Amendments to the Corrective Action Management Unit Rule

Note: EPA no longer updates this information, but it may be useful as a reference or resource.

[Federal Register: January 22, 2002 (Volume 67, Number 14)]
[Rules and Regulations]
[Page 2961-3029]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22ja02-15]
[[Page 2962]]

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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 260, 264, and 271
[FRL-7124-3]
RIN 2050-AE77

AGENCY: Environmental Protection Agency.
ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (``EPA'' or ``the
Agency'') is today promulgating amendments to the regulations governing
Corrective Action Management Units. Corrective Action Management Units,
or ``CAMUs,'' are special units created under the Resource Conservation
and Recovery Act (RCRA) to facilitate treatment, storage, and disposal
of hazardous wastes managed for implementing cleanup, and to remove the
disincentives to cleanup that the application of RCRA to these wastes
can sometimes impose. The original CAMU regulations were promulgated on
February 16, 1993.
In today's action, EPA is amending the 1993 CAMU rule in six ways.
First, EPA is establishing a specific definition, distinct from the
definition of remediation waste, to govern the types of wastes that are
eligible for placement in CAMUs. Second, the Agency is establishing
more detailed minimum design and operating standards for CAMUs in which
waste will remain after closure, with opportunities for Regional
Administrators to approve alternate design standards under certain
circumstances. Third, the Agency is establishing treatment requirements
for wastes that are placed in CAMUs, including minimum treatment
standards, with opportunities to adjust treatment requirements under
certain circumstances. Fourth, EPA is establishing more specific
information requirements for CAMU applications and is explicitly
requiring that the public be given notice and a reasonable opportunity
for public comment before final CAMU determinations are made. Fifth,
the Agency is establishing new requirements for CAMUs that will be used
only for treatment and storage. Sixth, today's rulemaking
``grandfathers'' certain types of existing CAMUs and allows them to
continue to operate under the 1993 rule.
Today's rulemaking amends the regulations for ``staging piles'' to
expressly allow for mixing, blending, and other similar physical
operations intended to prepare wastes for subsequent management or
treatment. It also adds a new provision allowing off-site placement of
hazardous CAMU-eligible waste in hazardous waste landfills, if they are
treated to meet CAMU treatment standards (somewhat modified).
Finally, today's rule grants interim authorization for these CAMU
amendments to states that are authorized for the 1993 CAMU rule, and it
expedites state authorization for the CAMU rule for states that are
authorized for the RCRA corrective action program but not the 1993 CAMU
rule.
Today's amendments were proposed on August 22, 2000, referred to
throughout this rulemaking as ``the proposal.'' EPA also proposed a
supplemental proposal on November 20, 2001, referred to as ``the
supplemental proposal.''

DATES: This final rule is effective April 22, 2002.

ADDRESSES: The official record for this rulemaking under docket number
F-2002-ACAF-FFFFF is located at the RCRA Docket Information Center
(RID), located at Crystal Gateway I, First Floor, 1235 Jefferson Davis
Highway, Arlington, Virginia. It is available for viewing from 9:00
a.m. to 4:00 p.m. Monday through Friday, excluding federal holidays.
To review docket materials, it is recommended that the public make
an appointment by calling (703) 603-9230. The public may copy a maximum
of 100 pages from any regulatory docket at no charge. Additional copies
cost $0.15/page. The Final Rule, index, and some supporting materials
are 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 Tricia Buzzell, U.S. Environmental
Protection Agency (5303W), Ariel Rios Building, 1200 Pennsylvania Ave.,
NW., Washington, DC 20460, at (703) 308-8632, or e-mail
buzzell.tricia@epa.gov.

SUPPLEMENTARY INFORMATION: Copies of today's Final Rule are available
for inspection and copying at the EPA Headquarters library, at the RCRA
Docket (RIC) office identified in ADDRESSES above, at all EPA Regional
Office libraries, and in electronic format at the following EPA Web
site: 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 index and some of the supporting materials are available on the
Internet at www.epa.gov/epaoswer/hazwaste/ca/resource/guidance/
remwaste/camu.

Outline

The contents of today's preamble are listed in the following outline.

I. Authority
II. Background
III. Section-by-Section Analysis
A. Grandfathering CAMUs (40 CFR 264.551)
B. Eligibility of Wastes for Management in CAMUs (40 CFR 264.552(a))
1. Definitions of Remediation Waste and CAMU-Eligible Waste
2. As-Generated vs. Cleanup Wastes
3. Wastes Managed During Closure
4. Wastes in Intact or Substantially Intact Containers, Tanks or
Other Non-Land-Based Units (40 CFR 264.552(a)(1)(ii))
a. Intact and Substantially Intact Containers Excavated During
Cleanup are CAMU Eligible
b. Extension of Approach to Buried Containers to Include Buried Tanks
c. Interpretations of ``Intact or Substantially Intact,'' ``Found
During Cleanup'' and ``Excavated During Cleanup''
d. Placement of ``Historic Wastes'' in CAMUs
5. Limited Use of Nonhazardous ``As-Generated'' Waste in CAMUs (40
CFR 264.552(a)(1)(iii))
C. Discretionary Kickout (40 CFR 264.552(a)(2))
D. Information Submission (40 CFR 264.552(d))
1. ``Unless Not Reasonably Available'' Standard
2. Application of New CAMU Information Submission Requirements to P-
and U-Listed Wastes
3. Interpretation of General CAMU Information Submission Performance
Standard Continues to Apply
E. Liquids in CAMUs (40 CFR 264.552(a)(3))
F. Design Standards for CAMUs
1. Liner Standard
a. Standard Liner Design (40 CFR 264.552(e)(3)(i))
b. Alternate Liner Designs (40 CFR 264.552(e)(3)(ii))
2. Cap Standard
a. Standard Cap Design (40 CFR 264.552(e)(6)(iv))
b. Alternate Cap Designs (40 CFR 264.552(e)(6)(iv)(B))
3. Releases to Ground Water (40 CFR 264.552(e)(5)(iii))
G. Treatment Requirements (40 CFR 264.552(e)(4))
1. Identification of Principal Hazardous Constituents (40 CFR
264.552(e)(4)(i) and (ii))
a. Approach to Identifying PHCs
b. Constituents from which PHCs are Drawn (40 CFR 264.552(e)(4)(ii))
c. Carcinogenic and Non-Carcinogenic PHCs

[[Page 2963]]

d. PHCs Identified Based on Waste-to-Ground-Water Pathway (40 CFR
264.552(e)(4)(i)(B))
e. Designation of Other PHCs (40 CFR 264.552(e)(4)(i)(C))
f. Relationship of PHCs to ``Principal Threats'' Guidance
2. Treatment Standards (40 CFR 264.552(e)(4)(iii))
a. Minimum National Treatment Standards (40 CFR 264.552(e)(4)(iv))
(1) Standard of 90% Capped by 10XUTS
(2) Use of TCLP and Alternative Leach Tests
(3) Assessment of 90% Reduction
b. Site-Specific Treatment Standards Based on Adjustment Factors (40
CFR 264.552(e)(4)(v))
(1) Adjustment Factor A: Technical Impracticability (40 CFR
264.552(e)(4)(v)(A))
(2) Adjustment Factor B: Consistency with Site Cleanup Levels (40
CFR 264.552(e)(4)(v)(B))
(3) Adjustment Factor C: Community Views (40 CFR
264.552(e)(4)(v)(C))
(4) Adjustment Factor D: Short-Term Risks (40 CFR
264.552(e)(4)(v)(D))
(5) Adjustment Factor E: Engineering Design and Controls (40 CFR
264.552(e)(4)(v)(E))
(6) If / Then Chart Illustrating Application of Adjustment Factor E
c. Relationship between Minimum National Treatment Standards and Adjustment

Factors

d. Treatment in CAMUs within a Reasonable Time (40 CFR
264.552(e)(4)(vi))
e. Assessing Compliance with Treatment Standards (40 CFR
264.552(e)(4)(vii))
H. Constituents at or below Site Cleanup Levels or Goals (40 CFR
264.552(g))
I. Storage and/or Treatment Only CAMUs (40 CFR 264.552(f))
J. Staging Piles (40 CFR 264.552(g))
K. Placement of CAMU-Eligible Wastes in Off-Site Hazardous Waste
Landfills
1. Conditions of Off-Site Landfill Placement
a. Limitation to CAMU-Eligible Wastes
b. Limitation to Placement in Off-Site Landfills
c. Treatment Requirements
d. Disposal Requirements
2. Approval Procedures
a. Approval of CAMU-Eligible Waste for Placement Off-Site in a
Subtitle C Landfill
b. Permitting and Acceptance at the Receiving Landfill
1. Other Requirements
L. Grandfathering CAMUs (40 CFR 264.555 and 40 CFR 264.551)
M. Public Participation (40 CFR 264.552(h))
N. Additional Requirements (40 CFR 264.552(i))
IV. Relationship to Other Regulatory Programs
V. How Will Today's Regulatory Changes be Administered and Enforced
in the States?
A. Applicability of Federal Rules in Authorized States
B. Authorization of States for Today's Final Rule
C. Interim Authorization-by-Rule for States currently Authorized
for the CAMU Regulations
1. Background and List of States Eligible for Interim
Authorization-by-Rule
2. Eligibility Criteria and Process for Interim Authorization-by-Rule
D. Expiration of Interim Authorization
E. Authorization for Sec. 264.555
F. Authorization of States currently Authorized for Corrective
Action, but Not the Existing CAMU Rule
1. State Applications for Final Authorization
2. Authorization Approach for States That Adopt the CAMU
Regulations by Reference or Verbatim
VI. Effective Date
VII. Conforming Changes (40 CFR Part 260 Subpart S, Sec. 260.10)
VIII.Analytical and Regulatory Requirements
A. Planning and Regulatory Review under Executive Order 12866
1. Economic Analysis Background and Purpose
a. Framework for the Analysis
b. Baseline Case Description
c. Post-Regulatory Case Description
d. Incremental Impacts
2. CAMU Administrative Approval Costs Assessment
3. Assessment of the Incremental Impacts Related to the
Treatment and Unit Design Provisions, and to the Storage and/or
treatment Only CAMU Provisions
a. Treatment and Unit Design Standards Implemented in the Baseline
b. Treatment and Unit Design Provisions in the Post-Regulatory Case
c. Incremental Impacts Associated with Final Treatment and Unit
Design Provisions
d. Incremental Impacts Associated with the Storage and/or
treatment Only CAMU Provisions
4. Assessment of the Incremental Change in the Number of CAMUs Approved
a. Grandfathering Window
b. Early After Promulgation
c. Post Promulgation Equilibrium
5. Assessment of the Total Impacts for the Final Amendments to
the CAMU Rule
B. Regulatory Flexibility Act (RFA) as Amended by the Small
Business Regulatory Enforcement Fairness Act (SBREFA)
1. Methodology to Assess Small Entity Impacts
a. Framework for the Analysis
b. Methodological Approach for SBREFA Analysis
c. Examination of Existing CAMUs for Small Entity Status
d. Significant Impact Screen of Facilities for Which Size Was
Undetermined
2. The Impacts Estimated on Small Entities
C. Paperwork Reduction Act
D. Unfunded Mandates Reform Act
E. National Technology Transfer and Advancement Act
F. Consultation and Coordination with Indian Tribal Governments
(Executive Order 13175)
G. Protection of Children from Environmental Health Risks and
Safety Risks (Executive Order 13045)
H. Federalism (Executive Order 13132)
I. Environmental Justice (Executive Order 12898)
J. Congressional Review Act
K. Energy Effects (Executive Order 13211)

I. Authority

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

Since the 1984 Hazardous and Solid Waste Amendments (HSWA) to the
Resource Conservation and Recovery Act of 1976 (RCRA), EPA has
recognized that the comprehensive regulatory framework that generally
governs identification, generation, transportation, treatment, storage,
and disposal of hazardous wastes can present serious disincentives to
management of hazardous wastes during cleanups. As discussed in the
proposal\1\ and in numerous other Agency documents and rulemakings,\2\
these disincentives arise for three primary reasons.
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\1\ All references to ``the proposal'' are to the proposal of
today's amendments, 65 FR 51080, August 22, 2000.
\2\ For a fuller discussion of this issue, see the preamble
discussions accompanying the Land Disposal Restrictions (LDR) Phase
IV rule, 63 FR 28556, 28603-28604 (May 26, 1998); Clarification of
the LDR Treatment Variance Standard (the ``environmentally
inappropriate'' variance), Sec. 268.44(h), 62 FR 64504, 64505-64506
(December 5, 1997); and the HWIR-Media rule, 63 FR 65874, 65876-
65878 (November 30, 1998), and sources cited therein.
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First, the broad objectives of the hazardous waste program--to
prevent releases through a comprehensive set of management
requirements, to minimize generation of hazardous waste, and to promote
legitimate reuse and recycling--are not, in general, the same as the
Agency's objectives during cleanup. During cleanup, the Agency is faced
primarily with remediating a release that has already occurred. In this
context the Agency may, in fact, desire to maximize the amount of waste
generated (i.e., maximize the amount of waste managed for implementing
cleanup).
Generators of hazardous waste, for the most part, do not have a
choice about whether they trigger application of the RCRA hazardous
waste regulations (once the waste is generated). If a hazardous waste
is generated, RCRA applies. The application of the RCRA hazardous waste
regulations, however, discourages its generation in the first

[[Page 2964]]

place and encourages generators to reuse materials, to reduce waste,
and to use fewer hazardous constituents in production processes. These
outcomes are desirable and consistent with the broad objectives of
RCRA. Conversely, in a cleanup situation, the waste already exists, but
site owners/operators often have legal options that allow them to
minimize or avoid application of the RCRA regulations, which thus
discourage cleanup or the amount of wastes cleaned up. In large part,
these legal options involve capping waste in place, or in some cases
not engaging in cleanup at all. In general, these types of approaches
are less desirable than remedies that involve excavation of some, or
all, cleanup waste for more aggressive treatment and/or off-site disposal.
Second, the RCRA regulations have been conservatively designed and
uniformly applied to ensure proper management of hazardous wastes over
a range of waste types, environmental conditions, management scenarios,
and operational contingencies. The land disposal restriction (LDR)
treatment standards for most hazardous wastes, for example, are
established at levels achieved by the best demonstrated available
technology for treating the waste in question. Likewise, the minimum
national design and operation standards for hazardous waste land
disposal units were developed to be protective in a range of disposal
scenarios. Cleanups, on the other hand, are fundamentally site-specific
and essentially risk-based. During cleanup, the Agency generally has
the site- and waste-specific information it needs to develop protective
management requirements for the particular site and waste in question;
therefore, there is less need for generic management approaches to
ensure protectiveness in a range of scenarios.
Finally, in addition to the differences in the context for
regulating hazardous wastes from ongoing industrial operations versus
cleanup described above, there are often (but not always) significant
physical and chemical differences between wastes generated by
industrial processes (or ``as-generated'' wastes) and cleanup wastes.
These physical and chemical differences further support the need for
different approaches for wastes managed for implementing cleanup.
In practice, application of the RCRA regulations developed for as-
generated wastes to wastes managed for implementing cleanup often
presents remediation project managers with only two choices: (1) pursue
the legal option of capping or treating cleanup wastes in place,
thereby avoiding application of many RCRA requirements, or (2) excavate
cleanup wastes and, in accordance with RCRA requirements, treat them to
the fullest extent possible given available technology and place them
in a permitted hazardous waste landfill. Often neither of these options
represents the best remedial approach. And the desire to avoid costs
associated with the second option creates an incentive to select the first.
While recognition of this problem came relatively early, EPA and
stakeholder groups have grappled for more than ten years with the
policy challenges associated with solving the problem. Developing
approaches to regulating cleanup wastes differently from as-generated
wastes presents a number of challenges. For example, how does the
Agency develop approaches tailored to cleanup wastes while at the same
time leaving in place the basic features of the RCRA program as they
apply to as-generated wastes? How does the Agency create a management
structure for cleanup wastes that minimizes disincentives for cleanup
without creating incentives to mismanage as-generated wastes? How do
EPA and the states ensure that cleanup wastes are managed safely while
providing for the site-specific flexibility that effective cleanups demand?
In an effort to deal with these questions, the Agency has developed
over the years numerous policies, regulations, and guidance documents
addressing the application of the RCRA Subtitle C regulations for as-
generated wastes to wastes managed for implementing cleanup.\3\ As part
of its efforts to address these issues, the Agency promulgated the
original CAMU rule in 1993. (February 16, 1993, 58 FR 8658) The 1993
CAMU rule created a special type of hazardous waste management unit--a
Corrective Action Management Unit, or CAMU--to be used only for on-site
treatment, storage, and disposal of hazardous wastes managed for
implementing cleanup. Consolidation or placement of cleanup wastes into
a CAMU is not considered land disposal and, therefore, does not trigger
RCRA LDR requirements. 40 CFR 264.552(a)(1). Similarly, consolidation
or placement of cleanup waste into a CAMU does not create a unit
subject to RCRA's minimum technology requirements. 40 CFR
264.552(a)(2). Instead of applying RCRA LDRs, minimum technology
requirements, and other hazardous waste requirements, overseeing
agencies had considerable flexibility under the 1993 CAMU rule to
tailor design, operating, closure and post-closure, and waste treatment
requirements to site- and waste-specific conditions. This approach
allowed a significantly broader range of cleanup options at individual
sites and has led, at individual sites, to prompter and more aggressive
cleanup.
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\3\ These include, the ``area of contamination'' policy; the
``contained-in'' policy; the ``Phase IV LDR'' treatment standards
for contaminated soil; and, the provisions for ``Remedial Action
Plans'' or RAPs. Descriptions of many of these and other relevant
policies and regulations, including references, are included in the
October, 1998 memorandum, ``Management of Remediation Waste Under
RCRA,'' EPA 530-F-98-026. These regulations, policies, and guidance
documents are not changed by today's rulemaking.
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Many stakeholders supported the 1993 CAMU rule. In implementation,
the Agency believes the 1993 CAMU rule has resulted in appropriate,
protective, site-specific remedies. (See the CAMU Site Background
Document in the docket for today's rule.) Not all stakeholders,
however, supported the 1993 CAMU rule. As discussed in the proposal,
the 1993 CAMU rule was legally challenged after promulgation.
(Environmental Defense Fund v. EPA, No. 93-1316 (D.C. Cir. filed May
14, 1993.) Among other things, the Petitioners were concerned with
provisions in the 1993 CAMU rule providing that land disposal
restrictions, minimum technology requirements, and other Part 264 and
265 unit requirements did not apply to CAMUs. After an extended stay of
the challenge, during which EPA and stakeholders pursued a number of
other approaches to addressing RCRA regulation of hazardous remediation
wastes, the Agency entered into settlement discussions and reached a
settlement agreement on February 11, 2000. Today's amendments to the
1993 CAMU rule are the result of this settlement process.
In developing today's amendments and in negotiating the CAMU
settlement, the Agency's primary purpose was to allow continued use of
CAMUs so as to remove the disincentives to cleanup that result from
applying RCRA regulations for as-generated hazardous wastes to cleanup
wastes. As the Agency stated in the proposal:

The Agency recognizes the benefits of including minimum
standards in a rule of this nature, i.e., such standards can make
the process more consistent nationally, and the results more
predictable, as well as more explicit for the public. Such standards
can also make implementation of the rule less vulnerable to mistakes
or abuse. However, the Agency did not want to include more detailed
standards if they would result in potentially limiting the
usefulness of the

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rule, thereby delaying or inhibiting cleanups. (65 FR 51084.)

It was the Agency's conclusion at the time of proposal that the
proposed amendments achieved an appropriate balance, realizing the
benefits of increased regulatory detail without reinstating the
disincentive to cleanup the CAMU rule was originally designed to
address. As discussed in the proposal, the Agency's analyses showed
that the vast majority of CAMUs approved under the 1993 rule could be
approved with few or no changes under the proposed amendments. The
Agency requested comment on these conclusions.
The Agency received mixed comments on the proposed CAMU amendments.
Many commenters, including the Petitioners from the 1993 CAMU
litigation, strongly supported the proposal as remedying ``major legal
and policy deficiencies with [the 1993 CAMU rule], principally by
providing for baseline standards rather than unconstrained
discretion.'' Some commenters opposed the CAMU amendments, believing
they were not needed to protect human health or the environment and
disagreeing with the Agency's conclusion that they would not reinstate
disincentives to cleanup. On balance, however, even most commenters who
thought that amendments to the 1993 CAMU rule were not necessary,
expressed the view that, if the Agency was convinced that amendments to
the 1993 CAMU rule were needed, the proposed approach was reasonable.
After considering these comments, the Agency has decided to
finalize the CAMU amendments largely as proposed. The Agency agrees
with commenters who pointed out (as EPA did at proposal) that the 1993
CAMU rule has had a positive effect on cleanups and has promoted more
aggressive remediation at individual sites. But the Agency continues to
believe that the benefits that derive from the more specific regulatory
standards of this rule will not be gained at the cost of reinstating
the regulatory disincentive to cleanup that the CAMU was intended to
address. This result, in EPA's view, argues in favor of promulgating
today's amendments. Although many commenters expressed concern that
today's rule would recreate disincentives, they provided general
arguments rather than specific evidence. Furthermore, no commenter
disputed the Agency's conclusion that the areas in which the Agency
provides flexibility from the minimum standards cover the full variety
of situations where the minimum standards might operate to discourage
aggressive remediation. Similarly, comments submitted on the effects of
increased CAMU processing costs (monetary and temporal) for CAMU
approval expected to result from today's amendments did not convince
the Agency either that such costs alone would likely outweigh the
benefits to facilities of obtaining a CAMU, thereby reversing the
benefits realized from the 1993 rule. The Agency is therefore
promulgating the proposed amendments with only minor changes from the
proposal (see discussion of specific changes below).\4\
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\4\ In finalizing today's amendments, the Agency has published
the entire text of the CAMU rule as it will appear in the CFR. EPA
took this approach for the sake of clarity. However, it is important
to note that the CAMU regulatory provisions on which the Agency did
not seek comment in the proposal (i.e., those which, at proposal,
were simply repeated from the 1993 rule) are not modified by today's
amendments. In addition, to further aid the reader, the Agency has
placed a ``redline/strikeout'' version of the CAMU regulations in
the docket for today's rulemaking. This document indicates exactly
where changes to the 1993 rule are being finalized.
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III. Section-by-Section Analysis

A. Grandfathering CAMUs (40 CFR 264.551)

EPA proposed that CAMUs approved prior to the effective date of the
final CAMU amendments (i.e., the effective date of this rulemaking) and
CAMUs for which substantially complete applications (or equivalents)
were submitted to the Agency on or before ninety (90) days after
publication of the proposal (i.e., November 20, 2000), would generally
continue to operate under the 1993 CAMU regulations and would not be
subject to the CAMU amendments finalized today. This approach is
referred to as ``grandfathering.'' Commenters generally supported the
grandfathering provisions and, in today's rulemaking, EPA is finalizing
these provisions as proposed. Issues associated with grandfathering are
discussed in section L, at the end of the section-by-section analysis.

B. Eligibility of Wastes for Management in CAMUs (40 CFR 264.552(a))

EPA's approach to defining the types of wastes that may be placed
in CAMUs is an important element in its effort to strike a balance
between encouraging aggressive remediation and maintaining RCRA's
incentives to avoid releases and minimize wastes in the first instance.
EPA's intention in the 1993 CAMU rule and in today's action is to
clearly limit the wastes that may be placed in CAMUs to wastes that are
managed as a result of cleanup, except under specifically described and
limited circumstances.
Under the 1993 CAMU rule, the term ``remediation waste'' defined
the types of wastes that may be placed in a CAMU. ``Remediation waste''
is defined at 40 CFR 264.10 as ``all solid and hazardous wastes, and
all media (including ground water, surface water, soils, and sediments)
and debris that contain listed hazardous wastes or that themselves
exhibit a hazardous characteristic and are managed for implementing
cleanup.'' \5\ The definition of remediation waste is also used in
regulations pertaining to Remedial Action Plans (see part 270, subpart
H), staging piles (see 40 CFR 264.554), and site-specific LDR treatment
variances under the ``environmentally inappropriate'' variance
provisions (see 40 CFR 268.44(h)(2)(ii)).
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\5\ As discussed in the proposal, the remediation waste
definition promulgated with the 1993 CAMU regulations was modified
by the Agency in the Hazardous Waste Identification Rule for
Contaminated Media (HWIR-Media). See, 63 FR 65874, November 30,
1998. The remediation waste definition quoted above is the
definition as modified by the HWIR-Media rule. The Agency is today
promulgating an editorial change to the remediation waste
definition, as discussed later in this section of the preamble.
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Working from the definition of ``remediation waste,'' EPA proposed
a number of changes to define more specifically the types of
remediation waste that may be placed in CAMUs. First, the Agency
proposed to establish a separate subcategory of waste, within the
broader category of remediation waste, to govern the types of wastes
that may be placed in a CAMU. EPA proposed to call this subcategory of
waste ``CAMU-eligible waste.'' Second, EPA proposed to include in the
definition of CAMU-eligible waste clarifying language to better
distinguish between as-generated and cleanup wastes. Third, EPA
proposed, with some exceptions, to explicitly prohibit waste in
containers and other non-land-based units from being placed in CAMUs.
Fourth, the Agency proposed to allow nonhazardous, as-generated wastes
to be placed in a CAMU if such placement would facilitate treatment or
the performance of the CAMU. The Agency also proposed to ban placement
of liquids in CAMUs except under certain circumstances and to allow the
Regional Administrator, under certain circumstances, to ``kick out'' or
disallow placement in a CAMU of wastes that would otherwise be CAMU-
eligible.
Commenters generally supported EPA's overall proposed approach to
more specifically defining the types of remediation waste that may be
placed in

[[Page 2966]]

CAMUs, and today the Agency is finalizing its approach largely as
proposed. In response to comments, however, the Agency is making two
changes to the CAMU-eligible waste definition in today's final
rulemaking. First, the Agency is making an editorial change to the
definition of CAMU-eligible waste (and a conforming change to the
related definition of ``remediation waste'') to make clear that these
definitions include both hazardous and nonhazardous wastes (including
hazardous and nonhazardous environmental media and debris), when such
materials are managed for implementing cleanup. Second, the Agency is
expanding the definition of CAMU-eligible wastes to include intact and
substantially intact tanks. With this change, both containers and tanks
excavated during cleanup (and materials they may hold) are generally
CAMU eligible. The details of the Agency's approach to defining wastes
eligible for management in CAMUs, including the two changes made in
response to comments, are discussed below.
1. Definitions of ``Remediation Waste'' and ``CAMU-Eligible Waste''
EPA proposed: (1) To establish a separate subcategory of waste to
more specifically define the types of remediation wastes that can be
placed in CAMUs, (2) to call the subcategory of waste ``CAMU-eligible
waste,'' and (3) to promulgate the definition of CAMU-eligible waste in
the CAMU regulations at 40 CFR 264.552(a)(1) rather than in the general
definitions section at 40 CFR 260.10. To complement the new definition
of CAMU-eligible waste, EPA proposed to revise the definition of
Corrective Action Management Unit to refer to ``CAMU-eligible waste''
rather than ``remediation waste.'' Also, to make clear that the changes
to the definition would not apply beyond the CAMU rule, the Agency
proposed to move the definition of CAMU from the general definitions
section at 40 CFR 260.10 to the CAMU regulations at 40 CFR 264.552(a)
and, for grandfathered CAMUs, at 40 CFR 264.551(a).
EPA proposed to define CAMU-eligible waste as ``[a]ll solid and
hazardous wastes, and all media (including ground water, surface water,
soils, and sediments) and debris that contain listed hazardous waste or
that themselves exhibit a hazardous characteristic and are managed for
implementing cleanup. As-generated wastes (either hazardous or
nonhazardous) from ongoing industrial operations at a site are not
CAMU-eligible wastes.'' The first sentence of the proposed definition
reiterated the definition of remediation waste. The second sentence
added language from the preamble to the 1993 CAMU rule to more
explicitly prohibit management of as-generated wastes in CAMUs.
EPA did not receive adverse comments on the proposal to promulgate
the definition of CAMU-eligible waste in the CAMU regulations, on the
proposed conforming change to the definition of CAMU, or on the
proposal to move the definition of CAMU from the general definitions
section to the CAMU regulations. The Agency is promulgating those
provisions as proposed.
Commenters also generally supported establishing a separate
definition for CAMU-eligible waste; however, in evaluating the new
definition, a number of commenters expressed concern that the
definition could be read to preclude placement of nonhazardous cleanup
wastes (or environmental media and debris that contain solid but not
hazardous wastes) in a CAMU. The Agency believes this misreading--which
it understands but never intended--could unnecessarily delay approvals
of CAMUs and delay cleanups, so it is taking today's opportunity to
make editorial changes necessary to clarify the definition of CAMU-
eligible waste and the related definition of remediation waste, as
discussed below.
The current definition of remediation waste is ``All solid and
hazardous waste, and all media (including groundwater, surface water,
soils, and sediments) and debris that contain listed hazardous wastes
or that themselves exhibit a hazardous characteristic and are managed
for implementing cleanup'' (emphasis added). EPA included the phrase
``that contain listed hazardous wastes or that themselves exhibit a
hazardous characteristic'' to make clear that media brought under
regulation through the ``contained-in'' policy were eligible for
management in a CAMU. Under the Agency's longstanding contained-in
policy, EPA requires that contaminated environmental media, although
not hazardous wastes themselves, be managed as if they were hazardous
waste as long as they contain hazardous waste or exhibit a
characteristic of hazardous waste.\6\ Commenters expressed concern
that, because it is not clear which portions of the definition of
remediation waste are modified by the phrase ``that contain listed
hazardous wastes or that themselves exhibit a hazardous
characteristic,'' the definition could be read to limit media and
debris placed in a CAMU to those containing listed waste or exhibiting
a characteristic, and not to include contaminated environmental media
or debris that contain solid (but not hazardous) waste.
---------------------------------------------------------------------------

\6\ The contained-in policy is described in the October 1998
memorandum, ``Management of Remediation Waste Under RCRA,'' EPA
A530-F-98-026, which is included in the docket for today's rulemaking.
---------------------------------------------------------------------------

Commenters additionally raised concerns that the definition of
``CAMU-eligible waste''--which is based on the definition of
remediation waste--could similarly be read to exclude nonhazardous
wastes managed for implementing cleanup. This reading would preclude
management of nonhazardous remediation wastes in CAMUs.\7\ Clearly,
this reading does not reflect the Agency's intent as expressed in the
preamble to the proposal or in earlier Agency discussions of
remediation waste, and therefore the Agency is making editorial changes
to the definition of CAMU-eligible waste.
---------------------------------------------------------------------------

\7\ The confusion is caused by the restrictive clauses in the
definitions of CAMU-eligible and remediation waste. In the case of
remediation waste, the definition is: ``Remediation waste means all
solid and hazardous wastes, and all media (including ground water,
surface water, soils and sediments) and debris that contain listed
hazardous wastes or that themselves exhibit a hazardous
characteristic and are managed for implementing cleanup.'' Some
commenters feared that the restrictive clauses ``that contain listed
hazardous wastes or that themselves exhibit a hazardous
characteristic . . .'' would be read to limit media and debris
placed in a CAMU to those containing listed wastes or exhibiting a
characteristic. This interpretation would mean that nonhazardous
media and debris could not be managed in a CAMU. In an alternative
reading, commenters feared that the restrictive clauses could be
read to modify ``all solid and hazardous wastes, and all media . .
.,'' that is, to require that solid or hazardous waste ``contain
listed hazardous wastes'' or ``exhibit a hazardous characteristic''
in order to be covered by the definitions. While EPA believes that
most readers understood what it intended in the definition, the
Agency agrees that the wording is confusing and has, therefore, made
the editorial changes discussed in today's rulemaking.
---------------------------------------------------------------------------

As discussed in detail in the 1993 CAMU rule, ``the definition of
remediation waste includes nonhazardous solid waste . . . [although]
management of such wastes would not require the designation of a CAMU .
. . since [RCRA] Subtitle C requirements would not apply to management
of [nonhazardous solid waste]'' (58 FR 8664, February 16, 1993). The
Agency also addressed this issue in the 1998 HWIR-Media rulemaking,
where it indicated that ``remediation waste'' includes ``both hazardous
and nonhazardous solid wastes managed as a result of cleanup'' (63 FR
65881, November 30, 1988). Nonetheless, to prevent any potential
confusion over this issue, the Agency is revising the wording of the
definition of CAMU-eligible waste to remove the

[[Page 2967]]

phrase ``that contain listed hazardous wastes or that themselves
exhibit a characteristic.'' The definition of CAMU-eligible waste
promulgated today, in pertinent part, reads: ``CAMU-Eligible Waste
means: (i) all solid and hazardous wastes, and all media (including
groundwater, surface water, soils, and sediments) and debris that are
managed for implementing cleanup.''
EPA emphasizes that this editorial change does not reflect a change
in the Agency's approach toward implementing the definition of CAMU-
eligible waste. Rather, it reflects the Agency's conclusion, based on
comments, that the proposed definition created a potential for
confusion which could hinder implementation of the CAMU amendments. EPA
further emphasizes that the exclusion of nonhazardous ``as-generated''
waste from the definition of CAMU-eligible waste is not affected by
this change. As discussed later in today's rulemaking, nonhazardous as-
generated waste is generally not within the definition of CAMU-eligible
waste and can be placed in CAMUs only under certain limited circumstances.
EPA is also taking this opportunity to make the same change to the
definition of remediation waste. The revised definition of remediation
waste reads: ``Remediation waste means all solid and hazardous wastes,
and all media (including groundwater, surface water, soils, and
sediments) and debris that are managed for implementing cleanup.'' EPA
is making this change to avoid confusion that might result from using
different wording in the definitions of remediation and CAMU-eligible
waste. The Agency notes that it is making these changes solely for
clarity and consistency and that they will have no substantive effect
on either definition.
The Agency also received a number of comments on the inclusion of
the sentence ``[a]s-generated wastes (either hazardous or nonhazardous)
from ongoing industrial operations at a site are not CAMU-eligible
wastes' in the definition of CAMU-eligible waste. These comments are
discussed in the section ``As-Generated versus Cleanup Wastes,'' below.
2. As-Generated versus Cleanup Wastes
The 1993 CAMU rule limited wastes placed in CAMUs to ``remediation
waste,'' i.e., to wastes, environmental media, and debris that ``are
managed for implementing cleanup.'' The preamble to the 1993 rule
explained what was generally meant by this definition: ``(t)oday's
definition of remediation waste excludes ``new'' or as-generated wastes
(either hazardous or nonhazardous) that are generated from ongoing
industrial operations at a facility'' (58 FR 8658 and 8664, February
16, 1993). While the Agency believes the 1993 CAMU rule language is
clear, it also understands the concerns of critics of the rule, who
argued that the regulations could benefit from additional language
creating a ``firewall'' between industrial process waste and cleanup
waste by specifically prohibiting placement of as-generated wastes in
CAMUs. In response to these concerns, the Agency proposed to add the
sentence ``[a]s-generated wastes (either hazardous or nonhazardous)
from ongoing industrial operations at a site are not CAMU-eligible
wastes'' to the new definition of CAMU-eligible waste. Commenters
supported adding this express exclusion, and the Agency is finalizing
this part of the definition of CAMU-eligible waste as proposed.
As discussed in the proposal, including the sentence ``[a]s-
generated wastes (either hazardous or nonhazardous) from ongoing
industrial operations at a site are not CAMU-eligible wastes'' in the
definition of CAMU-eligible waste does not change the way the Agency
currently distinguishes between as-generated and cleanup wastes (65 FR
51085 and 51086, August 22, 2000). It is simply a way to reflect more
explicitly the original intent of the 1993 definition.
``As-generated'' continues to have the same meaning that it did in
1993. For example, hazardous wastes generated by an industrial process
(e.g., an electroplating operation at a metals-finishing facility),
managed in an operating hazardous waste surface impoundment or
landfill, are considered as-generated wastes. As such, these wastes
must be managed, treated, and disposed of in compliance with applicable
RCRA hazardous waste requirements.
EPA has also not changed the meaning of ``from ongoing industrial
operations.'' EPA is including this phrase in the definition of CAMU-
eligible wastes solely to aid program implementers in distinguishing
between wastes that are managed as a result of routine hazardous waste
management activities at a facility, and wastes that are managed for
implementing cleanup. Wastes from ongoing industrial operations include
wastes produced during commercial operations as well as any wastes that
are produced during management of such wastes. For example, hazardous
sludges that, in accordance with 40 CFR 268.4, must be removed at least
annually from operating hazardous waste surface impoundments are
considered wastes from ongoing industrial operations. They are not
considered wastes ``managed for implementing cleanup'' and thus are not
CAMU-eligible (65 FR 51085, August 22, 2000). However, as discussed in
the proposal, soil that becomes contaminated by releases (including
leachate) from operating hazardous waste units would be CAMU-eligible
when managed for implementing cleanup (65 FR 51085, August 22, 2000).
Similarly, soil or other materials contaminated by product spills
or releases from ongoing industrial processes are not considered as-
generated wastes and, as such, are CAMU-eligible when managed for
implementing cleanup. Note, however, that EPA fully expects--and
requires--facility owners/operators to avoid spills and unintended
releases of any sort. Also, facility owners and operators should note
that today's rulemaking provides that soils and other materials
contaminated by spills or releases--although generally within the
meaning of CAMU-eligible--might be disallowed from management in a CAMU
under the discretionary kickout provision. The discretionary kickout
provision is discussed later in today's rulemaking.
EPA specifically requested comment on whether including the
sentence ``[a]s-generated wastes (either hazardous or nonhazardous)
from ongoing industrial operations at a site are not CAMU-eligible
wastes' in the definition of CAMU-eligible waste might have unintended
consequences, for example, by eliminating actual or potential practices
where as-generated waste is appropriately placed in a CAMU as a
legitimate part of cleanup. In response to this request, one commenter
expressed the concern that the phrase ``generated from ongoing
industrial operations'' suggests a temporal condition that could be
interpreted to mean that only historical wastes are CAMU-eligible. For
example, this reading might preclude placement of materials
contaminated by spills from ongoing industrial processes in a CAMU. As
explained above, the Agency appreciates this concern and takes this
opportunity to state explicitly that CAMU-eligible waste is not limited
to historical waste or contamination. The Agency does not consider
cleanup of contaminated soils or similar materials to be an ongoing
industrial process--even if the contamination itself derives from
ongoing industrial processes. Thus, material contaminated by spills
from industrial processes would not be ``as-generated'' wastes from
these processes. When managed for

[[Page 2968]]

implementing cleanup, these materials are CAMU eligible.
Another commenter expressed a similar concern that the phrase
``from ongoing industrial operations'' could be read to preclude
management of historical wastes in a CAMU simply because the industrial
process that caused the wastes to be generated in the first instance
continues to operate. Many industrial facilities have industrial
operations that have been ongoing for a number of years. As this
commenter pointed out, management strategies for wastes generated by
these ongoing industrial operations typically have changed over time,
in part to respond to new regulatory requirements. For example, wastes
currently generated by an ongoing industrial operation might be sent
off site for RCRA Subtitle C disposal; these are clearly as-generated
waste. At the same time, wastes previously generated by this same
industrial operation might remain on site in solid waste management
units that are now subject to RCRA corrective action requirements. If
these solid waste management units require cleanup, wastes removed from
them during cleanup (and materials contaminated by releases from them)
would be CAMU eligible. This is because removal of the wastes would be
a remedial activity, rather than part of an ongoing industrial process.
3. Wastes Managed During Closure
In the proposal, the Agency clarified the circumstances under which
wastes associated with closure of land-based hazardous waste treatment,
storage or disposal units are ``managed for implementing cleanup'' and,
therefore, when they are eligible for placement in a CAMU. This
distinction is based primarily on a distinction between ``permanent''
and ``non-permanent'' land-based units.
Closure with waste in place is an option for permanent land-based
units, e.g., landfills, surface impoundments, and land treatment units.
Given the availability of the closure with waste-in-place option, EPA
considers closure by removal to be ``cleanup'' for such permanent land
disposal units. Therefore, wastes removed from closed or closing
permanent land-based units are considered wastes ``managed for
implementing cleanup'' and are CAMU eligible (65 FR 51086, August 22,
2000). As discussed in the proposal, ``closed or closing'' means units
that have received their final volume of wastes (65 FR 51086, August
22, 2000).\8\
---------------------------------------------------------------------------

\8\ As discussed in the proposal, the Agency believes the
ability to place such wastes in CAMUs will promote its objective of
encouraging the removal and/or treatment of wastes during closure of
RCRA units (65 FR 51086).
---------------------------------------------------------------------------

Conversely, non-permanent units, e.g., container and tank storage
units and waste piles, are not intended as the final resting place for
wastes. Rather, removal of waste from these units in general is part of
the normal course of operations. Therefore, EPA believes that,
typically, it is inappropriate to consider waste removed from non-
permanent units to be CAMU-eligible, because removal is part of the
operating life cycle of the unit (65 FR 51086, August 22, 2000).\9\
---------------------------------------------------------------------------

\9\ As discussed in the proposal, ``typically'' is intended to
indicate the Agency's ability, for example, at abandoned facilities,
to place waste found in old piles or similar units in a CAMU,
because once they are abandoned, management of wastes they contain
is for implementing cleanups. Note also that there is a distinction
between removal of waste from a closed or closing unit for placement
in a CAMU and incorporation of a unit into a CAMU. EPA's position
that wastes removed from non-permanent land-based units are
generally not CAMU-eligible does not preclude incorporation of such
units into a CAMU under appropriate circumstances. 40 CFR 552(b). As
with any other regulated unit that is incorporated into a CAMU, the
Subpart F, G and H requirements and the unit-specific requirements
of 40 CFR Part 264 or 265 that applied to the regulated unit will
continue to apply to that portion of the CAMU (i.e., the portion
encompassing the former regulated unit) after incorporation into the
CAMU. See, 40 CFR 264.552(b). Under Sec. 264.110 or Sec. 265.110,
however, the Regional Administrator may defer any of these standards
to the site's corrective action requirements, if certain conditions
are met (most importantly, the regulated unit is situated among
solid waste management units (or areas of concern), a release has
occurred, and the regulated unit and the solid waste management
units or areas of concern are likely to have contributed to the release).
---------------------------------------------------------------------------

Many commenters were concerned with EPA's position that wastes
associated with closure of waste piles and other non-permanent units
are generally not ``managed for implementing cleanup'' and would not be
CAMU-eligible. In particular, commenters disagreed with EPA's view that
waste piles and other units are ``non-permanent'' units. Commenters
pointed out that regulations at 40 CFR 264.197 and 40 CFR 265.197 (for
tank systems) and 40 CFR 264.258 and 40 CFR 265.258 (for waste piles)
require that when these units do not comply with secondary containment
and liner requirements, respectively, facility owners/operators must
prepare contingent plans to close these units as if they were hazardous
waste landfills. Also, for both tank systems and wastes piles, landfill
closure is required if, after a reasonable effort is made to meet the
clean-closure performance standard, an owner/operator demonstrates that
not all contaminated soils can be practicably removed or decontaminated.\10\
---------------------------------------------------------------------------

\10\ The regulations for tank systems at 40 CFR 264.197 and 40
CFR 265.197 require owners/operators to remove or decontaminate all
waste residues, contaminated containment system components (liners,
etc.), contaminated soils, and structures and equipment contaminated
with waste. If an owner/operator demonstrates that not all
contaminated soils can be practicably removed or decontaminated as
required, the owner/operator must close the tank system as a
landfill. The regulations for waste piles at 40 CFR 264.258 and 40
CFR 265.258 require owners/operators to remove or decontaminate all
waste residues, contaminated containment system components,
contaminated subsoils, and structures and equipment contaminated
with waste and leachate. If, after removing or decontaminating all
residues and making all reasonable efforts to effect removal or
decontamination of contaminated components, subsoils, structures,
and equipment as required, the owner/operator finds that not all
contaminated subsoils can be practicably removed or decontaminated,
the owner/operator must close the waste pile as a landfill.
---------------------------------------------------------------------------

EPA agrees that a clarification is warranted. The Agency recognizes
that waste piles and tank systems (or, more likely, environmental media
contaminated by releases from these units) may be closed as landfills
if it is not practicable to remove or decontaminate all contaminated
material during an attempt to achieve clean closure. The Agency does
not believe, however, that these circumstances justify a change to the
interpretation that, as a general matter, wastes removed from these
typically non-permanent units are not ``managed for implementing
cleanup'' and therefore are not CAMU-eligible.
As explained earlier as well as in the proposal, the Agency does
not typically consider waste removed from closing non-permanent land-
based units (such as waste piles) to be ``managed for implementing
cleanup,'' because removal of wastes from waste piles and other non-
permanent land-based units is a normal part of unit operation. (65 FR
51086, August 22, 2000.) These units are not intended as the final
resting place for wastes, and the existence of a regulatory option
allowing contamination to remain in the unexpected circumstance where
clean closure is not practicable does not alter this general
conclusion. However, the Agency does agree that when these units are
closed as landfills in situations where clean closure is not
practicable, they are the final resting place for the remaining wastes,
and any waste thereafter removed from them would be ``managed for
implementing cleanup'' and would therefore be CAMU eligible.\11\ Also,
as discussed earlier in

