for States Currently Authorized 
for the CAMU Rule
    1. Description of the Basis for Interim Authorization-By-Rule
    2. Eligibility of States for the Proposed Interim Authorization-
By-Rule Process
    3. Interim Authorization Process Time Line
    4. Expiration of Interim Authorization
    5. Conditional Interim Authorization
    D. Authorization of States Currently Authorized for Corrective 
Action, but not the Existing CAMU Rule
    1. Content of a State's Application for Final Authorization
    2. Authorization Approach for States That Adopt the CAMU 
Regulations by Reference or Verbatim
VI. Effective Date
VII. Conforming Changes (40 CFR Subpart S, Secs. 260.10, 
264.551(a)(1)(i), 264.552(a)(1)(i))
VIII. Analytical and Regulatory Requirements
    A. Planning and Regulatory Review Executive Order 12866
    1. Economic Analysis Background and Purpose
    a. Framework for the Analysis.
    b. Baseline Case Description
    c. Post-Regulatory Case Description
    d. Incremental Impacts
    2. CAMU Administrative Approval Costs Assessment
    3. Assessment of the Incremental Impacts Related to the 
Treatment and Unit Design Provisions, and to the Treatment and/or 
Storage Only CAMU Provisions
    a. Treatment and Unit Design Standards Implemented in the 
Baseline
    b. Treatment and Unit Design Provisions in the Post-Regulatory 
Case
    c. Incremental Impacts Associated with Proposed Treatment and 
Unit Design Provisions
    d. Incremental Impacts Associated with the Treatment and/or 
Storage Only CAMU Provisions
    4. Assessment of the Incremental Change in the Number of CAMUs 
Approved
    a. Grandfathering Window
    b. Post Promulgation Equilibrium
    5. Assessment of the Total Impacts for the Proposed Amendments 
to the CAMU Rule
    B. Regulatory Flexibility Act (RFA) as Amended by the Small 
Business Regulatory Enforcement Fairness Act (SBREFA)
    1. Methodology to Assess Small Entity Impacts
    a. Framework for the Analysis
    b. Methodological Approach for SBREFA Analysis
    c. Examination of Existing CAMUs for Small Entity Status
    d. Significant Impact Screen of Facilities for Which Size Was 
Undetermined
    2. The Impacts Estimated on Small Entities
    C. Paperwork Reduction Act
    D. Unfunded Mandates Reform Act
    E. National Technology Transfer and Advancement Act
    F. Consultation and Coordination with Indian Tribal Governments 
(Executive Order 13084)
    G. Protection of Children from Environmental Health Risks and 
Safety Risks (Executive Order 13045)
    H. Federalism (Executive Order 13132)
    I. Environmental Justice Strategy (Executive Order 12898)

I. Authority

    These regulations are proposed under the authority of sections 
1006, 2002(a), 3004, 3005(c), 3007 and 3008(h) 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.

[[Page 51082]]

II. Background

A. Purpose and Context for Today's Proposed Rule

    Since 1980, the Environmental Protection Agency (EPA) has developed 
a comprehensive regulatory framework under Subtitle C of RCRA that 
governs the identification, generation, transportation, treatment, 
storage, and disposal of hazardous wastes. These regulations center 
around two broad objectives: to prevent releases of hazardous wastes 
and constituents through a comprehensive set of management requirements 
(commonly referred to as hazardous waste ``cradle-to-grave'' 
requirements); and to minimize the generation of hazardous wastes and 
to promote their legitimate reuse and recycling. The hazardous waste 
regulations constitute minimum national standards for management of 
hazardous wastes and are generally oriented towards ``prevention'' of 
releases, rather than ``response'' to releases. In general, they apply 
consistently to all hazardous wastes, regardless of where or how 
generated, and to all hazardous waste management facilities, regardless 
of how much government oversight any given facility receives. In order 
to ensure an adequate level of protection nationally, the RCRA 
regulations have been conservatively designed to ensure proper 
management of hazardous wastes over a range of waste types, 
environmental conditions, management scenarios, and operational 
contingencies.
    During cleanup of contaminated sites,\1\ the regulations for the 
management of hazardous wastes apply to cleanup wastes and contaminated 
media that meet the definition of hazardous waste under RCRA. EPA has 
long recognized that the incentives and objectives for the hazardous 
waste prevention and cleanup programs differ fundamentally. For 
example, the stringent treatment requirements established by the RCRA 
land disposal restrictions (LDRs) have encouraged many generators to 
reduce the amount of hazardous waste they generate. On the other hand, 
when the LDR requirements are applied in the context of site cleanup, 
they can act as a disincentive to excavate wastes for cleanup. 
Similarly, the hazardous waste unit standards and permitting 
requirements can also act as disincentives to cleanup. Finally, there 
may be significant physical and chemical differences between ``as-
generated'' wastes and cleanup wastes that affect their ability to 
undergo treatment.
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    \1\ The term ``site'' is used in this proposal as a general term 
connoting properties where cleanups are taking place.
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    It has been EPA's experience, therefore, that application of the 
regulations developed for as-generated industrial hazardous wastes, in 
particular LDRs and minimum technical requirements (MTRs), to cleanup 
wastes often presents remediation project managers with only two 
choices: to pursue the legal option of capping or treating cleanup 
wastes in place, thereby avoiding the LDR and certain other management 
requirements; or, excavating the cleanup waste and treating it to the 
full extent required by the LDR requirements and disposing of the waste 
in compliance with the as-generated hazardous waste disposal unit 
requirements. EPA has found that this situation has created an 
incentive at certain cleanup sites to select less permanent remedies 
that involve leaving the cleanup wastes in place. (For a fuller 
discussion of this issue, see the preamble discussions accompanying the 
Land Disposal Restrictions Phase IV rule, 63 FR 28556, 28603-28604 (May 
26, 1998), Clarification of the LDR Treatment Variance Standard (the 
``environmentally inappropriate'' variance, Sec. 268.44(h)(2)(ii), 62 
FR 64504, 64505-64506 (December 5, 1997)), and the HWIR-Media rule, 63 
FR 65874, 65876-65878 (November 30, 1998), and sources cited therein).
    EPA has developed extensive policies and regulations to address the 
special circumstances of hazardous cleanup wastes. These regulations 
and policies are designed to preserve RCRA's goal of protectiveness, 
while providing oversight agencies the flexibility and tools necessary 
to develop effective site-specific remedies, including remedial 
alternatives that are intermediate between the two choices described 
above (i.e., between leaving cleanup wastes in place or managing such 
wastes as if they were as-generated industrial wastes). These include, 
among other policies and regulations, the 1993 ``Corrective Action 
Management Unit'' (CAMU) regulation, which is the subject of today's 
proposed amendments; the ``area of contamination'' policy; the 
``contained-in'' policy; the ``phase IV'' treatment standards for 
contaminated soils; and the regulations for ``temporary units.'' 
Descriptions of these and other policies and regulations, including 
references, are included in the October, 1998 Memorandum, ``Management 
of Remediation Waste Under RCRA,'' EPA530-F-98-026, which is in the 
docket for today's proposed rule. In addition, since this memorandum 
was issued, EPA promulgated the HWIR-media rule, which addresses 
permitting and other issues related to management of hazardous 
remediation waste that results from cleanup actions (63 FR 65874 
(November 30, 1998)), and the post-closure rule, which encourages the 
integration of RCRA closure and cleanup actions (63 FR 56710 (October 
22, 1998)). The HWIR-media rule is described later in this section.
    Today's proposed amendments to the CAMU rule would leave these 
policies and regulations untouched, except, of course, the provisions 
of the CAMU rule being amended.
1. Corrective Action Management Units (CAMUs)
    On February 16, 1993, EPA published final regulations for CAMUs (58 
FR 8658). The CAMU rule provides considerable flexibility to EPA and 
implementing States to specify design, operating, and closure/post 
closure requirements for on-site units used for storage, treatment and 
disposal of hazardous wastes and media containing hazardous waste that 
are managed during cleanup. The CAMU rule sets forth decision criteria 
for the designation of CAMUs that are protective of human health and 
the environment. The CAMU rule defined wastes (``remediation wastes'') 
that would be eligible for management in a CAMU. Importantly, under the 
CAMU rule, consolidation or placement of remediation waste into an 
approved CAMU is not considered ``land disposal'' and therefore does 
not trigger RCRA land disposal restriction (LDR) requirements 
(Sec. 264.552(a)(1)). Thus, appropriate treatment requirements can be 
specified by the overseeing Agency on a site- and waste-specific basis. 
In addition, the CAMU rule provides that consolidation or placement of 
cleanup wastes into a CAMU does not trigger RCRA section 3004(o) 
minimum technology requirements (MTRs) (Sec. 264.552(a)(2)) for 
hazardous waste unit design. As a result, the CAMU rules provide 
significant regulatory relief and flexibility for cleanup.
    The CAMU rule has received broad support from many affected 
stakeholders. At the time of promulgation of the CAMU rule, however, 
the rule was challenged. On May 14, 1993, a petition for review was 
filed with the U.S. Court of Appeals for the District of Columbia 
Circuit. Environmental Defense Fund v. EPA, No. 93-1316 (D.C. Cir.). 
The Petitioners were concerned, among other things, with the provisions 
stating that LDRs, MTRs and other Part 264 and 265 RCRA

[[Page 51083]]

unit requirements do not apply to CAMUs.
    Prior to this challenge to the CAMU rule, EPA created the Hazardous 
Waste Identification Rule (HWIR) Federal Advisory Committee (discussed 
in the proposed Requirements for Management of Hazardous Contaminated 
Media (HWIR-Media) preamble, 61 FR 18780 (April 29, 1996)). As part of 
the dialogue that prefaced the creation of this committee, which 
included representatives from environmental groups, regulated industry, 
the waste management industry, states and EPA, EPA agreed to re-examine 
the CAMU regulations in the context of developing regulations (the 
HWIR-Media regulations) to address the management of hazardous 
remediation waste during cleanups. The litigation to the CAMU rule was 
stayed pending the outcome of this rulemaking process. In April 1996, 
EPA proposed the HWIR-media rule, which was a comprehensive proposal 
addressing the management of hazardous remediation waste. In this 
notice, EPA proposed to withdraw the 1993 CAMU rule with the reasoning 
that the proposed rule would offer much of the same flexibility as that 
available under the CAMU rule, but with a more comprehensive and 
detailed approach to addressing remediation waste issues.
    On November 30, 1998, EPA published the final HWIR-Media rule (63 
FR 65874). Because, among other things, of fundamental disagreement 
with the proposal expressed by various commenters, and concerns 
expressed by EPA after considering stakeholder comments, EPA decided to 
promulgate only selected elements of the HWIR-media proposal, rather 
than a more comprehensive set of standards. In addition, because the 
specific provisions finalized in the HWIR-media rule do not address the 
basic concerns that the 1993 CAMU rule addresses, EPA chose to leave 
the CAMU regulations in place, rather than to withdraw the regulations, 
as had been proposed.
    Following publication of the final HWIR-media rule and EPA's 
decision not to withdraw the 1993 CAMU rule, EPA and the Petitioners to 
the CAMU rule entered into discussions in an effort to settle the CAMU 
litigation. During these discussions, EPA obtained feedback from the 
regulated community and the states to help inform the settlement 
process. On February 11, 2000, EPA and the Petitioners reached 
settlement on the CAMU litigation (the settlement was filed with the 
U.S. Court of Appeals for the District of Columbia Circuit, and is 
included in the docket for today's rulemaking). The settlement calls 
for EPA to propose amendments to the existing CAMU rule by August 7, 
2000, and to issue a final rule by October 8, 2001. While not part of 
the settlement, EPA expressed its intentions at the time of settlement 
to include in the proposal provisions for expediting state 
authorization of these amendments (see February 11, 2000 ``Note to 
Correspondents,'' in the docket for today's rule). Potential amendments 
to the 1993 rule outlined in the settlement include treatment and 
design standards specific to CAMUs and the wastes therein and 
modifications to the definition of wastes that are eligible for 
management in CAMUs.
    Following the approaches outlined in the settlement,\2\ EPA is 
proposing in today's notice to amend the 1993 CAMU rule. This notice 
seeks comment only on the amendments proposed today; EPA is not 
reopening for comment any aspects of the 1993 rule not addressed by 
today's proposed amendments (e.g., the provisions of the rule stating 
that wastes placed in CAMUs are not subject to LDRs and that CAMUs are 
not units subject to MTRs). EPA will carefully consider any comments 
that are submitted in response to today's proposal. Procedures for 
submitting comments to EPA are described above in the section titled 
ADDRESSES.
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    \2\ Note that this settlement agreement does not require that 
the Agency promulgate today's proposed amendments as final 
regulations. Instead, it provides that the Petitioners agree to seek 
dismissal of their petitions for review if (among other things) the 
Agency finalizes amendments of substantially the same substance as 
those outlined in the settlement agreement.
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B. Why Is EPA Proposing Today's Amendments?

    Today's proposed amendments would more specifically define the 
wastes eligible for management in CAMUs, establish minimum treatment 
requirements for such wastes, and set minimum technical standards for 
CAMUs. This is a departure from the 1993 rule, which took a more 
``performance-based'' approach to addressing these issues, and left the 
details of what was necessary to protect human health and the 
environment to the Regional Administrator to determine based on site-
specific circumstances. It was EPA's view in 1993 that this approach 
would bring more efficiency and speed to cleanups by replacing the more 
prescriptive RCRA requirements designed primarily for ``process'' 
wastes (also known as ``as-generated'' wastes) with an approach that 
allows site-specific decision-making regarding treatment and technical 
requirements for cleanup wastes \3\ managed in on-site units. EPA chose 
not to impose prescriptive standards tailored to cleanup wastes managed 
in CAMUs out of a concern that individual sites might present 
circumstances not contemplated at the time of the promulgation of the 
rule. EPA feared that such standards might therefore pose a barrier to 
sensible protective cleanup solutions, engendering the kinds of 
disincentives to cleanup that the CAMU rule was designed to address.
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    \3\ The term ``cleanup waste'' is used in today's proposal to 
express the general concept of wastes that are derived from cleanup. 
It is not meant as a term of art, nor is it meant to supersede the 
terms ``remediation waste,'' which is defined at Sec. 260.10, or 
``CAMU-eligible waste,'' which is proposed in today's notice. EPA 
uses this term in today's preamble when using either ``remediation 
waste'' or ``CAMU-eligible waste'' would be confusing in the 
discussion context, given the defined nature of these terms.
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    The Agency believes that the CAMU rule has worked well in practice, 
resulting in remedies that are protective of human health and the 
environment. However, as discussed above, the Agency was sued on the 
rule upon issuance. As described above, at the time the CAMU rule was 
promulgated and the Petition for Review filed, the Agency was engaged 
in the HWIR-Media process aimed at developing a more comprehensive 
regulatory approach to addressing how cleanup wastes should be 
regulated under RCRA (see discussion of HWIR-Media FACA process and 
rulemaking above). EPA and Petitioners therefore agreed it was 
reasonable to stay the CAMU litigation pending the outcome of that 
process. As explained above, the HWIR-Media rule did not result in the 
type of comprehensive RCRA regulatory reform that would have eliminated 
the need for the CAMU rule; therefore, the Agency was faced with the 
decision of whether to proceed with the CAMU litigation or enter into 
settlement discussions more directly focused on the CAMU rule.
    The Agency decided to enter into settlement discussions and 
ultimately entered into a settlement agreement that forms the basis for 
today's amendments and will potentially resolve Petitioner's claims. 
EPA's decision to enter this settlement was based on a desire to avoid 
the risks of litigation (and the great disruption such litigation could 
mean for existing and planned cleanups) and to remove the ``litigation 
cloud'' that has deterred the use of CAMUs in the field,\4\ as well as 
on a

[[Page 51084]]

belief that the proposals negotiated during the settlement process were 
reasonable.
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    \4\ See General Accounting Office report, ``Remediation Waste 
Requirements Can Increase the Time and Cost of Cleanups,'' October, 
1997, which is included in the docket for today's rule and discussed 
in HWIR-Media rule preamble at 63 FR 65874, 65921 (November 30, 
1998).
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    EPA believes that the approach set out in today's proposed rule 
provides a sound framework for CAMU decision-making. The Agency 
recognizes the benefits of including minimum standards in a rule of 
this nature; i.e., such standards can make the process more consistent 
nationally, and the results more predictable, as well as more explicit 
for the public. Such standards can also make implementation of the rule 
less vulnerable to mistakes or abuse. However, the Agency did not want 
to include more detailed standards if they would result in potentially 
limiting the usefulness of the rule, thereby delaying or inhibiting 
cleanups. This is the concern that led the Agency to adopt the largely 
performance-based rules in 1993.
    The Agency believes the proposed amendments achieve an appropriate 
balance. The detail added is sufficient for providing minimum national 
standards that realize the benefits outlined above, but is not overly 
prescriptive such that it would so minimize site-specific flexibility 
that the CAMU rule would no longer act to remove the disincentives to 
cleanup that can be created by application of RCRA's land disposal 
restrictions and minimum technical requirements. Today's proposal 
reflects the fact that eight years into the CAMU program, and 16 years 
into the corrective action program, the Agency is now in a much better 
position than it was in 1993 to define regulatory minimums for 
hazardous cleanup waste management units (that are used for wastes 
regulated as hazardous under RCRA) that would result in the benefits 
outlined above, without sacrificing the site-specific flexibility that 
is often critical in the cleanup scenario.
    In developing today's proposal, and in negotiating the CAMU 
settlement, the Agency was able to analyze many of the CAMUs that have 
been implemented over the past eight years both by reviewing the 
records for such CAMUs and by talking with the Agency staff responsible 
for overseeing the CAMU decisions, as well as with representatives from 
states and industry that have experience in both cleanup and 
implementing CAMUs (the section in today's preamble titled, ``Planning 
and Regulatory Review Executive Order 12866'' describes the sample of 
CAMUs used in the analysis of existing CAMUs). The Agency then was able 
to measure this information against potential standards for 
applicability at all CAMUs, and against standards that are already in 
wide use in other waste management unit programs (e.g., the Subtitle C 
and D programs). The Agency was able to tailor potential standards for 
CAMUs by identifying circumstances where it might be appropriate to 
depart from potential minimum standards either on a national or site-
specific basis. Identification of these circumstances where flexibility 
could be built into selection of the appropriate standards was critical 
to the Agency. EPA believes it is crucial to ensure that any minimum 
national standards be consistent with the thinking processes of site 
decision makers who have implemented the existing CAMU rule so as not 
to recreate the disincentives to cleanup that the Agency sought to 
remove with the 1993 rule. In addition, in considering potential 
standards, EPA was mindful of the high degree of oversight associated 
with CAMU decisions. As explained more fully below, as a result of this 
process, the Agency believes that it has identified minimum standards 
that are appropriate for most CAMUs and that accommodate the site-
specific complexities encountered at cleanup sites. Indeed, EPA 
believes that the vast majority of the existing CAMUs could have been 
approved with few or no changes under today's proposed revisions. The 
Agency therefore believes that if the amendments are finalized as 
proposed, the CAMU rule will continue to play an important role in 
removing disincentives to cleanup that can be caused by application of 
RCRA's hazardous waste management requirements for as-generated wastes 
to cleanup wastes, while making the CAMU process more consistent and 
predictable, as well as more explicit for the public.
    The Agency specifically seeks comment on the Agency's conclusions 
regarding whether the proposed rules would realize the benefits of 
increased regulatory detail without reinstating the disincentives to 
cleanup the CAMU rule was originally meant to address. In particular, 
the Agency seeks comment on the Agency's view that the vast majority of 
existing CAMUs could have been approved with few or no changes under 
today's proposed revisions (see the ``Economic Analysis of the Proposed 
Amendments to the CAMU Rule,'' and the ``CAMU Site Background 
Document,'' available in today's docket).

C. Approach to Publishing Today's Proposed Amendments

    In proposing today's amendments, the Agency has published the 
entire text of the CAMU rule as it would appear if today's amendments 
were finalized. EPA took this approach for the sake of clarity. EPA 
recognizes that it could be difficult for readers of today's proposal 
to construct the complete rule, as amended by today's proposal, if EPA 
were simply to publish the amendments by themselves, as EPA typically 
does when it proposes to modify existing regulations. In addition, to 
further aid the reader, the Agency has placed a ``redline/strikeout'' 
version of the CAMU regulations in the docket for today's rulemaking. 
This document indicates exactly where changes to the current rule are 
being proposed.
    EPA believes this approach to publishing today's regulatory 
amendments will be clearer than simply publishing the proposed 
amendments. However, it is important to note that EPA is not seeking 
comment on CAMU regulatory provisions that are simply repeated from the 
1993 rule and are not subject to potential modification by today's 
proposed amendments.
    Note that in many cases, the Agency proposes to incorporate, with 
appropriate changes, existing requirements from other parts of the RCRA 
regulations into the CAMU rule. In reviewing today's proposal, 
commenters may wish to examine the preambles and other supporting 
materials in the rulemaking dockets for those requirements to help 
determine whether such existing requirements make sense for the CAMU 
rule.

III. Section By Section Analysis

A. Grandfathering CAMUs (Sec. 264.550)

    EPA is proposing provisions in today's notice that would allow 
certain CAMUs to continue to be implemented pursuant to the current 
rules under which they were approved or planned (i.e., such CAMUs would 
be ``grandfathered''). Grandfathering of CAMUs is discussed in detail 
in Section J of today's preamble. EPA has included this discussion at 
the end of the section by section analysis in order to ensure that 
readers of today's proposal have the proper context for these proposed 
provisions.

B. Eligibility of Wastes for Management in CAMUs (Sec. 264.552(a))

    In today's rule, EPA is proposing to modify the regulation that 
defines which wastes may be managed in a CAMU. Under the current CAMU 
rule, the definition of ``remediation waste'' at Sec. 260.10 defines 
the types of wastes that may be managed in a CAMU. This definition 
(originally promulgated in the 1993 CAMU rule and modified in the

[[Page 51085]]

HWIR-media rule (63 FR 65874 (November 30, 1998)) also serves as the 
definition for wastes that may be managed pursuant to a Remedial Action 
Plan (or ``RAP'') (under Part 270, Subpart H), that may be stored in a 
staging pile (Sec. 264.554), or that are subject to a site-specific 
treatment variance from the land disposal restriction standards under 
Sec. 268.44(h)(2)(ii) (the ``environmentally inappropriate'' variance).
    EPA is proposing to modify the definition governing the types of 
wastes that can be managed in a CAMU, and is not proposing to change, 
or to otherwise take comment on, the definition of remediation waste as 
it is applied outside of the CAMU rule. To avoid any confusion on this 
issue, EPA is proposing to change the name of waste eligible for 
management in CAMUs from ``remediation waste'' to ``CAMU-eligible 
waste,'' and to include the definition of CAMU-eligible waste in the 
CAMU regulations at Sec. 264.552. Note that for CAMUs that would be 
subject to today's proposed amendments (i.e., that are not 
grandfathered), EPA is proposing a conforming change to the definition 
of corrective action management unit currently in Sec. 260.10, changing 
``remediation wastes'' to ``CAMU-eligible wastes'' such that the 
definition would read as follows: ``Corrective action management unit 
(CAMU) means an area within a facility that is used only for managing 
CAMU-eligible wastes for implementing corrective action or cleanup at 
the facility.'' In addition, EPA is proposing to remove this definition 
from Sec. 260.10 and to place it directly in the CAMU regulations at 
Sec. 264.552(a). This change is discussed in more detail in the section 
below on ``Conforming Changes.''
    EPA is proposing three changes to the existing CAMU rule that 
relate to what materials may be managed in CAMUs: (1) Clarifying 
regulatory language to better distinguish between as-generated and 
cleanup wastes; (2) a provision preventing certain waste in containers 
and other non-land based units from being managed in CAMUs; and, (3) a 
provision allowing non-hazardous as-generated wastes to be placed in 
CAMUs when they are used to facilitate treatment or the performance of 
the CAMU.
    While the first change listed above is a regulatory change to the 
specific definition of CAMU-eligible wastes, it is intended merely as a 
clarification of how EPA generally distinguishes between as-generated 
versus cleanup wastes. It does not represent a departure from how EPA 
has generally distinguished or will distinguish between these two 
categories of wastes in other contexts (i.e., the distinction being 
made in today's proposal generally holds true in the context of the 
current remediation waste definition). Conversely, the second proposed 
regulatory change listed above results in a departure from current 
definitions (under the 1993 CAMU rule) and interpretations, and narrows 
the universe of cleanup wastes that are eligible for management in a 
CAMU. As a result of the second change, the remediation waste 
definition would be broader than the proposed CAMU-eligible waste 
definition. The third proposed regulatory change is necessary to 
address an effect that would be caused by the first change described 
above--without the third proposed change, a current practice involving 
the use of non-hazardous as-generated waste during cleanup would be 
prevented. Each of these proposed changes is discussed below.
1. ``As-Generated'' vs. ``Cleanup'' Wastes.
    The existing regulatory definition of ``remediation waste'' in 
Sec. 260.10, as amended in the HWIR-media rule (63 FR 65874 (November 
30, 1998)), limits remediation waste to wastes, media and debris that 
``are managed for implementing cleanup.'' The preamble to the 1993 rule 
explains what was generally meant by this definition: ``[t]oday's 
definition of remediation waste excludes ``new'' or as-generated wastes 
(either hazardous or non-hazardous) that are generated from ongoing 
industrial operations at a facility'' (58 FR 8658, 8664 (February 16, 
1993). EPA believes that the intent of this definition, particularly 
when read in conjunction with the 1993 preamble discussion outlining 
how the rule generally addresses ``as-generated'' wastes, is very 
clear: remediation waste includes only wastes that are managed for the 
purpose of cleanups, and CAMUs thus cannot generally be used to manage 
``as-generated'' wastes (which, because they are process wastes, are 
not generally ``managed for implementing cleanup,'' but are typically 
managed for the purposes of ultimate disposal). These as-generated 
wastes are also referred to as ``new'' or ``process'' wastes. In 
response to requests that the current definition be clarified to better 
reflect the intent to distinguish between as-generated and cleanup 
wastes, EPA is proposing to add the following clarifying language from 
the preamble of the 1993 rule, quoted above, to the regulatory 
definition of CAMU-eligible waste: ``As-generated wastes (either 
hazardous or non-hazardous) from ongoing industrial operations at a 
site are not CAMU-eligible wastes.'' As discussed below, EPA is also 
proposing certain limited exceptions from this new general prohibition 
in the regulatory language to preserve legitimate cleanup practices 
that would otherwise be eliminated by adding this language to the 
regulation. More specifically, EPA is proposing to allow an exception 
to be made when non-hazardous as-generated wastes are placed in a CAMU 
where such waste is being used to facilitate treatment or the 
performance of a CAMU.
    The Agency does not intend for this additional language to result 
in any change in how the Agency currently distinguishes between as-
generated and ``cleanup'' waste (for purposes of a CAMU determination, 
or remediation waste determination made for RAPs, staging piles or in 
use of the ``environmentally inappropriate'' LDR treatment variance); 
it is simply an attempt to better define the original intent of the 
regulations in the regulatory language itself. ``As-generated'' 
continues to have the meaning that it did in 1993. For example, 
hazardous wastes from ongoing industrial processes managed in a 
routinely operating hazardous waste landfill would be ``as generated'' 
wastes. Soil that has become contaminated by leachate from this 
landfill, however, would be CAMU-eligible because it is not ``as-
generated'' waste. Similarly, EPA has not changed what the Agency means 
by ``from ongoing industrial operations.'' This phrase includes not 
only wastes produced during commercial operations, but also any wastes 
that are produced during the management of such wastes. For example, 
hazardous sludges periodically removed from Subtitle C regulated 
surface impoundments (e.g., during normal waste management routines) 
are considered ``from ongoing industrial operations,'' not wastes from 
cleanup, and therefore would not be ``CAMU-eligible.''
    EPA believes that placement of the 1993 preamble text into the 
regulations will make the distinction between as-generated and cleanup 
wastes clearer. This proposed amendment inserts the existing 1993 CAMU 
preamble language directly into the regulation with minor edits,\5\ 
preserving and clarifying the

[[Page 51086]]

intent of the original definition. In today's proposal, EPA is seeking 
comment on the appropriateness of moving this particular preamble 
language into the rule, but is not reopening for comment the issue of 
whether CAMUs should routinely be used for the treatment or disposal of 
as-generated wastes. Today's amendments would also not change the 
eligibility of non-hazardous cleanup wastes for management in a 
CAMU'such wastes would remain CAMU-eligible.
---------------------------------------------------------------------------

    \5\ The Agency did not include the word ``new,'' as in ``new or 
as-generated'' that appears in the preamble language at issue 
because it is redundant. The Agency also added the phrase ``are not 
CAMU-eligible'' to the end of the preamble phrase to establish the 
proper context for the proposed regulatory text.
---------------------------------------------------------------------------

    As stated above, EPA seeks comment on the addition of this 1993 
preamble to the CAMU regulation itself. In particular, the Agency 
requests comment on whether the terms ``as-generated waste'' and ``from 
ongoing industrial operations at a site'' are helpful in clarifying 
what wastes would not be considered ``managed for implementing 
cleanup.'' The Agency also requests comment on whether moving such 
language from preamble to the regulatory definition in the Code of 
Federal Regulations would have any unintended effects. In other words, 
would moving this preamble statement describing what types of wastes 
will not generally be considered ``managed for implementing cleanup'' 
into the regulatory language eliminate actual or potential practices 
where it might be an appropriate cleanup approach to place as-generated 
wastes in a CAMU? EPA has identified and addressed one such 
circumstance, described more fully below; that is where nonhazardous 
as-generated wastes are used to facilitate treatment or the performance 
of the CAMU. Are there other such circumstances? For example, the 
Agency limited the one circumstance provided for in today's proposal to 
nonhazardous as-generated waste, because that was the only common, 
legitimate practice brought to its attention during discussions with 
stakeholders. Are there circumstances where hazardous as-generated 
wastes are also legitimately used during cleanup? In arguing that the 
Agency should provide for certain practices, the Agency asks that 
commenters also state how such practices should be addressed in the 
final rule. For example, should the Agency provide a specific 
regulatory exception to cover the circumstance?
2. Wastes Managed During Closure
    During the course of the Agency's discussions with stakeholders, it 
became apparent that there is a need for further guidance on when 
wastes associated with closure of non-permanent hazardous waste units 
are ``managed for implementing cleanup'' and therefore eligible for 
management in a CAMU. In the 1993 preamble, the Agency clearly 
indicated that some wastes managed during RCRA closure of land-disposal 
units would be eligible for management in a CAMU (58 FR 8658, 8666 
(February 16, 1993)). That discussion was premised on the Agency's view 
that waste removed during RCRA closure at closed or closing permanent 
land disposal units are wastes ``managed for implementing cleanup.'' 
``Closed or closing'' units are those that have received their final 
volume of waste. ``Permanent land disposal units'' are those for which 
the regulations provide a closure in place option (e.g., landfills, 
surface impoundments and land treatment units). In the case of 
permanent disposal units, EPA considers closure by removal to be 
cleanup, because the regulations provide an option for closure with 
wastes in place. In addition, the Agency believes that the ability to 
place such wastes in CAMUs promotes the Agency's objective of 
encouraging the removal and/or treatment of wastes during closure of 
RCRA units. EPA believes that the CAMU regulations provide an incentive 
for companies to manage such wastes as part of a cleanup, rather than 
to leave the wastes in place, where appropriate.
    Waste ``managed for implementing cleanup,'' on the other hand, does 
not typically include waste removed during RCRA closure of non-
permanent land-based units, such as waste piles. EPA does not generally 
consider closure of a waste pile or other non-permanent land-based unit 
to be ``cleanup.'' Removal of wastes from waste piles and from similar 
land-based storage units is part of the normal course of operation of 
the unit; these types of units are not intended as the final resting 
place for wastes. Therefore, EPA believes it would typically be 
inappropriate to consider removal of wastes from these non-permanent 
land-based units to be ``cleanup.'' ``Typically'' is intended to 
indicate the Agency's ability, for example, at abandoned facilities, to 
place waste found in old piles or similar units in a CAMU, because once 
they are abandoned, management of wastes they contain is for the 
purpose of implementing a cleanup.
3. Wastes in Intact or Substantially Intact Containers, Tanks, or Other 
Non-Land-Based Units (Sec. 264.552)
    EPA is proposing at Sec. 264.552(a)(1)(ii) to further modify the 
regulations defining the wastes that are eligible for management in a 
CAMU. This provision would prohibit management in a CAMU of wastes that 
would otherwise meet the description in Sec. 264.552(a)(1)(i) (i.e., 
they are materials ``managed for implementing cleanup'') but are found 
during cleanup in intact or substantially intact containers, tanks, or 
other non-land-based units, with certain exceptions that are described 
below. An example of an ``other non-land-based unit'' would be a 
containment building under Part 264, Subpart DD or Part 265, Subpart 
DD. Under today's proposal, neither these containers, tanks or other 
non-land-based units, nor the wastes in them, would be eligible for 
management in CAMUs. ``Found during cleanup'' is meant to refer to 
wastes being addressed in the context of cleanup, as opposed to as-
generated waste that may also be stored at a site undergoing cleanup.
    The issue of whether CAMUs should be used to manage containerized 
waste that would otherwise be considered ``managed for implementing 
cleanup'' (e.g., abandoned drums) was raised during discussions with 
stakeholders. These stakeholders gave the opinion that because such 
wastes are easily dealt with under Subtitle C requirements, they should 
not be permitted to be managed in a CAMU. EPA is proposing today's 
amendment because the Agency believes that these are not the types of 
wastes for which RCRA is likely to produce the barriers addressed by 
the CAMU rule. In addition to being easily managed under Subtitle C's 
hazardous waste requirements, such units do not typically contain the 
large volumes of waste typically found in land-based units, and in situ 
management is not likely to be a viable remediation option. The Agency 
also believes that, generally, overseeing agencies would not approve 
direct disposal of substantially intact drums in a CAMU. In most cases, 
such drums would be sent off-site for treatment and disposal because 
cleanup contractors are generally prepared to address drums by removing 
and packaging them for off-site treatment or disposal. In fact, the 
Agency's analyses of EPA's CAMUs to date show no evidence that 
containerized waste was managed in CAMUs (see the ``CAMU Site 
Background Document,'' available in today's docket). The Agency's 
conclusions that containerized waste is unlikely to be managed in CAMUs 
was also echoed by some members of the regulatory and regulated 
communities during the stakeholder discussions. The Agency seeks 
comment its conclusions regarding the anticipated management of 
containerized waste during cleanups.
    EPA is proposing that this exclusion from CAMU eligibility for 
hazardous

[[Page 51087]]

wastes found during cleanup in containers, tanks, or other non-land-
based units be limited to ``intact'' or ``substantially intact'' units 
only. Wastes found during cleanup in crumbling or unstable drums, 
containers, and other non-land based units often cannot be readily 
managed due to the likelihood of a release from the unstable unit, and 
should be allowed to be managed in CAMUs. (EPA anticipates, however, 
that in some cases, the decision will be made site-specifically to 
manage such unstable units offsite, rather than in a CAMU.) The general 
principle guiding determinations of what is ``substantially intact'' 
would be that ``substantially intact'' units, containers and tanks can 
be removed without likelihood of a significant release; any minor 
imperfections present would not prevent a unit from being considered 
``intact.''
    EPA is proposing two exceptions to the exclusion for CAMU-
eligibility for substantially intact or intact containers, tanks, or 
other non-land-based units. The first exception is for cleanup wastes 
that are first placed in the tanks, containers or non-land-based units 
as part of cleanup. This provision is necessary to make clear that, if 
cleanup wastes are removed from the land and placed temporarily in such 
units, they would not become ineligible for management in a CAMU.
    The second exception is specifically for buried containers (not 
tanks or other units) that are excavated during the course of cleanup. 
Such wastes cannot always be easily managed in accordance with 
applicable Subtitle C requirements. In the case of above-ground 
containers, the integrity of the containers can be generally assessed 
by visual inspection, and, if they are ``substantially intact,'' the 
containers will generally either already be in a state to be 
transported or the waste within them can easily be handled in 
accordance with Subtitle C requirements. In contrast, buried containers 
will typically be much more difficult to assess and manage than those 
found above ground. This provision, by allowing for the disposal in 
CAMUs of buried containers that are excavated and managed as part of 
the cleanup, would ensure that today's amendments regarding containers 
would not create disincentives to excavate the container and its 
contents. If such containers, and the wastes in them, are disposed in a 
CAMU, they would of course be subject to all of the CAMU requirements, 
including today's proposed prohibition against disposal of liquids in 
CAMUs (discussed in more detail below). As a matter of practice, in 
many cases, EPA anticipates that the remedy decision for the site will 
include off-site management, under the full Subtitle C requirements, of 
excavated containers containing hazardous wastes.
    EPA seeks comment on whether the exception proposed for buried 
containers should also apply to buried tanks that are excavated during 
the course of cleanup. Buried tanks containing wastes or waste residue 
are sometimes encountered during the course of excavating contaminated 
areas or are found disposed in landfills. The practical difficulties 
associated with assessing the integrity of buried containers and 
managing the waste contained in such containers can also apply to 
buried tanks. The ability to manage, in a CAMU, wastes from buried 
tanks found in the ground or in landfills during cleanup, would ensure 
that today's proposed amendments concerning tanks would not create 
disincentives to excavate the tanks, and would allow for the potential 
treatment of the wastes in a CAMU without having to meet the full 
subtitle C management requirements for as-generated wastes. One reason 
for considering this additional exception is that EPA believes it could 
be difficult in burial situations to always distinguish between tanks 
and containers; this is particularly so given the diversity of 
structures that meet the RCRA definition of ``tank.'' Including tanks 
as well as containers in this exception would remove this potential 
practical difficulty. Under this option, EPA would not intend that the 
contents of underground tanks being used to store waste or products 
would be CAMU-eligible. The Agency seeks comment on these ideas, 
including whether regulators can readily determine if specific tanks 
are being used to store waste or products. The Agency seeks general 
comment on whether the exception proposed for buried containers should 
also apply to buried tanks that are excavated during the course of 
cleanup, and whether the situations described above regarding buried 
tanks excavated during a cleanup are encountered often enough to 
warrant including them in the buried container exception.
    EPA intends that the CAMU framework would provide for the cleanup 
of ``historic wastes,'' and that today's amendments would not reinstate 
the disincentives to cleanup of historic wastes addressed by the 1993 
CAMU rulemaking. During stakeholder discussions, members of the 
regulated community asked for clarification on the eligibility of 
historic wastes left onsite at old facilities in units that arguably 
could meet the definition of either a non-land-based unit or a 
``tank.''
    Under the proposed amendments, a historic waste would be CAMU-
eligible if it were found in a land-based unit. The most prominent 
examples, that EPA is aware of, of historic wastes that would serve as 
a good example of how this amended provision would work at historic 
sites are ``gas holders'' at manufactured coal gas production 
facilities that operated before 1950 (information on ``manufactured gas 
plant'' (MGP) sites is included in the docket for today's rule).\6\ In 
most cases, such historic units would be considered land-based units 
under RCRA (e.g., old building foundations, which are analogous to 
concrete vaults) and the waste would be CAMU-eligible. EPA is also 
aware that some facilities have old units that have not been used in 
decades, that would arguably meet the definition of a tank, and 
therefore would potentially not be CAMU-eligible. If such a unit were a 
tank, the rules would require that the unit be assessed to determine 
whether it is substantially intact, before determining whether the 
waste is CAMU-eligible. In some cases, given the age, construction, and 
size of such units, it would be reasonable to assume that the units are 
not substantially intact. As a result, the wastes removed from these 
units would fit the exception described above and would be CAMU-
eligible.
---------------------------------------------------------------------------

    \6\ EPA notes that the United States Court of Appeals for the 
District of Columbia Circuit recently vacated the TCLP rule as it 
applies to MGP wastes. Ass'n of Battery Recyclers, Inc. v. U.S. EPA, 
208 F.3d 1047 (D.C. Cir. 2000). EPA retains this example (which was 
included in the settlement agreement) to address situations where 
MGP wastes are otherwise regulated as hazardous (e.g., MGP wastes 
have been mixed with a listed hazardous waste) and because it 
continues to provide useful guidance for similar scenarios at non-
MGP sites.
---------------------------------------------------------------------------

    EPA seeks comment on all aspects of this proposed amendment. In 
particular, the Agency solicits comment on the general approach of 
excluding containers and other non-land based units managed during 
cleanup from CAMU-eligibility and whether the exceptions EPA is 
proposing are clear and make sense in light of commenters' experience.
4. Limited Use of ``As-Generated'' Waste in CAMUs
    CAMUs are intended to be used for the management of cleanup wastes. 
As a general matter, EPA does not believe it is appropriate for as-
generated wastes to be managed in CAMUs; this applies for non-
hazardous, as well as hazardous, as-generated waste (58 FR 8658, 8664 
(February 16, 1993)). However, there are accepted practices where non-
hazardous as-generated wastes are used in cleanup remedies. As a result 
of today's

