[Federal Register Volume 66, Number 224 (Tuesday, November 20, 2001)]
[Proposed Rules]
[Pages 58085-58097]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-28935]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 264

[FRL-7105-7 ]
RIN 2050 AE77


Supplemental Proposal to the Corrective Action Management Unit 
Rule

AGENCY: Environmental Protection Agency.

[[Page 58086]]


ACTION: Proposed rule.

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SUMMARY: In today's action, the Agency is proposing a regulatory change 
suggested by commenters on the Environmental Protection Agency's 
(EPA's) proposed ``Amendments to the Corrective Action Management Unit 
Rule'' (August 22, 2000). In that notice, EPA proposed amendments to 
the corrective action management unit (CAMU) regulations to tighten 
standards for wastes managed in CAMUs during cleanup. The comment 
period on the August 2000 proposal closed on October 23, 2000. EPA is 
now proposing additional regulations that would allow CAMU-eligible 
hazardous waste, treated in accordance with the treatment standard in 
the proposed CAMU amendment in lieu of otherwise applicable land 
disposal restriction standards, to be placed in hazardous waste 
landfills, under limited circumstances. We believe that allowing 
hazardous remediation waste generated during clean-up to be placed in 
hazardous waste landfills will promote more aggressive remediation.
    In this document, EPA is soliciting comment only on the issue of 
placement of CAMU-eligible wastes in hazardous waste landfills under 
the terms of today's supplemental proposal; we are not requesting 
comment on any aspect of the August 2000 proposal. If EPA goes forward 
with today's proposal, it intends to do so when it takes final action 
on the August 2000 proposal.

DATES: EPA will accept public comment until December 5, 2001.

ADDRESSES: Those persons wishing to submit public comments must send an 
original and two copies of their comments referencing EPA docket number 
F-2001-AC2P-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-2001-AC2P-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 N.W., 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 Supplementary 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: In developing this document, we tried to 
address the concerns of all our stakeholders. Your comments will help 
us improve this proposed regulatory action. We invite you to provide 
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 provide a 
summary of the reasoning you used to arrive at your conclusions.
     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 of this proposal you support, as well 
as those you disagree with.
     Provide specific examples to illustrate your concerns.
     Offer specific alternatives.
     Reference your comments to specific sections of this 
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 Supplemental Proposal to the 
Corrective Action Management Unit Rule (EPA publication number 
[Insert]), are available for review 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/epaoswer/hazwaste/ca/resource/guidance/remwaste/camu. Printed copies of the final rule and 
related documents can also be obtained by calling the RCRA/Superfund 
Hotline at (800) 424-9346 or (703) 412-9810.
    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. We may, however seek clarification of electronic 
comments that become garbled in transmission or during conversion to 
paper form.

Outline

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

I. Authority
II. Summary of Today's Proposal
III. Background and General Proposal Requirements
IV. Section-by-Section Discussion
    A. Conditions for Off-Site Placement
    B. Approval Procedures
    C. Other Requirements
V. How Would Today's Proposed Regulatory Changes be Administered and 
Enforced in the States?
VI. Effective Date
VII. Analytical and Regulatory Requirements
    A. Planning and Regulatory Review (Executive Order 12866)
    B. Regulatory Flexibility Act (RFA) as amended by the Small 
Business Regulatory Enforcement and Fairness Act of 1996 (SBREFA), 5 
USC 601 et. seq.
    C. Paperwork Reduction Act
    D. Unfunded Mandates Reform Act
    E. National Technology Transfer and Advancement Act of 1995
    F. Consultation and Coordination with Indian and Tribal 
Governments (Executive Order 13175)
    G. Protection of Children from Environmental Health Risks and 
Safety Risks (Executive Order 13045)

[[Page 58087]]

    H. Federalism (Executive Order 13132)
    I. Environmental Justice Strategy (Executive Order 12898)
    J. Energy Effects (Executive Order 13211)

I. Authority

    These regulations are proposed under the authority of Secs. 1006, 
2002(a), 3004, 3005, 3007, and 7004 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.

II. Summary of Today's Proposal

    EPA is proposing additional regulations that would allow CAMU-
eligible hazardous wastes to be placed in hazardous waste landfills 
under limited circumstances. Under today's proposal, principal 
hazardous constituents in the waste would have to be treated to the 
same (or in some cases higher) standards than would hazardous wastes 
going to CAMUs at a remediation site. The receiving hazardous waste 
landfill would be required to meet the Resource Conservation and 
Recovery Act (RCRA) minimum technology requirements for new landfills 
and to have a RCRA permit; and the public at the location of the 
landfill would have an opportunity to comment on disposal of the waste 
at that landfill.
    Today's proposal assumes that readers are familiar with EPA's 
August 22, 2000 proposal to amend the CAMU regulations (65 FR 51080). 
Readers who are unfamiliar with that proposal should refer to it to 
help them better understand both the context of today's proposal and 
the specific concepts discussed today.