[[Page 2969]]

today's rulemaking, environmental media, such as soil, ground-water,
and debris contaminated by hazardous waste placed in waste piles or
other non-permanent land-based units generally are CAMU eligible.
Therefore, if contamination resulting from the release of waste from a
waste pile or tank system is cleaned up, either during closure or
otherwise, the contaminated material would generally be CAMU-eligible.\12\
---------------------------------------------------------------------------

\11\ Guidance on the clean closure standard is available in the
1998 guidance memorandum Risk-Based Clean Closure. See Elizabeth
Cotsworth to RCRA Senior Policy Advisors, Risk-Based Clean Closure,
March 16, 1998.
\12\ Also, as discussed earlier in today's rulemaking,
environmental media, such as soil, ground water, and debris
contaminated by hazardous waste managed in waste piles or other non-
permanent land-based units will generally be CAMU-eligible.
Therefore, if waste that has been released from a waste pile or tank
system is cleaned up, either during closure or otherwise, such waste
will generally be CAMU-eligible.
---------------------------------------------------------------------------

One commenter also requested the Agency's view on whether
miscellaneous units approved under the 40 CFR part 264, subpart X
provisions are considered permanent or non-permanent land-based units,
and therefore whether wastes from these units might be ``managed for
implementing cleanup.'' Given the diversity of units that may be
approved under the subpart X provisions, the Agency cannot offer a
generic answer. In general, the Agency expects the determination of
whether wastes from a subpart X miscellaneous unit are ``managed for
implementing cleanup'' will be made on a unit-specific basis,
considering the purpose of the unit (e.g., is it intended for permanent
disposal or will wastes be removed at closure?), the design and
operating standards applied to the unit at the time the unit was
permitted, and its similarity to conventional units. The Agency notes
that many subpart X units (e.g., drum crushers or vitrification plants)
are not land-based units and are more analogous to hazardous waste
tanks or incinerators. Wastes managed in such units generally would not
be CAMU eligible. If a subpart X unit were intended to be a final
disposal site for wastes (for example, as indicated in the unit closure
plan), it would likely be considered a permanent land-based unit.
Finally, the Agency reiterates the guidance offered in the proposal
on abandoned units. The Agency interprets today's rule to provide that
waste removed from abandoned land-based units, whether the units were
intended to be permanent or non-permanent, is waste ``managed for
implementing cleanup'' and is CAMU eligible (see, 65 FR 51086, August
22, 2000).
4. Wastes in Intact or Substantially Intact Containers, Tanks, or Other
Non-Land-Based Units (40 CFR 264.552(a)(1)(ii))
The Agency proposed to prohibit management in a CAMU of wastes
found during cleanup in intact or substantially intact containers,
tanks, or other non-land-based units, even if those wastes would
otherwise be within the meaning of CAMU-eligible (i.e., wastes managed
for implementing cleanup). ``Other non-land-based units'' include
intact or substantially intact non-land-based units that are not
``containers'' or ``tanks,'' but were designed to contain wastes (e.g.,
containment buildings under part 264, subpart DD, and part 265, subpart
DD). The Agency also proposed two exceptions to this general
prohibition. First, the Agency proposed to allow management in a CAMU
of wastes that are first placed in tanks, containers, or other non-
land-based units as part of cleanup. Second, the Agency proposed to
allow management in a CAMU of containers (even if they are
substantially intact) that are excavated during the course of cleanup.
The Agency did not receive any adverse comment on its general
exclusion of wastes in intact or substantially intact containers,
tanks, or other non-land-based units, or on the proposed exemption for
wastes first placed in tanks, containers or other non-land-based units as
a part of cleanup. The Agency is finalizing these provisions as proposed.
Most commenters also supported the proposed exemption to allow
placement in a CAMU of intact or substantially intact containers
excavated during cleanup. One commenter opposed this approach. After
evaluating these comments, the Agency has decided to promulgate the
exemption for intact or substantially intact containers as proposed, as
discussed below.
a. Intact and Substantially Intact Containers Excavated during Cleanup
Are CAMU-Eligible
In developing the proposed exemption allowing placement in a CAMU
of intact and substantially intact containers excavated during cleanup,
EPA reflected the concerns of many stakeholders that excluding buried
containers might create a disincentive to their excavation and would
raise practical implementation issues. While off-site management may be
chosen for these containers in many cases, in other cases (for example,
where the waste in intact containers differs little from other
remediation waste at the site, or where off-site management is
difficult to arrange for), it may be sensible for the Regional
Administrator to consider on-site treatment and disposal options chosen
as part of the CAMU process. As explained in the preamble to the
proposal, buried containers will typically be much more difficult to
assess and manage than those found above ground and could complicate,
and potentially slow cleanup, as well as possibly create an incentive
not to excavate the container in the first place (65 FR 51087, August
22, 2000). For these reasons, the Agency proposed to allow intact and
substantially intact containers (and the wastes they may contain)
excavated during cleanup to be placed in CAMUs. (Interpretations of
``intact,'' ``substantially intact,'' and ``excavated during cleanup''
are discussed below.)
Most commenters supported this approach. One commenter opposed the
approach, arguing generally that, if a container (or tank--see
discussion below) is excavated and it is intact, there is no reason
that the waste it contains should not be subject to normal RCRA
Subtitle C requirements and the waste should not be disposed of in a
CAMU. Focusing on tanks only, however, the commenter argued that
requiring RCRA Subtitle C management would not create an incentive to
leave buried tanks unexcavated on site (potentially to leak);
presumably, therefore, the commenter would also disagree with EPA that
excluding buried containers from CAMU eligibility might also act as a
disincentive to excavation. The commenter was also not persuaded by
EPA's concerns for practical issues of implementation, arguing that if
a container is still intact after excavation, it should be managed
under normal RCRA Subtitle C requirements.
As discussed in the proposal, the Agency agrees that, as a matter
of practice, site-specific remedy decisions will often include off-site
management under the RCRA Subtitle C requirements for intact containers
(and the wastes they may hold) excavated during cleanup (65 FR 51087,
August 22, 2000). EPA's analysis of CAMUs approved under the 1993 CAMU
rule shows no evidence that waste in intact containers has been placed
in CAMUs (65 FR 51086-51087, August 22, 2000 and CAMU Site Background
Document). The Agency, however, does not agree that it should
categorically exclude placement of intact containers in CAMUs.
First, EPA continues to believe that a blanket requirement
excluding ``substantially intact'' excavated containers from placement
in a CAMU could act as a disincentive for

[[Page 2970]]

excavation of the containers in the first place. Buried containers are
similar to other buried wastes in that facility owners/operators will
often be under no obligation to excavate them; if removal automatically
triggers RCRA Subtitle C land disposal restrictions, minimum technology
requirements, and similar obligations--because placement in a CAMU is
not allowed--the RCRA Subtitle C disincentives for excavation might be
considerable. EPA is concerned therefore, that prohibiting placement of
these wastes in a CAMU--regardless of the site-specific circumstances--
could discourage aggressive cleanups.
EPA also believes the commenter underestimates the practical
difficulties that could arise. As explained in the preamble to the
proposal, buried containers ``will typically be much more difficult to
assess and manage than those found above ground'' (65 FR 51087, August
22, 2000). For example, buried containers are more likely to be damaged
or deteriorating than containers stored above-ground (for example,
because of the burial process and conditions), and therefore questions
as to whether a container is or is not ``substantially intact'' are
much more likely to arise. EPA believes that attempts to resolve such
questions at a specific site might lead to fruitless argument, would
unnecessarily distract from the focus on the most effective remedial
strategies at the site, and therefore might delay cleanup. Furthermore,
as the commenter acknowledges, removal of ``intact'' containers may be
dangerous, or it may be technically challenging. In such cases, as
another commenter observed, the most prudent approach might be to
remove the container's contents and place them in a CAMU before
excavation of the container is attempted. Prohibiting placement of
wastes in ``intact'' containers in CAMUs could discourage this practice.
More generally, it will typically be easy for remediators to
identify and plan for intact containers that are on the surface before
a cleanup begins, while buried containers will often not be discovered
until an excavation is on-going. At that point, it will be potentially
much more disruptive to cleanups if operations have to stop for a
judgment on intactness and to arrange for off-site disposal. Yet this
process may be unnecessary (for example, where only a few containers
are involved and they contain the same waste that is being placed in
the CAMU).
For these reasons, EPA is finalizing the inclusion of intact and
substantially intact buried containers among CAMU-eligible wastes, as
proposed. By allowing intact and substantially intact containers (and
the wastes they may hold) that are excavated during cleanup to be
placed in CAMUs, the Agency believes it will reduce the likelihood that
the CAMU amendments would create disincentives to excavation of buried
containers and their contents. As discussed in the proposal, the Agency
is less concerned that these disincentives will be created for intact
or substantially intact above-ground containers, tanks or other non-
land-based units, because these units are much easier to assess and
manage in accordance with RCRA Subtitle C requirements for as-generated
wastes (65 FR 51087, August 22, 2000). For these reasons, the Agency is
finalizing the provisions allowing intact or substantially intact
containers excavated during cleanup to be placed in CAMUs as proposed.
b. Extension of Approach to Buried Containers to Include Buried Tanks
EPA specifically requested comment on whether the proposed
exemption for buried containers that are excavated during the course of
cleanup should also apply to buried tanks (65 FR 51087, August 22,
2000). The Agency received similar comments on the issue of allowing
placement in a CAMU of tanks excavated during cleanup as it did on the
exemption for containers excavated during cleanup: most commenters
supported CAMU eligibility for intact and substantially intact tanks
excavated during cleanup; one commenter opposed CAMU eligibility,
arguing that--if substantially intact--tanks (and the wastes they may
hold) are more appropriately managed under the RCRA Subtitle C
requirements for as-generated wastes.
After evaluating these comments, the Agency is persuaded by the
view of commenters that intact and substantially intact tanks excavated
during cleanup should be addressed in the same way as intact and
substantially intact containers excavated during cleanup.\13\ The
Agency has reached this conclusion based primarily on three
considerations. First, as with buried containers, facility owners/
operators will often have the option of leaving buried tanks in place
during a cleanup action. Therefore, as commenters pointed out, the
disincentives to excavation (or aggressive remediation) that
application of RCRA Subtitle C requirements for as-generated wastes can
impose on cleanup will apply to both buried tanks and buried
containers. As discussed throughout the proposal and today's
rulemaking, the primary purpose of CAMUs is to remove these
disincentives. Second, the same practical difficulties that apply to
excluding buried containers from CAMU-eligibility (discussed above)
apply equally to buried tanks. Third, as discussed in the proposal, it
could be difficult in burial situations to always distinguish between
tanks and containers--a point seconded by one set of commenters. In the
regulation of as-generated wastes, regulators and facility owners/
operators sometimes engage in lengthy discussions over whether a
particular storage unit is a ``tank'' or a ``container'; these
discussions could be considerably more complicated in the case of
excavated ``units'' containing wastes, particularly if the original
function or use of the unit is not clear (e.g., at the time it was
being used, was the unit ``portable''--making it a ``container'' under
Sec. 260.10--or ``stationary''--making it a ``tank''). Thus, extending
the container approach to tanks furthers EPA's objective of eliminating
from the cleanup context distinctions that serve a useful purpose for
management of as-generated hazardous waste, but that, in a cleanup
context, distract from the overall objective of achieving cleanups
without adding significant value.
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\13\ Note that products and waste in operating underground
storage tank systems would not be CAMU-eligible under today's
approach. This is because operating underground storage tank systems
are considered part of on-going industrial operations at a facility.
They are addressed by today's proposal in the same way as operating
waste piles and other non-permanent land-based units. That is, waste
removed from such systems is generally not considered waste managed
for implementing cleanup and is not CAMU-eligible. Environmental media
and debris contaminated by releases from such systems is, if excavated,
considered managed for implementing cleanup and is CAMU-eligible.
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Furthermore, as discussed in the proposal, any material found in
tanks (or containers) after excavation must meet the new CAMU treatment
requirements, ensuring that any principal hazardous constituents are
adequately treated so as to ensure protection of human health and the
environment (65 FR 51087, August 22, 2000). The CAMU treatment
requirements are discussed later in today's rulemaking.
c. Interpretations of ``Intact or Substantially Intact,'' ``Found
During Cleanup'' and ``Excavated During Cleanup''
Today's exemption from the prohibition on placement of containers
in CAMUs applies to ``intact or substantially intact'' tanks and
containers that are ``excavated during cleanup.'' ``Intact'' and
``substantially intact'' continue to have the meanings

[[Page 2971]]

discussed in the proposal. That is, intact or substantially intact
containers, tanks, and other non-land-based units can be removed
without likelihood of a significant release. Minor imperfections should
not prevent a unit from being considered ``intact'' (65 FR 51087, August
22, 2000). Commenters who addressed this issue supported this approach.
One commenter asked for clarification of the distinction between
the phrases ``found during cleanup'' and ``excavated during cleanup.''
As discussed in the proposal, ``found during cleanup'' refers to wastes
being addressed in the context of cleanup, as opposed to as-generated
wastes that may also be stored at a site undergoing cleanup. It is the
phrase ``excavated during cleanup,'' not the phrase ``found during
cleanup,'' that defines whether waste in a tank, container, or similar
unit is CAMU eligible. Waste ``found during cleanup'' might include
waste in intact and substantially intact containers, tanks, or similar
units that are above ground (e.g., in an old warehouse) as well as
wastes that are buried. Wastes in the above ground units would not be
CAMU eligible. Only the wastes in intact and substantially intact
containers, tanks, or similar units that were buried and are
``excavated during cleanup'' are CAMU eligible. ``Excavated'' is
intended to have its normal meaning of ``unearthed'' or ``dug up.''
d. Placement of ``Historic Wastes'' in CAMUs
In the proposal (65 FR 51087), the Agency also discussed the CAMU-
eligibility of historic wastes left onsite in units that arguably could
meet the definition of either a land-based unit or a ``tank.'' Under
today's rulemaking, as under the proposal, historic wastes would be
CAMU-eligible if they are found in a land-based unit and managed for
implementing cleanup. In the proposal, EPA identified wastes at
manufactured coal gas production facilities as an example of
``historic'' wastes (although the Agency also noted that these wastes
would not be hazardous under the TCLP). These facilities often have old
``gas holders'' that contain historic coal gas manufacturing wastes. In
most cases, such units would be considered land-based units under RCRA
(e.g., old building foundations, which are analogous to concrete
vaults), and the wastes would be CAMU-eligible. EPA is also aware that
some facilities have old units that have not been used in decades that
would arguably meet the definition of a tank, and therefore would
potentially not be CAMU-eligible. If such a unit were a tank and it was
buried, then it and the waste it contained would be CAMU-eligible. If
the ``historic'' tank were not buried, the rule requires that the
Regional Administrator determine whether it is intact or substantially
intact to decide whether the waste is CAMU-eligible. In some cases,
given the age, construction, and size of such units, the Agency
believes that it would be reasonable to assume that the units are not
substantially intact. As a result, waste removed from the units would
be CAMU-eligible (65 FR 51087, August 22, 2000). In other cases,
historic units would be considered land-based units under RCRA (e.g.,
old building foundations), and the waste would not be excluded from
CAMU eligibility. Commenters supported this approach.
5. Limited Use of Nonhazardous ``As-Generated'' Waste in CAMUs (40 CFR
264.552(a)(1)(iii))
EPA believes that, as a general matter, it is not appropriate to
manage as-generated waste in CAMUs. This longstanding position was
discussed in the preamble to the 1993 CAMU regulations (58 FR 8658 and
8664, February 16, 1993), in the proposal to this rulemaking (65 FR
51085 and 51086, August 22, 2000) and in the section on ``as-generated
vs. cleanup wastes'' above. At the same time, the Agency acknowledges
that there are accepted practices where nonhazardous as-generated
wastes are used in cleanup remedies. The new language on as-generated
waste added to the CAMU-eligible waste definition, however, would
expressly prohibit these practices in CAMUs. EPA proposed, therefore,
that Regional Administrators might allow placement of nonhazardous as-
generated cleanup waste in a CAMU when such waste is being used to
facilitate treatment or the performance of the CAMU. Commenters supported
this approach, and the Agency is finalizing this provision as proposed.
As discussed in the proposal, the Agency is aware of two common
practices that use nonhazardous as-generated wastes to facilitate
treatment of cleanup wastes or the performance of waste disposal units.
The first practice is to use fly ash or cement kiln dust (CKD) or
similar materials as stabilization agents to reduce leaching of metals
from metal-bearing wastes. The second practice is to use similar
agents, such as coal combustion wastes, to provide increased structural
stability for wastes, such as sludges, that do not have sufficient
strength to bear their own weight or the additional weight of a cap
without risk of failure. Such practices facilitate treatment or the
performance of the CAMU and are within the meaning of today's exemption
for placement of nonhazardous as-generated wastes.
EPA requested comment on whether Regional Administrators should
also have the discretion to allow placement of hazardous as-generated
waste in a CAMU if such placement would facilitate treatment or the
performance of the CAMU (65 FR 51086, August 22, 2000). Most commenters
did not address this issue. One commenter did suggest, however, that
Regional Administrators should have the discretion to allow such
placement. The commenter offered, as a hypothetical example, the
situation where the corrosive properties of an otherwise hazardous
waste might be useful in stabilizing other materials. EPA carefully
evaluated this comment. At this time, the Agency is not persuaded to
allow placement of hazardous as-generated waste in CAMUs. The Agency is
concerned that such an approach might weaken the distinction between
wastes generated from ongoing industrial operations and wastes managed
for implementing cleanup and does not believe the appropriateness of
such a provision has been demonstrated by one hypothetical example. At
the same time, EPA acknowledges that there may be individual cases
where placement of as-generated hazardous waste in a CAMU could safely
facilitate a remedy. If experience shows that the absolute prohibition
on placement of as-generated hazardous waste in CAMUs is
counterproductive, the Agency may revisit the issue in the future.
Although EPA is not allowing placement of hazardous as-generated
waste in CAMUs, the Agency--as commenters pointed out--has sought to
encourage the use of materials such as cement kiln dust and coal
combustion wastes to facilitate treatment or performance of disposal
units, and it would consider these to be legitimate uses of such
secondary materials. Their use in a CAMU would be allowed.

C. Discretionary Kickout (40 CFR 264.552(a)(2))

The RCRA Subtitle C regulations ensure that hazardous wastes are
handled according to stringent national standards. As discussed in the
1993 CAMU rule and in the proposal to today's rulemaking, these
requirements, when applied to existing contamination problems, can
provide a strong incentive for leaving wastes in place or for selecting
remedial approaches that minimize regulation under RCRA Subtitle C. In
the 1993 CAMU rule and

[[Page 2972]]

in these amendments, EPA's primary purpose is to provide appropriate
opportunities to tailor the RCRA Subtitle C standards to provide better
incentives to manage hazardous wastes during cleanup. At the same time,
EPA does not want the CAMU regulations to reward facility owners for
non-compliance with applicable RCRA Subtitle C requirements for as-
generated wastes.
All facility owners/operators are legally obligated to make
themselves aware of and comply with applicable RCRA Subtitle C
requirements. To ensure that the CAMU rules do not create any incentive
to mismanage as-generated wastes (e.g., to create a remediation waste
eligible for management in a CAMU), or do not reward past non-
compliance, EPA proposed that a Regional Administrator might disallow
the management of CAMU-eligible waste in a CAMU where he or she has or
receives information that such wastes have not been managed in
compliance with applicable land disposal treatment standards of 40 CFR
part 268, or applicable 40 CFR part 264 or part 265 unit design
requirements, or that noncompliance with other applicable RCRA
requirements likely contributed to the release of the waste. This is
referred to as the ``discretionary kickout'' provision.
EPA received numerous comments on the discretionary kickout
provision. Some commenters strongly supported the provision and thought
it should be expanded. Other commenters questioned the need for the
provision at all and expressed concern over how the provision might be
implemented. As discussed below, EPA was not persuaded that the scope
of the discretionary kickout provision should be expanded or reduced.
The Agency continues to believe that the discretionary kickout
provision strikes a reasonable balance between facilitating cleanups
through CAMUs and ensuring that facility owners are not rewarded for
improper waste management. EPA, therefore, is finalizing the
discretionary kickout provision as proposed, and as discussed below.
As mentioned above, several commenters strongly supported the
discretionary kickout provision and thought it should be expanded. One
group of commenters suggested that the discretionary kickout should
generally be applied to wastes previously managed in violation of major
RCRA requirements and ideally should be made mandatory at least with
respect to the non-complying owner/operator and affiliated parties.
Similarly, other commenters argued that the discretionary kickout
provision should be expanded to give Regional Administrators the
discretion to exclude CAMU-eligible wastes from management in a CAMU
under circumstances other than those outlined in the proposal in order
to support more stringent state requirements and state risk-based
cleanup evaluations.
The Agency carefully evaluated these comments. As discussed in the
proposal, EPA wants to be sure that the CAMU regulations do not create
incentives for noncompliance, whether the noncompliance is intentional
to take advantage of the CAMU rule requirements or is the result of
careless management practices (65 FR 51088, August 22, 2000). The
Agency also believes that it will generally be most appropriate to
apply the discretionary kickout to owners/operators (or affiliated
parties) who are responsible for acts of noncompliance rather than
subsequent owners/operators or government agencies conducting the
cleanup.\14\
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\14\ Indeed, as discussed in the proposal, EPA generally would
not exercise its discretion to disallow placement of CAMU-eligible
wastes in a CAMU when the entity applying for the CAMU is not the
same as or affiliated with the entity that mishandled the waste (65
FR 51089, August 22, 2000).
---------------------------------------------------------------------------

The Agency is not, however, persuaded that the discretionary
kickout provision should be made mandatory with respect to such owner/
operators. The circumstances where noncompliance may have led to a
release will be varied, and EPA believes it would be a mistake to
automatically eliminate the possibility of a CAMU in such cases, even
where the entity conducting the cleanup is responsible for the original
noncompliance. In many cases, CAMUs may allow remedial alternatives
that all parties agree are most appropriate for a site--for example,
they might facilitate a treatment alternative where, without a CAMU,
the most likely alternative might be capping in place without
treatment. In other cases, a compromise remedial alternative
established through a CAMU might allow a protective remedy to move
forward promptly, avoiding years of contention and litigation. Finally,
EPA believes that making the discretionary kickout mandatory would
inevitably move discussions about CAMUs away from the question of what
type of remedy is most appropriate for a site and toward questions
surrounding the exact set of circumstances of past waste disposal and
management, whether specific management practices did or did not
involve a violation, and whether a release occurred as a result of past
management before or after the present owner held the property. In
other words, it might undercut the objectives of developing protective
remedies and avoiding wasteful disputes over ancillary issues. In such
cases, action on a CAMU (and more broadly on a cleanup) might be put on
hold until all these issues were resolved.
EPA remains convinced that the discretionary kickout provision will
be an important tool, especially where violations are clear, or there
are indications of intentional noncompliance. However, for the reasons
discussed above, the Agency has determined that making the
discretionary kickout mandatory--and thereby removing any discretion
from overseeing agencies--would be counterproductive by increasing the
transaction costs associated with CAMUs, resulting in the potential
delay of cleanups, and, in some cases, precluding the most effective
remedy for a site. Instead, the Agency continues to believe that the
Regional Administrator should have the flexibility to consider both the
significance of the violation at issue and other site-specific factors
(see discussion of site-specific factors, below) when making a
determination as to whether to exercise the discretionary kickout provision.
The Agency is also not persuaded that the language of the
discretionary kickout provision needs to be changed in order to
accommodate more stringent state approaches. Under RCRA section 3009,
states are not restricted from establishing state regulations that are
more stringent than the federal RCRA Subtitle C regulations. This would
include state provisions to restrict additional wastes from being
placed in CAMUs and provisions to establish additional circumstances
under which wastes that would otherwise be CAMU-eligible may not be
placed in a CAMU.
Other commenters questioned the need for the discretionary kickout
provision and expressed concern over its implementation. One group of
commenters expressed the view that the discretionary kickout provision
could have untoward effects on cleanups, and that other mechanisms and
incentives exist that would adequately promote compliance with RCRA
Subtitle C standards (e.g., enforcement action against the violations).
This group also suggested that if the discretionary kickout provision
is retained: (1) It should be limited in all cases to situations where
noncompliance ``likely contributed to the release of the waste'' and,
in the case of LDR requirements, it should be limited to instances of

[[Page 2973]]

noncompliance with the prohibition against actual land disposal without
required treatment (i.e., not to the other related requirements of 40
CFR part 268); (2) the Agency should designate additional illustrative
factors that Regional Administrators should consider when deciding
whether to exercise the kickout, including ``(i) whether the violation
was a substantial factor that likely contributed to the release of the
waste, (ii) the impact or likely impact of the release in comparison to
other releases that may have contributed to the need for cleanup, and
(iii) whether the violation was intentional;'' and (3) the Agency
should establish a fair and responsible process to ensure that
discretionary kickout decisions are properly made by overseeing agencies.
The Agency understands that most facility owners/operators are
conscientious and are making their best efforts to understand and
comply with applicable environmental requirements; however, the Agency
is not persuaded that the discretionary kickout provision should be
eliminated on that basis. EPA agrees that other mechanisms--e.g.,
enforcement mechanisms--also promote compliance, but the Agency
continues to believe that the discretionary kickout provision is
important to ensure that facilities do not benefit inappropriately from
non-compliance. As discussed above, the Agency continues to believe
that the discretionary kickout provision represents a reasonable
balance between facilitating cleanups with CAMUs and maintaining
incentives for waste minimization and proper waste management in the
first instance. The discretionary kickout provision will play an
important role in maintaining that balance because it provides a
significant incentive to owners/operators to manage as-generated
hazardous waste properly. A facility owner/operator who understands
that the Regional Administrator may deny, at his or her discretion,
placement of otherwise CAMU-eligible waste in a CAMU based on relevant
noncompliance may focus more closely on safe management of the waste in
the first place.
The Agency is also not persuaded that the discretionary kickout
provision should be changed to limit its application, in the case of
LDRs and design standards, to situations where the noncompliance
``specifically contributed to the release of the wastes.'' As discussed
in the proposal, the Agency singled out LDRs and unit design
requirements in the discretionary kickout provision because they are
fundamental RCRA Subtitle C requirements aimed at preventing or
minimizing releases of hazardous waste (65 FR 51088, August 22, 2000).
They are also provisions from which CAMUs may provide relief. EPA
appreciates that commenters would prefer for the Agency to place less
importance on violations of these key requirements, but commenters
failed to address EPA's underlying assumption--that substantive
violations of LDRs and unit design standards are the kinds of RCRA
violations that are likely to lead to environmental contamination--and
therefore the Agency is unpersuaded by their argument that the rule
should not single out these requirements as a basis for the Regional
Administrator to exercise the discretionary kickout.
EPA believes that it has already at least partially addressed the
commenter's concern that the discretionary kickout provision would be
exercised for non-germane violations of the land disposal restrictions
or minimum technology requirements. The discretionary kickout
provision, as written, focuses on the substantive requirements of the
LDRs and unit design standards. The Agency notes that it specifically
highlighted in the proposal that ``unit design requirements'' refers to
substantive design standards, such as the tank design standards under
40 CFR 264.192 or the design requirements for waste piles under 40 CFR
264.251 and that maintenance requirements, such as the requirements
that owners/operators inspect tanks under 40 CFR 264.195, are not
``unit design requirements'' and thus would be addressed under the
phrase ``or that non-compliance with the other applicable RCRA
requirements likely contributed to the release of the waste.'' (65 FR
51088, August 22, 2000) Similarly, the element of the discretionary
kickout provision related to the LDR requirements is limited, as
proposed, to noncompliance with applicable ``land disposal treatment
standards'' (emphasis added). The Agency believes that this clearly
refers to land disposal without required treatment. Therefore, EPA has
already focused the discretionary kickout provision on the aspects of
LDR requirements and unit design standards that are most likely to be
related to environmental releases.
The Agency does believe that it is reasonable to expect the
Regional Administrator to consider a number of factors when making
decisions about whether and how to apply the discretionary kickout
provision. As discussed in the proposal, the Agency emphasizes that it
does not intend to exercise its discretionary kickout authority in
every instance of noncompliance with LDR treatment requirements or
substantive unit design requirements. The Agency expects the Regional
Administrator to consider, as appropriate, the significance of the
violation at issue, whether it was intentional,\15\ facility owner/
operator has a history of violations, the extent to which it likely
contributed to the release of the waste, and the likely management
approach for waste excluded from placement in a CAMU, among other
factors, when applying the discretionary kickout provision.
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\15\ This is not to say, of course, that an intent to violate
RCRA has to be present where the kickout is exercised. As EPA stated
in the preamble to the proposed rule, ``EPA does not want the CAMU
to create any incentives for non-compliance, whether intentional to
take advantage of alternate requirements in the CAMU rule, or as
result of careless management practices (which could, by example,
thereby encourage others to ignore applicable requirements.'' 65 FR
51088. EPA does believe, however, that intent may be an issue
appropriate for the RA to take into account when deciding whether to
exercise the kickout (for example, in a situation where the facility
intentionally mismanaged waste to take advantage of the flexibility
in the CAMU rule).
---------------------------------------------------------------------------

The Agency also agrees that a fair and responsible process should
be used to make decisions about applying the discretionary kickout
provision; however, the Agency does not agree that it is necessary to
include a specific process in today's rulemaking. Decisions to apply
the discretionary kickout provision will be made in the context of CAMU
approvals, using the CAMU approval process, which relies on existing
administrative procedures (e.g., permitting procedures) augmented by
CAMU-specific requirements (i.e., public notice and opportunity for
comment, as discussed later in today's rulemaking) to review and make
decisions about CAMU applications. Therefore, decisions about application
of the discretionary kickout provision are subject to review in
accordance with available administrative and judicial review procedures.

D. Information Submission (40 CFR 264.552(d))

To implement the more specific requirements for identifying wastes
eligible for management in a CAMU (discussed above), EPA also proposed
to define more specifically the types of information that owners/
operators must submit to enable the Regional Administrator to designate
a CAMU. For wastes proposed for placement in a CAMU, the Agency
proposed that owners/operators must submit information, unless not
reasonably available, on (1) the origin of the waste and how it was
subsequently managed

[[Page 2974]]

(including a description of the timing and circumstances surrounding
the disposal and/or release), (2) whether the waste was listed or
identified as hazardous at the time of disposal and/or release, and (3)
whether the waste was subject to the land disposal requirements of 40
CFR part 268 at the time of disposal and/or release.
In addition to general comments on the information requirements,
the Agency specifically requested comment on an alternative approach to
information on LDRs. Specifically, the Agency asked whether it should
require facility owners/operators to submit information on whether
``the disposal and/or release of the waste occurred before or after the
LDR requirements of part 268 of this chapter were in effect for the
associated listing'' rather than whether wastes were ``subject to the
land disposal restriction requirements.''
The Agency is promulgating the information requirement on waste
origin and management, the information requirement on whether wastes
were listed or identified as hazardous at the time of disposal and/or
release, and the standard that information be provided ``unless not
reasonably available'' as proposed. EPA received considerable comment
on the ``reasonably available'' standard. These comments are discussed
later in this section. EPA did not receive comments specifically on the
other two terms. After evaluating comments received on the issue, the
Agency has chosen to finalize its alternative approach to the
information requirement on LDR requirements, as discussed below.
The Agency believes that requiring facility owner/operators to
submit factual information on the dates of waste disposal and/or
release relative to the effective dates of LDR requirements will be
more efficient than expecting owners/operators to make determinations
of whether wastes were ``subject to'' LDR requirements. Determinations
of whether wastes are ``subject to'' LDR requirements can be complex
(for example, as one commenter pointed out, the question might arise as
to whether a waste was ``prohibited'' or ``restricted'' under the land
disposal restrictions, and it was not clear how a facility owner should
answer the ``subject to'' question based on the answer). In contrast,
facility owners/operators can easily compare the timing of waste
disposal/release to the effective dates for LDR requirements (these
effective dates are published by the Agency in 40 CFR part 268,
Appendix VII--Effective Dates of Surface Disposal Wastes Regulated in
the LDRs) and, using this information, the Agency can make any
necessary judgments about whether wastes were subject to LDR
requirements at the time of disposal or release. Commenters who
addressed this issue supported the alternate approach to providing
information on LDRs.
In finalizing the alternate approach to information on LDRs, EPA is
making a minor clarifying change to the language discussed in the
proposal. The alternative language for 40 CFR 264.552(d)(2) discussed
in the proposal would have required facility owners/operators to
provide information on whether ``the disposal and/or release of the
waste occurred before or after the land disposal restriction
requirements of part 268 of this chapter were in effect for the
associated listing'' (emphasis added). By referring explicitly to ``the
associated listing,'' this language does not address information
requirements for characteristic wastes (although, obviously, for
characteristic waste, EPA would expect information on the timing of the
disposal and/or release compared to the effective date of the LDRs for
the associated characteristic). To address this imprecision, EPA has
revised the language of the final regulation so that it clearly covers
both listed and characteristic wastes. Under the new language, facility
owners/operators must submit information (unless not reasonably
available) on whether ``the disposal and/or release * * * occurred
before or after the land disposal restrictions * * * were in effect for
the waste listing or characteristic'' (emphasis added).
The specific information now required under 40 CFR 264.552(d)(1)
though (3) covers the circumstances surrounding the origin and
subsequent management of wastes proposed for placement in CAMUs. The
information required (unless not reasonably available) under 40 CFR
264.552(d)(1) covers waste origins and past management because that is
the information the Agency needs to distinguish between as-generated
and cleanup wastes and, thus, to make decisions about CAMU eligibility.
The Regional Administrator would use this information for the purposes
of deciding whether the waste is CAMU-eligible, including whether such
waste is one for which kickout should be considered. The information
required (unless not reasonably available) under 40 CFR 264.552(d)(2)
and (3) speaks to whether wastes proposed for placement in a CAMU were
subject to RCRA Subtitle C requirements and whether one key
requirement--the land disposal restrictions--was in effect at the time
of release or disposal. The Agency will use this information to make
decisions about whether, because of previous mismanagement, the
discretionary kickout provision should be considered.
The Agency emphasizes that the purpose of the new information
submission requirements is to give Regional Administrators and the
public information necessary for these specific decisions. Given the
importance of restricting CAMUs to management of legitimately CAMU-
eligible waste and the need for overseeing agencies to properly
exercise the discretionary kickout provision, this information is
important. At the same time, the Agency expects that information
collection will be focused on what is needed to allow informed
decisions to be made and will avoid the collection of unnecessary
information. This is consistent with the Agency's general guidance on
collection of information in cleanup situations. (See, e.g., 61 FR
19944, May 1, 1996, where EPA observed that ``poorly focused
investigations can become a drain on time and resources and, in some
cases, unnecessarily delay remedial actions'' and encouraged program
implementers and facility owners/operators to use a variety of
mechanisms to focus site investigation activities.)
EPA emphasizes that, in general, facility owners/operators will
already have the information required by 40 CFR 264.552(d)(1) through
(3) prior to requesting approval of a CAMU. Where a CAMU is proposed
for a RCRA treatment, storage or disposal facility, information on the
origin and historical management of wastes, and on the sources and
causes of contamination, will routinely be available in permit
applications, RCRA Facility Assessments, and RCRA Facility
Investigations. This information can also be found in similar documents
prepared under other cleanup programs (e.g., preliminary assessments
and site investigations under the federal Superfund program or remedial
assessments under state programs). Other cleanup documents, such as
remedial work plans, engineering reports, and analyses of remedial
alternatives, also typically include information about the waste origin
and historical management. Therefore, EPA does not believe that
providing this information will be burdensome or will require a special
exercise in information development. Commenters agreed.
As discussed in the proposal, if information meeting the
requirements of 40 CFR 264.552(d)(1) through (3) has been submitted to
the Agency in the past and it remains timely and accurate, owners/
operators can simply identify

[[Page 2975]]

the information in this past submittal. EPA generally would not expect
owners/operators to resubmit information that has been provided
previously (65 FR 51089, August 22, 2000). Where information required
under 40 CFR 264.552(e)(1) through (3) is not reasonably available,
facility owners/operators can fulfill these requirements by informing
EPA of the extent of their knowledge about waste origin and history.
(See discussion of the ``reasonably available'' standard, below.) As
discussed in the proposal, EPA recognizes that there will be situations
where information on the origins of contamination or the past
management of waste will simply not be reasonably available. For
example, there will be situations where contamination cannot be linked
with specific waste management activities historically associated with
a facility (e.g., characteristically hazardous soil not associated with
any hazardous waste management unit). In such cases, facility owners/
operators must provide what they know. If the information required by
40 CFR 264.552(d)(1) through (3) is not reasonably available, they are
not required to submit it (see discussion at 65 FR 51090, August 22, 2000).
Also as discussed in the proposal, when information submitted in
response to the requirements of 40 CFR 264.552(d)(1) through (3) is
already in the Agency's possession, or information brought to the
Regional Administrator's attention by citizens raises significant
concerns about waste eligibility or past waste management practices,
the Agency expects the Regional Administrator should, where
appropriate, seek additional, reasonably available, information
regarding waste history beyond that initially submitted pursuant to
Sec. 264.552(d), in order to make properly informed decisions about
CAMU eligibility and the use of the discretionary kickout provision (65
FR 51090, August 22, 2000). Facility owners/operators and overseeing
agencies often engage in a series of back-and-forth discussions,
information exchanges, and requests for additional information
throughout the CAMU-application process. While sometimes necessary,
these exchanges, of course, should be focused on the information needed
for the decision at hand (e.g., for decisions about whether waste is
CAMU eligible) and should avoid the collection of information not
necessary to inform or support the decision in question.
1. ``Unless Not Reasonably Available'' Standard
As explained above, the information specified in 40 CFR 264.552(1)
through (3) is required ``unless not reasonably available.'' Under this
standard facility owners/operators must make a good faith effort to
gather and provide information meeting the requirements. Also as
explained above, the Agency believes that most owners/operators will
already have the information required by 40 CFR 264.552(d)(1) through
(3) as part of their general facility records or in site investigation
reports, cleanup work plans, and other documents. In instances where
this is not the case, the Agency expects that facility owners/operators
will be able to gather the information from existing site- and waste-
specific records. As discussed in the 1998 Phase IV LDR rule
establishing treatment standards for contaminated soil, such site- and
waste-specific records generally include manifests; vouchers; bills of
lading; sales and inventory records; sampling and analysis reports;
accident, spill investigation, and inspection reports; enforcement
orders; and permits (63 FR 28619, May 26, 1998). Relevant information
might also be obtained by talking with current and, in some cases,
former employees, particularly where written documentation is absent.
The Agency received a number of comments on the ``reasonably
available'' standard. In particular, some commenters were concerned
with EPA's reference, in the proposal, to discussions with former
employees (65 FR 51090, August 22, 2000). These commenters were
concerned that the Agency might expect all facility owners/operators to
interview former employees as part of a good faith effort to meet the
``reasonably available'' standard and that this expectation was not, in
fact, reasonable. The Agency does not expect facility owners/operators
to have to interview former employees in order to meet the ``reasonably
available'' standard, except in unusual circumstances. The Agency also
agrees with commenters that, in general, it is not reasonable to expect
facility owners/operators routinely to contact former employees who
might have knowledge relevant to meeting the new information submission
requirements, solely to meet these requirements. Rather, the Agency
expects that contacting former employees will likely not be necessary,
because, as discussed above, facility owners/operators will already
have information sufficient to meet the 40 CFR 264.552(d)(1) through
(3) requirements. Where that is not the case, contact with former
employees themselves would be subject to the same ``reasonably
available'' standard. As discussed above, if the information required
by 40 CFR 264.552(1) through (3) is not reasonably available, facility
owners/operators do not have to provide it. At the same time, the
Agency rejects the notion that it is categorically ``not reasonable''
to contact former employees. For example, it might be reasonable in a
particular case for a facility owner/operator to contact a former plant
environmental manager with a known address (or one that can be readily
located) if that person had information about waste origin or past
management that was not readily available through other means.
In response to one commenter, EPA also clarifies that, when the
Agency asks for additional information under Sec. 264.552(1)-(3),
beyond what was submitted in a facility's initial CAMU application, the
request would be limited to information that is ``reasonably
available.'' In other words, EPA's authority would be limited to the
same standard that pertains to information in the original submission.
2. Application of New CAMU Information Submission Requirements to P-
and U-Listed Wastes
In the proposal, the Agency clarified application of the new, more
specific information requirements in 40 CFR 264.552(d) to commercial
chemical products. Because there is often the potential for confusion
around commercial chemical products and because, as discussed above,
EPA is promulgating the alternate approach to information on LDRs, the
Agency discusses the issue again here. For commercial chemical
products, 40 CFR 264.552(d)(2) requires that facility owners state
whether the listing associated with the commercial chemical product was
in effect at the time the commercial chemical product was disposed of
or released. EPA has changed the language from the proposal (as
discussed above), so the discussion of previous language dealing with
commercial chemical products in the proposal preamble (65 FR 51090) is
no longer relevant. Under the approach to 40 CFR 264.552(d)(3)
promulgated today, for commercial chemical products facility owners/
operators must indicate whether the disposal or release took place
before or after the effective date of the prohibition for the relevant
P or U listing.\16\
---------------------------------------------------------------------------

\16\ As explained in the proposal, commercial chemical products
are not ``wastes'' until they are discarded or intended to be
discarded by being abandoned (or used as fuels or in a manner
constituting disposal when these are not their normal manner of
use). 40 CFR 261.33. Therefore the associated LDR requirement would
not apply to the product as it was spilled, even if it was spilled
after the effective date of the LDR prohibition. Thus, the spill
would not constitute a land ban violation triggering consideration
of the discretionary kickout provision. For the sake of consistency,
however, EPA concludes that it will be easier for facility owners/
operators to indicate (if the information is reasonably available)
whether a release of a commercial chemical product occurred before
or after the date of the land disposal prohibition for the relevant
P or U listing.

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[[Page 2976]]

3. Interpretation of General CAMU Information Submission Performance
Standard
The more specific information requirements promulgated today do not
eliminate the general information submission performance standard
established in the 1993 CAMU rule. Under the general performance
standard, owners/operators must provide information sufficient to
enable Regional Administrators to designate CAMUs ``in accordance with
the criteria in 40 CFR 264.552.'' As discussed in the proposal, despite
the Agency's use of the term ``criteria'' to refer to the requirements
in 40 CFR 264.552(c) in the preamble to the 1993 CAMU rule (58 FR 8671,
February 16, 1993), EPA interprets the general information performance
standard to require information relating to all aspects of
implementation of the CAMU regulations (65 FR 51090, August 22, 2000).
This includes, for example, implementation factors that are not
specifically referenced in 40 CFR 264.552(c), such as information
relating to the inclusion of a regulated unit in a CAMU under 40 CFR
264.552(b).