[[Page 51088]]

proposed amendments, EPA does not seek to preclude such practices in a 
CAMU.
    Today's proposed amendment in the second sentence of 
Sec. 264.552(a)(1)(i) adds regulatory language specifically prohibiting 
placement of as-generated wastes in CAMUs. EPA does not intend, by 
adding this language to the regulations, to prohibit the use of non-
hazardous as-generated waste in a CAMU when it is legitimately being 
managed in a CAMU to facilitate treatment or the performance of the 
CAMU. Therefore, EPA proposes the amendment at Sec. 264.552(a)(1)(iii) 
which reads that ``notwithstanding paragraph (a)(1)(i) of this section, 
where appropriate, as-generated non-hazardous waste may be placed in a 
CAMU where such waste is being used to facilitate treatment or the 
performance of the CAMU.''
    The Agency is aware of two common practices that use non-hazardous 
as-generated wastes to facilitate treatment of cleanup wastes or 
facilitate the performance of disposal units. The first practice is to 
use agents such as fly ash or cement kiln dust (CKD) as a stabilization 
agent to reduce leaching of metals from metal-bearing wastes. The 
second practice is to use similar agents to provide increased 
structural stability for wastes, such as sludges obtained from 
remediation, that do not have sufficient strength to bear their own 
weight, or the additional weight of a cap, without risk of failure.\7\ 
These practices associated with use of cement kiln dust, fly ash and 
coal combustion wastes are consistent with EPA's view in today's 
proposal of facilitating treatment or performance of the CAMU. The 
Agency seeks comment on today's proposed approach for addressing the 
use of as-generated non-hazardous wastes in CAMUS.
---------------------------------------------------------------------------

    \7\ EPA has recently proposed regulations which would classify 
CKD as hazardous waste under certain circumstances (64 FR 45632, 
August 20, 1999). As discussed in that proposal, EPA finds the use 
of CKD as a stabilizer or solidification agent to be beneficial for 
cleanups and would not regulate CKD wastes when they are used for 
such purposes. The proposed CKD regulations would not prevent, 
restrict, or regulate the use of CKD as a stabilizer or solidifying 
agent during RCRA cleanups under sections 3004(u), 3004(v), and 
3004(h), or when the EPA Region, or, authorized State agency finds 
that the use of CKD in cleanups is protective of human health and 
the environment. EPA has also determined that no additional 
regulations are warranted for coal combustion wastes that are used 
beneficially other than for mine-filling (see 65 FR 32214, May 22, 
2000).
---------------------------------------------------------------------------

C. Discretionary Kickout (Sec. 264.552(a)(2))

    RCRA Subtitle C regulations for as-generated wastes ensure that 
such wastes are handled according to stringent national standards that 
are designed to ensure protection of human health and the environment 
and that create significant incentives for process changes to minimize 
hazardous waste generation. Yet, as discussed above, these same 
requirements, when applied to existing contamination problems, can 
provide a strong incentive for leaving wastes in place or for selecting 
remedies that minimize regulation under Subtitle C. EPA believes that 
the CAMU regulations, including today's proposed amendments, remove 
disincentives for clean-ups and allow for implementation of protective 
remedies at cleanup sites.
    It is EPA's intention that CAMUs continue to be a practical option 
for facilities undergoing cleanup. However, some stakeholders expressed 
concern that it is less expensive to manage wastes in CAMUs than to 
manage waste in accordance with as-generated waste requirements, and 
thus there is a potential incentive for facilities to mismanage as-
generated wastes such that they subsequently become eligible for 
management in a CAMU. EPA does not want the CAMU regulations to create 
any incentives for non-compliance, whether the non-compliance is 
intentional to take advantage of alternate requirements in the CAMU 
rule, or is the result of careless management practices (which could, 
by example, thereby encourage others to ignore applicable 
requirements). EPA expects all facilities to be aware of the applicable 
regulations for managing as-generated wastes and to carefully adhere to 
those requirements. Therefore, EPA is proposing a ``kick-out'' 
provision as part of today's amendments. This kick-out provision would 
provide the Agency with discretion to disallow the management of CAMU-
eligible wastes in a CAMU, in appropriate circumstances, as discussed 
below. EPA believes that this discretion would provide a balance 
between facilitating cleanups with CAMUs and maintaining incentives for 
waste minimization and proper waste management in the first instance.
    Under today's proposal, the Regional Administrator would be 
permitted to consider using the kickout provision where there was prior 
non-compliance with fundamental waste management requirements that are 
designed to prevent or minimize releases of hazardous waste. 
Specifically, proposed Sec. 264.552(a)(2) would provide that: ``the 
Regional Administrator may prohibit, where appropriate, the placement 
of waste in a CAMU where the Regional Administrator has or receives 
information that such wastes have not been managed in compliance with 
applicable land disposal treatment standards of Part 268, or applicable 
Part 264 or 265 unit design requirements, or that non-compliance with 
other applicable RCRA requirements likely contributed to the release of 
the waste.'' The word ``applicable'' before standards or requirements 
refers to the applicability of the regulations at the time of disposal 
of the wastes. ``Unit design requirements'' refers to substantive 
design standards, such as the tank design standards under Sec. 264.192 
or the design requirements for waste piles under Sec. 264.251. 
Maintenance requirements, such as the owner/operator requirement to 
inspect tanks under Sec. 264.195, are not ``unit design'' requirements. 
Therefore, a violation of maintenance requirements would be considered 
in the context of whether ``non-compliance with other applicable RCRA 
requirements likely contributed to the release of the waste.'' The 
standard of ``likely contribution'' is intended to address situations 
where the kickout is being considered for non-compliance with 
regulations other than the LDRs or unit design regulations.
    In today's proposed kickout provision, EPA chose to include three 
areas where prior non-compliance with waste management requirements 
would allow the Regional Administrator to consider use of the kickout 
provision; specifically, land disposal restrictions, part 264 or 265 
unit design requirements, and other RCRA requirements where 
noncompliance likely contributed to the release at issue. EPA addressed 
these three areas differently. EPA chose to include both the LDR and 
unit design provisions because they represent fundamental requirements 
that are aimed at preventing or minimizing releases of hazardous waste. 
They also represent provisions from which CAMUs provide potential 
relief. Regarding the third part of this provision (pertaining to 
``other'' RCRA requirements), because the relationship between a 
release and non-compliance with other Subtitle C requirements may be 
less obvious, EPA chose to propose a different approach (which requires 
``likely contribution'') to identifying other instances where the 
Regional Administrator may consider invoking the discretionary kickout.
    As discussed above, this provision should help maintain the current 
incentives for waste minimization and proper waste management. However, 
this discretionary authority would not be exercised for each instance 
of non-compliance with the requirements listed in proposed 
Sec. 264.552(a)(2); the Agency does not believe it would be appropriate

[[Page 51089]]

to require the Regional Administrator to exclude such waste from 
management in a CAMU in all instances where there had been prior non-
compliance. Under the proposed rule, in deciding whether to exercise 
the discretion to disallow management in a CAMU, the Agency would 
consider the significance of the violation, among other site-specific 
factors. In cases where the entity seeking the CAMU is not the same 
entity that mishandled the waste and is not affiliated with the entity 
that mishandled the waste, EPA would generally not exercise its 
discretion to disallow placement of those CAMU-eligible wastes in a 
CAMU.
    The proposed provision states that the Regional Administrator may 
prohibit placement of wastes in the CAMU, under the discretionary 
kickout provision, when the Regional Administrator ``has or receives'' 
relevant information about how the waste has been handled. The Agency 
chose the phrase ``has or receives'' to reflect the common sources of 
EPA's information at sites that use CAMUs. The Agency routinely has 
information on the origin and management of cleanup wastes, obtained as 
part of the cleanup process as the facility approaches the point where 
a CAMU decision is being considered. For example, such information is 
typically available from permit applications, cleanup investigation 
reports, remedial workplans, enforcement actions, or from the general 
public. In addition, the Agency ``receives'' relevant information 
during the CAMU approval process. As discussed in the next section of 
today's preamble, EPA is proposing, in addition to what is already 
required at Sec. 264.552(d), to add specific information requirements 
to the CAMU rule to make certain that EPA has sufficient information 
for making determinations as to whether wastes are CAMU-eligible and 
whether there is any apparent reason the Agency should disallow CAMU 
management. EPA seeks comment on today's proposed approach for 
addressing any potential incentives for mismanagement of as-generated 
wastes due to the CAMU rule.

D. Information Submission (Sec. 264.552(d))

    The current general requirement for information submission, at 
Sec. 264.552(d), requires the owner or operator to submit sufficient 
information to enable the Regional Administrator to designate a CAMU. 
EPA proposes modifying the existing information requirement under 
Sec. 264.552(d) to include submission of the specific information 
listed under proposed Sec. 264.552(d)(1-3). The specific information 
required would provide the Agency and the public with information on 
the circumstances surrounding the origin and subsequent management of 
the waste. The Agency would use this information for the purposes of 
deciding whether the waste is CAMU-eligible and whether such waste was 
mismanaged such that the ``kickout'' discretion should be considered.
    The modifications in today's proposal are additions to the existing 
general requirement, and add three specific information submission 
requirements to directly address the proposed amendments pertaining to 
CAMU eligibility. EPA is proposing that specific information must be 
submitted (``unless not reasonably available'') on: ``(1) The origin of 
the waste and how it was subsequently managed (including a description 
of the timing and circumstances surrounding the disposal and/or 
release) [provision Sec. 264.552(d)(1)]; (2) whether the waste was 
listed or identified as hazardous at the time of disposal and/or 
release [provision Sec. 264.552(d)(2)]; and (3) whether the waste was 
subject to the land disposal requirements of Part 268 of this chapter 
at the time of disposal and/or release [provision 
Sec. 264.552(d)(3)].'' EPA is not proposing in the regulations a 
specific level of detail associated with meeting this requirement. The 
necessary level of information would be determined by the overseeing 
agency on a site-specific basis, given the specific characteristics of 
the site and wastes. As explained above, EPA is proposing to retain the 
general information collection requirement at Sec. 264.552(d), and the 
information submission required under this provision would not be 
limited to the three specific types of information required under these 
proposed amendments.
    Proposed provision Sec. 264.552(d)(1) would add a specific 
requirement for submission of information on the origin of the waste 
and its subsequent management, where such information is reasonably 
available (the concept of reasonable availability is discussed below). 
The proposed language specifically emphasizes waste origins, which is 
information the Agency needs to be able to distinguish between as-
generated and cleanup wastes. EPA seeks to ensure, at all CAMUs, that 
reasonably available information on the history of the waste will be 
available to the Regional Administrator and the public so that CAMUs 
will be restricted to managing wastes resulting from cleanup.
    The information that would be submitted in response to (d)(2) and 
(3) relates specifically to whether the waste was designated as 
hazardous and was subject to the land disposal restrictions at the time 
of disposal and/or release. Regarding (d)(2), the Agency would use the 
information provided to determine whether Subtitle C unit standards 
applied at the time of the release. EPA took a slightly different 
approach to (d)(3) because EPA believes that it would be appropriate 
for the owner/operator to submit information on LDR applicability, 
because the owner/operator would be most familiar with the 
circumstances of waste management and would be in the best position to 
explain whether the disposal and/or release was or was not subject to 
the land disposal restrictions. The information requested in proposed 
(d)(2) and (3) would be used by the Regional Administrator for deciding 
whether such waste is one for which discretionary use of the kickout 
provision should be considered.
    EPA believes that the information that would be required in 
Sec. 264.552(d)(1)-(3) on wastes potentially being placed in CAMUs will 
generally be in the facility's or EPA's possession prior to the CAMU 
approval process. Facilities typically seek the use of a CAMU in cases 
where they have identified that they are managing hazardous cleanup 
wastes, and are seeking a compliance alternative to the standards that 
apply to management of hazardous as-generated wastes. Information on 
the origin and historical management of wastes is routinely reported in 
permit applications, RCRA Facility Assessments (RFAs), RCRA Facility 
Investigations (RFIs) and other cleanup investigative reports, remedial 
workplans, engineering reports and analyses of remedial alternatives 
conducted prior to the determination to pursue a CAMU. If this 
information was previously submitted to the same Agency, and it remains 
timely and accurate, the owner/operator could simply identify where and 
when the information had been previously submitted to the Agency, and 
EPA would generally not expect the owner/operator to resubmit the 
information as part of its submission under this requirement.
    EPA seeks comment on today's proposed information submission 
provisions. In particular, do they achieve the Agency goals for 
obtaining the types of information necessary to make CAMU decisions? In 
addition, EPA specifically seeks comment on the Agency's conclusion 
that the information that would be required in Sec. 264.552(d)(1)-(3) 
on wastes potentially being placed in CAMUs will generally

[[Page 51090]]

be in the facility's or EPA's possession prior to the CAMU approval 
process.
1. Availability of Information
    Today's amendments would provide that the information in proposed 
Sec. 264.552(d)(1)-(3) must be submitted to the Agency unless it is 
``not reasonably available.'' Under this standard, facilities would be 
expected to have made or make a good faith effort to gather and provide 
information meeting the submission requirements in Sec. 264.552(d)(1)-
(3). As stated above, EPA believes that most facilities will already be 
in possession of information necessary to fulfill the requirements of 
this provision and will be able to readily inform the Agency of the 
information required under proposed Sec. 264.552(d). In instances where 
this is not the case, EPA would expect most facilities to be able to 
gather the information through existing site and waste-specific 
information such as manifests, vouchers, bills of lading, sales and 
inventory records, sampling and analysis reports, accident, spill, 
investigation, and inspection reports, enforcement orders and permits. 
Reasonably available information also would include information that 
can be obtained from talking with knowledgeable current and former 
employees, particularly where documentation is absent. Information that 
is required to be developed and maintained under applicable statutes 
and regulations would also be expected to be reasonably available.
    EPA believes that the ``reasonably available'' standard is 
appropriate, because it would allow for circumstances where, for 
example, the contamination cannot be linked with specific waste 
management activities that are historically associated with the 
facility (e.g., characteristically hazardous soils not associated with 
any hazardous waste unit at the facility). Where information responding 
to the requirements in Sec. 264.552(d) is not reasonably available, the 
facility could fulfill these information submission requirements by 
informing the Regional Administrator on the extent of its knowledge 
about the waste and releases.
    For wastes that were disposed and/or released prior to the 
enactment of the hazardous waste regulations or the land disposal 
restrictions, the response to paragraphs (d)(2) and (3) would be to 
indicate in the submission that the information submitted regarding the 
origins of the waste in paragraph (d)(1) demonstrate that the wastes 
were not regulated as hazardous or subject to the LDRs, because those 
standards did not exist at that time.
2. Ability to Seek Additional Information
    EPA is not proposing to alter the general approach to information 
submission, which requires the owner or operator to submit sufficient 
information to enable the Regional Administrator to designate a CAMU. 
It is typical to have a series of back-and-forth discussions, 
information exchanges, and requests for additional information 
throughout the CAMU application process. For the purpose of determining 
CAMU eligibility, the Agency would likewise, where appropriate, seek 
information regarding waste history beyond that initially submitted 
pursuant to Sec. 264.552(d). Where there are significant concerns 
raised about the eligibility or past management of wastes from 
submitted information, information already in the oversight agency's 
possession, or from information brought to the Regional Administrator's 
attention by a citizens group, the Agency would expect the Regional 
Administrator to seek additional information regarding waste history.
3. Commercial Chemical Products
    EPA believes that there could be potential confusion regarding how 
Sec. 264.522(d) should be applied to P and U hazardous wastes which are 
discarded (see 261.33) and are undergoing cleanup. The confusion arises 
because commercial chemical products are not ``wastes'' until they are 
discarded or intended to be discarded by being abandoned (or used as 
fuels or in a manner constituting disposal when these are not their 
normal manner of use). In this context, (d)(2) should be read as 
``whether the disposal and/or release of the commercial chemical 
product occurred before or after the associated listing.'' EPA believes 
that this reading should make the intention of the original questions 
clearer as applied to discarded commercial chemical products. For 
(d)(3), the answer should be that the commercial chemical products were 
not subject to LDRs because the LDR requirement for the associated 
listing would not apply at the time of the spill.
4. Alternate Approach to Proposed Sec. 264.552(d)(3)
    EPA seeks comment on an alternate approach to seeking information 
under proposed Sec. 264.552(d)(3). Under this alternate approach, 
provision (d)(3) would read as ``whether the disposal and/or release of 
the waste occurred before or after the land disposal restriction 
requirements of Part 268 of this chapter were in effect for the 
associated listing.'' This alternate approach would request information 
relating to an LDR regulation effective date, rather than information 
on determining whether the waste was ``subject to'' LDR standards. EPA 
has concerns that assessing whether waste was ``subject to'' certain 
standards might become complicated for the owner or operator. EPA 
anticipates that the date approach might be easier for owner/operators 
to respond to, and would provide oversight agencies with relevant 
information to understand the compliance history or to seek additional 
information, if needed.
5. Interpretation of Existing Sec. 264.552(d)
    During discussions with stakeholders, EPA became aware of potential 
confusion regarding the use of the word ``criteria'' in the information 
submission requirement at Sec. 264.552(d): ``The owner/operator shall 
provide sufficient information to enable the Regional Administrator to 
designate a CAMU in accordance with the criteria in Sec. 264.552.'' 
Although the Agency does not believe the confusion warrants a change in 
the regulatory language, EPA is using today's proposal as an 
opportunity to clarify its intent with regard to this provision. 
Specifically, the word ``criteria'' was described in the 1993 preamble 
as referring to the ``decision criteria specified in Sec. 264.552(c) as 
they relate to the implementation of a CAMU at a given facility'' (58 
FR 8671). The potential confusion regarding this phrase relates to 
whether the information submission requirement is restricted to the 
listed criteria under Sec. 264.552(c). As plainly required by 
Sec. 264.552(d), EPA has always intended that this provision be read as 
requiring information relating to all aspects of implementation of the 
CAMU under Sec. 264.552, including, for example, implementation factors 
that are not specifically referenced in Sec. 264.552(c), such as 
information relating to the use of a regulated unit as a CAMU (under 
Sec. 264.552(b)).

E. Liquids in CAMUs (Sec. 264.552(a)(3))

    EPA is proposing to add a general prohibition, at 
Sec. 264.552(a)(3), against placement of liquids in CAMUs, with 
exceptions for liquids that are associated with the remedy selected for 
the waste. Specifically, EPA is adding four provisions as follows: (1) 
``The placement of bulk or non-containerized liquid hazardous waste or 
free liquids contained in hazardous waste (whether or not sorbents have 
been added) in any CAMU is prohibited except where placement of such 
wastes facilitates the

[[Page 51091]]

remedy selected for the waste;'' (2) ``The requirements in 
Sec. 264.314(d) for placement of containers holding free liquids in 
landfills apply to placement in a CAMU except where placement 
facilitates the remedy selected for the waste;'' (3) ``The placement of 
any liquid which is not a hazardous waste in a CAMU is prohibited 
unless such placement facilitates the remedy selected for the waste or 
a demonstration is made pursuant to Sec. 264.314(f);'' and, (4) ``the 
absence or presence of free liquids in either a containerized or a bulk 
waste must be determined in accordance with Sec. 264.314(c). Sorbents 
used to treat free liquids in CAMUs must meet the requirements of 
Sec. 264.314(e).'' Of course, under today's proposal, wastes containing 
liquids that are placed in a CAMU in accordance with the proposed 
provisions would remain subject to the CAMU requirements, including 
today's proposed treatment standards.
    These proposed changes essentially adopt the approach that has been 
taken for hazardous waste landfills, into which the placement of 
hazardous or non-hazardous liquids is prohibited (at Sec. 264.314), but 
has been modified for incorporation into the CAMU rule.\8\ EPA believes 
that the general basis for prohibiting placement of liquids in 
landfills--that liquids fundamentally increase the risk of future 
releases from a unit--applies equally to CAMUs. The Agency is not aware 
of any instances of inappropriate introduction or disposal of liquids 
in existing CAMUs, but believes that the proposed amendment will 
clarify the Agency's long-standing policy on the general 
inappropriateness of the disposal of liquids in long-term land disposal 
units, including CAMUs.
---------------------------------------------------------------------------

    \8\ In modifying Sec. 264.314 for potential application to 
CAMUs, EPA did not include provision Sec. 264.314(a), which pertains 
to disposal prior to 1985, because it would not apply to future 
CAMUs.
---------------------------------------------------------------------------

    EPA believes there will, however, be instances where it is 
appropriate to add liquids or wastes containing liquids in CAMUs, when 
such placement facilitates the remedy selected for the waste being 
managed in the CAMU. For example, a common practice for management of 
water-bearing industrial sludges or sediments is to de-water the 
materials prior to final disposal or treatment. In another example, 
soils or other contaminated materials can be subjected to a soil 
washing remedy, either with water or solvents, to remove soluble 
contamination. The remedy approved by the oversight agency would 
specify final management of the residual water; typically, in these 
examples, the residual liquids from de-watering or from soil washing 
would be containerized and disposed offsite. Another example is 
bioremediation of wastes, which frequently requires the addition of 
water or liquid additives to facilitate the biological breakdown 
process. Management of the CAMU might also require use of water or 
leachate for dust suppression while the unit is operating or under 
construction. To accommodate these reasonable clean-up waste management 
approaches, the Agency has included an exception to the prohibition, 
where placement of liquids into the CAMU ``facilitates the remedy 
selected for the waste'' (Secs. 264.552(a)(i), (ii), (iii)).
    EPA believes this proposed approach for allowing placement of 
liquids in CAMUs is appropriate, because of the decision process for 
CAMU designation, which includes, among other factors, an oversight 
agency's assessment of the need for treatment of CAMU wastes.
1. Sec. 264.314(f) Demonstration
    In today's proposal, for liquids that are not hazardous waste, 
there is a prohibition against placement in a CAMU unless the placement 
facilitates the remedy selected for the waste or, as in Sec. 264.314, a 
demonstration is made pursuant to Sec. 264.314(f). Under this 
demonstration, the Regional Administrator must determine that the only 
reasonable alternative is placement in a landfill or unlined surface 
impoundment which contains (or may be reasonably anticipated to 
contain) hazardous waste, and that placement in the owner or operator's 
landfill will not present a risk of contamination of any underground 
source of drinking water (as that term is defined in Sec. 144.3). In 
general, EPA believes that this demonstration under Sec. 264.314(f) for 
hazardous waste landfills is also appropriate to apply to CAMUs; EPA 
does not anticipate circumstances that differ for CAMUs that would 
prevent the appropriate use of this provision.

F. Amendments to Design Standards for CAMUs

    In today's notice, EPA is proposing amendments in three areas to 
the existing design standards for CAMUs. For CAMUs in which wastes will 
remain in place after closure, these changes would: establish a minimum 
liner requirement for new, replacement or laterally expanded CAMUs; 
provide minimum national design criteria for CAMU caps; and, require 
notification for releases to groundwater from the CAMU and corrective 
action of such releases as necessary to protect human health and the 
environment. EPA believes that the greater specificity in today's 
proposed amendments on technical standards for CAMU liners and caps is 
reasonable and consistent to the extent appropriate with the approaches 
undertaken in the Subtitle C and D programs for long-term disposal of 
wastes. EPA believes that the groundwater monitoring provisions 
proposed today would make clearer the Agency's expectation that 
releases from CAMUs will be addressed as necessary to protect human 
health and the environment. EPA also believes, that to maintain the 
CAMU rule's ability to address disincentives to cleanup, today's 
proposed amendments in these areas must allow for alternatives to the 
standards to reflect the unique and site-specific circumstances 
associated with long-term disposal of cleanup wastes; today's proposed 
amendments were designed with that objective in mind. The proposed 
amendments are described in the following sections.
1. Liner Standard (Sec. 264.552(e)(3))
    In the existing CAMU rule, the fourth general decision criterion at 
Sec. 264.552(c)(4) specifies that ``areas within the CAMU, where wastes 
remain in place after closure of the CAMU, shall be managed and 
contained so as to minimize future releases, to the extent 
practicable.'' This standard, in conjunction with the closure and post-
closure provisions in Sec. 264.552(e), is intended to ensure that long-
term controls adequate to protect human health and the environment are 
imposed for any wastes remaining within the CAMU. In practice, pursuant 
to this standard, the Agency has made site-specific determinations that 
liners should be employed at most new, replacement, or laterally 
expanded CAMUs to minimize releases and control leachate (see the CAMU 
Site Background Document in the docket for today's rule). The 1993 
rule, however, does not have any explicit minimum liner requirement for 
CAMUs where waste will remain in place after closure. Today's 
amendments address the concern that the existing standards are not 
sufficiently concrete to ensure that a liner will be used, as 
appropriate, at all new, replacement, or laterally expanded CAMU units.
    As stated above, the majority of existing CAMUs with new, 
replacement, or laterally expanded units have been built with liners; 
where liners were not used, there were legitimate reasons, related to 
the cleanup, for that decision. The general practice of using liners in 
these situations reflects good engineering standards and a preventive 
approach that, along with other requirements imposed by the Regional

[[Page 51092]]

Administrator, provides long-term protection of human health and the 
environment when wastes are left in place. EPA recognizes the concern 
that the current standard is open-ended and might benefit from 
increased detail to better ensure that liners will be used where 
appropriate. EPA believes that, consistent with the Subtitle C program 
for as-generated hazardous waste and the Subtitle D program, a liner 
requirement and greater specificity on technical standards is 
reasonable for new, replacement, or laterally expanded CAMUs where 
waste will remain in place after closure. EPA, however, also believes 
that any such requirement must allow sufficient flexibility for 
alternatives to the standard, to reflect the unique and site-specific 
circumstances associated with locating units at cleanup sites. As 
described above in the section titled, Why is EPA Proposing Today's 
Amendments?, the Agency crafted today's standard with this goal in 
mind.
    EPA is proposing a minimum national liner standard at 
Sec. 264.552(e)(3)(i) that is modeled on the uniform design standard at 
258.40(a)(2) for use in the municipal solid waste (Subtitle D) program 
(see Solid Waste Disposal Facility Criteria, 56 FR 50978, October 9, 
1991, and supporting materials (docket # F-91-CMLF-FFFFF).
    The proposed liner requirement is only for application at CAMUs 
that are new, replacement, or laterally expanded units. This approach, 
which recognizes the practical issues of retrofitting existing units 
(which, if required, could work as a disincentive to cleanup), is 
consistent with that taken by Congress in RCRA for hazardous waste 
landfills for as-generated wastes (under Sec. 3004(o)). ``New, 
replacement, or laterally expanded'' is meant to have the same meaning 
in today's proposal as in the Sec. 3004(o) context. Guidance on the 
interpretation of ``new, replacement or laterally expanded'' units 
already exists and has been placed in the docket for today's proposal.
    Under today's proposal, unless the Regional Administrator approves 
an alternate standard (as discussed below), the rule would require new, 
replacement, or laterally expanded CAMUs to be constructed with a 
composite liner and a leachate collection system that is designed and 
constructed to maintain less than a 30-cm depth of leachate over the 
liner. The rule would require the composite liner to consist of two 
components: An upper flexible membrane liner (FML) with a minimum 
thickness of 30-mil, and a lower component consisting of at least two 
feet of compacted soil with a hydraulic conductivity of no more than 
1x10-7 cm/sec. The rule would require FML components consisting of high 
density polyethylene (HDPE) to be at least 60 mil thick and would 
require the FML component to be installed in direct and uniform contact 
with the compacted soil component. The FML and soil layer function 
together to retard the migration of contamination into the subsoil. The 
FML would provide a highly impermeable layer to maximize leachate 
collection and removal; the compacted clay liner would adsorb, 
attenuate and retard contamination in the event of FML liner failure. 
The leachate collection system would remove liquids from the CAMU, 
which reduces hydraulic pressure and the potential for migration of 
leachate through the base of the CAMU.
    EPA believes that the proposed standard would be an appropriate 
national minimum standard for new, replacement, or laterally expanded 
CAMUs, because it would be protective for a wide variety of waste and 
site conditions. In fact, when liners have been installed at new, 
replacement or expanded CAMUs under the existing regulations, a 
Subtitle D-type liner is consistent with what has generally been 
imposed by regulatory agencies in the absence of specific requirements. 
The Subtitle D standards also have sufficiently detailed liner and 
leachate collection provisions to be easily implemented, with the 
advantage of already being in wide use. In crafting today's rule, the 
Agency thought it made sense to model the amendments on existing 
standards where appropriate and available, to avoid the implementation 
issues that inevitably arise with the promulgation of a novel standard. 
The other obvious model for a CAMU minimum requirement would be the 
Subtitle C Part 264 liner requirements for new, replacement, or 
laterally expanded land disposal units. The Subtitle C standard 
requires, among other features, two synthetic liners, an underlying 
three foot thick clay layer and two leachate collection systems (see 
Sec. 264.301). This option, however, was rejected since it was these 
standards that, in part, created the disincentive to cleanup meant to 
be addressed by the CAMU rule.
    It is important to note that the proposed rule would establish 
``minimum'' national standards, which would allow for the approval of 
additional features, where appropriate, to ensure protection of human 
health and the environment. For example, at some existing CAMUs (see 
the CAMU Site Background Document, available in today's docket), 
additional groundwater protection features, such as use of slurry walls 
or engineered inward hydraulic gradients, and features that meet the 
requirements of the Subtitle C liner standards, have been required.
    a. Alternate Liner Designs (Sec. 264.552(e)(3)(ii)). Both the 
Subtitle C as-generated hazardous waste and Subtitle D regulations 
contain provisions for the approval of site-specific alternatives to 
the minimum liner standard under specific circumstances. These 
provisions provide balance between specific minimum national standards 
and the need to accommodate site-specific conditions. EPA believes 
that, in the context of establishing CAMUs, there are additional 
reasons to provide flexibility for alternate designs. Flexibility will 
help to counter any incentives to leave wastes in place created by 
minimum standards that might not be appropriate in a given 
circumstance, and will allow for more economical and innovative designs 
that will preserve cleanup resources while still being protective of 
human health and the environment. In today's rule, EPA is proposing two 
provisions that would allow the Regional Administrator to approve 
alternate liner designs.
    The first provision, proposed at Sec. 264.552(e)(3)(ii)(A), is 
patterned on the statutory alternate liner standard for Subtitle C 
units (at RCRA Sec. 3004(o)(2)), which is written into the Subtitle C 
program for hazardous waste landfills at Sec. 264.301(d). Under this 
provision, the Regional Administrator must find that ``alternate design 
and operating practices, together with location characteristics, will 
prevent the migration of any hazardous constituents into the ground 
water or surface water at least as effectively as the [standard liner 
and leachate collection system].'' This provision would allow for 
alternative liner designs of equal technical performance, when 
considered in conjunction with location characteristics, such as cases 
where the CAMU is located in an area where it is unlikely that releases 
would reach groundwater. EPA's underlying premise in proposing this 
alternate liner provision for CAMUs is that designs of equal or 
superior performance should be acceptable, and that the alternate 
standard for Subtitle C liners, with its express allowance for 
consideration of location characteristics, is equally appropriate for 
CAMUs. Location characteristics are an essential consideration in 
choosing cleanup remedies, including those involving CAMUs. EPA expects 
this provision would provide flexibility for designs that take into 
account local factors,

[[Page 51093]]

including state design protocols and availability of construction 
materials.
    The second alternate liner provision, proposed at 
Sec. 264.552(e)(3)(ii)(B), would provide for flexibility in liner 
design for CAMUs that are established in significantly contaminated 
areas. With this provision, the Regional Administrator could specify 
alternate designs if the CAMU is to be established in an area with 
existing significant levels of contamination, and the Regional 
Administrator finds that ``an alternative design, including a design 
that does not include a liner, would prevent migration from the unit 
that would exceed long-term remedial goals.'' For example, at some 
highly contaminated facilities where contamination is pervasive 
throughout the subsurface, and where either groundwater pump and treat 
is predicted to be necessary for hundreds of years or high-level 
subsurface soil contamination is expected to remain as a potential 
source of groundwater contamination, a liner to reduce migration of 
constituents from the CAMU into the highly contaminated subsurface 
would not add a meaningful additional level of protection and would not 
be the best use of remediation resources. Under this alternate 
standard, potential migration from the CAMU, even if it is unlined, 
must be consistent with the remedial goals at the site (for example, 
not cause cleanup goals to be exceeded at locations where potential 
receptors would be located). This approach is consistent in principle 
with site-specific decisions sometimes made in the context of overall 
remedies, such as where in-situ contamination is determined to require 
a cap, but not excavation. For example, one existing CAMU, located at a 
decades-old lead recycling facility, uses a CAMU for permanent disposal 
of soils containing lead debris. The CAMU does not use a liner, due to 
the high levels of existing contamination in the soils underlying the 
CAMU and limited leaching potential of the soils, and it has a 
perimeter slurry wall and groundwater extraction system that maintains 
an inward hydraulic gradient within the slurry wall. EPA believes it 
was reasonable to conclude, at this site, that a CAMU liner would not 
add a meaningful additional level of protection to groundwater, given 
the nature of the waste, engineering associated with the unit, and the 
pervasive contamination underlying the unit.
    EPA expects that this alternate provision would also be used when 
land treatment is conducted in a CAMU. Land treatment is generally not 
undertaken with the use of liners, because land treatment typically 
requires that rainwater or introduced liquids percolate through the 
waste and existing soil column. EPA expects that many land treatment 
CAMUs would be existing units, which would not be subject to the 
minimum liner standard proposed today. However, EPA expects that those 
that are not existing units would typically be located in areas with 
significant contamination, such that this alternate liner provision 
could be potentially available and provide for a CAMU land treatment 
unit without a liner. EPA seeks comment on whether EPA's assumption 
that land treatment in CAMUs is appropriately accommodated in today's 
proposal is correct, and if not, what changes would be necessary to do 
so.
    As discussed above, in creating the minimum standard for liners in 
today's proposal, the Agency sought to provide a generally applicable 
minimum standard that makes sense in most circumstances in the context 
of cleanup, and to provide for site-specific flexibility in situations 
where that standard might not make sense (e.g., where the standard 
might create a disincentive to cleanup). Today's proposed standard also 
would stand as a minimum, and additional requirements, such as further 
reductions in liner permeability, could be required, as appropriate, at 
some sites. The Agency requests comment on whether the standard 
promulgated today satisfies these objectives. In particular, the Agency 
seeks comment on whether there are situations where these standards 
might act to discourage cleanup, and, if so, how the standards might be 
modified to address those situations.
    The Agency also specifically requests comment on the two provisions 
for alternate liner standards. Do they sufficiently capture the 
situations where the general minimum standard might not be appropriate? 
Are there other ways to achieve similar results? For example, in lieu 
of proposed Sec. 264.552(e)(3)(i), the Agency considered using the 
alternative liner design provision for Subtitle D solid waste landfills 
at 258.40(a)(1) \9\. As discussed below, the Agency is not proposing 
this approach because it is keyed to a list of constituents that would 
not be representative of those found at cleanup sites. However, it 
might be possible to use the general approach of this provision to 
develop an approach for CAMUs. Under the Subtitle D site-specific liner 
standard, a demonstration must be made that an alternate design would 
contain hazardous constituents such that constituent concentrations 
(those listed in Table I of Subpart D, Part 258) will not be exceeded 
in the uppermost aquifer at a relevant point of compliance, not to 
exceed 150 meters from the waste management unit boundary. These 
constituents represent those that are typically found in Subtitle D 
landfill leachate. EPA believes that this list would not be 
representative of the broader array of constituents found in CAMU-
eligible wastes from diverse industries and thus would not be 
appropriate for use as a CAMU standard. EPA recognizes, however, that 
at individual cleanup sites, the regulator typically identifies site-
specific constituents of concern from a groundwater perspective. EPA 
also recognizes that site-specific points of compliance in groundwater 
are typically established for these constituents. Therefore, EPA 
believes that the same basic approach used in the alternate liner 
standard for Subtitle D landfills, modified to incorporate site-
specific data, might be used at CAMUs as a means of setting minimum 
alternate liner standards. EPA specifically requests comments on the 
potential adoption of an alternate liner provision that is derived from 
the Subtitle D alternate liner provision so that relevant site-specific 
constituents are contained at a relevant point of compliance. The 
Agency is also requesting comment on an alternative that would allow 
alternative requirements if liner design and operating practices along 
with site characteristics would prevent migration that meets long-term 
remediation goals.
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    \9\ In the August 20, 1999 proposed Standards for the Management 
of Cement Kiln Dust (64 FR 45632), EPA proposed an alternate liner 
provision (at proposed Sec. 259.30(c)) modeled on the 
Sec. 258.40(a)(1) standard.
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2. Cap Standard (Sec. 264.552(e)(6)(iv))
    In today's notice, EPA is proposing to add detail to the existing 
requirement for capping of CAMUs closed with waste in place. The 
existing regulation, at Sec. 264.552(e)(4)(ii)(B), requires capping of 
CAMUs undergoing closure with wastes remaining in place, but does not 
specify standards for such caps. EPA recognizes the concern that the 
current standard is open-ended, and the current standard might benefit 
from increased detail to better ensure that appropriate cap designs are 
required. EPA believes that greater specificity on technical standards 
for CAMU caps is reasonable and consistent with the approaches 
undertaken in the Subtitle C and D programs for long-term disposal of 
wastes. EPA, however, also believes that any such requirement must 
allow

[[Page 51094]]

for alternatives to the standard to reflect the unique and site-
specific circumstances associated with long-term disposal of CAMU-
eligible wastes. As described in the introductory section to today's 
proposed design standards, the Agency developed the alternative 
standard with this goal in mind.
    EPA is proposing at Sec. 264.552(e)(6)(iv) to use the existing 
hazardous waste landfill cap standards at Sec. 264.310(a) as 
performance criteria for CAMU caps. Under this proposed approach, the 
cap must be designed and constructed to meet the following performance 
criteria at final closure of the CAMU, unless an alternate cap design 
(discussed below) is used: (1) Provide long-term minimization of 
migration of liquids through the closed unit; (2) function with minimum 
maintenance; (3) promote drainage and minimize erosion or abrasion of 
the cover; (4) accommodate settling and subsidence so that the cover's 
integrity is maintained; and (5) have a permeability less than or equal 
to the permeability of any bottom liner system or natural subsoils 
present. EPA believes that these are common-sense standards that are 
consistent with basic engineering principles and with cap requirements 
that have been established for existing CAMUs. These standards are also 
well understood from their application in the field.
    Although today's proposed performance criteria are taken from the 
Subtitle C landfill standards, use of this standard would not generally 
be expected to result in caps that look like Subtitle C caps 
constructed on a new Subtitle C unit. This is because the permeability 
of the cap under either scenario is set in relation to the liner--the 
cap must be of equal or lower permeability than the liner. The minimum 
national design standards for liners proposed in today's rule are for a 
composite liner and leachate collection system, and apply only for new, 
replacement, and laterally expanding units. Most CAMUs to date have 
been established at existing units, in which the liner standard would 
not apply. Existing units vary in their design and in the consequent 
permeability of their bottom layer; as a result, a cap designed in 
relation to the liner will not always look like a full Subtitle C cap.
    The proposed minimum permeability standard for a cap can be met in 
a variety of ways, including with systems that are designed to use the 
water uptake capability of vegetation. As a result, it is not always 
necessary for the cap to match the construction materials used in the 
liner. Non-standard caps, such as those that use vegetation, should be 
carefully designed and reviewed by the oversight agencies to satisfy 
the design criteria. For more details on construction of alternate cap 
designs, that are germane to Subtitle D or C-type caps, see the 
preamble discussion in the July 1997 revised standards for municipal 
solid waste landfills (62 FR 4708, 40710 (July 29, 1997)).
    a. Alternate Cap Design (Sec. 264.552(e)(6)(iv)(B)). Two existing 
CAMUs have been designed with caps that allow controlled infiltration 
of rainwater through the cap into the waste to promote biodegradation 
of the wastes in the CAMU. The design of such caps take into 
consideration such factors as constituent concentrations, treatment 
levels, and time-frames for biodegradation (see the CAMU Site 
Background Document in the docket for today's rule). EPA believes that 
such caps can promote greater long-term protection in the event of 
failure of the unit, by facilitating the continued treatment of waste 
after disposal. Such designs, however, would not meet today's proposed 
cap performance criteria to ``provide long-term minimization of 
migration of liquids through the closed unit'' and ``have a 
permeability less than or equal to the permeability of any bottom liner 
system or natural subsoils present.'' Therefore, in today's notice, EPA 
is proposing an alternate cap standard at Sec. 264.552(e)(6)(iv)(B) 
which would allow for alternate designs that facilitate treatment or 
the performance of the cap. EPA believes that these standards would 
allow for cap designs consistent with the above cited examples. EPA 
also believes that any such design warrants careful review to ensure 
that it is protective over the long-term and will meet cleanup goals 
within a reasonable time frame.
    EPA is aware of a CAMU under discussion for approval that would use 
an existing biological land treatment unit to treat organically 
contaminated wastes to below health-based levels. Treatment would be 
complete at this unit when concentrations of constituents are at or 
below health-based levels and the unit would be closed without a cap or 
groundwater monitoring. EPA anticipates that other treatment 
technologies, such as in situ methods, could effectively achieve the 
same result of achieving treatment levels that are below health-based 
levels applicable to the site. Under today's proposed amendments to the 
cap standards, such CAMUs would be subject to the requirements for a 
cap at the time of closure. However, the Agency is concerned that this 
approach would not generally make sense in these cases where wastes in 
the unit are treated to below health-based levels, just as a cap 
requirement would not make sense when wastes derived from cleanup are 
placed in CAMUs with constituent concentrations at or below protective 
health based levels (see today's proposed provision at Sec. 264.552(g) 
for such wastes that meet or exceed health based levels at the time 
they are placed in CAMUs, discussed below in the section titled: 
Constituents at or Below Remedial Levels). EPA therefore is seeking 
comment on a modification to today's proposed cap standard at 
Sec. 264.552(e)(6)(iv)(A) that would potentially address this concern. 
This modification would insert the phrase ``with constituent 
concentrations above remedial levels or goals applicable to the site'' 
as follows: ``At final closure of the CAMU, for areas in which wastes 
will remain after closure of the CAMU with constituent concentrations 
above remedial levels or goals applicable to the site, the owner or 
operator must cover the CAMU with a final cover designed and 
constructed to meet the following performance criteria* * *''
    The Agency requests comment on all aspects of the proposed cap 
standard. In particular, the Agency requests comment on whether the 
provision for alternate design adequately provides for cleanup 
situations where deviation from the national minimum standard would be 
appropriate.
3. Releases to Groundwater (Sec. 264.552(e)(5))
    In today's notice, EPA is proposing a provision at 
Sec. 264.552(e)(5) for the Regional Administrator to require 
notification of releases to groundwater from the CAMU, and corrective 
action of those releases, as necessary to protect human health and the 
environment. The 1993 CAMU rule contains a provision for monitoring of 
existing releases and potential releases from waste remaining in place 
after closure. However, it does not include a provision specifically 
providing for notification to the overseeing agency and corrective 
action as necessary for releases to groundwater from CAMUs.\10\. In the 
absence of today's proposed amendment, the RA has the authority, in 
designating a CAMU (see Sec. 264.552(c)(2)), to include requirements to 
notify the Agency and cleanup any releases, as necessary, that

[[Page 51095]]

emanate from CAMUs. In addition, if the CAMU authorizing document did 
not include such requirements, the overseeing Agency would also have 
authority under its cleanup authorities (e.g., Sections 3008(h) and 
7003) to require corrective action if there were a release. The Agency 
is proposing to add these requirements to stress the importance of 
notifying the Regional Administrator of releases from CAMUs so that 
prompt action may be taken to address them, where appropriate. Having 
express corrective action requirements in (or incorporated in) the CAMU 
authorizing document itself, as opposed to relying on issuance of 
separate orders, will also accelerate the corrective action 
process.\11\
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    \10\ The preamble to the 1993 rule stated EPA's expectation that 
the final Subpart S rulemaking would address the issue of when 
groundwater remediation would be necessary. In October 1999, EPA 
issued a Federal Register notice withdrawing the majority of that 
proposal, including provisions pertaining to this issue (64 FR 
54604).
    \11\ Of course, if the CAMU incorporates a hazardous waste 
regulated unit that is undergoing closure, corrective action to 
address releases to groundwater may also be addressed under the 
closure requirements for regulated units.
---------------------------------------------------------------------------

    The proposed amendment does not change the general performance 
standard approach to groundwater monitoring for CAMUs, which does not 
explicate the details of how and when corrective action relating to 
groundwater contamination from the CAMU will be addressed at the site. 
The Agency believes that decisions about when and how to clean up 
groundwater should be made site-specifically in the broader context of 
the overall site cleanup consistent with the Agency's approaches for 
cleaning up groundwater in its remedial programs (see Corrective Action 
for Releases from Solid Waste Management Units at Hazardous Waste 
Management Facilities, Advance Notice of Proposed Rulemaking, at 61 FR 
19432, 19461 (May 1, 1996); Presumptive Response Strategy and Ex-Situ 
Treatment Technologies for Contaminated Ground Water at CERCLA Sites; 
EPA 540/R-96/023, October 1996, available in the docket for today's 
rule). Detailed specifications or performance standards to address 
groundwater and corrective action would be included (or incorporated) 
in the site permit or order, based on site-specific information and 
conditions.
    The proposed amendment requires ``notification'' as necessary to 
protect human health and the environment in the event of releases to 
groundwater from the CAMU. Monitoring and reporting (i.e., 
notification) frequencies are typically established site-specifically 
in sampling and analysis plans, and reflect conditions at the site, 
including such factors as degree of existing contamination, distance to 
nearest groundwater well, groundwater flow rates, and statistical 
sampling protocols. As with existing CAMUs, where site-specific 
groundwater monitoring is required, EPA would expect that notification 
requirements would be addressed site-specifically and the requirements 
would be incorporated into appropriate authorizing mechanisms for CAMU 
designation (e.g., in a sampling and analysis plan that is incorporated 
into the permit or order).