III. Background and General Proposal Requirements

    On August 22, 2000, EPA issued a proposal to amend the Resource 
Conservation and Recovery Act (RCRA) Corrective Action Management Unit 
(CAMU) regulations (65 FR 51080). The CAMU regulations (originally 
promulgated in February 1993) establish flexible standards for the on-
site management of hazardous remediation waste during cleanups. Under 
the 1993 regulations, primarily found at 40 CFR 264.552, management of 
hazardous remediation wastes (including soil and debris) in CAMUs does 
not trigger the RCRA land disposal restrictions (LDRs) or RCRA's 
minimum technological requirements. Instead, management standards are 
set by the Regional Administrator on a site-specific basis, generally 
as part of the overall remedy selection process. EPA proposed to amend 
these regulations in August 2000. The proposed revisions would tighten 
the current CAMU requirements by establishing minimum design standards 
for CAMUs and minimum treatment requirements for hazardous remediation 
wastes placed in CAMUs.
    The CAMU rule currently limits wastes that might be placed in CAMUs 
to those found on or originating from the facility where the cleanup 
occurred. See 40 CFR 260.10 (definition of corrective action management 
unit) and Sec. 264.552(a). Under the current rule, CAMUs must be 
located on that facility, and may not receive remediation wastes from 
other locations. Hazardous remediation wastes sent to other locations 
generally must be managed in accordance with full RCRA Subtitle C 
standards for ``as-generated'' hazardous waste--that is, hazardous 
waste derived from on-going industrial processes.\1\ EPA's proposed 
revisions to the CAMU rule in August 2000 did not address the issue of 
CAMU-eligible wastes shipped off-site.\2\
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    \1\ EPA subsequently promulgated a treatability variance from 
the land disposal restrictions for remediation waste to promote more 
aggressive cleanups (see the ``environmentally inappropriate'' 
variance, Sec. 268.44(h)(2)(ii), 62 FR 64504-64506, December 5, 
1997). EPA also developed special treatment standards for soils 
contaminated with hazardous waste (see the Land Disposal 
Restrictions Phase IV rule, 63 FR 28556, May 26, 1998).
    \2\ In the August 2000 proposal, EPA limited wastes that could 
be placed in a CAMU to a subset of remediation wastes, which it 
identified as ``CAMU-eligible'' wastes. For more detail, see p. 
51084-51088 of the August 2000 proposal and section IV.A of today's 
notice.
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    Although EPA did not seek comment on off-site issues in the CAMU-
amendment proposal, in response to EPA's proposal, several commenters 
argued for off-site management of CAMU-eligible waste. One commenter--a 
trade association representing the waste treatment industry--offered a 
detailed recommendation. According to this commenter, EPA should allow 
off-site management of CAMU-eligible wastes if they have been treated 
in accordance with the proposed CAMU treatment requirements, they go to 
a permitted RCRA Subtitle C landfill, and the landfill has been through 
public participation procedures to modify its permit to accept the 
wastes. Another commenter argued that continuing to limit CAMU-eligible 
waste to management on-site would act as a disincentive to remediation. 
In some cases, the commenter said, redeposition of remediation waste 
on-site may not be the most desirable cleanup scenario (e.g., because 
of lack of a suitable on-site disposal facility, or of the ability to 
assure long-term management of such a facility on-site, or ``other 
economic or policy choices''). Under the right circumstances (e.g., a 
combination of initial concentration levels, limited process, and 
sufficiently protective final disposal units), the commenter argued, it 
may make sense to remove the material to a ``secure landfill 
elsewhere.'' The commenter specifically asked EPA ``to develop a way to 
provide the key elements of the CAMU concept in off-site 
applications,'' and in particular suggested allowing ``disposal of 
remediation waste without further treatment in an off-site facility 
meeting Subtitle C design requirements.''
    A third commenter recommended that EPA develop a ``nation-wide LDR 
variance for remediation wastes disposed of in Subtitle C units.'' The 
commenter argued that this approach would improve the pace and quality 
of remediations, and that it would be attractive for sites in 
residential neighborhoods, or geologically sensitive areas, or where 
land-use potential would be improved through removal.
    After the close of the public comment period on the CAMU proposal, 
representatives of the waste treatment industry and the waste 
generating industry (including the commenters who had made specific 
suggestions on the issue) met with EPA to present a proposal for 
allowing disposal of CAMU-eligible wastes in off-site Subtitle C 
landfills. The approach this group suggested was similar to the 
approach suggested earlier in comments by the waste treatment trade 
association, but it included greater detail. Under the group's 
suggested approach, CAMU-eligible wastes could be shipped off-site and 
placed in an off-site permitted RCRA hazardous waste landfill, if they 
met the proposed CAMU minimum treatment requirements (instead of the 
RCRA land disposal restriction treatment requirements which would 
otherwise apply). Use of the proposed treatment adjustment factors 
would generally be allowed, but, if the overseeing regulatory agency 
adjusted treatment levels because of the protection offered by the 
design of the disposal unit, the waste would have to be treated through 
a cost-effective technology.\3\ Also, the Subtitle C landfill would 
have to be authorized to receive such waste after public notice, and an 
opportunity for a hearing. EPA has placed a copy of the industry 
group's

[[Page 58088]]

submission on off-site disposal of CAMU-eligible waste in the docket 
for today's rulemaking.
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    \3\ Under the August 2000 proposal, treatment of principal 
hazardous constituents in waste placed in a CAMU might not be 
required, based on the protection offered by the CAMU's design, 
where the Regional Administrator determined that ``cost-effective 
treatment'' is not reasonably available (proposed 
Sec. 264.552(e)(4)(E)(2)). This option would not be available under 
the industry recommended approach.
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    After carefully reviewing industry's suggestion, EPA believes that 
it has merit, and the Agency provides proposed language for comment in 
today's notice.
    In EPA's view, expanding options for management of CAMU-eligible 
wastes in hazardous waste landfills (under the right conditions) will 
promote more aggressive remediation. See, Louisiana Environmental 
Action Network v. USEPA, 172 F. 3d 65, 69 (D.C. Cir. 1999) (upholding 
EPA LDR treatment variance regulation allowing reduction in treatment 
requirements where necessary to encourage aggressive remediation). For 
example, there will be situations where on-site redisposal of wastes 
will not be viable, or will not be the preferred option (e.g., where 
the cleanup site is located in or near a residential neighborhood); in 
these cases, however, the disincentives associated with off-site 
management of the waste under full Subtitle C would act as a 
disincentive to cleanup at all, or might delay cleanup or encourage 
less-than-optimal containment remedies. (See the preamble to the August 
2000 proposal for further discussion of the disincentives created by 
the application of RCRA Subtitle C requirements to cleanup wastes, 
especially 65 FR 51082.) In other cases, the regulator, the facility 
owner/operator, or the local community may prefer removal of a source 
of contamination, but costs for off-site management in accordance with 
otherwise applicable LDR treatment requirements might be prohibitive. 
In such situations, today's proposal would provide remedial managers 
and facility owner/operators with an additional option, which might 
enhance cleanup results, and would provide equal or greater protection 
than an on-site CAMU.\4\ EPA more generally believes that, by including 
an option that makes removal of all hazardous wastes from a site more 
feasible, this approach would allow more sites to achieve cleanup 
levels appropriate for reuse, including unrestricted uses. The need for 
long-term controls at these sites would be reduced or eliminated, and 
their potential for redevelopment would significantly increase. EPA 
believes that this result would serve both local communities and the 
environment well, and that it will contribute to the Agency's goal of 
promoting cleanup and redevelopment of the nation's brownfields.
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    \4\ Today's proposal would require CAMU-eligible wastes to be 
placed in landfills meeting Subtitle C standards for new hazardous 
waste landfills, and the treatment requirements would be the same 
as, or in some cases greater than, they would be for wastes placed 
in CAMUs on-site. Therefore, the landfill disposal option will in 
most cases be more protective overall.
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    Critics of off-site management of remediation waste, when the issue 
is raised in other contexts, often argue that this approach merely 
transfers the risk from one community to another, particularly when 
waste treatment standards are less than they would be for as-generated 
wastes. EPA understands this concern. To address it, today's proposal 
would require additional protection in two areas that are particularly 
of concern. First, the proposal would require that the landfill 
receiving the CAMU-eligible waste meet Subtitle C design and operation 
requirements for new hazardous waste landfills, rather than the 
proposed minimum CAMU standards, which are based on EPA's less 
stringent standards for municipal solid waste landfills. And second, 
the proposal would require treatment in all cases where the Regional 
Administrator adjusted treatment standards because of the protection 
afforded by the receiving landfill. In addition, to ensure public 
participation at the receiving location, the Regional Administrator 
would be required, under the conditions of today's proposal, to provide 
the local public (in the vicinity of the landfill) with an opportunity 
for comment on any decision to approve placement of CAMU-eligible waste 
in the landfill. Finally, to ensure a high level of regulatory 
oversight at the receiving landfill, the landfill would be required to 
have a RCRA hazardous waste permit (i.e., it could not be operated 
under interim status). Today's proposal would require a permit 
modification at the receiving facility, incorporating management 
requirements for the CAMU-eligible waste into permit conditions. The 
modification would have to include public notice, and opportunity for 
public comment and a hearing.
    While today's proposal focuses primarily on placement of CAMU-
eligible waste in off-site hazardous waste landfills, it would not 
restrict placement to off-site landfills (as the option submitted by 
industry would); as suggested by one commenter, the proposal would 
allow placement of CAMU-eligible waste in any hazardous waste landfill, 
including on-site landfills-as long as the placement met the conditions 
of today's proposal. EPA recognizes that some facilities subject to 
cleanup already have permitted hazardous waste landfills on-site where 
CAMU-eligible wastes might be safely placed. EPA sees no reason to 
discourage placement of CAMU-eligible wastes in these landfills, as 
long as the placement met the same conditions that would be required 
for off-site placement. EPA believes that allowing on-site placement in 
landfills would promote more aggressive remediation at these sites--
just as it would if wastes were sent to off-site locations. This 
approach would also promote consolidation of cleanup wastes in 
protective, lined Subtitle C landfills, and in many cases might free up 
portions of a facility for redevelopment. For these reasons, EPA is 
proposing to allow placement of CAMU-eligible wastes in on-site as well 
as off-site hazardous waste landfills.
    Today's proposed requirements would set conditions for disposal of 
CAMU-eligible wastes in Subtitle C landfills. EPA, however, is 
soliciting comment only on the specific terms of this proposal. It is 
not asking for comment on any aspect of the August 2000 CAMU proposal. 
The conditions of today's supplemental proposal are discussed below.