E. Liquids in CAMUs (40 CFR 264.552(a)(3))

EPA proposed a general prohibition against the placement of liquids
in CAMUs, with an exception allowing placement of liquids when they
facilitate the remedy selected for the waste being managed in the CAMU.
As discussed in the proposal, EPA believes that the general basis for
prohibiting the placement of liquids in landfills--that liquids
fundamentally increase the risk of future releases from the landfill--
also applies to CAMUs. The Agency does not believe that, in general,
placement of liquids enhances the performance of long-term disposal
units (65 FR 51091, August 22, 2000). Commenters generally supported
this approach, and the Agency is promulgating these provisions as proposed.
EPA is promulgating four provisions related to the placement of
liquids in CAMUs. First, at 40 CFR 264.552(a)(3)(i), the Agency
prohibits the placement of bulk or non-containerized liquid hazardous
waste or free liquids contained in hazardous waste (whether or not
sorbents have been added) in any CAMU except where placement of such
wastes facilitates the remedy selected for the waste. Second, at 40 CFR
264.552(a)(3)(ii), EPA prohibits placement of containers holding free
liquids in CAMUs, unless such placement facilitates the remedy selected
for the waste.
Third, at 40 CFR 264.552(a)(3)(iii), EPA prohibits placement of any
liquid that is not a hazardous waste in a CAMU unless such placement
facilitates the remedy selected for the waste or a demonstration is
made pursuant to 40 CFR 264.314(f). Under this demonstration, the
Regional Administrator must determine that the only reasonable
alternative to placement in a CAMU is placement in a landfill or
unlined surface impoundment that contains (or may be reasonably
anticipated to contain) hazardous waste and that placement in a CAMU
will not present a risk of contamination of any underground source of
drinking water, as defined in 40 CFR 144.3. Fourth, EPA specifies that
the absence or presence of free liquids in either a containerized or a
bulk waste must be determined in accordance with 40 CFR 264.314(c) and
that sorbents used to treat free liquids in CAMUs must meet the
requirements of 40 CFR 264.314(e).
These changes essentially extend the prohibitions currently in
place on placement of liquids in hazardous waste landfills to CAMUs,
with the exception that placement of liquids in CAMUs is allowed if it
facilitates the remedy for the waste being managed in a CAMU. As
discussed in the proposal, the Agency took this approach for two
reasons. First, the general basis for prohibiting placement of liquids
in hazardous waste landfills--that liquids fundamentally increase the
risk of future releases from the landfill--generally applies to CAMUs.
Therefore, the prohibitions on placement of liquids in hazardous waste
landfills should apply equally to CAMUs. Second, unlike hazardous waste
landfills, which are used for permanent disposal, CAMUs are used to
implement a range of remedies, including treatment remedies (65 FR
51091, August 22, 2000). In some cases, remedies may involve placement
of liquid CAMU-eligible waste for treatment or other management in a
CAMU (e.g., dewatering of CAMU-eligible wastes containing liquids or
placement of hazardous ground water in CAMU for infiltration); in other
cases, placement of liquids in a CAMU may promote the remedy for non-
liquid CAMU-eligible wastes (e.g., when liquids are used for soil
washing or to promote certain types of bioremediation). To ensure that
these legitimate remedial practices could continue, EPA proposed (and
is today finalizing) an exemption to the general prohibition on
placement of liquids in CAMUs when such placement facilitates the remedy.
Commenters supported the general prohibition on placement of
liquids in CAMUs and the exemption for placement of liquids when such
placement would facilitate the remedy, and the Agency is finalizing
these provisions as proposed.
In the proposal (65 FR 51091), EPA specifically identified the use
of water or leachate for dust suppression while a CAMU is under
construction or operating as a reasonable cleanup waste management
approach, allowable as facilitating ``the remedy selected for the
waste.'' One commenter expressed concern that the regulatory standard,
in fact, would not cover this situation. The commenter requested that
EPA amend the proposed language so that it allowed placement of liquids
where they facilitate ``the performance of the CAMU'' as well as ``the
remedy selected for the waste.'' EPA appreciates the commenter's
concern, but it does not believe a regulatory change is necessary. In
EPA's view, if placement of a liquid facilitates the performance of a
CAMU used to manage the waste as part of a cleanup remedy, then clearly
it also facilities the remedy selected for the waste.
EPA also recognizes that it may have confused the issue by
identifying dust suppression as a use of liquids that would not be
subject to the liquids prohibition, because it would facilitate the
performance of the remedy. In fact, EPA would not consider use of non-
hazardous liquids for dust suppression or similar purposes to be
subject to the prohibition in the first place. EPA has long maintained
that use of nonhazardous liquids in landfills for dust suppression,
watering vegetative caps, and similar purposes is not prohibited by the
statutory or regulatory prohibition of liquids in landfills. Because
the standard promulgated today simply repeats the statutory prohibition
on nonhazardous liquid (with the added condition that placement of
liquids would be allowed if it ``facilitates the remedy for the
waste''), it similarly

[[Page 2977]]

allows application of nonhazardous liquid wastes for such uses.\17\
---------------------------------------------------------------------------

\17\ See, e.g., the April 30, 1986 guidance, ``Restrictions on
Placement on Nonhazardous Liquids in Hazardous Waste Landfills''
OSWER Directive 9487.01-1A(85), in which EPA states, ``uses of
nonhazardous liquids that are necessary to meet other regulatory or
safety requirements, including EPA-approved corrective actions are
not considered to be subject to the restrictions under RCRA section
3004(c)(3). . . . For this reason, uses such as the following should
not be subject to the restrictions under section 3004(c)(3): dust
suppression, fire fighting, intermittent watering of vegetative
cover, moistening of a clay cap to prevent cracking or offgassing,
washing of landfill equipment, and herbicide or pesticide treatment
to control certain organisms that could break a cap or liner. In
addition, EPA believes that the use of liquids for approved
corrective action purposes (e.g., landfill washing or soil flushing
to reduce hazardous waste concentrations) does not require an owner
or operator to apply for an exemption under section 3004(c)(3).''
---------------------------------------------------------------------------

F. Design Standards for CAMUs

Today EPA is finalizing, essentially as proposed, three amendments
to the design standards for CAMUs in which wastes will remain in place
after closure. First, owners/operators must meet minimum liner
requirements for new, replacement, or laterally expanded CAMUs. Second,
owners/operators must meet minimum design criteria for CAMU caps.
Third, owners/operators must notify and take corrective action, as
necessary to protect human health and the environment, for any releases
from CAMUs to ground water. Today's amendments also establish
opportunities for owners/operators to propose, and Regional
Administrators to approve, alternate liner and cap designs to
accommodate site- and waste-specific circumstances.
EPA proposed these additional design standards as reasonable for
CAMUs in which wastes will remain in place after closure and are
appropriately consistent with current standards for the design,
operation, and closure of other units used for long-term disposal.
Given the site-specific nature of cleanups and the need to maintain the
incentives for remediation that the CAMU rule provides, the Agency also
proposed to allow alternate liner and cap designs, under certain
circumstances (65 FR 51091-51095, August 22, 2000).
Comments on the proposal to make the CAMU design standards more
specific were mixed. Some commenters supported the new design
standards. A number of commenters opposed the Agency's decision to
develop minimum national design standards for CAMUs. These commenters
suggested that the new minimum national design standards would slow
future cleanups using CAMUs or would lead owners/operators to cap
cleanup wastes in place rather than pursue more aggressive remediation.
Some commenters suggested that EPA abandon the minimum design standards
for CAMUs altogether, or express the standards as guidance rather than
in regulation. Others suggested that standards for CAMU design should
be modeled after the risk reduction goals of the National Contingency
Plan or otherwise based on a risk management finding.
As discussed throughout the proposal and today's rulemaking, EPA is
attempting in these amendments to strike a reasonable balance between
predictability in CAMU design and operation and flexibility to use
CAMUs over a range of site- and waste-specific conditions. EPA believes
that appropriate minimum national design standards are a key element of
this balance.
The Agency is not persuaded that minimum national design standards
will significantly affect the kinds of remedies selected at cleanup
sites (since CAMUs approved to date generally meet these standards).
Furthermore, EPA does not have evidence (and commenters did not provide
specific evidence) that today's rule would increase the likelihood that
facility owners/operators would cap wastes in place rather than
pursuing more aggressive remedial approaches. As discussed in the
proposal, the majority of new, replacement or laterally expanded CAMUs
approved under the 1993 CAMU rule already include liners and capping
requirements that would comply with the standards promulgated today.
Where liners or caps were not used, there were legitimate reasons
related to the cleanup for that decision, and the design generally
would have been allowed under today's rule. (65 FR 51092, August 22,
2000; Corrective Action Management Unit (CAMU) Site Background
Document, 2001). Nor did commenters provide evidence that today's rule
would significantly slow approval of CAMUs. EPA designed the processes
in today's rule to mirror those actually used today in CAMU approval,
and therefore it does not believe today's rule would significantly add
to existing processes. For these reasons, EPA sees no reason why
specifying minimum standards, generally consistent with practice to
date, would slow down or deter cleanups. Instead, these standards will
provide for important predictability in CAMU decision-making and for
transparency to the public.
The Agency also does not agree that minimum national design
standards should be replaced by a risk-reduction performance goal.
While EPA agrees that site-specific factors (including site-specific
factors related to risk) are of central importance in cleanup and CAMU
determinations, the Agency is not persuaded that a performance standard
based solely on risk would ensure the minimum baseline of protection or
provide the predictability in CAMU design and operation that the Agency
and many stakeholders desire. As discussed above, site- and waste-
specific factors are appropriately accommodated in the opportunities
for owners/operators to propose and the Regional Administrator to
approve alternate CAMU design standards. Commenters provided no
specific examples of where a legitimate cleanup would not be
accommodated by this approach.
On balance, most commenters who addressed the minimum design
standards for CAMUs, including commenters who opposed or questioned the
need for such standards, recognized that EPA had to balance a range of
concerns in developing the CAMU amendments. Overall, these commenters
thought that, if EPA was persuaded that the design standards for CAMUs
should be more specific, the approach of establishing minimum national
design standards for CAMUs with opportunities for Regional
Administrators to approve alternate standards, and the specific
standards and approaches proposed, were reasonable. The Agency
appreciates this support, and is finalizing the minimum design
standards as discussed below.
1. Liner Standard
In the 1993 CAMU rule, the fourth general decision criterion for
designation of CAMUs (40 CFR 264.552(c)(4)) specifies that ``areas
within the CAMU where wastes remain in place after closure of the CAMU
shall be managed and contained so as to minimize further releases to
the extent practicable.'' As discussed in the proposal, EPA intended
this standard, in conjunction with the closure and post-closure
provisions for CAMUs in 40 CFR 264.552(e), to ensure that long-term
controls adequate to protect human health and the environment are
imposed for CAMUs in which wastes will remain for long-term disposal
(65 FR 51091, August 22, 2000).
In practice, pursuant to the 1993 CAMU rule, Regional
Administrators have required liners on a site-specific basis for most
new, replacement, or laterally expanded CAMUs. The 1993 CAMU rule,
however, does not have explicit minimum liner requirements for CAMUs in
which wastes will remain after closure. Some stakeholders expressed the
concern that the 1993

[[Page 2978]]

CAMU rule standard, while implemented appropriately in practice to
date, was too open-ended and would benefit from increased detail to
better ensure that liners are designed adequately and used where
appropriate. This approach would also make CAMU design more predictable
for the public. In response to these concerns, EPA proposed and is
today finalizing a minimum national liner standard for new,
replacement, or laterally expanded CAMUs in which wastes will remain
after closure. To ensure the flexibility needed for cleanups, the
Agency also proposed and is today finalizing opportunities for owners/
operators to propose and Regional Administrators to approve alternate
liner standards. Comments on the standards are addressed in the
standard-specific sections, below.
a. Standard Liner Design (40 CFR 264.552(e)(3)(i))
Today's minimum national CAMU liner standard at 40 CFR
264.552(e)(3)(i) is modeled after the uniform design standard for
municipal solid waste landfills currently in place at 40 CFR
258.40(a)(2). Under today's CAMU standard, all new, replacement, or
laterally expanded CAMUs in which wastes will remain after closure must
be constructed with a composite liner and a leachate collection system
(unless the Regional Administrator approves an alternate site-specific
standard). Today's standard requires a composite liner consisting of
two components: (1) An upper flexible membrane liner with a minimum
thickness of 30-mil, and (2) a lower component consisting of at least
two feet of compacted soil with a hydraulic conductivity of no more
than 1x10-\7\cm/sec. The rule requires the upper flexible
membrane liner component to be installed in direct and uniform contact
with the compacted soil component. Flexible membrane liners consisting
of high density polyethylene must be at least 60-mil thick. The
leachate collection system must be constructed to maintain less than a
30-cm depth of leachate over the liner. Commenters who addressed the
specific minimum national liner design requirements generally supported
the requirements as reasonable, and the Agency is finalizing these
provisions as proposed.
The Agency believes that these standards are appropriate minimum
national standards for new, replacement, or laterally expanded CAMUs in
which wastes will remain after closure, because they will, among other
things, be protective across a wide range of waste and site conditions.
They also reflect what has generally been EPA and state practice at
CAMUs to date. (See CAMU Site Background Document.) Indeed, commenters
who addressed the specific liner and leachate collection standards
proposed generally agreed that the RCRA Subtitle D standards were
appropriate for CAMUs. In addition, by using the standards for
municipal solid waste landfills as a guide, the Agency avoids the
implementation issues associated with promulgation of a new standard.
Guidance on application of the standards for municipal solid waste
landfills is already available. See, for example, Solid Waste Disposal
Facility Criteria, 56 FR 50978, October 9, 1991 and EPA's 1993
guidance, Solid Waste Disposal Facility Criteria: Technical Manual (EPA
530-R-93-017, November 1993), available on the Internet at www.epa.gov/
epaoswer/non-hw/muncpl/landfill/tecnman/intro.pdf.
The new minimum national design standards (and alternate standards,
discussed below) apply only to new, replacement, or laterally expanded
CAMUs in which wastes will remain after closure. As discussed in the
proposal, the terms ``new,'' ``replacement,'' or ``laterally expanded''
should be interpreted consistently with guidance EPA has developed for
``new,'' ``replacement,'' and ``laterally expanded'' landfills and
surface impoundments in the context of the liner and leak detection
requirements of RCRA section 3004(o) (65 FR 51092, August 22, 2000).
Unlike hazardous waste landfills and surface impoundments addressed by
section 3004(o), however, as discussed above, ``existing'' and ``new''
CAMUs are not defined by a specific date. For CAMUs, ``new'' has its
common meaning. That is, a CAMU built as part of a remedial action
would be ``new.'' An existing unit that a Regional Administrator
designates as a CAMU is not ``new'' and would not be subject to the
design standards promulgated today. Over the years, EPA has issued
guidance on application of the terms ``new,'' ``replacement,'' and
``laterally expanded.'' The Agency has placed key elements of this
guidance in the docket for today's rulemaking.
One commenter expressed the concern that the proposal did not
adequately describe ``existing'' units. Citing a 1985 EPA memorandum on
application of the section 3004(o) standards,\18\ the commenter argued
that relying on this interpretation of ``existing'' would eliminate
virtually all nonhazardous solid waste management units at corrective
action facilities.
---------------------------------------------------------------------------

\18\ The guidance document cited by the commenter is
Applicability of the HSWA Minimum Technology Requirements Respecting
Liners and Leachate Collection Systems, April 1, 1985, available in
the RCRA permit policy compendium as document 9480.1985(01).
---------------------------------------------------------------------------

The guidance cited was not placed in the docket for the proposal
and does not define the Agency's approach for determining which units
are ``existing'' for purposes of today's CAMU design standards. RCRA
section 3004(o) established minimum liner and leachate detection
standards for hazardous waste landfills and surface impoundments built
after November 8, 1984, the effective date of HSWA. Therefore, EPA
guidance at the time defined ``new'' in relation to the specific
effective date of the section 3004(o) requirements--i.e., units built
after that effective date were considered ``new.'' In referencing
guidance on the terms ``new,'' ``replacement,'' and ``laterally
expanded'' in the proposal, the Agency was referring to its general
principles for application of these terms, not to its determinations of
specific effective dates of section 3004(o) requirements for specific
types of units. To respond directly, EPA clarifies that, for the
purposes of the CAMU design standards promulgated today, solid waste
management units that are in existence at the time of a remedial action
are not considered ``new'' units if they are designated as a CAMU.
b. Alternate Liner Designs (40 CFR 264.552(e)(3)(ii))
EPA proposed two provisions that would allow Regional
Administrators to approve alternate liner designs for new, replacement,
or laterally expanded CAMUs in which wastes will remain after closure.
Under certain circumstances, such designs may include alternatives that
do not include a liner or leachate collection system.
Under 40 CFR 264.552(e)(3)(ii)(A), owners/operators may propose and
Regional Administrators may approve alternate liner and leachate
collection system designs based on a finding that alternate design and
operating practices, together with location characteristics, will
prevent migration of hazardous constituents into ground or surface
water at least as effectively as the standard liner and leachate
collection system. As discussed in the proposal, this standard is
patterned on the statutory alternate liner standard for hazardous waste
land disposal units at RCRA section (o)(2), promulgated by EPA at 40
CFR 264.301(d) (65 FR 51092, August 22, 2000). This allows for
alternate liner and leachate collection

[[Page 2979]]

system designs for hazardous waste landfills provided the alternate
design, in conjunction with location characteristics, will achieve
technical performance equal to the standard liner and leachate
collection system design. As discussed in the proposal (65 FR 51092),
EPA expects this provision would provide flexibility for designs that
take into account local factors, including state design protocols and
availability of construction materials.
Several commenters addressed the proposal to include ``location
characteristics'' as a consideration in determining whether an
alternate liner design would prevent migration as effectively as the
standard liner and leachate collection system. Commenters who addressed
this issue agreed that allowing Regional Administrators to consider
location characteristics when approving alternate liner designs is
appropriate. Commenters suggested that location characteristics that
might influence technical performance of alternate liner and leachate
collection system designs could include climate, geology, hydrology,
and soil chemistry at a site. The Agency agrees that these considerations
are among the location characteristics that might be considered.
Commenters also suggested that the chemical and physical
characteristics of specific wastes that will remain in a CAMU after
closure should be considered ``location characteristics'' that may
influence the technical performance of alternate liner and leachate
collection designs. The Agency does not agree with this view. At the
same time, it is reasonable for Regional Administrators to consider the
physical and chemical characteristics of waste, such as a waste form's
potential for leaching hazardous constituents, in comparing whether an
alternate liner system will prevent migration as effectively as the
standard liner and leachate collection system.
Under 40 CFR 264.552(e)(3)(ii)(B) owners/operators may propose and
Regional Administrators may approve alternate approaches to liner and
leachate collection systems for new, replacement, and laterally
expanded CAMUs in which wastes will remain after closure, where a CAMU
is ``to be established in an area with significant levels of
contamination, and the Regional Administrator finds that an alternative
design, including a design that does not include a liner, would prevent
migration from the unit that would exceed long-term remedial goals.''
Commenters generally support this approach, and EPA is finalizing these
provisions as proposed.
As discussed in the proposal, EPA believes that it may be
appropriate to approve CAMU designs that do not include a liner or
leachate collection system under certain circumstances (65 FR 51093,
August 22, 2000). For example, at some highly contaminated facilities,
CAMUs may be located in areas of significant contamination is pervasive
throughout the subsurface. At such facilities, remedial approaches may
involve long-term ground water pump-and-treat systems, or subsurface
soil contamination may be expected to remain in place as a source of
ground water contamination. At these types of facilities, a liner and
leachate collection system to reduce migration of hazardous
constituents into an already significantly contaminated subsurface
likely would not meaningfully increase protection of human health or
the environment and would not be the best use of cleanup resources.
When approving alternate designs that do not include a liner or
leachate collection system, the Regional Administrator must find that
potential migration of hazardous constituents from the CAMU will be
consistent with the remedial goals for the facility (for example, not
cause cleanup goals to be exceeded at locations where potential
receptors would be located) (see 65 FR 51093).
The Agency also believes that the alternate approaches to liners
and leachate collection systems allowed under 40 CFR
264.552(e)(3)(ii)(B) will be helpful when CAMUs are used for land
treatment. As discussed in the proposal, land treatment generally does
not involve the use of liners because it typically requires that
rainwater or introduced liquids percolate through the waste and the
underlying soil column (65 FR 51093, August 22, 2000). Also, as
discussed in the proposal, EPA expects that many CAMUs used for land
treatment will be existing units (see discussion above) and will not be
subject to the minimum liner standards established today. In situations
where an existing unit is not used, the Agency believes that land
treatment CAMUs will be established in areas of significant
contamination and thus will be accommodated by this provision allowing
approval of CAMUs without liners or leachate collection systems. The
Agency specifically requested comment on whether its proposed approach
to alternate liners and leachate collection systems adequately
addressed land treatment. Commenters who addressed this issue believed
that land treatment was adequately accommodated.
2. Cap Standard
Under the 1993 CAMU rule at 40 CFR 264.552(e)(4)(ii)(B), owners/
operators are required to cap CAMUs in which waste will remain in place
after closure. Similar to the 1993 approach to liner and leachate
collection systems (discussed above), the 1993 CAMU rule did not have
explicit minimum cap design criteria for CAMUs. Some stakeholders
expressed the concern that the 1993 CAMU rule standard was too open-
ended and would benefit from increased detail to better ensure that
caps are properly designed. In response to these concerns, EPA proposed
and is today finalizing a minimum national cap design standard for
CAMUs in which wastes will remain after closure. To maintain the
flexibility necessary to encourage cleanups, the Agency also proposed,
and is today finalizing, opportunities for owners/operators to propose
and Regional Administrators to approve alternate cap standards.
The proposed cap standard for CAMUs would have required caps for
all CAMUs where waste remained in place after closure. However, the
Agency also specifically requested comment on situations where
treatment of waste in a CAMU would reduce concentrations of hazardous
constituents to health-based levels or below. The Agency expressed the
concern that, although ``waste'' may remain in such units after
closure, capping would not be needed to protect humans or the
environment, because constituent concentrations would already be at or
below health-based levels. Therefore, requiring capping would be an
unnecessary and inappropriate use of cleanup resources. EPA offered
specific alternative regulatory language to address this issue in the
proposal; under the alternate language, caps would be required only
where waste remained in place at the closed CAMU ``above remedial
levels or goals applicable to the site'' (65 FR 51094, August 22, 2000.)
Commenters who addressed this issue agreed that caps would not be
appropriate where concentrations of hazardous constituents are at or
below health-based levels. In response to these comments, the Agency is
modifying the standard for CAMU caps as discussed in the proposal. The
final standard now reads, in pertinent part: ``At final closure of the
CAMU, for areas in which wastes will remain after closure of the CAMU
with constituent concentrations above remedial levels or goals
applicable to the site, the owner or operator must cover the CAMU with
a final cover designed and constructed to

[[Page 2980]]

meet the following performance criteria * * * `` As discussed later in
today's rulemaking, this approach is consistent with the Agency's
approach to situations where concentrations of hazardous constituents
are at or below health-based levels when wastes are first placed in a
CAMU. (See discussion of 40 CFR 264.552(g).)
a. Standard Cap Design (40 CFR 264.552(e)(6)(iv))
Today's minimum national cap design standard for CAMUs in which
wastes will remain after closure is modeled after the cap design
standards for hazardous waste landfills at 40 CFR 264.310(a). Under
today's rule, unless Regional Administrators approve alternate site-
specific standards, CAMU caps must be designed and constructed to meet
five performance criteria. First, the cap must provide long-term
minimization of migration of liquids through the closed CAMU. Second,
the cap must function with minimum maintenance. Third, the cap must
promote drainage and minimize erosion or abrasion of the cover. Fourth,
the cap must accommodate settling and subsidence so that the integrity
of the cover is maintained. Fifth, the cap must have a permeability
less than or equal to the permeability of any bottom liner system or
natural subsoils present. As discussed earlier in this preamble (see
section III.F, above), comments on the overarching concept of minimum
national design standards for CAMUs were mixed. However, as with the
standards for liners discussed above, commenters who specifically
addressed the proposed minimum national standards for CAMU caps
generally supported the proposed standards as reasonable. With the
change discussed above, the Agency is finalizing the cap standard as
proposed.
As discussed in the proposal, although the performance criteria for
CAMU caps are modeled after the criteria for hazardous waste landfills,
the Agency believes that CAMU caps will not generally be constructed
like the caps required under RCRA Subtitle C for hazardous waste
landfills (65 FR 51094, August 22, 2000). This is because the standard
for permeability of the cap is set in relationship to the liner--the
cap must be of equal or lower permeability than the liner. The minimum
national standards for CAMU liners promulgated today apply only to new,
replacement, or laterally expanded CAMUs and are modeled after the
liner standards for municipal disposal facilities regulated under
Subtitle D, not the standards for hazardous waste landfills regulated
under Subtitle C. Given the range of liner approaches that may be taken
for CAMUs under today's regulations (e.g., existing units where the new
minimum national liner standards do not apply; new, replacement, or
laterally expanded CAMUs with Subtitle D type liners; new, replacement,
or laterally expanded CAMUs with alternate liner designs), the Agency
expects a similar range of approaches to the design and construction of
CAMU caps.
Also as discussed in the proposal, the minimum permeability
standard for CAMU caps may be met in a variety of ways including with
systems that are designed to use the water uptake capability of
vegetation (65 FR 51094, August 22, 2000). As a result, it will not
always be necessary for the construction materials of the cap to match
the construction materials of the liner (if a liner is present) to meet
the permeability standard. For more discussion on the range of cap
designs that might meet the minimum permeability standard, see the
preamble discussion to the July 1997 revised standards for municipal
solid waste landfills (62 FR 40710, July 29, 1997).
b. Alternate Cap Designs (40 CFR 264.552(e)(6)(iv)(B))
EPA proposed and is today finalizing a provision allowing Regional
Administrators to approve alternate cap designs. Under this provision,
owners/operators may propose and Regional Administrators may approve
alternate cap designs when such designs facilitate treatment or the
performance of the CAMU. As discussed in the proposal, this provision
might be used, for example, to promote continued biotreatment of wastes
remaining in CAMUs after closure by allowing infiltration of rainwater
through the cap into the wastes (65 FR 51094, August 22, 2000).
Alternative designs might also be appropriate for caps that rely on
evapotranspiration through plants to prevent infiltration of liquids.
Commenters who addressed this issue generally supported the Agency's
approach to alternate cap standards, and the Agency is finalizing these
provisions as proposed.
3. Releases to Ground Water (40 CFR 264.552(e)(5)(iii))
The 1993 CAMU rule included at 40 CFR 264.552(e)(5) a provision for
monitoring existing releases to ground water and identifying any new
releases from wastes remaining in CAMUs after closure. The 1993 rule,
however, did not include provisions that specifically require owners/
operators to notify Regional Administrators of releases to ground water
from CAMUs or to take corrective action for such releases. As discussed
in the proposal, EPA expected that such requirements would be imposed
on a site-specific basis under the general CAMU designation criteria at
40 CFR 264.552(c)(2) and other authorities (65 FR 51095, August 22,
2000). However, because protection from future releases is a critical
aspect of CAMUs (or any hazardous waste management unit), the Agency
proposed and is today finalizing an express requirement for
``notification to the Regional Administrator and corrective action as
necessary to protect human health and the environment for releases to
ground water'' from CAMUs. Commenters who addressed the issue generally
supported this approach.
As discussed in the proposal, the new requirement for notification
and corrective action as necessary to protect human health and the
environment does not change the more general performance standards for
CAMUs. Consistent with the Agency's policies on ground water
remediation,\19\ the Agency believes that decisions about the details
of ground water monitoring programs, including monitoring and reporting
(i.e., ``notification'') frequencies for CAMUs and, if necessary,
decisions about corrective action for releases to ground water from
CAMUs, should be made in the context of overall site remedial
approaches (65 FR 51095, August 22, 2000). For example, as discussed in
the proposal, monitoring and reporting frequencies are typically
established on a site-specific basis in sampling and analysis plans
that reflect site-specific conditions. These conditions may include the
extent of existing contamination, distance to nearest ground water
well, ground water flow rates, and statistical sampling protocols.
---------------------------------------------------------------------------

\19\ See, e.g., Corrective Action for Releases from Solid Waste
Management Units at Hazardous Waste Management Facilities, Advance
Notice of Proposed Rulemaking at 61 FR 19432, 19461 (May 1, 1996)
and Presumptive Response Strategy and Ex Situ Treatment Technologies for
Contaminated Ground Water at CERCLA Sites, EPA 540/R-96/023, October, 1996.
---------------------------------------------------------------------------

The Agency expects that notification requirements, will similarly
be determined on a site-specific basis in the context of these types of
site-specific plans. Like the standard for ground water monitoring
established in the 1993 CAMU rule, the standard for notification and
corrective action for releases to ground water established today--``as
necessary to protect human health and the environment''--is a
performance standard. The Agency expects that more detailed

[[Page 2981]]

specifications or performance goals for ground water monitoring,
notification, and corrective action will be included in CAMU permits or
orders based on site-specific information and conditions.

G. Treatment Requirements (40 CFR 264.552(e)(4))

Today's rulemaking establishes a new framework for treatment of
wastes placed in CAMUs. Under this new framework, ``principal hazardous
constituents,'' or ``PHCs,'' must meet either minimum national
treatment standards adapted from the LDR Phase IV soil treatment
standards or, in specific circumstances, site-specific treatment
standards based on defined adjustment factors. In the 1993 CAMU rule,
EPA did not establish specific minimum treatment requirements. Instead,
the Agency emphasized the importance of treatment in a performance
standard, requiring that CAMUs ``enable the use, when appropriate, of
treatment technologies * * * to enhance the long-term effectiveness of
remedial actions by reducing the toxicity, mobility or volume of wastes
that will remain in place after closure.'' The new framework for
treatment of wastes placed in CAMUs and the specific treatment
standards and adjustment factors established today address concerns
that the 1993 CAMU rule did not contain explicit requirements for
treatment (or treatment standards) and that this deficiency might, in
some cases, result in insufficient treatment of higher-risk wastes.\20\
As EPA explained in the proposal (65 FR 51084), the Agency believes
that minimum national standards will have significant benefits. Such
standards can make the CAMU process more consistent nationally, and the
results more predictable, as well as more explicit for the public. Such
standards can also make implementation of the rule less vulnerable to
mistakes or abuse.
---------------------------------------------------------------------------

\20\ As discussed in the proposal, the Agency does not believe
the 1993 CAMU rule has resulted in insufficient treatment in
practice. Treatment has been used at more than 70% of CAMUs approved
under the 1993 rule. EPA continues to believe that CAMU remedies
that require treatment under the 1993 rule would likewise require
treatment under today's rulemaking; similarly, EPA believes that
CAMU remedies that, under the 1993 rule do not require treatment
where treatment was not required under the 1993 rule would properly
not require treatment under today's rulemaking (65 FR 51096, August
22, 2000).
---------------------------------------------------------------------------

Treatment requirements for CAMU-eligible wastes and, more
generally, the application of RCRA LDR treatment standards to wastes
managed during cleanups are, perhaps, the most difficult issues
addressed by the CAMU amendments. The Agency's position on these issues
was clearly articulated in the proposal and, because these are
important and longstanding issues, bears repeating:

In developing today's treatment requirements, EPA considered
what approaches to treatment would be appropriate in the context of
the primary purpose of the CAMU rule, i.e., in the context of
reducing disincentives to cleanup. During cleanup it is not always
straightforward, possible, or reasonable to require owners/operators
to excavate or remove contaminated material, because of the costs
and practical issues associated with potential application of the
RCRA requirements for as-generated wastes to excavated material and
because there is often a legal option to leave material in place.
This is particularly an issue with respect to application of the LDR
treatment standards for as-generated wastes to wastes managed for
implementing cleanup. Part of the benefit of the LDR treatment
standards for as-generated wastes is that they create an incentive
to generate less waste. At cleanup sites, contamination has already
occurred, i.e., ``wastes'' have already been generated, and the
incentive to generate less waste tends to work against the goal of
cleanup, which is often to maximize the amount of waste managed in
order to more aggressively manage and, where appropriate, remove the
threats it poses. For a fuller discussion of this issue, see the May
26, 1998, LDR Phase IV rule establishing the soil treatment
standards, at 63 FR 28556, 28603. All of the Agency's attempts to
address these issues have been designed to promote more aggressive
cleanups, that is, to promote cleanups that rely more heavily on
excavation and management and include an appropriate degree of
treatment. EPA believes that, in general, these types of cleanup
result in more permanent remedies. (65 FR 51095, August 22, 2000).

Comments on EPA's proposal to establish treatment requirements, and
specific treatment standards and adjustment factors for wastes placed
in CAMUs were mixed. As with the CAMU design and operating standards
discussed above, some commenters supported the proposed establishment
of a baseline treatment requirement for wastes placed in CAMUs. Other
commenters opposed the new treatment requirements, arguing that they
would slow future cleanups or recreate disincentives to excavating and
managing wastes and contaminated materials during cleanup. Some
commenters suggested that EPA eliminate the treatment requirements
altogether or, if treatment must be required, provide that treatment
requirements be developed on a site-specific basis considering site risks.
The Agency does not agree that proposed CAMU treatment standards
should be eliminated. As discussed throughout the proposal and today's
rulemaking, EPA is attempting in these amendments to strike a
reasonable balance between predictability for CAMU operation and the
flexibility necessary to use CAMUs over a range of site- and waste-
specific conditions. EPA believes that appropriate minimum treatment
requirements for wastes that are placed in CAMUs are an important
element of this balance.
The Agency does not believe that today's treatment requirements
will deter cleanups. As discussed in the proposal, EPA evaluated CAMUs
approved under the 1993 rule against today's treatment requirements and
concluded that existing CAMU remedies involving treatment would still
require treatment under today's requirements and that, similarly,
existing CAMU remedies that do not involve treatment would not require
treatment under today's requirements (65 FR 51096, August 22, 2000 and
CAMU Background Document). Likewise, the amount of treatment required
in specific instances is not expected to change. Nothing in the
comments on the proposal (nor in the Agency's update of its analysis
for today's rule) counters these conclusions. As explained earlier, EPA
also believes these standards will have significant benefits in terms
of consistency, predictability and reduction in the likelihood of
mistakes or abuse.
While the Agency agrees that site-specific factors, including site-
specific factors related to risk, are appropriate (under certain
circumstances) to consider in adjusting treatment requirements, the
Agency is not persuaded that a risk-reduction standard alone would
provide the predictability in decision making about treatment of wastes
placed in CAMUs that the Agency and many stakeholders desire. It is
EPA's conclusion, based on its evaluation of CAMUs approved under the
current risk-based CAMU standards (and the lack of comments on that
evaluation), that site- and waste-specific factors, including factors
related to risk, are appropriately accommodated in the treatment
standard adjustments, as discussed later in today's rulemaking. The
Agency also notes that, while some commenters supported a completely
risk-based approach, most supported the proposed treatment requirements
as reasonable.
For these reasons, EPA is promulgating the treatment requirements
essentially as proposed and as discussed below.\21\
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\21\ EPA suggests that readers interested in more specific
insight into how EPA intends to apply the treatment conditions of
today's rule may wish to consult EPA's Corrective Action Management
Unit (CAMU) Site Background Document (October 2001), which is
available in the docket to today's rule.

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[[Page 2982]]

1. Identification of ``Principal Hazardous Constituents'' (PHCs) (40
CFR 264.552(e)(4)(i) and (ii))
The Agency proposed that the treatment standards established today
would apply only to ``principal hazardous constituents,'' or ``PHCs.''
Commenters supported this approach, and the Agency is finalizing the
PHC approach with one clarifying change. As discussed below, the Agency
is amending the proposed regulatory language defining PHCs based on
ground water risks to emphasize that the general performance standards
for PHCs apply to the selection of these PHCs as well.
Under today's rulemaking, PHCs are defined as those constituents
that ``pose a risk to human health or the environment that is
substantially higher than the cleanup levels or goals at the site.''
The Regional Administrator selects PHCs from those constituents that
would otherwise be subject to treatment under the RCRA LDR treatment
standards for as-generated waste. As proposed, EPA is requiring that
``in general, the Regional Administrator will designate as principal
hazardous constituents: carcinogens that pose a potential direct risk
from ingestion or inhalation at the site at or above 10-3;
and non-carcinogens that pose a potential direct risk from ingestion or
inhalation at the site an order of magnitude or greater over their
reference dose.''
Today's rule also requires that: ``The Regional Administrator will
also designate constituents as principal hazardous constituents, where
appropriate, when risks to human health and the environment posed by
the potential migration of constituents in wastes to ground water are
substantially higher than the cleanup levels or goals at the site; when
making such a designation, the Regional Administrator may consider such
factors as constituent concentrations, and fate and transport
characteristics under site conditions.'' Note that, in response to
comment and to be consistent with the description of designation of
``other constituents'' as PHCs (below), the Agency has added the phrase
``when risks to human health and the environment are substantially
higher than the cleanup levels or goals for the site.''
Finally, as proposed, the Agency is requiring that ``The Regional
Administrator may also designate other constituents as principal
hazardous constituents that the Regional Administrator determines pose
a risk to human health and the environment substantially higher than
the cleanup levels or goals at the site.''
Each of the PHC criteria are discussed more completely in the
sections below.
a. Approach to Identifying PHCs
During the site characterization efforts associated with cleanup,
owners/operators and overseeing agencies typically identify which
wastes are hazardous, which materials warrant remediation or removal,
and which constituents will be used to set site cleanup levels. This
process results in the identification of what are generally known as
the ``risk drivers'' at a site. As discussed in the proposal, EPA
continues to expect that the site characterization and evaluation
processes that lead to remedy selection and (in some cases) to the
decision to consider use of a CAMU will reliably identify PHCs. The
Agency emphasizes that it views identification of PHCs as a normal part
of well-designed cleanup processes, not a separate analysis. Commenters
who addressed this issue agreed that the site characterization
typically carried out during well-designed cleanups would generally
provide the information necessary to support a PHC determination and
that, therefore, a separate analysis should not be needed.
As discussed in the proposal, the designation of PHCs is made in
relation to site cleanup levels or goals--that is, PHCs are those
constituents that pose a risk to human health and the environment
substantially higher than cleanup levels identified as protective of
human health and the environment for the site (65 FR 51097, August 22,
2000). EPA took this approach based on a view that it is appropriate to
designate PHCs in the context of the cleanup levels or goals set for a
site, because in situations where PHCs are designated, the CAMU will
generally be a permanent disposal unit.\22\ Site cleanup levels or
goals typically take into account such factors as reasonably
anticipated land use (e.g., residential, industrial, or agricultural)
and exposure pathways of concern. Therefore, the Agency believes it is
appropriate to designate PHCs in the context of these factors, because
the PHC concept is meant to distinguish higher-level risks relative to
the risk-reduction goals for a particular site. The Agency did not
propose generic national concentrations for PHC determinations, since
generic concentrations would almost certainly not reflect remedial
activities at individual sites.
---------------------------------------------------------------------------

\22\ When CAMUs are not intended to be a permanent feature, the
Agency believes they will generally be implemented through the
provisions for storage and/or treatment only CAMUs, discussed in
section I of today's preamble. In this case, the treatment standards
would not apply to wastes within the CAMU, since their removal would
be required at closure.
---------------------------------------------------------------------------

As discussed in the proposal, in making determinations of whether
PHCs are present in CAMU-eligible wastes, overseeing agencies and
owners/operators cannot use pre-treatment of the waste to avoid a PHC
determination that would otherwise be made. That is, PHC determinations
and the related application of today's treatment standards and
adjustment factors should be made based on constituent concentrations
in CAMU-eligible waste as the waste is initially managed, not after
pre-treatment or other activity intended to reduce constituent
concentrations to below PHC levels.
In determining whether PHCs are present, based on risks from
ingestion and inhalation, the Regional Administrator to will assume
that an individual is directly exposed to the constituents in the CAMU-
eligible waste, consistent with the exposure assumptions used to
develop site-specific cleanup levels or goals, and to consider
reasonably anticipated land use (which could be residential or non-
residential). Fate and transport will only be considered for assessing
the migration of constituents from waste into ground water or air, for
the purpose of determining the risk posed by direct exposure to the
ground water or inhalation. Some commenters questioned this approach,
recommending that PHC determinations reflect plausible exposures that
take into account the protection from exposure provided by a CAMU;
these commenters argued that, where the engineering design of a CAMU
makes direct contact implausible, EPA should not assume that the
exposure might occur. EPA is not persuaded that designation of PHCs
should reflect protection from exposure afforded by the engineering of
a CAMU, at least when ingestion and inhalation are of concern (see
discussion of waste-to-ground water pathway below). As discussed in the
proposal, one of the reasons for specifying treatment requirements for
CAMUs and for using the PHC approach is to protect against the
potential for direct exposure to higher risk constituents in the event
a CAMU fails (65 FR 51098, August 22, 2000). (Commenters did not
challenge the possibility of such a failure occurring.) Therefore, in
PHC determinations, fate and transport can be used only for assessing
the potential migration of constituents from CAMU-

[[Page 2983]]

eligible waste into ground water or air for the purpose of determining
the risk posed by direct exposure to the constituents in ground water
or by inhalation at points where receptors are located.
Finally, as discussed in the proposal, the Regional Administrator
does not have to wait to make site-specific PHC determinations until
activities associated with development and approval of site-specific
cleanup levels or goals have been completed. In many cases, it will be
possible and appropriate for Regional Administrators to designate site-
specific PHCs based on standard cleanup values (see discussion of the
use of standard tables, later in today's rulemaking) and/or information
available at the time CAMU determinations are made. The Agency believes
that, as a general rule, if there is enough information at a site to
make a CAMU determination, there will be enough information to identify
PHCs in wastes proposed for management in the CAMU.
b. Constituents from Which PHCs Are Drawn (40 CFR 264.552(e)(4)(ii))
The set of constituents from which Regional Administrators might
designate PHCs is the set of constituents that, absent a CAMU, would be
subject to the LDR treatment requirements. That is, for listed wastes,
the ``regulated hazardous constituents'' for the relevant listing found
in 40 CFR 268.40, Treatment Standards for Hazardous Wastes); for
characteristic hazardous waste, all ``underlying hazardous
constituents'' (40 CFR 268.2(c), Sec. 268.40(e)); and for contaminated
soil, ``constituents subject to treatment'' (40 CFR 268.49(d)). As
discussed in the proposal, the Agency believes that it is appropriate
to limit PHCs to constituents that would otherwise be subject to the
LDRs, because one of the primary objectives of the CAMU rule is to
provide relief from application of the LDR requirements to wastes
managed for implementing cleanup (65 FR 51096, August 22, 2000).
Commenters supported this approach.
c. Carcinogenic and Non-Carcinogenic PHCs
Under today's rule, the Regional Administrator will generally
identify carcinogenic constituents as PHCs when they pose a direct risk
from inhalation or ingestion that is at or above a 10-3 risk
level. As discussed in the proposal, the Agency believes that risks at
or above 10-3 will generally be ``substantially higher than
the cleanup levels or goals at the site'' given that EPA (and most
state cleanup programs) generally sets site-specific cleanup levels or
goals for carcinogenic constituents within the risk range of
10-4 to 10-6, with 10 -6 used as a
point of departure.\23\
---------------------------------------------------------------------------

\23\ For a full discussion of the use of the risk range in
setting site-specific cleanup levels or goals in the RCRA corrective
action program, see the Corrective Action ANPR (61 FR 19432, 19450,
May 1, 1996).
---------------------------------------------------------------------------

In the rare cases where site cleanup levels or goals are
established at the upper end of the risk range (i.e., at
10-4 risk levels), constituents with concentrations at or
above the 10-3 risk level should generally be identified as
PHCs, because, in general, a level of risk an order of magnitude above
the upper end of the risk range would typically be considered a risk
substantially higher than site cleanup levels or goals. The Regional
Administrator would look closely at concentrations above but near the
10-3 risk level in light of assumptions that underlie the
risk estimate (e.g., waste characteristics and site conditions) prior
to determining whether the particular constituents were principal
hazardous constituents. For example, if a constituent posed risks close
to a 10-3 level, based on conservative default assumptions
(e.g., promulgated state default tables or generic assumptions used to
determine bioavailability), and the underlying assumptions were not
applicable at the site in question, the Regional Administrator could
determine that the constituents should not be designated as principal
hazardous waste constituents.
Today's rulemaking also provides that the Regional Administrator
will generally designate non-carcinogenic constituents as PHCs when
they pose a risk from inhalation or ingestion that is greater than or
equal to ten times the hazard quotient \24\ for the constituent (i.e.,
an order of magnitude or greater over the reference dose). Hazard
quotients are used as a measure of unacceptable exposure to
constituents that produce toxic endpoints other than cancer. As
discussed in the proposal, the Agency believes that risks ten times the
hazard quotient or greater will generally be ``substantially higher
than the cleanup levels or goals for the site,'' given that EPA
typically sets cleanup goals for individual non-carcinogens at a hazard
quotient of one or less. (65 FR 51098, August 22, 2000).
---------------------------------------------------------------------------

\24\ The hazard quotient is the estimated site-specific exposure
(dose) over a specified period divided by the reference dose for the
constituent in question over similar exposure conditions. A
reference dose is an estimate of a daily exposure to the general
population of humans, including sensitive sub-populations, that is
not likely to have an appreciable risk of adverse effects during a
lifetime. The magnitude of an adverse effect is not always related
directly to the magnitude of the hazard quotient. The Agency's
Integrated Risk Information System (IRIS) database has a more
detailed description of reference doses and hazard quotients, see
www.epa.gov/iris.
---------------------------------------------------------------------------

Commenters supported this approach.
Carcinogenic and non-carcinogenic constituents may be identified as
PHCs either through a site-specific risk assessment or by a comparison
of site concentrations to standard values. As discussed in the
proposal, many state (and federal) cleanup programs publish standard
tables with cleanup levels based on risks from inhalation or ingestion
under various exposure scenarios (65 FR 51097, August 22, 2000). The
Regional Administrator may use these tables, where appropriate, to
assist in making PHC determinations by extrapolating 10-3
risk levels from the standard 10-6 table values. While
commenters generally agreed with the Agency that such tables could be
useful in designating PHCs, some commenters were concerned that the
Agency intended the Regional Administrator to require use of standard
tables (and, therefore, standard exposure assumptions and assumptions
about other factors) to the exclusion of more site-specific approaches.
The Agency emphasizes that it is not requiring the use of standard
tables to identify PHCs and that either standard tables or site-
specific approaches may be used. The Agency recognizes that, in many
cases, standard tables are developed using conservative exposure and
other assumptions and that these assumptions may not match actual site-
specific conditions. As discussed earlier in today's rulemaking, the
Agency expects PHCs to be identified as a normal part of the site
characterization and evaluation activities associated with well-
designed cleanups.
Today's rule, like the proposal, requires that the Regional
Administrator ``generally'' identify hazardous constituents as PHCs if
constituent concentrations exceed the specified risk levels for
carcinogens and non-carcinogens discussed above. However, as discussed
in the proposal, there may be site-specific situations where these risk
levels are not appropriate for determining PHCs (65 FR 51097, August
22, 2000). The Agency emphasizes that PHC determinations are made on a
site-specific basis in the context of site cleanup levels or goals. In
situations where the Regional Administrator decides not to identify
constituents that meet the above descriptions as PHCs, the Agency
expects them to document and explain the decision in the supporting
materials associated with the CAMU determination.