G. Proposed Approach to Treatment

    Treatment of hazardous waste is a critical element of the RCRA 
hazardous waste management program. Treatment of hazardous wastes that 
will be placed in ``land disposal units'' is governed by the Land 
Disposal Restrictions (LDR) program, which sets standards for reduction 
in toxicity and mobility of specific hazardous constituents. The focus 
on treatment before land disposal in the RCRA program reflects EPA's 
and Congress's recognition of the uncertainties that are associated 
with long-term containment of wastes and the potential for containment 
to fail and cause future problems.
    In developing today's proposal, EPA considered the issue of what 
level of treatment would be appropriate for CAMU-eligible wastes in the 
context of the underlying issues that the CAMU rule is intended to 
address. As EPA has described before, in implementing actual cleanups, 
it is not always straightforward, possible, or reasonable to require 
companies to excavate or remove existing cleanup wastes, especially in 
light of the costs and practical issues associated with application of 
the Subtitle C treatment and unit design requirements to the excavated 
wastes, and where often a legally available cleanup option is to leave 
wastes in place. As discussed in the May 26, 1998 final Phase IV Rule 
(63 FR 28556, 28603), part of the benefit of the treatment standards 
under Subtitle C for as-generated hazardous waste is that they create 
an incentive to generate less of the affected waste. In the remedial 
context, however, the waste is already in existence, and this 
incentive, therefore, works against the goal of cleanup, which is often 
to maximize (as appropriate) the amount of waste managed, in order to 
remove the threats it poses. In the Agency's several attempts to 
address these issues, the goal has always been to create a rule that 
promotes more aggressive cleanups, i.e., those that result in 
excavation and management, including an appropriate degree of 
treatment. EPA believes that this approach generally results in more 
permanent remedies.
    The Agency addressed this issue with its original promulgation of 
the CAMU rule, which removed the LDR and MTR requirements and replaced 
them with a site-specific flexible framework to encourage removal, 
excavation, treatment and final placement of wastes in CAMUs. In terms 
of treatment, the current CAMU rule stresses the importance of 
treatment for higher risk wastes with decision criterion 
Sec. 264.552(c)(6), which requires that the CAMU ``enable the use, when 
appropriate, of treatment technologies * * * to enhance the long-term 
effectiveness of remedial actions by reducing the toxicity, mobility, 
or volume of wastes that will remain in place after closure of the 
CAMU.''
    This provision was meant to reflect EPA's repeatedly expressed 
preference in the cleanup context for treatment of higher risk wastes, 
rather than excavation and containment of wastes without treatment 
(note that the term ``higher risk'' wastes is used in a general sense 
in this proposal to describe the Agency's policies, and does not define 
a new class of wastes). This preference results from the same concerns 
regarding the uncertainties associated with long-term containment 
described above. The most detailed description of EPA's policy on 
treatment and containment for the RCRA corrective action program can be 
found in the 1996 Advance Notice of Proposed Rulemaking, Corrective 
Action for Releases From Solid Waste Management Units at Hazardous 
Waste Management Facilities (61 FR 19432, 19448 (May 1, 1996)). EPA 
believes that CAMUs that have been approved to date reflect a 
reasonable balance between treatment and containment, and more than 
half of existing CAMUs have involved treatment of hazardous cleanup 
wastes.
    Today's proposal addresses concerns that the 1993 CAMU rule lacks 
an explicit treatment requirement, which could result in the 
implementation of CAMUs with waste that is insufficiently treated where 
treatment is warranted. Stakeholders expressed the concern that a 
treatment standard is particularly appropriate for hazardous cleanup 
wastes, which, without management in a CAMU, would be subject to the 
full LDR treatment requirements. EPA recognizes the concern that the 
current standards are open-ended, and the current standards might 
benefit from increased detail to better ensure that treatment will be 
adequately considered by EPA and authorized state implementors. EPA 
therefore believes that it is appropriate to propose an approach that 
will ensure appropriate treatment of higher-risk hazardous cleanup 
wastes that are permanently disposed in CAMUs. In the process of

[[Page 51096]]

developing today's proposal, EPA examined existing CAMUs and the type 
and level of treatment that has been required under the existing rule. 
Treatment has been used at more than 70% of existing CAMUs. EPA 
believes that these were good decisions, and designed today's proposed 
standards to accommodate these types of decisions. EPA's general 
conclusion in comparing these existing CAMU decisions to today's 
proposed amendments (see the CAMU Site Background Document in the 
docket for today's rule) is that existing CAMU remedies involving 
treatment would still require treatment under today's proposed 
requirements, and similarly, that existing remedies not involving 
treatment would also not involve treatment under today's proposed 
requirements (either because there would likely be no PHCs identified 
at the site, or because the Regional Administrator would likely have 
determined that no treatment was required based on one of the 
adjustment factors discussed below).
    EPA believes that today's proposed approach would increase the 
certainty that CAMU disposal decisions will require treatment of 
hazardous wastes where it is appropriate to do so, while retaining the 
flexibility needed to address site-specific circumstances that is 
generally exercised in EPA's remedial programs. EPA also believes that 
today's proposed treatment approach, by providing a general minimum 
national standard, will have the added benefit of providing a benchmark 
against which the public can review potential treatment decisions.
    EPA's proposed approach to treatment for hazardous cleanup wastes 
disposed in CAMUs is explained in detail in the following sections. In 
general, EPA is proposing that the treatment requirement would apply to 
wastes that are determined to contain ``principal hazardous 
constituents'' (PHCs). The proposed requirement would limit treatment 
for such waste to any principal hazardous constituents in the waste, 
rather than to the full suite of constituents under the LDR program 
that would otherwise be subject to treatment. As proposed, principal 
hazardous constituents would be the primary ``risk-drivers'' in the 
hazardous CAMU-eligible waste, and would be determined on a site-
specific basis as those constituents that pose a risk that is 
substantially higher than the cleanup levels or goals at the site. EPA 
is proposing standards that would require treatment of PHCs in the 
waste in accordance with either of two approaches: (1) National minimum 
treatment standards, adapted from the LDR Phase IV soil standards; or 
(2) factors that allow for site-specific adjustment of the minimum 
treatment levels in appropriate circumstances. Regarding the latter, in 
identifying circumstances where it might be reasonable and appropriate 
for the Regional Administrator to impose an adjusted treatment 
standard, EPA considered the Agency's long-standing preference for 
treatment of certain higher risk wastes, its experience in implementing 
remedies in the RCRA corrective action program (and, most especially, 
CAMUs that have been used to date), and its experience in implementing 
the land disposal restrictions program, which allows for variances from 
the LDR treatment standards (so long as the alternate treatment 
standard continues to minimize threats posed by land disposal).
    The Agency's goals in proposing these treatment requirements for 
principal hazardous constituents are that they should provide a 
meaningful level of treatment and be achievable, but should not be so 
onerous as to discourage cleanup. The Agency believes that the proposed 
treatment requirements satisfy these objectives.
1. Identification of ``Principal Hazardous Constituents'' (PHCs) 
(Sec. 264.552(e)(4)
    As described above, the treatment standards in today's proposed 
rule would only apply to the primary risk drivers, ``principal 
hazardous constituents'' (PHCs), in the cleanup wastes. This section of 
today's preamble discusses the approach proposed today, at 
Sec. 264.552(e)(4)(i), to identify the PHCs in hazardous CAMU-eligible 
waste that would be subject to the proposed treatment requirements. As 
described above, the 1993 CAMU rule currently requires, under 
Sec. 264.552(c)(6), that the CAMU ``enable the use, when appropriate, 
of treatment technologies * * * to enhance the long-term effectiveness 
of remedial actions by reducing the toxicity, mobility, or volume of 
wastes that will remain in place after closure of the CAMU.'' However, 
the rule does not identify a standard approach or process for 
identifying wastes or constituents that should be subject to treatment. 
The general practice in addressing contamination at cleanup sites, 
including those where CAMUs will be used, is to identify the presence 
and concentrations of hazardous constituents in cleanup wastes and to 
use this characterization information in conjunction with risk 
estimates and site-specific factors to make remedial decisions, 
including whether and to what extent to treat waste. For the reasons 
outlined in the previous section, EPA is proposing to add greater 
specificity to identification of constituents subject to treatment 
requirements.
    a. Constituents Subject to PHC Analysis (Sec. 264.552(e)(4)(ii)). 
Since one of the primary benefits of the CAMU rule is to provide 
appropriate relief from RCRA's LDR provisions, it is not EPA's 
intention with today's proposed amendments to require treatment of more 
constituents than would be required under the LDR program. In other 
words, EPA does not intend to promulgate a treatment requirement for 
solid wastes that would not, absent the CAMU rule, be subject to LDRs 
if land disposed. Therefore, proposed Sec. 264.552(e)(4)(ii) would 
require that in designating PHCs in hazardous CAMU-eligible waste, the 
Regional Administrator must only consider those constituents that would 
be subject to the LDR treatment requirements if the waste were placed 
in a land-based unit other than a CAMU. Specifically, the list of 
constituents would be as follows: for listed wastes (e.g., sludges), 
``regulated hazardous constituents'' (see Sec. 268.40, Table 
``Treatment Standards for Hazardous Wastes''); for characteristic 
wastes, all ``underlying hazardous constituents'' (see Sec. 268.40(e), 
Sec. 268.2(c)); for soil, ``constituents subject to treatment'' (see 
Sec. 268.49(d)).
    EPA expects that, under today's proposal, program implementors 
would identify PHCs as part of the overall site remedial process. 
Typically, during the site and waste characterization process and 
during the assessment of remedial alternatives, owner/operators and 
oversight agencies identify which wastes are hazardous, which wastes 
warrant removal, and which constituents will be used to set site 
cleanup levels. This process results in the identification of the 
``risk-drivers'' at a site. EPA fully expects that this typical 
characterization and analysis process, leading up to the decision to 
consider the use of a CAMU, will reliably identify PHCs. Therefore, EPA 
does not believe today's proposal would require greater 
characterization than what already exists in well-designed cleanups. 
EPA seeks comment on this conclusion.
    b. Proposed PHC Standard (Sec. 264.552(e)(4)(i)). EPA is proposing 
the following standard at Sec. 264.552(e)(4)(i) for the identification 
of principal hazardous constituents: ``Principal hazardous constituents 
are those constituents that the Regional Administrator determines pose 
a risk

[[Page 51097]]

that is substantially higher than the cleanup levels or goals at the 
site.'' EPA is proposing that: ``In general, the Regional Administrator 
will designate as principal hazardous constituents: (1) Carcinogens 
that pose a potential direct risk from ingestion or inhalation at the 
site at or above 10-\3\; and, (2) Non-carcinogens that pose 
a potential direct risk from ingestion or inhalation at the site an 
order of magnitude or greater over their reference dose. (3) The 
Regional Administrator will also designate constituents as principal 
hazardous constituents, where appropriate, based on risks posed by the 
potential migration of constituents in wastes to groundwater, 
considering such factors as constituent concentrations, and fate and 
transport characteristics under site conditions. (4) The Regional 
Administrator may also designate other constituents as principal 
hazardous constituents that the Regional Administrator determines pose 
a risk to human health and the environment substantially higher than 
the cleanup levels or goals at the site.'' These provisions are 
discussed in detail below.
    EPA believes that this is a reasonable standard for identifying 
high risk wastes, and is generally consistent with EPA's ``principal 
threats'' approach (use of the principal threats approach in the RCRA 
corrective action program is discussed below in this section) and EPA's 
emphasis on treatment of higher risk wastes. In making any 
determination of whether PHCs are present in CAMU-eligible waste, 
treatment of the waste could not be used to avoid a PHC determination 
that would otherwise be made (e.g., by conducting such treatment prior 
to examining constituent concentrations in the waste to determine 
PHCs).
    In order to identify higher risk constituents in hazardous CAMU-
eligible waste, the proposed PHC approach compares risks posed by the 
constituents in the waste to the cleanup levels or goals established at 
the site--i.e., levels of contamination that the oversight agency 
believes are protective of human health and the environment. In cases 
where PHCs are being designated, the CAMU will generally be a permanent 
disposal unit located at the site (see discussion of non-permanent 
CAMUs below, in the section titled ``Treatment and/or Storage Only 
CAMUs''); it is therefore appropriate to consider risks from wastes 
disposed of in the CAMU unit in the context of the cleanup standards 
set for the site as a whole. By considering disposal risks in the site-
wide context, the proposed approach to designating PHCs would make use 
of the process typically used by EPA or the authorized state for 
establishing cleanup levels or goals at a site. Cleanup levels or goals 
typically take into account such factors as reasonably anticipated land 
use at the facility (e.g., residential, industrial or agricultural) and 
exposure pathways of concern. At some sites, standard tables are used 
to determine protective cleanup levels; at others, risk assessment 
procedures are used to determine risks that are more tailored to the 
site. In cases where CAMUs are under consideration prior to final 
determination of tailored site-specific cleanup standards, EPA 
anticipates that generally the Regional Administrator would, as 
appropriate, use standard tables as a basis for determining PHCs. EPA 
seeks comment on other approaches that could be used for designating 
PHCs in circumstances where final determination of tailored site-
specific standards has not been made.
    c. Approach to Identifying PHCs. EPA is proposing a general 
approach at Sec. 264.552(e)(4)(i) for determining which constituents 
``pose a risk to human health and the environment substantially higher 
than the cleanup levels or goals at the site'' and should therefore be 
designated PHCs. First, EPA is proposing that, ``In general, the 
Regional Administrator will designate as principal hazardous 
constituents: (1) Carcinogens that pose a potential direct risk from 
ingestion or inhalation at the site at or above 10-\3\; and, 
(2) non-carcinogens that pose a potential direct risk from ingestion or 
inhalation at the site an order of magnitude or greater over their 
reference dose.'' EPA believes that following this general approach in 
the rule would typically result in identification of constituents with 
risks that are ``substantially higher'' and thereby would screen out 
constituents posing lower risks, and portions of waste with low 
concentrations of higher risk constituents. Because there may be 
situations where using this approach would be inappropriate (see 
discussion below), EPA is not proposing that constituents meeting this 
description be identified as PHCs in all cases. This proposed rule 
would establish a general approach for how PHCs would be designated; as 
a result, in instances where the Regional Administrator decides not to 
identify constituents that would otherwise be identified as PHCs by 
using this approach, EPA would expect the Regional Administrator to 
explain that decision.
    This general approach singles out risks to humans from ingestion 
and inhalation of constituents. The Agency believes it is appropriate 
to limit the circumstances where the rule identifies a specific risk 
level that would generally represent a higher level of risk to 
inhalation and ingestion, due to the greater variability and 
uncertainties associated with establishing risks via other routes of 
exposure. EPA and most states have ``look-up'' tables for soil 
ingestion that are commonly used in conducting cleanups (the docket for 
today's rule contains examples; note that the standard 
10-\6\ values can be extrapolated to calculate 
concentrations at 10-\3\ levels); EPA expects that these 
tables would be used in PHC determinations (e.g., by extrapolating to 
10-\3\ levels from the standard 10-\6\ values). 
EPA also recognizes that such levels are sometimes also derived site-
specifically during the cleanup process, and would be appropriate for 
making PHC determinations (again, by extrapolation). EPA anticipates 
that numbers derived for potential ingestion of soil will generally 
serve to identify PHCs. Inhalation numbers are less often the basis for 
setting cleanup goals, and thus, because PHCs are determined with 
reference to cleanup goals, EPA anticipates that numbers derived from 
potential inhalation of contaminants will determine PHCs in a more 
limited number of cases.
    In assessing whether PHCs are present in cleanup wastes, EPA 
expects that the concentrations present in the wastes would be compared 
to cleanup levels or goals that assume that an individual is directly 
exposed to the constituents in the waste; i.e., this comparison would 
not account for any engineering controls associated with management of 
the waste. This comparison would assume direct exposure assumptions, 
consistent with site use as reflected by the site cleanup standards. As 
described above, EPA and most states have look-up tables for cleanup 
levels based on direct ingestion or direct contact with soils. Direct 
exposure in the case of inhalation refers to the location where an 
individual would be exposed under reasonable exposure assumptions (this 
is consistent with how inhalation exposure is typically assessed in 
cleanup programs). The comparison of levels in the waste to site levels 
or goals would assume fate and transport of constituents only for 
assessing the potential migration of constituents from waste into 
groundwater or air, for the purpose of determining the risk posed by 
direct exposure to the groundwater, or by inhalation of air at points 
where receptors are located.
    EPA expects that the assumption of direct exposure would be 
maintained for the PHC determination, despite the

[[Page 51098]]

fact that CAMUs will be designed such that the wastes subject to 
disposal will not be available for direct exposure when the CAMU is 
complete because of engineering and/or institutional controls. As 
explained more fully above, the intent of this approach is to protect 
against potential direct exposure to higher risk constituents in the 
event of failure of the long-term disposal unit.
    EPA believes that today's proposed approach for identifying 
constituents subject to the proposed treatment standard should be 
readily implementable and provides a reasonable national minimum 
standard. The approach is designed to be implemented within the context 
of existing remedial programs and decision making. EPA seeks comment on 
this conclusion.
    d. Identifying Carcinogenic PHCs Posing a Risk via Inhalation or 
Ingestion. The Agency generally sets site-specific risk goals for final 
cleanup of carcinogenic constituents within the risk range of 
10-\4\ to 10-\6\, with 10-\6\ being 
the point of departure for establishing carcinogenic risk levels of 
concern (e.g., see Corrective Action ANPR, at 61 FR 19450). Therefore, 
EPA is proposing that carcinogenic constituents in CAMU-eligible waste 
at concentrations that pose potential risks at or above the 
10-\3\ level would generally be presumed to pose risks 
``substantially higher than the cleanup levels or goals at the site,'' 
and would therefore typically be defined as principal hazardous 
constituents. In the rare cases where the final cleanup goal for the 
site falls at the upper end of the risk range (e.g., at 
10-\4\), EPA believes that it would generally be appropriate 
for concentrations in CAMU-eligible waste at or above the 
10-\3\ level to still define principal hazardous 
constituents, because of the high level of risk posed at concentrations 
higher than the 10-\3\ level.
    As discussed above, cleanup levels for sites can be set site-
specifically or can be obtained from standard tables (e.g., by 
extrapolation of the standard 10-\6\ values). There may be 
situations where concentrations in the CAMU wastes are greater than, 
but near the 10-\3\ potential risk level. In such cases, the 
Regional Administrator could look closely at such wastes in light of 
the assumptions that underlie the 10-\3\ determination 
(e.g., their chemical characteristics and site conditions) prior to 
determining whether they were principal hazardous constituents. For 
example, if a constituent posed risks close to a 10-\3\ 
level, based on conservative default assumptions (e.g, promulgated 
state default tables or generic assumptions used to determine 
bioavailability), and the underlying assumptions are not appropriate or 
applicable at the site in question, the Regional Administrator could 
apply more appropriate site-specific assumptions to determine whether 
the constituents should be designated as principal hazardous 
constituents.
    The proposed rule's general approach to identifying carcinogenic 
principal hazardous constituents in CAMU-eligible wastes is generally 
consistent with the ``principal threats'' approach used by the 
Superfund and RCRA corrective action programs. The principal threats 
approach uses a 10-\3\ risk level for carcinogens as one 
possible benchmark for identifying which wastes should generally be 
designated as ``principal threat'' source material. More detail on the 
principal threats approach can be found below, in the treatment section 
of today's preamble, and in Sec. 300.430(a)(1)(iii)(A) and 
Sec. 430(f)(1)(ii)(E) (the National Contingency Plan). See also, A 
Guide to Principal Threats and Low Level Threat Wastes, OSWER Directive 
9380.3-06FS, November 1991; Corrective Action for Releases From Solid 
Waste Management Units at Hazardous Waste Management Facilities, 
Advance Notice of Proposed Rulemaking, 61 FR 19432, 19448, (May 
1,1996); Rules of Thumb for Superfund Remedy Selection, OSWER Directive 
9355.0-69, August 1997. EPA requests comment on its proposed approach 
to identifying carcinogenic principal hazardous constituents.
    e. Identifying Non-Carcinogenic PHCs Posing a Risk via Inhalation 
or Ingestion. For non-carcinogens, the Agency generally sets cleanup 
goals for inhalation or ingestion not to exceed a hazard quotient of 
one (for individual non-carcinogens). The hazard quotient is defined as 
the estimated site-specific exposure (dose) over a specified period 
divided by the reference dose for that substance derived for a similar 
exposure period. A reference dose is an estimate of a daily exposure to 
the general population of humans (including sensitive subpopulations) 
that is likely to be without an appreciable risk of adverse effects 
during a lifetime. Reference doses typically incorporate safety factors 
(generally ranging from 10-1000) that address extrapolation of effects 
from animal studies to humans and other sources of variability. Hazard 
quotients are used as a measure of unacceptable exposure to non-
carcinogens that produce toxic endpoints other than cancer. The hazard 
quotient is a comparison of a projected dose to a threshold dose above 
which an adverse effect is anticipated; the magnitude of an adverse 
effect is not always related directly to the magnitude of the hazard 
quotient. While a hazard quotient of one for any single constituent is 
generally considered acceptable, a quotient of greater than one may be 
cause for concern. The Agency's Integrated Risk Information System 
(IRIS) database has a more detailed description of reference doses and 
hazard quotients (see www.epa.gov/IRIS). Therefore, EPA believes that 
it is appropriate, as a general approach, to propose that constituent 
concentrations in CAMU-eligible waste that are at 10 times the hazard 
quotient or greater would pose risks substantially higher than the 
cleanup levels or goals at the site, and would typically define 
principal hazardous constituents. EPA requests comment on its proposed 
approach to identifying non-carcinogenic principal hazardous 
constituents.
    f. Waste to Groundwater Pathway. Today's proposed rule also states, 
at Sec. 264.552(e)(4)(i)(B), that ``the Regional Administrator will 
also designate principal hazardous constituents, where appropriate, 
based on risks posed by the potential migration of constituents in 
wastes to groundwater, considering such factors as constituent 
concentrations, and fate and transport characteristics under site 
conditions.'' These site-specific factors would include those that 
would potentially affect migration of constituents from waste in a CAMU 
into groundwater, such as location of the CAMU, nature of the waste and 
constituents (e.g., mobility), how the waste will be managed (e.g., the 
type of unit that will be used and potential rates of liquid 
percolation into and out of the unit), factors that affect transport of 
constituents to groundwater, and beneficial use of groundwater. As a 
general principle, in situations where cleanup is being conducted at 
least in part because constituents in soil or waste pose a significant 
potential threat through the groundwater pathway (e.g., based on fate 
and transport modeling to potential receptors), and the cleanup waste 
is excavated for disposal in a CAMU, the Regional Administrator would 
be expected to strongly consider whether to designate such constituents 
as PHCs if they are not otherwise designated.
    This approach to designating PHCs based on risks from the waste to 
groundwater pathway differs from the approach taken for inhalation and 
ingestion in that it does not specify a generally appropriate risk 
level that would typically define PHCs and it allows for consideration 
of additional

[[Page 51099]]

circumstances that potentially affect exposure. This is because, given 
the highly site-specific nature of the waste to groundwater pathway, 
EPA believes that it is not appropriate to propose a standard method or 
risk level for identifying PHCs based on this pathway. The migration of 
constituents from soil or wastes to groundwater depends on a large 
number of factors; as a result, the assessment of this pathway tends to 
be highly dependent on site-specific factors, and involves more 
underlying assumptions, than the assessment of risks from direct 
ingestion or inhalation. As a result of this site-specific complexity, 
and number of compounded underlying assumptions, standard default 
tables designed for cleanup that have with soil cleanup numbers for the 
soil to groundwater pathway tend to have very conservative default 
concentrations that, if used for assessing potential PHCs under today's 
proposed rulemaking, would not effectively ``screen out'' the lowest 
risk constituents. These standard tables typically recognize that the 
default levels can be overly conservative when applied at individual 
sites by also providing methods or options for such numbers to be 
developed through site-specific modeling (examples of state tables and 
supporting information are included in the docket for today's 
rulemaking). Accordingly, EPA is not proposing a general standard risk 
level for identifying PHCs that pose a risk from waste to groundwater 
out of concern that such an approach would have a high likelihood of 
identifying constituents as PHCs that do not ``pose a risk to human 
health and the environment substantially higher than the cleanup levels 
or goals at the site'' (the PHC standard).
    g. Designation of Other PHCs. As described above, EPA is proposing 
an approach where the Regional Administrator designates as principal 
hazardous constituents those constituents that pose a risk to human 
health and the environment substantially higher than the cleanup levels 
or goals at the site. EPA has proposed a general approach to 
identifying principal hazardous constituents that emphasizes risks of 
toxicity and carcinogenicity to humans from direct ingestion or 
inhalation, and has highlighted the waste to groundwater pathway as 
another basis to site-specifically designate PHCs. In addition, other 
factors, such as ecological concerns, potential risks posed by dermal 
contact, or constituent mobility might, on a site-specific basis, be 
weighed in identifying principal hazardous constituents. For example, 
the Regional Administrator could determine that constituents posing 
risks less than 10-\3\ are principal hazardous constituents, 
such as a highly mobile constituent posing a 10-\4\ 
potential risk at a site where protection of groundwater is an 
especially significant concern. EPA therefore included a sentence in 
the proposed rule language, directly after the discussion of these 
specific pathways (proposed Sec. 264.552(e)(4)(i)(C), that is intended 
to counter any implication that the pathways expressly discussed in the 
rule language occupy the universe of risks that the Regional 
Administrator should consider in appropriate circumstances. In 
addition, even if constituents were not designated as PHCs, treatment 
could be required through use of proposed Sec. 264.552(i) (see the 
section below titled: Additional Requirements) or as otherwise selected 
during the remedy selection process.
    EPA requests comment on its proposed approach to addressing the 
issue of designating principal hazardous constituents other than those 
identified by the general approach.
2. Treatment Standards (Sec. 264.552(e)(4)(iii)).
    As provided in Sec. 264.552(a)(1), wastes placed in CAMUs are not 
subject to the land disposal restriction (LDR) standards. In today's 
notice, EPA is proposing CAMU-specific treatment standards at 
Sec. 264.552(e)(4)(iii) for waste determined to contain principal 
hazardous constituents (PHCs). The proposed provisions would require 
treatment of PHCs in the waste in accordance with either national 
minimum treatment standards under proposed Sec. 264.552(e)(4)(iv) or 
with alternate standards determined pursuant to proposed 
Sec. 264.552(e)(4)(v) that allow for site-specific adjustment of those 
minimum treatment levels. The proposed adjustment factors are designed 
to ensure that the national minimum standards are not required where 
they are inappropriate. The proposed adjustment factors are discussed 
in detail in the next section of this preamble.
    The treatment standard would apply only to CAMU-eligible wastes 
that will be permanently disposed in the CAMU, and does not apply to 
wastes placed in CAMUs that are used only for treatment or storage--
that is, CAMUs from which wastes will be removed at closure. Elsewhere 
in today's notice, EPA is proposing separate amendments for CAMUs that 
are used only for treatment or storage activities. Also, as discussed 
later, treatment in permanent CAMUs or in CAMUs used for treatment and/
or storage only, can occur either before or after disposal in the CAMU.
    a. National Minimum Treatment Standards. In today's notice, EPA is 
proposing to extend the treatment standard established for hazardous 
contaminated soil in the LDR Phase IV rule (Sec. 268.49; 63 FR 28556 
(May 26, 1998)) to all CAMU-eligible wastes placed in CAMUs for 
permanent disposal. Under today's proposal, the Phase IV soil standard 
would apply to non-soil hazardous wastes, including sludges and debris 
managed in CAMUs, as well as to soils containing hazardous waste. In 
addition, for both soil and non-soil CAMU-eligible wastes, treatment 
would only be required for PHCs, not for all hazardous constituents 
that would be subject to treatment under the LDR requirements if the 
wastes were managed in land-based units other than CAMUs.
    The proposed treatment standard under Sec. 264.552(e)(4)(iv) 
provides that CAMU-eligible waste that the Regional Administrator 
determines contains principal hazardous constituents must meet the 
following treatment standards (or must meet an adjusted level in 
accordance with Sec. 264.552(e)(4)(v), as discussed in the next 
section). The proposed standards for metals and non-metals would 
require 90% reduction in PHCs in the waste or media, measured in total 
constituent concentration for non-metals and for metals when a metal 
removal technology is used, or as measured in leachate from the treated 
waste, tested according to the Toxicity Characteristic Leaching 
Procedure (TCLP), for metals. The rule would require that the 90% 
reduction standard in PHCs must be met unless such treatment would 
result in a concentration less than 10 times the Universal Treatment 
Standard for that constituent; in such cases, treatment to10 times the 
Universal Treatment Standard would be required. This standard, as used 
in the Phase IV LDR regulations for contaminated soils, is commonly 
referred to as ``90% capped by 10 x UTS;'' for details on 
implementation of this standard, see the description in the Phase IV 
preamble (63 FR 28605). The Universal Treatment Standards, which are 
used in the hazardous waste land disposal treatment program, are 
identified in Sec. 268.48 Table UTS.
    EPA is also proposing, consistent with the Phase IV requirement, 
that for waste exhibiting the hazardous characteristic of ignitability, 
corrosivity or reactivity, the waste must meet the treatment standard 
for metals or non-metals that are PHCs and also be treated to

[[Page 51100]]

eliminate any such hazardous characteristic that is present. EPA is 
also proposing that principal hazardous constituents in hazardous 
debris would have to be treated in accordance with Sec. 268.45, the 
standard for debris containing hazardous waste, or by the proposed 
methods or to the proposed levels established for CAMU-eligible wastes 
containing metals or non-metals, whichever the Regional Administrator 
determines appropriate. These provisions are discussed below in more 
detail.
    As discussed in the treatment overview section of this preamble, 
the Agency's goal in designing these treatment requirements for 
principal hazardous constituents is that they should provide a 
meaningful level of treatment and be achievable, but should not be so 
onerous as to discourage remediation. The Agency also sought to ensure 
that it would not require treatment to levels significantly below those 
that are necessary to protect human health and the environment. The 
Agency is proposing to extend the Phase IV soil standards to CAMU-
eligible wastes, because, in conjunction with the proposed treatment 
adjustment factors, they satisfactorily meet these objectives. The 
Agency believes that the 90%/10xUTS standard would generally result in 
meaningful treatment, since 90% is a substantial level of constituent 
reduction or immobilization and ``10xUTS'' is a small increment over 
constituent concentrations based on a very stringent ``Best 
Demonstrated Available Technology'' (BDAT) standard. The Agency also 
believes the proposed standards are achievable by means other than 
combustion and will not discourage cleanup (see 63 FR 28556, 28603-4 
(May 26, 1998)). The Phase IV soil standards were promulgated in part 
because of the disincentive to cleanup posed by technical difficulties 
of meeting treatment standards in soils without resorting to 
combustion. The Agency demonstrated in the Phase IV rulemaking that the 
``90% reduction capped at 10xUTS'' standard is generally achievable for 
contaminated soils by methods other than combustion. In general, as 
discussed in the Phase IV rule, soil contaminated with hazardous wastes 
is more difficult to treat than hazardous wastes alone (63 FR 28556, 
28603 (May 26, 1998)). Consequently, EPA believes that the treatment 
standards proposed today will typically be achievable for non-soil 
CAMU-eligible wastes by methods other than combustion. In situations 
where this general finding regarding achievability does not hold, the 
Agency is proposing an adjustment factor (discussed more fully below) 
allowing the Regional Administrator to impose a different treatment 
standard when achieving the proposed minimum treatment standards is 
``technically impracticable.''
    As discussed above, in determining minimum treatment standards, the 
Agency, in addition to other goals, sought to ensure that it would not 
require treatment significantly below levels that are necessary to 
protect human health and the environment. EPA therefore is proposing a 
factor to allow the Regional Administrator to adjust the standard 
``where the levels or methods [established using the proposed treatment 
standard] would result in concentrations of hazardous constituents that 
are significantly above or below cleanup standards applicable to the 
site.'' This adjustment factor, along with other adjustment factors 
that are not directly tied to technical issues associated with the 
proposed minimum standards, are discussed in more detail below.
    The Agency seeks comment, in general, on today's proposed minimum 
treatment standard for wastes determined to contain PHCs. In 
particular, the Agency seeks comment on the conclusion that today's 
standard will typically be achievable for non-soils managed in CAMUs.
    b. Debris. In today's proposal, EPA is proposing to require the 
current LDR hazardous debris treatment standard at Sec. 268.45 for 
debris placed in CAMUs for permanent disposal (applied, however, only 
to PHCs), and is also proposing, at Sec. 264.552(e)(4)(iv)(E), to also 
allow treatment of debris using the standards applicable to other CAMU-
eligible waste, whichever the Regional Administrator deems appropriate. 
Debris is defined under Sec. 268.2(g) as solid material exceeding 60 mm 
in size that is intended for disposal and that is a manufactured 
object, or plant or animal matter, or natural geologic material, that 
is otherwise not excluded under the provisions of 268.2(g).
    The Agency believes that the LDR debris standard at Sec. 268.45 
will be appropriate for most debris waste streams containing PHCs that 
are destined for disposal in a CAMU. Unlike the LDR standards for other 
wastes, these standards were developed taking into consideration that 
debris is frequently a cleanup waste, rather than an as-generated waste 
(57 FR 37194, 37222 (August 18, 1992). However, there are site-specific 
circumstances under which the Agency believes that it might be 
appropriate for the option to be available for such debris to meet the 
treatment standard for non-debris waste containing PHCs instead of that 
at Sec. 268.45. For example, at some sites, debris is mixed with other 
cleanup waste, and separation of the debris is difficult, expensive, or 
would require setting up additional treatment processes. It may make 
sense for the debris to remain mixed with the other cleanup waste that 
will be placed in the CAMU and to go through the treatment process 
designed for the other waste, provided that the treatment is capable of 
accepting or treating the debris. For example, the remedy chosen for 
metal-contaminated soil at a site might require the soil to be 
processed in a pug mill prior to its being subject to solidification. 
In this example, most of the soil to be treated is composed 
predominantly of soil, with a batch of debris consisting of broken 
cement pieces contaminated with metals. The soil treatment train might 
effectively address the soil and debris components at the same time, as 
well as any loads that predominantly contain debris. In the latter case 
(loads that predominantly contain debris), if the cement were to be 
treated under the Sec. 268.45 debris standards, the likely treatment 
would involve separation of the soil from the debris, followed by 
physical treatment, such as sandblasting, immobilization or chemical 
extraction. In other cases, where debris is not mixed with other 
cleanup waste, the debris might be adequately treated if it is included 
in the treatment process associated with the non-debris waste. In 
another example, contaminated organic matter, such as trees or boards, 
might be amenable to shredding and mixing with soils undergoing 
biodegradation, and achieve the 90%/10x UTS treatment requirement. In 
any case, the decision to use such treatment would be made as part of 
the overall remedy decision for the CAMU-eligible waste. The Agency 
seeks comment, in general, on today's proposed approach for debris.
    c. CAMU-Eligible Wastes Exhibiting the Characteristics of 
Ignitability, Corrosivity, or Reactivity. EPA is proposing that any 
CAMU-eligible wastes subject to today's treatment requirement for 
metals and non-metals (i.e., that contains PHCs) must, if exhibiting 
the hazardous characteristics of ignitability, corrosivity or 
reactivity, also be treated to eliminate these characteristics. This 
approach is an extension of the LDR Phase IV standards for soils where, 
in addition to treatment of all underlying hazardous constituents, 
characteristic soil must also be treated to remove the characteristic 
property. EPA believes

