[Federal Register Volume 86, Number 11 (Tuesday, January 19, 2021)]
[Notices]
[Pages 5190-5193]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-00585]


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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OLEM-2020-0689; FRL-10018-16-OLEM]


Hazardous and Solid Waste Management System: Land Disposal 
Restrictions; Information for Petitioners Seeking a No-Migration 
Variance Under the RCRA Land Disposal Restrictions for Temporary 
Placement of Treated Hazardous Waste Within a Permitted Subtitle C 
Landfill

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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SUMMARY: The Environmental Protection Agency (EPA) is requesting 
comment on guidance on petitions for a No Migration Variance (NMV) 
under the Land Disposal Restrictions (LDRs) pursuant to the Resource 
Conservation and Recovery Act (RCRA). Under existing regulations, 
persons may apply for an NMV to allow for the land placement (e.g., 
landfill, impoundment, waste pile) of hazardous waste that, if 
approved, would allow for the placement of hazardous waste in such a 
unit where the waste does not meet applicable LDR treatment standards. 
This guidance provides information to persons applying for an NMV for a 
waste pile temporarily located within a RCRA-permitted landfill cell.

DATES: Comments must be received on or before February 18, 2021.

ADDRESSES: You may send comments, identified by Docket ID No. EPA-HQ-
OLEM-2020-0689, by any of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov/ 
(our preferred method). Follow the online instructions for submitting 
comments.
     Mail: U.S. Environmental Protection Agency, EPA Docket 
Center, Office of Land and Emergency Management Docket, Mail Code 
28221T, 1200 Pennsylvania Avenue NW, Washington, DC 20460.
     Hand Delivery/Courier: EPA Docket Center, WJC West 
Building, Room 3334, 1301 Constitution Avenue NW, Washington, DC 20004. 
The Docket Center's hours of operations are 8:30 a.m.-4:30 p.m., 
Monday-Friday (except Federal Holidays).
    Instructions: All submissions received must include the Docket ID 
No. for this notice. Comments received may be posted without change to 
https://www.regulations.gov/, including any personal information 
provided. For detailed instructions on sending comments and additional 
information on the rulemaking process, see the ``Public Participation'' 
heading of the SUPPLEMENTARY INFORMATION section of this notice.

FOR FURTHER INFORMATION CONTACT: Bethany Russell, Waste 
Characterization Branch, Materials Recovery and Waste Management 
Division, Office of Resource Conservation and Recovery (5304P), 
Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, 
DC 20460; telephone number: 404-562-8542; email address: 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Public Participation

A. Docket

    EPA has established a docket for this action under Docket ID No. 
EPA-HQ-OLEM-2020-0689. All documents in the docket are listed in the 
https://www.regulations.gov index. Publicly available docket materials 
are available either electronically at https://www.regulations.gov or 
in hard copy at the EPA Docket Center. The Public Reading Room is open 
from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding holidays. 
The telephone number for the Public Reading Room is (202) 566-1744, and 
the telephone number for the EPA Docket Center is (202) 566-1742.
    EPA is temporarily suspending its Docket Center and Reading Room 
for public visitors, with limited exceptions, to reduce the risk of 
transmitting COVID-19. Our Docket Center staff will continue to provide 
remote customer service via email, phone, and webform. We encourage the 
public to submit comments via https://www.regulations.gov/ as there may 
be a delay in processing mail. Hand deliveries or couriers will be 
received by scheduled appointment only. For further information and 
updates on EPA Docket Center services, please visit us online at 
https://www.epa.gov/dockets.
    EPA continues to carefully and continuously monitor information 
from the Centers for Disease Control and Prevention (CDC), local area 
health departments, and our Federal partners so that we can respond 
rapidly as conditions change regarding COVID-19.