[[Page 2984]]

d. PHCs Identified Based on the Waste-to-Ground Water Pathway (40 CFR
264.552(e)(4)(i)(B))
In addition to designating PHCs based on carcinogenic and non-
carcinogenic risks to humans from direct exposure through inhalation
and ingestion, Regional Administrators will, where appropriate,
designate PHCs based on the risk posed by the potential migration of
constituents from wastes to ground water. As discussed in the proposal,
the Agency expects that in making such determinations Regional
Administrators will consider site-specific factors that could affect
constituent migration. These site-specific factors could include
factors such as the location of the CAMU, the nature of the wastes
placed in the CAMU (e.g., mobility), how the waste placed in the CAMU
will be managed (e.g., the type of CAMU that will be used and potential
rates of liquid percolation into and out of the unit), factors that
affect transport of constituents to ground water, and beneficial uses
of ground water. As discussed in the proposal, in situations where
constituents in soil pose a significant potential threat through the
ground water pathway (e.g., based on fate and transport modeling) and
the soil is excavated for disposal in a CAMU, the Regional
Administrator should strongly consider whether to designate such
constituents as PHCs if they are not otherwise designated as PHCs under
the approach for direct human exposure to carcinogens and non-
carcinogens discussed above (65 FR 51098, August 22, 2000).
The approach to designating PHCs based on risks from the waste-to-
ground-water pathway is different from the approach taken to
designating PHCs based on direct exposure through ingestion. It does
not specify a generally appropriate risk level that would typically
define PHCs, and it allows for consideration of additional factors that
potentially affect exposure. As discussed in the proposal, EPA believes
that this approach is appropriate because, among other things, of the
highly site-specific nature of the waste-to-ground-water pathway (65 FR
51098, August 22, 2000). Commenters supported this conclusion.
While commenters who addressed the issue generally supported EPA's
proposed approach to identification of PHCs based on the waste-to-
ground-water pathway, some commenters expressed concern about the
specific regulatory language. Commenters argued that, because the
regulatory language describing identification of PHCs based on the
waste-to-ground-water pathway did not include the overall PHC standard
of ``risks substantially higher than site cleanup levels or goals,''
the provision could be read as standardless. The Agency believes that
the overreaching standard for identifying PHCs at 40 CFR
264.552(e)(4)(i) is clear; PHCs are constituents that, on a site-
specific basis, ``pose a risk substantially higher than the cleanup
levels or goals for the site.'' However, to eliminate any potential
confusion over the PHC standard as it applies to the waste-to-ground-
water pathway, the Agency has modified from the proposal the regulatory
language describing the waste-to-ground-water pathway to reiterate the
overall standard for identification of PHCs. The new language reads,
``The Regional Administrator will also designate constituents as
principal hazardous constituents, where appropriate, when risks to
human health or the environment posed by the potential migration of
constituents in wastes to ground water are substantially higher than
the cleanup levels or goals at the site; when making such a
designation, the Regional Administrator may consider such factors as
constituent concentrations, and fate and transport characteristics
under site conditions.'' This revised regulatory language is consistent
with the comparable regulatory language addressing the designation of
PHCs based on other risks (see 40 CFR 264.552(e)(4)(i)(C) and
discussion below).
e. Designation of Other PHCs (40 CFR 264.552(e)(4)(i)(C))
As discussed above, EPA is today establishing a general framework
for site-specific identification of PHCs that emphasizes risks to
humans from direct ingestion and inhalation and highlights the waste-
to-ground-water pathway. The Agency believes that this framework will
result in the identification of constituents that pose risks
``substantially higher'' than the cleanup levels or goals for a site.
The Agency also believes that this approach will screen out
constituents posing lower risks, and CAMU-eligible wastes with lower
concentrations of higher-risk constituents. However, there may be other
types of site-specific circumstances where constituents pose risks that
are ``substantially higher than the cleanup levels or goals for the
site,'' for example, based on risk scenarios not otherwise addressed in
the other PHC determinations.
The Regional Administrator might, on a site-specific basis, for
example, designate PHCs based on ecological concerns, potential risks
posed by dermal contact, or constituent mobility. PHCs might be
designated at risk levels higher or lower than the standard risk levels
discussed for carcinogens and non-carcinogens above. For example, the
Regional Administrator could determine that a highly mobile constituent
posing a risk of 10-4 is a principal hazardous constituent
at a site where protection of ground water is an especially significant
issue. To emphasize that PHCs may be designated based on all
appropriate site-specific considerations, EPA proposed and is today
finalizing a provision that ``the Regional Administrator may also
designate other constituents as principal hazardous constituents that
the Regional Administrator determines pose a risk to human health and
the environment substantially higher than the cleanup levels or goals
for the site.''
Some commenters expressed concern that, by emphasizing the Regional
Administrator's ability to designate PHCs based on risks other than
those posed by direct exposure to humans through inhalation or
ingestion or from the waste-to-ground-water pathway, the Agency would
render moot the general guidelines for establishing PHCs. The Agency
disagrees that this result will occur. As discussed throughout today's
rulemaking, during cleanups overseeing agencies encounter a diversity
of site-specific conditions. While EPA believes that considering risks
posed by direct exposure to humans through inhalation and ingestion as
well as risks posed by migration of contamination from wastes to ground
water will most often result in appropriate identification of PHCs
(because these are the issues that typically drive cleanup decisions),
the Agency cannot rule out identification of PHCs based on other site-
specific risk factors. As with other PHC designations, these
designations would be made only when constituents pose risks that are
``substantially higher than the cleanup levels or goals for the site.''
The Agency would expect PHCs based on factors other than direct
exposure to humans through ingestion or inhalation or risks from the
waste-to-ground-water pathway would be considered where such factors
were among the risk drivers for cleanup at a site, and contaminants
were identified at levels substantially higher than cleanup goals.. On
the other hand, the Agency does not expect that PHCs will be designated
based on ecological risks unless ecological risk concerns are among the
drivers for site cleanup levels or goals.

[[Page 2985]]

f. Relationship of PHCs to ``Principal Threats'' Guidance
In the proposal, the Agency discussed its approach to principal
hazardous constituents and to treatment requirements in relation to the
Agency's general and longstanding preference for treatment of higher-
risk wastes during cleanup (65 FR 51098, August 22, 2000). The Agency
observed that the PHC concept is consistent with the ``principal
threats'' approach used in the CERCLA and RCRA corrective action
programs to express the Agency's general preference for treatment of
higher-risk wastes. Commenters were concerned that this presentation of
the PHC approach as consistent with the ``principal threats'' approach
could be misleading. These commenters noted that the principal threats
approach is often used to inform choices between various remedial
approaches and to determine which wastes are likely to need active
management, while the PHC approach is meant to identify higher-risk
constituents in CAMU-eligible wastes that would, absent the CAMU
regulations, be subject to RCRA LDR treatment standards. Furthermore,
these commenters noted that the PHC concept applies after a decision
has been made to excavate and manage cleanup wastes.
The Agency agrees that the PHC approach and the ``principal
threats'' concept apply at different points in cleanup processes and
are used for different purposes. EPA's statements on this matter were
only meant to observe that, like the ``principal threats'' concept, the
PHC approach focuses on the higher-risk subset of wastes under
consideration. For a fuller discussion of the application of the
``principal threats'' concept during RCRA corrective action, see
Corrective Action ANPR (61 FR 19432, 19448 (May 1, 1996)). Also see ``A
Guide to Principal Threats and Low Level Threat Waste,'' OSWER
Directive 9380.3-06FS, November 1991.
2. Treatment Standards (40 CFR 264.552(e)(4)(iii))
Under today's new framework for treatment of wastes placed in
CAMUs, principal hazardous constituents must be treated to achieve
minimum national treatment standards or, in certain circumstances,
site-specific treatment standards developed through application of a
number of adjustment factors. As discussed in the proposal, the Agency
believes that this approach--minimum national standards with
appropriate opportunities for site-specific adjustments--represents a
reasonable balance by setting specific treatment standards while
preserving the flexibility needed to address a range of site- and
waste-specific circumstances. The Agency also believes that the CAMU
treatment standards and specified adjustment factors will provide a
valuable benchmark against which the public can review treatment
options under consideration. Details of the minimum national treatment
standards and application of the adjustment factors are discussed below.
a. Minimum National Treatment Standards (40 CFR 264.552(e)(4)(iv))
(1) Standard of 90% Capped by 10XUTS
EPA proposed and is today finalizing a minimum national treatment
standard of ninety (90) percent reduction in concentrations of PHCs
unless such treatment would result in concentrations that are less than
ten (10) times the relevant Universal Treatment Standard (UTS), in
which case treatment would be capped at ten times the universal
treatment standard. This standard was established for hazardous
contaminated soil in the LDR Phase IV rule and is commonly referred to
as ``90% capped by 10xUTS.'' For details on implementation of this
standard, see the description in the LDR Phase IV rule, 40 CFR 268.49,
63 FR 28556, 28605 (May 26, 1998). Universal treatment standards are
identified in 40 CFR 268.48, Universal Treatment Standards Table.
Today's treatment standard applies to both soil and non-soil
wastes, including sludges and debris. Debris subject to today's
treatment standards (i.e., CAMU-eligible debris that contain PHCs) must
be treated using the current LDR treatment standards for hazardous
debris at 40 CFR 264.45 or the CAMU treatment standards, whichever the
Regional Administrator deems appropriate. Consistent with the approach
it took for hazardous contaminated soils in the Phase IV rule, EPA is
also requiring that wastes subject to today's treatment standards
(i.e., CAMU-eligible waste that contains PHCs) that exhibit the
hazardous characteristics of ignitability, corrosivity, or reactivity
must be treated to eliminate such characteristics.
As discussed in the proposal, the Agency believes the 90% capped by
10xUTS treatment standard is appropriate and will generally result in
meaningful treatment (65 FR 51100, August 22, 2000). Reducing
concentrations of PHCs by 90% is a substantial reduction and, in cases
where treatment is capped at 10xUTS, this is a relatively small
increment over constituent concentrations established at the limits of
the performance of available technology (i.e., the UTS levels that are
established based on a Best Demonstrated Available Technology
standard). The Agency continues to believe that the 90% capped by
10xUTS treatment standard is generally achievable in soils using
technologies other than combustion. Because soil contaminated with
hazardous waste is generally more difficult to treat than hazardous
waste alone, the Agency believes that today's treatment standards can
likewise be achieved in non-soil CAMU-eligible wastes using
technologies other than combustion. For a fuller discussion of the
achievability of the soil treatment standards, see the LDR Phase IV
rule at 63 FR 28556, 28603 (May 26, 1998). As discussed in the
proposal, in situations where today's treatment standards cannot be
achieved using non-combustion technologies, the Agency has established
an adjustment factor allowing Regional Administrators to adjust
treatment standards based on a finding that the minimum national
treatment standard is technically impracticable. The ``technical
impracticability'' adjustment factor is discussed later in today's
rulemaking.
Some commenters generally supported treatment standards, but
opposed the 90% capped by 10xUTS standard as excessively stringent.
They argued that this standard would likely limit the usefulness of
CAMUs and therefore provide a significant disincentive to cleanups. The
Agency does not believe that the 90% capped by 10xUTS standard is
excessively stringent. As discussed in the proposal, the Agency's goal
in designing today's treatment standards was that the treatment
standards should provide a meaningful level of treatment and be
achievable, but should not be so onerous as to discourage cleanup (65
FR 51100, August 22, 2000). The Agency also sought to ensure that
today's treatment standards would not require treatment to levels
significantly below those that are necessary to protect human health
and the environment. The Agency continues to believe that the 90%
capped by 10xUTS treatment standard, with opportunities to adjust
treatment standards on a site-specific basis using the adjustment
factors, meets these goals.\25\ Given the fact that

[[Page 2986]]

treatment applies only to principal hazardous constituents, the general
achievability of the numerical standards, the availability of
adjustment factors, and EPA's analysis that treatment in CAMUs under
the previous standards meet those of today's rule, EPA is not persuaded
that the minimum national treatment standard promulgated today will
reinstate disincentives to cleanups.
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\25\ The Agency notes that, as part of comments opposing the 90%
capped by 10xUTS treatment standard, one commenter observed that
while ``the proposed regulations do allow for alternate treatment
standards * * * departures from specific standard requirements are
very often difficult to support and defend, even when they are
entirely appropriate.'' The Agency reiterates that it sees the
minimum national treatment standards and site-specific treatment
standards developed through application of the adjustment factors as
equally available.
---------------------------------------------------------------------------

Today's treatment standard apply to PHCs in CAMU-eligible wastes
when such wastes will be placed in a CAMU for permanent disposal. EPA
is not requiring that treatment standards be met prior to placement.
Treatment may occur either before or after wastes are placed in a
CAMU--as is appropriate given that CAMUs will often be used to
facilitate remedies involving treatment. Commenters who addressed the
issue supported this approach. In addition, EPA is not requiring
treatment when wastes are placed in CAMUs used for storage and/or
treatment only. Requirements for CAMUs that will be used for storage
and/or treatment only are discussed later in today's rulemaking.
(2) Use of TCLP and Alternative Leach Tests
EPA proposed that the Toxicity Characteristic Leaching Procedure
(TCLP) be used to determine compliance with the CAMU 90%/10xUTS
treatment standard under Sec. 264.552(e)(4)(iv)(B) and (C) for metals.
As noted in the proposal, the TCLP has been used as a broadly
applicable leach test for assessing the potential mobility of both
organic and inorganic constituents under plausible, reasonable worst-
case management conditions for solid waste. The TCLP has performed
reliably in many applications, with a few exceptions, and the Agency
continues to believe that it is an appropriate evaluative test for
waste classification and treatment compliance. This is particularly so
when industrial wastes might plausibly be co-disposed under conditions
similar to those typically present in municipal solid waste landfills,
and also particularly when wastes are tested and managed without
regulatory oversight. Thus, the TCLP is a reasonable and appropriate
test for both identifying and evaluating the treatment of wastes, and
today's rule establishes the TCLP as the default test for determining
compliance with the CAMU treatment requirements. Today's rule also
provides Regional Administrators with the flexibility to use
alternatives to the TCLP for CAMU compliance, in some cases.
EPA noted in the CAMU proposal (65 FR 51101) that hazardous
remediation waste will not often be co-disposed of with municipal solid
waste in CAMUs. (No commenters on the proposal disputed this
conclusion.) Since the TCLP reflects some key leaching conditions
likely to be present in municipal solid waste landfills, but not
necessarily in CAMUs, EPA, suggested that it may not always be the most
appropriate predictor of waste leaching behavior in CAMUs. In addition,
the Agency stated that the circumstances associated with disposal at a
CAMU site will be well defined and known (although conditions at CAMUs
will vary from site to site, depending on the wastes disposed of there
and any previous uses of the site). Thus, leaching tests that more
closely reflect individual site conditions might, in some instances, be
better suited than the TCLP to estimate the behavior of waste disposed
of in a CAMU. EPA sought public comment in the proposal on the
appropriateness of using leach tests other than the TCLP for
determining compliance with the CAMU treatment standards for metals,
when warranted by site conditions.
For the most part, commenters on this issue expressed skepticism
about the universal relevance of the TCLP test for cleanups, and
generally supported the use of alternatives to the TCLP when warranted
by site conditions. Several commenters broadly supported the use of
alternative tests, while others specifically pointed to the Synthetic
Precipitation Leaching Procedure or SPLP (which simulates acid rain
conditions, rather than conditions in a municipal solid waste
landfill). One commenter, for example, argued that the TCLP, by virtue
of its design, does not appropriately simulate leachability of metals
under circumstances in which metal-bearing wastes are not co-disposed
with municipal wastes. On the other hand, another commenter stated that
EPA should retain the TCLP as the standard test, but, where the TCLP
may not be appropriate for ``unusual wastes,'' the Regional Administrator
should be allowed to require the use of supplemental tests.
After reevaluating this issue in consideration of these comments,
EPA concludes that the leaching conditions represented in the TCLP may
not be present at many remediation sites, and that the TCLP will,
therefore, not always be the most reliable test for predicting site-
specific leaching behavior for waste disposed of at these sites. (See
CAMU Site Background Document).\26\ The TCLP anticipates general
municipal solid waste landfill conditions (as reasonable, plausible
worst-case management for waste), and is not tailored to reflect
conditions of other waste management unit types or specific sites. It
may, to some degree, either over- or under-predict leaching potential
of some waste constituents at any particular site. For example, in the
Agency's recent experience with monofilling of treated K088 waste
(spent aluminum pot liners), the TCLP under-predicted arsenic leaching
(see 62 FR 41005, July 31, 1997, and 62 FR 63458, December 1, 1997). On
the other hand, some soils are less acidic than the TCLP (particularly
in the western United States), and do not have the levels of acetic
acid found in municipal solid waste landfills, and the TCLP might
therefore over-predict leaching of some metals from these contaminated
soils.\27\ Because of these types of concerns, the Agency relied on
other leach tests when waste was not being disposed of in municipal
solid waste landfills in its recent rulemakings on inorganic chemicals
and chlorinated aliphatics manufacturing wastes (see 65 FR 55695,
September 14, 2000, and 65 FR 67100, November 8, 2000). EPA therefore
concludes that, where a regulatory agency can specify a disposal site
for remediation waste (such as a CAMU), and conditions at the specific
cleanup site differ from those simulated by the TCLP, tests other than
the TCLP that are tailored to reflect conditions at the site may be
better suited to assess the likely leaching behavior of waste disposed
of at that site (including in a CAMU).
---------------------------------------------------------------------------

\26\ For additional information on this issue, see Evanko and
Dzombak, 1997, Remediation of Metals-Contaminated Soils and
Groundwater, Technology Evaluation Report TE-97-01, Groundwater
Remediation Technologies Analysis Center, Pittsburgh, PA.
\27\ Particularly metal salts that are more soluble under acidic
conditions, or which are soluble in acetate (both TCLP conditions),
such as lead or mercury. On the other hand, some eastern U.S. soils
are moderately acidic (pH 4.5-5.5) or highly acidic (pH 3.5-4.5),
and most soils are buffered to stable pH values (Brady and Weil, 1999).
---------------------------------------------------------------------------

Section 264.552(e)(4)(iv)(F) of today's final rule, therefore,
provides the Regional Administrator the flexibility to specify
alternative leach tests to determine compliance with the CAMU treatment
requirements for metals (except where metals removal technologies are
used, and compliance is based on total concentrations). Under today's
rule, the Regional Administrator must find that an available
alternative to the TCLP would ``more accurately

[[Page 2987]]

reflect the conditions at the site that affect leaching.'' Thus, the
tests must better reflect site conditions, based on available site-
specific information. Site-specific use of alternatives to the TCLP
would most often be appropriate in cases where disposal conditions are
known and differ from municipal solid waste landfill conditions, the
waste will not be co-disposed with municipal solid waste (where the
TCLP would more likely be appropriate), and there is an appropriate
alternative test that more accurately reflects the individual site
conditions. Where important factors affecting leaching are similar to
municipal solid waste landfill conditions, the TCLP will likely be most
appropriate even if there is no municipal solid waste co-disposed with
the CAMU wastes. This may occur when acidic chemicals (particularly
organic acids, such as phenols and cresols) are found in CAMU
remediation wastes. The flexibility in today's rules, allowing the
Regional Administrator to specify alternatives to the TCLP, could mean
that either more or less treatment will be needed to meet the standard
compared with evaluating treatment with the TCLP.
In determining that an alternative test was likely to better
predict waste behavior at a selected disposal site, the Regional
Administrator would be expected to consider site- and waste-specific
factors affecting metals leaching. These might include disposal site
and waste pH, anticipated rainfall infiltration of the site,
characteristics of other waste co-disposed at the site, and the
anticipated long-term structural integrity and porosity of wastes
stabilized using cement or other pozzolonic treatment materials.
Appropriate use of alternative tests might include testing over a range
of pH values known to occur at the site, or adjusting liquid/solid
ratios either in the test or mathematically after testing to estimate
metals leaching rates and annual mass that would be leached. In the
K088 monofilling case cited above, for example, performing a leaching
test in the highly alkaline range (pH > 11) might well have identified
the high leaching potential of arsenic from the treated waste under the
actual site conditions at the disposal facility (leachate pH of 13),
before high arsenic levels were detected in the landfill leachate. EPA
emphasizes that these findings are site-specific.
Today's rule requires that an alternative leach test be
``appropriate for use.'' Leach testing is currently an active research
area.\28\ While some alternatives to the TCLP exist today, other
testing approaches may be developed into test protocols in the future.
Ideally, an appropriate alternative leach test will have a defined test
protocol that has been subjected to a peer review.\29\ Tests that have
been incorporated into EPA technical guidance, or used routinely by
other federal agencies, or published by third-party technical
accreditation organizations (such as ASTM or ANSI) may be appropriate.
Of tests currently available, a plausible alternative for some sites
may be the Synthetic Precipitation Leaching Procedure (SPLP; SW-846
Method 1312).\30\ Other tests that rely on multiple pH values and that
vary other test conditions to better reflect a range of possible site
conditions are under development or have been adopted by European
countries, including the Netherlands.\31\ However, even for established
tests, the relevance of the test to the particular site circumstances
must be considered in selecting and using an alternative test at that site.
---------------------------------------------------------------------------

\28\ See, for example, van der Sloot, et al., 1997,
Harmonization of Leaching/Extraction Tests; Garrabants and Kosson,
2000, Use of a chelating agent to determine the metal availability
for leaching from soils and wastes, Waste Management 20, 155-165;
Sanchez et al., 2000, Environmental assessment of a cement-based
solidified soil contaminated with lead, Chemical Engineering Science
55, 113-128; Kosson, D.S., van der Sloot, H.A., Sanchez, F., and
Garrabants, A.C. 2002, An Integrated Framework for Evaluating
Leaching in Waste Management and Utilization of Secondary Materials,
submitted for publication in Environmental Engineering Science, on
12/13/2001; and Sanchez, F., Kosson, D.S., Mattus, C.H., and Morris,
M.I., 2001, Use of a New Leach Testing Framework for Evaluating
Alternative Treatment Processes for Mercury-Contaminated Mixed Waste
(Hazardous and Radioactive), Vanderbilt University Department of
Civil and Environmental Engineering, December 14, 2001.
\29\ See the EPA Peer Review Handbook, EPA document number EPA
100-B-00-001, December 2000, or a review of similar rigor.
\30\ EPA has used and recommended use of the SPLP in some
instances where municipal solid waste co-disposal is not occurring
or is not plausible because it addresses one concern about the TCLP
in these situations, the pH of the leaching solution.
\31\ See Dutch Availability Test, NEN 7341; NEN 7349; and
ongoing work of the CEN (European Committee for Standardization)
working group CEN/TC292/WG2.
---------------------------------------------------------------------------

One commenter recommended that EPA discuss other leaching tests
that could be applied to remediation wastes, and explicitly identify
and recommend alternative types of leaching tests, or specify criteria
for selection of leaching tests based on site-specific application
criteria (e.g., waste type, environmental setting). This commenter
urged EPA to develop a leaching test, or a series of leaching tests,
that reflect site specific conditions. EPA has addressed this comment
in the preceding paragraph, by identifying site and waste conditions
that may affect metals leaching. EPA, however, is not at this time
prepared to recommend a specific set of tests, given the evolving state
of the science. EPA has been conducting a broad review of leach
testing, including funding of research on waste leaching and leach
testing, and will continue to monitor and participate in developments
in this area and provide appropriate guidance as new information and
testing approaches are developed and evaluated.
Another commenter appears to suggest that non-TCLP tests be used as
supplemental to the TCLP for evaluating unusual wastes, rather than as
an alternative to the TCLP. While this commenter clearly supports the
use of TCLP as the default test for evaluating the effectiveness of
treatment, it is unclear what conditions it believes warrant departure
from the TCLP, except for the opinion that such departures would be
``unusual.'' \32\ The Agency disagrees that non-TCLP tests should only
supplement the TCLP. Assuming that this is an accurate reading of this
comment, the Agency disagrees that non-TCLP tests should only
supplement the TCLP (that is, be used in addition to the TCLP), when
the question is determining compliance with CAMU treatment
requirements. Rather, the Agency believes that, in a situation (such as
remediation) in which adequate administrative controls and knowledge of
site and waste conditions supports it, the test most likely to be
accurate for the particular waste under the identified conditions
should be used. Because conditions vary from site-to-site, there is no
one established test that will always be most accurate.
---------------------------------------------------------------------------

\32\ The Agency is not clear as to what ``unusual'' wastes are
of concern to the commenter. Any metal-bearing waste treated with
solidification/stabilization treatment may generate a high pH, so
these wastes are not unusual and are, in fact, common.
---------------------------------------------------------------------------

That being said, however, EPA notes that it is retaining the TCLP
as the default test because some CAMU sites may have conditions similar
to those simulated by the test (due to either the nature of the site
contamination or where there is naturally acidic soil), and because the
TCLP is well known and widely used for determining compliance with
treatment requirements. The Agency has considerable experience with the
TCLP in evaluating waste treatment over a number of years (which it
does not have with possible alternative tests), and the Agency believes
implementation and administration of CAMU remediations

[[Page 2988]]

will be facilitated by establishing a default test, rather than
requiring that a test be selected and supported in every CAMU decision.
Several commenters asked EPA to clarify that the Regional
Administrator should define the testing approach for determining
acceptable treatment at the onset of CAMU consideration, and that the
approach should not be revised after treatment technologies have been
selected or the CAMU approved. EPA expects that the Regional
Administrator will approve specific leaching tests at the onset of CAMU
designation, as part of the overall approach for determining acceptable
treatment. At the same time, EPA cannot categorically say the testing
approaches would never be changed after approval of the CAMU. For
example, a change in testing approach might be warranted if the waste
treatment method were changed, or if new site information unknown at
the time of approval indicated that site conditions were somewhat
different from what was originally believed. Commenters can be assured,
however, that any changes to testing methods or other CAMU conditions
would have to go through the appropriate procedural steps. In the case
of permits, for example, EPA could only modify the permit only under
certain defined circumstances, unless the change was requested by the
permittee. See 40 CFR 270.41 and 270.42.
In allowing the Regional Administrator to approve alternatives to
the TCLP, today's rule of course assumes of course that the Regional
Administrator knows exactly how and where the CAMU-eligible waste will
be disposed of--that is, the waste will be disposed of in a CAMU that
he or she has approved. But, today's rule also includes an option that
would allow the disposal of CAMU-eligible wastes in off-site hazardous
waste landfills.\33\ EPA expects that the TCLP would be used in these
cases to measure compliance with treatment requirements, because the
regulatory authority at the remediation site would not know the details
of how the disposal site is managed or the local conditions at the site
(indeed, in many cases, the regulator may not know which disposal site
will eventually receive the waste--but only that the landfill must meet
design standards for RCRA subtitle C landfills). Therefore, EPA
believes that it will be generally unlikely that the Regional
Administrator will be able to approve an alternative to the TCLP to
measure treatment compliance before off-site disposal. Nevertheless,
EPA recognizes that there may be limited circumstances where the
Regional Administrator knows, with complete assurance, where the waste
is going and also knows the specific conditions at the receiving site.
(For example, this might conceivably occur where the disposal sites
were in the same state under the oversight of the same regulator.) In
this case, EPA believes that it might be reasonable for the Regional
Administrator to accept (or require) alternative tests to the TCLP to
demonstrate treatment compliance. Therefore, EPA has not precluded this
possibility by regulation, although it believes that the TCLP will
almost always be the appropriate test for off-site disposal.\34\
---------------------------------------------------------------------------

\33\ For further discussion of this provision, see section K of
today's preamble.
\34\ In particular, the regulator at the remediation site is
unlikely to know conditions of co-disposal at the off-site landfill,
which is often a critical factor in determining whether an
alternative to the TCLP is acceptable.
---------------------------------------------------------------------------

The Agency reiterates that today's rule changes retain the TCLP as
the presumptive test for evaluating compliance with the CAMU treatment
requirements. Alternatives to the TCLP may be used only as determined
to be appropriate (based on an assessment of waste and site conditions)
by the Regional Administrator. The Agency believes that, given the
degree of regulatory supervision of CAMU site remediations, it is
possible to appropriately implement the use of alternatives to the TCLP
for determining CAMU treatment compliance, on a site-specific basis.
EPA continues to find the TCLP to be an appropriate test for situations
where regulatory agencies do not supervise waste testing and disposal,
and where disposal in a municipal landfill (or a unit resembling a
municipal landfill) is a plausible waste management or mismanagement
scenario. The Agency emphasizes that the proposal, and today's rule,
deal only with the use of the TCLP in determining compliance with the
CAMU treatment requirements. Neither the proposal nor today's rule have
any effect on existing requirements regarding use of the TCLP to
determine whether a waste is hazardous or has been adequately treated
under the LDR program.
(3) Assessment of 90% Reduction
As discussed in the proposal, EPA expects that the facility owner/
operator will rely on normal waste and soil characterization techniques
and procedures for representative sampling to determine 90% reduction
in constituent concentrations. (65 FR 51101, August 22, 2000.) The
Agency has recently issued draft guidance for public comment, in the
context of the Phase IV Land Disposal Restrictions rule, on
establishing and validating the 90% reduction levels for contaminated
soil (see 66 FR 52198, October 18, 2001). EPA recommends the use of
this guidance (when finalized) in assessing whether the 90% reduction
standard for CAMU wastes has been achieved. In general, if the CAMU-
eligible hazardous waste has a treatment standard that is measured by
total constituent concentrations (i.e., organics and cyanide), then the
90% reduction would be measured using total constituent concentrations.
If the treatment standard for the waste is measured using the TCLP or
an approved alternative leach test (i.e., for metals), then the 90%
reduction would also be measured using the TCLP or the proposed
alternative leach tests. If wastes contaminated with metal constituents
were treated using a technology which removed, rather than stabilized
metals, the 90% reduction would be measured using total constituent
concentrations.
b. Site-specific Treatment Standards based on Adjustment Factors (40
CFR 264.552(e)(4)(v))
EPA proposed and is today finalizing five factors that outline
circumstances under which Regional Administrators may adjust the
minimum national treatment standards on a site-specific basis:
technical impracticability, consistency with site cleanup standard,
community views, short-term risks, and protection offered by
engineering controls under specified circumstances. When one or more of
the adjustment factors are applied, EPA is requiring that the resulting
site-specific treatment standard be ``protective of human health and
the environment,'' as discussed below.
As discussed in the proposal, in developing the adjustment factors,
the Agency identified circumstances both where it might be appropriate
to require less treatment than would be required by the minimum
national treatment standards (i.e., less treatment than 90% reduction
in concentrations of PHCs capped by 10xUTS) and where it might be
appropriate to require more treatment than would be required by the
minimum national treatment standards.\35\ When one or more

[[Page 2989]]

adjustment factors are applied, the result is a site-specific treatment
standard. Today's rule requires that such site-specific treatment
standards be protective of human health and the environment. The Agency
discussed the application of the ``protective of human health and the
environment'' standard in the proposal through a specific example,
which it repeats here:
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\35\ Of course, Regional Administrators do not need the
adjustment factors to require more treatment than would be required
by the minimum national treatment standards, since such treatment
could be required, where necessary to protect human health or the
environment, using the provision allowing for additional CAMU
requirements when necessary to protect human health or the
environment. See 40 CFR 264.552(i), discussed later in today's
rulemaking. Agencies overseeing cleanups may also require additional
treatment when selecting cleanup remedies.

An example of how this [protection of human health and the
environment standard]
would be implemented is a site where there are
two technologies that are available to treat the CAMU waste.
Technology A, although it would technically meet the proposed
generic standards, presented an unacceptable risk to site workers
(e.g., because of risks of explosion). Technology B, on the other
hand, did not present that risk, but could only achieve a 75%
reduction in PHC concentrations. In this case, because the factors
associated with adjustment factor D (``short-term risks,'' discussed
below) were present, the Regional Administrator could consider an
alternative standard; such standard could only be imposed where the
alternate level (75% reduction) was protective. EPA expects that the
Regional Administrator would undertake this assessment of
protectiveness of the alternate standard as part of the overall
remedy decision process. In judging protectiveness of the alternate
standard, the Agency would expect the Regional Administrator to
consider, as appropriate, the characteristics of the waste,
including such factors as concentrations and mobility, how the
wastes will be managed (e.g., the type of unit), and site
characteristics, such as depth to groundwater and factors that
affect fate and transport to potential receptors. Note, as discussed
below under adjustment factor E, that protection offered by the
engineering of the unit as the initial basis for considering an
alternate standard is limited to a specific set of circumstances. 65
---------------------------------------------------------------------------
FR 51101 and 51102, August 22, 2000.

Commenters generally supported the approach of allowing adjustment
of the minimum national treatment standards to accommodate certain
site-specific conditions and, in general, supported the specific
adjustment factors established today. EPA is finalizing the adjustment
factors as proposed.
One commenter expressed the concern that the Agency might use the
adjustment factors to change treatment requirements in the middle of a
cleanup. The Agency clarifies that it expects decisions about treatment
standards (including application of the adjustment factors) to be made
as a part of CAMU determinations and, as a general matter, apply for
the life of the CAMU. After a CAMU has been approved, any changes made
to treatment (or other) requirements would be in response to an
evolution of understanding of site-specific conditions that might occur
during an iterative cleanup process. The existence of adjustment
factors does not make such changes any more or less likely than they
were under the 1993 CAMU rule. Furthermore, any changes would be
subject to appropriate procedural safeguards--for example, the permit
modification process if a CAMU were incorporated into a permit, or, in
the case of orders, procedures for amending orders.
(1) Adjustment Factor A: Technical Impracticability (40 CFR
264.552(e)(4)(v)(A))
Using the technical impracticability adjustment factor, the
Regional Administrator may adjust the minimum national treatment
standards on a site-specific basis when it is not technically
practicable to achieve these standards because of factors related to
technologies or cost.
As discussed in the proposal, in some cases a facility owner/
operator may find that it is not technically practicable to achieve the
minimum national treatment standards, or to conduct meaningful
treatment at all, because of factors relating to the performance
capability or cost of technology. Factors related to the technical
performance capabilities of technology and cost are routinely discussed
in the remedy decision process in the federal CERCLA and RCRA
corrective action cleanup programs and as part of remedy selection in
state cleanup programs. As explained in the preamble to the proposal,
the Agency intends that the technical impracticability adjustment
factor will include the general concepts of ``technically infeasible''
and ``inordinately costly,'' as those terms are used in the federal
CERCLA program (65 FR 51102, 51103, August 22, 2000). As explained in
the preamble to the CERCLA National Contingency Plan, technical
impracticability should be based on ``engineering feasibility and
reliability, with cost generally not a major factor unless compliance
would be inordinately costly'' (55 FR 8666, 8748 (March 8, 1990)).
These concepts are also described in the RCRA corrective action ANPR at
61 FR 19432 (May 1, 1990) and in the Role of Cost in the Superfund
Remedy Selection Process, Publication 9200.3-23FS, September 1996.
Factors relating to the performance of technology and cost are also
addressed in the RCRA LDR treatment standard requirements in the
provisions for variances. As discussed in the proposal, the Agency
intends for the technical impracticability adjustment factor to
encompass the concepts contained in the current ``unachieveable'' LDR
treatment variance at Sec. 268.44(h)(1) and the ``technically
inappropriate'' variance at Sec. 268.44(h)(2)(i) (65 FR 51102, August
22, 2000). Under the ``unachieveable'' LDR treatment variance, a new
treatment standard can be developed when it is not physically possible
to meet the otherwise applicable treatment standard. The Agency
believes this concept is equally appropriate for adjusting treatment
standards for PHCs placed in CAMUs, because imposition of a treatment
standard that is impossible to meet would likely result in a
containment remedy that would not involve any treatment at all. See 53
FR 31138, 31199 (August 17, 1988) for a discussion of the
``unachieveable'' variance. Under the ``technically inappropriate''
variance, the Regional Administrator may approve a site-specific
treatment standard if treatment to the otherwise applicable standard is
not appropriate, even though such treatment is technically possible.
For example, the Agency has repeatedly expressed the view that it is
technically inappropriate to require combustion of large amounts of
mildly contaminated environmental media. See, 53 FR 31138, 31199
(August 17, 1988) and 62 FR 64504 (December 5, 1997) for a discussion
of the technically inappropriate variance.
EPA received no adverse comments on the technical impracticability
adjustment factor and is today finalizing this factor as proposed.
(2) Adjustment Factor B: Consistency with Site Cleanup Levels (40 CFR
264.552(e)(4)(v)(B))
Under the ``consistency with site cleanup levels'' adjustment
factor, the Regional Administrator may adjust the minimum national
treatment standards, on a site-specific basis, to require more or less
treatment of principal hazardous constituents when treatment to the
minimum national treatment standards would result in concentrations of
PHCs that are significantly above or below the cleanup levels for the
site. In the proposal, the language in adjustment factor B did not
specify that it would be used to adjust treatment requirements only for
principal hazardous constituents, although this was clearly the
Agency's intent (i.e., because the treatment standards in today's rule
apply only to principal hazardous constituents). EPA has modified the
final rule accordingly.
As discussed in the proposal, EPA intends that in considering
whether to apply this adjustment factor, Regional

[[Page 2990]]

Administrators will compare concentrations of PHCs that would be
attained through treatment to the minimum national standards (i.e., 90%
reduction in PHCs capped by 10 x UTS) to site cleanup levels that
assume there is direct exposure of a receptor to the PHC (i.e., site
cleanup levels based on direct exposure) (65 FR 51103, August 22,
2000). Site cleanup levels based on direct exposure could be drawn from
default standards established under state or federal law, where
appropriate, or from a more site-specific analysis and/or a site-
specific risk assessment. Site cleanup levels are typically established
in consideration of a number of factors that influence the risk
potential of a site, including fate and transport considerations (e.g.,
migration of contamination from soil to ground water); distinctions
between residential, industrial and other types of land use; and the
locations of potential receptors. In some cases, these factors are
standardized (e.g., when standard assumptions of exposure correspond
with standard land use assumptions). In other cases, these factors are
populated with site-specific data, for example, as might occur during a
site-specific risk assessment. Consideration of the protection from
exposure provided by the engineering of a CAMU cannot be included in
the evaluation. This is because, as discussed earlier in today's
rulemaking, the treatment requirements are designed, in part, to
minimize the risks of adverse effects on humans or the environment in
the unlikely event that the containment provided by a CAMU should fail.
In the proposal, EPA solicited comment on whether it should
expressly state in adjustment factor B that site cleanup levels used
for comparison had to be based on assumptions of ``direct exposure'' to
the principal hazardous constituents (65 FR 51103). EPA explained that
it assumed that state cleanup programs routinely used direct exposure
scenarios in setting cleanup levels, and therefore it was not necessary
to explicitly make use of a direct exposure scenario a condition in
adjustment factor B language. One group of commenters stated that they
disagreed with EPA's assumption that cleanup programs typically base
site goals or levels on ``direct exposure,'' arguing instead that
cleanup programs did not assume direct exposure without considering
actual or likely exposure scenarios at a site. The commenters,
therefore, recommended that EPA not specifically require direct
exposure assumptions in adjustment factor B. On the other hand, these
commenters also asked EPA to clarify in the preamble to the final rule
that adjustment factor B should be interpreted consistently with the
Agency's interpretation of the Sec. 268.44(h)(3) variance--which allows
land disposal restriction variances for contaminated soil where LDR
standards ``would result in concentrations of hazardous constituents
that are below * * * the concentrations necessary to minimize short-
and long-term threats to human health and the environment'' and which
further specifies that determinations that threats have been minimized
may ``not consider post-land disposal controls''
(Sec. 268.44(h)(3)(ii)).
EPA believes that commenters may have misunderstood what EPA meant
by ``direct exposure'' in the preamble, because the Agency certainly
agrees that cleanup programs do and should consider ``actual or likely
exposure'' in setting cleanup levels. As stated in the preamble to the
proposal, EPA agrees that ``site-specific cleanup standards are
typically derived after consideration of factors that influence the
risk potential at the site, including fate and transport considerations
(e.g., in setting levels in soils that are protective of ground water),
distinctions between residential, industrial and other types of land
use, and location of potential receptors'' (65 FR 51103). Again,
cleanup levels based on these assumptions would certainly be
appropriate under adjustment factor B. EPA also reaffirms--as it
clearly stated in the CAMU proposal (65 FR 51103)--that it interprets
adjustment factor B in a manner consistent with its interpretation of
the Sec. 268.44(h)(3) variance. In particular, as the Agency stated in
the preamble to the regulation, ``Consistent concentrations that achieve
[levels based on the Agency's risk range for cleanup levels or goals]
should be calculated based on a reasonable maximum exposure
scenario--that is, based on an analysis of both current and reasonably
expected future land uses, with exposure parameters chosen based on a
reasonable assessment of the maximum exposure that might occur.'' (See
63 FR 28606-28608, May 26, 1998). EPA does note, however, that this
land disposal restriction variance explicitly provides that, in setting
``minimize threat'' levels, the Agency cannot consider ``post-land-
disposal'' controls (Sec. 268.44(h)(3)(ii)), and in the preamble to the
Phase IV rule EPA cautions that site-specific determinations under this
variance ``cannot be based on the potential safety of land disposal
units, or engineered structures such as liners, caps, slurry walls or
any other practice occurring after land disposal'' (63 FR 28607).
Similarly, as EPA explained in the preamble to the CAMU proposal,
levels established under adjustment factor B could not reflect the
``protection offered by the CAMU itself'' (65 FR 51103).
Given that the commenters are mistaken in their concern that EPA
intended to disallow consideration of actual or likely exposure
scenarios in this adjustment factor, and given that no other commenters
argued that cleanup programs do not routinely use ``direct'' exposure
assumptions in setting cleanup levels or goals, the Agency continues to
believe that adding the phrase ``direct exposure'' to this adjustment
factor is unnecessary. As discussed above, EPA does reemphasize,
however, that, in determining whether adjustment was appropriate under
this adjustment factor--as in the LDR variance at Sec. 268.44(h)(3)--
EPA or the state would not consider protection offered by the disposal
unit or engineering controls as a basis for adjusting treatment levels.
As explained later in this preamble, protection offered by the CAMU as
a basis for departing from the 90%/10 x UTS standard is appropriately
considered under adjustment factor E.
(3) Adjustment Factor C: Community Views (40 CFR 264.552(e)(4)(v)(C))
Under the community views adjustment factor, the Regional
Administrator may require more or less treatment than would be required
under the minimum national treatment standards based on the views of
the affected community on the treatment levels or treatment methods. As
discussed in the proposal, at some sites, communities express concerns
about factors such as the long-term reliability of remedies, worker
safety, cross-media transfer of pollutants, and interference with their
day-to-day lives (e.g., from traffic, odors, or noisy technologies) (65
FR 51103, August 22, 2000). EPA expects that such community concerns could
provide the impetus to either reduce or increase treatment requirements.
EPA believes it is reasonable to include community views as an
explicit criterion to justify adjustment of treatment requirements,
because, in the Agency's experience, treatment is often an area of
specific concern to the public. For example, many communities are very
concerned about the use of combustion technologies. Consideration of
community views is supported by the requirement (discussed later in
today's rulemaking) that the public be provided notice and an
opportunity for public comment on all CAMU determinations

[[Page 2991]]

before such determinations are made final.
Commenters who addressed this issue supported the community views
adjustment factor, and the Agency is finalizing this provision as proposed.
(4) Adjustment Factor D: Short-Term Risks (40 CFR 264.552(e)(4)(v)(D))
Under the short-term-risk adjustment factor, the Regional
Administrator may require more or less treatment than would be required
under the minimum national treatment standards if the technology
necessary to achieve the minimum national treatment standards would
cause unacceptable short-term risks to workers or the public.
Unacceptable short-term risks might be presented by a technology
necessary to achieve treatment standards, or by the analysis necessary
to determine whether treatment standards have been achieved. As
discussed in the proposal, short-term risks associated with remedies
and proposed treatment technologies are routinely considered during the
remedy-selection process under the federal CERCLA program and the RCRA
corrective action program (65 FR 51104, August 22, 2000). Commenters
who addressed this issue supported consideration of short-term risks in
adjusting treatment requirements, and the Agency is finalizing the
short-term risk adjustment factor as proposed.
(5) Adjustment Factor E: Engineering Design and Controls (40 CFR
264.552(e)(4)(v)(E))
EPA proposed and is today finalizing an opportunity for Regional
Administrators to adjust the minimum national treatment standards on a
site-specific basis to require less treatment than would otherwise be
required because of the protection offered by the engineering design of
a CAMU. Under this provision, Regional Administrators may adjust the
minimum national treatment standard based on the long-term protection
offered by the engineering design of the CAMU and related engineering
controls in five sets of circumstances: first, when the minimum
national treatment standards are substantially met and PHCs are of very
low mobility; second, when cost-effective treatment has been used and
the CAMU meets the liner and leachate collection requirements for new
hazardous wastes land disposal units at 40 CFR 264.301(c) and (d);
third, when the Regional Administrator determines that cost-effective
treatment is not reasonably available, and the CAMU meets the liner and
leachate collection requirements for new hazardous waste land disposal
units at 40 CFR 264.301(c) and (d); fourth, when cost-effective
treatment has been used and PHCs in the treated wastes are of very low
mobility; and fifth, when the Regional Administrator determines that
cost-effective treatment is not reasonably available, PHCs are of very
low mobility, and the CAMU meets or exceeds the liner and leachate
collection system standards for new, replacement, or laterally expanded
CAMUs in 40 CFR 264.552(e)(3)(i) and (ii), or the CAMU provides
substantially equivalent or greater protection. Each of these site-
specific circumstances is described more completely below.
As discussed in the proposal, the Agency means the phrase
``engineering design of the CAMU and related engineering controls'' to
include the design of the unit itself (e.g., presence and type of
liner, leachate collection, and cap) and any associated engineering
systems such as slurry walls, systems that produce inward hydraulic
gradients in the vicinity of the unit, French drains, associated pump
and treat systems, and ground water monitoring systems (65 FR 51105,
August 22, 2000). Along with an assessment of the protection offered by
the engineering design and related engineering controls for a CAMU, the
Agency expects that the Regional Administrator's determination
regarding a site-specific treatment standard would consider whether
wastes placed in the CAMU pose any potential for unacceptable releases
over the long term. This consideration should examine factors such as
the concentrations and mobility of the PHCs in the CAMU-eligible waste,
the waste matrix (soil or other), the site environment (e.g., fate and
transport considerations), and how wastes might be affected by
potential liquid infiltration into the CAMU.
Commenters generally supported the standards of proposed adjustment
factor E. One commenter argued that EPA's proposed approach was too
complicated, and that EPA should allow a broader risk-based approach.
As discussed earlier, EPA does not believe the risk-based approach
would provide the level of consistent protection, or of predictability
for the public, that EPA's seeks in today's rule. Other commenters
stressed the importance of adjustment factor E in ensuring that today's
rule would not discourage aggressive remediation. As indicated in EPA's
study of past CAMU decisions (included in the docket), many currently
approved CAMUs would be allowed today only with consideration of
adjustment factor E. EPA, therefore, agrees with these commenters on
the likely importance of this adjustment factor in promoting effective
cleanups
The specific subfactors available under adjustment factor E are
discussed below. See also the if/then options illustrated in the chart
presented in the following section of this preamble, section G.2.b(6).
EPA has modified the proposed regulatory language for adjustment factor
E for the sake of clarity (addressing commenters' concern with the
complexity of this adjustment factor), but has not changed the
substantive standards of this factor.\36\
---------------------------------------------------------------------------

\36\ The regulatory language of today's rule breaks out the
individual provisions of proposed Sec. 264.555(e)(4)(v)(E)(2)(i)-
(iii) into four different subfactors, but the regulatory language
and substantive conditions remain identical.
---------------------------------------------------------------------------

The minimum national treatment standards are substantially met and
PHCs in the waste or residuals are of very low mobility (40 CFR
264.552(e)(4)(v)(E)(1)). Adjustment factor E(1) allows Regional
Administrators to adjust the minimum national treatment standards to
require less treatment than would otherwise be required, based on the
long-term protection offered by the engineering design of the CAMU and
related engineering controls when: (1) the minimum national treatment
standards are ``substantially met,'' and (2) PHCs are of ``very low
mobility.'' EPA proposed this provision to address concerns that, where
constituents in the waste are of low mobility and where the minimum
national treatment standards are substantially met, it may not be
reasonable to impose strict compliance with the minimum standards given
(1) the level of protection provided by substantial compliance, and (2)
the added protection offered by the engineering design of a CAMU and
related engineering controls.
As discussed in the proposal, the term ``substantially met'' for
purposes of adjustment factor E is meant to reflect situations where a
treatment technology may result in concentrations of PHCs that meet the
minimum national treatment standards for the most part, but do not
precisely attain the minimum national treatment standards for all of
the PHCs. In the proposal, the Agency gave two examples of application
of the ``substantially met'' standard, which it repeats here:

For example, the most appropriate technology at a site for
wastes containing organic contaminants that have low migration
potential (e.g., certain polyaromatic hydrocarbons) might be
biodegradation. This technology might come close to, but not
achieve, 10 X UTS for the contaminants with low migration potential.
Given that the contaminants have a low

[[Page 2992]]

migration potential, the Regional Administrator could assess site-
specific factors that affect mobility, including the geologic
setting, precipitation, and evaporation, and make the determination
that an alternate treatment standard based on this technology would
provide long-term protection of human health and the environment. In
another example, the treatment standards would be substantially met
where the overwhelming majority of constituents have been treated to
meet the treatment standards, but a very few immobile constituents
do not meet the standards. 65 FR 51106, August 22, 2000.