[[Page 51101]]

removal of such characteristics is appropriate in ensuring a protective 
CAMU, because not only do these characteristics pose a hazard if there 
is direct exposure to the waste, but they can potentially affect the 
integrity of the liner and other engineered systems of the unit. The 
Agency seeks comment, in general, on today's proposed approach for 
wastes that exhibit the hazardous characteristic of ignitability, 
corrosivity or reactivity.
    d. How is 90% Reduction Assessed? As discussed in the preamble to 
the Phase IV rule, EPA would expect that under today's proposed rule, 
normal soil characterization techniques and procedures for 
representative sampling would be used to determine 90% reduction in 
constituent concentrations (63 FR 28556, 28605 (May 26, 1998)). In the 
context of the Phase IV rule, the Agency is developing guidance on 
establishing and validating the 90% reduction levels for contaminated 
soil. EPA intends to issue this guidance shortly as interim guidance, 
with an opportunity for public comment. EPA views these issues as 
equally pertinent to use of the 90% reduction standard for CAMU wastes, 
and intends to recommend the same approaches for CAMU wastes (if the 
Agency finalizes the 90%/10xUTS standard) when the guidance is 
available. In general, when assessing whether 90% reduction has been 
achieved, if the contaminating hazardous waste has a treatment standard 
that is measured by total constituent concentrations (i.e., organics 
and cyanide), then the 90% reduction would be measured using total 
constituent concentrations. If the treatment standard for the 
contaminating waste is measured by the TCLP (i.e., metals), then the 
90% reduction would also be measured using the TCLP. Exceptions would 
be if soils contaminated with metal constituents were treated using a 
technology which removed, rather than stabilized metals. In such a 
case, the 90% reduction would be measured using total constituent 
concentrations.
    The Agency seeks comment on today's proposed approach for assessing 
constituent reduction after treatment.
    e. Use of the TCLP to Assess Treatment. EPA is proposing that the 
Toxicity Characteristic Leaching Procedure (TCLP) be used for assessing 
whether the 90%/10xUTS standard under Sec. 264.552(e)(4)(iv)(B) and (C) 
has been met for metals. The TCLP test was designed to model the 
mobility of both organic and inorganic analytes present in liquid, 
solid, and multiphasic wastes, and simulates leaching of industrial 
solid waste (5%) with co-disposed municipal waste (95%) (see 55 FR 
11798 (March 29, 1990)). Based on existing CAMUs and EPA's experience 
more generally in its remediation programs, the Agency expects that co-
disposal of hazardous cleanup waste with municipal solid waste will not 
generally occur in CAMUs. As a result, EPA believes that the TCLP may 
not always be the most appropriate predictor of waste behavior in 
CAMUs. In addition, the Agency believes that the circumstances 
associated with disposal at a CAMU site will be well defined, and that 
tests other than the TCLP might be better suited on a site-specific 
basis to model the behavior of waste disposed in a CAMU unit. Of tests 
currently available, a plausible alternative may be the Synthetic 
Precipitation Leaching Procedure (SPLP; SW-846 Method 1312) which is 
identical to TCLP (SW 846 Method 1311) but uses a weak, unbuffered 
leaching fluid composed of nitric and sulfuric acids to simulate acid 
rain instead of the acetic acid leaching medium used in the TCLP. 
Information on the SPLP and other leaching procedures is available in 
the docket for today's rule. Other testing approaches may become 
available in the future. EPA is seeking comment on the appropriateness 
of using tests other than the Toxicity Characteristic Leaching 
Procedure (TCLP), including the SPLP, for assessing whether the 90%/
10xUTS standard under Sec. 264.552(e)(4)(iv)(B) and (C) has been met 
for metals.
3. Adjustment Factors to the Treatment Standard (Sec. 264.552(e)(4)(v))
    EPA is proposing standards at Sec. 264.552(e)(4)(v) (paragraph 
``V'' in the following discussion) to provide the Regional 
Administrator with the discretion, when certain site-specific 
circumstances are present, to reduce or increase the minimum level of 
treatment that would be established in Sec. 264.552(e)(4)(iv) (the 
national minimum standards in paragraph ``IV''). Under the proposed 
rule, any adjustment to treatment made when these circumstances are 
present would be required to be protective of human health and the 
environment. As discussed above, EPA believes that this approach 
strikes a reasonable balance between minimum national standards and 
flexibility to account for site and waste conditions that make meeting 
the national treatment standard unachievable, unnecessary, or 
inappropriate at the site in question.
    As discussed in the introduction to the treatment section, in 
identifying circumstances where it would be reasonable and appropriate 
for the Regional Administrator to consider approving an adjusted 
treatment standard, EPA considered the Agency's long-standing 
preference for treatment of certain higher risk wastes, its experience 
in implementing remedies in the RCRA corrective action program 
(including where CAMUs are used), as well as its experience in 
implementing the land disposal restrictions program, which sets 
treatment standards primarily for as-generated wastes. The proposed 
adjustments also reflect EPA's experience in overseeing cleanup 
programs, and the recognition that cleanups are complex and varied, and 
that there are legitimate circumstances when treatment to the levels 
proposed as minimums in today's rule might not be appropriate, as well 
as where the minimum standard does not adequately protect human health 
and the environment.
    In general, in determining adjustment factors, EPA sought to 
identify circumstances where it may be appropriate to allow for reduced 
treatment based on site circumstances. Of course, increased treatment 
may always be required at individual facilities by oversight agencies 
where it is considered necessary to protect human health and the 
environment. However, some of the circumstances identified in the 
adjustment factors that EPA is proposing today could be used to justify 
additional treatment, as well as reduced treatment. EPA has explicitly 
included the discretionary ability in the proposed regulations to 
require more treatment on the basis of certain adjustment factors as a 
reminder that additional treatment may be required in some 
circumstances.
    As noted above, the proposed rule would require that, where the 
circumstances outlined in the adjustment factors are present, any 
alternative treatment standard imposed must be ``protective of human 
health and the environment.'' EPA included this provision as a reminder 
that the overall CAMU decision must be protective of human health and 
the environment, including where the Regional Administrator imposes an 
adjusted level. An example of how this would be implemented is a site 
where there are two technologies that are available to treat the CAMU 
waste. Technology A, although it would technically meet the proposed 
generic standards, presented an unacceptable risk to site workers 
(e.g., because of risks of explosion). Technology B, on the other hand, 
did not present that risk, but could only achieve a 75% reduction in 
PHC concentrations. In this case, because the factors associated with 
adjustment factor D (``short-term risks,''

[[Page 51102]]

discussed below) were present, the Regional Administrator could 
consider an alternate standard; such standard could only be imposed 
where the alternate level (75% reduction) was protective. EPA expects 
that the Regional Administrator would undertake this assessment of 
protectiveness of the alternate standard as part of the overall remedy 
and CAMU decision process. In judging protectiveness of the alternate 
standard, the Agency would expect the Regional Administrator to 
consider, as appropriate, the characteristics of the waste, including 
such factors as concentrations and mobility, how the wastes will be 
managed (e.g., the type of unit), and site characteristics, such as 
depth to groundwater and factors that affect fate and transport to 
potential receptors. Note, as discussed below under adjustment factor 
E, that protection offered by the engineering of the unit as the 
initial basis for considering an alternate standard is limited to a 
specific set of circumstances.
    EPA is proposing the following five treatment adjustment factors at 
Sec. 264.552(e)(4)(v), which can be used singly or in combination 
(descriptions of these proposed factors and proposed regulatory 
citations are given in the following discussion).
    (A) Technical impracticability
    (B) Consistency with site cleanup-up levels
    (C) Community views
    (D) Short-term risks
    (E) Protection offered by engineering controls under specified 
circumstances:
    (E)(1): Treatment standard is ``substantially met'' and the PHCs 
are of very low mobility
    (E)(2): Treatment standard is not ``substantially met'' and cost-
effective treatment used, if reasonably available, and:
    (E)(2)(i): Subtitle C liner and leachate collection system; or
    (E)(2)(ii): Wastes are treated and PHCs are of very low mobility; 
or
    (E)(2)(iii): Wastes are not treated and PHCs are of very low 
mobility and special liner requirements are met.
    Note that the proposed treatment adjustment provision in paragraph 
V provides that the Regional Administrator may adjust the treatment 
``level or method'' in paragraph IV. In cases where the treatment under 
paragraph IV is to the standard of 90%, capped at 10xUTS, the Regional 
Administrator would be adjusting the ``level;'' in cases where the 
treatment is to remove a hazardous characteristic, or is a method for 
debris obtained from Sec. 268.45, the Regional Administrator would be 
adjusting the ``method.''
    a. Adjustment Factor A. Technical Impracticability 
(264.552(e)(4)(v)(A)). EPA is proposing at 
Sec. 264.552(e)(4)(iii)(B)(l) that the Regional Administrator may, 
where appropriate, adjust treatment to a lower, but still protective, 
level based on the technical impracticability of treatment in 
accordance with the minimum standard in paragraph IV. In some cases, a 
facility owner or operator may find that it is not technically 
practicable to achieve specified treatment levels, or to conduct 
meaningful treatment at all, because of factors relating to 
technologies or cost. Some of the circumstances when these factors 
would be appropriately considered as reasons for imposing an alternate 
standard have been addressed in several contexts: in the land disposal 
restrictions program for as-generated wastes, in the form of variances, 
and in the remedial context, as technical impracticability 
determinations or waivers. Factors of cost and technical capability are 
also routinely discussed in the remedy decision process under Federal 
and State cleanup programs in cases where regulatory treatment levels 
are not required, but program implementors are seeking remedies that 
provide the most appropriate balance among remedy selection factors. 
Today's proposed adjustment factors borrow from these established 
concepts and practices (primary references are cited below).
    It is EPA's intention that proposed adjustment factor A would 
include the concepts contained in the current ``unachievable'' LDR 
variance, at Sec. 268.44(h)(1), and the ``technically inappropriate'' 
variance, at Sec. 268.44(h)(2)(i). The variance at Sec. 268.44(h)(1) 
provides that the Administrator may approve a site-specific variance 
from an applicable treatment standard if it is not physically possible 
to treat the waste to the level specified in the treatment standard, or 
by the method specified as the treatment standard (preamble discussion 
of this variance is at 53 FR 31138, 31199 (August 17, 1988)). EPA 
believes the underlying concept contained in this variance--that it is 
appropriate to obtain a variance when it not physically possible to 
meet a specified treatment level--is equally appropriate for use in 
adjusting from today's proposed CAMU treatment standards. In 
particular, attempting to require compliance with a standard that is 
impossible to meet would likely result in less permanent containment 
remedies that would not involve treatment.
    The variance at Sec. 268.44(h)(2)(i), commonly referred to as the 
``technically inappropriate'' variance, provides that the Administrator 
may approve a site-specific variance from an applicable treatment 
standard if it is inappropriate to require the waste to be treated to 
the level specified in the treatment standard or by the method 
specified as the treatment standard, even though such treatment is 
technically possible. One example of a technically inappropriate 
standard would be where it would result in ``combustion of large 
amounts of mildly contaminated environmental media where the treatment 
standard is not based on combustion of such media.'' The technically 
inappropriate variance was promulgated August 17, 1988 (53 FR 31138, 
31199 (August 17, 1988)) and is discussed further in the December 5, 
1997 final rule issuing clarifying amendments to this variance (62 FR 
64504 (December 5, 1997)). EPA believes the underlying concept 
contained in this variance, that alternate treatment should be 
considered when a prescribed treatment level or method is technically 
inappropriate, is also equally appropriate for use in adjusting from 
today's proposed CAMU treatment standards. Combustion of large volumes 
of contaminated soil remains the primary example that EPA has in mind 
for the use of this variance, although, as discussed in the Phase IV 
LDR rule (63 FR 28556, 28603 (May 26, 1998)), EPA believes that the 
90%/10xUTS standard, which is also applicable under today's proposal, 
is achievable at most sites with non-combustion technologies. This fact 
will likely reduce the number of circumstances where use of this 
reasoning for imposing an alternate standard could be considered. 
Regarding both of the above LDR variances, it is important to note that 
EPA intends only to import the general concepts underlying the 
variances, not the mechanics (i.e., specific demonstration and other 
procedural requirements), into this adjustment factor. It is also 
important to note that the CAMU designation process provides for 
oversight and public involvement in the assessment of potential 
adjustment factors.
    EPA also intends that the proposed technically impracticable 
adjustment factor would include the general concepts of ``technically 
infeasible'' and ``inordinately costly'' that are used in the remedial 
context. As explained in the Superfund National Contingency Plan (NCP) 
preamble, technical impracticability in the Superfund context should be 
based on

[[Page 51103]]

``engineering feasibility and reliability, with cost generally not a 
major factor unless compliance would be inordinately costly'' (55 FR 
8666, 8748 (March 8, 1990)). These concepts, which are also relevant to 
the selection of remedies under the RCRA corrective action program, are 
described further in the Corrective Action for Releases from Solid 
Waste Management Units at Hazardous Waste Management Facilities, 
Advance Notice of Proposed Rulemaking (61 FR 19432 (May 1, 1996)), and 
in the ``Role of Cost in the Superfund Remedy Selection Process'' 
(Publication 9200.3-23FS, September 1996).
    EPA seeks comment on its proposed approach to adjusting treatment 
based on the technical impracticability of treatment in accordance with 
the minimum requirements in paragraph IV.
    b. Adjustment Factor B. Consistency with Site Cleanup Levels 
(Sec. 264.552(e)(4)(v)(B)). EPA is proposing at 
Sec. 264.552(e)(4)(v)(B) that the Regional Administrator may adjust 
treatment to a higher or lower level in instances where the levels or 
methods in paragraph IV would result in concentrations of hazardous 
constituents that are significantly above or below cleanup standards 
applicable to the site (established either site-specifically or 
promulgated under state or federal law). As described below, this 
comparison to cleanup standards would assume that there is direct 
exposure of a receptor to the principal hazardous constituents in the 
waste.
    Typically, EPA or state regulators establish cleanup levels at 
sites where a CAMU is under consideration. As discussed above, cleanup 
levels incorporate various assumptions regarding exposure, and may be 
based on residential, industrial or other uses. The objective in 
setting cleanup levels is to ensure protection of human health and the 
environment. In some cases, treatment of PHCs in the waste at these 
sites to below the national minimum standard of 90% capped at 10xUTS 
could result in concentration levels significantly below the cleanup 
level. In such cases, the treatment required in paragraph IV would be 
more than is necessary to ensure protection of human health and the 
environment. Using proposed adjustment factor B, the Regional 
Administrator could adjust the PHC treatment level to a level that does 
not implicate the situation addressed by the adjustment factor (i.e., 
it is not significantly below the cleanup level or goal at the site). 
This approach addresses similar concerns to those addressed by the 
current ``site-specific minimize threat'' LDR variance (Section 
268.44(h)(3)), which allows for a variance from the LDR treatment 
requirement on the basis of a comparison to site-specific health-based 
levels in certain circumstances (see 63 FR 28556, 28606-28608 (May 26, 
1998)).
    As discussed above, the Agency also believes it is important to 
provide in the adjustment factors for cases where the concentration of 
constituents that result from application of the generic minimum 
standards remains significantly above site standards; in such cases, 
the treatment levels that result from the application of the generic 
levels in paragraph IV might not be sufficiently protective. For 
example, it may be appropriate to adjust the treatment level under this 
factor when the reasonably anticipated land use at the facility has 
been determined to be residential and the initial concentrations are 
sufficiently high, such that, when they are reduced by 90%, they remain 
at levels that are significantly above the site cleanup levels.
    As an implementation matter, EPA intends that the approach in using 
this adjustment factor would be to compare levels that would be 
attained through treatment to the generic standards to site cleanup 
levels that would customarily be established for the site. EPA expects 
that when applying this adjustment factor, comparisons would be to site 
levels (either established site-specifically or promulgated under state 
or federal law) that assume there is direct exposure of a receptor to 
the constituents. As explained above, site-specific cleanup standards 
are typically derived after consideration of factors that influence the 
risk potential at the site, including fate and transport considerations 
(e.g., in setting levels in soils that are protective of groundwater), 
distinctions between residential, industrial and other types of land 
use, and location of potential receptors. In the use of this adjustment 
factor, however, protection offered by the engineering of the CAMU 
itself would not be included in the calculation of adjusted treatment 
standards. In other words, in determining whether imposition of the 
generic standards would result in concentrations significantly above or 
below cleanup standards, the Regional Administrator will compare the 
risks associated with the site levels or goals based on direct 
exposure, to the risks expected under the same direct exposure scenario 
for levels that would be attained under the generic standards. This 
direct exposure assumption is similar to that used in the current 
``site-specific minimize threat'' LDR variance (Section 268.44(h)(3)). 
Because the Agency believes cleanup programs routinely establish site 
goals based on direct exposure scenarios (without consideration of the 
engineered unit), the Agency did not specifically make the use of a 
direct exposure scenario a condition in the adjustment factor B 
language. The Agency requests comment on the accuracy of its beliefs as 
to how cleanup programs set site goals or levels and whether there is 
enough uncertainty to warrant an express requirement for use of direct 
exposure assumptions in the regulations.
    c. Adjustment Factor C. Community Views (Sec. 264.552(e)(4)(v)(C)). 
EPA is proposing at Sec. 264.552(e)(4)(v)(C) that the Regional 
Administrator may adjust treatment to a higher or lower level based on 
the views of the affected local community on the treatment levels or 
methods to be potentially employed to meet the generic treatment 
standard in paragraph IV. At some sites, communities express concerns 
regarding such factors as long-term reliability of remedies, worker 
safety associated with technologies, cross-media transfer of 
pollutants, and interference with their day-to-day lives (e.g., from 
traffic, odors or noisy remedies). EPA anticipates that such community 
concerns could, in many circumstances, appropriately provide the 
impetus to either reduce or increase treatment. EPA believes that, 
consistent with the remedy selection process for RCRA corrective action 
and for CAMU determinations, the public should have the opportunity to 
participate through the notice and comment process in the selection of 
the treatment or remedy, which includes selection of treatment levels.
    The public participation provisions of the CAMU rule, as they would 
be amended under today's proposal (discussed in detail below) provide 
for public input on all aspects of the CAMU decision for all CAMUs. EPA 
believes it is reasonable to include public views as an explicit 
criterion to justify adjustment from the treatment requirement where 
appropriate, because, in the Agency's experience, treatment has been an 
area of specific concern to the public. A notable example is local 
concerns regarding the use of combustion technologies.
    Under today's proposed amendments, the community would be given the 
opportunity to weigh in on the treatment decision as part of the notice 
and comment process when the CAMU is proposed, prior to its final 
designation. In addition, at some sites, prior to proposal of the CAMU, 
owners

[[Page 51104]]

or operators or the oversight agency may be aware of community concerns 
associated with cleanup sites and would take these into account in 
developing CAMU proposals. EPA seeks comment on its proposed approach 
to adjusting treatment based on views expressed by the community on the 
treatment levels or methods to be potentially employed to meet the 
proposed generic treatment standard.
     d. Adjustment Factor D, Short-Term Risks 
(Sec. 264.552(e)(4)(v)(D)). EPA is proposing at 
Sec. 264.552(e)(4)(v)(D) that the Regional Administrator may adjust 
treatment to a higher or lower level based on the short-term risks 
presented by the on-site treatment method necessary to achieve the 
levels or treatment methods in the generic treatment standard in 
paragraph IV. Certain technologies are capable of achieving treatment 
levels but in doing so, may present unacceptable risks in the short 
term to workers or the public. In other cases, the analysis necessary 
to determine if the treatment standard has been met might present 
unacceptable hazards, such as for soils containing explosive materials.
    Short-term risks associated with remedies and proposed treatment 
technologies are routinely considered during the remedy selection 
process under the RCRA corrective action program and may form the basis 
for determining that certain methods of treatment are not appropriate 
(Corrective Action for Solid Waste Management Units (SWMUs) at 
Hazardous Waste Management Facilities, Proposed Rule, 55 FR 30798, 
30824 (July 27, 1990)). Today's proposed adjustment factor would allow 
for the same considerations in the context of adjusting treatment 
levels for principal hazardous constituents in CAMU-eligible wastes. 
EPA seeks comment on its proposed approach to adjusting treatment based 
on the short-term risks presented by the on-site treatment method 
necessary to achieve the levels or treatment methods in the generic 
treatment standard.
    e. Adjustment Factor E. Engineering Design and Controls 
(Sec. 264.552(e)(4)(v)(E)). EPA is proposing at 
Sec. 264.552(e)(4)(v)(E) that the Regional Administrator may, under 
certain defined circumstances, adjust treatment of CAMU-eligible waste 
to an alternative level, or in some cases, to not treat at all, based 
on the long-term protection offered by the engineering design of the 
CAMU and related engineering controls. This adjustment factor defines 
the circumstances, taken in the context of the facility setting, under 
which the Regional Administrator could consider reducing the treatment 
standard based on the features of CAMU design and related controls.
    As described above, EPA's approach to treatment in today's proposal 
reflects uncertainties associated with long-term reliability of 
containment units. The most difficult issue discussed during 
discussions with stakeholders was how to identify the circumstances 
under which adjustments to treatment could be justified based on the 
design of the CAMU alone (i.e., without other extenuating 
circumstances, as provided for in the other adjustment factors). EPA 
examined the Agency's past CAMU decisions, and Agency experience in the 
land disposal restrictions (LDR) program and in overseeing the RCRA 
corrective action program, and, based on this evaluation, is proposing 
an adjustment factor which limits the situations where the Regional 
Administrator may approve a reduced treatment standard, based on the 
logic that the engineered design makes the generic treatment standard 
inappropriate. EPA seeks comment on the appropriateness of these 
factors and whether there are other circumstances where design of the 
unit would warrant adjustment, on a site-specific basis, from the 
generic treatment standard.
    Today's proposal limits the consideration of the design of a unit 
to justify a change from the generic treatment standard to two 
scenarios: first, under factor E(1), situations where the generic 
treatment standard has been ``substantially met;'' second, under factor 
E(2), situations where the generic treatment standard has not been 
``substantially met,'' but cost-effective treatment has been used, 
unless, after review of appropriate treatment technologies, cost-
effective treatment is not reasonably available. In addition, for 
adjustment factor E to be used, PHCs in the wastes generally must be of 
``very low mobility,'' which, as is explained more fully below, EPA 
believes is appropriate, because this adjustment factor relies on the 
ability of engineering controls to contain waste. The exception to the 
restriction to ``very low mobility'' constituents is adjustment 
provision E(2)(i), where the wastes are to be disposed in a unit that 
provides superior protection (i.e., meets the Subtitle C liner and 
leachate collection requirements for new Subtitle C units). Finally, 
factor E(2)(iii) allows protection offered by the engineering design of 
the unit to justify a decision to require no treatment at all only for 
very low mobility wastes where there is no cost-effective treatment 
reasonably available; under these circumstances, proposed factor 
E(2)(iii) includes specified unit design conditions or equivalent 
protection to ensure a minimum level of protection for long-term 
containment of the wastes.
    The exact language in proposed adjustment factor E is repeated here 
to assist the reader in following the discussion of each provision:
    Sec. 264.552(e)(4)(v)(E) the long-term protection offered by the 
engineering design of the CAMU and related engineering controls:
    (1) where the treatment standards in 264.552(e)(4)(iv) are 
substantially met and the principal hazardous constituents in the waste 
or residuals are of very low mobility; or
    (2) where cost-effective treatment has been used, or where, after 
review of appropriate treatment technologies, the Regional 
Administrator determines that such treatment is not reasonably 
available, and:
    (i) The CAMU meets the Subtitle C liner and leachate collection 
requirements for new land disposal units at Sec. 264.301(c) and (d), or
    (ii) The principal hazardous constituents in the treated wastes are 
of very low mobility, or,
    (iii) Where wastes have not been treated and the principal 
hazardous constituents in the wastes are of very low mobility, and 
either the CAMU meets the liner standards for new, replacement, or 
laterally expanded CAMUs in paragraph (e)(3)(i) and (ii) of this 
section, or the CAMU provides substantially equivalent protection.
    In addition, to assist the reader with following this adjustment 
factor, the following chart describes the potential availability of 
proposed adjustment factor 264.552(e)(4)(v)(E):

----------------------------------------------------------------------------------------------------------------
                  If                            And if                   And if                    Then
----------------------------------------------------------------------------------------------------------------
Treatment standards in Sec.            Cost-effective           RA has not determined    You may not consider
 264.552(e)(4)(iv) are not              treatment has not been   that cost-effective      adjusting based upon
 substantially met.                     used.                    treatment is not         the ``long term
                                                                 reasonably available.    protection offered by
                                                                                          the engineering design
                                                                                          of the CAMU and
                                                                                          related controls.''

[[Page 51105]]

 
Treatment standards in Sec.            The PHCs in the waste    .......................  You may consider
 264.552(e)(4)(iv) are substantially    are of very low                                   adjusting based upon
 met.                                   mobility.                                         the ``long term
                                                                                          protection offered by
                                                                                          the engineering design
                                                                                          of the CAMU and
                                                                                          related controls.''
                                                                                         Sec.  264.552(e)(4)(v)(
                                                                                          E)(1)
Cost-effective treatment has been      The CAMU meets the       .......................  You may consider
 used.                                  Subtitle C liner and                              adjusting based upon
                                        leachate collection                               the ``long term
                                        requirements for new                              protection offered by
                                        land disposal units at                            the engineering design
                                        Sec.  264.301(c) and                              of the CAMU and
                                        (d).                                              related controls.''
                                                                                         Sec.  264.552(e)(4)(v)(
                                                                                          E)(2)(i)
Cost effective treatment has been      The PHCs in the waste    .......................  You may consider
 used.                                  are of very low                                   adjusting based upon
                                        mobility.                                         the ``long term
                                                                                          protection offered by
                                                                                          the engineering design
                                                                                          of the CAMU and
                                                                                          related controls.''
                                                                                         Sec.  264.552(e)(4)(v)(
                                                                                          E)(2)(ii)
The RA determines that cost-effective  The CAMU meets the       .......................  You may consider
 treatment is not reasonably            Subtitle C liner and                              adjusting based upon
 available.                             leachate collection                               the ``long term
                                        requirements for new                              protection offered by
                                        land disposal units at                            the engineering design
                                        Sec.  264.301(c) and                              of the CAMU and
                                        (d).                                              related controls.''
                                                                                         Sec.  264.552(e)(4)(v)(
                                                                                          E)(2)(i)
RA determines that cost-effective      PHCs in the waste are    Either the CAMU meets    You may consider
 treatment is not reasonably            of very low mobility.    or exceeds the liner     adjusting based upon
 available.                                                      standards for new,       the ``long term
                                                                 replacement, or          protection offered by
                                                                 laterally expanded       the engineering design
                                                                 CAMUs in paragraph       of the CAMU and
                                                                 (e)(3)(i) and (ii) of    related controls.''
                                                                 this section, or the
                                                                 CAMU provides
                                                                 substantially
                                                                 equivalent or greater
                                                                 protection.
                                                                                         Sec.  264.552(e)(4)(v)(
                                                                                          E)(2)(iii).
----------------------------------------------------------------------------------------------------------------

    (1) Assessment of Long-Term Protection Offered by the Unit. When 
the waste and site circumstances provided for in adjustment factor E 
are present, the Regional Administrator would have the discretion to 
adjust treatment based on the long-term protection offered by the 
engineering design of the CAMU and related engineering controls when 
such adjustment is protective of human health and the environment 
(Sec. 264.552(e)(4)(v)). In general terms, such an assessment of long-
term protection would focus on the protectiveness offered by the unit 
and any associated systems over the long-term, considering such 
appropriate factors as unit reliability, characteristics of the waste 
and constituents (e.g, mobility, concentrations, associated matrix), 
and the geologic setting of the CAMU unit. This assessment would be 
made in the context of the cleanup standards specific to the site. EPA 
intends that the phrase ``engineering design of the CAMU and related 
engineering controls'' would include the design of the unit itself 
(e.g., presence and type of liner, leachate collection, cap), as well 
as any associated engineering systems, such as slurry walls, systems 
that produce inward hydraulic gradients in the vicinity of the unit, 
French drains, associated pump and treat systems and groundwater 
monitoring systems.
    Along with looking at the unit that the waste will be disposed in, 
any assessment of long-term protection in the context of adjustment 
factor E (i.e., in the Regional Administrator's determination that an 
alternate standard is protective of human health and the environment 
under Sec. 264.552(e)(4)(v)) would include consideration of whether the 
waste and constituents pose any potential for unacceptable releases 
over the long-term. This consideration would include examination of 
such factors as the concentration and mobility of the PHC constituents 
in the disposal matrix and site environment, and how the wastes might 
be affected by potential liquid infiltration into the unit.
    f. Adjustment Factor E(1). Treatment That is Substantially Met 
(Sec. 264.552(e)(4)(v)(E)(1)). With this provision, EPA is proposing 
that the Regional Administrator may adjust treatment to an alternative 
level based on the long-term protection offered by the engineering 
design of the CAMU and related engineering controls where the generic 
treatment standards are ``substantially met'' and ``the principal 
hazardous constituents in the hazardous waste or residuals are of very 
low mobility.'' EPA included this proposed provision to address 
concerns raised by stakeholders that, in certain situations where the 
generic minimum requirements will be substantially met, it might not 
make sense to impose strict adherence to the minimum standard given the 
level of protection offered by ``substantial'' compliance with the 
treatment standards and the added protection offered by a specific CAMU 
design. EPA's discusses the term ``substantially met'' in more detail 
below.
    (1) Very Low Mobility. EPA believes that consideration of 
adjustment from the generic standard in paragraph IV where the 
standards have been ``substantially met'' may be appropriate only in 
cases where the principal hazardous constituents (PHCs) or residuals 
are of ``very low mobility.'' The general concept embraced by ``very 
low mobility'' is that, although PHCs of very low mobility may present 
significant risks upon direct exposure, such constituents have very 
little ability to migrate from the waste to receptors through media 
such as air, soil or water at levels that are of concern to human 
health and the environment. Under these circumstances, even if there is 
an unanticipated failure of the unit, the constituents that have not 
been as

[[Page 51106]]

aggressively treated will be those that have the least potential to 
migrate to a receptor.
    The ability of constituents to migrate is a function of the 
physical and chemical properties of the constituents themselves, and of 
site-specific conditions, including the nature of the waste that the 
constituents are in, conditions associated with the unit itself and of 
the media surrounding the CAMU unit. As a result, determination that a 
constituent is of ``very low mobility'' is a site-specific 
determination.
    Given the site-specific nature and the complexity of determining 
whether constituents are of very low mobility, the Agency does not 
believe that it is appropriate to propose a quantitative approach for 
designating a constituent as being of ``very low mobility.'' However, 
the following examples serve to further illustrate the general concept 
embodied in this proposed adjustment factor. One example of immobile 
constituents are certain metals, such as lead, that have a strong 
affinity for organic matter and can, under proper site conditions 
(which are typically strongly affected by pH conditions), demonstrate 
very low mobility. Another common example is polyaromatic hydrocarbons 
(PAHs), such as benzo(a)anthracene and benzo(a)pyrene. PAHs can 
reliably be considered non-mobile constituents (with the notable 
exception of when the PAHs are concentrated to the extent that they are 
in a free-phase--i.e., as non-aqueous phase liquids (NAPLs)--or when 
they are dissolved in a mobile substrate, such as oil). PAHs can be 
present as a direct result of historical industrial processes, or may 
be found as a residuum of formerly more complex mixtures of organic 
contamination that have been exposed to breakdown processes in the 
environment, or as a result of applying biological treatment 
technologies to the wastes. At some sites, such as petroleum 
refineries, where PAHs can be found in high concentrations in old 
refinery wastes and contaminated soils, PAHs tend not to be found in 
significant concentrations in groundwater, because of their low 
solubility and tendency to adhere to organic matter in soils and 
sludges.
    (2) Substantially Met. EPA interprets ``substantially met'' as 
follows, for the purposes of this proposed adjustment factor. Some 
treatment technologies will ``substantially,'' but not precisely, 
attain 10  x  UTS or 90% treatment of all principal hazardous 
constituents in the waste. For example, the most appropriate technology 
at a site for wastes containing organic contaminants that have low 
migration potential (e.g., certain polyaromatic hydrocarbons) might be 
biodegradation. This technology might come close to, but not achieve, 
10 x UTS for the constituents with low migration potential. Given that 
the contaminants have a low migration potential, the Regional 
Administrator could assess site-specific factors that affect mobility, 
including the geologic setting, precipitation and evaporation, and make 
the determination that an alternate treatment standard based on this 
technology would provide long-term protection of human health and the 
environment. In another example, the treatment standards would be 
substantially met where the overwhelming majority of constituents have 
been treated to meet the treatment standards, but a very few immobile 
constituents do not meet the standards.
    g. Adjustment Factor E(2). Use of Cost-effective Treatment 
(Sec. 264.552(e)(4)(v)(E)(2)). EPA is proposing at 
Sec. 264.552(e)(4)(v)(E)(2) that the Regional Administrator may adjust 
treatment to an alternate level based on the long-term protection 
offered by the engineering design of the CAMU and related engineering 
controls ``where cost-effective treatment has been used, or where, 
after review of appropriate treatment technologies, the Regional 
Administrator determines that such treatment is not reasonably 
available.'' This proposed adjustment factor, when used to make an 
adjustment from the generic treatment standard based on protection 
offered by the unit, would require that cost-effective treatment be 
used, if it is reasonably available. This approach addresses the 
Agency's concerns regarding the uncertainties of long-term containment.
    Adjustment factor E(2) contains three provisions that could 
potentially be used (E(2)(i), (ii), and (iii)), depending on whether 
cost-effective treatment is reasonably available. Adjustment factor 
E(2)(i) would be available where the CAMU meets the Subtitle C liner 
and leachate collection requirements for new land disposal units at 
Sec. 264.552(e)(3). This factor would be available in cases where cost-
effective treatment is used and where the Regional Administrator 
determines cost-effective treatment in not reasonably available. 
Adjustment factor E(2)(ii) would be available where cost-effective 
treatment is used, and the principal hazardous constituents in the 
treated waste are of very low mobility. Adjustment factor E(2)(iii) 
would be available where cost-effective treatment is not reasonably 
available, the PHCs in the untreated wastes are of very low mobility, 
and certain specified liner requirements have been met.
    (1) What is ``Cost-Effective Treatment?'' The concept of ``cost-
effectiveness,'' as used in this proposed adjustment factor, would mean 
that additional cost from potentially increased treatment should 
provide a proportionate increase in protection by virtue of that 
increased treatment. Under the proposed approach, EPA would intend that 
any assessment of cost-effectiveness be made based on a reasonable 
review of the costs and the effectiveness of the treatment and on best 
professional judgement of the oversight agency. Of course, the Agency 
does not intend that cost considerations would allow an unprotective 
CAMU to be approved.\12\
---------------------------------------------------------------------------

    \12\ As discussed in the 1996 corrective action ANPR, cost-
effectiveness is considered as a factor during corrective action 
remedy selection to choose between alternative remedial options that 
meet the protectiveness criteria for a remedy at the site. Used in 
this context, cost-effectiveness does not equate to ``less 
expensive,'' but is one of several factors used to guide remedy 
selection (61 FR 19432, 19449 (May 1, 1996)).
---------------------------------------------------------------------------

    (2) What Does a Review of Appropriate Treatment Technologies 
Constitute? EPA is proposing under adjustment factor 
Sec. 264.552(e)(4)(v)(E)(2), that any determination that cost-effective 
treatment is not available would be made after a review of appropriate 
treatment technologies. To meet this criterion, EPA would expect that 
the level of effort would be similar to that typically used in the 
remedy selection process when the oversight agency requires 
identification of treatment technologies that are able to meet 
specified levels as part of the remedy. The level of effort involved in 
this review would be waste- and site-specific, depending on such 
factors as the waste types, constituents present, and waste volumes. As 
in all CAMU decisions, the review of appropriate treatment technologies 
should be documented.
    (3) What Does it Mean That Cost-Effective Treatment is ``Not 
Reasonably Available?'' Today's proposed treatment adjustment factor 
Sec. 264.552(e)(4)(v)(E)(2) contains the presumption that treatment 
will be employed if it is reasonably available and cost-effective. In 
theory, an individual treatment technology may appear to be cost-
effective and capable of achieving a treatment standard. However, if 
such a technology is not ``reasonably available,'' the Agency does not 
believe it would be appropriate to require the use of it. An assessment 
of whether potential treatment

[[Page 51107]]

technologies are reasonably available for use is commonly conducted by 
cleanup programs as remedial alternatives are considered. EPA intends 
to use the general considerations used in the remedy selection process, 
as appropriate, in considering whether treatment technologies are 
``reasonably available'' under this adjustment factor. These 
considerations include availability and timing of goods and services, 
technical feasibility and reliability, and administrative feasibility.
    (4) Adjustment Factor E(2)(i). Subtitle C Standards 
(Sec. 264.552(e)(4)(v)(E)(2)(i)). This proposed provision, at 
Sec. 264.552(e)(4)(v)(E)(2)(i), would allow the Regional Administrator 
to consider adjusting treatment in cases where cost-effective treatment 
will be used, if it is reasonably available, and the CAMU is 
constructed to meet the liner and leachate collection requirements for 
new, replacement, or laterally expanded Subtitle C units at 
Sec. 264.301(c) and (d).
    This provision of adjustment factor E is not limited to PHCs of 
very low mobility. When PHCs are not of very low mobility, and 
therefore have a greater chance of reaching a receptor if containment 
fails, EPA believes it is appropriate to propose to require as a 
minimum these Subtitle C liner and leachate collection standards, 
because they offer a high degree of protection. When Subtitle C 
compliant designs are used, EPA would generally expect such units to 
provide adequate long-term protection. As discussed above, EPA is also 
proposing performance criteria for caps, including the requirement that 
the permeability of the cap be less than or equal to that of the liner 
system, that would further add to the protectiveness provided by units 
that meet the Subtitle C liner and leachate collection standards. In 
addition, Subtitle C liner and leachate collection system designs are 
well established from their use in the as-generated hazardous waste 
program. EPA believes that they should therefore be readily 
implementable for CAMUs, when their use is warranted.
    As a general matter, EPA does not expect that CAMUs would typically 
be constructed to meet the Subtitle C requirements for new units; 
however, units meeting Subtitle C design standards could be appropriate 
for CAMUs under site-specific circumstances, particularly where the 
treatment requirements were reduced. To date, several existing CAMUs 
have incorporated such design standards (see CAMU Site Background 
Document, included in the docket for today's rule).
    (5) Adjustment Factor E(2)(ii). Cost Effective Treatment Reasonably 
Available (Sec. 264.552(e)(4)(v)(E)(2)(ii)). This proposed provision, 
at Sec. 264.552(e)(4)(v)(E)(2)(ii)), would allow the Regional 
Administrator to consider adjusting treatment based on unit design 
where cost-effective treatment will be used and the PHCs in the waste 
are of very low mobility. EPA provided for this adjustment factor to 
address situations where cost-effective treatment is available for the 
low mobility constituents, but the treatment will not meet or 
substantially meet the generic treatment standards in paragraph IV (and 
thus could not potentially use proposed adjustment factor E(1)).
    EPA's justification for including the limitation to very low 
mobility constituents in adjustment factor E(2)(ii) is consistent with 
that described above for adjustment factor E(1), where the treatment 
standards for very low mobility constituents are substantially met. The 
Agency believes that it is reasonable for the Regional Administrator to 
make such an adjustment where it can be found that the containment 
system offers adequate protection, with the knowledge that, if there is 
unexpected containment failure, the constituents have been treated to a 
meaningful extent (although not to the generic minimum standards) and 
are unlikely to reach a receptor because they are of very low mobility.
    (6). Adjustment Factor E(2)(iii). Cost-Effective Treatment is Not 
Reasonably Available (Sec. 264.552(e)(4)(v)(E)(2)(iii)). This 
adjustment factor, proposed at Sec. 264.552(e)(4)(v)(E)(2)(iii), would 
allow the Regional Administrator to potentially adjust treatment based 
on unit design in cases where cost-effective treatment is not 
reasonably available and the principal hazardous constituents in the 
waste are of very low mobility. In this case, the CAMU would be 
required to, at a minimum, be designed in accordance with the liner 
standards proposed today for new, replacement, or laterally expanded 
CAMUs in Sec. 264.552(e)(3) (that is, the modified Subtitle D 
standards), or provide equivalent protection.
    As discussed above, EPA is proposing that when PHCs in the waste 
are of ``very low mobility,'' it may be appropriate, under several 
circumstances, for the Regional Administrator to consider adjustment to 
the treatment standards for CAMU wastes based on unit design. In the 
two cases discussed above addressing low mobility PHCs (i.e., either 
where the generic minimum treatment standards have been ``substantially 
met,'' under adjustment factor E(1) or where cost-effective treatment 
has been used, under adjustment factor E(2)(ii), EPA did not choose to 
add further conditions on the CAMU unit itself. Additional conditions 
are appropriate under E(2)(iii), however, because there would be no 
treatment of PHCs. Although the very low mobility constituents are 
unlikely to reach receptors, the risks to such receptors if there were 
such exposure are greater because there has been no treatment. The 
Agency therefore believes it would be appropriate to require an 
additional measure of assurance regarding containment. The Agency 
selected the standards proposed today for new CAMUs, or equivalent, 
because EPA believes they would offer that greater assurance without 
recreating disincentives to cleanup that the CAMU rule is meant to 
address.
    (7). Liner Standards for Adjustment E(2)(iii). The proposed minimum 
liner requirement in adjustment factor Sec. 264.552(e)(4)(v)(E)(2)(iii) 
can be met in two ways. The first is to meet the minimum liner standard 
proposed today at Sec. 264.552(e)(3) for CAMU units that are new, 
replacement, or lateral expansion units. The Sec. 264.552(e)(3) 
standard has two provisions--a detailed composite liner standard 
(proposed Sec. 264.552(e)(3)(i), based on the Subtitle D standards for 
municipal solid waste landfills), and a provision with two options for 
alternate designs (proposed Sec. 264.552(e)(3)(ii)(A) and (B)). These 
provisions are described above in detail in the section titled Liner 
Standard.
    The second way to meet the minimum liner requirement under proposed 
adjustment factor E(2)(iii), is to meet an alternate standard, provided 
that ``the CAMU provides substantially equivalent protection'' to the 
proposed liner standards at Sec. 264.552(e)(3). EPA intends that this 
alternate standard would allow for the consideration of the entire CAMU 
unit as well as location features in making a determination that the 
CAMU provides ``substantially equivalent protection.'' For example, if 
an existing unit without a liner were to be potentially used for a CAMU 
under the conditions of this adjustment factor, the Regional 
Administrator could examine the protectiveness offered by the CAMU 
components (e.g., cap, groundwater monitoring, ancillary engineering 
features), as well as mobility of constituents in the waste within the 
unit (which will be very low), and geology associated with the unit, in 
assessing equivalent protection. In another example, soils contaminated 
with PAHs, with no cost-effective method of treatment reasonably 
available, are proposed to be disposed in an existing unit with a liner 
that does not meet the Sec. 264.552(e)(3) standards. Given the very low 
mobility of these