IV. Section-by-Section Discussion

    In today's notice, EPA is proposing to add a new section, 40 CFR 
264.555, to RCRA's Subtitle C regulations. This new section would allow 
the Regional Administrator to approve placement of CAMU-eligible wastes 
in permitted hazardous waste landfills, without the wastes meeting 
otherwise applicable land disposal restrictions of RCRA, as codified in 
40 CFR Part 268. Proposed Sec. 264.555 sets out the basic conditions of 
approval, described below.

A. Conditions for Landfill Placement

    Proposed Sec. 264.555(a)(1)-(3) would establish the basic 
conditions that must be met for the Regional Administrator to approve 
placement of CAMU-eligible waste in a hazardous waste landfill unit.
    1. Limitation to CAMU-Eligible Wastes. Under proposed 
Sec. 264.555(a)(1), hazardous waste placed in a hazardous waste 
landfill under the conditions described in today's proposal would be 
limited to CAMU-eligible waste, as defined in proposed 
Sec. 264.552(a)(1) and (2), in EPA's August 2000 CAMU proposal--that 
is, only wastes eligible for placement in a CAMU in the August 2000 
proposal would be eligible for placement in a hazardous waste landfill 
under today's proposal. Readers should refer to the August 2000 
proposal for the definition of ``CAMU-eligible'' and a discussion of 
the term (p. 51084-51089). Generally, CAMU-eligible wastes would be 
limited to solid or hazardous waste,

[[Page 58089]]

or environmental media and debris, managed for implementing cleanup. 
They do not include as-generated wastes from on-going industrial 
operations.\5\
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    \5\ The definition of CAMU-eligible wastes includes non-
hazardous solid wastes. Non-hazardous cleanup wastes, of course, 
would not be affected by today's proposal, because they would not 
need special approval under Sec. 264.555 to be placed in a hazardous 
waste landfill. Similarly, non-hazardous as-generated wastes would 
also be unaffected. The regulation of these wastes would generally 
be a matter of state law.
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    In addition, the ``discretionary kickout'' of the CAMU proposal 
(Sec. 264.552(a)(2)) would also apply--that is, the Regional 
Administrator could deny approval for waste that had not been managed 
(prior to cleanup) in compliance with the land disposal treatment 
requirements of Part 268 Subpart D or applicable RCRA design 
requirements, or if non-compliance with other applicable RCRA hazardous 
waste requirements likely contributed to the release of the waste. EPA 
included these requirements in the proposed amendments to the CAMU to 
ensure that CAMUs do not provide an incentive to mismanage as-generated 
wastes, and that persons who violated RCRA requirements in significant 
ways would not be automatically eligible to benefit from the 
flexibility provided by the CAMU. The discretionary kickout is 
discussed in detail in the preamble to the CAMU proposal at p. 51088-9. 
EPA believes it is appropriate to retain the ``kickout'' here, because 
the incentives would work in the same way for CAMU-eligible waste 
(treated in accordance with today's proposed standards) disposed of in 
hazardous waste landfills under today's proposal as they would for 
remediation waste disposed of in CAMUs.
    The August 2000 proposal identified certain circumstances where 
non-hazardous as-generated wastes might be CAMU-eligible, and it banned 
liquid wastes except in certain circumstances (see proposed 
Sec. 264.552(a)(1)(iii) and (a)(3), p. 51087-8, 51090-1). Specifically, 
as-generated wastes might be allowed where they facilitated treatment 
or performance of the CAMU, and liquids might be allowed where they 
facilitated the remedy selected for the waste. EPA has not proposed to 
include these provisions in the definition of hazardous wastes eligible 
for off-site disposal under today's proposal. In the case of ``as-
generated'' wastes, a special exception is unnecessary, because there 
is no current regulatory constraint on placement of non-hazardous as-
generated wastes in RCRA permitted landfills (except of course in cases 
of waste incompatibility, or similar situations). As for liquids, EPA 
sees no reason why the current RCRA ban on liquids in landfills should 
not continue to apply to hazardous waste landfills receiving CAMU-
eligible wastes. The circumstances EPA identified where RCRA ban on 
liquids might be inappropriate for CAMUs were specific to remediation 
(see p. 51091). Therefore, EPA is proposing not to extend the 
exceptions to the liquids-in-landfills ban to disposal of CAMU-eligible 
wastes in hazardous waste landfills.
    2. Treatment Requirements. Proposed Sec. 264.555(a)(2) establishes 
treatment requirements for CAMU-eligible wastes placed, in accordance 
with today's proposal, in permitted hazardous waste landfills. As 
explained earlier in today's notice, these requirements largely track 
the August 2000 proposed treatment requirements for remediation wastes 
placed in CAMUs (with certain key differences). EPA's August 2000 
proposed CAMU standards would require treatment of ``principal 
hazardous constituents'' in CAMU-eligible wastes to certain specified 
national minimum standards, or to adjusted standards, based on any of 
five specific ``adjustment factors'' (see proposed Sec. 264.552(e) in 
the August 2000 notice) approved by the Regional Administrator. The 
adjusted level would have to be protective of human health and the 
environment (proposed Sec. 264.552(e)(4)(v)).
    In today's proposal, treatment of CAMU-eligible wastes disposed in 
hazardous waste landfills would similarly be limited to principal 
hazardous constituents (PHCs), as identified by the Regional 
Administrator. For details on the definition and identification of 
PHCs, readers should refer to the August 2000 proposed rule language, 
and the preamble discussion at p. 51096-9. Briefly, PHCs are 
``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 cleanup site (see proposed 
Sec. 264.552(e)(4)(i)).
    Today's proposal would also use the same structure for treatment 
requirements--that is, it would retain the national minimum treatment 
standards, with an opportunity for the Regional Administrator to adjust 
them based on specific enumerated factors (see discussion beginning at 
51095 of the August 2000 proposal, and proposed Sec. 264.252(e)(4)). 
Today's proposal, however, would eliminate one adjustment factor from 
the August 2000 proposal (Adjustment Factor B, which considers cleanup 
levels or goals at the remediation site), and it would also reduce the 
scope of another (Adjustment Factor E(2), which in the August 2000 
proposal might allow for no treatment, under limited circumstances). 
Today's proposal would require treatment of principal hazardous 
constituents under Adjustment Factor E(2) in all cases of disposal in a 
hazardous waste landfill. These treatment standards would apply in lieu 
of otherwise applicable RCRA land disposal restrictions, and adjusted 
standards would have to be protective of human health and the 
environment (proposed Sec. 264.552(e)(4)(v)).
    Under proposed Sec. 264.555(a)(2), the treatment requirements of 
today's proposal could be met in three ways, described below.
    First, under proposed Sec. 264.555(a)(2)(i), PHCs in the CAMU-
eligible waste could be treated to the proposed minimum national 
treatment standards for CAMUs in proposed Sec. 264.552(e)(4)(iv): that 
is, their concentration in the waste would have to be reduced by 90%, 
but in any case treatment would not be required below 10 times the 
universal treatment standard.\6\ These levels, which EPA proposed in 
August 2000 for wastes placed in CAMUs, are based on EPA's treatment 
standards for contaminated soils, promulgated in the Phase IV land 
disposal restrictions rule (63 FR 28556, May 26, 1998). Since these 
treatment levels are the current standards for contaminated soils, the 
level of treatment required for soils would be the same without today's 
proposal, except that under today's proposal treatment would only be 
required for principal hazardous constituents. As the August 2000 
proposal does for wastes being disposed of in CAMUs, today's proposal 
would apply these minimum national treatment standards to principal 
hazardous constituents in non-soil CAMU-eligible wastes being disposed 
of in Subtitle C landfills; these wastes, for example, might include 
sludges or wastes in old landfills undergoing remediation. For a 
detailed discussion of the national minimum treatment standards, in the 
context of CAMUs, see the preamble to the August 2000 proposal (p. 
51099-51101).\7\
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    \6\ Universal treatment standards (UTS) appear in 40 CFR 268.40.
    \7\ Section 264.552(e)(4)(iv)(E) of the August 2000 proposal 
would establish special treatment standards for debris placed in 
CAMUs debris may be treated to the current land disposal restriction 
standards of )268.45, the national minimum standards (i.e., 90% 
capped by 10XUTS)s, or atreatment standards established through one 
of the Adjustment Factors A through E, ``whichever the regional 
Administrator determines is appropriate.'' These same standards 
would apply to debris disposed of in hazardous waste landfills under 
today's proposal. However, since EPA believes that Adjustment Factor 
B is inappropriate for wastes placed in hazardous waste landfills, 
under today's proposal, the Regional Administrator would not be able 
to adjust the treatment standard for debris based on this factor. 
Similarly, the limitations on Adjustment Factor E(2) in today's 
proposal would also apply to debris.