The term ``very low mobility'' reflects the concept that certain
constituents (including constituents that may present significant risks
in the event of direct exposure) have very little ability to migrate
from waste to receptors through media such as air, soil, or water . As
discussed in the proposal, the ability of a constituent to migrate is a
function of the physical and chemical properties of the constituent and
of site-specific conditions such as the waste matrix, the site
environment (e.g., fate and transport considerations), conditions
associated with the disposa unit, and how wastes might be affected by
potential liquid infiltration into a CAMU (65 FR 51105, August 22,
2000.) In the proposal, the Agency gave two examples of the application
of the very low mobility standard, which it repeats here for guidance:

One example of immobile constituents are certain metals, such as
lead, that have a strong affinity for organic matter and can, under
proper site conditions (which are typically strongly affected by pH
conditions), demonstrate very low mobility. Another common example
of immobile constituents is polyaromatic hydrocarbons (PAHs), such
as benzo(a)anthracene and benzo(a)pyrene. PAHs can reliably be
considered non-mobile constituents (with the notable exception of
when the PAHs are concentrated to the extent that they are in a
free-phase--i.e., as non-aqueous phase liquids (NAPLs)--when they
are dissolved in a mobile substrate, such as oil). PAHs can be
present as a direct result of historical industrial processes, or
may be found as a residuum of formerly more complex mixtures of
organic contamination that have been exposed to breakdown processes
in the environment, or as a result of applying biological treatment
technologies to the wastes. At some sites, such as petroleum
refineries, PAHs can be found in high concentrations in old refinery
wastes and contaminated soils, PAHs tend not to be found in
significant concentrations in ground water, because of their low
mobility and tendency to adhere to organic matter in soils and
sludges. 65 FR 51106, August 22, 2000.

Cost-effective treatment has been used and the CAMU meets the liner
and leachate collection requirements for new hazardous wastes landfills
at 40 CFR 264.301(c) and (d). (40 CFR 264.552(e)(4)(v)(E)(2). Under
adjustment factor E(2), the Regional Administrator may adjust the
minimum national treatment based on the long-term protection offered by
the engineering design of a CAMU and related engineering controls when:
(1) cost-effective treatment has been used, and (2) the CAMU meets the
liner and leachate collection requirements for new hazardous waste
landfills. As discussed in the proposal, this adjustment factor
reflects the Agency's concerns about the uncertainties of long-term
containment; thus, when the national treatment standards have not been
substantially met, this adjustment factor would require more robust
engineering controls to reduce the potential for and consequences of
unit failure. It would also require cost-effective treatment. (If cost-
effective treatment was not reasonably available, adjustment of the
treatment standards would still be possible, as provided by adjustment
factor E(3)).
As discussed in the proposal, the concept of ``cost-effective''
treatment for the purpose of adjustment factor E means that the
additional cost associated with increased treatment is proportionate to
the increase in protection that the treatment would provide. EPA
expects that assessments of cost-effectiveness will be made based on a
reasonable review of the costs and the increased protection provided by
treatment and on the best professional judgment of the Regional
Administrator (65 FR 51106, August 22, 2000). Commenters on ``cost-
effectiveness'' supported EPA's proposed approach.
This adjustment factor requires a more rigorous approach to
engineering design and related controls than the minimum national
design standards for CAMUs in that it requires compliance with the
liner and leachate collection requirements for new hazardous waste land
disposal units at 40 CFR 264.301(c) and (d). As discussed in the
proposal, the liner and leachate collection requirements for new
hazardous waste landfills are well established and understood, and
units constructed to meet the liner and leachate collection
requirements for new hazardous waste landfills generally offer a high
degree of protection over time (65 FR 51107, August 22, 2000). Because
the engineering design and related engineering controls required by
this provision are very robust, the Agency is not limiting this
adjustment factor to PHCs of very low mobility.
As discussed in the proposal, the Agency does not expect that CAMUs
typically will be constructed to meet the liner and leachate collection
standards for new hazardous waste landfills (65 FR 51107, August 22,
2000). Where they are designed to meet these standards, however,
adjustment factor E(2) would allow treatment levels to be adjusted
based on the protection offered by the unit design.
The Regional Administrator determines that cost-effective treatment
is not reasonably available, and the CAMU meets the liner and leachate
collection requirements for new hazardous waste landfills at 40 CFR
264.301(c) and (d). (40 CFR 264.552(e)(4)(v)(E)(3)). Under adjustment
factor E(3), the Regional Administrators may also adjust the minimum
national treatment standards based on the long-term protection offered
by the engineering design of a CAMU and related engineering controls
when: (1) cost-effective treatment is not reasonably available, and (2)
the CAMU meets the liner and leachate collection requirements for new
hazardous waste landfills. As discussed in the proposal, today's
rulemaking reflects the general presumption that PHCs will be treated
if cost-effective treatment is reasonably available (65 FR 51106,
August 22, 2000). The Agency recognizes, however, that cost-effective
treatment is not always reasonably available. In such cases, today's
rule would allow the Regional Administrator to adjust the minimum
national treatment standard based on the engineering design of the CAMU
and related engineering controls, even where treatment is not used
(that is, under this adjustment factor, when the CAMU meets the liner
and leachate collection requirements for new hazardous waste landfills,
and, under adjustment factor E(5) (discussed below), when the CAMU
meets the liner standards for new CAMUs promulgated today and PHCs in
the waste are of very low mobility).
As discussed in the proposal, the Agency expects that reviews to
determine whether potentially appropriate cost-effective treatment
technologies are ``reasonable available'' will be carried out
consistently with the types of technology evaluations that are commonly
associated with remedy selection under federal and many state cleanup
programs (65 FR 51106, 51107, August 22, 2000). These reviews consider
the availability and timing of goods and services associated with
implementing a technology and issues associated with administrative
feasibility as well as technical capability, feasibility, and
reliability of the technology. Thus, while an individual technology
might appear, in theory, to be cost-effective and capable of meeting a
treatment standard, it

[[Page 2993]]

might not be ``reasonably available'' because of practical and
implementation issues. Because of the range of site- and waste-specific
factors that inform the types of treatment technologies that might be
appropriate, the level of effort involved in reviews for reasonable
availability should be determined on a site-specific basis.
Under this adjustment factor, the potential increase in risk to
human health and the environment that corresponds to reduced or no
treatment (because cost-effective treatment is not available) is
balanced by the requirement to meet the liner and leachate collection
system design standards for new hazardous waste landfills. As discussed
above, the liner and leachate collection requirements for new hazardous
waste landfills are well established and understood, and units
constructed to meet the liner and leachate collection requirements for
new hazardous waste landfills generally offer a high degree of
protection over time.
Cost-effective treatment has been used and PHCs in the treated
waste are of very low mobility. (40 CFR 264.552(e)(4)(v)(E)(4). Under
adjustment factor E(4), Regional Administrators may adjust the minimum
national treatment standards based on the long-term protection offered
by the engineering design of a CAMU and related engineering controls
when: (1) cost-effective treatment has been used, and (2) PHCs are of
very low mobility. As discussed in the proposal, this adjustment factor
is meant to accommodate circumstances where cost-effective treatment is
available and will be used for PHCs, but the treatment will not meet or
substantially meet the minimum national treatment standards. The Agency
believes that it is reasonable for the Regional Administrator to make
adjustments to the minimum national treatment standards when the
engineering design of CAMUs and related engineering controls offer
adequate protection and PHCs have been treated using cost-effective
treatment and are unlikely to reach a receptor because they are of very
low mobility. In these circumstances, the Agency believes that, even if
unexpected failure of a CAMU were to occur, the constituents would not
migrate far (and therefore would not be likely to reach receptors). The
concepts of ``cost-effective treatment'' and ``very low mobility'' are
discussed above.
The Regional Administrator determines that cost-effective treatment
is not reasonably available, PHCs in the wastes are of very low
mobility, and the CAMU meets or exceeds the liner and leachate
collection system standards for new, replacement, or laterally expanded
CAMUs in 40 CFR 264.552(e)(3)(i) and (ii) or the CAMU provides
substantially equivalent or greater protection. (40 CFR
264.552(e)(4)(v)(E)(5)). Under adjustment factor E(5), Regional
Administrators may adjust the minimum national treatment standards
based on the long-term protection offered by the engineering design of
a CAMU and related engineering controls when: (1) Cost-effective
treatment is not available, (2) PHCs in the wastes are of very low
mobility, and (3) the CAMU meets the design and operation standards for
new, replacement or laterally expanded CAMUs promulgated today
(including alternative standards). As discussed in the preamble to the
proposal, this adjustment factor requires less rigorous engineering
design standards than adjustment factor (E)(2) because it is limited to
situations where PHCs are of very low mobility (65 FR 5107, August 22,
2000).
In situations where PHCs are of very low mobility, the Agency
believes that the possibility of an increase in risk to human health or
the environment resulting from reduced treatment (because cost-
effective treatment is not available and therefore treatment does not
take place) is balanced by the requirement that a CAMU be designed to
meet the minimum standards for new, replacement, or laterally expanded
CAMUs established today (or alternative standards) at 40 CFR
264.552(e)(3)or that the ``CAMU provides substantially equivalent
protection.'' The liner standards at 40 CFR 264.552(e)(3) are based on
the standards for municipal solid waste landfills and are discussed
earlier in today's preamble. As discussed in the proposal, the concept
of a CAMU providing ``substantially equivalent protection'' to the
liner standards under 40 CFR 264.552(e)(3) allows for consideration of
the entire CAMU unit and location characteristics (65 FR 51107, August
22, 2000).
In the proposal, the Agency gave two examples of when it might find
that a CAMU provides ``substantially equivalent protection.'' These
examples are repeated here for guidance:

If an existing unit without a liner were to be potentially used
for a CAMU under the conditions of this adjustment factor, the
Regional Administrator could examine the protectiveness offered by
the CAMU components (e.g., cap, ground water monitoring, ancillary
engineering features), as well as mobility of constituents in the
waste within the unit (which will be very low), and geology
associated with the unit, in assessing equivalent protection. In
another example, soils contaminated with PAHs, with no cost-
effective method of treatment reasonably available, are proposed to
be disposed in an existing unit with a liner that does not meet the
Sec. 264.552(e)(3) standards. Given the very low mobility of these
constituents and the calculated infiltration rate of rainwater into
the unit, it might be calculated that only very low concentrations
of constituents would potentially migrate from the unit, that any
migration would be for a very short distance, and that the CAMU
would provide substantially equivalent protection to the liner
standard under Sec. 264.552(e)(3). 65 FR 51107-51108, August 22, 2000.

(6) If / Then Chart Illustrating Application of Adjustment Factor E
Application of adjustment factor E relies on a number of site-
specific determinations made in specific combinations. To assist
program implementors in properly applying this adjustment factor, the
Agency has prepared the following ``if/then'' chart, which was also
included in the proposal, as guidance.

----------------------------------------------------------------------------------------------------------------
If And If And If Then
----------------------------------------------------------------------------------------------------------------
Treatment standards in Sec. Cost-effective RA has not determined RA may not consider
264.552(e)(4)(iv) are not treatment has not been that cost-effective adjusting based upon
substantially met. used. treatment is not the ``long term
reasonably available. protection offered by
the engineering design
of the CAMU and
related controls.''
Treatment standards in Sec. The PHCs in the waste ....................... RA may consider
264.552(e)(4)(iv) are not or residuals are of adjusting based upon
substantially met. very low mobility. the ``long term
protection offered by
the engineering design
of the CAMU and
related controls.''
Sec. 264.552(e)(4)(v)
(E)(1)

[[Page 2994]]

Cost-effective treatment has been The CAMU meets the ....................... RA may consider
used. Subtitle C liner and adjusting based upon
leachate collection the ``long term
requirements for new protection offered by
land disposal units at the engineering design
Sec. 264.301(c) and of the CAMU and
(d). related controls.''
Sec. 264.552(e)(4)(v)
(E)(2)
The Regional Administrator determines The CAMU meets the ....................... RA may consider
that cost-effective treatment is not Subtitle C liner and adjusting based upon
reasonably available. leachate collection the ``long term
requirements for new protection offered by
land disposal units at the engineering design
Sec. 264.301(c) and of the CAMU and
(d). related controls.''
Sec. 264.552(e)(4)(v)
(E)(3)
Cost-effective treatment has been The PHCs in the treated ....................... RA may consider
used. waste are of very low adjusting based upon
mobility. the ``long term
protection offered by
the engineering design
of the CAMU and
related controls.''
Sec. 264.552(e)(4)(v)
(E)(4)
The Regional Administrator determined The PHCs in the waste Either the CAMU meets RA may consider
that cost-effective treatment is not are of very low or exceeds the liner adjusting based upon
reasonably available. mobility. standards for new, the ``long term
replacement, or protection offered by
laterally expanded the engineering design
CAMUs in paragraph of the CAMU and
(e)(3)(i) and (ii) of related controls.''
this section, or the Sec. 264.552(e)(4)(v)
CAMU provides (E)(5)
substantially
equivalent or greater
protection.
----------------------------------------------------------------------------------------------------------------

c. Relationship Between Minimum National Treatment Standards and
Adjustment Factors
Commenters expressed a range of views about the relationship
between the minimum national treatment standards and site-specific
treatment standards developed through application of the adjustment
factors. Some commenters expressed the view that ideally the minimum
national treatment standards should be adjusted only in exceptional
circumstances. Other commenters thought that EPA should clarify that
facility owners/operators could choose either the minimum national
treatment standards or site-specific treatment standards.
EPA expects program implementors, in making treatment
determinations, to start from the minimum national treatment standard
and then to consider whether, based on site-specific circumstances, any
of the adjustment factors apply. The minimum national treatment
standards may be adjusted only in accordance with the adjustment
factors. The Agency, as a general matter, has a preference neither for
nor against application of the factors. EPA recognizes that the minimum
national treatment standards will often be the preferable approach; at
the same time as discussed in the proposal, the adjustment factors
reflect circumstances where, in EPA's view, adjustment of the minimum
national treatment standards might be appropriate because they
represent circumstances where failure to adjust treatment could result
in discouraging aggressive cleanup (65 FR 51101, August 22, 2000).
Therefore, as discussed above, the Agency believes it is appropriate to
have neither a preference for nor against application of the factors.
d. Treatment in CAMUs Within a Reasonable Time (40 CFR 264.552(e)(4)(vi))
EPA proposed and is today finalizing provisions that allow
treatment of PHCs to the minimum national treatment standards (or site-
specific treatment standards based on application of the adjustment
factors) to occur either before placement of wastes in CAMUs or within
a reasonable time after placement of waste in a CAMU. This is different
from the approach taken in the LDR requirements, where treatment
generally is required prior to placement. As discussed in the proposal,
the Agency believes it is appropriate to allow treatment requirements
to be met either before or after placement of wastes in a CAMU so that
CAMUs can be used to facilitate treatment remedies (65 FR 51108, August
22, 2000). As discussed throughout today's rulemaking, promoting
aggressive remedial approaches that involve excavation and treatment of
contaminated wastes and materials (i.e., removing disincentives to
cleanup) is the primary purpose of the CAMU rule. The Agency received
no adverse comment on this provision.
As discussed in the proposal, determinations of what is a
``reasonable time'' for treatment should be made on a site-specific
basis in the context of the remedy selected for the waste (65 FR 51108,
August 22, 2000). As a general rule, EPA expects that treatment
technologies, such as biotreatment, that are implemented after wastes
are placed in a CAMU will achieve treatment standards within months or
years, not decades, except in very unusual circumstances. (Today's
rulemaking also establishes specific provisions for storage and/or
treatment only CAMUs, from which wastes will be removed at closure.
Storage and/or treatment only CAMUs are described in detail later in
today's rulemaking.)
d. Assessing Compliance With Treatment Standards (40 CFR 264.552(e)(4)(vii))
The Agency proposed and is today finalizing provisions to allow, on
a site-specific basis, for the analysis of a subset of PHCs to
determine whether treatment standards are achieved rather than
requiring analysis of all PHCs present. As discussed in the proposal,
the Agency believes that in many cases it will not be necessary to
require analysis of all PHCs being treated to accurately assess whether
treatment standards are being achieved for all constituents. The Agency
received no adverse comment on this provision.
Analyzing a subset of constituents to assess performance of
treatment is a common practice in cleanup and generally involves
consideration of factors such as the difficulty of treatment and
grouping of constituents with similar properties. Today's rule

[[Page 2995]]

requires that Regional Administrators consider those factors when
making site-specific determinations about analysis of a subset of PHCs.
As discussed in the proposal, EPA also expects the Regional
Administrator to consider the ability to analyze the constituents when
selecting the subset of PHCs to be evaluated (65 FR 51088, August 22,
2000). The Agency gave an example of application of this concept in the
proposal, which it repeats here as guidance:

A general strategy is to analyze, within a group of constituents
with similar treatment properties, the most difficult constituents
to treat, following the reasoning that treatment of the most
difficult to treat constituents will result in treatment of the
other constituents as well. For example, when wastes containing
mixtures of organic molecules are subjected to bioremediation,
certain compounds tend to be more recalcitrant and take longer to
treat. It might be reasonable to focus analysis on measurement of
the compounds that are most resistant to bioremediation, to assess
whether the treatment standards had been met. 65 FR 51108, August 22, 2000.

H. Constituents at or Below Site Cleanup Levels or Goals (40 CFR 264.552(g))

EPA proposed that, where all wastes placed in a CAMU have
constituent concentrations at or below cleanup \37\ levels or goals
applicable to the site, the CAMU would not have to meet the
requirements for liners and leachate collection systems, caps, or
ground water monitoring requirements discussed earlier in today's
rulemaking or the design requirements for storage and/or treatment only
CAMUs discussed below.\38\ The Agency received no adverse comment on
this approach and is promulgating it as proposed.
---------------------------------------------------------------------------

\37\ In the proposal, EPA used both ``remedial'' levels or goals
and ``cleanup'' levels or goals. As used in the proposal, there was
no substantive difference between these terms and, for clarity, the
Agency uses only to ``cleanup levels or goals'' in today's action.
\38\ I.e., in this case the CAMU would not have to comply with
the requirements for liners at 40 CFR 264.552(e)(3)(i), caps at 40
CFR 264.552(e)(6)(iv), ground water monitoring at 40 CFR
264.552(e)(5), or the design standards at 40 CFR 264.552(f).
---------------------------------------------------------------------------

As discussed in the proposal, EPA believes that, if constituent
concentrations in all wastes placed in a CAMU are at or below
concentrations that are considered protective at the facility (i.e.,
are at or below cleanup levels or goals for the facility), it is not
necessary to require that the CAMU meet design or operating
requirements (65 FR 51108--51109, August 22, 2000). This approach is
consistent with the Agency's ``contained-in'' policy. Under the 1993
CAMU rule, program implementors had considerable flexibility in
developing CAMU design and operation requirements and could accommodate
circumstances where wastes placed in the CAMU were at or below cleanup
levels or goals for the facility. Because today's amendments establish
more specific design and operating requirements for CAMUs, the
exemption is necessary to retain this flexibility. EPA is limiting this
provision to situations where all wastes in the CAMU are at or below
site-specific cleanup levels or remedial goals. Thus, if an existing
unit is used as a CAMU and that unit contains wastes with
concentrations that are above cleanup levels or goals this exemption
would not apply and, among other requirements, the unit would remain
subject to the capping and ground water monitoring requirements
established today. EPA anticipates that this section would be used when
owners/operators seek a CAMU to obtain relief from RCRA LDR
requirements for wastes that are no longer considered hazardous. Wastes
that are no longer considered hazardous remain subject to the LDRs
when, for example, a ``contained-in'' determination has been made
because hazardous constituents are at concentrations below health-based
levels but above applicable LDR treatment standards. EPA also
anticipates that this section will be used for materials that are not
addressed by the contained-in policy (e.g., CAMU-eligible sludges). See
65 FR 51108.
One commenter suggested that, even when constituent concentrations
in cleanup wastes are at or below cleanup levels or goals, they may
still pose a risk if the assumptions used to determine remedial goals
change (e.g., if cleanup levels or goals are determined using exposure
assumptions appropriate to nonresidential land use, and then the land
use changes). This commenter recommended that administrative notices
(e.g., deed notices) be required in situations where site-specific
cleanup levels or goals assume non-residential land uses. The Agency
agrees that when nonresidential exposure assumptions are used to
establish cleanup levels or goals for a facility, it is important for
overseeing agencies to consider the long-term implications of these
decisions for facility land use. The Agency does not agree, however,
that it should establish a specific requirement in this rule for
administrative notice to address this issue. EPA believes the issues of
determining appropriate land use and exposure assumptions and
developing mechanisms to communicate, monitor, and maintain
nonresidential land use assumptions should be addressed as part of
overall remedy selection--i.e., during selection of the site-specific
factors that will be used to inform site-specific cleanup levels or
remedial goals--rather than as a part of CAMU determinations. Indeed,
these questions are much closer to decisions as to appropriate cleanup
levels than they are to the remediation waste management decisions more
generally associated with CAMU determinations.
EPA notes that RCRA corrective action, Superfund, and other cleanup
programs rely on a range of mechanisms to ensure that remedies remain
protective when they are based on non-residential land uses. Mechanisms
include informational requirements (e.g., deed notices), permits, state
and local land use laws, environmental easements, and similar
``institutional controls.'' EPA expects that overseeing agencies will
carefully consider the effectiveness of these mechanisms when
supervising cleanups where non-residential land use assumptions are
used. For more information on EPA's current views on use of
institutional controls see Institutional Controls: A Site Manager's
Guide to Identifying, Evaluating and Selecting Institutional Controls
at Superfund and RCRA Corrective Action Cleanups, EPA 530-F-00-005,
September, 2000. The Agency's current guidance on incorporating
considerations of reasonably anticipated future land use in remedial
decision making is Land Use in the CERCLA Remedy Selection Process
(OSWER Directive No. 9355.7-04, May 25, 1995). The Agency does not
minimize the importance of issues raised by potential changes in land
use over time or reliance on institutional controls during cleanups.
However, given the wide range of mechanisms now used in RCRA, CERCLA
and other programs and the fact that the issue is more appropriately
considered in the overall cleanup decision making than in CAMU
determinations, EPA has not included specific notification requirements
for non-residential future land use assumptions in today's rule.

I. Storage and/or Treatment Only CAMUs (40 CFR 264.552(f))

EPA proposed to distinguish between CAMUs that are used for storage
and/or treatment only and CAMUs in which wastes will remain after
closure. CAMUs used for storage and/or treatment only would be subject
to the design, operating, and closure standards for staging piles. EPA
proposed that storage and/or treatment only CAMUs

[[Page 2996]]

that operated for longer than the staging pile time limits (a maximum
of two-and-one-half years) would be subject to the minimum CAMU design
and ground-water monitoring and corrective action standards promulgated
today. Commenters generally supported this approach, and the Agency is
finalizing this provision as proposed. EPA has reorganized the
regulatory language for clarity, but has made no substantive changes
from the proposal.\39\
---------------------------------------------------------------------------

\39\ EPA revised these regulations by clearly separating the
requirements for storage and/or treatment only CAMUs that meet the
staging pile time limits (new paragraph (f)(1)) from the
requirements for those that do not (new paragraph (f)(2)). The
Agency reduced the section by eliminating the proposed paragraph
(f)(1), but included the paragraph's conditions in the new
paragraphs (f)(1) and (2).
---------------------------------------------------------------------------

Under today's rulemaking, CAMUs that are used for storage and/or
treatment only and that do not exceed the staging pile time limits are
subject only to the performance criteria and design, operating, and
closure standards for staging piles at 40 CFR 264.554(d)(1)(i)--(ii),
40 CFR 264.554(d)(2) and 40 CFR 264.554(e), (f), (j), and (k). They are
not subject to the CAMU designation criteria at 40 CFR 264.552(c) and
the CAMU design, treatment, ground-water monitoring and corrective
action, and closure requirements at 40 CFR 264.552(e)(3) through
(6).\40\ Under the staging pile regulations, the Regional Administrator
establishes standards and design requirements that facilitate reliable,
effective, and protective remedies; that prevent or minimize releases;
and that minimize or control cross-media impacts. The Regional
Administrator sets staging pile standards and design requirements by
considering factors such as the length of time the staging pile will be
in operation, the volumes of wastes that will be managed in the pile,
the physical and chemical characteristics of the wastes, the potential
for releases, the environmental factors that may influence migration of
releases, and the potential for human and environmental exposure to
releases. As discussed in the proposal, the Agency believes it is
appropriate to use the staging pile standards for CAMUs that are used
for storage and/or treatment only, because the staging pile standards
both reflect the general concepts in the CAMU criteria (i.e., by
establishing the standard that staging piles are to facilitate
``reliable'' and ``protective'' remedies) and focus more directly on
factors specific to short-term waste management (65 FR 51110, August
22, 2000). CAMUs used for storage and/or treatment only will also be
subject to the staging piles standards at 40 CFR 264.554(e) and (f)
governing management of ignitable, reactive, or incompatible wastes and
the staging pile standards at 40 CFR 264.554(j) and (k) for closure.
(Note that, as discussed in the proposal, the staging pile closure
standards establish different requirements for staging piles located in
previously contaminated areas and for staging piles located in
uncontaminated areas. These apply in the same way to storage and/or
treatment only CAMUs located in previously contaminated or
uncontaminated areas (65 FR 51110, August 22, 2000).)
---------------------------------------------------------------------------

\40\ Although the treatment requirements in 40 CFR 264.552(e)
would not apply, of course, nothing in this language would preclude
the Regional Administrator from imposing additional treatment
requirements using, for example, the overall CAMU or remedy decision
process, or the provision allowing the Regional Administrator to
impose requirements for CAMUs ``as necessary to protect human health
and the environment.''
---------------------------------------------------------------------------

If storage and/or treatment only CAMUs exceed the time limits for
operation of staging piles (that is, two years with the potential for a
single 180-day extension), today's rule requires the Regional
Administrator to establish time limits for operation that are no longer
than necessary to achieve a timely remedy selected for the wastes. As
discussed in the proposal, it is the Agency's general expectation that
storage and/or treatment activities will be completed within months or
years rather than decades, except in very unusual circumstances.
Storage and/or treatment only CAMUs that operate for longer than two
and one-half years must comply with the design and operating
requirements for CAMUs in which waste will remain after closure at 40
CFR 264.552(e)(3) and the ground-water monitoring and corrective action
requirements of 40 CFR 264.552(e)(5). They would not be subject,
however, to the treatment standards of 40 CFR 264.552(e)(4) or the
closure standards of 40 CFR 264.552(e)(6).
Some commenters expressed concern with this approach, indicating
that it was common for large, multi-phased cleanups to require repeated
staging of cleanup wastes over a number of years (i.e., more than two
years). These commenters suggested that the Agency eliminate the time
limit for storage and/or treatment only CAMUs or, alternatively, count
only the days during which waste was actually in the storage and/or
treatment only CAMU towards the two-year time limit. (For example, if
wastes are staged for three weeks and then removed and the unit is
``empty'' for three weeks before receiving more waste for staging, only
the three weeks during which waste was in the unit would apply towards
the two-year time limit.)
The Agency is not persuaded that it should eliminate the time limit
for storage and/or treatment only CAMUs or count only the time when
waste is actually being treated or stored. The Agency believes that
when storage and/or treatment only CAMUs will operate for more than two
and one-half years, it is appropriate to apply the minimum national
standards for CAMU design and ground-water monitoring and corrective
action established today. Storage and/or treatment only CAMUs that
operate for longer than two and one-half years have greater potential
to release hazardous constituents to the environment (if only because
they are in place for longer periods of time), and, therefore, in EPA's
view should be treated in a manner similar to units designed for more
permanent disposal. EPA is also not persuaded that it should count
towards the two and one-half year time limit only the time that waste
is actually stored and/or treated in a CAMU. Even though ``waste'' may
not be stored in the pile during this period, past residuals may
remain. Also, The Agency believes that the practical difficulties
associated with such an approach are would be great. For example, would
the permit have to specify the extent of removal necessary from a
storage and/or treatment only CAMU such that the clock should stop?
What type of record-keeping and inspection system would be necessary to
document the days and times waste was actually being stored and/or
treated in a CAMU? Determining, on a site-specific basis, the answers
to these questions would almost certainly delay cleanups.
Finally, and most important, EPA is not convinced that the proposed
approach (finalized today) will constrain cleanups in the way
commenters suggested. Commenters appeared most concerned with
application of the CAMU design and ground-water monitoring and
corrective action requirements to storage and/or treatment only CAMUs
operating for longer than two and one-half years. EPA notes that the
minimum national standards for CAMU design apply only to new,
replacement or laterally expanded units; they do not apply to existing
units designated as CAMUs. Thus, existing units designated as storage
and/or treatment only CAMUs would not have to be retrofitted, even if
they were operated for more than two and one-half years. Furthermore,
new CAMUs (including new CAMUs used for storage and/or treatment only)
that are sited in areas of significant

[[Page 2997]]

contamination are eligible for alternative design standards based on
site-specific circumstances. The Agency believes that CAMUs used for
long-term storage and/or treatment will often be located in areas of
significant contamination (because facility owners/operators and
regulators will choose to keep wastes confined to already contaminated
areas, where practical) and therefore will be eligible for a
determination that a liner is not needed under 40 CFR
264.552(e)(3)(ii)(B). Alternatively, CAMUs used for long-term storage
and/or treatment may include operating practices that, together with
location characteristics, will allow for a determination that alternate
design approaches are acceptable under 40 CFR 264.552(e)(3)(ii)(A). For
example, a roof constructed over a CAMU used for long-term storage and/
or treatment, perhaps combined with pavement or a single liner, could
prevent the migration of hazardous constituents into the ground water
or surface water at least as effectively as the standard liner and
leachate collection systems under certain circumstances (e.g., when
waste is placed in the CAMU only intermittently).
As for concerns over ground-water monitoring and corrective action
requirements, EPA understands the commenter's point, but it continues
to expect that ground-water monitoring and corrective action
requirements are going to be appropriate for land-based units that will
be in place for many years. EPA does note, however, that the
requirements for ground water monitoring and corrective action in
Sec. 264.552(e)(5) are expressed as performance standards. For example,
ground water monitoring must be ``sufficient to * * * detect and
characterize'' releases in ground water. Therefore, monitoring could be
reduced where releases were very unlikely, as long as it met the
regulatory performance standard. Similarly, corrective action
requirements must be sufficient to ensure that the regulatory agency is
notified of future releases to ground water and corrective action is
taken as necessary to protect human health and the environment. The
commenter did not explain why it considered this requirement to be
unreasonable.
The Agency is sympathetic to arguments that some complex, phased
cleanups may in fact take ``decades rather than years.'' Nonetheless,
as discussed above, the Agency believes these cleanups are
appropriately accommodated using the provisions for storage and/or
treatment only CAMUs (and, where applicable, the provisions allowing
alternate design approaches) promulgated today.

J. Staging Piles (40 CFR 264.554)

The Agency specifically requested comments on whether it should
revise the staging pile regulations to allow treatment in staging
piles, which would complement the provisions for storage and/or
treatment only CAMUs. In addition, EPA requested comment on an industry
group suggestion that, at a minimum, limited physical operations (that
might technically meet the definition of treatment) be allowed in
staging piles.
As in the past, comments on the idea of treatment in staging piles
were mixed. Some commenters supported the idea of treatment in staging
piles and believed that the staging pile standards would result in unit
designs and operating criteria that protect against the potential risks
of treatment. Commenters pointed out, for example, under 40 CFR
264.554(d)(1)(ii), staging piles must be designed to ``prevent or
minimize releases of hazardous waste or hazardous constituents in to
the environment'' and to ``minimize or adequately control cross-medial
transfer.'' Other commenters opposed the idea of significant treatment
in staging piles; they believed, among other things, that it would be
misleading to the public (given the name `staging piles') to allow
treatment. They also argued that issues associated with significant
treatment are more properly addressed using the CAMU designation
process, which is likely to involve a higher level of government and
public oversight.
After further consideration of this issue, the Agency has decided
not to allow significant treatment in staging piles and to continue to
require use of CAMUs (or other appropriate types of RCRA units) for
significant treatment activities. EPA agrees with one commenter that
issues associated with significant treatment (e.g., air emissions, use
of chemical extractants) is more appropriately addressed through the
CAMU designation process, where they will receive what EPA described in
the proposal as ``the high degree of attention and analysis that has
typically accompanied CAMU decisions.'' (65 FR 51111) At the same time,
the Agency is persuaded that, given the broad definition of treatment
in RCRA, an absolute ban on any treatment in staging piles might
severely limit their use and could preclude legitimate staging
activities for which they were designed. The Agency, therefore, is
revising the staging pile regulations at 40 CFR 264.554 to explicitly
allow physical operations that are intended to prepare wastes for
subsequent management or treatment. As discussed in the proposal, these
operations include mixing, sizing, blending, and other similar physical
operations that are intended to prepare wastes for subsequent
management or treatment (65 FR 51111, August 22, 2000). These types of
activities are common practices during cleanups where it is necessary
to first consolidate and then size or blend contaminated soils or other
wastes to facilitate subsequent treatment.
Because of the broad definition of ``treatment'' under RCRA,
physical activities to manage or prepare wastes for further
management--such as the activities described above--could be considered
treatment under certain circumstances.\41\ However, the Agency is
convinced that it is appropriate to allow for these types of activities
in staging piles--they are legitimately part of typical staging
activities at many cleanup sites; disallowing these activities could
significantly reduce the usefulness of staging piles; and they
generally do not raise issues beyond those that would arise merely from
accumulating and storing remediation waste in piles. Today's amendment
to the staging pile regulations will clarify that these types of
physical activities are allowed for the purposes of managing
remediation wastes in staging piles, regardless of whether they might
otherwise, technically, meet the RCRA definition of ``treatment'' and
provides facility owners/operators assurance that routine staging
operations such as the physical mixing, blending and sizing of waste
will not result in violations of the staging pile requirements. More
significant treatment operations involving something other than
physical treatment--that is, where the chemical character of the waste
is changed through chemical or biological treatment (such as solvent-
based soil washing or biotreatment)--are subject to the CAMU
regulations discussed earlier in today's rulemaking. EPA has concluded
that it is appropriate to continue to regulate these more aggressive
approaches to treatment under the CAMU process because of the likely
higher level of public interest and the fact that they do not fit within the

[[Page 2998]]

staging pile regulation's original concept of ``staging.''
---------------------------------------------------------------------------

\41\ Section 1004 of RCRA defines ``treatment'' as ``any method,
technique, or process, including neutralization, designed to change
the physical, chemical, or biological character or composition of
any hazardous waste so as to render such waste nonhazardous, safer
for transport, amenable for recovery, amenable for storage, or
reduced in volume* * * .''
---------------------------------------------------------------------------

K. Placement of CAMU-Eligible Wastes in Off-Site Hazardous Waste Landfills

In response to comments on the August 2000 proposal and to a later
proposal from a group of industry representatives, EPA published a
supplemental proposal on November 20, 2001 (66 FR 58085). In this
proposal, EPA took comment on industry's suggestion that placement of
CAMU-eligible wastes be allowed in off-site hazardous waste landfills
under certain circumstances. In addition, EPA also proposed to allow
disposal of CAMU-eligible wastes in on-site hazardous waste landfills
under the same conditions. In the supplemental proposal, EPA explained
in detail why, in its view, allowing disposal of CAMU-eligible waste in
hazardous waste landfills would promote more aggressive remediation and
provide remediators at cleanup sites with additional options--options
that might frequently be more protective than disposal in a CAMU, that
would likely lead to more thorough cleanups, and that would promote
opportunities for redevelopment.
In the November 2001 document, EPA stated its intention to include
the new conditions it was proposing (if it chose to go forward with
them) in today's final rule, scheduled for signature by December 21.
Consistent with this goal and because of the relatively limited nature
of the proposal (depending, as it did, on the basic structure of the
August 2000 proposal), EPA provided an abbreviated comment period of
fifteen days. To ensure prompt notice to commenters and an adequate
time for comment, EPA provided electronic copies of the supplemental
proposal to all commenters on the August 2000 proposal immediately
after it was signed on November 14, 2001. No commenters expressed
concern about the length of the comment period on the supplemental
proposal as it applied to off-site disposal of CAMU-eligible wastes.
EPA received overwhelmingly favorable comments on the general
approach in the proposal. No commenters expressed disagreement with
EPA's view that allowing placement of CAMU-eligible wastes in off-site
hazardous waste landfills would promote more aggressive remediation.
Several commenters asked EPA to clarify implementation issues and
raised questions about the workability of the approach described in the
supplemental proposal, depending on how it was interpreted. In response
to these commenters, EPA is finalizing the supplemental proposal at 40
CFR 264.555, generally as proposed, but it is clarifying the
implementation process and adding new procedural requirements, based on
comments. These revisions are designed to ensure that the off-site
provision can be practically implemented and therefore that it achieves
its goal of promoting aggressive remediation. The details of the
requirements are discussed below.
1. Conditions for Off-Site Landfill Placement
Section Sec. 264.555(a)(1)-(3) establishes the basic conditions
that must be met for the Regional Administrator to approve placement of
CAMU-eligible waste in a hazardous waste landfill unit at an off-site
location under the terms of Sec. 264.555.\42\
---------------------------------------------------------------------------

\42\ EPA emphasizes that ``CAMU-eligible'' waste may of course
continue to be managed off-site in any way that was allowable before
today's rule. Today's rule sets alternative treatment conditions for
hazardous ``CAMU-eligible'' waste placed off-site hazardous waste
landfills. Furthermore (to respond to a question raised by one
commenter), off-site management of non-hazardous ``CAMU-eligible''
waste is not subject to the requirements of this section, and this
waste may be managed off-site (including in hazardous and non-
hazardous landfills) consistent with state law.
---------------------------------------------------------------------------

a. Limitation to CAMU-Eligible Wastes
In the supplemental proposal, EPA limited placement of remediation
wastes in hazardous waste landfills under the terms of Sec. 264.555 to
CAMU-eligible waste, but also proposed to include the ``discretionary
kickout'' provision of Sec. 264.552(a)(2). The Agency proposed to
include the kickout provision because the reasons behind it apply as
much to placement of CAMU-eligible waste in hazardous waste landfills
as it does to placement in CAMUs. The supplemental proposal, however,
did not include the special provisions of Sec. 264.552(a)(1)(iii) and
(a)(3), which would have allowed placement of ``as-generated'' wastes
and liquids under specific circumstances. EPA concluded that, in the
case of ``as-generated'' wastes, a special exception would be
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 saw 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 has identified where the RCRA ban on liquids might be
inappropriate for CAMUs are specific to remediation.
Commenters provided no negative comments on this aspect of the
proposal, and therefore EPA is finalizing it as proposed.
b. Limitation to Placement in Off-Site Landfills
In the supplemental proposal, EPA allowed disposal of CAMU-eligible
wastes in on-site hazardous waste landfills, as well as off-site waste
landfills. One group of commenters--who was one of the two industry
groups who recommended the off-site disposal option to EPA--correctly
noted that industry's original proposal did not extend to on-site
hazardous waste landfills. This commenter expressed concern that it did
not fully understand the implications of this additional provision, and
strongly urged EPA to defer extending the conditions of today's rule to
on-site landfills. Because of the compressed schedule of this
supplemental rulemaking, EPA has decided to proceed at this time only
with aspects of the proposal that interested parties support, and to
defer final decisions on other aspects to ensure that EPA does not
adopt a course of action that may have unintended consequences.
Accordingly, EPA is not extending the relief in today's rule to the
disposal of CAMU-eligible wastes in on-site hazardous waste landfills
and has revised the language of Sec. 264.555(a) to limit the
applicability today's rule to ``landfills not located at the site from
which the waste originated.''
c. Treatment Requirements
In the supplemental proposal, treatment requirements for CAMU-
eligible wastes placed in permitted hazardous waste landfills would
largely track the treatment requirements for CAMU-eligible wastes
placed in CAMUs. That is, treatment requirements would be limited to
principal hazardous constituents. Treatment would have to meet the
national treatment standards of Sec. 264.552(e)(4), with an opportunity
for the Regional Administrator to adjust treatment based on specific
enumerated factors.
The Regional Administrator would be able to apply the following
adjustment factors without any special conditions: adjustment factor A
(technical impracticability), adjustment factor C (community
acceptance), adjustment factor D (short-term risk), and adjustment
factor E(1) (national minimum treatment standard is substantially met
and waste PHCs are of very low mobility). EPA proposed not to allow use
of adjustment factor B (which