[[Page 51108]]

constituents and the calculated infiltration rate of rainwater into the 
unit, it might be calculated that only very low concentrations of 
constituents would potentially migrate from the unit, that any 
migration would be for a very short distance, and that the CAMU would 
provide substantially equivalent protection to the liner standard under 
Sec. 264.552(e)(3).
4. Request for Comment on Treatment Standard Approach
    The Agency requests comment on the above approach to treatment and 
adjustment factors in general. As described above, the adjustment 
factors were designed to identify circumstances where requiring 
compliance with the generic minimum standards might be inappropriate. 
Has the Agency captured the appropriate range of circumstances? Do the 
proposed factors appear flexible enough to address all such 
circumstances?
    Also, in crafting these factors, the Agency looked for guidance to 
existing exceptions in the Agency's Subtitle C regulations that are 
specific to cleanup wastes. In particular, the Agency examined the 
cleanup-related treatment variance provisions in the LDR program and 
incorporated some of the concepts there into today's proposed 
adjustment factors (see discussion above). The Agency did not, however, 
specifically incorporate the ``environmentally inappropriate'' variance 
at Sec. 268.44(h)(2)(ii). This variance is meant to provide relief in 
circumstances where imposition of an LDR standard would likely 
discourage aggressive remediation. The Agency did not include a 
comparable adjustment factor in today's proposal because the proposed 
adjustment factors are intended to more specifically identify 
circumstances that might, among other things, create that same 
disincentive. The Agency requests comment on this conclusion.
5. Treatment Within a Reasonable Time (Sec. 264.552(e)(4)(vi))
    In today's proposal, CAMU wastes can be treated prior to or after 
placement in the CAMU. EPA is proposing, at Sec. 264.552(e)(4)(vi), 
that treatment must be completed prior to, or within a ``reasonable 
time'' after placement of the waste in the CAMU. During discussions 
with CAMU stakeholders, the concern was raised that because the 1993 
CAMU rule does not set a standard for the duration of treatment, a 
remedy could in effect become sham treatment that might go on for many 
years with little prospect of success. A primary example of post-
disposal treatment is biotreatment, which EPA expects would typically 
achieve its goals within a single season, or at most, within a few 
seasons. Under today's proposal, EPA would expect treatment to be 
completed within months or years, not decades, except in very unusual 
circumstances. Interpretations of ``reasonable time'' would be made 
site-specifically in the context of the remedy selected for the waste. 
The Agency seeks comment on its proposed approach to addressing when 
treatment may be conducted within a CAMU.
6. Assessing Compliance with the Treatment Requirement 
(Sec. 264.552(e)(4)(vii))
    EPA has included a provision in today's proposed treatment 
requirement at Sec. 264.552(e)(4)(vii) to allow, on a discretionary 
basis, for the analysis of a subset, rather than the complete set, of 
principal hazardous constituents present in the waste to assess whether 
treatment standards have been met. EPA believes that it would not be 
necessary in many cases to require analysis of all constituents being 
treated to accurately assess whether the treatment standards have been 
met for all constituents. EPA believes that this flexibility is 
appropriate, where applicable on a waste-and site-specific basis, to 
avoid unnecessary analysis, which can be expensive.
    The strategy of analyzing a subset of constituents in cleanup 
wastes to assess the efficacy of treatment is commonly used in 
cleanups. This approach follows common-sense scientific principles and 
involves consideration of such factors as difficulty of treatment, and 
grouping of constituents with similar treatment properties. EPA has 
included these two considerations in the proposed rule language. Of 
course, in selecting the constituents to be used for analytical 
purposes, the Regional Administrator would also consider the ability to 
analyze the constituents.
    A general strategy is to analyze, within a group of constituents 
with similar treatment properties, the most difficult constituents to 
treat, following the reasoning that treatment of the most difficult to 
treat constituents will result in treatment of the other constituents 
as well. For example, when wastes containing mixtures of organic 
molecules are subjected to bioremediation, certain compounds tend to be 
more recalcitrant and take longer to treat. It might be reasonable to 
focus analysis on measurement of the compounds that are most resistant 
to biodegradation to assess whether the treatment standard had been 
met. Any determination that such a treatment analysis approach can be 
used at a CAMU would be made by the oversight agency on a site-specific 
basis, in consideration of factors such as those described above, and 
would be documented in the decision document (e.g., workplan) and 
incorporated into the permit or order. EPA seeks comment on allowing, 
on a site-specific basis, for analysis of a subset of principal 
hazardous constituents to assess whether treatment standards have been 
met.

H. Constituents at or Below Remedial Levels (Sec. 264.552(g))

    EPA is proposing, at Sec. 264.552(g), that ``CAMUs into which 
wastes are placed where all wastes have constituent levels at or below 
remedial levels or goals applicable to the site do not have to comply 
with the requirements for liners at Sec. 264.552(e)(3)(i), caps at 
Sec. 264.552(e)(6)(iv), groundwater monitoring requirements at 
Sec. 264.552(e)(5) or the design standards at Sec. 264.552(f) for 
treatment and/or storage-only CAMUs.'' The basic reasoning behind this 
provision is that, if constituent levels in wastes placed in a CAMU are 
at or below levels that are considered protective at the facility, it 
is not necessary to require that the wastes be disposed within an 
engineered unit or to have associated groundwater monitoring. Under the 
current CAMU rule, the flexibility exists to make disposal decisions 
consistent with this approach. However, because today's proposed 
amendments would require minimum design requirements for CAMUs, EPA is 
proposing provision Sec. 264.552(g) to retain this flexibility.
    EPA anticipates that proposed Sec. 264.552(g) would be applicable 
under circumstances where owners or operators seek a CAMU because, 
without use of a CAMU, the RCRA land disposal restrictions would 
continue to apply to the CAMU-eligible waste, even where the CAMU-
eligible waste is no longer otherwise considered hazardous. This would 
occur, for example, in certain cases where a ``contained-in'' decision 
(see discussion below) has been made because the hazardous constituents 
are at concentrations below health-based levels, but the concentrations 
remain above land disposal restriction treatment standards. EPA also 
anticipates that proposed Sec. 264.552(g) would be used for ``non-
media'' (e.g., CAMU-eligible sludges) for which a contained-in 
determination cannot be made.
    EPA included ``at or'' before the word ``below'' in this proposed 
provision because it is not always necessary to

[[Page 51109]]

treat ``below'' a goal to achieve the goal. In addition, EPA has 
included the phrase ``where all wastes'' to make clear that if an 
existing unit is used as a CAMU that has wastes with concentrations 
above remedial levels or goals applicable to the site, this provision 
would not be applicable, because, among other requirements, such a unit 
should remain subject to today's proposed capping requirement at 
Sec. 264.552(e)(6)(iv).
    Today's proposed approach is consistent with the current 
``contained-in'' policy, under which contaminated environmental media 
(e.g., soil or water) are not considered to ``contain'' hazardous waste 
when concentrations of hazardous constituents are below heath-based 
levels appropriate to the site. The determination that contaminated 
media do not contain hazardous waste is commonly referred to as a 
``contained-in determination.'' A general description of the contained-
in policy, with references, is given in the October 1998 memorandum, 
``Management of Remediation Waste Under RCRA'' (EPA530-F-98-026).
    EPA seeks comment on its proposed approach to address situations 
where wastes are placed in CAMUs with constituents at or below remedial 
levels or goals applicable to the site.

I. Treatment and/or Storage Only CAMUs (Sec. 264.552(f))

    In today's notice, EPA is proposing amendments that make 
distinctions between CAMUs that are used for treatment and/or storage 
activities only and CAMUs in which wastes will remain in place after 
closure. Under today's proposal, treatment and/or storage only CAMUs 
would not be subject to the treatment requirements or the minimum 
technical standards for liners and caps (described above), with certain 
exceptions for longer-term treatment or storage activities. 
Specifically, EPA is proposing to replace certain provisions of the 
CAMU rule with certain design, operating, and closure standards 
provisions from the staging pile regulations at Sec. 264.554 (finalized 
under the HWIR-media regulations (63 FR 65874 (November 30, 1998))), 
for CAMUs that are used for treatment and/or storage only. Although 
today's proposed treatment standards would not apply to CAMUs used for 
treatment and/or storage only, the Regional Administrator would not be 
prevented from requiring such treatment for waste in such a CAMU as 
part of the overall CAMU or remedy decision.\13\
---------------------------------------------------------------------------

    \13\ Note that wastes managed in treatment and/or storage-only 
CAMUs would not have to meet the treatment requirements for the 
limited time while wastes are in the CAMU. For example, if such 
wastes are subsequently managed off-site, they would be subject to 
applicable LDRs. If they are subsequently managed in a permanent 
CAMU at the site, they would be subject to the treatment 
requirements proposed today for such units.
---------------------------------------------------------------------------

    EPA believes it is necessary to propose amendments that are 
specific to treatment or storage-only CAMUs. This is because today's 
proposed amendments, discussed above, that provide for minimum 
treatment and design requirements, were designed with the typical CAMU 
in mind--that is, a CAMU that will be used for long-term, permanent 
management of cleanup wastes. Without the provisions being proposed 
here, the standards for permanent management would remove certain 
flexibility that is present in the existing CAMU rule for treatment 
and/or storage only activities. The design, operation and closure 
standards that EPA is proposing to adopt from the staging pile 
regulations are specifically tailored for shorter-term waste management 
activities, and are therefore typically better suited for treatment 
and/or storage only CAMUs, than are the proposed regulations that would 
apply to long-term, permanent management.
1. Current CAMU Regulations for Treatment and/or Storage only CAMUs
    Under the existing CAMU rule, the Regional Administrator may 
approve CAMUs solely for the treatment and/or storage of cleanup 
wastes. Many cleanups require non-permanent disposal waste management, 
such as pre-treatment or staging of cleanup wastes prior to additional 
management on- or off-site, or storage (for a longer period than 
allowed under the staging pile regulation) prior to treatment in a non-
land-based unit. The existing CAMU rule does not contain standards that 
are specific to non-permanent CAMUs. The CAMU designation factors at 
Sec. 264.552(c) address the design, operation and closure of any CAMU--
those that are used for permanent waste disposal as well as CAMUs that 
are used for treatment or storage activities only. The existing rule, 
does, however, recognize the distinction between temporary and 
permanent CAMUs in that several provisions apply solely to CAMUs where 
waste remains in place after closure. For example, two of the CAMU 
designation factors, (c)(4) and (c)(7), and certain closure standards 
at Sec. 264.552(e)(4) apply solely to permanent CAMUs where waste 
remains in place after closure.
2. Staging Pile Standards
    EPA promulgated standards for staging piles on November 30, 1998 
(63 FR 65874) at Sec. 264.554. Staging piles consist of accumulations 
of solid, non-flowing remediation waste that is used only during 
remedial operations for temporary storage at a facility. EPA 
promulgated these standards to provide greater flexibility for the 
protective storage of remediation wastes prior to completion of 
remedial activities. Staging piles are subject to design, operation and 
closure standards that were specifically designed with short-term waste 
management in mind, and without extensive, prescriptive standards such 
as are required for units involved in longer term use. Accordingly, 
staging piles are restricted to an operating term of two years, unless 
an extension of up to 180 days is approved. In addition, treatment is 
not allowed in staging piles. As EPA explained in issuing the staging 
pile regulations, owners or operators who sought to treat wastes in a 
staging pile, or who needed to store wastes for more than two years, 
could seek a CAMU (63 FR 65874, 65918 (November 30, 1998).
    Under the current regulations, cleanups that necessitate storage 
for more than the staging pile time limit, or that require treatment, 
could do so under a CAMU (or use tanks or containers, which are 
frequently not an economic option, as is discussed in the staging pile 
preamble (63 FR 65874, 65908 (November 30, 1998))). However, today's 
proposed standards for CAMUs where waste will remain in place after 
closure would largely eliminate the CAMU as a practical option for 
undertaking these treatment or storage only activities, unless special 
provisions are proposed for treatment and/or storage only CAMUs. EPA 
believes that certain provisions of the staging pile regulations, 
supplemented as described below, are appropriate for this purpose.
3. Proposed Standards for Treatment and/or Storage CAMUs
    Under today's proposed changes, CAMUs that are used for treatment 
and/or storage only would be subject to the staging pile performance 
criteria at Sec. 264.554(d)(1)(i)-(ii) and Sec. 264.554(d)(2) in lieu 
of the CAMU designation criteria at Sec. 264.552(c). The staging pile 
performance criteria at Sec. 264.554(d)(1)(i)-(ii) and 
Sec. 264.554(d)(2) require the Regional Administrator to establish 
standards and design criteria for a staging pile that facilitates a 
reliable, effective and protective remedy that is designed to prevent 
or minimize releases and

[[Page 51110]]

minimizes or controls cross-media impacts. The Regional Administrator 
is required to set these standards and design criteria by considering 
several factors, including, length of operation, volumes of wastes, 
physical and chemical properties of wastes, potential for releases, 
environmental factors that may influence migration of any potential 
release, and potential for human and environmental exposure to 
potential releases from the unit. EPA believes it makes sense to 
replace the Sec. 264.552(c) CAMU designation criteria, which place 
emphasis on factors that do not apply to shorter-term CAMUs (see, e.g., 
Sec. 264.552(c)(4) and (7), pertaining to closure of CAMUs with wastes 
in place) with the design criteria in the staging pile rule. By 
focusing on, among other things, ``reliable'' and ``protective'' 
remedies, the staging pile requirements embrace the general concepts in 
the CAMU criteria, but with a more direct focus on factors specific to 
short-term waste management. (See, e.g., Sec. 264.554(d)(2), which 
focuses the Regional Administrator on issues such as ``the length of 
time the pile will be in operation.'').
    EPA is proposing that the staging pile standards at 
Secs. 264.554(e), 264.554(f), 264.554(j) and 264.554(k) also apply to 
CAMUs that are used for treatment and/or storage only.
    The Sec. 264.554(e) and (f) standards, respectively, as applied to 
CAMUs, would address management of ignitable, reactive, or incompatible 
cleanup wastes. These standards were promulgated for staging piles and, 
in EPA's view, are reasonable management practices that are applicable 
for similar wastes in non-permanent CAMUs.
    The staging pile standards at Secs. 264.554(j) and 264.554(k), 
under today's proposal, would be the closure standards for treatment 
and/or storage only CAMUs that are located in previously contaminated 
areas or uncontaminated areas, respectively. These standards would be 
used instead of the CAMU closure standards at Sec. 264.552(e)(6). EPA 
believes that the circumstances associated with closure of staging 
piles, which are restricted to non-permanent waste management 
activities, are the same as those for CAMUs undertaking non-permanent 
waste management activities.
    EPA is also proposing that treatment and/or storage only CAMUs that 
comply with the time limits established under the staging pile 
regulations (at Secs. 264.554(d)(iii), 264.554(h), and 264.554(i); the 
time limit is two years, plus a potential 180 day extension) would be 
subject to the performance and technical standards for staging piles in 
lieu of the permanent CAMU liner or groundwater monitoring requirements 
under proposed Sec. 264.552(e)(3) and (5), respectively. However, 
treatment and/or storage only CAMUs that are in existence for longer 
than these time limits would be subject to the proposed 
Sec. 264.552(e)(3) and (5) liner and groundwater monitoring 
requirements including corrective action, for CAMUs that are used for 
permanent disposal. EPA believes that the use of CAMU units for 
treatment and/or storage only activities for longer than these time 
limits raises concerns about potential impacts to groundwater similar 
to those raised by CAMU units that are designed for permanent disposal.
    EPA believes that today's proposed approach to groundwater 
monitoring and liner requirements for CAMUs exceeding the staging pile 
time-frame is consistent with that described in the preamble to the 
staging pile regulations. The preamble recommends (63 FR 65918) that 
CAMUs be considered in cases where there is an anticipated need for 
additional time beyond the time limits for staging activities. In such 
cases, the preamble recommends that for an existing staging pile 
converted to a CAMU for longer-term staging activities, modifications 
might be needed to the staging pile design to address longer-term 
storage, including leak detection systems, run-off controls, air 
emissions controls, ground water monitoring systems, and leachate 
collection systems.
    In proposing this liner requirement for treatment and/or storage 
only CAMUs, EPA is not envisioning typical landfill cell designs that 
would be used for permanent disposal (i.e., that partially surround a 
large volume of waste), but rather, that composite liner systems would 
generally be installed. EPA also anticipates that it would be 
appropriate at many sites conducting treatment and/or storage 
activities to consider use of the alternate liner standards under 
proposed Sec. 264.552(e)(3)(ii). This is because treatment and/or 
storage activities will only be undertaken for a temporary period, and 
there will be significant opportunities for operating practices to be 
employed that affect potential migration of contaminants to 
groundwater; such practices could potentially be factored into the 
assessment of whether an alternate liner approach could be used. For 
example, a roof constructed over the stored wastes or treatment area 
could be as effective as the CAMU liner standard, based on conditions 
at the site and operating practices. At many sites, EPA anticipates 
that, although the CAMU may be in use for more than two or two and a 
half years, potential migration to the ground or surface water might be 
significantly reduced if, as an operating practice, wastes are 
intermittently placed in the CAMU. EPA also anticipates that if a 
storage and/or treatment only CAMU is placed in an existing area with 
significant contamination, given the time frame of the CAMU, operating 
practices, and site-specific factors, it could be appropriate at some 
facilities for the Regional Administrator to approve alternate 
requirements under the alternate liner provision for new, expansion, or 
lateral replacement CAMUs proposed at Sec. 264.552(e)(3)(ii)(B).
    The administrative mechanism for the CAMU (i.e., permit or order) 
would be required to specify the time limit for the CAMU. The 
regulations would provide that this time limit could be no longer than 
necessary to achieve a timely remedy selected for the waste. The 
Agency's general expectation is that even the longest remedies 
involving storage or treatment activities in such non-permanent CAMUs 
would be completed within years not decades, except in very unusual 
circumstances. The Agency would expect that storage and/or treatment 
CAMUs would only go beyond the several-years life-span if they were 
being used to stage cleanup wastes. A reasonable example would be a 
large facility in a phased, multi-year cleanup that will be using the 
CAMU for storage and treatment of cleanup wastes that are obtained 
during different phases of cleanup. Under this circumstance, there is 
not long-term stockpiling of cleanup wastes; rather, cleanup wastes are 
placed temporarily in the CAMU as part of the cleanup, and subsequently 
moved out of the CAMU for final appropriate disposal or treatment 
elsewhere. Under today's proposed approach, such a facility would not 
have to undergo repeated unit startup and closure during each phase of 
the cleanup. Just as for staging piles under Sec. 264.554(d)(iii), the 
operating term of the CAMU used for storage and/or treatment would 
start when waste is first placed in the CAMU, regardless of whether any 
increment of waste would be in the CAMU for less than the time 
allotted.
    EPA seeks general comment on its approach to incorporating the 
staging pile regulations for treatment and/or storage only CAMUs. In 
particular, EPA seeks comment on an alternate option of modifying the 
staging pile regulations, rather than the CAMU regulations, to allow 
for waste management activities in staging piles that are consistent 
with today's proposed standards for

[[Page 51111]]

treatment and/or storage only CAMUs. Under this option the CAMU rule 
would not draw a distinction between CAMUs used for treatment/and or 
storage only and those used for permanent disposal, nor would the rule 
contain separate standards for design, operation and closure of 
treatment and/or storage only CAMUs. Owners or operators seeking 
treatment or lengthier storage of cleanup wastes, but not permanent 
disposal of the waste, would be able to undertake such activities in 
staging piles.
    EPA also seeks comment on retaining today's proposed approach to 
treatment and/or storage only CAMUs, but also implementing it by 
amending the staging pile regulations to allow treatment of remediation 
waste in staging piles. In the final HWIR-media rule, EPA prohibited 
waste treatment in staging piles in part based on concerns regarding 
the risks of treatment (e.g., from possible air emissions) (November 
30, 1998, 63 FR 65911). Industry representatives, however, have since 
argued that the staging pile regulations provide adequate protection 
against threats from air emissions (e.g., staging piles be designed to 
``prevent or minimize releases of hazardous waste or hazardous 
constituents into the environment'' and to ``minimize or adequately 
control cross-media transfer'' (40 CFR 264.554(d)(1)(ii)). Furthermore, 
industry representatives have repeatedly expressed the concern that the 
prohibition on treatment in staging piles severely limits the 
usefulness of these units--particularly because some form of ``pre-
treatment'' is often associated with staging remediation wastes before 
final RCRA treatment. For example, contaminated soils may be 
consolidated into piles during remediation and then sized or blended to 
enhance subsequent treatment. These sizing or blending operations 
could, depending on site-specific circumstances, meet the definition of 
``treatment'' under RCRA, in which case the operations would not be 
allowed under the staging pile regulations.
    EPA has acknowledged industry's concerns on this issue, but it 
generally believed that it had addressed them in the settlement leading 
to today's proposal. Under today's proposal, a facility owner/operator 
wishing to treat eligible cleanup waste in temporary piles could seek a 
treatment and/or storage only CAMU. In this case, the pile would be 
regulated under the same substantive standards as a staging pile, and 
treatment would be allowed. Industry stakeholders, however, continue to 
raise concerns, arguing that CAMU approvals are likely to be more 
difficult to obtain--even if the technical standards are the same--
because of the high degree of attention and analysis that has typically 
accompanied CAMU decisions. Industry also expressed concerns that some 
states may be interested in picking up staging pile requirements, but 
will not seek authorization for the revised CAMU rule (or may do so on 
a slower schedule). At the same time, other stakeholders have suggested 
that treatment is inappropriate in staging piles because these units 
were intended solely to allow consolidation of remediation wastes 
before full treatment on-site or shipment off-site--that is, they are 
``staging'' piles, not ``treatment'' units. Allowing treatment in such 
a unit, in their view, could be misleading to the public (unless the 
name of unit were changed) and raise a whole range of issues better 
addressed through the CAMU process; while this process might draw more 
attention or entail more analysis, that could well be appropriate where 
treatment was involved.
    EPA seeks further comment on issues raised by treatment in staging 
piles and whether it should make regulatory changes to the current 
prohibition. In particular, EPA seeks comment on the option of amending 
the staging pile regulations to allow treatment, as well as narrower 
approaches that might reconcile the differing views of stakeholders. 
For example, the staging pile regulations might explicitly allow 
mixing, sizing, blending, or similar physical operations, as long as 
they were intended to prepare wastes for subsequent management or 
treatment. EPA encourages commenters to provide their views on these or 
other options.\14\
---------------------------------------------------------------------------

    \14\ The Agency seeks comment solely on the issue of amending 
the staging pile regulations to allow treatment and/or longer-term 
storage, not any other aspect of those regulations.
---------------------------------------------------------------------------

J. Grandfathering CAMUs (Secs. 264.550 and 264.551)

    At the time of today's notice, there are a considerable number of 
CAMUs either approved or under consideration. It is important to EPA to 
keep these cleanups going and to avoid disrupting on-going activities. 
EPA believes that there will be little incremental gain in redirecting 
resources to re-analyzing CAMU decisions in light of the new standards. 
Further, EPA analyzed these CAMUs in developing these proposed 
revisions and concluded that the CAMU decisions would generally have 
been the same, or similar, to those that might have been made under the 
proposed requirements. The Agency therefore is proposing provisions 
that would allow certain CAMUs to continue to be implemented pursuant 
to the current rules which are the rules under which they were approved 
or planned.
    EPA is proposing an approach, at Sec. 264.550, under which two 
classes of CAMUs would remain subject to the 1993 CAMU regulations 
following final issuance of the CAMU amendments (i.e., would be 
``grandfathered''). These classes are: (1) CAMUs that are approved 
prior to the effective date of the final amendments; and (2) CAMUs 
which were not approved prior to the effective date of the final 
amendments but for which substantially complete applications (or 
equivalents) were submitted to the Agency on or before 90 days after 
the publication date of the proposed rule (i.e., today's Federal 
Register notice). To continue to operate pursuant to the requirements 
of the current CAMU rules, CAMUs that fall into either of these classes 
would be required to operate within the general scope of the originally 
issued CAMU authorizing document (e.g., permit). If the CAMU changes in 
a way that exceeds the general scope of its original approval, those 
changes would be implemented in accordance with the amended CAMU rule. 
``Approved'' means that the decision to designate a CAMU is final 
(e.g., the Agency issues a final permit authorizing a CAMU). The Agency 
included ``(or equivalent)'' after the word ``application'' to address 
the situation where it is not the responsible party for the cleanup 
that is requesting a CAMU--e.g., where the Agency imposes such a 
requirement as part of the remedy in a section 3008(h) unilateral 
order.
    If EPA were not to include this provision, CAMU owner/operators who 
obtained approval prior to the amendments would be subject to re-
evaluation in light of the new CAMU standards when the permit was up 
for renewal, during Agency-initiated proceedings to specifically 
include new requirements, or when the contemplated activities otherwise 
required a modification of the permit or other enabling mechanism, such 
as an enforcement order. EPA does not believe that this is an efficient 
use of cleanup resources. Similarly, EPA believes that it would also be 
a poor use of cleanup resources to require re-evaluation of such CAMUs 
that are substantially in the approval process. The Agency therefore 
has proposed to grandfather CAMUs that have, in the judgement of the 
oversight agency, substantially complete applications (or equivalents) 
within three months of publication of this proposal. The Agency does 
not want owners or

[[Page 51112]]

operators, or the oversight agencies, to disrupt or slow down the 
cleanup process by re-visiting prospective CAMUs under a new set of 
standards where there has been a substantial commitment to the process. 
EPA believes that it will be disruptive for facilities that are within 
90 days of a substantially complete CAMU application (under the 1993 
rule) at the time this proposal is issued to stop and conduct analyses 
in an effort to assess whether modifications would be warranted because 
of this proposal; EPA also believes that the three-month period from 
proposal would provide a reasonable time for owners or operators 
significantly invested in applying for a CAMU under the existing 
regulations to work with oversight agencies to ensure that a 
substantially complete application is submitted if they wish to obtain 
a CAMU under the existing CAMU regulations.
    Under the proposed approach, EPA would interpret ``substantially 
complete application'' to mean that an application reflects that enough 
good-faith work has been done on it that imposition of the new 
requirements would be an inefficient use of a facility's and the 
Agency's cleanup resources. The Agency would expect, at the least, that 
the application is at a point at which it thoroughly and carefully 
addresses the main elements of CAMU designation that address long-term 
protectiveness, including the location of the CAMU, wastes proposed for 
management, technical design elements, and description of anticipated 
treatment, if any, of the wastes. This does not mean, however, that the 
application would have to be at a point where it would be deemed 
``complete'' under the permitting requirements of Sec. 270.10(c), which 
generally means that it be ready for proposal and public comment. For 
example, EPA would generally expect a substantially complete 
application, at a CAMU where wastes were to be left in place, to 
include a reasonable approach for groundwater monitoring that addresses 
site-specific conditions, but would still consider the application 
``substantially'' complete where the Agency intends to further discuss 
the details of the groundwater monitoring system. EPA expects that 
where there has been substantial input by the Agency into the 
application by the 90th day, there would be a higher likelihood that 
the application would be found to be ``substantially complete.'' 
However, there may also be situations where the Agency has yet to 
engage with the owner or operator by the 90th day, but where the owner 
or operator has done such a thorough job analyzing the appropriate 
elements that the Agency would find it ``substantially complete.'' Of 
course, any CAMU that has been proposed by the Agency by the 90th day 
would have a ``substantially complete application.''
    EPA expects that many, if not most, CAMUs that are substantially in 
the approval process by the 90th day after this proposal would be 
approved by the effective date of the CAMU amendments. For such CAMUs, 
the proposed provision for ``substantially complete'' applications 
would not be needed. EPA anticipates that there will be cases, however, 
where CAMUs with substantially complete applications within 90 days of 
publication of this proposed rule will not receive final Agency 
approval of their application prior to the effective date of the final 
CAMU amendments. Reasons for delay could relate to such factors as 
ongoing administrative processes, including administrative appeals, 
time involved in receiving and responding to public input, and time 
needed to work out technical details, such as those involving 
monitoring well placement and design. In addition, as owner/operators 
and regulatory agencies might do in preparing for the promulgation of 
any new regulation applicable to its activities, for those CAMUs with 
applications that are not expected to be approved by the effective date 
of the CAMU amendments or to meet the proposed ``substantially 
complete'' test by the proposed deadline, EPA suggests using the 
proposed amendments as guidance (prior to finalization of the 
amendments) in developing CAMU proposals, as appropriate. This approach 
would minimize the risk of having to make significant changes to CAMU 
plans at the time of the final rule. EPA is aware that the proposed 
amendments may change prior to the final rule; EPA intends to therefore 
keep the regulated community and oversight agencies apprised of any 
likely changes. EPA seeks comment on its approach to address the timing 
of CAMU applications and grandfathering of CAMUs.
    Under today's proposal, to avoid the disruptions discussed above, 
CAMUs that are ``grandfathered'' would remain subject to the current 
standards for the life of the CAMU, as long as the ``waste, waste 
management activities, and design of the CAMU remain within the general 
scope of the CAMU as approved.'' EPA anticipates two types of 
circumstances--subject to site-specific determination by the Agency--
that generally would be considered ``within the general scope of the 
CAMU as approved.'' First, changes to waste, waste management 
activities, and design that can be made without modification of the 
approved CAMU conditions in the permit would be considered ``within the 
general scope of the CAMU as approved,'' and would therefore be 
grandfathered. The same general principal would apply for non-permit 
decision documents such as enforcement orders. These changes would 
typically include such activities as modifying sampling and analysis 
plans or adjusting a treatment technology, based upon implementation in 
the field. Second, certain circumstances that might require 
modification of the terms of the CAMU could still remain within the 
general scope of the originally approved CAMU. Examples of such 
activities include adding more volume of essentially the same waste 
(same or similar constituents and origin) that was originally approved, 
or retaining the same basic design but enlarging a CAMU to accommodate 
the extra volume of wastes. However, the new amendments would apply 
under circumstances that are outside of the scope of the originally 
approved CAMU, such as different types of wastes slated for disposal in 
the CAMU, or substantial lateral expansion of a CAMU at the site.
1. Documentation of ``Substantially in the Approval Process.''
    EPA is not envisioning any formal process for documenting that 
CAMUs are ``substantially in the approval process'' by the proposed 
deadline. Of course, EPA would, if the proposed grandfathering 
provisions are finalized, expect the Regional Administrator to record 
and justify this finding in the administrative record for the proposed 
and/or final CAMU approval. EPA would generally expect that, in 
addition to filing proper documentation in the administrative record, 
if requested, the Agency would notify the owner or operator in writing 
of the Agency's view of the completeness of the application before or 
shortly after the time of the proposed deadline so that the owner or 
operator would be on notice of what standards will apply to them if the 
proposed amendments are finalized and if they do not obtain CAMU 
approval prior to such finalization.

K. Public Participation (Sec. 264.552(h))

    Today's proposal would expand on the requirements providing for 
public input into the establishment of CAMUs by making prior public 
notice and opportunity to comment on CAMU decisions mandatory. With 
these changes, the public would be better

[[Page 51113]]

assured of the opportunity for pre-decisional involvement in final CAMU 
determinations, whether the CAMU is authorized under a permit, order or 
other mechanism. In addition, EPA is proposing rule language that would 
expressly require the Regional Administrator to include in the public 
notice the rationale for any proposed application of the adjustment 
factors to the treatment requirement. These changes are consistent with 
EPA's long-standing policy for public involvement in major cleanup 
activities and are consistent with the implementation of the CAMU rule 
to date.
    The existing CAMU rule, under Sec. 264.552(f), requires the 
Regional Administrator to document the decision rationale for the CAMU 
and to make such documentation available to the public. The existing 
rule, under Sec. 264.552(g), also requires, in cases where the CAMU is 
being implemented through a permit, that the CAMU be incorporated into 
an existing permit in accordance with the permit modification 
procedures in Secs. 264.270.41 and 264.270.42 of this chapter, which 
require public notice and comment. EPA is concerned that, under the 
current regulations, CAMUs might undergo approval under orders without 
the public having the opportunity to comment on the proposal. In 
addition, EPA is concerned that the wording of the current CAMU rule, 
stating the Regional Administrator's duty to document and make 
available to the public the ``rationale'' for designating a CAMU, might 
imply that other aspects of the CAMU decision need not be presented to 
the public for comment (e.g., specific CAMU design details). EPA 
believes that this proposed change will remove any such potential 
omission.
    Because of these concerns, EPA is proposing to replace the existing 
requirement at Sec. 264.552(f) with the following requirement (proposed 
at Sec. 264.552(h)): ``The Regional Administrator shall provide public 
notice and a reasonable opportunity for public comment before 
designating a CAMU. Such notice shall include the rationale for any 
proposed adjustments under Sec. 264.552(e)(4)(iii)(B) to the treatment 
standards in Sec. 264.552(e)(4)(iv).'' EPA believes that this proposed 
modification is consistent with existing policy and practices (see the 
September, 1996 RCRA Public Participation Manual, especially Chapter 4; 
this manual is in the docket for today's rule), will increase the 
certainty that public involvement will occur for all CAMUs, and will 
provide for flexible approaches to implementation.
    In general, as articulated in the above cited guidance, EPA 
believes that under today's proposed modifications, the public should 
have an opportunity, early on, to become involved in the process and 
provide input into remedial decision-making, including CAMU decisions. 
Today's proposed standard of ``reasonable opportunity'' provides for 
flexibility that EPA believes is necessary for public involvement 
concerning the CAMU decision to be implemented within the broader 
context of the facility cleanup; as a general minimum, in accordance 
with the above-cited guidance, a reasonable opportunity should include 
informing the public about a prospective CAMU, and providing meaningful 
opportunity for the public to comment prior to the final agency 
determination to approve a CAMU.
    In addition to proposing a general performance standard of 
``reasonable opportunity'' for public comment in CAMU determinations, 
EPA is also proposing to add a specific requirement that the 
description of the proposed CAMU include the rationale for any 
adjustments to the treatment requirement. The Agency chose to highlight 
the importance of the proposed treatment adjustment factors because 
this is an area that can be of especially great interest to the public 
at cleanup sites. The Agency's general experience with remediation 
sites in the RCRA corrective action and Superfund programs is that 
there is often a high level of interest shown by the public on 
treatment issues.
    EPA is seeking comment on whether to apply the public participation 
procedures in the ``RCRA Expanded Public Participation Rule,'' which 
was published in 1995 (60 FR 63417), to all CAMU decisions. In other 
words, should the Agency extend this rule, which already applies to 
CAMU permit decisions, to CAMUs included in orders. Prior to issuance 
of that rule, formal public involvement was required at two points in 
the permitting process--when the permitting agency announced its intent 
to grant or deny a permit, and when a facility requested a modification 
of an existing permit. The Expanded Public Participation Rule added the 
following requirements: 1) Permit applicants must hold an informal 
meeting to inform community members of proposed hazardous waste 
management activities before applying for a permit to conduct these 
activities; 2) the permitting agency must announce to the public when a 
permit application is submitted; 3) the permitting agency may require a 
facility to set up an information repository; and, 4) the permitting 
agency must notify the public prior to trial or test burns at 
combustion facilities. After issuing the rule, EPA issued guidance 
providing more detail on public involvement in corrective action (see 
the September, 1996 RCRA Public Participation Manual, especially 
Chapter 4; this manual is in the docket for today's rule; this manual 
and the 1996 Expanded Public Participation Rule are also available at 
www.epa.gov/epaoswer/hazwaste/permit/pubpart.index). This guidance 
states that, in general, the principles in the rule are appropriate for 
RCRA corrective action undertaken pursuant to either permits or orders.
    If EPA were to adopt today's proposed amendments to the CAMU rule, 
the ``permit applicant'' in requirement 1, referred to above, would be 
read as the facility receiving an order for a CAMU; the ``permitting 
agency,'' referred to above in requirements 2-4 would be read as the 
``Regional Administrator.'' EPA is seeking comment on whether to apply 
these public participation procedures to all CAMU decisions.
    Public involvement in the overall RCRA corrective action program is 
currently being discussed as part of EPA's RCRA Cleanup Reforms. EPA 
intends that its approaches to public participation for the designation 
of CAMUs will be informed by this initiative. Currently, 
representatives from community and environmental groups have expressed 
their views to EPA concerning public involvement in RCRA Corrective 
Action cleanups. To date, the groups have expressed concerns regarding 
EPA and state authority for public involvement in RCRA Corrective 
Action, consistent application of public involvement across state and 
EPA programs, options for public involvement assistance to communities 
around sites undergoing RCRA Corrective Action, and the role of the EPA 
Ombudsman in public involvement activities.
    EPA continues to seek feedback from all stakeholders on the RCRA 
Cleanup Reforms. The Agency welcomes additional feedback on ways to 
enhance community involvement including greater public access to 
information on cleanup progress. Additional information on the Reforms 
is available at www.epa.gov/epaoswer/osw/cleanup.htm> or by calling the 
RCRA Hotline at 800-424-9346

L. Additional Requirements (Sec. 264.552(i))

    EPA is proposing at Sec. 264.552(i) that the Regional Administrator 
may impose

[[Page 51114]]

requirements in addition to those specified in the CAMU regulations. 
Specifically, proposed Sec. 264.552(i) reads: ``(i) Notwithstanding any 
other provision of this section, the Regional Administrator may impose 
additional requirements as necessary to protect human health and the 
environment.'' The existing CAMU rule provides the ability to require 
any additional requirements, as necessary to protect human health and 
the environment. Because EPA is proposing detailed minimum technical 
standards in several areas in today's rule, EPA believes that it is 
appropriate to include this specific provision to clarify within the 
regulations that requirements beyond those specifically provided for in 
the rule may be necessary on a site-specific basis at a CAMU. This 
provision would recognize the ability of the Regional Administrator to 
impose requirements relating to any element of CAMUs, including: 
requirements for additional treatment of PHCs beyond the minimum 
standards; requirements for additional engineering or monitoring 
specifications; and prohibition of specific wastes from inclusion in a 
CAMU.