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[[Page 58090]]

    Second, under proposed Sec. 264.555(a)(2)(ii), the Regional 
Administrator may adjust the minimum treatment standards by applying 
several of the adjustment factors allowed for CAMUs in the August 2000 
proposal. These are adjustment factors Sec. 264.552(e)(4)(A), (C), (D), 
and (E)(1).\8\ The factors are discussed in detail in the preamble to 
the August 2000 proposal (p. 51102-8). To summarize briefly, the basis 
for adjustments under these factors are: Adjustment Factor A: the 
technical impracticability of treatment to the national minimum levels; 
Adjustment Factor C: the views of the affected community (in this case, 
particularly, at the site of the hazardous waste landfill receiving the 
waste, when it is different from the cleanup site); Adjustment Factor 
D: the short-term risks of treatment needed to meet the national 
minimum standards; and Adjustment Factor E(1): the long-term protection 
offered by the engineering design (and related engineering controls) of 
the hazardous waste landfill in which the CAMU-eligible waste would be 
placed, when the national minimum treatment standards have been 
substantially met, and the PHCs in the waste are of very low mobility.
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    \8\ Adjustment Factor B in the August 2000 proposal would allow 
treatment levels to be adjusted, based on ``cleanup standards 
applicable to the [remediation] site.'' Since, under today's 
proposal, the CAMU-eligible waste would be disposed of in permitted 
hazardous waste landfills, EPA concluded that the cleanup goals at 
the site were not relevant and, therefore, has not included this 
adjustment factor.
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    EPA believes the application of Adjustment Factors A, C, and D in 
the context of today's proposal would be straightforward, and they need 
no further explanation here (although readers are referred to relevant 
discussions in the August 2000 CAMU proposal at p. 51102-4.) Adjustment 
Factor (E)(1), however, deserves further discussion. In the CAMU 
proposal, EPA included Adjustment Factor E among the adjustment factors 
so that the Regional Administrator might take into account the design 
of the CAMU in determining treatment levels. EPA believed that this 
consideration was appropriate (in clearly defined circumstances), both 
to remove disincentives to more aggressive cleanup and in 
acknowledgment of the important role of engineering design in ensuring 
protective remedies. EPA believes that these same principles apply when 
CAMU-eligible wastes are sent to permitted hazardous waste landfills--
particularly since these landfills will meet the rigorous Subtitle C 
hazardous waste standards for new landfills. See, Louisiana 
Environmental Action Network v USEPA 172 F. 3d 65, 70 (D.C. Cir. 1999) 
(finding that RCRA allows the Agency to consider the protective effect 
of the disposal unit when setting treatment requirements).
    Adjustment Factor (E)(1), in the August 2000 CAMU proposal, would 
allow the Regional Administrator to adjust treatment levels because of 
the protection offered by the design of the CAMU in adjusting treatment 
levels, but only if PHCs ``substantially met'' the national treatment 
standards, and the PHCs were of ``very low mobility.'' For more 
discussion of these terms, see the preamble to the proposal at p. 
51105-6. EPA would interpret these terms in the same way, for the 
purposes of today's proposal, except of course in the context of 
today's proposal, the Regional Administrator's analysis would be based 
on the environmental setting and the engineering design of the 
permitted hazardous waste landfill that was to receive the CAMU-
eligible waste (see Sec. 264.555(f) in today's proposed regulatory 
language). EPA expects that the analysis would be identical to the one 
anticipated for an on-site CAMU--although the unit would be designed to 
meet RCRA hazardous waste landfill design standards (see 65 FR 51104).
    Third, proposed Sec. 264.555(a)(2)(iii) would allow the Regional 
Administrator to adjust the minimum national treatment standards based 
on the design of the landfill \9\ in accordance with proposed 
Sec. 264.552(e)(4)(v)(E)(2), but with an important limitation--in all 
cases, treatment of PHCs would be required,\10\ and that treatment 
would be required to significantly reduce ``the toxicity or mobility of 
the principal hazardous constituents in the waste, minimizing the 
short-term and long-term threat posed by the waste, including the 
threat at the remediation site.''
---------------------------------------------------------------------------

    \9\ Note that, under proposed Sec. 264.555(f), the ``design of 
the CAMU'' in Sec. 264.552(e)(4)(v)(E) means the design of the 
permitted Subtitle C landfill.
    \10\ Although the industry proposal would have required that the 
treatment in this case be ``cost-effective,'' EPA sees no reason to 
limit the treatment in this way. As long as the treatment meets the 
performance standard of this section, EPA believes that it is 
immaterial whether the treatment is ``cost-effective'' or not.
---------------------------------------------------------------------------

    To assist the reader in understanding this proposed requirement, 
EPA repeats here, for context, the original language for Adjustment 
Factor E(2) in the August 2000 proposal:

    (E) The long-term protection offered by the engineering design 
of the CAMU and related engineering controls: * * *
    (2) Where cost-effective treatment has been used, or where, 
after review of the 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 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 greater 
protection.