[[Page 2999]]

considers cleanup levels or goals at the remediation site), because it
concluded that these levels would be irrelevant to placement in off-
site landfills. In addition, EPA proposed to tighten adjustment factor
E(2) (which allows the Regional Administrator to consider the
protection provided by the engineering design of the CAMU) to require
treatment of principal hazardous constituents in all cases where this
adjustment was exercised.
Comments on this aspect of the proposal were largely favorable, and
EPA is finalizing the treatment requirements as proposed (see
Sec. 264.555(a)(2)).
Regarding use of adjustment factor E(2), Sec. 264.555(a)(2)(iii) of
today's rule allows the Regional Administrator to adjust the national
treatment standards based on the design of the landfill in accordance
with Sec. 264.552(e)(4)(v)(E)(2).\43\ This section allows the Regional
Administrator to adjust treatment levels based on ``the engineering
design of the CAMU and related engineering controls'' ``where cost-
effective treatment has been used and the CAMU meets the Subtitle C
liner and leachate collection requirements for new land disposal units
at Sec. 264.301(c) and (d). * * *'' But Sec. 264.555(a)(2)(iii) of
today's rule adds a treatment performance standard for CAMU-eligible
wastes going to off-site landfills under this adjustment factor--the
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.'' Consistent with the proposal,
adjustment factors (E)(3), (4), and (5) would not be allowed.
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\43\ Note that, under Sec. 264.555(g), the ``design of the
CAMU'' in Sec. 264.552(e)(4)(v)(E) means the design of the permitted
Subtitle C landfill. Because the permitted landfill must meet the
prescriptive design standards for new hazardous waste landfills, the
Regional Administrator would typically base this adjustment on
protection offered by a generic landfill meeting these standards.
See discussion later in this section of the preamble.
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Thus, today's rule significantly tightens the conditions of
adjustment factor (E) for CAMU-eligible wastes being placed in off-site
hazardous waste landfills. As explained in the proposal, EPA is taking
this approach to address possible concerns about potential transfer of
risk to the off-site location when the Regional Administrator relies on
the protection afforded by the disposal unit to adjust the treatment
standards. First, adjustment factors E(3)-(5) would not be available--
since either these factors do not require treatment, or they do not
require that the receiving disposal unit meet subtitle C design
standards. And second, today's rule requires treatment of PHCs in CAMU-
eligible wastes disposed of off-site under adjustment factor E(2).
EPA notes that--as one commenter pointed out--the inclusion of
``the threat at the remediation site'' in the treatment performance
standard in Sec. 264.555(a)(2)(iii) contemplates that the Regional
Administrator, in implementing this adjustment factor, would make the
same kind of balancing of risks allowed in the ``environmentally
appropriate'' land disposal restriction variance at
Sec. 268.44(h)(2)(ii). That is, in concluding that a particular
treatment regime ``minimized threat'' under this adjustment factor, the
Regional Administrator could weigh the risks associated with leaving
waste in place (or of significantly delaying cleanup) against any
possible risks associated with subsequent management of the waste in a
permitted hazardous waste landfill.
d. Disposal Requirements
In the supplemental proposal, EPA limited hazardous waste landfills
receiving CAMU-eligible wastes to those with RCRA permits, not
including landfills under RCRA interim status. The proposal did not
specify who had to hold the permit for the landfill. For example,
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. The proposal also required that the landfill
meet the technical design and operating requirements for new landfills
in 40 CFR part 264, subpart N. This requirement would ensure that the
landfill met the minimum technology requirements for hazardous waste
landfills (i.e., the double synthetic liner and detailed leachate
collection requirements of Sec. 264.301(c)). In addition, the landfill
would be subject to the specific landfill ground-water monitoring
requirements of subpart F of part 264 and the closure requirements of
subpart G.
EPA received no negative comments on this aspect of the
supplemental proposal and is finalizing Sec. 264.555(a)(3) as proposed.
2. Approval Procedures
a. Approval of CAMU-Eligible Waste for Placement in a Subtitle C Landfill
Under the supplemental proposal, CAMU-eligible waste would be
approved for placement in a hazardous waste landfill under procedures
identical to CAMU approval procedures. Facility owner/operators wishing
to send CAMU-eligible waste to a RCRA hazardous waste landfill would
generally have to provide the same information as persons requesting
approval of an on-site CAMU. Commenters generally supported this approach
and EPA is finalizing it in Sec. 264.555(b)-(c) largely as proposed.\44\
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\44\ One commenter asked what information the ``person seeking
approval'' would need to provide the Regional Administrator. Under
Sec. 264.555(b), the applicant would be required to provide
information required under the general CAMU information requirement
(Sec. 264.552(d)) relevant to an off-site determination. That is,
the applicant would have to provide information ``sufficient'' for
the Regional Administrator to approve CAMU-eligible waste for off-
site disposal under Sec. 264.555(c). This would include information
to show the Regional Administrator that the waste is CAMU-eligible,
to identify PHCs, to adjust treatment levels as appropriate (e.g.,
to demonstrate technical impracticability), and similar information.
The applicant would not be expected to provide information not
relevant to the decision (e.g., the specific design of the receiving
landfill, since the landfill would be required, by regulation, to
meet subtitle C design requirements, and this information would
typically be enough to allow the Regional Administrator at the
remediation site to make a decision).
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The supplemental proposal indicated simply that the ``Regional
Administrator'' would approve CAMU-eligible waste for disposal in a
landfill, without any further specification on which ``Regional
Administrator.'' One commenter asked EPA to clarify whether the
``Regional Administrator'' was the regulator at the remediation site or
at the receiving site; another commenter argued that the Regional
Administrator approving the action under Sec. 264.555(c) should be the
person with regulatory oversight at the receiving landfill. On the
other hand, several commenters assumed that EPA meant the Regional
Administrator with RCRA regulatory oversight at the location of the
cleanup would approve action under Sec. 264.555(c)--that is, the
Regional Administrator who would make an off-site decision was the same
regulator who would likely be overseeing the cleanup (for example, if
it was being conducted as part of a RCRA corrective action).
In developing the supplemental proposal, EPA did not clearly state
whether the regulatory authority at the location of the cleanup site or
at the receiving landfill would typically review and approve (or deny)
proposals for off-site placement under Sec. 264.555. For example, EPA
stated in the preamble that ``the Regional Administrator (or the
authorized state program) at the location of the hazardous waste
landfill would be responsible for placement of CAMU-

[[Page 3000]]

eligible waste in the landfill.'' At the same time, however, most of
the questions associated with that approval relate closely to specific
circumstances, processes, and decisions at the cleanup site (including
remedy decisions)--for example, the identification of principal
hazardous constituents, which are based on site-specific cleanup goals
or levels; technical impracticability adjustments; adjustments because
of short-term risks; and similar questions. More broadly, the question
of whether (and how much) waste treatment is needed is typically part
of the remedial decision process. Therefore, the approval process under
Sec. 264.555(c) will inevitably be closely connected to the remedy
selection decision at the cleanup site.
After reviewing comments and considering this question further, EPA
concludes that the regulatory authority most appropriate for
determining that CAMU-eligible waste from a particular remediation is
suitable for disposal in a subtitle C landfill, as a general matter, is
the regulatory authority at the remediation site. As described above,
the question of how the cleanup wastes should be managed is inherently
part of the remedy decision, and the information needed to make
decisions will be available to the regulatory authority at the cleanup
site. Furthermore, the decision on how to manage remediation waste is
typically made in an iterative process at the remediation site, with
the facility owner and the regulator considering a broad range of
alternatives as the investigation and remedy selection proceed. In this
process, the options for off-site disposal become a factor in
determining which remedy is selected--including, perhaps, whether the
waste is excavated in the first place.
In addition, several commenters made the point that extended
regulatory review processes (on a remediation-by-remediation basis) at
potential disposal sites would generally repeat review processes
already conducted at the remediation site, and that such processes
could, as a practical matter disrupt or significantly delay the cleanup
process. For example, the decision for off-site disposal is often made
only late in the process (at a point where on-site options are
rejected), and then it is often made only generically, i.e., the
decision is made that the waste might safely sent off-site for disposal
in a hazardous waste landfill, but the specific site would not yet be
identified. At the point where off-site disposal has been chosen, the
facility owner, in such cleanups, might solicit bids from hazardous
waste management companies with processes or landfills meeting certain
criteria. It would obviously be unrealistic to expect each potential
bidder to go through an extended approval process with its regulator
(except in the case of very large cleanups) before it submitted a bid.
At smaller sites, the time between the decision to manage wastes off-
site and the actual movement of wastes might only be days. In both
cases, if an extended off-site approval process began only after an
off-site location had been accepted, cleanup could be significantly
delayed, with no meaningful gains in environmental protection.
Thus, for the off-site provisions of today's rule to work
effectively to promote aggressive cleanups at a wide range of sites,
EPA believes that the regulatory authority at the cleanup site should
make the basic decision as to what conditions would most appropriately
apply to CAMU-eligible waste disposed of off-site at a subtitle C landfill.
For these reasons, EPA is finalizing Sec. 264.555(a)-(c) generally
as proposed, but specifying that the ``Regional Administrator''
approving CAMU-eligible waste for subtitle C landfill disposal will be
the Regional Administrator (or state regulatory authority) with RCRA
oversight over the site where the remediation is occurring. In this
case, disposal in a hazardous waste landfill would be allowed, as long
as the conditions of Sec. 264.555 were met. Consistent with this
expectation, EPA is modifying proposed Sec. 264.555(b)--which describes
the information that the person seeking approval must provide--by
removing the parenthetical phrase ``(including the location of the
landfill).'' As explained earlier, in many cases, remediators at the
cleanup site may not know the location of the specific landfill at the
time of the application, or indeed at the time eligibility for off-site
disposal in a Subtitle C landfill has been approved.
One state commenter raised a concern about allowing a state
director at a remediation site to determine adjusted treatment
standards for CAMU-eligible waste, when that waste would be disposed of
in another state. The commenter argued that the state regulator
overseeing the receiving landfill should be responsible for making any
adjustments to the national treatment standards. In particular, the
commenter was concerned that the regulator in the generating state
would not be knowledgeable about the receiving facility; that the state
overseeing the receiving landfill might disagree with the treatment
standards determined by the generating state; and that the receiving
state would likely feel compelled to repeat the work of the generating
state regulator, leading to duplicative effort.
EPA understands these concerns, but it continues to believe, for
the reasons described above, that: (1) The regulator at the site of
remediation is the most appropriate authority to make the general
finding that cleanup waste from a particular site is appropriate for
off-site disposal in a subtitle C landfill under today's rule, and (2)
the off-site provisions in today's rule will be successful in promoting
more aggressive remediation only if the basic decisions on the
appropriateness of disposal in a subtitle C landfill are made at the
cleanup site, with regulators at the receiving landfill playing their
normal role (through the permitting process) in determining what
particular wastes are appropriate for disposal at that site.
In answer to the points raised by the commenter, EPA agrees that
the regulator at the receiving landfill will certainly be more
knowledgeable about site conditions at that particular landfill. The
Agency, however, does not believe that this fact is important to
decisions on adjustments, because the design standards for the off-site
landfill are specified by regulation. That is, the off-site landfill
will have to meet the subtitle C design standards for new hazardous
waste landfills. These are very specific standards, which not only
require double liners and a leachate collection system, but specify
such details as the thickness and composition of the liners; the size
of the gravel (or other material) in the leachate collection layer; the
minimum slope of that layer; and similar details . Thus, the regulator
at the remediation site will have ample information on the engineering
design of the unit to adjust a treatment standard based on the
protection offered by the design of the receiving landfill (if
adjustment factor E is exercised). At the same time, location-specific
factors at the receiving facility (e.g., site-specific hydrology)--
which is the kind of information that the regulator at the remediation
site would be unlikely to know--would not be an allowable consideration
in adjusting a treatment standard based on the engineering design of
the landfill.
EPA acknowledges that, when wastes move from one state to another,
the regulator in the receiving state may conclude that treatment levels
approved by the neighboring state are unacceptable for a particular
landfill, or that the receiving state may feel that it needs to review
the work of the neighboring state. EPA certainly expects that, in such
cases, overseeing states will be able to generally rely on the

[[Page 3001]]

protections built into today's rule, and the protections of the
permitted landfill receiving the waste,\45\ so that they can be
comfortable allowing receipt of waste that meets its terms. But, the
Agency also acknowledges that there is a potential for redundant
reviews. Nevertheless, EPA remains convinced--for the reasons stated
above--that today's rule will only be successful in promoting
aggressive cleanups if the state overseeing the cleanup makes the basic
judgments on whether a particular remediation waste is eligible for
off-site disposal, and what level of treatment is required under
today's rule, before disposal in a subtitle C landfill (regardless of
where that landfill is located). Otherwise, as explained above, today's
rule is not likely to achieve its intended goals.
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\45\ The receiving landfill, as explained below, would have to
have a RCRA permit allowing it to receive the type of waste in
question. RCRA permits establish detailed facility-wide
requirements, including detailed waste analysis procedures, unit
design, and waste management practices. These requirements, in EPA's
view, will ensuring that the waste is managed protectively at the
receiving facility.
---------------------------------------------------------------------------

b. Permitting and Acceptance at the Receiving Landfill
Proposed Sec. 264.555(d) required that the Regional Administrator
modify the permit for a hazardous waste landfill to allow receipt of
CAMU-eligible waste under the terms of Sec. 264.555, before it could
receive such waste. In some cases, state or federal regulations would
already require a permit modification at a facility, but in others--for
example, where the waste met the waste acceptance criteria in the
permit--they might not. But, in any case, proposed Sec. 264.555(d)
ensured that the permit was modified through a public process to allow
receipt of CAMU-eligible waste under the terms of proposed rule.
The modification 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. (EPA assumes in most cases that states would
choose the class 2 permit modification process, although class 3
modifications would meet the general performance standard as well.)
This process would ensure that the local public had the opportunity to
comment on whether and how CAMU-eligible wastes would be managed under
the facility permit. Commenters supported this approach, and EPA is
finalizing it as proposed. (Several commenters did express concern that
EPA expected states to modify a facility's permit for each new
remediation; today's rule would not require this. The issue is
discussed in detail below.)
As part of the permit modification process at the receiving
landfill, the Regional Administrator would include in the permit any
requirements he or she determined were necessary or appropriate. During
the permitting process, the Regional Administrator would be able to
accommodate any special concerns of the local community. For example,
the Regional Administrator might include special requirements in the
permit to address potential risks from hazardous constituents in the
waste, including principal hazardous constituents, to protect human
health or the environment through the RCRA ``omnibus'' provision.\46\
Further, the permit would include requirements to ensure that treatment
standards for CAMU-eligible wastes imposed under Sec. 264.555(a)(2)
would apply; and, 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 at the receiving landfill 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).
---------------------------------------------------------------------------

\46\ 46 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 section 3005(c)(3).
---------------------------------------------------------------------------

Commenters raised the question of whether a receiving land disposal
facility would have to modify its permit every time it received CAMU-
eligible waste from a new off-site location. Several commenters
(including one state) argued that individual permit modifications would
be unnecessary and counterproductive, where CAMU-eligible waste already
met the acceptance criteria in a facility permit.
This was not EPA's intention in the proposal, and EPA expects that
such modifications would ordinarily not be needed. Rather, EPA intends
that an off-site facility would modify its permit once (with public
notice, comment, and opportunity for a hearing). In fact, EPA expects
that, once today's rule is effective, some commercial hazardous waste
landfills will immediately seek enabling permit modifications, before
they have been approached by potential customers--and EPA encourages
them to do so.\47\ Once an enabling permit modification has been
approved, the modification would allow the facility to accept any CAMU-
eligible waste that had been approved for off-site disposal by the
appropriate regulatory authority at the remediation site. As part of
the permitting process, the permitting authority of course could impose
any additional conditions it determined were necessary, but EPA expects
that complying with the terms of Sec. 264.555, combined with the design
and management standards required at the receiving facility under its
RCRA permit, would provide sufficient assurance that CAMU-eligible
waste would be safely managed.
---------------------------------------------------------------------------

\47\ One commenter suggested that the one-time permit
modification approach would lead to a network of approved facilities
for EPA, states, and remediation waste generators to use for future
projects involving off-site management of eligible wastes. EPA
agrees that this result would be highly desirable and would promote
more aggressive remediation.
---------------------------------------------------------------------------

One commenter argued that a permit modification at the receiving
landfill should not be necessary at all. This commenter argued that
permits specify the types of waste a facility may receive, and
establish safe management conditions for that waste. If CAMU-eligible
wastes approved for disposal under today's rule met the permit
acceptance criteria, the commenter then questioned why a permit
modification would be necessary at all. This commenter noted that, in
many other cases, ``CAMU-eligible'' wastes currently go to hazardous
waste landfills without permit modifications, because they meet the
facilities' permit acceptance criteria. The commenter asked why EPA was
requiring a permit modification under today's rule even where a
facility's would otherwise allow acceptance of the CAMU-eligible waste
without modification.
EPA appreciates the view of this commenter, but at the same time it
notes that other commenters--including one state regulator--stressed
the importance of the regulator and the local public at the receiving
landfill having an opportunity to review and approve the fact that the
landfill would receive wastes under the terms of today's rule. EPA also
notes that the industry groups who recommended that these CAMU
amendments include an off-site option supported an EPA requirement for a

[[Page 3002]]

permit modification, including public notice and an opportunity for a
hearing at the off-site landfill. Therefore, EPA is retaining the
proposed requirement in Sec. 264.555(d) that the receiving facility
undergo an enabling permit modification before receiving CAMU-eligible
waste under today's rule. But it clarifies that there would be no need
for subsequent permit modifications, as long as the CAMU-eligible waste
met the waste criteria in the facility's permit.
At the same time, several commenters raised concerns that decisions
on CAMU-eligible waste from any particular cleanup might be of concern
to the local public and the regulatory authority at a receiving
facility. Therefore, today's rule provides for an abbreviated notice
procedure that must be completed before CAMU-eligible waste is placed
in a permitted off-site landfill. These procedures are laid out in
Sec. 264.555(e). First, the landfill--which will already have been
approved to receive CAMU-eligible waste under Sec. 264.555(d)--would
notify the local public and the RCRA permitting authority of its intent
to receive off-site waste from a particular cleanup. (This notice
might, for example, be submitted during the bidding process on the
waste.) In this case, the public would be the persons listed on the
facility's mailing list, required under 40 CFR 124.10(c)(ix). The
notice would identify the location of the remediation site, the
principal hazardous constituents, and the treatment requirements.
Second, the public would have fifteen days to provide comments or
express concerns to the regulatory agency. (Because the permit had
already been modified through a public process to receive CAMU-eligible
waste under this provision, commenters suggested and EPA has concluded
that an abbreviated notice procedure is appropriate.) Finally, the
Regional Administrator would have an additional fifteen days to object
to the placement of the CAMU-eligible wastes in the landfill. The
Regional Administrator would have the authority to extend the review
period an additional thirty days because of public concern or
insufficient information. If the Regional Administrator objects, or if
he or she does not notify the owner/operator that he or she has chosen
not to object, the waste could not be placed in the landfill until the
objection had been resolved, or, alternatively, the permit had been
appropriately modified through the procedures of Sec. 270.42.\48\
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\48\ EPA expects that permit modifications would only be
necessary or appropriate as a last resort. That is, most objections
are likely to be resolved short of requiring a modification to the
permit modification. EPA, however, included this option because it
provides a formal process, with clear requirements for public notice
and typically with rights of appeal, which may be appropriate in
some few cases. EPA has not specified in this rule what category of
modification would be required, although the Agency expects that--if
a modification process were determined to be necessary--the state
would find a class 2 process to be most appropriate.
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EPA notes that, while this process requires action by the Regional
Administrator within 30 days, it does not mean off-site disposal would
be approved by default. Disposal could not occur without notification
by the Regional Administrator that he or she does not object to the
placement of the CAMU-eligible waste. EPA took this approach because it
did not want the public to be at a disadvantage solely because the
Agency (or an authorized state) failed to act within a specified period
of time. At the same time, EPA recognizes that this approach may raise
concerns with owner/operators of facilities interested in receiving
CAMU-eligible wastes from off-site locations. Thus it urges these
owner/operators to work closely with the appropriate regulatory
authorities and the local public to look for ways to ensure that the
process is expedited--consistent with the needs and interests of the
regulator and the local community.
Toward this end, EPA has also included in today's rule a provision
(Sec. 264.555(e)(iv)) that would allow the facility, the local public,
and the regulatory agency to work together to identify situations
where, because of minimal risk, they could agree that the limited
notification procedures of Sec. 264.555 were not necessary. For
example, the facility, the regulatory agency and the community might
agree that notification was not necessary if the total volume of waste
from a particular remediation very minimal, or if CAMU-eligible waste
met a particular level of treatment (for example, the waste was treated
to the generic national standards of 90%/10XUTS, and none of the
adjustment factors was used). EPA expects that these situations will be
the exception. At the same time, however, EPA believes this provision
will significantly improve the usefulness of today's rule, especially
given the concern of one commenter that the rule should address
obstacles to smaller-volume projects, for which off-site management
often makes the most sense.
EPA, of course, understands that the regulatory authority and the
local public may choose to limit the scope of today's regulation by
requiring--through the initial permitting process at potential
receiving facility--additional notice or review (e.g., a longer public
comment period on notifications) before CAMU-eligible waste from a new
remediation is received, or before certain categories or volumes of
CAMU-eligible wastes were received from remediation sites. EPA expects
that these issues would be addressed as part of the site-specific
permitting process at the off-site hazardous waste facility seeking
approval to receive CAMU-eligible waste from off site.
Commenters were particularly concerned that EPA might require that
the receiving facility's permit be modified for each remediation.
Commenters pointed out that this approach would be impractical and
argued that it would likely eliminate the benefits (in aggressive
remediation) that it hopes to achieve through Sec. 264.555. The
incentives for off-site disposal at hazardous waste landfills provided
by today's rule, according to commenters, may often be most useful in
the case of relatively small cleanups (or portions of cleanups). In
such cases, the facility owner might be hoping to achieve clean
closure--perhaps to allow redevelopment or to remove liability. Yet in
these cases, the cost of a permit modification (even a ``minor''
modification) could well exceed the income received from a small
shipment of remediation waste. Furthermore, such a process would create
essentially the same practical problems that would occur if the
Sec. 264.555(c) approval process took place at the disposal site for
every remediation. As one commenter put it, cleanup projects might be
stopped indefinitely while one or more off-site facilities decided
whether to participate in bidding on a project and then worked through
the permit modification process. Thus, EPA believes it is impractical
as well as unnecessary to require permit modifications with every CAMU-
eligible waste shipment under today's rule.
3. Other Requirements
EPA emphasizes that the off-site portion of today's rule is narrow
in scope. Specifically, the Regional Administrator may approve CAMU-
eligible waste for placement in off-site 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

[[Page 3003]]

(e.g., waste analysis, storage requirements prior to placement, etc.).
In addition, when the waste is sent off-site, the rule
(Sec. 264.555(e)) specifies that the generator of the waste (i.e., the
owner/operator of the remediation site) is subject to the 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 will 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. EPA
proposed this requirement and received no negative comment on it.
One commenter, however, suggested that Sec. 268.7(a) be amended to
include ``appropriate'' notice and certification. EPA believes that it
has already, for the most part, addressed the commenter's concern by
clarifying that the hazardous waste generator at the cleanup site must
comply with Sec. 268.7(a)(4), which requires a one-time written notice
from the generator to the land disposal facility. The notice must
indicate the hazardous waste numbers and the manifest number of the
first shipment; a statement that the waste is not prohibited from land
disposal; available waste analysis data; and specific information
relating to the treatment of debris. EPA does recognize, however, that
CAMU-eligible wastes may be treated off-site under today's rule, and
that this activity might not be adequately covered by Sec. 268.7(a)(4),
which applies to waste generators. Therefore, to ensure adequate
tracking and accountability when CAMU-eligible waste is treated off-
site, Sec. 264.555(f) of today's rule has been modified to require that
off-site treatment facilities meet the certification requirements of
Sec. 268.7(b)(4), amended so that the treatment facility is required to
certify that the treatment meets the requirements of the off-site
provision of today's rule (as opposed to the requirements of the land
disposal restrictions).
Finally, 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) will remain available
as an alternative (or complementary) approach for CAMU-eligible wastes
sent for disposal. Furthermore, as described above, non-hazardous
wastes will also be unaffected, because their management and disposal
are generally not regulated under the federal RCRA hazardous waste
program, and they will not need special approval under today's rule to
allow placement in a landfill.

L. Grandfathering CAMUs (40 CFR 264.550 and 40 CFR 264.551)

EPA proposed that two types of CAMUs would remain subject to the
1993 CAMU regulations after promulgation of the CAMU amendments (i.e.,
after today's rulemaking): (1) CAMUs that are approved prior to the
effective date of today's rulemaking and (2) CAMUs that were not
approved prior to the effective date of today's rulemaking but for
which substantially complete applications (or equivalents) were
submitted to the Agency on or before 90 days after publication of the
proposal (i.e., where substantially complete applications (or
equivalents) were submitted on or before November 20, 2000). This
approach is referred to as ``grandfathering.''
As discussed in the proposal, EPA continues to believe that it
would be a poor use of cleanup resources to require reevaluation, in
light of today's amendments, of CAMUs that are already approved or are
substantially in the approval process (65 FR 51111-51112, August 22,
2000). The Agency's review of CAMUs approved under the 1993 rule showed
that the CAMU decisions made under the 1993 rule would generally have
been the same, or similar, to decisions that would likely be made under
today's amendments. In general, commenters strongly supported the
grandfathering approach, and EPA is today finalizing the grandfathering
provisions as proposed.
The proposed effective date for the CAMU amendments was 90 days
after publication in the Federal Register. Under RCRA Section 3010(b),
RCRA regulations become effective six months after promulgation unless
the Administrator provides for a shorter period because the ``regulated
community does not need six months to come into compliance'' or for
``other good cause.'' As discussed in the proposal (65 FR 51118), EPA
proposed a 90-day effective date, believing that it provided ample time
for facilities to adjust to the new procedures and waste management
standards in today's rule, especially given that the 90-day effective
date would only affect unapproved CAMUs that do not meet the criteria
for grandfathering.
A number of commenters expressed the concern that ninety days from
public notice of the final CAMU amendments does not provide enough time
to allow for approval of CAMUs under the 1993 rule and suggested that
the Agency instead provide a 180-day effective date. Commenters appear
concerned that a 90-day period would not provide enough time for EPA or
authorized states to approve CAMU applications for units that were not
already grandfathered by virtue of having a substantially complete
application submitted by November 20, 2000. Given the scope of the
grandfathering relief provided in the proposal, EPA believes this
concern is unwarranted. CAMUs will be grandfathered if the application
is approved within ninety days after the publication of the rule, or if
the Agency received a substantially complete application (or equivalent
\49\) within 90 days of the proposal of today's amendments (i.e., by
November 20, 2000).\50\ Therefore, facility owners/operators who
submitted a ``substantially complete'' application to the appropriate
regulatory agency by November 20, 2000, do not need to worry about
whether their applications have been approved by the effective date of
today's rule; their CAMUs--if approved--are grandfathered and will be
subject to the standards that were in place when they submitted their
applications (that is, to the 1993 CAMU rule standards). The 90-day
effective date would have relevance only to applications that were not
substantially complete by November 20, 2000, or (for applications not
complete by that time) that had not been approved by the effective date.
---------------------------------------------------------------------------

\49\ CERCLA decision documents and state cleanup program
decision documents in which CAMUs are proposed as applicable or relevant
and appropriate requirements are considered ``equivalent'' documents.
\50\ As discussed in the proposal, ``substantially complete''
does not mean that the Regional Administrator must have deemed an
application ``complete'' under Sec. 270.10(c). Some commenters
seemed confused on this point. For additional guidance on the
meaning of substantially complete, see the proposal at 65 FR 51112
(August 22, 2000).
---------------------------------------------------------------------------

The Agency does not see any justification for further extending the
process that it laid out in the proposal. The purpose of the
grandfathering provision is to avoid disruptions of CAMUs that have
already been approved or that are well along in the review process. It
is not to accommodate facility owners who submit new CAMU applications
after the proposal of the CAMU amendments in an effort to obtain
approval before the amendments become final. Therefore, although EPA
understands commenters' interest in extending the effective date
further, it is

[[Page 3004]]

unpersuaded that an additional 90 days is needed or that a failure to
provide that additional time will disrupt ongoing remedial activities
or significantly set back ongoing reviews of CAMU applications.\51\
---------------------------------------------------------------------------

\51\ The Agency also notes that the signature of the final rule
was delayed by several months beyond EPA's original expectations,
thereby giving commenters much of the time they requested.
---------------------------------------------------------------------------

CAMUs that are grandfathered will remain subject to the 1993 CAMU
rule for the life of the CAMU ``so long as the waste, waste management
activities, and design of the CAMU remain within the general scope of
the CAMU as approved.'' As discussed in the proposal, the Agency
believes that there are two types of site-specific circumstances under
which decision makers would generally determine that changes are
``within the general scope of the CAMU as approved.'' First, any change
that could be made without modification of the approved CAMU conditions
in a permit or other authorizing document would be considered ``within
the general scope of the CAMU as approved'' and would therefore be
grandfathered. Second, changes that require modification of the CAMU
authorizing document but still remain within the general scope of the
CAMU as originally approved may be allowed on a site-specific basis.
These changes might include allowing additional placement of
essentially the same wastes (or wastes with similar constituents and
origin) that were originally approved for placement in a CAMU, or
retaining the same basic design but enlarging a CAMU to accommodate an
extra volume of waste. One commenter asked for clarification on the
effect of permit changes to extend the duration of a CAMU. Changes to
an authorizing document, including document renewals, to allow
continued operation of a CAMU, as long as the continued operation of
that duration was within the original ``general scope,'' would not
affect the grandfathered status of the CAMU (e.g., where the intended
life of an approved CAMU extended beyond the existing duration of the
unit or facility permit, renewal of the permit to extend the CAMUs
authorization would be ``within the general scope of the CAMU as
approved''). See 65 FR 51112, August 22, 2000. Commenters supported the
approach in the proposal, and EPA's views on these issues are unchanged.
Some commenters expressed concern that changes determined outside
the scope of the CAMU as originally approved would automatically result
in an entirely new CAMU approval process or cause an entire CAMU to
lose its ``grandfathered'' status. This was not EPA's intention. EPA
clarifies that an entirely new CAMU approval process is not needed for
changes that are determined outside the scope of the originally
approved CAMU, and such changes will not cause an entire CAMU to
automatically lose its grandfathered status. Changes that are
determined to be outside the scope of the originally approved CAMU
(like other changes) would be subject to review and approval of the
Regional Administrator and today's requirements would apply to them, if
applicable. For example, a change to add a new type of waste to a CAMU
that is considered outside the scope of the originally approved CAMU
would trigger a duty to comply with today's treatment requirements with
respect to that waste, but it would not require a new review, for
example, of waste already disposed of in the CAMU or waste within the
scope of the original approval.
EPA understands how its proposed language on grandfathering led to
the commenters' concern, and therefore the Agency is making a change to
that language to clarify its original intent. The proposed language
(Sec. 264.550(b)) stated that grandfathered CAMUs are subject to the
earlier CAMU standards, in Sec. 264.551, ``so long as the waste, waste
management activities, and design of the CAMU remain within the general
scope of the CAMU as approved.'' To make it clear that a change in one
feature of the CAMU (for example, the waste to be managed) would not
automatically require a reapproval of the entire CAMU under the new
standards, EPA has revised the final clause to read: ``CAMU waste,
activities, and design will not be subject to the new standards as long
as the waste, activities, and design remain within the general scope of
the CAMU as approved.'' Thus, the placement of new waste in a
grandfathered CAMU outside the scope of the original approval would
require that the new waste meet the treatment standards of today's
rule, and certainly operating and closure standards for the CAMU would
be modified if necessary to address the new waste, but the entire CAMU
would not have to undergo reapproval under the terms of today's rule.

M. Public Participation (40 CFR 264.552(h))

EPA proposed to expand and clarify the requirements providing for
public participation in decisions to establish CAMUs by making prior
public notice and an opportunity for public comment mandatory for all
final CAMU determinations. EPA also proposed to expressly require the
Regional Administrator to include in CAMU public notices the rationale
for any proposed application of the treatment adjustment factors
discussed earlier in today's rulemaking. Consistent with its overall
policy to encourage full, fair, and equitable public participation
throughout cleanup processes, the Agency believes that the public must
be provided opportunities to participate in CAMU decision making and is
finalizing the public participation requirements as proposed.
Today's public participation requirements for CAMUs expand on the
public participation requirements established in the 1993 CAMU rule.
This rule required the Regional Administrator to document his or her
decision rationale and make the documentation available to the public,
and it required that the incorporation of CAMUs into existing permits
be done through the permit modification procedures (including the
public participation procedures) of Sec. 270.41 or Sec. 270.42. The
rule did not establish procedures for incorporating CAMUs into orders,
or mandate that there be an opportunity for public comment before a
decision outside of the permit context. Under today's rules, the
Regional Administrator must provide ``public notice and reasonable
opportunity for public comment before designating a CAMU.'' Thus, under
today's regulations, the public will have an opportunity to be involved
in all final CAMU determinations before final decisions are made,
whether a CAMU is authorized under a RCRA permit or an order.
Commenters generally supported the explicit requirement for public
notice and opportunity for comment prior to final CAMU determinations.
As discussed in the proposal, the Agency believes that the standard
of ``reasonable opportunity'' should, as a general minimum, include
informing people about a prospective CAMU and providing a meaningful
opportunity for people to comment to the Regional Administrator before
a final agency determination is made regarding the CAMU (65 FR 51113,
August 22, 2000). At the same time, by not including more detailed
provisions on how public participation should be conducted, the Agency
believes that the ``reasonable opportunity'' standard provides the
flexibility that is necessary to ensure that CAMUs can be considered
and approved within the broader context of cleanup decisions using the
wide variety of administrative mechanisms that may be associated with
cleanups.

[[Page 3005]]

In many cases, the Agency expects that CAMUs will be approved as
part of a larger remedy selection decision. In general, remedy decision
processes already include opportunities for public review and comment.
The Agency expects that CAMUs approved as part of a broader remedy
selection decision would undergo public notice and comment as part of
that decision. The Agency believes that placing CAMUs in the context of
the broader remedies of which they are a part will be helpful to the
public reviewing CAMU proposals. (Where CAMUs are approved as part of a
permit modification, the existing permit modification procedures
(including the public participation) of Sec. 270.41 or Sec. 270.42(c)
would apply; however, even in these cases, EPA expects that the CAMU
approval and the remedy decision could be done as a single
modification.) In addition to public notice and an opportunity for
comment before a final CAMU determination is made, the ``reasonable
opportunity'' standard includes the idea that Regional Administrators
provide sufficient information (e.g., a description of the proposed
CAMU) to allow the public to consider the proposal in a meaningful way.
In addition to the requirement that Regional Administrators provide
a ``reasonable opportunity'' for public comment before making a CAMU
determination, today's rulemaking specifically requires Regional
Administrators to include the rationale for any proposed adjustments to
the CAMU treatment standards. As discussed in the proposal, the Agency
is including this provision to highlight the importance of the
treatment adjustment factors and because decisions about treatment,
including the degree of treatment necessary at any given site, are
often of great interest to the public.
In the proposal, EPA requested comment on whether to apply the
public participation procedures in the Agency's RCRA Expanded Public
Participation Rule (60 FR 63417, December 11, 1995, 40 CFR part 124,
subpart B) to all CAMU decisions. Comments on the idea of requiring the
expanded public participation requirements at all final CAMU
determinations were mixed. Some commenters strongly supported applying
the expanded public participation requirements to all final CAMU
determinations. (The expanded public participation requirements now
apply only to CAMUs approved as part of an initial permit. They do not
apply to CAMUs incorporated into permits through permit modifications
(see 40 CFR 124.31(a))--although these modifications do require the
facility to notify the public and hold a public meeting at the time it
applies for the modification (see 40 CFR 270.42(c))--or to CAMUs
required through orders.) Other commenters thought application of the
expanded public participation rule requirements--such as pre-
application meetings--would not be appropriate for all final CAMU
decisions. After considering these comments carefully, the Agency has
decided not to apply the expanded public participation requirements by
regulation to all CAMU determinations.\52\
---------------------------------------------------------------------------

\52\ Under Sec. 270.42, permit modifications to approve CAMUs
are classified as Class 3 modifications. Class 3 permit modification
procedures, which were developed prior to the Expanded Public
Participation rule, are similar to the procedures in that rule in
requiring public participation before the Agency publishes a
proposal to approve a draft permit (or a proposed decision to deny),
but they differ in important respects. Under the Class 3 permit
modification requirements, permit applicants must notify the public
at the time they request a permit modification (rather than before
the application is submitted), and they must hold a public meeting
and solicit comment on the modification request, before EPA proposes
to issue or deny the modification request. The expanded public
participation requirements for part B permits, on the other hand,
require that the facility hold an informal meeting to inform
community members of proposed hazardous waste management activities
before they apply for a permit; the permitting agency must announce
to the public when the permit application is submitted; and the
permitting agency may require a facility to set up an information
repository. The part B expanded public participation procedures do
not apply to Remedial Action Plans issued under the Hazardous Waste
Identification Rule for Contaminated Media (see 63 FR 65898,
November 30, 1998), or to post-closure permits (40 CFR 124.31(a)).
---------------------------------------------------------------------------

EPA is taking this approach, in part, because the conditions of the
expanded public participation rule mirror the specifics of the RCRA
Part B permit process, and therefore may not fit well with other
mechanisms that might be used to approve CAMUs. For example, the
expanded public participation rule requires public notice in the local
newspaper and by radio or television. EPA believes this level of
specificity is inappropriate as a general requirement outside the
context of RCRA Part B permits. The requirements for a preapplication
meeting conducted by the facility owner are similarly detailed, and the
meeting itself is likely to be redundant at many cleanups where public
involvement is addressed through the broader remedial process. Instead,
the Agency believes that the ``reasonable opportunity'' standard
discussed above and the requirement that Regional Administrators
include express information about any proposed adjustment to CAMU
treatment requirements provide an appropriate minimum performance
standard for public involvement in final CAMU determinations (i.e.,
they guarantee that the public will have a meaningful opportunity to be
involved in all final CAMU determinations before a final decision is
made) while maintaining the flexibility for regulators to tailor the
specifics of the public involvement process to the particular site, the
specific needs and interests of the public in the area, and the
particular mechanism used.
The Agency reiterates that today's regulations represent the
minimum amount of public involvement that is appropriate for final CAMU
determinations. The Agency strongly encourages all CAMU decision makers
to consider additional opportunities for public involvement in
important cleanup decisions, such as final CAMU determinations, within
the context of the broader cleanup. The Agency's current guidance on
public participation during corrective action can be found in the September
1996 RCRA Public Participation Manual (see Chapter 4 in particular).
As discussed in the proposal, the Agency is continuing to review
the best ways of enhancing the role of the public in RCRA cleanup
decisions (including CAMU determinations), as part of its evaluation of
public involvement in the overall RCRA corrective action program
undertaken as part of the RCRA Cleanup Reforms. Public participation in
the CAMU process will be informed by this initiative. The Agency
continues to seek feedback from all stakeholders on the RCRA Cleanup
reforms. Additional information is available at www.epa.gov/epaoswer/
osw/cleanup.htm or by calling the RCRA Hotline at 1-800-424-9346 or the
other numbers listed in the ADDRESSES section of today's rulemaking.

N. Additional Requirements ((40 CFR 264.552(i))

As discussed throughout today's rulemaking, cleanup situations will
vary considerably across sites. As part of its effort to balance
predictability and certainty in cleanup decision making with site-
specific flexibility, EPA proposed and is today finalizing a number of
minimum technical standards for CAMU design and operation, while at the
same time allowing Regional Administrators to approve alternate
standards on a site-specific basis. The Agency also proposed to modify
the requirement from the 1993 CAMU rule to expressly allow the Regional
Administrator to establish additional CAMU requirements on a site-
specific basis to

[[Page 3006]]

protect human health and the environment. The Agency proposed that
``notwithstanding any other provision of this section, the Regional
Administrator may impose additional requirements as necessary to
protect human health and the environment.'' Commenters generally
supported this approach, and the Agency is today finalizing this
provision as proposed.
As discussed in the proposal, the Agency believes that this new
construction of the Regional Administrator's existing authority (under
the 1993 CAMU rule) to impose ``additional requirements as necessary to
protect human health and the environment'' is appropriate to clarify
that, on a site-specific basis, Regional Administrators may impose
additional requirements beyond the more detailed minimum technical and
operational standards for CAMUs established today. Such additional
requirements might include, for example, additional treatment of PHCs
beyond the treatment standards, additional engineering or monitoring
specifications, and prohibitions on the placement of specific CAMU-
eligible wastes in a CAMU.
While agreeing with the general concept of allowing Regional
Administrators to impose additional requirements as necessary to
protect human health and the environment, one commenter expressed
concern that the proposed regulatory language did not adequately
emphasize the site-specific nature of decisions to impose additional
requirements beyond the requirements established today, or the need for
such requirements to be supported in the administrative record for a
CAMU and to be consistent with the overall objectives of the CAMU
regulations. The Agency is not persuaded that a change to the rule
language is needed to clarify these points. The Agency agrees that,
like other elements of CAMU decision making, decisions to impose
additional requirements (like any other Agency decision made in
approving a CAMU) must be made on a site-specific basis and supported
by the administrative record. As discussed in the proposal, this
requirement for the most part only confirms an obligation that EPA
already has as part of the ``omnibus'' provision in RCRA permitting at
40 CFR 270.32(b)--that is, that the Regional Administrator must
establish, in individual permits, ''. . . terms and conditions as the
Administrator or State Director determines necessary to protect human
health and the environment.'' The RCRA omnibus provision for permits
does not include specific regulatory language emphasizing that the
decision must be site-specific or that actions must be justified in the
administrative record, yet such decisions are held to those standards
(See, e.g., In re Caribe General Electric Products, Inc., RCRA Appeal,
No. 98-3 (February 4, 2001); In re Ash Grove Cement Co., RCRA Appeals
Nos. 96-4 and 96-5, 1997 EPA App. LEXIS 30 (November 14, 1997).
Similarly, EPA does not believe such language is needed here.

IV. Relationship To Other Regulatory Programs

Today's amendments do not change the relationship between other
state and federal programs and the CAMU regulations. These amendments
solely affect the way hazardous cleanup wastes are managed in
corrective action management units. These rules set standards for
hazardous waste management units when EPA or a state chooses to take
advantage of the flexibility provided by the CAMU rule, but they do not
affect, in any way, other aspects of RCRA cleanups, e.g., how cleanup
levels are set or when treatment is required at RCRA corrective action
facilities. Although these standards borrow, as appropriate, from
approaches in current remediation programs (including RCRA corrective
action for solid waste management units), they were not designed for
making remedial decisions outside the CAMU context, such as in state or
federal cleanup programs, where program-specific remedial decision-
making processes are already in use. Today's rule leaves in place, and
leaves untouched, all of EPA's current policies and regulations
covering hazardous waste cleanups, including such familiar policies as
the ``area of contamination'' concept, ``contained-in'' decisions, the
regulatory definition of ``remediation waste,'' and the various
remediation-specific LDR variances. For a discussion of these and other
policies, see the May, 1996 Corrective Action ANPR (61 FR 19432), the
October 1998 Memorandum, Management of Remediation Waste Under RCRA,
EPA530-F-98-026, RCRA Docket No. F-2000-ACAP-S0025, and the preamble
discussion to the HWIR-media rule at 63 FR 65874, 65877-65878 (November
30, 1998) (these references are in the RCRA docket;). The preamble to
the 1993 CAMU rule discusses the relationship between the CAMU rule and
other regulatory programs, including CERCLA (see 58 FR 8658, 8679
(February 16, 1993)).

V. How Will Today's Regulatory Changes be Administered and Enforced
in the States?

A. Applicability of Federal Rules in Authorized States

Under section 3006 of RCRA, EPA may authorize a qualified state to
administer and enforce a hazardous waste program within the State in
lieu of the federal program, and to issue and enforce permits in the
state. A state may receive authorization by following the approval
process described under 40 CFR 271.21. See 40 CFR part 271 for the
overall standards and requirements for authorization. EPA continues to
have independent authority to bring enforcement actions under RCRA
sections 3007, 3008, 3013, and 7003. An authorized state also continues
to 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.