[[Page 5191]]

B. Written Comments

    Submit your comments, identified by Docket ID No. EPA-HQ-OLEM-2020-
0689, at https://www.regulations.gov (our preferred method), or the 
other methods identified in the ADDRESSES section. Once submitted, 
comments cannot be edited or removed from the docket. The EPA may 
publish any comment received to its public docket. Do not submit 
electronically any information you consider to be Confidential Business 
Information (CBI) or other information whose disclosure is restricted 
by statute. Multimedia submissions (audio, video, etc.) must be 
accompanied by a written comment. The written comment is considered the 
official comment and should include discussion of all points you wish 
to make. The EPA will generally not consider comments or comment 
contents located outside of the primary submission (i.e. on the web, 
cloud, or other file sharing system). For additional submission 
methods, the full EPA public comment policy, information about CBI or 
multimedia submissions, and general guidance on making effective 
comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.

C. Submitting CBI

    Do not submit information that you consider to be CBI 
electronically through https://www.regulations.gov or email. Send or 
deliver information identified as CBI to only the following address: 
ORCR Document Control Officer, Mail Code 5305-P, Environmental 
Protection Agency, 1200 Pennsylvania Avenue NW, Washington, DC 20460; 
Attn: Docket ID No. EPA-HQ-OLEM-2020-0689.
    Clearly mark the part or all of the information that you claim to 
be CBI. For CBI information in a disk or CD-ROM that you mail to EPA, 
mark the outside of the disk or CD-ROM as CBI and then identify 
electronically within the disk or CD-ROM the specific information that 
is claimed as CBI. In addition to one complete version of the comment 
that includes information claimed as CBI, a copy of the comment that 
does not contain the information claimed as CBI must be submitted for 
inclusion in the public docket. If you submit a CD-ROM or disk that 
does not contain CBI, mark the outside of the disk or CD-ROM clearly 
that it does not contain CBI. Information marked as CBI will not be 
disclosed except in accordance with procedures set forth in Title 40 of 
the Code of Federal Regulations (CFR) Part 2.

II. General Information

A. Purpose of This Notice

    The Land Disposal Restrictions (LDRs) are a key part of the 
hazardous waste regulatory program under the Resource Conservation and 
Recovery Act (RCRA) and require that hazardous wastes meet certain 
treatment standards prior to land disposal. If these standards are not 
met, land disposal of the waste is prohibited. The RCRA statute and 
implementing regulations allow land disposal of hazardous waste not 
meeting applicable treatment standards where a No Migration Variance 
(NMV) is approved by EPA. An NMV is a formal decision that can be 
rendered by EPA in response to a petition filed with the Agency, to 
allow the land disposal at a particular facility of specific prohibited 
waste, i.e., a waste not meeting the applicable LDR treatment 
standards. In Section III of this notice, EPA is providing information 
for persons who may wish to apply for an NMV for one or more temporary 
waste piles, where treated hazardous waste that is expected to meet LDR 
standards is temporarily stored within the boundary of a hazardous 
waste landfill prior to moving that waste within the landfill to its 
final disposal or removing it for further treatment.

B. Background

    The regulatory requirements for an NMV under the RCRA LDRs were 
first established in 1986,\1\ and in 1992, EPA issued guidance on these 
requirements.\2\ The 1992 guidance is applicable to landfills, surface 
impoundments, and waste piles, and also acknowledges temporary 
placement of waste under an approved NMV; however, the guidance did not 
address the specific situation identified in this notice where 
temporary piles of treated waste are placed within the boundary of a 
RCRA-permitted hazardous waste landfill.
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    \1\ 51 FR 40572, November 7, 1986.
    \2\ No Migration Variances to the Hazardous Waste Land Disposal 
Prohibitions: A Guidance Manual for Petitioners, EPA Office of Solid 
Waste, July 1992, EPA-530-R92-023.
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    Some commercial hazardous waste landfill facilities offer services 
for treating hazardous waste in addition to providing landfill 
disposal. In determining the appropriate treatment, facilities evaluate 
the incoming waste streams to identify the best treatment strategy 
(e.g., type and quantity of reagents, mixing times). Facilities rely on 
information in waste profiles provided by generators, waste 
characterization conducted by the facility (including characterization 
specified in their Waste Analyses Plan or WAP), as well as familiarity 
with waste streams (e.g., if a waste stream is received on a routine 
basis from the same source). Once treated, facilities may store the 
treated (e.g., stabilized) waste temporarily in units such as tanks, 
containers or containment buildings to allow the treated waste to 
``cure'' and/or to confirm that the treated waste meets the applicable 
LDR standards. The treated waste is then moved into the landfill for 
disposal.
    EPA is aware that some facilities have established procedures 
whereby a pile of treated hazardous waste is temporarily staged within 
the boundaries of the permitted subtitle C landfill while awaiting 
confirmation by the facility through testing results that the treatment 
program is performing as expected and that the treated waste meets the 
applicable LDR standards. Where the treated waste is confirmed to meet 
the LDR standards, the pile is moved to the ``working face'' of the 
landfill for final disposal. If there is an exceedance of an LDR 
standard, the pile is picked up and returned to the treatment process 
for further treatment. Any instance where a pile does not meet the 
applicable LDR standards and has not been granted an NMV would be a 
violation of the LDR requirements--the hazardous waste must either meet 
the LDR standards, or an approved NMV must be in place.\3\
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    \3\ Memorandum from Barnes Johnson to EPA Regional Division 
Directors, April 11, 2014; https://rcrapublic.epa.gov/files/14843.pdf.
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C. The NMV Process