(For further discussion of this proposed requirement, commenters should 
consult the preamble to the August 2000 proposal (p. 51106-7).) Under 
the proposed CAMU amendments, Adjustment Factor (E)(2) would allow a 
facility owner/operator, under certain circumstances, to forgo 
treatment of PHCs in CAMU-eligible waste where ``cost-effective 
treatment * * * is not reasonably available.'' Under today's proposed 
Sec. 264.555(b)(2)(iii), this option would not be available for CAMU-
eligible hazardous waste being placed in a hazardous waste landfill. 
Not only would treatment of PHCs be explicitly required, but that 
treatment would have to significantly reduce ``the toxicity or mobility 
of the principal hazardous constituents in the waste, minimizing the 
short-term and long-term threat posed by the waste, including the 
threat at the remediation site.''
    Requiring treatment under this adjustment factor, therefore, means 
that the option described in proposed paragraph (E)(2)(iii) would not 
be available for placement of CAMU-eligible waste in a hazardous waste 
landfill--because this option assumes no treatment. Instead, because 
permitted hazardous waste landfills must meet the Subtitle C standards 
for new landfills, paragraph (E)(2)(i) (where treatment is conducted) 
will govern placement under this adjustment factor. The proposed 
language also requires that treatment of the PHCs would minimize the 
threat at the remediation site as well as at the landfill (where the 
landfill is at a different location). EPA expects that threats at the 
remediation site would typically be minimized, because the treated 
waste would be sent off-site, but this provision would ensure that any 
cross-media issues raised by on-site

[[Page 58091]]

treatment were addressed, and that any threats from non-hazardous 
treatment residues left on-site were minimized.
    Thus, today's proposal would significantly tighten the conditions 
of Adjustment Factor (E)(2) for CAMU-eligible wastes being placed in 
hazardous waste landfills. EPA is proposing to add these limitations to 
Adjustment Factor (E)(2)--particularly requiring treatment of PHCs in 
all cases under this factor--to ensure that any potential transfer of 
risk to the off-site location is minimized when the Regional 
Administrator relies on the protection afforded by the disposal unit to 
adjust the treatment standards. Merely requiring treatment for off-site 
placement would not provide much certainty on the degree of treatment, 
and therefore today's proposal includes a performance standard for the 
treatment: it would have to be ``treatment that substantially reduces 
the toxicity or mobility of the principal hazardous constituents in the 
waste, minimizing the short-term and long-term threat posed by the 
waste * * *'' EPA notes that this standard (except in its limitation to 
PHCs) is essentially the same as the statutory treatment standard 
underlying the hazardous waste land disposal restrictions. By 
requiring, under this adjustment factor, that the risk drivers during 
the cleanup (that is, the principal hazardous constituents) be 
``substantially'' treated to ``minimize threat,'' EPA believes that the 
proposal minimizes any potential for risk transfer in situations where 
the degree of treatment is predicated on the condition of the receiving 
landfill.
    EPA notes that this proposed requirement for ``substantial'' 
treatment minimizing threat would apply only to adjustment factor E(2). 
EPA does not believe a comparable standard is needed for the other 
adjustment factors, which do not allow the Regional Administrator to 
base the decision solely on the engineering design of the receiving 
unit (see e.g., RCRA Section 1002(b)(7), recognizing the uncertainties 
associated with land disposal of hazardous wastes).
    3. Disposal Unit Requirements. Proposed Sec. 264.555(a)(3) would 
limit hazardous waste landfills receiving CAMU-eligible wastes to those 
with RCRA permits. This section would also require that the landfill 
meet the technical design and operating requirements for new landfills 
in 40 CFR Part 264, Subpart N. This requirement will ensure that the 
landfill meets the double synthetic liner and detailed leachate 
collection requirements of Sec. 264.301(c). In addition, the landfill 
will be subject to the specific ground-water monitoring requirements of 
subpart F of Part 264 and the closure requirements of subpart G. EPA 
notes that design and operating requirements for CAMUs in the August 
2000 proposal are largely based on standards for municipal solid waste 
landfills, rather than the more stringent hazardous waste requirements 
of today's proposal. As with the treatment requirement under Adjustment 
Factor (E)(2), EPA is proposing to take a more stringent approach for 
placement of CAMU-eligible wastes in hazardous waste landfills to 
minimize any potential for transfer of risk.
    Today's proposal would not allow CAMU-eligible wastes to be placed 
in ``interim status'' hazardous waste landfills; placement is limited 
to units with RCRA hazardous waste permits. Under the RCRA regulations, 
existing facilities are grandfathered into the permit system under 
``interim status,'' if they are in existence at the time they become 
subject to RCRA hazardous waste requirements. Eventually, EPA or the 
appropriate state must issue these facilities a RCRA permit, through a 
public process. The permit applies the RCRA hazardous waste 
requirements directly, through detailed conditions, to the waste 
management units covered in the permit.
    EPA is proposing to limit placement of CAMU-eligible wastes, under 
the terms of today's proposal, to landfills with a RCRA hazardous waste 
permit because the part 264 standards provide a higher level of 
specificity than do comparable standards for interim status landfills 
in part 265--for example, in the area of ground-water monitoring. EPA 
also believes a permit contributes to minimizing risk transfer, because 
permits ensure close regulatory oversight of general facility 
operations (e.g., waste analysis plan, contingency plan, etc.) and 
financial assurance. For this reason, EPA believes the permitting 
standards and the permit process are important elements of the proposed 
approach.
    Today's rule would not specify who had to hold the permit for the 
landfill. For example, the landfills accepting CAMU-eligible wastes 
might be off-site commercial units, or they might be at facilities 
controlled by the owner/operator of the remediation site.

B. Approval Procedures

    The Regional Administrator (or the authorized state program) at the 
location of the hazardous waste landfill would be responsible for 
approving placement of CAMU-eligible waste in the landfill. Under 
today's proposal, approval procedures for placement of CAMU-eligible 
waste in the hazardous waste landfill would be identical to the CAMU 
approval procedures in the August 2000 proposal. Under today's proposed 
Sec. 264.555(b), facility owner/operators wishing to place CAMU-
eligible waste in a RCRA landfill must meet the same information 
requirements as apply to CAMU applications. That is, they would be 
required to provide information sufficient to enable the Regional 
Administator to approve placement, in accordance with proposed 
Sec. 264.555(b). In addition, the person applying for approval must 
provide information on the waste required in proposed 
Sec. 264.552(d)(1)-(3), unless it is not reasonably available. The 
Regional Administrator would use this information--which relates to 
waste origins and past management--to determine that the waste is 
indeed ``CAMU-eligible'' and to support use of the ``discretionary 
kickout,'' where appropriate. Before approving placement of the CAMU-
eligible waste in the RCRA landfill, the Regional Administrator would 
have to provide public notice and a reasonable opportunity for public 
comment. These standards are identical to those for approval of CAMUs 
at the remediation site, and EPA believes they are equally appropriate 
for placement in a hazardous waste landfill, including off-site 
placement--where the Regional Administrator will be addressing the same 
questions (e.g., is the waste ``CAMU-eligible'' or should the 
discretionary kickout be exercised). For further discussion of these 
standards, see p. 51089-51090 of the August 2000 proposal. Finally, 
under today's proposal, approval procedures (including public notice 
and comment) for placement in a hazardous waste landfill would be 
specific to individual cleanups. EPA believes that this approach is 
appropriate, given the likely variation of CAMU-eligible wastes from 
cleanup to cleanup site, and the waste-specific nature of many aspects 
of the approval (e.g., identification of PHCs, choice of adjustment 
factors, etc.).
    Proposed Sec. 264.555(d) would require that the permit for the 
landfill be modified to incorporate CAMU-eligible waste into the 
permit, ensuring that its management is covered by appropriate part 264 
hazardous waste requirements. In some cases, a permit modification 
would already be required by state or federal regulations, but in 
others--for example, where the waste met the waste acceptance criteria 
in the permit--it might not. In any case, proposed Sec. 264.555(d) 
would ensure that the permit was modified to incorporate CAMU-eligible 
waste. The modification