B. Authorization of States for Today's Final Rule (Other than Sec. 264.555)

Today's CAMU amendments will be primarily implemented pursuant to
section 3004(u) and (v) of RCRA, which are HSWA provisions. This
authority also formed the statutory basis for the original federal
Corrective Action Management Unit (CAMU) regulations (see 58 FR 8658,
8677 (February 16, 1993)). Therefore, the Agency is adding

[[Page 3007]]

this rule to Table 1 in Sec. 271.1(j), which identifies the federal
program requirements that are promulgated pursuant to HSWA. The Agency
received a number of comments regarding the statutory authority for
today's amendments. They are discussed below.
Today's amendments to the CAMU regulations (except for
Sec. 264.555) are more stringent than the existing federal CAMU
regulations.\53\ Thus, states that have already been granted
authorization for the existing 1993 CAMU rule must revise their
programs so that they are not less stringent than the federal program,
including today's amendments. Further, because today's amendments to
the CAMU regulations are promulgated under HSWA authority, in states
authorized for the 1993 CAMU rule that choose to not seek interim
authorization-by-rule, EPA will implement today's amendments until
these states receive interim or final authorization. EPA will also
continue to implement the amended CAMU regulations consistent with
applicable, more stringent state law in those states that have not
received authorization for corrective action. As explained in the 1993
CAMU rule preamble (see 58 FR 8658 (February 16, 1993)), the CAMU rule
is integral to the HSWA corrective action program, and where EPA
implements the corrective action requirements, EPA also implements the
CAMU rule consistent with applicable more stringent state law. Note
that section 3009 of RCRA allows state laws or regulations to be more
stringent or broader in scope than the federal regulations.
---------------------------------------------------------------------------

\53\ The following section does not apply to Sec. 264.555 of
today's rule, because it is a less stringent HSWA provision. For a
discussion of this provision, see section V.E of this preamble.
---------------------------------------------------------------------------

States that are authorized for corrective action but have not
received authorization for the 1993 CAMU rule are not required to seek
authorization for today's amended CAMU regulations because those
states' authorized regulations for corrective action and Land Disposal
Restrictions (LDRs) are more stringent than the federal regulations,
which provide for CAMUs. Because CAMUs are used as part of a corrective
action and are often integral to the implementation of corrective
action at individual facilities, states are strongly encouraged to
adopt and seek authorization for the CAMU regulations. After
publication of today's final CAMU amendments, states may continue to
receive authorization for the 1993 CAMU rule. However, EPA strongly
discourages states from seeking authorization for the CAMU regulations
without today's amendments because EPA will implement these amendments
in those states.
One commenter argued that EPA should promulgate today's ``modified
rule'' under non-HSWA authority. Specifically, the commenter believes
that the amendments are better promulgated under the authority of
section 3004(a) of RCRA, which provides the authority for hazardous
waste management unit standards, than under the corrective action
standards of RCRA sections 3004(u) and 3008(h). This commenter also
argued that there is no basis on which to conclude that the CAMU rule,
when applied to facilities not subject to RCRA corrective action, is
promulgated pursuant to HSWA authorities.
In response, EPA first notes that the comment urges the Agency to
change its approach for the CAMU rule as a whole, not just for today's
amendments. However, redesignating the entire CAMU rule as non-HSWA was
not at issue in the CAMU amendments proposal. The only issue the Agency
discussed in the proposal was the authority for the modifications to
the CAMU rule. 65 FR 51114. Any comments that are not specific to those
amendments are therefore outside the scope of today's rulemaking. The
Agency is thus not changing the designation of the CAMU rule to non-HSWA.
As for whether the amendments alone are appropriately considered
HSWA, the Agency continues to believe that they are for several
reasons. First, today's amendments simply flesh out otherwise existing
requirements of the CAMU rule. Just because these provisions are now
more detailed does not mean that the authority under which they are
implemented must change. More specifically, even with the added detail,
the standards remain very tailored to the cleanup scenario, and they
were designed to further the objectives of the corrective action
program. For example, the identification of principal hazardous
constituents, the balancing criteria inherent in much of the rule (for
example, in the adjustment factors), the way many of the conditions
derive from site remedial decisions (e.g., the alternative liner
standards or the treatment adjustment factor based on cleanup levels),
and similar aspects of the rule are inextricably linked to the remedy
decisions at corrective action sites. In fact, the standards
promulgated today are integral to satisfying EPA's obligation to ensure
that corrective actions both move forward expeditiously and protect
human health and the environment. RCRA section 3004(u); 40 CFR 264.101.
They are therefore appropriately considered promulgated pursuant to the
corrective action authorities.
Second, as stated in the proposal, although the CAMU rule language
was amended in the HWIR-Media rule to make it clear that CAMUs may be
used at ``cleanup-only'' facilities,\54\ today's amendments (like the
original CAMU rule) were developed primarily with corrective action
sites in mind. For example, almost all of the CAMUs identified in EPA's
site background document are at RCRA corrective action facilities.
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\54\ ``Clean-up only'' facilities are sites that are subject to
RCRA permitting requirements solely because clean-up activities at
the facility trigger those requirements. The HWIR-Media rule
eliminated facility-wide corrective action requirements in permits
issued to clean-up only facilities. The Agency notes that under the
HWIR-Media amendment to the CAMU rule, the universe of facilities
subject to the CAMU rule did not change. The language was necessary
to preserve the status quo, since the HWIR-Media rule removed
cleanup-only facilities from the universe of facilities subject to
RCRA's section 3004(u) facility-wide corrective action requirement.
(63 FR 65880, November 30, 1998).
---------------------------------------------------------------------------

Similarly, the Agency does not believe that it would be appropriate
to treat the CAMU rule as it applies to non-RCRA corrective action
sites as non-HSWA while treating the rule in all other instances as
HSWA. Although one commenter argued that the ``Agency took no position
on whether [allowing CAMUs to be used at ``cleanup-only'' facilities]
was a HSWA determination or not,'' the Agency generally believes it is
best to avoid bifurcating individual rules into HSWA and RCRA
requirements. In any event, this comment is also outside the scope of
today's rulemaking as it pertains to any provisions other than today's
amendments. As discussed above, the Agency does not believe it would
make sense to implement the amendments under a different authority than
the balance of the rule.
Finally, EPA notes that it has addressed the specific concerns
that, it assumes, lie behind the comments that this rule should be a
RCRA rule. In the approach EPA has adopted in today's rule allowing
interim authorization-by-rule, states will be able to become interim-
authorized for the rule before it takes effect, eliminating any
possible transitional problems or dual regulation that the original
base RCRA authorization process was designed to avoid. Further, EPA has
eliminated from today's final rule the two aspects of the proposal that
commenters identified as causing potential transition problems--the
exclusion of states with problematic

[[Page 3008]]

audit immunity and privilege laws from eligibility for authorization-
by-rule, and the termination of interim authorization if EPA has not
acted on final authorization within a specific period of time. Since
EPA has addressed any potential disruption resulting from classifying
today's rule as a HSWA rule, the commenters' only remaining concern
would be that they would become subject to the more stringent
requirements of the rule before they preferred to be. Given how
intimately linked the requirements in today's rule are to the HSWA
requirement for protective corrrective action at RCRA facilities, and
given Congress's clear direction in HSWA that corrective action
requirements should be immediately effective (even in authorized
states), EPA believes that it would frustrate the intent of Congress to
allow years of delay in the actual implementation of this rule.\55\
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\55\ Under the RCRA authorization process, states have up to two
years to amend their regulations to come into compliance with more
stringent RCRA requirements. Generally, states meet this
requirement. However, if they fail to do so, EPA's recourse is to
begin steps to withdraw the state program's authorization to run the
RCRA program. Under current regulations, state program withdrawal is
a lengthy process.
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C. Interim Authorization-by-Rule for States Currently Authorized for
the CAMU Regulations

1. Background and List of States Eligible for Interim Authorization-by-Rule
As described above, today's amendments are promulgated under HSWA
statutory authority and are more stringent than the existing CAMU
regulations (except for Sec. 264.555). Thus, in states that are
authorized for the 1993 CAMU rule, there is the potential for dual
implementation of the CAMU regulations if these states are not
authorized for today's amendments before they become effective. This
dual implementation is a result of states continuing to implement the
provisions of the 1993 CAMU rule, while EPA implements today's amendments.
To avoid this potential disruption in the implementation of the
RCRA cleanup program caused by the regulatory authority for CAMUs being
split between states and EPA, we proposed two authorization actions
that would enable states to gain interim authorization for today's
final amendments. First, EPA proposed a new authorization procedure
called interim authorization-by-rule. Second, EPA proposed to use this
new procedure to grant interim authorization to states that have final
authorization for the 1993 CAMU rule and meet other eligibility
criteria. Today, EPA is promulgating the interim authorization-by-rule
procedure and listing those states which are eligible for interim
authorization-by-rule.
EPA has determined that states which have met the criteria
promulgated today in 40 CFR 271.27 are eligible for interim
authorization-by-rule. These eligible states will have interim
authorization if they notify EPA that they are willing and able to
implement the amended CAMU regulations under 40 CFR 271.27(a)(2). This
interim authorization is granted through a process that is promulgated
as a part of today's rule in 40 CFR 271.27. Currently, 28 states are
authorized for the existing CAMU regulations and meet the criteria for
interim authorization-by-rule. These states are also authorized for
corrective action. The eligible states are: Alabama, Arizona,
California, Delaware, Florida, Georgia, Hawaii, Idaho, Illinois,
Indiana, Louisiana, Nevada, New Mexico, New York, North Carolina, North
Dakota, Oklahoma, Oregon, South Carolina, South Dakota, Tennessee,
Texas, Utah, Vermont, Virginia, Washington, Wisconsin, and Wyoming.
2. Eligibility criteria and process for interim authorization-by-rule
Under today's interim authorization-by-rule procedure, states are
eligible for interim authorization for the CAMU amendments if they have
final authorization for the 1993 CAMU rule (58 FR 8658, February 16,
1993), and notify EPA within 60 days after publication of today's
notice that they intend to and are able to use today's amendments as
guidance in the implementation of their CAMU regulations until they
adopt equivalent provisions. As discussed in the preamble to the
proposed rule, these authorized states are currently responsible for
the implementation of the CAMU rule, including reviewing applications
for CAMUs from facilities and overseeing the operation of approved
CAMUs. EPA continues to believe that in general, CAMUs approved under
the standards in the 1993 rule could be approved under today's amended
CAMU regulations. Thus, EPA has determined that these states have
regulations which are substantially equivalent to the amended CAMU
regulations.
Today's rule requires states that want interim authorization to
notify EPA within 60 days after publication of today's notice that the
state intends to and is able to use today's amendments as guidance in
the implementation of their CAMU regulations until it adopts equivalent
provisions. This requirement is located at 40 CFR 271.27(a)(2). During
the 60-days period after today, the eligible states listed above should
evaluate today's final amendments and decide whether they can and want
to seek interim authorization-by-rule. If a state decides to seek
interim authorization-by-rule, the state must send a letter to the
Regional Administrator which informs EPA of this intention. After this
60-day period ends, EPA will publish an additional Federal Register
notice identifying which states have submitted the notification to EPA,
and thus have interim authorization for the CAMU amendments.
EPA received several comments regarding the state notification
deadline. One commenter thought that the time period for notification
was too short, while others believed that it was reasonable. EPA is
reassured by state commenters who had no concerns regarding the
deadline, which remains at 60 days after publication of today's rule.
EPA has alerted states to this deadline, and EPA continues to discuss
today's rule with states in order to ensure they are aware of the
notification deadline. EPA also believes that this determination will
be straightforward for states, and the procedural requirement is minimal.
One commenter believed that states eligible for interim
authorization-by-rule should be able to submit their notifications to
EPA of their ability to have interim authorization after the proposed
60-day deadline, as long as the notification is submitted before
interim authorization for the CAMU rule amendments expires. EPA
understands the reasons for this comment, but intends to complete the
interim authorization-by-rule process by the effective date of today's
final rule since the final action will be the placement of a Federal
Register notice which informs the public what states have interim
authorization for today's CAMU amendments. EPA is concerned that
confusion may arise if different states qualify for interim
authorization-by-rule at different times. Moreover, given the few
changes from the proposal, EPA sees no reason, and the commenter
provided none, why states cannot submit their notifications within 60
days. As described below, states that are authorized for the 1993 CAMU
rule may also be able to apply for interim authorization using an
expedited process similar to that used today. Note that this interim
authorization would expire on August 30, 2004.
Eligible states may choose not to use this interim authorization-
by-rule process. If they are not able to, or choose

[[Page 3009]]

not to seek interim authorization-by-rule, they can follow the process
outlined in section F below for states that are authorized for
corrective action, but not the 1993 CAMU rule.
In the August 22, 2000 proposed rule (65 FR 51116), EPA sought
comment on restricting the eligibility of states with audit privilege
and immunity laws for interim authorization-by-rule. Specifically, EPA
proposed that under Sec. 271.27(a)(2), states with audit privilege and
immunity laws that raised EPA concerns about whether the state had
adequate enforcement as required for the purpose of final authorization
under RCRA section 3006(b) would not be eligible for interim
authorization-by-rule for today's CAMU amendments.
In the August 22, 2000 proposed rule, Oregon, Nevada, and Illinois
were identified as states with audit privilege and immunity laws that
would not be eligible for the CAMU interim authorization-by-rule. Since
publication of the proposed rule, Oregon and Nevada have taken actions
which resolved EPA's concerns with their audit laws. Therefore, the
audit laws in Oregon and Nevada no longer present a barrier to the
authorization of federal environmental programs. Oregon and Nevada are
eligible for interim authorization-by-rule for today's CAMU amendments
and neither state will be ineligible for final authorization of today's
CAMU amendments due to audit privilege and immunity laws.
In addition, EPA has decided interim authorization-by-rule for
states with audit privilege and immunity laws that raise EPA concerns
regarding the adequacy of state enforcement authorities for the purpose
of final authorization under RCRA section 3006(b). However, because
audit privilege and immunity laws, without sufficient safeguards and
conditions, can undermine the enforcement authority that a state must
possess as a condition of having final authorization to implement
federal environmental programs, states granted interim authorization-
by-rule will still be required to resolve their audit law conflicts
where necessary to meet minimum federal requirements as a condition of
final CAMU program authorization.
EPA bases its decision on the following rationale. First, interim
authorization does not necessarily require a finding by EPA that the
state program provides adequate enforcement, but rather a finding that
the state program requirements are substantially equivalent to the
federal program requirements. Second, even if adequacy of enforcement
were considered part of equivalence, Illinois's CAMU program is
substantially equivalent, if not completely equivalent, to the federal
program. The judgment of substantial equivalence must be made looking
at the program as a whole, and EPA does not believe that the fact that
Illinois's enforcement authority may be circumscribed in the specific
circumstances affected by its audit privilege law undermines the
substantial equivalence of its CAMU program as a whole. This conclusion
is supported by the fact that the audit privilege issues are not an
aspect of Illinois's CAMU program per se but affect its hazardous waste
program generally. Third, interim authorization will provide a state
with the opportunity to address problems and issues associated with the
state's environmental audit privilege and/or penalty immunity law. EPA
will continue to work with states during this interim approval period
to remedy any deficiencies in their laws or help implement today's CAMU
amendments. Additionally, it is EPA's position that any subsequently
enacted audit law or other law that conflicts with minimum federal
authorization requirements would make a state ineligible for final
authorization of the CAMU program.
The State of Illinois continues to have an audit privilege law that
raises EPA concerns as to the adequacy of state enforcement authorities
for the purpose of final authorization under RCRA section 3006(b).
While Illinois is eligible for interim authorization-by-rule of today's
CAMU amendments, under the approach outlined above, final authorization
of Illinois's CAMU program will not be granted until Illinois resolves
its audit law conflicts to meet the minimum requirements for
authorization under RCRA section 3006(b).
In addition, Illinois has another law, referred to as the
``Illinois Site Remediation Law'' that raises EPA concerns regarding
the adequacy of state enforcement authorities for the purpose of final
authorization under RCRA section 3006(b). The Illinois Site Remediation
Law \56\ replaces strict liability with limited liability requiring
proof of causation for all remediations under the Illinois
Environmental Protection and Groundwater Protection Acts, including the
RCRA program. This law increases the state's burden of proof necessary
to establish a violation under federally approved Illinois programs,
thereby affecting the adequacy of the state's enforcement authority
under these programs. EPA has notified Illinois of its concerns
regarding the Illinois Site Remediation Law.\57\ As a condition for
final authorization of the CAMU program, and, unless circumstances
regarding the Site Remediation Law change, Illinois must modify its
Site Remediation Law to meet the minimum requirements for final
authorization under RCRA section 3006(b). EPA will continue to work
closely with Illinois officials to address authorization issues for
both the Illinois Audit Law and the Illinois Site Remediation Law.
---------------------------------------------------------------------------

\56\ Illinois Environmental Protection Act, 415 ILCS 5/58.9.
\57\ See January 11, 1999, letter from David Ullrich, Region V
Acting Regional Administrator, to Mary Gade, Director, Illinois
Environmental Protection Agency, and James Ryan, Illinois Attorney
General, detailing EPA's authorization concerns with the Illinois
Site Remediation Law.
---------------------------------------------------------------------------

D. Expiration of Interim Authorization

In the August 22, 2000 notice, EPA proposed to extend the period of
interim authorization for the CAMU amendments from January 1, 2003 (the
date interim authorization expires under Sec. 271.24(c)) to a date
three years after the effective date of today's amendments. EPA has
considered comments on this proposal, and has modified the date interim
authorization expires for today's amendments to be the date of final
authorization, provided that states submit a final application for
authorization to EPA by August 30, 2004. Under the provisions in
Secs. 271.21(e)(2)(ii), (e)(2)(iv), and (e)(4)(ii), states have two
years after July 1, 2002 to amend their CAMU regulations, and then an
additional 60 days to submit a final authorization application to EPA,
resulting in the August 30, 2004 deadline. This final deadline is
different than the proposed approach, which would have required states
to receive final authorization from EPA by January, 2005. As reflected
in their comments, states were concerned that under the proposed
approach, there would be no deadline for states to submit their application
that would ensure EPA approval by the expiration of interim authorization.
Under the approach in today's final rule, the deadline which states
must meet to retain regulatory authority for today's amendments occurs
sooner than in the proposal, but is at an interim step in the
authorization process, and is not dependent on EPA action. Further,
interim authorization may actually extend for a longer period of time
than in the proposal because it extends until final EPA action is taken
on a state's authorization application. This revised deadline is now
located in new Sec. 271.27(b) and amended Sec. 271.24(c).

[[Page 3010]]

The final approach continues to require a deadline for state action
because of the temporary nature of interim authorization. EPA continues
to believe that final authorization should be the goal.
EPA believes that this extension to the expiration of interim
authorization for the CAMU amendments rule will provide states
sufficient time to amend their regulations so they are equivalent to
the federal CAMU regulations, and then allow them to go through the
final authorization process in Sec. 271.21. If a state does not submit
its final application for today's amendments before the deadline of
August 30, 2004, interim authorization will expire, and EPA would then
be responsible for implementing the new CAMU amendments in these
states. (EPA would not implement the provisions in the 1993 CAMU rule
that were unaffected by the amendments; the authorized states would
continue to implement them.) EPA believes that this potential reversion
of the implementation authority to EPA will act as a strong incentive
for states with interim authorization to expeditiously seek final
authorization. Further, EPA does not believe that this final
authorization process will be particularly difficult. See below for
additional detail regarding EPA's intention to expedite the
authorization of states for the CAMU rule amendments. As part of the
authorization process, EPA commits to reviewing and granting approval
of a final authorization application within the time frame for interim
authorization, provided that states expeditiously amend their
regulations to include today's final amendments.

E. Authorization for Sec. 264.555

Section Sec. 264.555 of today's rule--which allows placement of
CAMU-eligible wastes in off-site hazardous waste landfills--is less
stringent than the existing regulations. Therefore, it 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 Sec. 264.555 have no counterpart in the existing CAMU regulations
(or any other RCRA regulation), this provision will would not be
substantially equivalent to those regulations. Thus, states which are
authorized for the 1993 CAMU rule will not be able to gain interim
authorization-by-rule for the provisions in today's notice. The final
CAMU amendments rule will 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. Of course, the state
could not implement the requirements in a way that was less stringent
than the federal requirements in today's rule, which, in this case,
would include the public participation standards of today's rule. (This
is similar to the approach the Agency took in promulgation of the 1993
CAMU rule. See 58 FR 8677, February 16, 1993.)

F. Authorization of States Currently Authorized for Corrective Action,
but not the Existing CAMU Rule

There are a number of States authorized for corrective action that
are not authorized for the 1993 CAMU rule. This situation applies in
the following twelve states or territories: Arkansas, Colorado, Guam,
Kentucky, Maine, Michigan, Minnesota, Missouri, Mississippi, Montana,
New Hampshire, and Ohio. In addition to these states, some states
authorized for the 1993 CAMU rule may not choose to receive interim
authorization-by-rule. Because CAMUs expedite clean-ups, EPA encourages
all of these states to seek final authorization for the CAMU
regulations, including today's amendments as soon as possible.
(Alternatively, states could request and receive interim authorization
under Sec. 271.24.) EPA also believes that the authorization process
for the CAMU regulations can and should be completed expeditiously.
1. State Applications for Final Authorization
As discussed in the proposal, the state authorization revision
procedures in Sec. 271.21(b) provide EPA with the discretion to
consider the circumstances of individual states when determining what
should be the content of a state's application for final authorization.
EPA believes that states which are authorized for corrective action and
are seeking authorization for the amended CAMU rule generally will not
need to submit a revised Program Description (PD) and Memorandum of
Agreement (MOA) to EPA, where the state program seeking authorization
for the CAMU regulations is the same program that is authorized for
corrective action.
The implementation of the CAMU regulations requires states to make
clean-up decisions that are in effect the same types of decisions
states already implement through their corrective action programs.
Therefore, EPA believes that the adoption and implementation of the
CAMU regulations requires the same technical and resource capability
that states already have to operate the corrective action program.
Generally, no changes to the MOA between the state and EPA should be
needed as a result of the CAMU regulations because Agency coordination
issues have been addressed during the authorization process for
corrective action. However, EPA would have the discretion to request
these documents or other information, if necessary.
EPA believes that states should address the CAMU regulations in a
revised Attorney General's (AG) statement of authority if necessary, or
through other appropriate mechanisms. The CAMU regulations create a new
type of waste management unit that can be used only in certain
situations after a facility application and Agency review process.
Thus, states may need to establish new statutory or regulatory
authority, or interpret their existing authorities to determine that
they can approve and regulate these units.
2. Authorization Approach for States That Adopt the CAMU Regulations by
Reference or Verbatim
Many states adopt federal regulations verbatim or incorporate them
by reference into their regulations. It is likely that many states will
adopt the CAMU regulations in this manner. When states adopt federal
regulations using these methods, it is not difficult for EPA to
determine whether the state regulations are equivalent to their federal
counterparts. Because of this ease of review, and the high priority of
state authorization for the CAMU regulations, the Agency believes that
the authorization process for these states under Sec. 271.21 will be
quick. Thus, once EPA receives an acceptable authorization application
from a state which incorporates the CAMU amendments by reference or
adopts them verbatim, EPA intends to immediately proceed to publish a
direct final rule which grants final authorization to that state. Under
this mechanism, the rule would become effective unless EPA received an
adverse comment, in which case EPA would withdraw the rule prior to the
effective date. An exception to this expectation would be cases where
in EPA's judgment, known issues with the existing state program greatly
affect the program's prospects for authorization.

[[Page 3011]]

An example of such issues would be questions regarding a state's
enforcement authority (e.g., audit law issues), or capability (e.g.,
resource issues). It should also be noted that EPA will process all
state authorization applications for the CAMU regulations as quickly as
possible, regardless of the method of state adoption.

VI. Effective Date

In today's final rule, EPA is retaining the proposed effective date
of 90 days. Regulations promulgated pursuant to RCRA Subtitle C
generally become effective six months after promulgation. However, RCRA
section 3010(b) provides for an earlier, or immediate, effective date
in three circumstances: (1) Where the industry regulated by the rule at
issue does not need six months to come into compliance; (2) the
regulation is in response to an emergency situation; or (3) for other
good cause. Because today's rule ``grandfathers'' CAMUs (see discussion
above in ``Grandfathering CAMUs''), a 90-day effective date would only
affect any unapproved CAMUs that do not meet the criteria for
grandfathering (i.e., CAMUs for which a ``substantially complete''
application had not been submitted by November 20, 2000, and which had
not been approved by the effective date). Thus, at the time this rule
becomes effective, all existing and approved CAMUs will, by definition,
be ``in compliance'' (because they will be grandfathered), and
therefore industry will have no problem in coming into compliance by
the effective date. (Several commenters expressed concern that 90 days
did not provide enough time for them to modify CAMU applications and
become approved by the effective date. These commenters, however, did
not argue that they would be out of compliance unless EPA provided for
a 6 months effective date; instead, their main concern was with the
scope of grandfathering relief. These comments are discussed earlier in
today's preamble in the section on grandfathering.)
One commenter believed that the effective date for today's final
rule should be six months after publication to allow states a longer
time period to notify EPA that they intend to and are able to use
today's amendments as guidance in the implementation of their CAMU
regulations. However, as discussed above, most states supported this
notification deadline.

VII. Conforming Changes (40 CFR Part 260, Subpart S, Sec. 260.10)

Today's rule changes the title of 40 CFR part 264, subpart S from
``Corrective Action for Solid Waste Management Units'' to ``Special
Provisions for Cleanup.'' The current title reflects the Agency's
intention in 1993, when it was added to the CFR, to finalize the
comprehensive corrective action regulations for solid waste management
units proposed in September 1990. 58 FR 8658 (February 16, 1993). As
discussed more fully above, in the section titled ``Releases to Ground
water (Sec. 264.552(e)(5)),'' the Agency withdrew the majority of that
proposal in October 1999. In addition, the current provisions of
subpart S, as well as those finalized today, address CAMUs, temporary
units, and staging piles, which are all units which may only be used
for the management of cleanup wastes, and which, in some instances, may
be used at sites not subject to RCRA corrective action. In addition,
today's rule includes provisions applicable to cleanup wastes disposed
of off-site. EPA therefore believes that this change ensures that the
title of subpart S more accurately conveys the provisions that are
contained within it.
The conforming changes to Sec. 260.10 are made to implement the
distinction being drawn in today's rule between CAMUs that are
grandfathered and CAMUs that are subject to today's standards at
Sec. 264.552. As discussed above in the section titled ``Eligibility of
Wastes for Management in CAMUs,'' EPA is modifying the definition
governing the types of wastes that can be managed in a CAMU, and is
changing the name of waste eligible for management in CAMUs from
``remediation waste'' to ``CAMU-eligible waste.'' This revised
definition applies to new CAMUs but not to CAMUs that qualify to
continue implementation under today's ``grandfathering'' provisions
(see Sec. 264.550). EPA is making two conforming changes as a result of
modifying the definition of remediation waste in this fashion. The
first change is to remove the existing definition of CAMU at
Sec. 260.10 and to include it directly in Sec. 260.551(a) (the
introductory paragraph to the 1993 CAMU provisions, which becomes, as a
result of the regulations finalized today, the regulations applicable
to grandfathered CAMUs). The second change is to modify the existing
definition of CAMU at Sec. 260.10 by changing ``remediation wastes'' to
``CAMU-eligible wastes,'' and to place the definition directly in the
amended CAMU regulations at Sec. 264.552(a).
EPA also changed the term ``remediation waste'' to ``CAMU-eligible
waste'' throughout the CAMU regulatory language.
EPA received no comments on these conforming changes and is
therefore finalizing them as proposed.

VIII.Analytical and Regulatory Requirements

A. Planning and Regulatory Review Under 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.
Pursuant to the terms of Executive Order 12866, it has been
determined that today's final rule is a ``significant regulatory
action'' because of novel legal or policy issues arising in the rule.
As such, this action was submitted to OMB for review. Changes made in
response to OMB suggestions or recommendations will be documented in
the public record. The final rule is estimated to have annual
incremental costs between $217,000 and $452,000, and therefore is not
viewed as economically significant under the Executive Order.
EPA has prepared an economic support document for the final rule
entitled Economic Analysis of the Amendments to the Corrective Action
Management Unit Rule.'' This document can be found in the docket for
today's final rule.
This section of the analysis discusses: (1) The economic analysis
background and purpose, (2) the CAMU administrative approval costs
assessment, (3) the analysis of impacts resulting from the treatment
and unit design requirements, (4) the assessment of potential change in
CAMU usage to result from the rule, and (5) the summation of these
impacts. There were

[[Page 3012]]

no comments on the proposed rule specifically addressing the economic
analysis methodology or results. The Agency discusses economics-related
comments in the relevant sections below. For a complete discussion of
the comments received on the proposed rule, please see the response to
comments document in the docket for today's final rule.
This section also provides a qualitative discussion of the
potential impacts of allowing the placement of CAMU-eligible wastes in
off-site hazardous waste landfills. See section III.K of today's
preamble for a more detailed discussion of this provision.
1. Economic Analysis Background and Purpose
A CAMU is: ``An area within a facility that is used only for
managing CAMU-eligible wastes for implementing corrective action or
cleanup at the facility.'' (40 CFR 264.552) CAMUs may be used to
consolidate hazardous wastes from various areas at the facility. While
one of the chief reasons for CAMU usage is to facilitate more treatment
of cleanup wastes in general (see discussion earlier in the preamble),
wastes placed in CAMUs are not subject to the land disposal restriction
requirements for treatment. In addition, under the 1993 CAMU Rule,
CAMUs are not required to meet the existing 40 CFR part 264 and part
265 minimum design, operating, closure, and post-closure requirements
for hazardous waste units.
The CAMU provisions being finalized today amend the existing CAMU
rule. This economic analysis examines the impacts from these final
amendments compared to the existing CAMU rule provisions. This section
briefly discusses the baseline and post-regulatory scenarios in the
analysis, and provides an overview of the incremental impacts assessed.
a. Framework of the Analysis
The Agency faced two important questions in developing the
framework for this analysis. The first was how to address defining the
universe of facilities affected by today's final rule. The second was
how to assess the incremental changes in CAMUs under the baseline and
post-regulatory scenarios.
The universe of facilities which could potentially employ a CAMU in
remediation, and thus could be affected by today's final rule, includes
facilities performing cleanups under RCRA corrective action, Superfund,
and state cleanup authorities. There are over 6,000 facilities which
could potentially be reached through corrective action authority; this
figure does not include Superfund sites or other cleanup sites where
CAMUs may be used. Of these facilities, today's final rule would not
impose costs on any existing CAMUs that continue to manage wastes in
the general manner for which they were approved, or, of course, on any
facilities which manage their wastes without the use of a CAMU (e.g.,
they send their wastes off-site). Today's final standards apply to
CAMUs which are not subject to the existing standards under the
grandfathering provisions. However, to determine the number of
facilities, out of this total number, which would in fact require
remediation at some point in the future under one of these authorities,
and would employ a CAMU in the remedy, would require significant effort
and yield uncertain results.
Therefore, EPA considered the use of existing data on CAMU usage.
The Agency first examined the 1993 CAMU RIA, which was performed in
support of the current CAMU rule. In this RIA, the Agency projected the
number of facilities which would employ CAMUs in the future. This
projection was based on use of expert panels which reviewed, on a
facility-by-facility basis, a randomly selected sample of 79 corrective
action facilities and determined when CAMUs would be employed in
remediation. The impacts estimated for these facilities were
extrapolated to the corrective action universe to develop a national
estimate of impacts for the CAMU rule. The Agency estimated that the
existing rule would result in CAMUs being employed at approximately
1,500 facilities, which translates to approximately 75 CAMUs per year
over a 20 year period.
However, based on data showing actual CAMU usage over the past
eight years, the Agency believes the 1993 RIA projections do not
represent an accurate forecast of the expected use of CAMUs in the
future. These data, discussed in more detail below, show an actual CAMU
approval rate of approximately six CAMUs per year. The disparity
between the 1993 RIA projections and the actual usage is likely the
result of four factors. First, the 1993 RIA baseline is very different
from the remedial setting which has existed in recent years. Chiefly,
the RIA assumed significant excavation and treatment of wastes at
sites, with heavy reliance on combustion technologies and little use of
innovative treatment or remedial approaches. These alternative
approaches tend to be less expensive than combustion technology, and
are much more available and in use than was anticipated in the 1993
RIA. Therefore, the pervasive demand for CAMUs to lower large remedial
costs did not materialize as anticipated in the 1993 RIA. Second, due
to its timing, the RIA estimates do not include impacts on CAMU use
which resulted from various remedial policy developments such as the
stabilization initiative and the use of environmental indicators. These
developments have resulted in increased stabilization of sites, and
thus less excavation and treatment of wastes (in the short term). This
shift created conditions which reduced the need to rely on CAMUs as
much as had been originally estimated in the 1993 RIA projections.
Additionally, the availability of alternatives to CAMUs, such as
staging piles and areas of contamination and the Phase IV LDR soil
treatment standards, has potentially decreased the use of CAMUs
somewhat compared to that originally projected. Third, given the
historical rate at which facilities have progressed through the various
stages of corrective action to reach a final remedy decision, the
Agency thinks that the CAMU usage projections from the RIA were
unrealistically high. The number of final remedy decisions at
corrective action sites across the nation has not reached 75 per year.
Therefore, it would be impossible to have an average of 75 CAMUs
approved annually. Finally, the Agency believes that CAMU use has been
dampened over the past eight years due to the uncertainty surrounding
the use of CAMUs which resulted from the CAMU litigation, which
followed shortly after the rule's promulgation.
Therefore, the Agency employed the data on existing CAMUs in the
CAMU Site Background Document. EPA collected these data from regional
and state site managers as part of this rulemaking effort. This report
contains information on 47 CAMUs approved to date or scheduled for
approval prior to the effective date of the rule (as of spring 2001).
Under the grandfathering provisions in today's final rule, these CAMUs
will remain subject to the 1993 CAMU regulations (as long as they
continue to operate within the general scope of the originally issued
CAMU authorizing document (e.g., permit)). For each CAMU, the Agency
obtained information on the use of the CAMU at the site, types of
wastes managed, treatment required, and unit design. These data are
contained in the CAMU site background document, which is included in
the docket for today's final rule.
Using these data, the Agency estimated an annual CAMU approval rate
for the past eight years, and applied that rate to project CAMU usage
in the future. In projecting future use based on

[[Page 3013]]

historical data, the Agency assumes that the 47 CAMUs are reasonably
representative of expected future CAMU use. This assumption rests on
the completeness of the data in the CAMU Site Background Document. As
noted, this document contains information from all the CAMUs approved
to date for which the Agency had good data, and therefore provides a
reasonable basis for understanding how the CAMU rule has been
implemented to date. For purposes of this analysis, the Agency assumes
there will be no new regulations or policy initiatives which would
affect CAMU usage in the future. (Note: One exception is the
anticipated change is the removal of the uncertainty associated with
the CAMU litigation. The Agency has assessed the order-of-magnitude
impacts from this change on the CAMU usage rate as a part of the
analysis of the incremental impacts of today's final rule.)
EPA also used these historical data to identify the differences in
a CAMU under the existing rule (baseline case) as compared to a CAMU
under the provisions being finalized today (post-regulatory case). As
discussed in more detail below, the Agency used the information on the
47 existing CAMU remedies to assess consistency with the final
provisions in today's rule. This assessment involved a facility-by-
facility comparison of the existing remedy (baseline case) with the
proposed provisions (post-regulatory case). In such an approach, the
Agency again assumes that these actual CAMU remedies selected in the
past are reasonably representative of CAMU remedies which would be
selected under baseline conditions in the future. The Agency believes
this assumption to be sound for the same reasons stated above regarding
CAMU usage. EPA thinks these remedies are the reasonable outcome of the
existing CAMU regulations implemented within the context of standard
remedial goals for cleanup.
b. Baseline Case Description
The baseline scenario provides a reference against which the
impacts of a particular action (e.g., a regulation) are measured. For
the purposes of this analysis, the baseline is defined as the 1993 CAMU
rule as implemented to date. The data underlying EPA's baseline
analysis are described in the CAMU Site Background Document, which is
included in the docket to today's final rule. This document provides
detailed information on 47 existing CAMUs approved (or scheduled for
approval) as of Spring 2001. Of the 47 CAMUs, eight are storage and/or
treatment only CAMUs. According to these data, approximately 70 percent
of facilities using CAMUs are performing treatment of waste. As
mentioned above, EPA assumes that the 47 existing CAMUs are
representative of future site characteristics and CAMU usage rates.
The Agency has not attempted to adjust this baseline to account for
the effects of the uncertainty surrounding the CAMU ``litigation
cloud,'' which EPA believes has slowed the implementation of the CAMU
rule since shortly after its promulgation. As discussed above, the 47
CAMUs implemented under the existing rule represent the CAMUs known to
be fully approved. These CAMUs were approved as a part of the overall
remedy at the facility, and therefore would generally be expected to
follow the remedy selection criteria for long-term reliability and
protectiveness recommended in EPA guidance (in addition to the CAMU
requirements).
The baseline is discussed in greater detail in the Economic
Analysis of the Final Amendments to the CAMU Rule.
c. Post-Regulatory Case Description
The post-regulatory scenario is modeled as the CAMU rule amended by
the provisions in today's final rule. The reader is directed to the
preamble discussion and rule language for an understanding of the final
rule provisions. The economic analysis focuses on the impacts from the
finalized information submittal requirements related to the CAMU
approval process, the treatment requirements and adjustment factors,
and the liner and cap requirements. Although today's final amendments
to the CAMU rule would be more stringent than the existing federal CAMU
regulations, EPA believes in practice that CAMUs are already generally
meeting these standards under the existing rule. Additionally, a
bounding analysis is included which examines the overall impact of the
final provisions on the rate of CAMU usage. See the Economic Analysis
of the Final Amendments to the CAMU Rule for a more detailed discussion
of the post-regulatory scenario for this analysis.
d. Incremental Impacts
The analysis of today's final rule focuses on two potential
impacts: (1) the incremental impacts associated with the changes to the
approval process for CAMUs; and (2) the incremental impacts associated
with the change in treatment, unit design, and use of storage and/or
treatment only CAMUs. Additionally, the Agency has prepared a bounding
analysis estimating the impacts from a change in the overall usage of
CAMUs resulting from today's final amendments. The methodology and
results for these two components of the analysis, and for the bounding
analysis, are discussed below. EPA has also provided a qualitative
discussion of the potential impacts of allowing the disposal of CAMU-
eligible waste in off-site hazardous waste landfills.
2. CAMU Administrative Approval Costs Assessment
Today's final amendments to the CAMU rule formalize a number of
administrative steps in the CAMU approval process. This analysis
examines the incremental impacts associated with those administrative
steps compared to the approval process in the baseline. The estimates
are formulated through input by EPA Regional and state regulators. The
regulators contacted have extensive knowledge of the approval process
under the existing CAMU rule, and understand the changes to that
approval process that would be brought about by the final amendments.
The analysis estimates total incremental impacts ranging between
$77,200 and $242,400 per year.\58\
---------------------------------------------------------------------------

\58\ This analysis does not include any administrative costs
related to disposal of CAMU-eligible wastes off-site under the
conditions of today's rule. Please see ``Paperwork Reduction Act''
section below for discussion of the additional paperwork burden
associated with this provision. Also, see the assessment of the
total impacts from today's rule in the ``Planning and Regulatory
Review'' section for a qualitative discussion of the overall impacts
associated with this provision.
---------------------------------------------------------------------------

The Agency followed three steps in assessing the incremental
impacts from the CAMU approval process formalized in the final rule.
First, the Agency selected four CAMU experts from the Regions and four
from the states. These experts were selected based on their knowledge
of CAMU implementation under the existing rule and their knowledge of
the final amendments. Of the 47 CAMUs, the vast majority were approved
by the regions/states from which the eight experts came. Second, the
Agency obtained incremental cost/burden estimates from CAMU experts
through phone contacts made separately with each expert. Experts were
provided with a copy of Appendix A of the settlement agreement reached
between EPA and the Petitioners (this document is included in the
docket for today's final rule). The phone contacts followed a set of
questions designed to cover all areas of the final rule (these
questions are included in the Economic Analysis of the Final Amendments
to the CAMU Rule). EPA requested that experts estimate the additional
approval burden

[[Page 3014]]

for both regulators and owner/operators, as each would participate
variously in performing such approval steps. Third, the Agency
tabulated the burden estimates made by the CAMU experts. This process
provided the Agency with expert estimates of the incremental impacts
for the CAMU approval process. The estimates provided by individual
experts ranged from a low of four hours total to a high of 1,875 hours
total per CAMU. Using the individual estimates of burden provided by
the experts, EPA calculated an average total burden range. EPA
estimates the range of total incremental burden, calculated as an
average of the eight expert estimates, to be between 210 hours and 514
hours per permanent CAMU, and between 34 hours and 50 hours per storage
and/or treatment only CAMUs.
Expert views differed significantly on the impacts. Four of the
experts believed the formalization of a process associated with certain
steps might potentially reduce overall burden. Such a formalized
process, they believed, would result in less time spent discussing the
proper approach to take at a particular stage in the approval process.
Alternatively, several experts thought that the changes in process
requirements were so onerous that they could potentially drive
facilities away from using CAMUs.
The experts estimated additional burden associated with four areas
of the final amendments: (1) Information submission associated with the
determination of whether wastes were subject to LDRs at the time of
disposal. This requirement is a part of the provision in the final
amendments which deals with CAMU waste eligibility; (2) identification
of principal hazardous constituents (PHCs); (3) treatment standards and
use of adjustment factors to provide site-specific flexibility in
meeting the national treatment standards. Many experts focused on
adjustment factor E (Sec. 264.552(e)(4)(v)(E)), which would offer
adjustment from the treatment standards based on the long-term
protection offered by the unit, in making their burden estimates. Many
experts believed this factor to be the most complicated, and therefore
the most likely to require significant formalized written
justification; and, (4) the liner and cap standards in the final rule.
Employing these burden estimates, the Agency calculated the cost
impact attributable to these provisions. The Agency performed the
following steps in estimating total burden. First, the Agency estimated
the number of CAMUs approved annually. The per CAMU estimate of
additional burden is multiplied by an estimate of the number of CAMUs
approved per year. As discussed in the Economic Analysis of the Final
Amendments to the CAMU Rule, EPA assumed this rate to be the same as
that calculated for the baseline. This rate was estimated to be six
CAMUs per year, or five permanent CAMUs and one storage and/or
treatment only CAMU per year. This analysis does not consider any
changes in the number of CAMUs approved per year which could result
from the rule. Second, the Agency multiplied the additional hours
estimated for approval by the annual number of CAMUs approved. This
calculation results in an estimate of the total incremental burden
associated with the final amendment approval process. This burden
estimate ranges from 1,050 hours per year to 2,570 hours per year for
permanent CAMUs, and 34 hours per year to 50 hours per year for storage
and/or treatment only CAMUs. Third, the Agency obtained a labor rate to
apply to the estimates of additional hours. EPA used a range of hourly
labor rates ($71.24/hour to $92.52/hour) from the recently approved
Part B Permit ICR because the CAMU experts did not provide a breakdown
of labor categories in their estimates. Fourth, the Agency multiplied
the total incremental hours estimated for the CAMU approval process
under the final amendments by the labor rate. This approach produced an
estimate for the total incremental impacts attributable to the approval
process in the rule ranging from $77,200 per year to $242,400 per year.
This range represents the annual incremental impacts estimated to
result from the final amendments, assuming that six CAMUs are approved
per year. If the annual approval rate changed, the annual impacts for
that year would change accordingly. Dividing that range by six (the
number of CAMUs approved per year) yields an estimate of the
incremental impact per CAMU; this estimate ranges between approximately
$12,900 and $40,400 per CAMU. This calculation assumes that all the
costs for CAMU approval occurred within a single year. A bounding
analysis conducted using the highest burden estimate to calculate the
impacts for the approval process yields an impact of $882,500 per year,
or $147,000 per CAMU.
3. Assessment of the Incremental Impacts Related to the Treatment and
Unit Design Provisions, and to the Storage and/or Treatment Only CAMU
Provisions
This section examines the incremental impacts attributable to the
treatment and unit design provisions, and to the storage and/or
treatment only CAMU provisions in today's final rule. As described in
the analytical framework discussion above, this analysis examines what
changes would be required to make the 47 existing baseline CAMUs
consistent with the new amendments. Based on these estimated changes,
the Agency determines the impacts of the final amendments. (Please see
the side-by-side comparison of the existing CAMU regulations and
today's final rule language which is included as an appendix in the
Economic Analysis of the Final Amendments to the CAMU Rule for today's
final rule.)
The Agency first examines the treatment and unit design
specifications employed for existing CAMUs under the baseline. These
baseline CAMU remedies were assessed in light of the treatment and unit
requirements promulgated today. An assessment was made of expected
differences in treatment and unit design anticipated under the final
amendments, and the resulting costs for those changes were quantified.
The section next addresses the storage and/or treatment only
provisions in the CAMU amendments. EPA assesses how the storage and/or
treatment only CAMU provisions have been implemented in the baseline by
examining the temporary CAMUs approved to date under the existing rule.
These CAMUs were analyzed in light of the new storage and/or treatment
only CAMU provisions in the final amendments.
a. Treatment and Unit Design Standards Implemented in the Baseline
Data on the implementation of the existing CAMU rule shows that the
39 permanent CAMUs approved to date have generally employed significant
treatment of wastes (approximately 70 percent of CAMUs employed
treatment of wastes prior to disposal) with disposal in protective
units (i.e., generally employing liners for new units, protective caps,
and ground water monitoring). EPA has detailed information on 47 CAMUs
in the baseline (see the CAMU Site Background Document in the docket
for today's final rule for a complete discussion of each CAMU). These
data provide a reasonable datum from which to assess the incremental
impacts associated with the new treatment and unit design provisions in
the final amendments.