    The NMV petition submittal and decision process is found in 40 CFR 
268.6. Review and approval of an NMV petition is delegated to the EPA 
Regional Administrator for the EPA Region in which the waste management 
unit is located. EPA does not authorize states to implement the NMV 
authority. As part of the petition process, EPA may request additional 
information from the petitioner to evaluate the demonstration. EPA will 
provide notice in the Federal Register of the intent to approve or deny 
the NMV petition with an opportunity for public comment. The final 
decision is to be published in the Federal Register, and petitions to 
renew must undergo notice and comment procedures as well. An NMV that 
has been issued can be revoked for cause, including if migration 
occurs. Once approved, the term of an NMV shall be no longer than the 
term of the RCRA subtitle C permit for a permitted disposal unit, and 
no longer than 10 years for a unit operating under interim status. The 
1992 guidance should be

[[Page 5192]]

considered a resource for preparation of any submittal, in addition to 
the considerations described here for which EPA is requesting comment.

III. NMV for Temporary Waste Piles Within a Subtitle C Landfill

    EPA is requesting comment on the information provided below. The 
contents of the guidance document do not have the force and effect of 
law and the Agency does not bind the public in any way and intends only 
to provide clarity to the public regarding existing requirements under 
the law or Agency policies, except as authorized by law or as 
incorporated into a contract. This information is not a substitute for 
compliance with 40 CFR 268.6, but provides additional information in 
the specific situation where hazardous waste is treated and then is 
temporarily stored in piles within a permitted subtitle C landfill, 
prior to either transfer to the working face of the landfill, or 
removal for retreatment if necessary.

A. Demonstration Addressed by This Guidance

    This guidance addresses how to make a demonstration that the 
treated waste and constituents will not migrate beyond the temporary 
waste pile. The RCRA statutory language requires a demonstration ``to a 
reasonable degree of certainty, that there will be no migration of 
hazardous constituents from the disposal unit or injection zone for as 
long as the waste remains hazardous'' (RCRA Sec.  3004(d)(1)). EPA has 
interpreted this language to mean that it must be demonstrated, to a 
reasonable degree of certainty, that hazardous constituents will not 
exceed Agency-approved health-based levels (or environmentally 
protective levels, if they are appropriate) beyond the boundary of the 
disposal unit. While it is EPA's interpretation that man-made barriers 
or engineered systems (e.g., liner systems) alone generally will not 
meet the ``no migration'' standard, this is not the case for temporary 
land-based storage of treated waste as is being considered in this 
document. The containment of hazardous waste within engineered barriers 
can be considered in making the ``no migration'' demonstration for 
waste awaiting the results of verification sampling after treatment, 
provided that wastes are to be removed after a reasonably short storage 
period that may be conservatively projected to be well before the 
failure of the engineered barrier system.\4\
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    \4\ No Migration Variances to the Hazardous Waste Land Disposal 
Prohibitions: A Guidance Manual for Petitioners, EPA Office of Solid 
Waste, July 1992, EPA-530-R92-023.
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B. Information To Be Submitted to EPA