[[Page 58092]]

would follow permit modification procedures specified in Sec. 270.42 or 
comparable state regulations, but at a minimum it would include public 
notice, opportunity for comment, and an opportunity for a hearing. This 
process would ensure that the local public has the opportunity to 
comment on the specifics of how the waste is managed under the facility 
permit.
    As part of the permit modification process, EPA expects that the 
Regional Administrator would include any requirements he or she 
determined were necessary to protect human health or the environment 
through the RCRA ``omnibus'' provision.\11\ These requirements might 
include special management standards to address potential risks from 
hazardous constituents in the waste, including principal hazardous 
constituents. As specified in proposed Sec. 264.555(d), the permit 
would also include recordkeeping requirements to demonstrate compliance 
with treatment standards approved for the waste. Under the current 
permitting requirements at Sec. 264.13(a)(1), the facility owner/
operator would be required to conduct an analysis of the waste that, 
``at a minimum'' contains ``all the information which must be known to 
treat, store, or dispose of the waste in accordance with this part'' 
(which would include information to show that treatment levels approved 
by the Regional Administrator were met). The plans for this analysis 
would be incorporated into the facility waste analysis plan (see 
Sec. 264.13(b)), and the results of the analysis kept in the facility 
operating records in accordance with Sec. 264.73(b)(3).
---------------------------------------------------------------------------

    \11\ Under the RCRA ``omnibus'' provision, ``each permit * * * 
shall contain such terms and conditions as the Administrator (or the 
State) determines necessary to protect human health and the 
environment.'' RCRA 3005(c)(3).
---------------------------------------------------------------------------

    In most cases, EPA expects that the process for approving placement 
of the waste (in Sec. 264.552(c)) and the permit modification step (in 
Sec. 264.555(d)) would take place as part of the same process, and EPA 
certainly encourages this approach. At the same time, however, today's 
proposal identifies these processes as separate requirements, because 
they reflect different regulatory events--the Regional Administrator's 
approval of the CAMU-eligible placement reflects a determination that 
the standards of Sec. 264.555(b) are met in the context of waste from a 
particular cleanup, while the permit modification integrates the 
management of that waste into an already existing regulatory mechanism, 
that is, the facility permit.\12\
---------------------------------------------------------------------------

    \12\ This dual requirement is similar to the current situation 
with land disposal restriction treatment variances. For example, an 
LDR variance under Sec. 268.44(h) might allow wastes to be disposed 
of in a hazardous waste landfill. Yet this variance would be 
independent of whether the landfill's permit needed to be modified 
to allow it to receive the waste. Similarly, no-migration variances 
under Sec. 268.6 are issued for facilities under a separate process 
from permit modifications allowing the facility to receive the 
waste.
---------------------------------------------------------------------------

C. Other Requirements

    EPA emphasizes that today's proposal is narrow in scope. Under 
today's proposal, the Regional Administrator may approve placement of 
CAMU-eligible waste in hazardous waste landfills under only limited 
circumstances. Meanwhile, the waste would remain a RCRA hazardous 
waste, subject to all applicable RCRA hazardous waste requirements. For 
example, the manifest, recordkeeping, and reporting requirements of 
part 262 and part 264 subpart E would apply. In other words, the waste 
would require a manifest when shipped to an off-site facility, and 
standard RCRA waste-management requirements would apply (e.g., waste 
analysis, storage requirements prior to placement, etc.).
    In addition, when the waste is sent off-site, the proposed rule 
(Sec. 264.555(e)) specifies that the generator of the waste (i.e., the 
owner/operator of the remediation site) would be subject to the current 
reporting, recordkeeping, and tracking requirements of 
Sec. 268.7(a)(4). This section establishes requirements that apply 
``when exceptions allow certain wastes or contaminated soil that do not 
meet the [land disposal restriction] treatment standards to be land 
disposed.'' With the initial shipment of waste, the generator would be 
required to send a one-time written notice to the land disposal 
facility providing specific information, such as the EPA waste 
identification numbers, the manifest number of the first shipment, and 
waste analysis data.
    In addition, today's rule does not in any way restrict remediation 
waste management options that already exist. For example, the land 
disposal restriction variances of Sec. 268.44(h) would remain available 
as an alternative (or complementary) approach for CAMU-eligible wastes 
sent for disposal. Furthermore, as described above, non-hazardous 
wastes would also be unaffected, because their management and disposal 
are generally not regulated under the federal RCRA hazardous waste 
program, and they would not need special approval under today's rule to 
allow placement in a landfill.

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

    Under Sec. 3006 of RCRA, EPA may authorize qualified states to 
administer their own programs in lieu of the federal hazardous waste 
program and to issue and enforce permits within the state. A state may 
receive authorization by following the approval process described under 
Part 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 promulgated 
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. Today's 
supplemental proposal is considered to be less stringent than the 
existing federal program. Although states would not be required to 
adopt these provisions, EPA would strongly encourage them to do so.
    The provisions in today's notice are a supplement to the CAMU 
amendments that were proposed on August 22, 2000

[[Page 58093]]

(65 FR 51080). The provisions in today's notice address the application 
of LDRs to cleanup wastes and would therefore also be promulgated under 
HSWA authority. Because these provisions are less stringent than the 
existing regulations, they will become effective only in those states 
which are not authorized for these parts of the hazardous waste 
program. Further, because the issues addressed by the provisions in 
today's notice have no counterpart in the existing CAMU regulations (or 
any other RCRA regulation), they would not be substantially equivalent 
to those regulations. Thus, states which are authorized for the 1993 
CAMU rule would not be able to gain interim authorization-by-rule for 
the provisions in today's notice. The final CAMU amendments rule would 
not include the provisions in today's notice in the interim 
authorization-by-rule sections in proposed Secs. 271.24(c) and 271.27 
(see 65 FR 51115).
    However, if a state were, through implementation of state waiver 
authorities or other state laws, to allow compliance with the 
provisions of today's notice in advance of adoption or authorization, 
EPA would not generally consider such implementation a concern for 
purposes of enforcement or state authorization. (This is similar to the 
approach the Agency took in promulgation of the 1993 CAMU rule. See 58 
FR 8677, February 16, 1993.)

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 effective date in three 
circumstances: (1) Where 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, at the same time as the proposed effective date for 
the CAMU amendments in the August 2000 proposal. EPA does not believe 
that industry needs a full six months to come into compliance with 
today's proposed requirements, because they do not directly impose any 
new requirements. Furthermore, if EPA finalizes today's proposal, it 
intends to do so at the same time as it finalizes the August 2000 
proposal. The Agency believes that it will be simpler and less 
confusing if all the CAMU amendments become effective on the same date.