IV. Relationship Between Today's Proposed Action and Other 
Regulatory Programs

A. Impact of Today's Amendments.

    Today's proposed amendments would not change the relationship 
between other state and federal programs and the CAMUs regulations. 
These amendments would solely affect the way hazardous cleanup wastes 
are managed in corrective action management units. These rules would 
set standards for hazardous waste management units when EPA or a state 
chooses to take advantage of the flexibility provided by the CAMU rule, 
but they would not affect, in any way, other aspects of RCRA cleanups, 
e.g., how cleanup levels are set or when treatment is required at RCRA 
corrective action facilities. Although these standards borrow, as 
appropriate, from approaches in current remediation programs (including 
RCRA corrective action for SWMUs), they were not designed for making 
remedial decisions outside the CAMU context, such as in state or 
federal cleanup programs, where program-specific remedial decision-
making processes are already in use. Today's rule would leave in place, 
and would leave untouched, all of EPA's current policies and 
regulations covering hazardous waste cleanups, including such familiar 
policies as the ``area of contamination'' concept, ``contained-in'' 
decisions, the regulatory definition of ``remediation waste,'' and the 
various remediation-specific LDR variances. For a discussion of these 
and other policies, see the May, 1996 Corrective Action ANPR (61 FR 
19432), the October 1998 Memorandum, ``Management of Remediation Waste 
Under RCRA,'' EPA530-F-98-026, and the preamble discussion to the HWIR-
media rule at 63 FR 65874, 65877-65878 (November 30, 1998) (these 
references are in the docket for today's rule). The preamble to the 
1993 CAMU rule discusses the relationship between the CAMU rule and 
other regulatory programs, including CERCLA (see 58 FR 8658, 8679 
(February 16, 1993)).

V. How Would Today's Proposed Regulatory Changes Be Administered 
and Enforced in the States?

A. Applicability of Federal Rules in Authorized States

    Under section 3006 of RCRA, EPA may authorize qualified States to 
administer the RCRA hazardous waste program within the State. A State 
may receive authorization by following the approval process described 
under Sec. 271. See 40 CFR part 271 for the overall standards and 
requirements for authorization. Following authorization, the State 
requirements authorized by EPA apply in lieu of equivalent Federal 
requirements and become Federally enforceable as requirements of RCRA. 
EPA maintains independent authority to bring enforcement actions under 
RCRA sections 3007, 3008, 3013, and 7003. Authorized States also have 
independent authority to bring enforcement actions under State law.
    After a State receives initial authorization, new Federal 
requirements promulgated under RCRA authority existing prior to the 
1984 Hazardous and Solid Waste Amendments (HSWA) do not apply in that 
State until the State adopts and receives authorization for equivalent 
State requirements. In contrast, under RCRA section 3006(g) (42 U.S.C. 
6926(g)), new Federal requirements and prohibitions imposed pursuant to 
HSWA provisions take effect in authorized States at the same time that 
they take effect in unauthorized States. As such, EPA carries out HSWA 
requirements and prohibitions in authorized States, including the 
issuance of new permits implementing those requirements, until EPA 
authorizes the State to do so.
    Authorized States are required to modify their programs when EPA 
promulgates Federal requirements that are more stringent or broader in 
scope than existing Federal requirements. RCRA section 3009 allows the 
States to impose standards more stringent than those in the Federal 
program. See also Sec. 271.1(i). Therefore, authorized States are not 
required to adopt Federal regulations, both HSWA and non-HSWA, that are 
considered less stringent than existing Federal requirements.

B. Authorization of States for Today's Proposal

    Today's proposal would be primarily implemented pursuant to 
sections 3004(u) and (v) of RCRA, which are HSWA provisions. This 
statutory authority also formed the statutory basis for the original 
federal Corrective Action Management Unit (CAMU) regulations (see 58 FR 
8658, 8677 (February 16, 1993)). Therefore, when promulgated, the 
Agency would add the rule to Table 1 in Sec. 271.1(j), which identifies 
the Federal program requirements that are promulgated pursuant to HSWA. 
States may apply for final authorization for the HSWA provisions in 
Table 1, as discussed in the following section of this preamble.
    Today's proposed amendments to the CAMU regulations would be more 
stringent than the existing federal CAMU regulations, although EPA 
believes that the current CAMU practices are similar to those that 
would be required under the proposed amendments. Thus, States that have 
already been granted authorization for the existing 1993 CAMU rule 
would be required to revise their programs so that they are not less 
stringent than the Federal program, including the new amendments. 
Further, because today's proposed amendments to the CAMU rule would be 
promulgated under HSWA authority, after the amendments become 
effective, EPA would implement them in States authorized for the 1993 
CAMU rule until these States receive interim or final authorization for 
the final rule. EPA would also continue to implement the amended CAMU 
regulations in those States that have not received authorization for 
corrective action, consistent with State law. As explained in the 1993 
CAMU rule preamble (see 58 FR 8658 (February 16, 1993)), the CAMU rule 
is integral to the HSWA corrective action program, and where EPA 
implements the corrective action requirements, EPA also implements the 
CAMU rule (consistent with state law). Note that state laws or 
regulations may be more stringent or broader in scope than the Federal 
regulations.
    States that are authorized for corrective action but have not 
received

[[Page 51115]]

authorization for the existing CAMU rule would not be required to seek 
authorization for the amended CAMU regulations because those States' 
authorized regulations for corrective action and Land Disposal 
Restrictions (LDRs) are more stringent than the Federal regulations 
that include CAMUs. Because CAMUs are used as part of a corrective 
action and they are often integral to the implementation of corrective 
action at individual facilities, States are strongly encouraged to 
adopt and seek authorization for the CAMU regulations. After 
publication of the final CAMU amendments, States would no longer be 
able to seek authorization solely for the 1993 CAMU rule without the 
amendments.

C. Interim Authorization-By-Rule for States Currently Authorized for 
the CAMU Rule

    Currently, 21 States are authorized for the existing CAMU 
regulations and are responsible for their implementation, including 
reviewing applications for CAMUs from facilities and overseeing the 
operation of approved CAMUs. These States are also authorized for 
corrective action. In addition, EPA is aware of 16 States that have 
adopted CAMU regulations, but that have not yet received authorization 
for them. One of EPA's goals regarding the implementation of today's 
proposed rulemaking is to enable CAMU-authorized States to continue to 
implement the CAMU regulations after these proposed amendments are 
finalized. States authorized for the 1993 CAMU rule would continue to 
implement unmodified provisions in that rule, but because today's 
proposed rulemaking is more stringent and would be promulgated as a 
HSWA rule, until those States receive authorization for the amendments, 
EPA would have regulatory authority over requirements added by these 
amendments. This would result in a situation where there would be two 
direct implementers of the CAMU regulations over a single unit. This 
situation would be extremely disruptive to the operation of the ongoing 
regulatory program for CAMUs because there would be redundant 
regulatory oversight of these units. One result would be the inevitable 
delay in the implementation of CAMUs at individual facilities. Because 
the management of CAMU-eligible waste in these units expedites the 
completion of the clean-up process at individual facilities, these 
potential delays would be counter to the RCRA clean-up goals, and could 
interfere with the goal of protecting human health and the environment.
    To address these concerns, EPA is today proposing to grant eligible 
CAMU-authorized States interim authorization for the proposed CAMU rule 
amendments as part of today's proposed rulemaking through a new 
process. EPA is calling today's proposed interim authorization of 
eligible States ``interim authorization-by-rule'' because it would 
occur as part of the rulemaking process for the CAMU amendments. The 
interim authorization-by-rule would be effective for all qualifying 
States on the same date that the CAMU amendments, when promulgated, 
become effective, rather than on a State-by-State basis through a 
separate interim authorization process that would occur after these 
amendments are promulgated. Only those States that are authorized for 
the 1993 CAMU rule at the time the final rule for these proposed 
amendments is signed and that meet the other criteria set forth in 
proposed Sec. 271.27 (described below) would be eligible to receive 
interim authorization-by-rule.
    This interim authorization-by-rule would expire three years after 
the effective date of the CAMU amendments. Therefore, these States 
would need to receive final authorization for the rule to continue to 
implement the amendments after the expiration of interim authorization. 
The proposed interim authorization-by-rule requirements would be 
located in new Sec. 271.27, and would apply only to the amended CAMU 
regulations. Because the interim authorization of States for these 
proposed amendments would be integral to today's proposed interim 
authorization-by-rule process, EPA is requesting comments on both 
aspects of this proposal.
1. Description of the Basis for Interim Authorization-By-Rule
    States can currently receive interim authorization for rules that 
have been federally promulgated under HSWA statutory authority (see 
section 3006(g) of RCRA). This statutory provision directs EPA to grant 
States interim authorization if the State regulations are substantially 
equivalent to the Federal provisions. This requirement for interim 
authorization differs from the provisions in RCRA section 3006(b) for 
final authorization, which require that State programs be fully 
equivalent to the Federal program. The differences between the 
statutory requirements for interim authorization and final 
authorization exist because Congress intended interim authorization to 
be a mechanism to allow existing State programs to continue functioning 
without disruption for a limited period of time, during which States 
would amend their programs to be equivalent to the Federal program.
    Today's proposed interim authorization-by-rule process is based 
upon the statutory authority for interim authorization in section 
3006(g) of RCRA. Using this authority, EPA is proposing a rule granting 
interim authorization for the CAMU amendments to States that are 
already authorized for the 1993 CAMU rule and that meet the criteria 
specified in Sec. 271.27(a), without the need for a State-specific 
determination. These proposed criteria are described below. Thus, as 
part of EPA's promulgation of the CAMU amendments, EPA would also grant 
interim authorization-by-rule to States for the amendments once these 
criteria are met. EPA requests comment on whether these proposed 
criteria would suffice as the basis for granting interim authorization 
to eligible States as part of these amendments.
    EPA believes that further review of these States' CAMU programs is 
not necessary to determine that these States meet the statutory 
standard for interim authorization because of: (1) the type of 
amendments to the CAMU regulations being proposed today; (2) the 
restrictions on State eligibility in proposed Sec. 271.27; (3) the fact 
that States' existing CAMU regulations have already been through the 
authorization process for those regulations; (4) the fact that States 
will use the amendments as guidance under their existing regulatory 
authority until they receive final authorization; and (5) EPA's 
oversight of State implementation of their authorized CAMU regulations.
2. Eligibility of States for the Proposed Interim Authorization-By-Rule 
Process
    In order for States to receive interim authorization for the CAMU 
amendments, States would have to have regulations that are 
substantially equivalent to the amended Federal CAMU regulations. 
Proposed Sec. 271.27(a)(1), would restrict the eligibility for interim 
authorization-by-rule to those States that are authorized for the 1993 
CAMU rule (58 FR 8658, February 16, 1993). Due to the nature of the 
proposed amendments, EPA believes that States which have received 
authorization from EPA for the existing 1993 CAMU rule have regulations 
that are substantially equivalent to today's proposed amended CAMU 
regulations. Specifically, the CAMU amendments are not generally 
designed to produce different site-specific CAMU standards than would 
be imposed under the current rules, but instead are meant to make 
clearer the Agency's general minimum expectations for CAMUs and

[[Page 51116]]

to make the CAMU process more consistent and predictable, as well as 
more explicit for the public. In fact, as described elsewhere in this 
proposal, in an assessment of approved CAMUs which was developed as 
background for today's proposal, EPA found that in general, the CAMUs 
that have been approved by EPA and the States authorized for the CAMU 
rule are consistent with the standards in today's proposed CAMU 
amendments. Thus, States are implementing the current CAMU waste 
management standards in a way that is substantially equivalent to those 
standards that would be set under today's proposed amendments.
    Another restriction on the eligibility of States for interim 
authorization-by-rule is that, under proposed Sec. 271.27(a)(2), 
eligible States cannot have audit privilege and immunity laws that 
raise EPA concerns about whether the State provides for adequate 
enforcement as required for authorization under RCRA section 3006(b). 
EPA believes that audit privilege and immunity laws undermine the 
enforcement authority that a State must possess as a condition of being 
authorized to implement federal environmental programs.\15\ Generally, 
State audit privilege laws grant information, that is generated through 
a facility self-audit, a privilege against disclosure in an 
administrative or judicial proceeding, including the investigation of 
criminal activities. Generally, State audit immunity laws eliminate 
fines or penalties if a facility discloses the audit results. EPA 
believes that State audit privilege laws restrict information that 
State regulatory agencies must have access to in order to determine 
environmental compliance and perform emergency actions, as required 
under federal environmental law. EPA believes that State immunity laws 
restrict the ability of States to assess appropriate penalties and 
injunctive relief for environmental violations, as required under 
federal environmental law. For example, audit privilege laws undermine 
the ability of States and the public to access information necessary to 
determine environmental compliance, as required under federal 
environmental law. Immunity laws undermine the ability of States to 
assess appropriate penalties for environmental violations, as required 
under federal environmental law.
---------------------------------------------------------------------------

    \15\ ``Statement of Principles: Effect of State Audit Immunity/
Privilege Laws on Enforcement Authority for Federal Programs,'' 
Memorandum from Steven A. Herman, Assistant Administrator for 
Enforcement and Compliance Assurance; Robert Perciasepe, Assistant 
Administrator for Water; Mary Nichols, Assistant Administrator for 
Air and Radiation; and Timothy Fields, Acting Assistant 
Administrator for Solid Waste and Emergency Response (February 14, 
1997).
---------------------------------------------------------------------------

    EPA has worked successfully with many States that have enacted 
audit privilege and immunity laws to reach agreements so that such laws 
do not preclude authorization of States for federal environmental 
programs. Among the States authorized for the 1993 CAMU rule, Illinois, 
Nevada, and Oregon are currently discussing with EPA enforcement issues 
raised by these States' audit privilege and/or immunity laws. Under 
proposed Sec. 271.27(a)(2) these States would not currently qualify for 
interim authorization-by-rule.
    EPA is not making any assessments regarding these States' audit 
privilege laws and their laws' effects on the adequacy of each States' 
enforcement authority as part of today's proposed rule. General EPA 
oversight and the authorization processes provide EPA and these States 
with procedures to discuss and resolve audit privilege and/or immunity 
issues that affect a State's authority to enforce federal environmental 
programs. In contrast, the proposed interim authorization-by-rule 
process would be appropriate only in circumstances where detailed 
evaluation by EPA or in-depth discussion with the State is not 
necessary for EPA to determine that the State meets the requirements 
for interim authorization.
    EPA hopes that the audit privilege law issues in these States will 
be resolved by the time the final CAMU amendments rule is signed. 
Resolution of all outstanding audit privilege law issues would make 
these States eligible for interim authorization-by-rule. The final rule 
will indicate whether this resolution has occurred. In addition, if 
other States that would currently be eligible for interim 
authorization-by-rule under this proposal enact audit privilege or 
immunity laws prior to final rule promulgation, those States will lose 
their eligibility for interim authorization-by-rule until enforcement 
issues raised by those laws are resolved.
    Under proposed Sec. 271.27(a)(3), any eligible State that wanted to 
receive interim authorization-by-rule for the CAMU amendments would 
have to notify EPA within 60 days after publication of the final CAMU 
amendments that the State intends to, and is able to (i.e., does not 
have any existing laws that would prevent the state from implementing 
these amendments), use these amendments as guidance until it adopts 
equivalent provisions. During the 60 days after publication of the 
final rule, States may evaluate the final provisions and decide whether 
they can and want to gain interim authorization-by-rule for the CAMU 
amendments. EPA is proposing this 60 day deadline to enable EPA to 
promptly publish an additional Federal Register document before the 
effective date of the CAMU amendments rule, which would be 90 days 
after its publication. This FR notice would inform the public which 
States have submitted the notification to EPA and thus, have interim 
authorization for the CAMU amendments. EPA requests comment on whether 
60 days is a sufficient amount of time for States to decide to notify 
EPA of their intentions and submit the notification to EPA. EPA also 
requests comment on whether eligible States should be able to submit 
the notification in proposed Sec. 271.27(a)(3) after the 60 day 
deadline and gain interim authorization-by-rule, as long as the 
notification was submitted before interim authorization expires for the 
CAMU rule amendments.
    Note that eligible States could choose not to commit to this 
interim authorization-by-rule process. If they are not able to, or 
choose not to seek interim authorization-by-rule, they can follow the 
process outlined in Section D below for States that are authorized for 
corrective action, but not the 1993 CAMU rule.
3. Interim Authorization Process Time Line
    The timing of events in today's proposed interim authorization-by-
rule process differs from the existing interim authorization process in 
Secs. 271.24 and 271.21. Under the existing process, EPA first 
promulgates a rulemaking, after which a State may amend its regulations 
to reflect the Federal rulemaking, and then submit an application to 
EPA seeking interim authorization for that rule. EPA then would review 
the application and subsequently reach a decision on the application, 
which EPA publishes in the Federal Register in accordance with the 
procedures in Sec. 271.21.
    In today's proposed interim authorization-by-rule process, States 
would receive interim authorization upon the effective date of the 
final regulations being proposed today, as long as they meet the 
conditions set out in today's proposal, rather than through a separate 
rulemaking action after their promulgation. The effective date of 
interim authorization for those eligible States that submit the 
notification required by proposed Sec. 271.27(a)(3) would be the 
effective date of the CAMU amendments.
    Eighteen States have received authorization for the 1993 CAMU rule,

[[Page 51117]]

and currently do not have an unresolved audit privilege and immunity 
law. EPA is proposing that these States would be eligible for today's 
proposed interim authorization-by-rule process. These 18 States are: 
Alabama, Arizona, Delaware, Georgia, Idaho, Indiana, Louisiana, New 
York, North Carolina, North Dakota, Oklahoma, South Dakota, Texas, 
Utah, Vermont, Washington, Wisconsin, and Wyoming. EPA recently 
proposed to grant Virginia authorization for the 1993 CAMU rule (July 
31, 2000, 65 FR 46681). EPA expects that when the CAMU amendments are 
promulgated, Virginia will be authorized for the 1993 CAMU rule, and 
thus would be eligible for interim authorization-by-rule. Note that 
although all these States would be eligible for interim authorization, 
not all these States may actually submit the notification required by 
proposed Sec. 271.27(a)(3) after the publication of the final CAMU 
amendments rule to gain interim authorization.\16\ Additional States 
may receive authorization for the 1993 CAMU rule after the date of 
today's proposed rule, up until the time today's proposed CAMU 
amendments are signed. Authorization for the 1993 CAMU rule would 
normally be granted by EPA through a Federal Register document, which 
is then subject to public comment. If EPA decides to authorize any 
additional States for the 1993 CAMU rule after today's proposal, in the 
Federal Register document that requests comment on that authorization. 
EPA will indicate that the authorization of the State for the 1993 CAMU 
rule will result in the State becoming eligible for interim 
authorization-by-rule for the CAMU amendments.
---------------------------------------------------------------------------

    \16\ For the purposes of commenting on this proposal, commenters 
should recognize that under the interim authorization by-rule 
approach proposed today, any state that meets the conditions 
outlined in the proposed rule (current CAMU authorization, no 
unresolved audit law issues, and notification of desire and ability 
to use the final amendments as guidance), would obtain interim 
authorization without a separate individual notice and comment 
process on that authorization.
---------------------------------------------------------------------------

    Therefore, when EPA publishes the final CAMU amendments, EPA will 
provide a full list of States that will receive interim authorization-
by-rule if the States subsequently notify EPA within 60 days after that 
publication that the State intends to, and is able to implement those 
amendments. As noted above, EPA will publish a subsequent notice in the 
Federal Register that will inform the public which States did notify 
EPA under proposed Sec. 271.27(a)(3) that they are able to and intend 
to use the CAMU amendments as guidance and thus have interim 
authorization.
4. Expiration of Interim Authorization
    Under proposed Sec. 271.27(b) and amended Sec. 271.24(c), interim 
authorization for the amended CAMU regulations would expire three years 
after the effective date of these amendments. These provisions would 
extend the time period for interim authorization for these CAMU 
amendments from the period allowed by the current expiration date of 
interim authorization for regulations promulgated under HSWA statutory 
authority in Sec. 271.24(c), which is January 1, 2003. The reason for 
this extension to the expiration of interim authorization for the CAMU 
amendments rule is to provide States sufficient time to amend their 
regulations so they are equivalent to the federal CAMU regulations, and 
then to go through the final authorization process in Sec. 271.21. EPA 
believes that three years is a reasonable period of time for States to 
complete this action and is consistent with the deadlines in 
Sec. 271.21(e) which in some cases, provide States with almost three 
years to modify their programs to reflect Federal program changes, and 
allow for extensions to the deadlines. EPA believes that a longer 
period of time for interim authorization does not conform to its 
temporary nature. EPA specifically requests comment on this deadline.
    If a State does not receive final authorization before its interim 
authorization expires, EPA would then be responsible for implementing 
the new CAMU amendments in these States. (EPA would not implement the 
provisions in the 1993 CAMU rule that were unaffected by the 
amendments; the authorized States would continue to implement them.) 
EPA believes that this potential reversion of the implementation 
authority to EPA would act as a strong incentive for States with 
interim authorization to expeditiously seek final authorization. 
Further, EPA does not believe that this final authorization process 
will be particularly difficult. See below for additional detail 
regarding EPA's intention to expedite the authorization of States for 
the CAMU rule amendments.
5. Conditional Interim Authorization
    One alternative to today's proposed interim authorization-by-rule 
process that EPA is also considering is to grant interim authorization 
concurrently with the promulgation of the CAMU amendments to those 
States that meet criteria such as those proposed today in 
Sec. 271.27(a), on the condition that after publication of the final 
rule they submit a notification as proposed in Sec. 271.27(a)(3). Under 
this approach, EPA would follow the usual authorization procedures in 
Sec. 271.24 where EPA determines whether each State meets the interim 
authorization requirements, except that this determination would occur 
concurrently with the promulgation of the CAMU rule amendments. Once 
States met the deadline for notifying EPA that they intend to and are 
able to use the CAMU amendments as guidance, EPA would publish a notice 
in the Federal Register listing the States that submitted the 
notification. Interim authorization would then be effective on the same 
date as the CAMU amendments.
    EPA does not believe that regulatory amendments would be necessary 
to implement this conditional authorization process because of the 
flexibility within the existing procedures. Section 271.21 gives EPA 
discretion to initiate program revision and to require only those 
application documents it deems necessary to make an authorization 
decision. EPA is proposing to grant interim authorization to States 
that meet the criteria in proposed Sec. 271.27, because such States 
will be implementing the CAMU amendments in a manner substantially 
equivalent to the Federal regulations, based on the knowledge EPA 
already has about these States' CAMU regulations and on the 
notification States would submit. The only regulatory amendments that 
would be made would be the extension of the expiration date for interim 
authorization for the CAMU amendments in proposed Sec. 271.27(b) and 
amended Sec. 271.24(c).
    EPA requests comments on its proposal to grant interim 
authorization for the proposed amendments, when promulgated, to 
Alabama, Arizona, Delaware, Georgia, Idaho, Indiana, Louisiana, New 
York, North Carolina, North Dakota, Oklahoma, South Dakota, Texas, 
Utah, Vermont, Washington, Wisconsin, and Wyoming. EPA recently 
proposed to grant Virginia authorization for the 1993 CAMU rule (July 
31, 2000, 65 FR 46681). EPA expects that when the CAMU amendments are 
promulgated, Virginia will be authorized for the 1993 CAMU rule, and 
thus requests comment on its tentative determination to grant interim 
authorization for the proposed amendments, when promulgated, to 
Virginia.

[[Page 51118]]

D. Authorization of States Currently Authorized for Corrective Action, 
But Not the Existing CAMU Rule

    When EPA promulgates the proposed CAMU amendments, there will be a 
number of States authorized for corrective action that will not be 
authorized for the 1993 CAMU rule. Currently, there are 13 States in 
this situation. They are: Arkansas, California, Colorado, Guam, 
Kentucky, Maine, Missouri, Mississippi, Montana, New Hampshire, New 
Mexico, Ohio, and South Carolina. In addition to these States, there 
may be States authorized for the 1993 CAMU rule that did not receive 
interim authorization-by-rule. Because CAMUs expedite clean-ups, EPA 
will encourage all of these States to seek final authorization for the 
CAMU regulations, including today's proposed amendments as soon as 
possible. (Alternatively, States could request and receive interim 
authorization under Sec. 271.24.) EPA also believes that the 
authorization process for the CAMU regulations can and should be 
completed expeditiously.
1. Content of a State's Application for Final Authorization
    The State authorization revision procedures in Sec. 271.21(b) 
provide EPA with the discretion to consider the circumstances of 
individual States when determining what the content of a State's 
application for final authorization should be. EPA believes that States 
that are authorized for corrective action and are seeking authorization 
for the amended CAMU rule generally would not need to submit a revised 
Program Description (PD) and Memorandum of Agreement (MOA) to EPA, 
where the program seeking authorization for the CAMU regulations is the 
same program that is authorized for corrective action.
    The implementation of the CAMU regulations requires States to make 
clean-up decisions that are in effect the same types of decisions 
States already implement through their corrective action programs. 
Therefore, EPA believes that the adoption and implementation of the 
CAMU regulations requires the same technical and resource capability 
that States already have to operate the corrective action program. 
Generally, no changes to the MOA between the State and EPA should be 
necessary as a result of the CAMU regulations because Agency 
coordination issues would have been addressed during the authorization 
process for corrective action. However, EPA would have the discretion 
to request these documents or other information, if necessary.
    EPA does believe that States seeking final authorization should 
address the CAMU regulations in a revised Attorney General's (AG) 
statement of authority. The CAMU regulations create a new type of waste 
management unit that can be used only in certain situations after a 
facility application and Agency review process. Thus, States may need 
to establish new statutory authority, or interpret their existing 
authorities to determine that they can approve and regulate these 
units.
2. Authorization Approach for States That Adopt the CAMU Regulations by 
Reference or Verbatim
    Many States often adopt Federal regulations verbatim or incorporate 
them by reference into their regulations. It is likely that many States 
will adopt the CAMU regulations in this manner. When States adopt 
Federal regulations using these methods, it is not difficult for EPA to 
determine whether the State regulations are equivalent to their Federal 
counterparts. Because of this ease of review, and the high priority of 
State authorization for the CAMU regulations, the Agency believes that 
the authorization process for these States under Sec. 271.21 should be 
quick. Thus, once EPA receives an acceptable authorization application, 
including a revised AG Statement, from a State which incorporates the 
CAMU amendments by reference or adopts them verbatim, EPA would 
immediately proceed to publish a FR notice which grants final 
authorization to that State. An exception to this expectation would be 
cases where in EPA's judgment, known issues with the existing State 
program greatly affect the program's prospects for authorization. An 
example of such issues would be questions regarding a State's 
enforcement authority (e.g., audit law issues), or capability (e.g., 
resource issues). It should also be noted that EPA expects to process 
all State authorization applications for the CAMU regulations as 
quickly as possible, regardless of the method of State adoption.

VI. Effective Date

    Regulations promulgated pursuant to RCRA Subtitle C generally 
become effective six months after promulgation. RCRA section 3010(b) 
provides, however, for an earlier, or immediate, effective date in 
three circumstances: (1) Where the industry regulated by the rule at 
issue does not need six months to come into compliance; (2) the 
regulation is in response to an emergency situation; or (3) for other 
good cause.
    EPA is proposing that today's rule become effective within 90 days 
after promulgation of the amendments. Because today's proposal would 
``grandfather'' CAMUs (see discussion above in ``Grandfathering 
CAMUs''), a 90-day effective date would only affect any unapproved 
CAMUs that do not meet the criteria for grandfathering. Thus, EPA 
believes that because there would be ample time for facilities to 
adjust to the new procedural changes and waste management standards, 
the regulated community would not need the full six months to come into 
compliance with the final rule. However, EPA believes that a time 
period shorter than 90 days would not enable States that are currently 
authorized for the CAMU rule to gain interim authorization, even under 
today's proposed interim authorization-by-rule approach. EPA requests 
comment on whether a 90-day effective date is appropriate.

VII. Conforming Changes (40 CFR Subpart S, Secs. 260.10)

    Today's proposal would change the title of 40 CFR Part 264 Subpart 
S from ``Corrective Action for Solid Waste Management Units'' to 
``Special Provisions for Cleanup.'' The current title reflects the 
Agency's intention in 1993, when it was added to the CFR, to finalize 
the comprehensive corrective action regulations for solid waste 
management units proposed in September 1990. 58 Fed. Reg. 8658 
(February 16, 1998). As discussed more fully above, in the section 
titled ``Releases to Groundwater (Sec. 264.552(e)(5),'' the Agency 
withdrew the majority of that proposal in October, 1999. In addition, 
the current and proposed provisions of Subpart S address CAMUs, 
temporary units, and staging piles, which are all units which may only 
be used for the management of cleanup wastes, and which, in some 
instances, may be used at sites not subject to RCRA corrective action. 
EPA therefore believes that this change will ensure that the title of 
Subpart S more accurately conveys the provisions that are contained 
within it.
    The conforming changes to Sec. 260.10 are made to implement the 
distinction being drawn in today's proposed rule between CAMUs that 
would be grandfathered and CAMUs that would be subject to today's 
proposed standards at Sec. 264.552. As discussed above in the section 
titled ``Eligibility of Wastes for Management in CAMUs,'' EPA is 
proposing to modify the definition governing the types of wastes that 
can be managed in a CAMU, and is proposing to change the name of waste

[[Page 51119]]

eligible for management in CAMUs from ``remediation waste'' to ``CAMU-
eligible waste.'' This revised definition would apply to new CAMUs but 
not to CAMUs that qualify to continue implementation under today's 
proposed ``grandfathering'' provisions (see proposed Sec. 264.550). EPA 
is making two conforming changes as a result of modifying the 
definition of remediation waste in this fashion. The first change is to 
remove the existing definition of CAMU at Sec. 260.10 and to include it 
directly in Sec. 260.551(a) (the introductory paragraph to the 1993 
CAMU provisions, which would become, as a result of the regulations 
proposed today, the regulations applicable to grandfathered CAMUs). The 
second change would be to modify the existing definition of CAMU at 
Sec. 260.10 by changing ``remediation wastes'' to ``CAMU-eligible 
wastes,'' and to place the definition directly in the amended CAMU 
regulations at Sec. 264.552(a).
    EPA also changed the term ``remediation waste'' to ``CAMU-eligible 
waste'' throughout the CAMU regulatory language.

VIII. Analytical and Regulatory Requirements

A. Planning and Regulatory Review Executive Order 12866

    Under the Planning and Regulatory Review Executive Order 12866 (58 
Federal Register 51,735 (October 4, 1993)), an agency must determine 
whether the regulatory action is ``significant'' and therefore subject 
to OMB review and the requirements of the Executive Order. The Order 
defines ``significant regulatory action'' as one that is likely to 
result in a rule that may:
    (A) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities;
    (B) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (C) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (D) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    Pursuant to the terms of Executive Order 12866, it has been 
determined that today's proposed rule is a ``significant regulatory 
action'' because of novel legal or policy issues arising in the rule. 
As such, this action was submitted to OMB for review. Changes made in 
response to OMB suggestions or recommendations will be documented in 
the public record. The proposed rule is estimated to have annual 
incremental costs between $130,000 and $305,000, and therefore is not 
viewed as economically significant under to the Executive Order.
    EPA requests comment on the data, assumptions, and methodology 
described below employed to estimate the impacts of today's proposed 
rule. EPA has prepared an economic support document for the proposed 
rule entitled ``Economic Analysis of the Proposed Amendments to the 
CAMU Rule.'' This document can be found in the docket for today's 
proposed rule.
    This section of the analysis discusses (1) the economic analysis 
background and purpose, (2) the CAMU administrative approval costs 
assessment, (3) the analysis of impacts resulting from the treatment 
and unit design requirements, (4) the assessment of potential change in 
CAMU usage to result from the rule, and (5) the summation of these 
impacts.
1. Economic Analysis Background and Purpose
    A CAMU is: ``An area within a facility that is used only for 
managing remediation wastes for implementing corrective action or 
cleanup at the facility.'' (40 CFR 260.10) CAMUs may be used to 
consolidate hazardous wastes from various areas at the facility. While 
one of the chief reasons for CAMU usage is to facilitate more treatment 
of cleanup wastes in general (see discussion earlier in the preamble), 
wastes placed in CAMUs are not subject to the Land Disposal Restriction 
requirements for treatment. In addition, under the 1993 CAMU Rule, 
CAMUs are not required to meet the existing 40 CFR Part 264 and Part 
265 minimum design, operating, closure, and post-closure requirements 
for hazardous waste units.
    The CAMU provisions being proposed today would amend the existing 
CAMU rule. This economic analysis examines the impacts from these 
proposed amendments compared to the existing CAMU rule provisions. This 
section briefly discusses the baseline and post-regulatory scenarios in 
the analysis, and provides an overview of the incremental impacts 
assessed.
    a. Framework for the Analysis. The Agency faced two important 
questions in developing the framework for this analysis. The first was 
how to address defining the universe of facilities affected by today's 
rule. The second was how to approach assessing the incremental changes 
in CAMUs under the baseline and post-regulatory scenarios.
    The universe of facilities which could potentially employ a CAMU in 
remediation, and thus could be affected by today's rule, includes 
facilities performing cleanups under RCRA corrective action, Superfund, 
and state cleanup authorities. There are over 6,000 facilities which 
can be potentially reached through corrective action authority; this 
figure does not include Superfund sites or other cleanup sites where 
CAMUs may be used in the future. Of these facilities, today's proposed 
rule would not impose costs on any existing CAMUs that continue to 
manage wastes in the general manner for which they were approved, or, 
of course, on any facilities which manage their wastes without the use 
of a CAMU (e.g., they send their wastes off-site). Today's proposed 
standards would apply to CAMUs which are not subject to the existing 
standards under the grandfathering provisions. However, to determine 
the number of facilities, out of this total number, which would in fact 
require remediation at some point in the future under one of these 
authorities, and would employ a CAMU in the remedy, would require 
significant effort and yield uncertain results.
    Therefore, EPA considered the use of existing data on CAMU usage. 
The Agency first examined the 1993 CAMU RIA, which was performed in 
support of the existing CAMU rule. In this RIA, the Agency made a 
projection of the number of facilities which would employ CAMUs in the 
future. This projection was based on use of expert panels which 
reviewed, on a facility-by-facility basis, a randomly selected sample 
of 79 corrective action facilities and determined when CAMUs would be 
employed in remediation. The impacts estimated for these facilities 
were extrapolated to the corrective action universe to develop a 
national estimate of impacts for the CAMU rule. The Agency estimated 
that the existing rule would result in CAMUs being employed at 
approximately 1,500 facilities, or approximately 75 CAMUs per year over 
a 20 year period.
    However, based on data showing actual CAMU usage over the past 
seven years, the Agency believes the 1993 RIA projections do not 
represent an accurate forecast of the expected use of CAMUs in the 
future. These data, discussed in more detail below, show an actual CAMU 
approval rate of approximately six CAMUs per year. The disparity 
between the 1993 RIA projections and the actual usage is likely the 
result of four factors. First, the 1993 RIA baseline

[[Page 51120]]

is very different from the remedial setting which has existed in recent 
years. Chiefly, the RIA assumed significant excavation and treatment of 
wastes at sites, with heavy reliance on combustion technologies and 
little use of innovative treatment or remedial approaches. These 
approaches tend to be less expensive than combustion technology, and 
are much more available and in use than was anticipated in the 1993 
RIA. Therefore, the pervasive demand for CAMUs to lower large remedial 
costs did not materialize as anticipated in the 1993 RIA. Second, due 
to its timing, the RIA estimates do not include impacts on CAMU use 
which resulted from various remedial policy developments such as the 
stabilization initiative, the use of environmental indicators, and the 
Phase IV LDR soil treatment standards. These developments have resulted 
in increased stabilization of sites, and thus less excavation and 
treatment of wastes (in the short term). This shift created conditions 
which reduced the need to rely on CAMUs as much as had been originally 
estimated in the 1993 RIA projections. Additionally, the availability 
of alternatives to CAMUs, such as staging piles and areas of 
contamination (AOCs), has potentially decreased the use of CAMUs 
somewhat compared to that originally projected. Third, the Agency 
thinks that the RIA usage projections may have been unrealistically 
high given that most corrective action facilities are in the 
investigation stage. Finally, the Agency believes that CAMU use has 
been dampened over the past seven years due to the uncertainty 
surrounding the use of CAMUs which resulted from the CAMU litigation, 
which followed shortly after the rule's promulgation.
    Therefore, the Agency employed the data on existing CAMUs in the 
CAMU Site Background Document. These data were collected from regional 
and state site managers on CAMUs approved to date under the existing 
CAMU rule. This report contains information on 39 CAMUs approved under 
the existing rule for which the Agency had good quality data. These 
CAMUs were those identified by the EPA Regions as either approved or 
currently under discussion. For each CAMU, the Agency obtained 
information on the use of the CAMU at the site, types of wastes 
managed, treatment required, and unit design; the data are contained in 
the CAMU Site Background Document, which is included in the docket for 
today's proposed rule.
    Using these data, the Agency estimated an annual CAMU approval rate 
for the past seven years, and applied that rate to project CAMU usage 
in the future. In projecting future use based on historical data, the 
Agency assumes that the 39 CAMUs are reasonably representative of 
expected future CAMU use. This assumption rests on the completeness of 
the data in the CAMU Site Background Document; this document contains 
information from all the CAMUs approved to date for which the Agency 
had good data. Therefore, it provides a reasonable basis for 
understanding how the CAMU rule has been implemented to date. For 
purposes of this analysis, the Agency assumes there will be no new 
regulations or policy initiatives which would affect CAMU usage in the 
future. (Note: One exception in the anticipated change is the removal 
of the uncertainty associated with the CAMU litigation. The Agency has 
assessed the impacts from this change on the CAMU usage rate as a part 
of the analysis of the incremental impacts of today's proposed.)
    These historical data also helped identify the differences in a 
CAMU under the existing rule (baseline case) as compared to a CAMU 
under the proposed provisions (post-regulatory case). As discussed in 
more detail below, the Agency used the information on the 39 existing 
CAMU remedies to assess consistency with the proposed provisions in 
today's rule. This assessment involved a facility-by-facility 
comparison of the existing remedy (baseline case) with the proposed 
provisions (post-regulatory case). In such an approach, the Agency 
again assumes that these actual CAMU remedies selected in the past are 
reasonably representative of CAMU remedies which would be selected 
under baseline conditions in the future. However, the Agency believes 
this assumption to be sound for the same reasons stated above regarding 
CAMU usage. EPA thinks these remedies are the reasonable outcome of the 
existing CAMU regulations implemented within the context of standard 
remedial goals for cleanup. The Agency requests comment on this 
assessment, and any potential effects of using these historical data to 
assess the impacts of today's rule.
    Additionally, the Agency requests comment on the assumptions behind 
the development of the baseline and post-regulatory scenarios employed 
within this analytical framework. Comments are requested on the 
accuracy of the results derived from employing the framework described 
above for this analysis.
    b. Baseline Case Description. The baseline scenario provides a 
reference against which the impacts of a particular action (e.g., a 
regulation) are measured. For the purposes of this analysis, the 
baseline is defined as the 1993 CAMU rule as implemented to date. The 
data underlying EPA's baseline analysis are described in the CAMU Site 
Background Document, which is included in the docket to today's 
proposed rule. This document provides detailed information on 39 
existing CAMUs approved as of early 2000; these data have been verified 
by EPA Regional staff. Of the 39 CAMUs, nine are temporary CAMUs. 
According to these data, approximately 70 percent of facilities using 
CAMUs are performing treatment of waste. As mentioned above, EPA 
assumes that the 39 existing CAMUs are representative of future site 
characteristics and CAMU usage rates.
    The Agency has not attempted to adjust this baseline to account for 
the effects of the uncertainty surrounding the CAMU ``litigation 
cloud,'' which EPA believes has slowed the implementation of the CAMU 
rule since shortly after its promulgation. As discussed above, the 39 
CAMUs implemented under the existing rule represent the CAMUs known to 
be fully approved or under discussion to date. These CAMUs were 
approved as a part of the overall remedy at the facility, and therefore 
would generally be expected to follow the remedy selection criteria for 
long-term reliability and protectiveness recommended in EPA guidance 
(in addition to the CAMU requirements).
    The baseline is discussed in greater detail in the Economic 
Analysis of the Proposed Amendments to the CAMU Rule.
    c. Post-Regulatory Case Description. The post-regulatory scenario 
is modeled as the CAMU rule amended by the provisions in today's 
proposed rule. The reader is directed to the preamble discussion and 
rule language for an understanding of the proposed rule provisions. The 
economic analysis focuses on the impacts from the proposed information 
submittal requirements related to the CAMU approval process, the 
treatment requirements and adjustment factors, and the liner and cap 
requirements. Although today's proposed amendments to the CAMU rule 
would be more stringent than the existing federal CAMU regulations, EPA 
believes in practice that CAMUs are already generally meeting these 
standards under the existing rule. Additionally, a bounding analysis is 
included which examines the overall impact of the proposed provisions 
on the rate of