    EPA expects that petitioners will be able to take advantage of 
existing facility information (e.g., existing monitoring, inspections, 
engineered barriers, waste analyses), where appropriate, as part of any 
demonstration. In developing an NMV petition, a petitioner must satisfy 
the no migration criteria set forth in 40 CFR 268.6, and petitioners 
should describe any and all controls that will be applied to the 
temporary waste pile to prevent the migration of hazardous constituents 
from the pile, and, the monitoring that will be used to detect 
migration at the earliest practicable time. For example, the use of 
temporary barriers, such as plastic covers above and below the piles; 
visual monitoring and prompt responses to possible releases; and 
generally good housekeeping practices that ensure the treated waste 
remains in the pile during the temporary storage period would be 
elements to consider. Attributes of the permitted landfill cell (e.g., 
design, existing controls, monitoring) in which the pile or piles are 
located should also be taken into account to the extent that they 
support the demonstration criteria being applied to the piles 
themselves. In other words, if a particular control or requirement is 
in place for the landfill cell, and can prevent potential releases from 
the pile or piles, it should be described in the petition (and 
petitioners should specify how that control or requirement prevents 
migration from the boundary of the temporary waste pile).
    The regulations in 40 CFR 268.6(a) describe the components of what 
a demonstration must address; Sec.  268.6(b) specifies certain criteria 
that must be satisfied for that demonstration, and Sec.  268.6(c) 
describes the monitoring program that will be used to verify that the 
conditions of the NMV are being met. The components for an NMV 
demonstration outlined in Sec.  268.6(a) are:
     Descriptions of the specific waste(s) and specific unit 
for which the demonstration will be made;
     Waste analysis describing the chemical and physical 
characteristics of the waste;
     Comprehensive characterization of the disposal unit site, 
including air, soil, and water quality;
     Monitoring plan to detect migration at the earliest 
practicable time;
     Sufficient information to assure EPA that the owner/
operator of the unit receiving the wastes will comply with other 
applicable federal, state, and local laws.
    Below are some considerations regarding these components with 
respect to NMV petition submittals for piles temporarily storing waste 
within a subtitle C landfill that has been treated with the expectation 
that it meets the applicable LDR standards for permanent disposal in 
the landfill.
    Facility Description--The NMV petition should include a description 
of the hazardous waste management facility where the waste will be 
treated, temporarily stored, and permanently disposed in sufficient 
detail to familiarize the reviewer with its overall operation. This 
type of information and level of detail will be similar to those 
included in the facility's RCRA permit application. The facility name, 
mailing address, and physical location should be provided, together 
with information on a point of contact for correspondence concerning 
the petition. Detailed design, layout, and operating plans should be 
provided for the unit covered by the petition. Unit descriptions should 
focus on waste isolation capabilities of the unit.
    Unit(s) Covered by the NMV--While the temporary waste piles 
addressed in this document are located within the boundaries of the 
RCRA-permitted landfill cell, the unit to which the variance applies, 
as envisioned in this guidance, is the pile itself. The information 
presented here is for a demonstration that the treated waste and 
constituents will not migrate beyond the temporary waste pile. Where 
different piles containing different types of treated hazardous waste 
are simultaneously staged within the landfill cell, each pile should be 
described and will be evaluated, as necessary, individually by EPA in 
order to properly assess potential releases when evaluating petitions, 
and for evaluating the monitoring that will be part of implementing any 
approved variance. Where multiple piles contain the same or similar 
wastes, the petition can address these units as a group. For example, 
where two or more piles are similar in terms of the nature and 
concentration of constituents, treatment used, waste matrices, etc., 
the petition need not separately specify or discuss such information 
for each individual pile where such piles are effectively being managed 
as a single unit. Similarly, where the design, inspection, and 
monitoring of the pile coverings and liners that will be used to 
prevent releases from the piles are the same for multiple piles, such 
information on each individual pile need not be specified. In other 
words, a successful petition could include several categories of 
treated waste piles, but sufficient