VII. Analytical and Regulatory Requirements

A. Planning and Regulatory Review (Executive Order 12866)

    Under the Planning and Regulatory Review Executive Order 12866 (58 
FR 51735 (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.
    It has been determined that this rule is not a ``significant 
regulatory action'' under the terms of Executive Order 12866, and 
therefore OMB has exempted this regulatory action from Executive Order 
12866 review.
    The existing regulatory requirements for management of hazardous 
cleanup wastes (e.g., the otherwise applicable LDR treatment 
requirements and the minimum technology unit design standards) can 
present a significant disincentive to facilities considering 
remediation. This condition was one of the main factors behind the 1993 
CAMU Rule and was discussed in the August 2000 preamble to the CAMU 
Amendments. Under these baseline conditions, facilities that manage 
their remediation waste in a Subtitle C landfill typically incur 
significant costs to meet the LDR requirements. However, under today's 
proposal these facilities would have the option of treating their 
cleanup wastes that meet the definition of CAMU-eligible waste to the 
national minimum treatment standards (or the adjusted standards as 
described earlier in today's proposal) and disposing of them in a RCRA 
hazardous waste landfill. Thus, these facilities would enjoy a cost 
savings as a result of the less stringent treatment requirements of 
today's proposal.
    Despite the existence of various alternatives to full Subtitle C 
management of cleanup wastes under the baseline requirements (such as 
CAMU or treatability variances), there are still cases where facilities 
reduce the scope of their remedial efforts or do not perform 
remediation at all. In such cases, the less rigorous requirements 
provided in today's proposal for Subtitle C management of cleanup 
wastes meeting the definition of CAMU-eligibility may provide enough 
incentive for some facilities to increase their remedial efforts. For 
those facilities shifting from no remediation in the baseline to 
remediation under the less stringent requirements of today's proposed 
rule, there may actually be an increase in costs. However, these costs 
would be borne voluntarily and can therefore be expected to result in 
an overall gain for the facility. A good example of such a case would 
be a brownfields redevelopment site.
    Thus, as discussed above, the Agency believes that today's proposal 
will result in an overall reduction in the costs to facilities through 
the reduction in treatment requirements when cleanup work is managed in 
Subtitle C landfills.

B. Regulatory Flexibility Act (RFA) as amended by the Small Business 
Regulatory Enforcement and Fairness Act of 1996 (SBREFA), 5 USC 601 et 
seq.

    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 today's proposed rule on 
small entities, small entities are defined as: (1) a small business 
meeting the RFA default definitions (based on SBA size standards); (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. In 
determining whether a rule has a significant economic impact on a

[[Page 58094]]

substantial number of small entities, the impact of concern is any 
significant adverse economic impact on small entities, since the 
primary purpose of the regulatory flexibility analyses is to identify 
and address regulatory alternatives ``which minimize any significant 
economic impact on the proposed rule on small entities.'' 5 U.S.C. 
Sections 603 and 604. Thus, an agency may certify that a rule will not 
have a significant economic impact on a substantial number of small 
entities if the rule relieves regulatory burden, or otherwise has a 
positive economic effect on all the small entities subject to the rule. 
As discussed in the economic analysis section, EPA believes that 
today's proposal will provide regulatory relief for facilities engaging 
in remediation through treatment of CAMU-eligible wastes to the 
national minimum standards (or the adjustment factors) and disposal in 
Subtitle C landfills. For facilities which manage their cleanup wastes 
in the baseline according to full Subtitle C requirements, today's 
proposal would provide relief through the less stringent requirements 
for treatment of CAMU-eligible waste prior to disposal in a Subtitle C 
landfill. Additionally, for facilities which currently do little or no 
remediation due to the rigor of the baseline requirements for 
management of cleanup waste, today's proposal would offer less 
stringent requirements within which remediation might be pursued. EPA 
therefore concludes that today's proposed rule will relieve regulatory 
burden for all small entities. EPA is interested in the potential 
impacts of the proposed rule on small entities and welcome 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. ) and a copy may be obtained from Sandy Farmer by mail at 
Collection Strategies Division; U.S. Environmental Protection Agency 
(2822); 1200 Pennsylvania Ave., NW., 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.
    Today's proposal would require persons seeking approval to send 
CAMU-eligible wastes to a permitted Subtitle C landfill under the 
reduced treatment standards to submit sufficient information to enable 
the Regional Administrator to approve placement of such wastes. Under 
proposed Sec. 264.555(b), such persons would be required to submit the 
information required by Sec. 264.552(d)(1) through (3) for CAMU 
applications, unless not reasonably available. Section 3007(b) of RCRA 
and 40 CFR part 2, Subpart B, which defines EPA's rules on public 
disclosure of information, contain provisions for confidentiality of 
business information. 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 final amended 
CAMU rule. If such a claim were asserted, EPA must 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.
    EPA estimates the total annual respondent burden and cost for the 
final new paperwork requirements to be approximately 235 hours and 
$63,120. The bottom line respondent burden over the three-year period 
covered by this ICR is 750 hours, at a total cost of approximately 
$189,360. The Agency burden or cost associated with this final rule is 
estimated to be approximately 39 hours and $1,860 per year. The bottom 
line Agency burden over the three-year period covered by this ICR is 
117 hours, at a total cost of approximately $5,580. 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 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, 
Collection Strategies Division; U.S. Environmental Protection Agency 
(2822); 1200 Pennsylvania Ave., NW., Washington, DC 20460; and to the 
Office of Information and Regulatory Affairs, Office of Management and 
Budget, 725 17th St., NW., Washington, DC 20503, marked ``Attention: 
Desk Officer for EPA.'' Include the ICR number in any correspondence. 
Since OMB is required to make a decision concerning the ICR between 30 
and 60 days after November 20, 2001, a comment to OMB is best assured 
of having its full effect if OMB receives it by December 20, 2001. EPA 
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 by State, local, and tribal 
governments and the private sector. Under Section 202 of UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed rules and final rules for which the Agency 
published a notice of proposed rulemaking if those rules contain 
``Federal mandates'' that may result in the expenditure by State, 
local, and tribal governments, in the aggregate, or to the private 
sector, of $100 million or more in any one year. If a written statement 
is needed, Section 205 of the UMRA generally requires EPA to identify 
and consider a reasonable number of regulatory alternatives. Under 
Section 205, EPA must adopt the least costly, most cost-effective or 
least burdensome alternative that achieves the objectives of the rule, 
unless the Administrator publishes with the final rule an explanation 
why that alternative was not adopted. The provisions of Section 205 do 
not apply when they are inconsistent with applicable law.
    Today's proposed rule contains no Federal mandates (under the 
regulatory provisions of Title II of UMRA) for State, local, or tribal 
governments or the private sector. The rule imposes no enforceable duty 
on any State, local or tribal governments or the private sector. EPA 
has determined that this rule will not result in the expenditure of 
$100 million or more by State, local, and

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tribal governments, in the aggregate, or by the private sector in any 
one year. No provision in today's proposal would require a facility to 
employ the off-site disposal option in remediation. Therefore, no 
facility would employ this option unless it provided some benefit over 
and above currently existing options. Thus, today's rule is not subject 
to the requirements of Sections 202, 204, and 205 of UMRA.
    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 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 will not significantly or 
uniquely affect small governments. Today's proposal provides a 
voluntary option for consideration by a facility undertaking 
remediation. Today's rule is not, therefore, subject to the 
requirements of Section 203 of UMRA.