[[Page 51121]]

CAMU usage. It should be noted that the grandfathering provision of the 
proposed rule results in impacts accounted for in the post-regulatory 
scenario in this analysis. In other words, for the window of 
opportunity discussed in the proposed rule wherein CAMUs can be 
approved under existing rule conditions, there is a divergence in 
compliance behavior with the baseline, and these impacts are counted as 
attributable to today's rule. See the Economic Analysis of the Proposed 
Amendments to the CAMU Rule for a more detailed discussion of the post-
regulatory scenario for this analysis.
    d. Incremental Impacts: The analysis of today's proposed rule 
focuses on two potential impacts: (1) the incremental impacts 
associated with the changes to the approval process for CAMUs; and, (2) 
the incremental impacts associated with the change in treatment, unit 
design, and use of temporary (i.e. treatment and/or storage) CAMUs. 
Additionally, the Agency has prepared a bounding analysis estimating 
the impacts from a change in the overall usage of CAMUs resulting from 
today's proposed amendments. The methodology and results for these two 
components of the analysis, and for the bounding analysis, are 
discussed below. EPA requests comment on the impacts assessed in this 
analysis.
2. CAMU Administrative Approval Costs Assessment
    Today's proposed amendments to the CAMU rule formalize a number of 
administrative steps in the CAMU approval process. This analysis 
examines the incremental impacts associated with those administrative 
steps compared to the approval process in the baseline. The estimates 
are formulated through input by EPA Regional and state regulators. The 
regulators contacted have extensive knowledge of the approval process 
under the existing CAMU rule, and understand the changes to that 
approval process that would be brought about by the proposed 
amendments. The analysis estimates total incremental impacts ranging 
between $53,000 and $175,000 per year. The Agency requests comment on 
the approach described below which was employed in estimating the 
incremental impacts associated with today's proposed action.
    The Agency followed three steps in assessing the incremental 
impacts from the CAMU approval process formalized in the proposed rule. 
First, the Agency selected four CAMU experts from the Regions and one 
from the states. These experts were selected based on their knowledge 
of CAMU implementation under the existing rule and their knowledge of 
the proposed amendments. Of the 39 CAMU total, the number of CAMUs 
approved within all the selected experts' regions/state sum to 25. 
Second, the Agency obtained incremental cost/burden estimates from CAMU 
experts through phone contacts made separately with each expert. 
Experts were provided with a copy of Appendix A of the settlement 
agreement reached between EPA and the Petitioners (this document is 
included in the docket for today's proposed rule). The phone contacts 
followed a set of questions designed to cover all areas of the proposed 
rule (for a copy of these questions, see the Economic Analysis of the 
Proposed Amendments to the CAMU Rule). EPA requested that experts 
estimate the additional approval burden for both regulators and owner/
operators, as each would participate variously in performing such 
approval steps. Third, the Agency tabulated the burden estimates made 
by the CAMU experts. This process provided the Agency with expert 
estimates of the incremental impacts for the CAMU approval process. The 
estimates provided by individual experts ranged from a low of six hours 
total to a high of 1,360 hours total per CAMU. Using the individual 
estimates of burden provided by the experts, EPA calculated an average 
total burden range. EPA estimates the range of total incremental 
burden, calculated as an average of the five expert estimates, to be 
between 98 hours and 323 hours per CAMU.
    Expert views differed significantly on the impacts. Two of the 
experts believed the formalization of a process associated with certain 
steps might potentially reduce overall burden. Such a formalized 
process, they believed, would result in less time spent discussing the 
proper approach to take at a particular stage in the approval process. 
Alternatively, one expert thought that the changes in process 
requirements were so onerous that they could potentially drive 
facilities away from using CAMUs.
    The experts estimated additional burden associated with four areas 
of the proposed amendments: (1) Information submission associated with 
the determination of whether wastes were subject to LDRs at the time of 
disposal. This requirement is a part of the provision in the proposed 
amendments which deals with CAMU waste eligibility; (2) identification 
of principal hazardous constituents (PHCs). Only one expert estimated 
additional burden associated with identification of PHCs at the site; 
(3) adjustment factor E (Sec. 264.552(e)(4)(v)(E)) which would offer 
adjustment from the treatment standards based on chemical/physical 
properties of the waste and the long-term protection offered by the 
unit. Experts estimated additional burden associated with use of the 
factors for adjustment from treatment in the proposed amendments. The 
experts focused on adjustment factor E in making their burden 
estimates, as it was perceived to be the most complicated, and 
therefore the most likely to require significant formalized written 
justification; and, (4) the liner and cap standards in the proposed 
rule.
    Employing these burden estimates, the Agency calculated the cost 
impact attributable to these provisions. The Agency performed the 
following steps in estimating total burden. First, the Agency estimated 
the number of CAMUs approved annually. The per CAMU estimate of 
additional burden is multiplied by an estimate of the number of CAMUs 
approved per year. As discussed in the Economic Analysis of the 
Proposed Amendments to the CAMU Rule, EPA assumed this rate to be the 
same as that calculated for the baseline. This rate was estimated to be 
six CAMUs per year. This analysis does not consider any changes in the 
number of CAMUs approved per year which could result from the rule. 
Second, the Agency multiplied the additional hours estimated for 
approval by the annual number of CAMUs approved. This calculation 
results in an estimate of the total incremental burden associated with 
the proposed amendment approval process. This burden estimate ranges 
from 590 hrs per year to 1,940 hrs per year. Third, the Agency obtained 
a labor rate to apply to the estimates of additional hours. EPA used 
the highest hourly labor rate ($90/hour) from the recently approved 
Part B Permit ICR because the CAMU experts did not provide a breakdown 
of labor categories in their estimates. Fourth, the Agency multiplied 
the total incremental hours estimated for the CAMU approval process 
under the proposed amendments by the labor rate. This produced an 
estimate for the total incremental impacts attributable to the approval 
process in the rule, which ranges from $53,000 per year to $175,000 per 
year. The Agency requests comment on the specific steps employed to 
estimate impacts of the approval process, in particular, whether any 
important steps have been left out or mischaracterized with respect to 
the impacts of these proposed provisions.
    This range represents the annual incremental impacts estimated to 
result from the proposed amendments, assuming that six CAMUs are 
approved

[[Page 51122]]

per year. If the annual approval rate changed, the annual impacts for 
that year would change accordingly. Dividing that range by six (the 
number of CAMUs approved per year) yields an estimate of the 
incremental impact per CAMU; this estimate ranges between approximately 
$8,800 and $29,000 per CAMU. This calculation assumes that all the 
costs for CAMU approval occurred within a single year. A bounding 
analysis conducted using the highest burden estimate to calculate the 
impacts for the approval process yields an impact of $734,000 per year, 
or $122,000 per CAMU. The Agency requests comment on costs estimated in 
this section, as well as additional data to more accurately analyze 
these costs.
3. Assessment of the Incremental Impacts Related to the Treatment and 
Unit Design Provisions, and to the Treatment and/or Storage Only CAMU 
Provisions
    This section examines the incremental impacts attributable to the 
treatment and unit design provisions, and to the treatment and/or 
storage only CAMU provisions in today's proposed rule. As described in 
the analytical framework discussion above, this analysis examines what 
changes would be required to make the 39 existing baseline CAMUs 
consistent with the new amendments. Based on these estimated changes, 
the Agency determines the impacts of the proposed amendments. (Please 
see the side-by-side comparison of the existing CAMU regulations and 
today's proposed rule language which is included as an appendix in the 
Economic Analysis of the Proposed Amendments to the CAMU Rule for 
today's proposed rule).
    The Agency first examines the treatment and unit design 
specifications employed for existing CAMUs under the baseline. These 
baseline CAMU remedies were assessed in light of the treatment and unit 
requirements proposed in the CAMU amendments. An assessment was made of 
expected differences in treatment and unit design anticipated under the 
proposed amendments, and the resulting costs for those changes were 
quantified.
    The section next addresses the treatment and/or storage only 
provisions in the CAMU amendments. EPA assesses how the ``temporary'' 
CAMU (referred to as ``treatment and/or storage only'' CAMUs in the 
today's rule) provisions have been implemented in the baseline by 
examining the temporary CAMUs approved to date under the existing rule. 
These CAMUs were analyzed in light of the new treatment and/or storage 
only CAMU provisions in the proposed amendments.
    The Agency requests comment on the approach used to assess the 
changes in treatment, unit design, and use of treatment and/or storage 
only CAMUs resulting from today's proposed amendments. In particular, 
the Agency requests information addressing the expected significance of 
the treatment or unit design standards.
    a. Treatment and Unit Design Standards Implemented in the Baseline: 
Data on the implementation of the existing CAMU rule shows that the 30 
permanent CAMUs approved to date have generally employed significant 
treatment of wastes (approximately 70 percent of CAMUs employed 
treatment of wastes prior to disposal) with disposal in protective 
units (i.e., generally employing liners for new units, protective caps, 
and groundwater monitoring). EPA has detailed information on 39 CAMUs 
in the baseline (see the CAMU Site Background Document in the docket 
for today's proposed rule for a complete discussion of each CAMU). 
These data provide a reasonable datum from which to assess the 
incremental impacts associated with the new treatment and unit design 
provisions in the proposed amendments.
    b. Treatment and Unit Design Provisions in the Post-Regulatory 
Case: The proposed amendments would establish national minimum 
treatment standards which all principal hazardous constituents (PHCs) 
must meet prior to disposal in a CAMU, unless the Agency determines in 
a given case that the standards are inappropriate (see discussion of 
adjustment factors below). This national minimum standard, which is 
essentially taken from the treatment standard promulgated for hazardous 
soils in the Phase IV LDR Final Rule, among other things, requires 
treatment of wastes to 90 percent reduction from the original 
concentrations, capped by 10xUTS level. This standard would apply for 
all CAMU-eligible wastes.
    Accompanying the national minimum treatment standard are five 
adjustment factors, which provide site-specific flexibility in applying 
these treatment standards through identification of certain conditions 
under which full compliance with the national standard may be adjusted. 
This adjustment may be employed to make treatment more or less 
stringent, and may be used to adjust a treatment level or method. These 
proposed treatment requirements and adjustment factors were crafted 
through examination of the current implementation of the CAMU rule in 
the baseline, and the general process involved in remedial selection in 
the corrective action program, as well as the treatment variances used 
for as-generated waste under the Land Disposal Restrictions program.
    The proposed amendments would also establish standards for liners 
at all new and replacement units or lateral expansion of existing 
units, and caps at units where waste is left in place. The reader is 
directed to the relevant discussions on the proposed provisions in 
their appropriate preamble sections above (see ``Liner Standard,'' 
``Cap Standard,'' and ``Adjustment Factors to the Treatment 
Standard'').
    c. Incremental Impacts Associated with Proposed Treatment and Unit 
Design Provisions: Having examined the provisions on treatment and unit 
design in the proposed amendments, the Agency then assessed the 
incremental impacts from these provisions with respect to current 
baseline implementation of the CAMU rule. The Agency examined how the 
baseline requirements have been implemented to date, and assessed where 
changes would be required at these facilities under post-regulatory 
conditions. See Economic Analysis of the Proposed Amendments to the 
CAMU Rule for details on this comparison.
    EPA estimated the incremental costs associated with these standards 
through the following steps. First, the Agency compared the data on 
each baseline CAMU against the provisions in the proposed CAMU 
amendments. For this assessment, EPA addressed the following questions 
for each CAMU remedy, where necessary: (1) Does the facility have 
constituents that would likely be designated as PHCs?; (2) For a 
facility where PHCs are determined to likely be present, was treatment 
performed to reduce PHC concentrations?; (3) Where treatment was being 
performed, was it meeting the proposed national minimum standards?; (4) 
Was the CAMU an existing unit?; and, (5) What liner and cap 
requirements were instituted for the CAMU? Second, based on this 
assessment, the Agency made a determination as to whether the CAMU was 
consistent with the treatment and unit design provisions of the 
proposed amendments. Third, where the Agency identified inconsistency 
with the proposed national minimum standards, application of the 
adjustment factors was considered. Potential use of adjustment factors 
was only considered appropriate where site-specific factors were 
consistent with the circumstances described in today's preamble for the 
different adjustment factors. And fourth, where the adjustment factors 
were not

[[Page 51123]]

applicable, the Agency identified the steps that would be necessary to 
render the CAMU consistent with the proposed provisions. Each of the 
above steps was performed by EPA based on a detailed knowledge of the 
baseline CAMU requirements, the proposed rule provisions, and the 
details of the existing CAMU being analyzed. Please see the site 
summaries for the 39 CAMUs which are included in the CAMU Site 
Background Document (included in the docket for today's proposed rule). 
Additionally, the reader is directed to the preamble discussion of the 
adjustment factors for elaboration on how each adjustment factor would 
be applied at a given facility.
    EPA performed this evaluation for the 30 permanent baseline CAMUs 
approved to date. The Agency estimated costs in the cases where 
additional requirements were identified as necessary for the CAMU to 
reach consistency with the proposed provisions. Results for the 30 
permanent CAMUs are shown below in Exhibit VIII-1; results for the nine 
treatment and/or storage only CAMUs are discussed following the 
exhibit.
    For the 30 permanent CAMUs, EPA estimates that 15 facilities would 
potentially require use of one of the adjustment factors to achieve 
consistency with the proposed amendments. Note that the potential use 
of adjustment factors was only considered where such use would be 
consistent with the circumstances described in today's preamble for 
each adjustment factor. Of the five adjustment factors provided for in 
the amendments, adjustment factor A for technical impracticability was 
estimated to be needed four times and possibly two additional times to 
achieve consistency, adjustment factor B addressing consistency with 
site cleanup goals was estimated to be possibly needed three times to 
achieve consistency, and adjustment factor E providing adjustment from 
the treatment standards based on chemical/physical properties of the 
waste and the long-term protection offered by the unit was estimated to 
be possibly needed eight times to achieve consistency. (Note that the 
estimated frequency of use for the individual adjustment factors does 
not sum to the overall number of facilities using adjustment factors 
due to the Agency identifying different available options for 
adjustment factor use at several facilities.)

     Exhibit VIII-1.--Comparisons of Baseline Practices and Post-Regulatory Requirements for Permanent CAMUs
----------------------------------------------------------------------------------------------------------------
   CAMU comparison: baseline to post-                            Significance of         Estimated incremental
               regulatory                 Number of CAMUs          differences                   impact
----------------------------------------------------------------------------------------------------------------
Treatment and Unit Design Consistent                    29  N/A......................  N/A.
 With Post-Regulatory Requirements.
Treatment Not Consistent With Post-                      0  N/A......................  N/A.
 Regulatory Requirements.
Unit Design Not Consistent With Post-                    2  Under the New Rule, Two    CAMU Cap Costs for
 Regulatory Requirements.                                    Facilities May Have        Facility = $600,000 to
                                                             Required Additional Cap    $1,200,000 CAMU Cap
                                                             Design Features.*          Costs for Facility =
                                                                                        $205,000. [TOTAL =
                                                                                        $800,000 to $1,400,000].
Treatment and Unit Design Not                            0  N/A......................  N/A.
 Consistent with Post-Regulatory
 Requirements.
----------------------------------------------------------------------------------------------------------------
* These two CAMUs address the disposal of off-site soils contaminated with lead that resulted from smelting
  operations. Both facilities remain subject to long-term maintenance and periodic review.

    As shown in Exhibit VIII-1, the analysis revealed two facilities 
for which the unit design employed in the original CAMU decision was 
not consistent with the proposed amendments. In both cases, a final cap 
would be required to achieve consistency with the proposed provisions. 
EPA estimated costs for these caps based on the specific information 
for the given facility. These costs are shown in the exhibit above, and 
discussed in greater detail in the background document for the economic 
analysis. EPA estimated costs for the cap at one facility to range from 
$600,000 to $1,200,000, and costs for the cap at the other facility at 
approximately $205,000.
    The total estimated costs associated with ensuring that all the 
permanent CAMUs approved under the existing rule are consistent with 
the proposed amendments is estimated to range from approximately 
$800,000 to $1,400,000 (or annualized over 20 years at 7 percent yields 
$76,000 to $132,000 per year). The Agency believes that these estimates 
reasonably cover the additional requirements to achieve such 
consistency with the proposed standards. However, EPA acknowledges the 
possibility that, due to the variability of site characteristics and 
the limitations of the available data for the given CAMUs, additional 
negligible costs such as minor additional treatment of small volumes of 
waste could be incurred at any given facility. This analysis does not 
consider any changes in the number of CAMUs approved per year which 
could result from the rule. The Agency requests comment on the approach 
employed to determine the incremental costs of the proposed treatment 
and unit design provisions, and the resulting estimates presented in 
this section.
    d. Incremental Impacts Associated with the Treatment and/or Storage 
Only CAMU Provisions: The 1993 CAMU Rule provisions did not contain 
standards that were specific to temporary CAMUs (which are now called 
treatment and/or storage only CAMUs in the proposed provisions). 
However, data indicate that nine treatment and/or storage only CAMUs 
were approved in the baseline, and were generally employed for short-
term treatment or storage of wastes at a site. These data provide a 
useful datum from which to assess the potential for incremental impacts 
resulting from the proposed amendments as they address treatment and/or 
storage only CAMUs.
    The Agency analyzed the potential incremental costs associated with 
achieving consistency with the proposed rule standards for the 
treatment and/or storage only CAMUs. No inconsistencies were identified 
for these nine CAMUs; therefore, there were no incremental costs 
estimated for these units. This analysis does not consider any changes 
in the number of CAMUs approved per year which could result from the 
rule.

[[Page 51124]]

    As stated above, EPA made these comparisons based upon the types of 
contaminants, the unit design standards achieved, and the general 
circumstances surrounding the use of CAMUs. EPA requests comment on the 
comparisons discussed in this section, upon which the cost impacts are 
based.
4. Assessment of the Incremental Change in the Number of CAMUs Approved
    One potential impact anticipated to result from today's proposed 
rule is a change in the average number of CAMUs approved per year. This 
section presents the Agency's bounding analysis of the impacts 
associated with an incremental change in the number of CAMUs. The 
Agency seeks comment on the approach for projecting potential increase 
or decrease in the use of CAMUs resulting from these amendments.
    The 1993 CAMU Rule was designed to provide incentives for 
remediation by removing certain regulatory requirements that affect the 
management of hazardous remediation waste during cleanup. The rule 
allows facilities to manage hazardous waste in a CAMU without 
triggering the Land Disposal Restrictions (LDR) requirements, and to 
dispose of hazardous remediation waste in a CAMU. The CAMU is exempt 
from minimum technology requirements (MTRs), although it is subject to 
performance-based standards intended to protect human health and the 
environment. The rule established performance standards for the design, 
operation, and closure of CAMUs, and provided the site-specific 
flexibility that EPA believes is necessary to encourage remediation at 
cleanup sites. However, EPA was sued on the CAMU rule shortly after its 
promulgation. The resulting uncertainty surrounding the viability of 
the CAMU rule, along with other factors discussed above such as the 
increased use of Areas of Contamination (AOCs) and staging piles, the 
introduction of the Phase IV Land Disposal Restriction (LDR) soil 
treatment standards, and the stabilization initiative in corrective 
action, led to considerably less use of CAMUs than the Agency 
originally anticipated.
    With today's proposed rule, the Agency intends to resolve the 
litigation uncertainties which have dampened CAMU usage. Such 
resolution could promote the increased use of CAMUs. However, as 
discussed above, the Agency does not expect CAMU usage to approach the 
rate projected in the 1993 CAMU RIA (roughly 75 CAMUs per year). The 
Agency believes that the ``litigation cloud'' only accounts for part of 
the difference between actual CAMU usage over the past seven years and 
the usage estimated in the 1993 RIA. Other factors contributing to a 
potential change in future CAMU use include the impact of the 
formalized approval process, and the effect of the treatment and unit 
design provisions. It is very difficult to assess the significance of 
these factors on the individual decision at a given facility regarding 
whether to use a CAMU in remediation. This complexity led the Agency to 
prepare an order-of-magnitude analysis which seeks to establish the 
general direction of change in CAMU usage, and to quantify the 
approximate impacts from such change. These estimates focus only on the 
potential for changes in the number of CAMUs approved, and do not 
address the possible impacts from the formalized approval process or 
the treatment and unit design requirements of today's proposed rule. 
These impacts are presented to illustrate the potential savings which 
could come from such a change in CAMU usage, and should not be 
considered a part of EPA's estimate of the actual impacts from today's 
proposed rule.
    The Agency assessed the overall direction of the expected change in 
CAMU use for the three time periods identified for purposes of this 
analysis: (1) Grandfathering Window (August 2000 to January 2002); (2) 
Early After Promulgation (January 2002 to January 2003); and, (3) Post-
Promulgation Equilibrium (January 2003 to 2006). These time periods 
were constructed by the Agency in order to understand the effects of 
the factors identified above according to logical breaks in their 
influence. For example, the Agency believes that facilities may 
increase their use of CAMUs during the Grandfathering Window, given 
that CAMUs approved before the effective date of the final amendments 
would be exempt from the new requirements. Additionally, CAMUs which 
are not approved prior to the effective date of the final amendments 
but for which substantially complete applications (or equivalents) were 
submitted to the Agency on or before 90 days after the publication date 
of the proposed rule would also be grandfathered in under the 1993 CAMU 
rule requirements. During this period facilities will also be aware of 
EPA's intent to resolve the litigation uncertainty, which EPA believes 
has dampened CAMU use. Similar assessments were performed for the two 
other time periods.
    The Agency estimated the potential change in the number of CAMUs 
employed for each of the three time periods based roughly on the 
baseline CAMU usage figure of six CAMUs per year. Given the complexity 
of projecting the effect of these influences on CAMU usage in the 
future, these estimates are provided for illustrative purposes only. 
The cost savings from this change were estimated using results from the 
1993 CAMU RIA (see page 3-9 of that report). This analysis, prepared in 
support of the CAMU rule, estimated the cost savings at a randomly 
selected sample of corrective action sites based on expert panel 
assessments of the costs for remediation with and without a CAMU. These 
figures were extrapolated to determine the national cost impacts for 
the CAMU rule. The RIA presents an annual average cost savings per CAMU 
of $0.5 million to $0.8 million per facility in 1992 dollars (changing 
the figures to 1999 dollars yields an annual cost savings per CAMU 
ranging from $0.75 million to $1.20 million).
    This range was employed for purposes of this analysis to estimate 
order-of-magnitude cost impacts resulting from the changes in CAMU 
usage due to today's proposed rule. The annual cost savings per CAMU 
figure presented in the 1993 RIA provides the only readily available 
data from which to quantify the impacts of a shift from remediation 
without a CAMU to use of a CAMU. Although, the Agency believes that 
this cost savings estimate could significantly overestimate actual 
savings, due to the assumptions employed in the 1993 RIA regarding 
excavation and combustion of cleanup wastes. The Agency requests input 
on data sources to estimate such impacts. (The 1993 CAMU RIA is 
available in the docket.) Within each of the three time periods 
examined, a facility could either shift from not using a CAMU 
(baseline) to using a CAMU (post-regulatory), or using a CAMU 
(baseline) to not using a CAMU (post-regulation). In the case where a 
facility did not use a CAMU, there is a range of possible alternatives 
which could be considered. For purposes of this analysis, the Agency 
bracketed this range with leaving waste untouched on one hand, or 
performing full remediation without a CAMU on the other hand. As stated 
above, EPA employed the cost savings estimate from the 1993 RIA to 
model the cost savings for the case of a shift from performing full 
remediation without a CAMU (baseline) to using a CAMU (post-
regulatory). EPA did not possess data on either the possibility of a 
shift from leaving waste in place (baseline) to using a CAMU in 
remediation (post-regulatory), or the cost impacts

[[Page 51125]]

associated with such a shift. Finally, EPA does not believe it is 
reasonable to assume that facilities will shift away from CAMU use as a 
result of today's proposed rule; the anticipated costs from today's 
rule are not significant enough to result in such shifts. However, in 
the Post-Promulgation Equilibrium time period, EPA modeled the case of 
a shift from CAMU use (baseline) to full remediation without a CAMU 
(post-regulatory). While the Agency does not expected such a change, it 
is modeled below for illustrative purposes. The impacts from the 
changes in CAMU usage for the three time periods are assessed below 
according to these categories of change identified and discussed above 
(see exhibit below).
    For greater details on the approach to estimating these impacts, 
please refer to the Economic Analysis of the Proposed Amendments to the 
CAMU Rule in the docket for today's proposed rule. These impacts are 
presented in the exhibit below.

       Exhibit VIII-2.--Assessment of the Potential Change in CAMU Usage Resulting From the Proposed Rule
----------------------------------------------------------------------------------------------------------------
                                            Scope of the assessment (August 2000 through approximately 2006)
                                      --------------------------------------------------------------------------
   Categories of potential change in     Grandfathering window         Early after           Post-promulgation
              CAMU usage                  (Aug. 2000 to Jan.    promulgation (Jan. 2002   equilibrium (Jan. 2003
                                       2002: approximately 1\1/  to Jan. 2003: 1 year)    through approximately
                                             2\ years \1\                 \2\                   2006) \3\
----------------------------------------------------------------------------------------------------------------
 Baseline: Full remediation (no         5 to 10 facilities       Change Highly            Potential for 5
 CAMU); Post-Reg: CAMU.                 estimated (annual        Uncertain.               facilities estimated
                                        savings of $0.75 to                               (annual savings of
                                        $1.20 million per                                 $0.75 to $1.20 million
                                        facility).                                        per facility).
 Baseline: Leave wastes untouched (no   5 to 10 facilities per   Change Highly            Potential for 5
 CAMU); Post-Reg: CAMU.                 year estimated (no       Uncertain.               facilities estimated
                                        cost info available).                             (no cost info
                                                                                          available).
 Baseline: CAMU; Post-Reg: Full         No Change Estimated...   Change Highly            Potential for 5
 remediation (no CAMU).                                          Uncertain.               facilities estimated
                                                                                          (annual cost of $0.75
                                                                                          to $1.20 million per
                                                                                          facility).
 Baseline: CAMU; Post-Reg: Leave        No Change Estimated...   Change Highly            Potential for 5
 wastes untouched (no CAMU).                                     Uncertain.               facilities estimated
                                                                                          (no cost info
                                                                                          available).
----------------------------------------------------------------------------------------------------------------
 Notes:
 \1\ Publication of the proposed amendments (August 2000) to the anticipated effective date of Final rule (Jan.
  2002), which is 90 days after promulgation of the Final rule (Oct. 2001).
 \2\ The effective date of Final rule to one year after effective date of Final rule.
 \3\ One year after effective date of Final rule for roughly 5 years of ``equilibrium.''

    a. Grandfathering Window: For this time period, the cost savings 
associated with a potential increase in CAMU usage of 5 to 10 CAMUs per 
year are estimated as:

5-10 CAMUs per year  x  $0.75-$1.20 million per year = $3.75-$12 
million per year per CAMU

This estimate, $3.75 to $12 million per year in savings, is a rough 
figure based upon the projected increase in CAMU use associated with 
this period. The main influence behind this increase in CAMU usage is 
the removal of the litigation cloud in the context of the 
grandfathering provision allowing approval under the existing rule. 
While it is possible that the facilities which shift to CAMU usage 
under this scenario are those which leave waste untouched in the 
baseline, cost figures on this shift were not available. Therefore, no 
estimate of the impacts associated with this category of change is 
provided.
    b. Early After Promulgation: As the exhibit above shows, EPA 
believes that the factors influencing potential changes in CAMU usage 
during this period are too uncertain to provide an assessment of the 
potential impacts for this time period. Beside the factors identified 
above, there may be a reduction in CAMU usage resulting from the 
anticipated increase in CAMUs within the grandfathering time window. 
Please see the background document for greater discussion on this 
issue.
    c. Post Promulgation Equilibrium: For this time period, the cost 
savings associated with a potential increase or decrease in CAMU usage 
of 5 CAMUs per year are estimated as:

5 CAMUs per year  x  $0.75-$1.20 million per year = $3.75-$6 million 
per year per CAMU

This estimate, ranging from a positive cost of $6 million per year to a 
savings of $6 million per year, is a rough figure based upon the 
projected change in CAMU usage for this period. Again, while it is 
possible that the facilities which shift to or from CAMU usage under 
this scenario would be those which left waste untouched, cost figures 
on this shift were not available. Therefore, no estimate of impacts 
associated with such a shift is provided.
    The main competing influences in this time period are the removal 
of the uncertainty surrounding the litigation of the CAMU rule, and the 
potential dampening effect of the formalized approval process and 
treatment/unit design standards.
    The range of estimates for the bounding analysis are shown by year 
for the scope of the analysis in Exhibit VIII-3 below. The Agency 
requests comment on this analysis, including the overall approach to 
estimating changes in CAMU usage, as well as the specific results 
presented above.

[[Page 51126]]



   Exhibit VIII-3.--Impacts Estimated for Potential Changes in the Number of CAMUs Employed Per Year; a Bounding Analysis: Over the Scope of Analysis
                                                                [In thousands of dollars]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                Impact estimates for each year within the scope of analysis
   Bounding analysis estimates   -----------------------------------------------------------------------------------------------------------------------
                                         2001                2002                2003                2004                2005                2006
--------------------------------------------------------------------------------------------------------------------------------------------------------
Impacts from CAMU Usage Changes   $3,750 savings =    No estimate made..  $6,000 savings =    $6,000 savings =    $6,000 savings =    $6,000 savings =
 (Illustrative in Nature).         $12,000 savings.                        $6,000 cost.        $6,000 cost.        $6,000 cost.        $6,000 cost.
--------------------------------------------------------------------------------------------------------------------------------------------------------

    This bounding analysis was performed in order to account for the 
cost impacts resulting from a change in the number of CAMUs approved 
per year. For illustrative purposes only, EPA estimated the total 
annual impacts of the rule including the bounding analysis estimates. 
The Agency developed an upper bound estimate by adding the high-end 
cost associated with a potential change in CAMU usage, $6 million per 
year, to the high-end of the total cost range shown above. This 
summation yields an upper bound cost for the rule of $6.3 million per 
year. EPA developed a lower bound estimate by adding the low-end impact 
associated with a potential change in CAMU usage, $6 million per year 
in savings, to the low-end of the total cost range shown above. This 
summation yields a savings for the rule of approximately $5.9 million. 
Therefore, the bounding analysis provides a range from approximately 
$5.9 million in savings to $6.3 million in costs. As shown in Exhibit 
VIII-3, for the year of the grandfathering period, the savings could be 
up to $12 million.
    The question may be raised as to how this cost savings for 
increased CAMU usage in the above bounding analysis compares with the 
$1 to $2 billion annual savings in the 1993 CAMU RIA. The 1993 RIA 
baseline represented facilities performing remediation under the 
corrective action requirements, generally excavating wastes and 
treating in compliance with the Land Disposal Restriction (LDR) 
requirements via combustion technologies. Given the resulting high 
costs for such baseline remedial approaches, the relief provided by the 
original CAMU regulation was presumed to be widely applied in the post-
regulatory case. Therefore, significant CAMU usage was estimated. The 
baseline for today's proposed rule is described by the historical data 
EPA obtained on those facilities which have approved CAMUs over the 
past seven years. The projections made above regarding the potential 
change in CAMU usage resulting from today's proposed provisions are 
based roughly on these baseline CAMU usage figures. Therefore, the 
increase in CAMU usage projected in the post-regulatory case in the 
above bounding analysis for today's proposed rule is relatively low.
    The difference in projected CAMU usage from the 1993 RIA and the 
actual usage seen in the CAMU Site Background Document is believed to 
be attributable to four factors. These four factors were discussed 
above under the analytical framework. The ``litigation cloud'' effect 
is just one of the factors posited to account for this difference. 
Therefore, the potential resolution of this litigation uncertainty 
through today's proposed rule is not anticipated to result in the 
significant CAMU usage estimated in the 1993 RIA. Furthermore, the 
increased CAMU usage estimated in the above bounding analysis is not 
intended to serve as an update to the 1993 RIA projections. Rather, due 
to the complexity involved in estimating CAMU usage in the post-
regulatory case for today's proposed rule, the above estimates are made 
for illustrative purposes only, and do not represent a definitive 
statement of the expected savings from the rule.
5. Assessment of the Total Impacts for the Proposed Amendments to the 
CAMU Rule
    This section presents a brief assessment of the total impacts of 
the Proposed Amendments to the CAMU Rule. The Agency presents the 
impacts estimated for the formalized CAMU approval process and for the 
treatment/unit design standards, and treatment and/or storage only 
provisions for CAMUs below in Exhibit VIII-4.for a presentation of the 
total impacts; see also The estimates for the bounding analysis are 
discussed above, and are not included in the exhibit. Please see the 
Economic Analysis of the Proposed Amendments to the CAMU Rule for a 
full discussion of these impacts.

                 Exhibit VIII-4.--Total Annual Impacts Estimated Over the Scope of Analysis, Assuming Constant Rate of 6 CAMUs per Year
                                                                [In thousands of dollars]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                     Impact estimates for each year within the scope of analysis
   Impacts assessed for CAMU amendments    -------------------------------------------------------------------------------------------------------------
                                                        2001                   2002            2003            2004            2005            2006
--------------------------------------------------------------------------------------------------------------------------------------------------------
1. CAMU Approval Process Impacts..........  No Costs Incurred...........        $53-$174        $53-$174        $53-$174        $53-$174        $53-$174
2. Impacts from Treatment and Unit Design   No Costs Incurred...........        $76-$132        $76-$132        $76-$132        $76-$132    $76-\1\ $132
 Requirement.
      Total Impacts.......................  No Costs Incurred...........       $130-$305       $130-$305       $130-$305       $130-$305      $130-$305
--------------------------------------------------------------------------------------------------------------------------------------------------------
Notes:
1 This cost was calculated from a capital cost, annualized over 20 years. Therefore, it would continue for 15 more years.

    The total impacts associated with the proposed rule are estimated 
as the sum of the incremental approval costs and the incremental 
treatment/unit design costs. The analysis provides estimates of the 
impacts from the rule from the grandfathering window to five years 
following the effective date of the rule (2001 to 2006). As discussed 
above, the impacts for the treatment and unit design standards are 
annualized figures associated with two facilities which

[[Page 51127]]

required additional unit design criteria be met to achieve consistency 
with the proposed amendments. The cost impacts estimated for the 
potential change in the number of CAMUs are considered in the bounding 
analysis, which are discussed below. The total impacts are determined 
to range from $130,000 per year to $305,000 per year.

B. Regulatory Flexibility Act (RFA) as Amended by the Small Business 
Regulatory Enforcement Fairness Act (SBREFA)

    This section of the preamble addresses the potential impacts 
incurred by small entities as a result of the proposed CAMU amendments. 
The Agency requests comment on the approach employed to assess small 
entity impacts, which is discussed below. In particular, the Agency 
seeks comment on whether the potential impacts to small entities have 
been fully addressed in this analysis.
1. Methodology to Assess Small Entity Impacts
    The RFA generally requires an agency to prepare a regulatory 
flexibility analysis of any rule subject to notice and comment 
rulemaking requirements under the Administrative Procedure Act or any 
other statute unless the agency certifies that the rule will not have a 
significant economic impact on a substantial number of small entities. 
Small entities include small businesses, small organizations, and small 
governmental jurisdictions.
    For purposes of assessing the impacts of the proposed amendments to 
the rule on small entities, small entity is defined as: (1) A small 
business that meets the RFA default definitions for small business 
(based on SBA size standards www.sbaonline.sba.gov/size); (2) a small 
governmental jurisdiction that is a government of a city, county, town, 
school district or special district with a population of less than 
50,000; and (3) a small organization that is any not-for-profit 
enterprise which is independently owned and operated and is not 
dominant in its field.
    After considering the economic impacts of today's proposed rule on 
small entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. EPA has 
determined that there are two facilities employing CAMUs which are 
small entities, and that these facilities would incur impacts ranging 
from no impact to 0.004 percent of net sales. Additionally, there are 
nine facilities for which EPA could not obtain the data to determine 
size status, but which EPA had the data to assess impacts. For these 
nine facilities, the impacts ranged from 0.002 to 0.48 percent of net 
sales. The Agency reached this determination based on the analysis 
which is described below.
    a. Framework for the Analysis. The Agency faced two important 
questions in developing the framework for analyzing small entity 
impacts. The first was how to address defining the universe of 
facilities affected by today's rule. The second was how to approach 
assessing the incremental changes in CAMUs under the baseline and post-
regulatory scenarios.
    The universe of facilities which could potentially employ a CAMU in 
remediation, and thus could be affected by today's rule, includes 
facilities performing cleanups under RCRA corrective action, Superfund, 
and state cleanup authorities. There are over 6,000 facilities which 
can be potentially reached through corrective action authority; this 
figure does not include Superfund sites or other cleanup sites where 
CAMUs may be used in the future. Of these facilities, today's proposed 
rule would not impose costs on any existing CAMUs that continue to 
manage wastes in the general manner for which they were approved, or, 
of course, on any facilities which manage their wastes without the use 
of a CAMU (e.g., they send their wastes off-site). Today's proposed 
standards would apply only to CAMUs which do not remain subject to the 
existing standards under the grandfathering provisions. However, to 
determine the number of facilities, out of this total number, which 
would in fact require cleanup at some point in the future, and would 
employ a CAMU in the remedy, would require significant effort and yield 
uncertain results.
    Therefore, EPA considered the use of existing data on CAMU usage. 
The Agency first examined the 1993 CAMU RIA, which was performed in 
support of the existing CAMU rule. In this RIA, the Agency made a 
projection of the number of facilities which would employ CAMUs in the 
future. This projection was based on use of expert panels which 
reviewed, on a facility-by-facility basis, a randomly selected sample 
of 79 corrective action facilities and determined when CAMUs would be 
employed in remediation. The impacts estimated for these facilities 
were extrapolated to the corrective action universe to develop a 
national estimate of impacts for the CAMU rule. The Agency estimated 
that the existing rule would result in CAMUs being employed at 
approximately 1,500 facilities, or approximately 75 CAMUs per year over 
a 20 year period. The identities of these facilities, which would have 
been required for assessing the small entity impacts associated with 
the rule, were not determined; no impacts assessment was performed for 
the 1993 CAMU rule.
    However, based on data depicting the actual CAMU usage rate over 
the past seven years at six CAMUs per year, the Agency believes the 
1993 RIA projections do not represent an accurate forecast of the 
expected use of CAMUs in the future. (Some reasons for this disparity 
between the 1993 RIA projections and the actual usage are discussed 
above). Therefore, the Agency considered using the data on actual CAMU 
approval for this analysis. This report contains information on 39 
CAMUs approved under the existing rule for which the Agency had good 
quality data. For each CAMU, the Agency obtained information on the use 
of the CAMU at the site, types of wastes managed, treatment required, 
and unit design; the data are contained in the CAMU Site Background 
Document, which is included in the docket for today's proposed rule.
    Using these data, the Agency estimated an annual CAMU approval rate 
for the past seven years, and applied that rate to project CAMU usage 
in the future. In projecting future use based on historical data, the 
Agency assumes that the 39 CAMUs are reasonably representative of 
expected future CAMU use. This assumption rests on the completeness of 
the data in the CAMU Site Background Document; this document contains 
information from all the CAMUs to date for which the Agency had good 
data. Therefore, it provides a reasonable basis for understanding how 
the CAMU rule has been implemented to date. For purposes of this 
analysis, the Agency assumes there will be no new regulations or policy 
initiatives which affect CAMU usage in the future.
    Use of these historical data also mitigated the problems associated 
with determining the differences in a CAMU under the existing rule 
(baseline case) as compared to a CAMU under the proposed provisions 
(post-regulatory case). As discussed in more detail above, the Agency 
used the information on the 39 existing CAMU remedies to assess 
consistency with the proposed provisions in today's rule. This 
assessment involved a facility-by-facility comparison of the existing 
remedy (baseline case) with the proposed provisions (post-regulatory 
case). In such an approach, the Agency again assumes that these 
historical data are reasonably representative of future CAMU remedies 
under baseline conditions. However, the Agency

[[Page 51128]]

believes this presupposition to be sound for the same reasons stated 
above regarding CAMU.
    Therefore, the analysis of the small entity impacts anticipated to 
result from today's proposed rule rests on an assessment of facilities 
which have existing CAMUs, not an analysis of facilities which will 
actually be impacted in the future by this rule. As stated above, the 
Agency believes that this rule will not significantly affect the nature 
of CAMU usage related to the types of facilities employing CAMUs in the 
future. Thus, the Agency believes the analysis of future small entity 
impacts based on historical CAMU usage is reasonable. The Agency 
requests comment on the assumptions behind and accuracy of the results 
derived from employing the conceptual framework described above for 
this analysis.
    b. Methodological Approach for SBREFA Analysis: This analysis 
employs the data on the existing CAMUs from the CAMU Site Background 
Document to assess the potential for impacts on small entities 
resulting from the proposed rule. The Agency performed two screening 
analyses using these data. Screening analyses are the tools the Agency 
uses to assess the potential for the rule to result in a significant 
impact on a substantial number of small entities, and thus the need for 
development of a Small Business Advocacy Review Panel. First, the 
Agency examined those facilities which employed CAMUs in the baseline 
to determine whether any of these facilities were small entities, and 
if so whether they incurred a significant impact as a result of the 
proposed rule. Second, for those facilities for which the size status 
could not be determined, the Agency assumed small entity status, and 
performed a significant impact screen using the Sales Test (i.e., 
assessing the ratio of incremental costs to net sales for a facility). 
As there are no small organizations or small governmental jurisdictions 
which currently have CAMUs, these entities are not anticipated to incur 
any impacts resulting from the rule. The results from each screening 
analysis are discussed below.
    c. Examination of Existing CAMUs for Small Entity Status: EPA 
collected data on the employee size and net sales for the 39 facilities 
employing CAMU in the baseline (the sources from which these data were 
obtained are listed in the background document). Using these data, EPA 
determined, according to the SBA size standards (see 
www.sbaonline.sba.gov/size/section04b.htm), whether any of the 39 
facilities were small entities. Of the facilities for which data 
existed to determine size status, only two were identified as small 
entities. The impact incurred by these two small entities was under 
0.01 percent of net sales. This finding suggests that it is very 
unlikely that these two facilities would be significantly impacted by 
the rule. See the Economic Analysis of the Proposed Amendments to the 
CAMU Rule in the docket for today's proposed rule for greater detail on 
this analysis.
    d. Significant Impact Screen of Facilities for Which Size Was 
Undetermined: The Agency examined the 11 facilities for which data 
concerning size status were not available. Using the Standard 
Industrial Classification (SIC) Code for a given facility, the Agency 
obtained data on the estimated receipts for small entities within the 
SIC code and the number of small entities within the SIC code (these 
data were obtained from www.sba.gov/advo/stats/int_data.html). The 
estimated receipts for these entities were employed as a surrogate for 
net sales. From these data, the average estimated receipts per small 
firm within the SIC code was determined. This figure, the average 
estimated receipts per small firm, was then assumed to be 
representative of the receipts for the facility in question. The Sales 
Test ratio (i.e., the ratio of the average estimated receipts per firm 
by SIC code to the annual incremental costs of the proposed rule 
incurred by the facility) was then calculated. For the nine facilities 
for which the data existed to calculate the Sales Test ratio, this 
ratio ranged between 0.002 percent and 0.48 percent. The Agency 
believes this range of percentages reasonably validates a conclusion of 
no significant impacts for these facilities. However, there were two 
facilities for which the data required to make this calculation were 
not available. Based on the annual incremental costs projected for 
these two facilities as a result of the proposed rule, it seems very 
unlikely that these facilities, if they were small entities, would 
incur significant impacts. See the Economic Analysis of the Proposed 
Amendments to the CAMU Rule in the docket for today's proposed rule for 
greater detail on this analysis.
2. The Impacts Estimated on Small Entities
    Based on the two screening analyses described above, the Agency has 
concluded that today's proposed rule would not have a significant 
impact on a substantial number of small entities. EPA continues to be 
interested in the potential impacts of the proposed rule on small 
entities and welcomes comments on issues related to such impacts.