[[Page 5193]]

information must be included so that the potential for releases, and 
proposed inspection and monitoring, can be evaluated by EPA.
    While the unit(s) to be evaluated under this guidance are the 
temporary waste piles, petitioners should also submit information 
related to the landfill to the extent the information aids in any 
demonstration that hazardous constituents will not migrate beyond the 
boundary of the temporary waste pile. For example, hazardous waste 
landfill design and operating requirements (40 CFR 264.301) include 
run-on and run-off controls that may be important in any demonstration 
that hazardous waste will not migrate from the pile. The specific 
location of where the temporary waste piles will be placed within the 
landfill cell should be identified in the petition, together with any 
pertinent information as to why this location was selected and how it 
will prevent the migration of hazardous constituents from the pile. 
These locations will be identified as part of any approved variance.
    This document only applies where wastes managed in the temporary 
waste piles have been treated with the expectation that the waste meets 
the applicable LDR standards for permanent disposal in the landfill. A 
facility should include information about what types and quantities of 
waste are to be managed in the temporary waste piles and what treatment 
standards apply. Most of this information is presumed to already be 
available as part of the facility's WAP and associated program for 
sampling and monitoring for compliance with the LDRs.
    Duration of Temporary Storage--The NMV is necessary to ensure that 
any temporary storage of treated hazardous waste complies with the 
stringent statutory and regulatory standards in those instances where 
the hazardous waste that was treated and placed in a temporary waste 
pile does not meet LDRs. The approach described in this document is 
conditioned upon the temporary nature of the storage of treated 
hazardous waste within the landfill, and is intended for situations 
where the temporary waste piles are used as part of an overall strategy 
to confirm consistent and compliant treatment that meets the applicable 
LDR treatment standards.
    The petition should include a description of the length of time the 
waste is managed in the pile before either transfer to the working face 
of the landfill, or removal for retreatment, if necessary. A range of 
time may be provided, but EPA emphasizes that the temporary nature of 
the pile must be clearly characterized in the petition, such as through 
maximum storage times or other procedures described in the application, 
that may become part of the conditions established in an approved 
variance.
    However, if any particular staging location routinely receives 
treated waste that does not meet applicable LDR standards, then the 
``temporary'' aspect of storage for a given location may be called into 
question, which could affect the ability for EPA to grant the NMV. This 
also raises the separate question of whether the overall treatment 
process is operating as well as it should. Therefore, it is important 
for the petition to describe in sufficient detail the procedures used 
to treat, test, and confirm that wastes meet LDR standards, and how 
this information will be used to determine when a pile will be removed 
either for retreatment, or for final disposal. Such information should 
be available as part of the facility's WAP and may include:
     Number and type (e.g., random grab) of samples taken after 
treatment for LDR compliance;
     Methodology used to select number and type of samples;
     Level of confidence that all waste is treated to LDR 
treatment standards (level of confidence related to number of samples 
achieving LDRs);
     List of regulated constituents (suite of metals, selected 
organics, cyanide).
    Monitoring Plan--40 CFR 268.6(a)(4) requires a petition to include 
a monitoring plan to verify continued compliance with the conditions of 
the no migration variance. Pursuant to 40 CFR 268.6(a)(4), the 
monitoring plan must be designed to detect migration ``at the earliest 
practicable time.'' 40 CFR 268.6(c) lays out the specific information 
required in the monitoring plan. In addition to these requirements, the 
monitoring plan should also describe the sampling and analysis of the 
treated waste that determines when the temporary waste pile will be 
moved to the working face of the landfill for final disposal. The 
demonstration should allow EPA to understand the process and timing of 
LDR treatment and confirmation that LDRs are met; this is fundamental 
to defining the scope and duration of storing treated waste 
temporarily.

Peter Wright,
Assistant Administrator, Office of Land and Emergency Management.
[FR Doc. 2021-00585 Filed 1-15-21; 8:45 am]
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