E. National Technology Transfer and Advancement Act of 1995

    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 regulatory changes proposed today would not involve the use of 
any technical standards not already addressed as part of the August 
2000 proposal. As discussed in the August 2000 proposal, the Agency did 
not identify any potential applicable voluntary consensus standards 
during its development of the August 2000 proposal (e.g., during its 
discussion with Agency personnel and stakeholders who are experts in 
the areas addressed by the 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 and Tribal Governments 
(Executive Order 13175)

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' ``Policies that have tribal 
implications'' is defined in the Executive Order to include regulations 
that have ``substantial direct effects on one or more Indian tribes, on 
the relationship between the Federal government and the Indian tribes, 
or on the distribution of power and responsibilities between the 
Federal government and Indian tribes.''
    This proposed rule does not have tribal implications. It will not 
have substantial direct effects on tribal governments, on the 
relationship between the Federal government and Indian tribes, or on 
the distribution of power and responsibilities between the Federal 
government and Indian tribes, as specified in Executive Order 13175. 
This proposed rule will not have tribal implications because tribal 
governments do not implement the RCRA regulations and the proposed rule 
is not anticipated to have significant impacts overall, nor on 
individual facilities.
    In the spirit of Executive Order 13175, and consistent with EPA 
policy to promote communications between EPA and tribal governments, 
EPA specifically solicits additional comment on this proposed rule from 
tribal officials.

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 the 
environmental health or safety risks addressed by this action present a 
disproportionate risk to children. The Agency does not believe that the 
risks addressed by today's amendments--i.e., the risks from management 
of CAMU-eligible wastes in hazardous waste landfills--present a 
disproportionate risk to children. Today's proposed rule would continue 
to require that a decision concerning overall protectiveness of any 
specific decision to allow placement of CAMU-eligible waste in a 
Subtitle C landfill under the proposal be made by the Regional 
Administrator based on site-specific circumstances, including risks to 
children where appropriate. Furthermore, today's proposed rule would 
require public notice and a reasonable opportunity for public comment 
prior to approving placement of CAMU-eligible wastes in a hazardous 
waste landfill.
    The public is invited to submit or identify peer-reviewed studies 
and data, of which the agency may not be aware.

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. As today's proposal offers a 
voluntary option of disposal of CAMU-eligible wastes in hazardous waste 
landfills, the Agency believes that it could result in a

[[Page 58096]]

reduction in costs. Therefore, the Agency believes that it will not 
result in substantial effects on States. Thus, Executive Order 13132 
does not apply to this rule.
    In the spirit of Executive Order 13132, and consistent with EPA 
policy to promote communications between EPA and State and local 
governments, EPA specifically solicits comment on this proposed rule 
from State and local officials.

I. Environmental Justice Strategy (Executive Order 12898)

    To the greatest extent practicable and permitted by law, and 
consistent with the principles set forth in the report on the National 
Performance Review, each Federal agency shall make achieving 
environmental justice part of its 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 in the 
United States and its territories and possessions, the District of 
Columbia, the Commonwealth of Puerto Rico, and the Commonwealth of the 
Mariana Islands.
    Federal Agency Responsibilities for Federal Programs: Each Federal 
agency shall conduct its programs, policies, and activities that 
substantially affect human health or the environment, in a manner that 
ensures that such programs, policies, and activities do not have the 
effect of excluding persons (including populations) from participation 
in, denying persons (including populations) the benefits of, or 
subjecting persons (including populations) to discrimination under, 
such programs, policies, and activities, because of their race, color, 
or national origin.
    EPA believes that the risks addressed by the proposed rule do not 
have environmental justice implications. Today's proposed rule would 
continue to require that a decision concerning overall protectiveness 
of any specific decision to allow placement of CAMU-eligible waste in a 
Subtitle C landfill under this proposal be made by the Regional 
Administrator based on site-specific circumstances. Furthermore, 
today's proposed rule would require public notice and a reasonable 
opportunity for public comment prior to approving placement of CAMU-
eligible wastes in a hazardous waste landfill. Therefore, EPA believes 
that there are no environmental justice issues associated with the CAMU 
proposed amendments.

J. Energy Effects (Executive Order 13211)

    This rule is not a ``significant energy action'' as defined in 
Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355 
(May 22, 2001)) because it is not likely to have a significant adverse 
effect on the supply, distribution, or use of energy. Further, we have 
concluded that this rule is not likely to have any adverse energy 
effects.

List of Subjects in 40 CFR Part 264

    Administrative practice and procedure, Air pollution control, 
Confidential business information, Hazardous materials transportation, 
Hazardous waste, Indians-lands, Insurance, Intergovernmental relations, 
Packaging and containers, Penalties, Reporting and recordkeeping 
requirements, Security measures, Surety bonds, Water pollution control, 
Water supply.

    Dated: November 14, 2001.
Christine T. Whitman,
Administrator.
    For the reasons set out in the preamble, 40 CFR Part 264 is 
proposed to be amended as follows.

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

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

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

Subpart S--[Amended]

    2. Section 264.555 is added to Subpart S to read as follows:


Sec. 264.555  Disposal of CAMU-eligible wastes in permitted hazardous 
waste landfills.

    (a) The Regional Administrator may approve placement of wastes in 
landfills, including landfills not located at the site from which the 
waste originated, without the wastes meeting the requirements of RCRA 
40 CFR part 268, if the conditions in paragraphs (a)(1) through (3) of 
this section are met:
    (1) The waste meets the definition of CAMU-eligible waste in 
Sec. 264.552(a)(1) and (2).
    (2) The Regional Administrator identifies principal hazardous 
constitutes in such waste, in accordance with Sec. 264.552(e)(4)(i) and 
(ii), and requires that such principal hazardous constituents are 
treated to any of the following standards specified for CAMU-eligible 
wastes:
    (i) The treatment standards under Sec. 264.552(e)(4)(iv); or
    (ii) Treatment standards adjusted in accordance with 
Sec. 264.552(e)(4)(v)(A), (C), (D) or (E)(1); or
    (iii) Treatment standards adjusted in accordance with 
Sec. 264.552(e)(4)(E)(2), where treatment has been used and that 
treatment significantly reduces the toxicity or mobility of the 
principal hazardous constituents in the waste, minimizing the short-
term and long-term threat posed by the waste, including the threat at 
the remediation site.
    (3) The landfill receiving the CAMU-eligible waste must have a RCRA 
hazardous waste permit, meet the requirements for new landfills in 
Subpart N of this part, and be authorized to accept such wastes; for 
the purposes of this requirement, ``permit'' does not include interim 
status.
    (b) The person seeking approval shall provide sufficient 
information (including the location of the landfill) to enable the 
Regional Administrator to approve placement of CAMU-eligible waste in 
accordance with paragraph (a) of this section. Information required by 
Sec. 264.552(d)(1) through (3) for CAMU applications must be provided, 
unless not reasonably available.
    (c) The Regional Administrator shall provide public notice and a 
reasonable opportunity for public comment before approving placement of 
the CAMU eligible waste in the permitted hazardous waste landfill, 
consistent with the requirements for CAMU approval at Sec. 264.552(h). 
The approval must be specific to a single remediation.
    (d) Applicable hazardous waste management requirements in this 
part, including recordkeeping requirements to demonstrate compliance 
with treatment standards approved under this section, for the CAMU-
eligible waste must be incorporated into the receiving facility permit 
through permit issuance or a permit modification, providing notice and 
an opportunity for comment and a hearing. Notwithstanding 40 CFR 
270.4(a), a landfill may not receive hazardous CAMU-eligible waste 
under this section unless its permit specifically authorizes receipt of 
such waste.
    (e) Generators of CAMU-eligible wastes sent off-site to a hazardous 
waste landfill under this section must comply with the requirements of 
40 CFR 268.7(a)(4).
    (f) For the purposes of this section only, the ``design of the 
CAMU'' in 40

[[Page 58097]]

CFR 264.552(e)(4)(v)(E) means design of the permitted Subtitle C 
landfill.

[FR Doc. 01-28935 Filed 11-19-01; 8:45 am]
BILLING CODE 6560-50-P