C. Paperwork Reduction Act

    The information collection requirements in this proposed rule have 
been submitted for approval to the Office of Management and Budget 
(OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. An 
Information Collection Request (ICR) document has been prepared by EPA 
(ICR No. 1573.07) and a copy may be obtained from Sandy Farmer by mail 
at OP Regulatory Information Division; U.S. Environmental Protection 
Agency (2137); 401 M St., S.W.; Washington, DC 20460, by email at 
[email protected], or by calling (202) 260-2740. A copy may 
also be downloaded off the internet at http://www.epa.gov/icr.
    The U.S. Environmental Protection Agency (EPA) is proposing to 
amend the regulations for CAMUs under the Resource Conservation and 
Recovery Act (RCRA). EPA originally established regulations applicable 
to CAMUs at 40 CFR part 264, Subpart S (58 FR 8658, Feb. 16, 1993). EPA 
is now proposing to amend these regulations to, among other things, 
more specifically define the eligibility of wastes to be managed in 
CAMUs, establish treatment requirements for wastes managed in CAMUs, 
and set technical standards for CAMUs. With regard to paperwork 
requirements, the proposed rule would add language identifying specific 
types of information that facilities must submit in order to gain CAMU 
approval at existing Sec. 264.552(d)(1)-(3) and would require that 
CAMU-authorizing documents require notification for groundwater 
releases as necessary to protect human health and the environment at 
Sec. 264.552(e)(5).
    The current general requirement for information submission, at 
Sec. 264.552(d), requires the owner or operator to submit sufficient 
information to enable the RA to designate a CAMU. EPA proposes 
modifying the existing information requirement under Sec. 264.552(d) to 
include submission of the specific information listed under proposed 
Sec. 264.552(d)(1)(3). The modifications in the proposal are additions 
to the existing general requirement, and add three specific information 
submission requirements to directly address the proposed amendments 
pertaining to CAMU eligibility. EPA is proposing that specific 
information must be submitted (unless not reasonably available): (1) On 
the origin of the waste and how it was subsequently managed (including 
a

[[Page 51129]]

description of the timing and circumstances surrounding the disposal 
and/or release to the environment) [provision Sec. 264.552(d)(1)]; (2) 
whether the waste was listed or identified as hazardous at the time of 
disposal and/or release to the environment [provision 
Sec. 264.552(d)(2)]; and (3) whether the waste was subject to the land 
disposal requirements of Part 268 at the time of disposal and/or 
release to the environment [provision Sec. 264.552(d)(3)]. 
Additionally, EPA is proposing to require certain facilities to notify 
EPA of releases to groundwater. EPA will use this information to 
monitor releases and make determinations of when the releases might 
cause danger to human health or the environment. Facility owners or 
operators may use this data to keep track of releases and prevent them 
from reaching unacceptable levels.
    EPA is proposing to amend the requirements for designating a CAMU 
under the authority of sections 1006, 2002(a), 3004, 3005(c), 3007 and 
3008(h) of the Solid Waste Disposal Act, as amended by the Resource 
Conservation and Recovery Act, as amended by the Hazardous and Solid 
Waste Amendments (HSWA) of 1984. In particular, under Sections 2002 and 
3007 of RCRA, EPA is proposing the information collection amendments to 
the CAMU rule described above because they are needed for the Agency to 
effectively designate and track the operation of CAMUs.
    EPA estimates the total annual respondent burden and cost for the 
proposed new paperwork requirements to be approximately 844 hours and 
$42,572. The bottom line respondent burden over the three-year period 
covered by this ICR is 2,412 hours, at a total cost of approximately 
$127,716. The Agency burden or cost associated with this proposed rule 
is estimated to be approximately 129 hours and $5,016 per year. The 
bottom line Agency burden over the three-year period covered by this 
ICR is 387 hours, at a total cost of approximately $15,048. \17\
---------------------------------------------------------------------------

    \17\ Subsequent to conducting the Information Collection Request 
analysis, EPA updated the number of CAMUs used for ``permanent'' 
disposal and the number used for ``treatment and/or storage'' only. 
The ICR estimates that 31 of the 39 CAMUs in the CAMU Site 
Background Document were for permanent disposal; the correct number 
is 30 of 39. EPA will make the necessary recalculations to the ICR 
in the context of the final rule. EPA believes that the change in 
estimated burden as a result of such recalculations will be 
inconsequential.
---------------------------------------------------------------------------

    Section 3007(b) of RCRA and 40 CFR Part 2, Subpart B, which defines 
EPA's general policy on public disclosure of information, contain 
provisions for confidentiality. However, the Agency does not anticipate 
that businesses will assert a claim of confidentiality covering all or 
part of the information that will be requested pursuant to the proposed 
amended CAMU rule. If such a claim were asserted, EPA must and will 
treat the information in accordance with the regulations cited above. 
EPA also will assure that this information collection complies with the 
Privacy Act of 1974 and OMB Circular 108.
    Burden means the total time, effort, or financial resources 
expended by persons to generate, maintain, retain, or disclose or 
provide information to or for a Federal agency. This includes the time 
needed to review instructions; develop, acquire, install, and utilize 
technology and systems for the purposes of collecting, validating, and 
verifying information, processing and maintaining information, and 
disclosing and providing information; adjust the existing ways to 
comply with any previously applicable instructions and requirements; 
train personnel to be able to respond to a collection of information; 
search data sources; complete and review the collection of information; 
and transmit or otherwise disclose the information.
    An Agency may not conduct or sponsor, and a person is not required 
to respond to a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations are listed in 40 CFR Part 9 and 48 CFR Chapter 15.
    Comments are requested on the Agency's need for this information, 
the accuracy of the provided burden estimates, and any suggested 
methods for minimizing respondent burden, including through the use of 
automated collection techniques. Send comments on the ICR to the 
Director, OPPE Regulatory Information Division; U.S. Environmental 
Protection Agency (2137); 401 M St., S.W.; Washington, DC 20460; and to 
the Office of Information and Regulatory Affairs, Office of Management 
and Budget, 725 17th St., N.W., Washington, DC 20503, marked 
``Attention: Desk Officer for EPA.'' Include the ICR number in any 
correspondence. Since OMB is required to make a decision concerning the 
ICR between 30 and 60 days after August 22, 2000, a comment to OMB is 
best assured of having its full effect if OMB receives it by September 
21, 2000. The final rule will respond to any OMB or public comments on 
the information collection requirements contained in this proposal.

D. 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.
    EPA has determined that this rule does not contain a Federal 
mandate that may result in expenditures of $100 million or more for 
State, local, and tribal governments, in the aggregate, or the private 
sector in any one year. The amendments being proposed establish 
approval process changes and treatment/unit design requirements which 
are overall already in use in the baseline. Therefore, the incremental 
impacts, as discussed in this analysis, are not estimated to be 
significant. See the above analysis for an overview of the impacts 
estimated for the proposed amendments. Thus, the CAMU Proposed 
Amendments are not subject to the requirements of sections 202 and 205 
of the UMRA.
    Finally, EPA has determined that this proposed rule contains no 
regulatory requirements that might significantly or uniquely affect 
small governments. Under today's proposed rule, small

[[Page 51130]]

governments will not implement the CAMU rule and are not generally 
expected to use CAMUs based on current patterns of CAMU usage seen in 
historical data. In addition, the CAMU rule makes no distinction 
between small governments and any potential regulated party.

E. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law No. 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.
    The proposed rulemaking involves technical standards (e.g., use of 
the TCLP test to assess compliance with treatment requirements). The 
Agency did not identify any potentially applicable voluntary consensus 
standards during its efforts to develop appropriate standards (e.g., 
during its discussions with Agency personnel and stakeholders who are 
experts in the areas addressed by this rulemaking).
    EPA welcomes comments on this aspect of the proposed rulemaking 
and, specifically, invites the public to identify potentially-
applicable voluntary consensus standards and to explain why such 
standards should be used in this regulation.

F. Consultation and Coordination With Indian Tribal Governments 
(Executive Order 13084)

    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.''
    The proposed rule would not impose substantial direct compliance 
costs on communities of Indian tribal governments because Indian tribal 
governments do not implement the CAMU rule. Accordingly, the 
requirements of section 3(b) of Executive Order 13084 do not apply to 
this rule.

G. Protection of Children From Environmental Health Risks and Safety 
Risks (Executive Order 13045)

    Executive Order 13045: ``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 Executive Order 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 proposed rule is not subject to the Executive Order because it 
is not economically significant as defined in Executive Order 12866, 
and because the Agency does not have reason to believe that this rule 
presents disproportionate or additional risks to children. The Agency 
does not believe that the risks addressed by today's amendments--i.e., 
the risks from on-site management of hazardous cleanup wastes--present 
a disproportionate risk to children. The proposed rule, among other 
things, sets minimum CAMU treatment and design standards designed to 
help ensure the protectiveness of CAMUs. EPA's analysis of these 
requirements shows that CAMUs are already meeting the minimum standards 
proposed in this rule. As amended by the proposed rule, the CAMU rule 
would continue to require that a decision concerning overall 
protectiveness of any specific CAMU be made by the Regional 
Administrator based on site-specific circumstances, including risks to 
children where appropriate. The Agency is committed to ensuring that 
these site-specific assessments include an assessment of risks to 
children where appropriate. Therefore, the Agency believes that these 
amendments do not present disproportionate or additional risks to 
children at facilities employing a CAMU.
    The public is invited to submit comments on any potential 
children's risk implications believed to be associated with the CAMU 
proposed amendments.

H. Federalism (Executive Order 13132)

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    This proposed rule does not have federalism implications. It will 
not have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in Executive Order 13132. First, any direct effects on the 
States will not be substantial, because, as described more fully above, 
the Agency expects the increased analytical costs for oversight 
agencies (i.e., EPA or authorized states) associated with the rule to 
be insignificant. In addition, although the proposed amendments would 
limit the discretion available to oversight agencies under the current 
CAMU rule, the Agency's record demonstrates that the CAMU decisions 
expected under the amendments are generally the same as those reached 
under the current regulatory framework. In addition, EPA does not 
believe the proposed rule would have a substantial direct effect on 
states as regulated parties, since based on past patterns of CAMU 
usage, state governments are not generally expected to use CAMUs.
    As for the EPA-State relationship and distribution of power and 
responsibilities, today's proposal includes state authorization 
provisions that would allow the large majority of

[[Page 51131]]

states currently authorized for the CAMU provisions to become interim 
authorized for the amendments at the same time those amendments become 
effective. Thus, for those states, there will be no period in which the 
amendments are in effect federally, but not as a matter of state law. 
Even for those CAMU-authorized states that do not become interim 
authorized under this procedure, however, the Agency does not believe 
that any impact of the rule would be substantial. Although the Agency 
would implement the amendments in such states until they become 
authorized, EPA does not expect that this will generally result in 
changes to the state's individual CAMU decisions under state law, 
since, as described above, state CAMU decisions will likely be 
consistent with today's amendments. Thus, Executive Order 13132 does 
not apply to this rule.
    The Agency notes, in addition, that prior to entering into the CAMU 
settlement agreement, EPA did discuss with the States potential impacts 
on States from amendments to the CAMU rule. During these discussions, 
individual States expressed concerns about potential disruption caused 
by the authorization process that would be required in States that are 
already authorized for the 1993 CAMU rule, the reduced discretion that 
would be available under any amendments to the CAMU rule, and the 
potentially more elaborate process that would be involved in making 
CAMU decisions.
    EPA recognizes that these are valid concerns, and believes today's 
proposal addresses them. For example, EPA has proposed a grandfathering 
provision, to address the issue of disrupting existing CAMUs and those 
that are substantially in the approval process. The proposal will also 
include an approach to authorization that is intended to reduce 
disruption for States with authorized CAMU programs, and to expedite 
authorization for States that have corrective action programs but are 
not yet authorized for CAMU. In addition, EPA recognizes that increased 
process would be introduced by this proposal, but, as is described in 
the background section of today's preamble, has tried to find a 
reasonable balance by adding sufficient detail to achieve the 
proposal's goals while preserving site-specific flexibility that 
provides incentives to cleanup. Finally, the proposal is designed to 
incorporate the CAMU designation process into the existing decision-
making process that is typically used by states and EPA for cleanups, 
including that used for making CAMU determinations. For example, EPA 
designed the principal hazardous constituent process, and certain 
proposed adjustment factors to reference the overall cleanup decision-
making process within which the CAMU decision is made. EPA seeks 
comment on its approach to address these concerns.

I. Environmental Justice (Executive Order 12898)

    On February 11, 1994, the President issued Executive Order 12898, 
entitled ``Federal Actions To Address Environmental Justice in Minority 
Populations and Low-Income Populations,'' and an accompanying 
memorandum to federal department and agency heads. The Order 
establishes a policy to help ensure that all communities, including 
minority communities and low-income communities, live in a safe and 
healthful environment. As noted in the presidential memorandum, it is 
designed to focus federal attention on the human health and 
environmental conditions in minority communities and low-income 
communities to realize the goal of achieving environmental justice. The 
Order also is intended to foster nondiscrimination in federal programs 
that substantially affect human health or the environment, and to give 
minority communities and low-income communities greater opportunities 
for public participation in, and access to public information on, 
matters relating to human health and the environment. In general, to 
the greatest extent practicable and permitted by law, the Order directs 
federal agencies to make environmental justice part of their mission by 
identifying and addressing, as appropriate, disproportionately high and 
adverse human health or environmental effects of its programs, 
policies, and activities on minority populations and low-income 
populations.
    Today's proposed rule is intended to amend the existing CAMU rule 
through, among other things, establishing a formalized process for 
approval of CAMUs, as well as setting national minimum treatment and 
unit design standards for CAMUs. The treatment and unit design 
standards formalize the existing expectations that site decisions be 
made within the overall decision making process in a manner protective 
of human health and the environment. The Agency's analysis shows that 
CAMUs are already meeting these minimum standards. Therefore, the 
Agency believes that these amendments, although formalizing such 
requirements, would not appreciably affect the risks at facilities 
where CAMUs are employed. This rule does not specifically address the 
overall remedial decision making process within which CAMUs are 
approved. Thus, EPA believes that this rule will not have any 
disproportionately high and adverse human health or environmental 
effects on minority populations or low-income populations. The Agency 
continues its commitment to ensuring that environmental justice 
concerns are addressed within remedial decisions in corrective action.

List of Subjects

40 CFR Part 260

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

40 CFR Part 264

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

40 CFR Part 271

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

    Dated: August 7, 2000.
Carol M. Browner,
Administrator.
    For the reasons set out in the preamble, 40 CFR Parts 260, 264 and 
271 are proposed to be amended as follows.

PART 260--HAZARDOUS WASTE MANAGEMENT SYSTEM: GENERAL

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

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

    2. Section 260.10 is amended by removing the definition of 
``Corrective action management unit (CAMU).''

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

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

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


[[Page 51132]]


    4. Section 264.550 is added to Subpart S as follows:


Sec. 264.550  Applicability of Corrective Action Management Unit (CAMU) 
Regulations.

    (a) Except as provided in paragraph (b) of this section, CAMUs are 
subject to the requirements of Sec. 264.552.
    (b) CAMUs that were approved before the [effective date of final 
rule], or for which substantially complete applications (or 
equivalents) were submitted to the Agency on or before [Insert date 90 
days after the publication date of this proposed rule], are subject to 
the requirements in Sec. 264.551 for grandfathered CAMUs, so long as 
the waste, waste management activities, and design of the CAMU remain 
within the general scope of the CAMU as approved.
    5. Section 264.552 is redesignated as Sec. 264.551 and newly 
designated Sec. 264.551 is amended by revising the title and paragraph 
(a) as follows:


Sec. 264.551  Grandfathered Corrective Action Management Units (CAMUs).

    (a) To implement remedies under Sec. 264.101 or RCRA 3008(h), or to 
implement remedies at a permitted facility that is not subject to 
Sec. 264.101, the Regional Administrator may designate an area at the 
facility as a corrective action management unit under the requirements 
in this section. Corrective action management unit means an area within 
a facility that is used only for managing remediation wastes for 
implementing corrective action or cleanup at the facility. A CAMU must 
be located within the contiguous property under the control of the 
owner/operator where the wastes to be managed in the CAMU originated. 
One or more CAMUs may be designated at a facility.
    (b) * * *
* * * * *
    6. A new Sec. 264.552 is added as follows:


Sec. 264.552  Corrective Action Management Units (CAMU).

    (a) To implement remedies under Sec. 264.101 or RCRA 3008(h), or to 
implement remedies at a permitted facility that is not subject to 
Sec. 264.101, the Regional Administrator may designate an area at the 
facility as a corrective action management unit under the requirements 
in this section. Corrective action management unit means an area within 
a facility that is used only for managing CAMU-eligible wastes for 
implementing corrective action or cleanup at the facility. A CAMU must 
be located within the contiguous property under the control of the 
owner/operator where the wastes to be managed in the CAMU originated. 
One or more CAMUs may be designated at a facility.
    (1) CAMU-eligible waste means:
    (i) All solid and hazardous wastes, and all media (including 
groundwater, surface water, soils, and sediments) and debris that 
contain listed hazardous wastes or that themselves exhibit a hazardous 
characteristic and are managed for implementing cleanup. As-generated 
wastes (either hazardous or non-hazardous) from ongoing industrial 
operations at a site are not CAMU-eligible wastes.
    (ii) Wastes that would otherwise meet the description in paragraph 
(a)(1)(i) of this section are not ``CAMU-Eligible Wastes'' where:
    (A) The wastes are hazardous wastes found during cleanup in intact 
or substantially intact containers, tanks, or other non-land-based 
units, unless the wastes are first placed in the tanks, containers or 
non-land-based units as part of cleanup, or the containers are 
excavated during the course of cleanup; or
    (B) The Regional Administrator exercises the discretion in 
paragraph (a)(2) of this section to prohibit the wastes from management 
in a CAMU.
    (iii) Notwithstanding paragraph (a)(1)(i) of this section, where 
appropriate, as-generated non-hazardous waste may be placed in a CAMU 
where such waste is being used to facilitate treatment or the 
performance of the CAMU.
    (2) The Regional Administrator may prohibit, where appropriate, the 
placement of waste in a CAMU where the Regional Administrator has or 
receives information that such wastes have not been managed in 
compliance with applicable land disposal treatment standards of part 
268 of this chapter, or applicable unit design requirements of this 
part, or applicable unit design requirements of part 265 of this 
chapter, or that non-compliance with other applicable requirements of 
this chapter likely contributed to the release of the waste.
    (3) Prohibition against placing liquids in CAMUs.
    (i) The placement of bulk or noncontainerized liquid hazardous 
waste or free liquids contained in hazardous waste (whether or not 
sorbents have been added) in any CAMU is prohibited except where 
placement of such wastes facilitates the remedy selected for the waste.
    (ii) The requirements in Sec. 264.314(d) for placement of 
containers holding free liquids in landfills apply to placement in a 
CAMU except where placement facilitates the remedy selected for the 
waste.
    (iii) The placement of any liquid which is not a hazardous waste in 
a CAMU is prohibited unless such placement facilitates the remedy 
selected for the waste or a demonstration is made pursuant to 
Sec. 264.314(f).
    (iv) The absence or presence of free liquids in either a 
containerized or a bulk waste must be determined in accordance with 
Sec. 264.314(c). Sorbents used to treat free liquids in CAMUs must meet 
the requirements of Sec. 264.314(e).
    (4) Placement of CAMU-eligible wastes into or within a CAMU does 
not constitute land disposal of hazardous wastes.
    (5) Consolidation or placement of CAMU-eligible wastes into or 
within a CAMU does not constitute creation of a unit subject to minimum 
technology requirements.
    (b)(1) The Regional Administrator may designate a regulated unit 
(as defined in Sec. 264.90(a)(2)) as a CAMU, or may incorporate a 
regulated unit into a CAMU, if:
    (i) The regulated unit is closed or closing, meaning it has begun 
the closure process under Sec. 264.113 or Sec. 265.113; and
    (ii) Inclusion of the regulated unit will enhance implementation of 
effective, protective and reliable remedial actions for the facility.
    (2) The subpart F, G, and H requirements and the unit-specific 
requirements of part 264 or 265 that applied to the regulated unit will 
continue to apply to that portion of the CAMU after incorporation into 
the CAMU.
    (c) The Regional Administrator shall designate a CAMU that will be 
used for storage and/or treatment only in accordance with paragraph (f) 
of this section. The Regional Administrator shall designate all other 
CAMUs in accordance with the following:
    (1) The CAMU shall facilitate the implementation of reliable, 
effective, protective, and cost-effective remedies;
    (2) Waste management activities associated with the CAMU shall not 
create unacceptable risks to humans or to the environment resulting 
from exposure to hazardous wastes or hazardous constituents;
    (3) The CAMU shall include uncontaminated areas of the facility, 
only if including such areas for the purpose of managing CAMU-eligible 
waste is more protective than management of such wastes at contaminated 
areas of the facility;

[[Page 51133]]

    (4) Areas within the CAMU, where wastes remain in place after 
closure of the CAMU, shall be managed and contained so as to minimize 
future releases, to the extent practicable;
    (5) The CAMU shall expedite the timing of remedial activity 
implementation, when appropriate and practicable;
    (6) The CAMU shall enable the use, when appropriate, of treatment 
technologies (including innovative technologies) to enhance the long-
term effectiveness of remedial actions by reducing the toxicity, 
mobility, or volume of wastes that will remain in place after closure 
of the CAMU; and
    (7) The CAMU shall, to the extent practicable, minimize the land 
area of the facility upon which wastes will remain in place after 
closure of the CAMU.
    (d) The owner/operator shall provide sufficient information to 
enable the Regional Administrator to designate a CAMU in accordance 
with the criteria in Sec. 264.552. This must include, unless not 
reasonably available, information on:
    (1) The origin of the waste and how it was subsequently managed 
(including a description of the timing and circumstances surrounding 
the disposal and/or release);
    (2) Whether the waste was listed or identified as hazardous at the 
time of disposal and/or release; and
    (3) Whether the waste was subject to the land disposal requirements 
of part 268 of this chapter at the time of disposal and/or release.
    (e) The Regional Administrator shall specify, in the permit or 
order, requirements for CAMUs to include the following:
    (1) The areal configuration of the CAMU.
    (2) Except as provided in paragraph (g) of this section, 
requirements for CAMU-eligible waste management to include the 
specification of applicable design, operation, treatment and closure 
requirements.
    (3) Minimum Design Requirements: CAMUs, except as provided in 
paragraph (f) of this section, into which wastes are placed must be 
designed in accordance with the following:
    (i) Unless the Regional Administrator approves alternate 
requirements under paragraph (e)(3)(ii) of this section, CAMUs that 
consist of new, replacement, or laterally expanded units must include a 
composite liner and a leachate collection system that is designed and 
constructed to maintain less than a 30-cm depth of leachate over the 
liner. For purposes of this section, composite liner means a system 
consisting of two components; the upper component must consist of a 
minimum 30-mil flexible membrane liner (FML), and the lower component 
must consist of at least a two-foot layer of compacted soil with a 
hydraulic conductivity of no more than 1 x 10-7 cm/sec. FML components 
consisting of high density polyethylene (HDPE) must be at least 60 mil 
thick. The FML component must be installed in direct and uniform 
contact with the compacted soil component;
    (ii) Alternate requirements. The Regional Administrator may approve 
alternate requirements if:
    (A) The Regional Administrator finds that alternate design and 
operating practices, together with location characteristics, will 
prevent the migration of any hazardous constituents into the ground 
water or surface water at least as effectively as the liner and 
leachate collection systems in paragraph (e)(3)(i) of this section; or,
    (B) The CAMU is to be established in an area with existing 
significant levels of contamination, and the Regional Administrator 
finds that an alternative design, including a design that does not 
include a liner, would prevent migration from the unit that would 
exceed long-term remedial goals.
    (4) Minimum treatment requirements. Unless the wastes will be 
placed in a CAMU for storage and/or treatment only in accordance with 
paragraph (f) of this section, CAMU-eligible wastes that, absent this 
section, would be subject to the treatment requirements of part 268 of 
this chapter, and that the Regional Administrator determines contain 
principal hazardous constituents must be treated to the standards 
specified in paragraph (e)(4)(iii) of this chapter.
    (i) Principal hazardous constituents are those constituents that 
the Regional Administrator determines pose a risk to human health and 
the environment substantially higher than the cleanup levels or goals 
at the site.
    (A) In general, the Regional Administrator will designate as 
principal hazardous constituents:
    (1) Carcinogens that pose a potential direct risk from ingestion or 
inhalation at the site at or above 10-\3\.; and,
    (2) Non-carcinogens that pose a potential direct risk from 
ingestion or inhalation at the site an order of magnitude or greater 
over their reference dose.
    (B) The Regional Administrator will also designate constituents as 
principal hazardous constituents, where appropriate, based on risks 
posed by the potential migration of constituents in wastes to 
groundwater, considering such factors as constituent concentrations, 
and fate and transport characteristics under site conditions.
    (C) The Regional Administrator may also designate other 
constituents as principal hazardous constituents that the Regional 
Administrator determines pose a risk to human health and the 
environment substantially higher than the cleanup levels or goals at 
the site.
    (ii) In determining which constituents are ``principal hazardous 
constituents,'' the Regional Administrator must consider all 
constituents which, absent this section, would be subject to the 
treatment requirements in part 268 of this chapter.
    (iii) Waste that the Regional Administrator determines contains 
principal hazardous constituents must meet treatment standards 
determined in accordance with paragraph (e)(4)(iv) or (e)(4)(v) of this 
section:
    (iv) Treatment standards for wastes placed in CAMUs.
    (A) For non-metals, treatment must achieve 90 percent reduction in 
total principal hazardous constituent concentrations, except as 
provided by paragraph (e)(4)(iv)(C) of this section.
    (B) For metals, treatment must achieve 90 percent reduction in 
principal hazardous constituent concentrations as measured in leachate 
from the treated waste or media (tested according to the TCLP) or 90 
percent reduction in total constituent concentrations (when a metal 
removal treatment technology is used), except as provided by paragraph 
(e)(4)(iv)(C) of this section.
    (C) When treatment of any principal hazardous constituent to a 90 
percent reduction standard would result in a concentration less than 10 
times the Universal Treatment Standard for that constituent, treatment 
to achieve constituent concentrations less than 10 times the Universal 
Treatment Standard is not required. Universal Treatment Standards are 
identified in Sec. 268.48 Table UTS.
    (D) For waste exhibiting the hazardous characteristic of 
ignitability, corrosivity or reactivity, the waste must also be treated 
to eliminate these characteristics.
    (E) For debris, the debris must be treated in accordance with 
Sec. 268.45, or by methods or to levels established under paragraph 
(e)(4)(iv)(A) through (D) or (e)(4)(v) of this section, whichever the 
Regional Administrator determines is appropriate.
    (v) Adjusted standards. The Regional Administrator may adjust the 
treatment level or method in (e)(4)(iv) of this section to a higher or 
lower level, based on one or more of the following factors, as 
appropriate. The adjusted level or

[[Page 51134]]

method must be protective of human health and the environment:
    (A) The technical impracticability of treatment to the levels or by 
the methods in (e)(4)(iv) of this section;
    (B) The levels or methods in (e)(4)(iv) of this section would 
result in concentrations of hazardous constituents that are 
significantly above or below cleanup standards applicable to the site 
(established either site-specifically, or promulgated under state or 
federal law);
    (C) The views of the affected local community on the treatment 
levels or methods in (e)(4)(iv) of this section as applied at the site, 
and, for treatment levels, the treatment methods necessary to achieve 
these levels;
    (D) The short-term risks presented by the on-site treatment method 
necessary to achieve the levels or treatment methods in (e)(4)(iv) of 
this section;
    (E) The long-term protection offered by the engineering design of 
the CAMU and related engineering controls:
    (1) Where the treatment standards in paragraph (e)(4)(iv) of this 
section are substantially met and the principal hazardous constituents 
in the waste or residuals are of very low mobility; or
    (2) Where cost-effective treatment has been used, or where, after 
review of appropriate treatment technologies, the Regional 
Administrator determines that such treatment is not reasonably 
available, and:
    (i) The CAMU meets the Subtitle C liner and leachate collection 
requirements for new land disposal units at Sec. 264.301(c) and (d), or
    (ii) The principal hazardous constituents in the treated wastes are 
of very low mobility, or,
    (iii) Where wastes have not been treated and the principal 
hazardous constituents in the wastes are of very low mobility, and 
either the CAMU meets or exceeds the liner standards for new, 
replacement, or laterally expanded CAMUs in paragraphs (e)(3)(i) and 
(ii) of this section, or the CAMU provides substantially equivalent or 
greater protection.
    (vi) The treatment required by the treatment standards must be 
completed prior to, or within a reasonable time after, placement in the 
CAMU.
    (vii) For the purpose of determining whether wastes placed in CAMUs 
have met site-specific treatment standards, the Regional Administrator 
may, as appropriate, specify a subset of the principal hazardous 
constituents in the waste as analytical surrogates for determining 
whether treatment standards have been met for other principal hazardous 
constituents. This specification will be based on the degree of 
difficulty of treatment and analysis of constituents with similar 
treatment properties.
    (5) Except as provided in paragraph (f) of this section, 
requirements for ground water monitoring and corrective action that are 
sufficient to:
    (i) Continue to detect and to characterize the nature, extent, 
concentration, direction, and movement of existing releases of 
hazardous constituents in ground water from sources located within the 
CAMU; and
    (ii) Detect and subsequently characterize releases of hazardous 
constituents to ground water that may occur from areas of the CAMU in 
which wastes will remain in place after closure of the CAMU; and
    (iii) Require notification to the Regional Administrator and 
corrective action as necessary to protect human health and the 
environment for releases to groundwater from the CAMU.
    (6) Except as provided in paragraph (f) of this section, closure 
and post-closure requirements:
    (i) Closure of corrective action management units shall:
    (A) Minimize the need for further maintenance; and
    (B) Control, minimize, or eliminate, to the extent necessary to 
protect human health and the environment, for areas where wastes remain 
in place, post-closure escape of hazardous wastes, hazardous 
constituents, leachate, contaminated runoff, or hazardous waste 
decomposition products to the ground, to surface waters, or to the 
atmosphere.
    (ii) Requirements for closure of CAMUs shall include the following, 
as appropriate and as deemed necessary by the Regional Administrator 
for a given CAMU:
    (A) Requirements for excavation, removal, treatment or containment 
of wastes; and
    (B) Requirements for removal and decontamination of equipment, 
devices, and structures used in CAMU-eligible waste management 
activities within the CAMU.
    (iii) In establishing specific closure requirements for CAMUs under 
paragraph (e) of this section, the Regional Administrator shall 
consider the following factors:
    (A) CAMU characteristics;
    (B) Volume of wastes which remain in place after closure;
    (C) Potential for releases from the CAMU;
    (D) Physical and chemical characteristics of the waste;
    (E) Hydrological and other relevant environmental conditions at the 
facility which may influence the migration of any potential or actual 
releases; and
    (F) Potential for exposure of humans and environmental receptors if 
releases were to occur from the CAMU.
    (iv) Cap requirements.
    (A) At final closure of the CAMU, for areas in which wastes will 
remain after closure of the CAMU, the owner or operator must cover the 
CAMU with a final cover designed and constructed to meet the following 
performance criteria, except as provided in paragraph (e)(6)(iv)(B) of 
this section:
    (1) Provide long-term minimization of migration of liquids through 
the closed unit;
    (2) Function with minimum maintenance;
    (3) Promote drainage and minimize erosion or abrasion of the cover;
    (4) Accommodate settling and subsidence so that the cover's 
integrity is maintained; and
    (5) Have a permeability less than or equal to the permeability of 
any bottom liner system or natural subsoils present.
    (B) The Regional Administrator may determine that modifications to 
paragraph (e)(6)(iv)(A) of this section are needed to facilitate 
treatment or the performance of the CAMU (e.g., to promote 
biodegradation).
    (v) Post-closure requirements as necessary to protect human health 
and the environment, to include, for areas where wastes will remain in 
place, monitoring and maintenance activities, and the frequency with 
which such activities shall be performed to ensure the integrity of any 
cap, final cover, or other containment system.
    (f) CAMUs used for storage and/or treatment only are CAMUs in which 
wastes will not remain after closure. Such CAMUs must be designated in 
accordance with all requirements of this section, except as follows. 
CAMUs used for storage/and or treatment only:
    (1) Are not subject to the treatment requirements under paragraph 
(e)(4) of this section;
    (2) Must have requirements specified in the permit or order in 
accordance with:
    (i) The staging pile performance criteria at Secs. 264.554(d)(1)(i) 
through (ii) and (d)(2) in lieu of the CAMU designation criteria at 
paragraph (c) of this section;
    (ii) The staging pile standards for management of ignitable, 
reactive or incompatible wastes at Sec. 264.554(e) through (f);
    (iii) The staging pile standards for closure at Sec. 264.554(j) 
through (k), in lieu of the CAMU closure standards at paragraph (e)(6) 
of this section;
    (3) That will operate in accordance with the time limits 
established in the staging pile regulations at

[[Page 51135]]

Sec. 264.554(d)(1)(iii), (h), and (i), are not subject to the 
groundwater monitoring and corrective action requirements of paragraph 
(e)(5) of this section and the minimum design requirements for liners 
of paragraph (e)(3) of this section;
    (4) That will operate beyond the period permitted in the staging 
pile regulations at Sec. 264.554(d)(1)(iii), (h), and (i), must have a 
time limit established by the Regional Administrator that is no longer 
than necessary to achieve a timely remedy selected for the waste.
    (g) CAMUs into which wastes are placed where all wastes have 
constituent levels at or below remedial levels or goals applicable to 
the site do not have to comply with the requirements for liners at 
paragraph (e)(3)(i) of this section, caps at paragraph (e)(6)(iv) of 
this section, groundwater monitoring requirements at paragraph (e)(5) 
of this section or the design standards at paragraph (f) of this 
section for treatment and/or storage-only CAMUs.
    (h) The Regional Administrator shall provide public notice and a 
reasonable opportunity for public comment before designating a CAMU. 
Such notice shall include the rationale for any proposed adjustments 
under paragraph (e)(4)(iii)(B) of this section to the treatment 
standards in paragraph (e)(4)(iv) of this section.
    (i) Notwithstanding any other provision of this section, the 
Regional Administrator may impose additional requirements as necessary 
to protect human health and the environment.
    (j) Incorporation of a CAMU into an existing permit must be 
approved by the Regional Administrator according to the procedures for 
Agency-initiated permit modifications under Sec. 270.41 of this 
chapter, or according to the permit modification procedures of 
Sec. 270.42 of this chapter.
    (k) The designation of a CAMU does not change EPA's existing 
authority to address clean-up levels, media-specific points of 
compliance to be applied to remediation at a facility, or other remedy 
selection decisions.

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

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

    Authority: 42 U.S.C. 9605, 6912(2), and 6926.

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


Sec. 271.1  Purpose and scope.

* * * * *
    (j) * * *

               Table 1.--Regulations Implementing the Hazardous and Solid Waste Amendments of 1984
----------------------------------------------------------------------------------------------------------------
                                                                    Federal Register
          Promulgation date              Title of regulation           reference              Effective date
----------------------------------------------------------------------------------------------------------------
 
*                  *                  *                  *                  *                  *
                                                        *
[date of publication of final rule in  Corrective Action        [FR page numbers]......  [date of 90 days from
 the                                    Management Unit                                   date of publication of
Federal Register (FR)]...............   Standards Amendments.                             final rule].
----------------------------------------------------------------------------------------------------------------

* * * * *
    9. Section 271.24 is amended by revising paragraph (c) to read as 
follows:


Sec. 271.24  Interim authorization under section 3006(g) of RCRA.

* * * * *
    (c) Interim authorization pursuant to this section expires on 
January 1, 2003, except that interim authorization for the revised 
Corrective Action Management Unit rule promulgated on [date of 
publication of final rule in the Federal Register (FR) and FR page 
numbers] expires on [date of 3 years from the effective date of the 
final rule].
    10. A new Sec. 271.27 is added at the end of subpart A to read as 
follows:


Sec. 271.27  Interim authorization-by-rule for the revised Corrective 
Action Management Unit rule.

    (a) States shall have interim authorization pursuant to section 
3006(g) of RCRA for the revised Corrective Action Management Unit rule 
if:
    (1) The State has been granted final authorization pursuant to 
section 3006(b) of RCRA for the provisions for Corrective Action 
Management Units in Sec. 264.552 of this chapter;
    (2) The State does not have an audit privilege or immunity law that 
raises unresolved concerns about adequate enforcement under section 
3006(b) of RCRA; and
    (3) The State notifies the Administrator by [date of 60 days from 
date of publication of final rule] that the State intends to and is 
able to use the revised Corrective Action Management Unit Standards 
rule as guidance.
    (b) Interim authorization pursuant to this section expires on [date 
of 3 years from the effective date of the final rule].

[FR Doc. 00-20534 Filed 8-21-00; 8:45 am]
BILLING CODE 6560-50-P