[[Page 3015]]

b. Treatment and Unit Design Provisions in the Post-Regulatory Case
The final amendments would establish national minimum treatment
standards which all principal hazardous constituents must meet prior to
placement in a CAMU, unless the Agency determines in a given case that
the standards are inappropriate (see discussion of adjustment factors
below). This national minimum standard, which is essentially taken from
the treatment standard promulgated for hazardous soils in the Phase IV
LDR Final Rule, among other things, requires treatment of wastes to 90
percent reduction from the original concentrations, capped by 10 x
UTS levels. This standard would apply for all CAMU-eligible wastes.
Accompanying the national minimum treatment standard are five
adjustment factors, which provide site-specific flexibility in applying
these treatment standards through identification of certain conditions
under which full compliance with the national standard may be adjusted.
This adjustment may be employed to make treatment more or less
stringent, and may be used to adjust a treatment level or method. These
final treatment requirements and adjustment factors were crafted
through examination of the current implementation of the CAMU rule in
the baseline, and the general process involved in remedial selection in
the corrective action program, as well as the treatment variances used
for as-generated waste under the Land Disposal Restrictions program.
The final amendments would also establish standards for liners at
all new and replacement units or lateral expansion of existing units,
and caps at units where waste is left in place. The reader is directed
to the relevant discussions on the final provisions in their
appropriate preamble sections above (see ``Liner Standard,'' ``Cap
Standard,'' and ``Adjustment Factors to the Treatment Standard'').
c. Incremental Impacts Associated with Final Treatment and Unit Design
Provisions
Having examined the provisions on treatment and unit design in the
final amendments, the Agency then assessed the incremental impacts from
these provisions with respect to current baseline implementation of the
CAMU rule. The Agency examined how the baseline requirements have been
implemented to date, and assessed where changes would be required at
these facilities under post-regulatory conditions. See Economic Analysis
of the Final Amendments to the CAMU Rule for details on this comparison.
EPA estimated the incremental costs associated with these standards
through the following steps. First, the Agency compared the data on
each baseline CAMU against the provisions in the final CAMU amendments.
For this assessment, EPA addressed the following questions for each
CAMU remedy, where necessary: (1) Does the facility have constituents
that would likely be designated as PHCs? (2) For a facility where PHCs
are determined to likely be present, was treatment performed to reduce
PHC concentrations? (3) Where treatment was being performed, was it
meeting the final national minimum standards? (4) Was the CAMU an
existing unit? and (5) What liner and cap requirements were instituted
for the CAMU? Second, based on this assessment, the Agency made a
determination as to whether the CAMU was consistent with the treatment
and unit design provisions of the final amendments. Third, where the
Agency identified inconsistency with the final national minimum
standards, application of the adjustment factors was considered.
Potential use of adjustment factors was only considered appropriate
where site-specific factors were consistent with the circumstances
described in today's preamble for the different adjustment factors. And
fourth, where the adjustment factors were not applicable, the Agency
identified the steps that would be necessary to render the CAMU
consistent with the final provisions. Each of the above steps was
performed by EPA based on a detailed knowledge of the baseline CAMU
requirements, the final rule provisions, and the details of the
existing CAMU being analyzed. Please see the site summaries for the 47
CAMUs which are included in the CAMU Site Background Document (included
in the docket for today's final rule). Additionally, the reader is directed
to the preamble discussion of the adjustment factors for elaboration on
how each adjustment factor would be applied at a given facility.
EPA performed this evaluation for the 39 permanent baseline CAMUs
approved to date. The Agency estimated costs in the cases where
additional requirements were identified as necessary for the CAMU to
reach consistency with the final provisions. Results for the 39 permanent
CAMUs are shown below in Exhibit VIII-1; results for the eight storage
and/or treatment only CAMUs are discussed following the exhibit.
For the 39 permanent CAMUs, EPA estimates that 26 facilities would
potentially require use of one of the adjustment factors to achieve
consistency with the final amendments. Note that the potential use of
adjustment factors was considered where such use would be consistent
with the circumstances described in today's preamble for each
adjustment factor. Of the five adjustment factors provided for in the
amendments, adjustment factor A for technical impracticability was
estimated to be applied eight times to achieve consistency, adjustment
factor B addressing consistency with site cleanup goals was estimated
to be possibly needed 13 times to achieve consistency, and adjustment
factor E providing adjustment from the treatment standards based on the
long-term protection offered by the unit was estimated to be possibly
applied 11 times to achieve consistency. (Note that the estimated
frequency of use for the individual adjustment factors does not sum to
the overall number of facilities using adjustment factors due to the
Agency identifying different available options for adjustment factor
use at several facilities.)
As shown in Exhibit VIII-1, the analysis revealed three facilities
for which the unit design employed in the original CAMU decision was
not consistent with the final amendments. In two cases, a final cap
would be required to achieve consistency with the final provisions. EPA
estimated costs for these caps based on the specific information for
the given facility. These costs are shown in the exhibit, and discussed
in greater detail in the background document for the economic analysis.
EPA estimated costs for the cap at one facility to range from $642,000
to $1,203,000, and costs for the cap at the other facility at
approximately $221,000. Additionally, one CAMU would require a liner to
achieve consistency with the final provisions. EPA estimated costs for
addition of a liner based on the specific information for the given
facility. These costs are shown in the exhibit, and are estimated to be
$225,000.

[[Page 3016]]

Exhibit VIII-1.--Comparisons of Baseline Practices and Post-Regulatory for Permanent CAMUs
----------------------------------------------------------------------------------------------------------------
CAMU comparison: Baseline to Number of
post-regulatory CAMUs Significance of differences Estimated incremental impact
----------------------------------------------------------------------------------------------------------------
Treatment and Unit Design 36 N/A.............................. N/A.
Consistent With Post-
Regulatory.
Treatment Not Consistent With 0 N/A.............................. N/A.
Post-Regulatory Requirements.
Unit Design Not Consistent 3 Two Facilities May Have Required Cap Costs: 1. $642,000 to
With Post-Regulatory Additional Cap Design Features*. $1,203,000, 2. $221,000.
Requirements.
........... One Facility May Have Required a Liner Costs: 3. $225,000.
Liner. [Total=$1,088,000 to $1,649,000]
Treatment and Unit Design Not 0 N/A.............................. N/A.
Consistent with Post-
Regulatory Requirements.
----------------------------------------------------------------------------------------------------------------
* These two CAMUs address the disposal of off-site soils contaminated with lead that resulted from smelting
operations. Both facilities remain subject to long-term maintenance and periodic review.

The total estimated costs associated with ensuring that all the
permanent CAMUs approved under the existing rule are consistent with
the final amendments is estimated to range from approximately
$1,088,000 to $1,649,000. EPA then annualized these costs over 20 years
at 7 percent, divided the resulting range by the number of permanent
CAMUs (39 total), and multiplied it by the number of CAMUs projected to
be approved each year. This set of calculations yields the expected
costs for the rule due to the treatment and unit design requirements of
$140,000 to $210,000 per year. The Agency believes that these estimates
reasonably cover the additional requirements to achieve such
consistency with the final standards. However, EPA acknowledges the
possibility that, due to the variability of site characteristics and
the limitations of the available data for the given CAMUs, additional
negligible costs such as minor additional treatment of small volumes of
waste could be incurred at any given facility. This analysis does not
consider any changes in the number of CAMUs approved per year which
could result from the rule.
Several commenters on the proposed rule believed that the amended
treatment and unit design standards for permanent CAMUs are too
prescriptive and stringent. According to the Agency's analysis,
however, almost all of the 39 existing permanent CAMUs are meeting the
treatment and design standards in the baseline. As discussed above, EPA
estimates moderate incremental costs associated with these amended
standards. One commenter acknowledged that the existing permanent CAMUs
analyzed for the proposed rule analysis ``would generally meet the
revised standards.'' However, the commenter believed that this
stringent implementation of the existing CAMU rule was, at least in
part, the effect of the ``litigation cloud'' resulting from the legal
challenge to that rule. They provided no evidence in support of such a
claim. The Agency generally believes that the types of remedies seen at
the CAMUs approved to date represent the logical outcome of a
responsible implementation of the 1993 CAMU rule and reflect EPA's
intentions in that rule. However, the Agency agrees with the
commenter's point that the clarification of EPA's intentions provided
in today's final rule is preferable as a matter of public policy.
d. Incremental Impacts Associated With the Storage and/or Treatment
Only CAMU Provisions
The 1993 CAMU Rule provisions did not contain standards that were
specific to temporary CAMUs (which are now called storage and/or
treatment only CAMUs in the final provisions). However, data indicate
that eight storage and/or treatment only CAMUs were approved in the
baseline, and were generally employed for short-term treatment or
storage of wastes at a site. These data provide a useful datum from
which to assess the potential for incremental impacts resulting from
the final amendments as they address storage and/or treatment only CAMUs.
The Agency analyzed the potential incremental costs associated with
achieving consistency with the final rule standards for the storage
and/or treatment only CAMUs. No inconsistencies were identified for
these nine CAMUs; therefore, there were no incremental costs estimated
for these units. This analysis does not consider any changes in the
number of CAMUs approved per year which could result from the rule.
As stated above, EPA made these comparisons based upon the types of
contaminants, the unit design standards achieved, and the general
circumstances surrounding the use of CAMUs.
4. Assessment of the Incremental Change in the Number of CAMUs Approved
One potential impact anticipated to result from today's final rule
is a change in the average number of CAMUs approved per year. This
section presents the Agency's bounding analysis of the impacts
associated with an incremental change in the number of CAMUs.
The 1993 CAMU Rule was designed to provide incentives for
remediation by removing certain regulatory requirements that affect the
management of hazardous remediation waste during cleanup. The rule
allows facilities to manage hazardous waste in a CAMU without
triggering the Land Disposal Restrictions (LDR) requirements, and to
dispose of hazardous remediation waste in a CAMU. The CAMU is exempt
from minimum technology requirements (MTRs), although it is subject to
performance-based standards intended to protect human health and the
environment. The rule established performance standards for the design,
operation, and closure of CAMUs, and provided the site-specific
flexibility that EPA believes is necessary to encourage remediation at
cleanup sites. However, EPA was sued on the CAMU rule shortly after its
promulgation. The resulting uncertainty surrounding the viability of
the CAMU rule, along with other factors discussed above such as the
increased use of Areas of Contamination (AOCs) and staging piles, the
introduction of the Phase IV Land Disposal Restriction (LDR) soil
treatment standards, and the stabilization initiative in corrective
action, led to considerably less use of CAMUs than the Agency
originally anticipated.
With today's final rule, the Agency intends to resolve the
litigation uncertainties which have dampened CAMU usage. Such
resolution could

[[Page 3017]]

promote the increased use of CAMUs. However, as discussed above, the
Agency does not expect CAMU usage to approach the rate projected in the
1993 CAMU RIA (roughly 75 CAMUs per year). The Agency believes that the
``litigation cloud'' only accounts for part of the difference between
actual CAMU usage over the past eight years and the usage estimated in
the 1993 RIA. Other factors contributing to a potential change in
future CAMU use include the impact of the formalized approval process,
and the effect of the treatment and unit design provisions. It is very
difficult to assess the significance of these factors on the individual
decision at a given facility regarding whether to use a CAMU in
remediation. This complexity led the Agency to prepare an order-of-
magnitude analysis which seeks to establish the general direction of
change in CAMU usage, and to quantify the approximate impacts from such
change. These estimates focus only on the potential for changes in the
number of CAMUs approved, and do not address the possible impacts from
the formalized approval process or the treatment and unit design
requirements of today's final rule. These impacts are presented to
illustrate the potential savings which could come from such a change in
CAMU usage, and should not be considered a part of EPA's estimate of
the actual impacts from today's final rule.
The Agency assessed the overall direction of the expected change in
CAMU use for the three time periods identified for purposes of this
analysis: (1) Grandfathering Window (August 2000 through 2001); (2)
Early After Promulgation (2002 for one year); and, (3) Post-
Promulgation Equilibrium (2003 for four years). These time periods were
designed by the Agency in order to portray the effects of the factors
identified above according to logical breaks in their influence.
The Agency estimated the potential change in the number of CAMUs
employed for each of the three time periods based roughly on the
baseline CAMU usage figure of six CAMUs per year. Given the complexity
of projecting the effect of these influences on CAMU usage in the
future, these estimates are provided for illustrative purposes only.
The cost savings from this change were estimated using results from the
1993 CAMU RIA (see page 3-9 of that report). This analysis, prepared in
support of the CAMU rule, estimated the cost savings at a randomly
selected sample of corrective action sites based on expert panel
assessments of the costs for remediation with and without a CAMU. These
figures were extrapolated to determine the national cost impacts for
the CAMU rule. The RIA presents an annual average cost savings per CAMU
of $0.5 million to $0.8 million per facility in 1992 dollars (changing
the figures to 2001 dollars yields an annual cost savings per CAMU
ranging from $0.6 million to $0.9 million).
This range was employed for purposes of this analysis to estimate
order-of-magnitude cost impacts resulting from the changes in CAMU
usage due to today's final rule. The annual cost savings per CAMU
figure presented in the 1993 RIA provides the only readily available
data from which to quantify the impacts of a shift from remediation
without a CAMU to use of a CAMU. Although, the Agency believes that
this cost savings estimate could significantly overestimate actual
savings, due to the assumptions employed in the 1993 RIA regarding
excavation and combustion of cleanup wastes.
Within each of the three time periods examined, a facility could
either shift from not using a CAMU (baseline) to using a CAMU (post-
regulatory), or using a CAMU (baseline) to not using a CAMU (post-
regulation). In the case where a facility did not use a CAMU, there is
a range of possible alternatives which could be considered. For
purposes of this analysis, the Agency bracketed this range with leaving
waste untouched on one hand, or performing full remediation without a
CAMU on the other hand. As stated above, EPA employed the cost savings
estimate from the 1993 RIA to model the cost savings for the case of a
shift from performing full remediation without a CAMU (baseline) to
using a CAMU (post-regulatory). EPA did not possess data on either the
possibility of a shift from leaving waste in place (baseline) to using
a CAMU in remediation (post-regulatory), or the cost impacts associated
with such a shift. Finally, EPA does not believe it is reasonable to
assume that facilities will shift away from CAMU use as a result of
today's final rule; the anticipated costs from today's rule are not
significant enough to result in such shifts. However, in the Post-
Promulgation Equilibrium time period, EPA modeled the case of a shift
from CAMU use (baseline) to full remediation without a CAMU (post-
regulatory). While the Agency does not expect such a change, it is
modeled below for illustrative purposes. The impacts from the changes
in CAMU usage for the three time periods are assessed below according
to these categories of change identified and discussed above (see
Exhibit VIII-2 below).

Exhibit VIII-2.--Assessment of the Potential Change in CAMU Usage Resulting From the Final Rule
----------------------------------------------------------------------------------------------------------------
Scope of the assessment (August 2000 through approximately 2006)
--------------------------------------------------------------------------
Categories of potential change in Grandfathering window Early after Post-promulgation
CAMU usage (August 2000 to Jan. promulgation (Jan. 2002 equilibrium (Jan. 2003
2002: approximately 1\1/ to Jan. 2003: 1 year) through approximately
2\ years)\1\ \2\ 2006) \3\
----------------------------------------------------------------------------------------------------------------
Baseline: Full remediation (no CAMU). No Change in CAMU Use Change Highly Uncertain Potential for 5
Post-Reg: CAMU....................... Found. facilities estimated
(annual savings of
$0.6 to $0.9 million
per facility).
Baseline: Leave wastes untouched (no No Change in CAMU Use Change Highly Uncertain Potential for 5
CAMU). Found. facilities estimated
Post-Reg: CAMU....................... (no cost info
available).
Baseline: CAMU....................... No Change Estimated.... Change Highly Uncertain Potential for 5
Post-Reg: Full remediation (no CAMU). facilities estimated
(annual cost of $0.6
to $0.9 million per
facility).
Baseline: CAMU....................... No Change Estimated.... Change Highly Uncertain Potential for 5
facilities estimated
(no cost info
available).
Post-Reg: Leave wastes untouched (no .......................
CAMU).
----------------------------------------------------------------------------------------------------------------
\1\ Publication of the proposed amendments (August 2000) to the anticipated effective date of Final rule (March-
April 2002), which is 90 days after promulgation of the Final rule (December 2001).

[[Page 3018]]

\2\ The effective date of Final rule to one year after effective date of Final rule.
\3\ One year after effective date of Final rule for roughly 5 years of ``equilibrium.''

For greater details on the approach to estimating these impacts,
please refer to the Economic Analysis of the Final Amendments to the
CAMU Rule in the docket for today's final rule. These impacts are
presented in the exhibit above.
a. Grandfathering Window
For this time period, no additional costs or savings are estimated.
The data collected in the revision of the CAMU Site Background Document
showed no increase in CAMU usage during this period.
b. Early After Promulgation
As the exhibit above shows, EPA believes that the factors
influencing potential changes in CAMU usage during this period are too
uncertain to provide an assessment of the potential impacts for this
time period. Beside the factors identified above, there may be a
reduction in CAMU usage resulting from the anticipated increase in
CAMUs within the grandfathering time window. Please see the background
document for greater discussion on this issue.
c. Post Promulgation Equilibrium
For this time period, the cost savings associated with a potential
increase or decrease in CAMU usage of 5 CAMUs per year are estimated as:
[GRAPHIC]
[TIFF OMITTED]
TR22JA02.003

This estimate, ranging from a positive cost of $4.5 million per
year to a savings of $4.5 million per year, is a rough figure based
upon the projected change in CAMU usage for this period. Again, while
it is possible that the facilities which shift to or from CAMU usage
under this scenario would be those which left waste untouched, cost
figures on this shift were not available. Therefore, no estimate of
impacts associated with such a shift is provided.
The main competing influences in this time period are the removal
of the uncertainty surrounding the litigation of the CAMU rule, and the
potential dampening effect of the formalized approval process and
treatment/unit design standards.
Several commenters stated that the ``onerous'' approval process and
the ``excessively stringent'' treatment standards established in the
amendments would result in decreased use of CAMUs. In fact, some
commenters believed that the amendments would result in facilities
choosing to cap-in-place rather than selecting more environmentally
protective options. EPA's analysis of the approval process and
treatment requirements suggests that these provisions will result in
minimal to modest cost increases over the existing rule to facilities
employing a CAMU.\59\
---------------------------------------------------------------------------

\59\ Additionally, one of the Agency's chief motives in entering
into the settlement agreement was the resolution of the CAMU legal
challenge which may have deterred the use of CAMUs in cleanup
decisions. However, as discussed above, the Agency is unclear as to
the long-term result of the amendments in effecting CAMU usage.
---------------------------------------------------------------------------

For illustrative purposes only, EPA estimated the total annual
impacts of the rule including the estimates just calculated for the
potential changes in CAMU usage, along with the estimates developed for
the approval process and for the treatment and unit design standards.
The range of estimates for this bounding analysis are shown by year for
the scope of the analysis in Exhibit VIII-3 below. The Agency developed
an upper bound estimate by adding the high-end cost associated with a
potential change in CAMU usage, $4.5 million per year, to the high-end
cost for the approval process, $242,000 per year, and the high-end cost
for the treatment and unit design standards, $210,000 per year. This
summation yields an upper bound cost for the rule of $5.0 million per
year. EPA developed a lower bound estimate by adding the low-end impact
associated with a potential change in CAMU usage, $4.5 million per year
in savings, to the low-end of the cost for the approval process,
$77,000 per year, and the low-end cost for the treatment and unit
design standards, $140,000 per year. This summation yields a savings
for the rule of approximately $4.3 million. Therefore, the bounding
analysis provides a range from approximately $4.3 million in savings to
$5.0 million in costs.

Exhibit VIII-3.--Total Impacts for the Rule Including Changes in the Number of CAMUs Per Year a Bounding Analysis: Over the Scope of Analysis
[In millions of dollars]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Impact estimates for each year within the scope of analysis
Bounding analysis estimates -----------------------------------------------------------------------------------------------------------------------
2001 2002 2003 2004 2005 2006
--------------------------------------------------------------------------------------------------------------------------------------------------------
Impacts from CAMU usage changes No Change Too Uncertain to $4.3 savings--$5.0 $4.3 savings--$5.0 $4.3 savings--$5.0 $4.3 savings--$5.0
(Illustrative in Nature). Estimated. Estimate. cost. cost. cost. cost
--------------------------------------------------------------------------------------------------------------------------------------------------------

The question may be raised as to how this cost savings for
increased CAMU usage in the above bounding analysis compares with the
$1 to $2 billion annual savings in the 1993 CAMU RIA. The 1993 RIA
baseline represented facilities performing remediation under the
corrective action requirements, generally excavating wastes and
treating in compliance with the land disposal restriction (LDR)
requirements via combustion technologies. Given the resulting high
costs for such baseline remedial approaches, the relief provided by the
original CAMU regulation was presumed to be widely applied in the post-
regulatory case. Therefore, significant CAMU usage was estimated. The
baseline for today's final rule is described by the historical data EPA
obtained on those facilities which have

[[Page 3019]]

approved CAMUs over the past eight years. The projections made above
regarding the potential change in CAMU usage resulting from today's
final provisions are based roughly on these baseline CAMU usage
figures. Therefore, the increase in CAMU usage projected in the post-
regulatory case in the above bounding analysis for today's final rule
is relatively low.
The difference in projected CAMU usage from the 1993 RIA and the
actual usage seen in the CAMU Site Background Document is believed to
be attributable to four factors. These four factors were discussed
above under the analytical framework. The ``litigation cloud'' effect
is just one of the factors posited to account for this difference.
Therefore, the potential resolution of this litigation uncertainty
through today's final rule is not anticipated to result in the
significant CAMU usage estimated in the 1993 RIA. Furthermore, the
increased CAMU usage estimated in the above bounding analysis is not
intended to serve as an update to the 1993 RIA projections. Rather, due
to the complexity involved in estimating CAMU usage in the post-
regulatory case for today's final rule, the above estimates are made
for illustrative purposes only, and do not represent a definitive
statement of the expected savings from the rule.
5. Assessment of the Total Impacts for the Final Amendments to the CAMU
Rule
This section presents a brief assessment of the total impacts of
the Final Amendments to the CAMU Rule. The Agency presents the total
impacts estimated for the formalized CAMU approval process and for the
treatment/unit design standards, and storage and/or treatment only
provisions for CAMUs below in Exhibit VIII-4; the estimates for the
bounding analysis discussed above are not included in the exhibit. In
addition, EPA qualitatively discusses the potential impacts of
Sec. 264.555, which allows CAMU-eligible waste to be disposed of off-
site in hazardous waste landfills, without meeting the land disposal
restrictions. Please see the Economic Analysis of the Final Amendments
to the CAMU Rule for a full discussion of these impacts.

Exhibit VIII-4.--Total Annual Impacts Estimated Over the Scope of Analysis, Assuming Constant Rate of 6 CAMUs
per Year
[In thousands of dollars]
----------------------------------------------------------------------------------------------------------------
Impact estimates for each year within the scope of analysis
Impacts assessed for CAMU --------------------------------------------------------------------------------
amendments 2001 2002 2003 2004 2005 2006
----------------------------------------------------------------------------------------------------------------
1. CAMU Approval Process No Costs Incurred $77-$242 $77-$242 $77-$242 $77-$242 $77-$242
Impacts.
2. Impacts from Treatment and No Costs Incurred $140-$210 $140-$210 $140-$210 $140-$210 \1\$140-$21
Unit Design Requirements. 0
Total impacts.................. No Costs Incurred $217-$452 $217-$452 $217-$452 $217-$452 $217-$452
----------------------------------------------------------------------------------------------------------------
\1\ This cost was calculated from a capital cost, annualized over 20 years. Therefore, it would continue for 15
more years.

The total impacts associated with the final rule are estimated as
the sum of the incremental approval costs and the incremental
treatment/unit design costs. The analysis provides estimates of the
impacts from the rule from the grandfathering window to five years
following the effective date of the rule (2001 to 2006). As discussed
above, the impacts for the treatment and unit design standards are
annualized figures associated with two facilities which required
additional unit design criteria be met to achieve consistency with the
final amendments. The cost impacts estimated for the potential change
in the number of CAMUs are considered in the bounding analysis, which
are discussed above. The total impacts are determined to range from
$217,000 per year to $452,000 per year.
EPA also qualitatively examined the potential impact of allowing
CAMU-eligible wastes to be disposed of off-site, under certain
conditions, without meeting the land disposal restrictions. Despite the
existence of various alternatives to full Subtitle C management of
cleanup wastes under the baseline requirements (e.g., treatability
variances), facilities are still likely to reduce the scope of their
remedial efforts (or not conduct cleanup at all) because of Subtitle C
requirements. Under the baseline conditions, facilities that send
hazardous remediation waste off-site for disposal would typically incur
significant costs to meet the requirements of the land disposal
restrictions. Under today's rule, however, these facilities have the
option of treating CAMU-eligible waste to the national minimum
treatment standards (or the adjusted standards) and sending the waste
off-site for disposal in a hazardous waste landfill. In this case,
facilities may have enough of an incentive to clean up that they will
increase their remedial efforts over what they would have pursued under
baseline conditions. For these facilities, increasing the amount of
cleanup may actually increase costs. These costs, however, would be
borne voluntarily and therefore reflect (in the facility owner's view)
an overall gain for the facility.
Thus, EPA believes that the off-site provision of today's rule will
result in an overall reduction of costs to facilities through a
reduction in treatment requirements when cleanup waste is sent off-site
for disposal in hazardous waste landfills.

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

This section of the preamble addresses the potential impacts
incurred by small entities as a result of the final CAMU amendments.
For the proposed rule, EPA analyzed the potential impacts on small
entities for the 39 CAMUs approved at that point in time. EPA received
no comments on the proposed analysis. As discussed earlier, EPA has
updated the number of existing CAMUs through reviews performed by the
states and Regions. This analysis, therefore, updates the analysis
performed for the proposed rule by assessing the potential impacts to
small entities for the nine newly identified CAMUs, and by making other
minor adjustments to the CAMUs identified in the proposed rule
analysis. There is no change, however, to the conclusion reached in the
proposed rule analysis, that this action will not have a significant
economic impact on a substantial number of small entities.

[[Page 3020]]

1. Methodology to Assess Small Entity Impacts
The RFA generally requires an agency to prepare a regulatory
flexibility analysis of any rule subject to notice and comment
rulemaking requirements under the Administrative Procedure Act or any
other statute unless the agency certifies that the rule will not have a
significant economic impact on a substantial number of small entities.
Small entities include small businesses, small organizations, and small
governmental jurisdictions.
For purposes of assessing the impacts of the final amendments to
the rule on small entities, small entity is defined as: (1) A small
business that meets the RFA default definitions for small business
(based on SBA size standards www.sbaonline.sba.gov/size); (2) a small
governmental jurisdiction that is a government of a city, county, town,
school district or special district with a population of less than
50,000; and (3) a small organization that is any not-for-profit
enterprise which is independently owned and operated and is not
dominant in its field.
After considering the economic impacts of today's final rule on
small entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. EPA has
determined that there are three facilities employing CAMUs which are
small entities, and that these facilities would incur impacts ranging
from no impact to 0.01 to 0.32 percent of net sales if they had to
apply for their CAMU under the amended standards. Additionally, there
are five facilities for which EPA could not obtain the data to
determine size status, but which EPA had the data to assess impacts.
For these five facilities, the impacts ranged from 0.01 to 0.07 percent
of net sales. The Agency was unable to obtain data for an additional
two facilities. However, these facilities are not expected to incur
significant impacts as a result of today's rule. The Agency reached
this determination based on the analysis which is described below.
a. Framework for the Analysis
The Agency faced two important questions in developing the
framework for analyzing small entity impacts. The first was how to
define the universe of facilities affected by today's rule. The second
was how to assess the incremental changes in CAMUs under the baseline
and post-regulatory scenarios.
The universe of facilities which could potentially employ a CAMU in
remediation, and thus could be affected by today's rule, includes
facilities performing cleanups under RCRA corrective action, Superfund,
and state cleanup authorities. There are over 6,000 facilities which
can be potentially reached through corrective action authority; this
figure does not include Superfund sites or other cleanup sites where
CAMUs may be used in the future. Of these facilities, today's final
rule would not impose costs on any existing CAMUs that continue to
manage wastes in the general manner for which they were approved, or,
of course, on any facilities which manage their wastes without the use
of a CAMU (e.g., they send their wastes off-site). Today's final
standards would apply only to CAMUs which do not remain subject to the
existing standards under the grandfathering provisions. However, to
determine the number of facilities, out of this total number, which
would in fact require cleanup at some point in the future, and would
employ a CAMU in the remedy, would require significant effort and yield
uncertain results.
Therefore, EPA considered the use of existing data on CAMU usage.
The Agency first examined the 1993 CAMU RIA, which was performed in
support of the existing CAMU rule. In this RIA, the Agency made a
projection of the number of facilities which would employ CAMUs in the
future. This projection was based on use of expert panels which
reviewed, on a facility-by-facility basis, a randomly selected sample
of 79 corrective action facilities and determined when CAMUs would be
employed in remediation. The impacts estimated for these facilities
were extrapolated to the corrective action universe to develop a
national estimate of impacts for the CAMU rule. The Agency estimated
that the existing rule would result in CAMUs being employed at
approximately 1,500 facilities, or approximately 75 CAMUs per year over
a 20 year period. The identities of these facilities, which would have
been required for assessing the small entity impacts associated with
the rule, were not determined; no impacts assessment was performed for
the 1993 CAMU rule.
However, based on data depicting the actual CAMU usage rate over
the past eight years at six CAMUs per year, the Agency believes the
1993 RIA projections do not represent an accurate forecast of the
expected use of CAMUs in the future. (Some reasons for this disparity
between the 1993 RIA projections and the actual usage are discussed
above). Therefore, the Agency considered using the data on actual CAMU
approval for this analysis. This report contains information on 47
CAMUs approved under the existing rule for which the Agency had good
quality data. For each CAMU, the Agency obtained information on the use
of the CAMU at the site, types of wastes managed, treatment required,
and unit design; the data are contained in the CAMU Site Background
Document, which is included in the docket for today's final rule.
Using these data, the Agency estimated an annual CAMU approval rate
for the past eight years, and applied that rate to project CAMU usage
in the future. In projecting future use based on historical data, the
Agency assumes that the 47 CAMUs are reasonably representative of
expected future CAMU use. This assumption rests on the completeness of
the data in the CAMU Site Background Document; this document contains
information from all the CAMUs to date for which the Agency had good
data. Therefore, it provides a reasonable basis for understanding how
the CAMU rule has been implemented to date. For purposes of this
analysis, the Agency assumes there will be no new regulations or policy
initiatives which affect CAMU usage in the future.
Use of these historical data also mitigated the problems associated
with determining the differences in a CAMU under the existing rule
(baseline case) as compared to a CAMU under the final provisions (post-
regulatory case). As discussed in more detail above, the Agency used
the information on the 47 existing CAMU remedies to assess consistency
with the final provisions in today's rule. This assessment involved a
facility-by-facility comparison of the existing remedy (baseline case)
with the final provisions (post-regulatory case). In such an approach,
the Agency again assumes that these historical data are reasonably
representative of future CAMU remedies under baseline conditions. The
Agency believes this presupposition to be sound for the same reasons
stated above regarding CAMU; there were no comments received on the
proposed rule regarding this approach.
Therefore, the analysis of the small entity impacts anticipated to
result from today's final rule rests on an assessment of facilities
which have existing CAMUs, not an analysis of facilities which will
actually be impacted in the future by this rule. As stated above, the
Agency believes that this rule will not significantly affect the nature
of CAMU usage related to the types of facilities employing CAMUs in the
future. Thus, the Agency believes the analysis of future small entity
impacts based on historical CAMU usage is reasonable.

[[Page 3021]]

b. Methodological Approach for SBREFA Analysis
This analysis employs the data on the existing CAMUs from the CAMU
Site Background Document to assess the potential for impacts on small
entities resulting from the final rule. The Agency performed two
screening analyses using these data. Screening analyses are the tools
the Agency uses to assess the potential for the rule to result in a
significant impact on a substantial number of small entities, and thus
the need for development of a Small Business Advocacy Review Panel.
First, the Agency examined those facilities which employed CAMUs in the
baseline to determine whether any of these facilities were small
entities, and if so whether they incurred a significant impact as a
result of the final rule. Second, for those facilities for which the
size status could not be determined, the Agency assumed small entity
status, and performed a significant impact screen using the Sales Test
(i.e., assessing the ratio of incremental costs to net sales for a
facility). As there are no small organizations or small governmental
jurisdictions which currently have CAMUs, these entities are not
anticipated to incur any impacts resulting from the rule. The results
from each screening analysis are discussed below.
c. Examination of Existing CAMUs for Small Entity Status
EPA collected data on the employee size and net sales for the 47
facilities employing CAMUs in the baseline (the sources from which
these data were obtained are listed in the background document). Using
these data, EPA determined, according to the SBA size standards (see
www.sbaonline.sba.gov/size/section04b.htm), whether any of the 47
facilities were small entities. Of the facilities for which data
existed to determine size status, only three were identified as small
entities. The impact incurred on these three small entities was under
0.01 percent of net sales. This finding suggests that it is very
unlikely that these facilities would be significantly impacted by the
rule. See the Economic Analysis of the Final Amendments to the CAMU
Rule in the docket for today's final rule for greater detail on this
analysis.
d. Significant Impact Screen of Facilities for Which Size Was Undetermined
The Agency examined the seven facilities for which data concerning
size status were not available. Using the Standard Industrial
Classification (SIC) Code for a given facility, the Agency was able to
obtain data for five of these facilities on the estimated receipts for
small entities within the SIC code and the number of small entities
within the SIC code (these data were obtained from www.sba.gov/advo/
stats/int_data.html). (The latest available industry Census data is
from 1997, prior to the establishment of the North American Industry
Classification Code System (NAICS) codes.) The estimated receipts for
these entities were employed as a surrogate for net sales. From these
data, the average estimated receipts per small firm within the SIC code
was determined. This figure, the average estimated receipts per small
firm, was then assumed to be representative of the receipts for the
facility in question. The Sales Test ratio (i.e., the ratio of the
average estimated receipts per firm by SIC code to the annual incremental
costs of the final rule incurred by the facility) was then calculated.
For the five facilities for which data existed to calculate the
Sales Test ratio, this ratio ranged between 0.01 percent and 0.07
percent. The Agency believes this range of percentages reasonably
validates a conclusion of no significant impacts for these facilities.
However, there were two facilities for which the data required to make
this calculation were not available. Based on the annual incremental
costs projected for these two facilities as a result of the final rule,
it seems very unlikely that these facilities, if they were small
entities, would incur significant impacts. See the Economic Analysis of
the Final Amendments to the CAMU Rule in the docket for today's final
rule for greater detail on this analysis.
2. The Impacts Estimated on Small Entities
Based on the two screening analyses described above, the Agency has
concluded that today's final rule would not have a significant impact
on a substantial number of small entities. (In addition, no small
entity impacts are expected from the provision allowing off-site
disposal of CAMU-eligible waste (40 CFR 264.555), as facilities use
this provision only when it is to their advantage; in fact, EPA expects
that this provision will be particularly useful to small entities.)

C. Paperwork Reduction Act

The information collection requirements in this final rule will be
submitted for approval to the Office of Management and Budget (OMB)
under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. An
Information Collection Request (ICR) document has been prepared by EPA
(ICR No. 1573.07) and a copy may be obtained from Sandy Farmer by mail
at OP Regulatory Information Division; U.S. Environmental Protection
Agency (2137); 401 M St., SW., Washington, DC 20460, by e-mail at
farmer.sandy@epamail.epa.gov, or by calling (202) 260-2740. A copy may
also be downloaded off the Internet at http://www.epa.gov/icr. The
requirements are not effective until OMB approves them.
The U.S. Environmental Protection Agency (EPA) is amending the
regulations for CAMUs under RCRA. EPA originally established
regulations applicable to CAMUs at 40 CFR part 264, subpart S (58 FR
8658, Feb. 16, 1993). EPA is amending these regulations to, among other
things, more specifically define the eligibility of wastes to be
managed in CAMUs, establish treatment requirements for wastes managed
in CAMUs, and set technical standards for CAMUs. With regard to
paperwork requirements, the rule adds language identifying specific
types of information that facilities must submit in order to gain CAMU
approval at Sec. 264.552(d)(1)-(3) and requires that CAMU-authorizing
documents require notification for ground water releases as necessary
to protect human health and the environment at Sec. 264.552(e)(5).
The general requirement for information submission, at
Sec. 264.552(d), requires the owner or operator to submit sufficient
information to enable the Regional Administrator to designate a CAMU.
EPA is modifying the existing information requirement under
Sec. 264.552(d) to include submission of the specific information
listed under final Sec. 264.552(d)(1)-(3)). The modifications are
additions to the existing general requirement, and add three specific
information submission requirements (unless not reasonably available)
to directly address the final amendments pertaining to CAMU
eligibility: (1) The origin of the waste and how it was subsequently
managed (Sec. 264.552(d)(1)); (2) whether the waste was listed or
identified as hazardous at the time of disposal and/or release to the
environment (Sec. 264.552(d)(2)); and (3) whether the waste was subject
to the land disposal requirements of Part 268 at the time of disposal
and/or release to the environment (Sec. 264.552(d)(3)). Additionally,
EPA is requiring certain facilities to notify EPA of releases to ground
water. EPA will use this information to monitor releases and make
determinations of when the releases might cause danger to human health
or the environment. Facility owners or operators may use these data

[[Page 3022]]

to keep track of releases and prevent them from reaching unacceptable
levels.
EPA is amending the requirements for designating a CAMU under the
authority of sections 1006, 2002(a), CFR, 3005(c), 3007, 3008(h), 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 (HSWA) of 1984. In particular, under sections 2002 and
3007 of RCRA, EPA is requiring the information collection amendments to
the CAMU rule described above because they are needed for the Agency to
effectively designate and track the operation of CAMUs.
In addition, the rule requires persons seeking approval to send
CAMU-eligible wastes off-site (without meeting land disposal
restriction requirements) to submit enough information to allow the
Regional Administrator to provide that approval (see 40 CFR 264.555).
EPA estimates the total annual respondent burden and cost for the
final new paperwork requirements to be approximately 1,354 hours and
$123,958. The bottom line respondent burden over the three-year period
covered by this ICR is 4,107 hours, at a total cost of approximately
$371,874. The Agency burden or cost associated with this final rule is
estimated to be approximately 189 hours and $7,860 per year. The bottom
line Agency burden over the three-year period covered by this ICR is
567 hours, at a total cost of approximately $23,580.\60\
---------------------------------------------------------------------------

\60\ Subsequent to conducting the Information Collection Request
Analysis, EPA updated the number of CAMUs used for ``permanent''
disposal and the number used for ``storage and/or treatment'' only.
The ICR estimates that 31 of the 39 CAMUs in the CAMU Site
Background Document were for permanent disposal; the correct number
is 30 of 39. EPA will make the necessary recalculations to the ICR
in the context of the final rule. EPA believes that the change in
estimated burden as a result of such recalculations will be
inconsequential.
---------------------------------------------------------------------------

Section 3007(b) of RCRA and 40 CFR part 2, subpart B, which defines
EPA's general policy on public disclosure of information, contain
provisions for confidentiality. However, the Agency does not anticipate
that businesses will assert a claim of confidentiality covering all or
part of the information that will be requested pursuant to the 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 make sure that this information collection complies with the
Privacy Act of 1974 and OMB Circular 108.
Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a federal agency. This includes the time
needed to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements;
train personnel to be able to respond to a collection of information;
search data sources; complete and review the collection of information;
and transmit or otherwise disclose the information.
An Agency may not conduct or sponsor, and a person is not required
to respond to a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations are listed in 40 CFR part 9 and 48 CFR chapter 15.

D. Unfunded Mandates Reform Act

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for federal agencies to assess the
effects of their regulatory actions on state, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``federal mandates'' that
may result in expenditures to state, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of the UMRA generally requires EPA to identify
and consider a reasonable number of regulatory alternatives and adopt
the least costly, most cost-effective or least burdensome alternative
that achieves the objectives of the rule. The provisions of section 205
do not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted.
Before EPA establishes any regulatory requirements that may
significantly or uniquely affect small governments, including tribal
governments, it must have developed under section 203 of the UMRA a
small government agency plan. The plan must provide for notifying
potentially affected small governments, enabling officials of affected
small governments to have meaningful and timely input in the
development of EPA regulatory proposals with significant federal
intergovernmental mandates, and informing, educating, and advising
small governments on compliance with the regulatory requirements.
EPA has determined that this rule does not contain a federal
mandate that may result in expenditures of $100 million or more for
state, local, and tribal governments, in the aggregate, or the private
sector in any one year. The amendments final today establish approval
process changes and treatment/unit design requirements which are
overall already in use in the baseline. Therefore, the incremental
impacts, as discussed in this analysis, are not estimated to be
significant. See the above analysis for an overview of the impacts
estimated for the final amendments. Thus, the CAMU Final Amendments are
not subject to the requirements of sections 202 and 205 of the UMRA.
Finally, EPA has determined that this final rule contains no
regulatory requirements that might significantly or uniquely affect
small governments. Under today's final rule, small governments will not
implement the CAMU rule and are not generally expected to use CAMUs
based on current patterns of CAMU usage seen in historical data. In
addition, the CAMU rule makes no distinction between small governments
and any potential regulated party.

E. National Technology Transfer and Advancement Act

As noted in the proposed rule, section 12(d) of the National
Technology Transfer and Advancement Act of 1995 (``NTTAA''), Public Law
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 final rulemaking involves technical standards (e.g., use of the
TCLP or other tests to assess compliance with treatment requirements).
The Agency did not identify any potentially applicable voluntary
consensus standards during its efforts to develop appropriate standards
(e.g., during its discussions with Agency personnel and

[[Page 3023]]

stakeholders who are experts in the areas addressed by this
rulemaking). EPA also did not receive comments identifying potentially
available voluntary consensus standards.

F. Consultation and Coordination with Indian 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.''
Today's final rule does not have tribal implications because Indian
tribal governments do not implement the CAMU rule. 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.
Thus, Executive Order 13175 does not apply to this rule.

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

Executive Order 13045: ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies
to any rule that: (1) Is determined to be ``economically significant''
as defined under Executive Order 12866, and (2) concerns an
environmental health or safety risk that EPA has reason to believe may
have a disproportionate effect on children. If the regulatory action
meets both criteria, the Agency must evaluate the environmental health
or safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency.
This final rule is not subject to the Executive Order because it is
not economically significant as defined in Executive Order 12866, and
because the Agency does not have reason to believe that this rule
presents disproportionate or additional risks to children. The Agency
does not believe that the risks addressed by today's amendments--i.e.,
the risks from on-site management of hazardous cleanup wastes--present
a disproportionate risk to children. The final rule, among other
things, sets minimum CAMU treatment and design standards designed to
help ensure the protectiveness of CAMUs. EPA's analysis of these
requirements shows that CAMUs are already meeting the minimum standards
in this rule. As amended by the final rule, the CAMU rule would
continue to require that a decision concerning overall protectiveness
of any specific CAMU be made by the Regional Administrator based on
site-specific circumstances, including risks to children where
appropriate. The Agency is committed to ensuring that these site-
specific assessments include an assessment of risks to children where
appropriate. Therefore, the Agency believes that these amendments do
not present disproportionate or additional risks to children at
facilities employing a CAMU.

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 final rule does not have federalism implications. It will not
have substantial direct effects on the states, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government,
as specified in Executive Order 13132. First, any direct effects on the
states will not be substantial, because, as described more fully above,
the Agency expects the increased analytical costs for oversight
agencies (i.e., EPA or authorized states) associated with the rule to
be insignificant. In addition, although the final amendments would
limit the discretion available to oversight agencies under the current
CAMU rule, the Agency's record demonstrates that the CAMU decisions
expected under the amendments are generally the same as those reached
under the current regulatory framework. In addition, EPA does not
believe the final rule would have a substantial direct effect on states
as regulated parties, since based on past patterns of CAMU usage, state
governments are not generally expected to use CAMUs.
As for the EPA-state relationship and distribution of power and
responsibilities, today's rule includes state authorization provisions
that would allow the large majority of states currently authorized for
the CAMU provisions to become interim authorized for the amendments at
the same time those amendments become effective. Thus, for those
states, there will be no period in which the amendments are in effect
federally, but not as a matter of state law. Even for those CAMU-
authorized states that do not become interim authorized under this
procedure, the Agency does not believe that any impact of the rule
would be substantial. Although the Agency would implement the
amendments in such states until they become authorized, EPA does not
expect that this will generally result in changes to the state's
individual CAMU decisions under state law, since, as described above,
state CAMU decisions will likely be consistent with today's amendments.
Thus, Executive Order 13132 does not apply to this rule.
The Agency notes, in addition, that prior to entering into the CAMU
settlement agreement, EPA did discuss with the states potential impacts
on states from amendments to the CAMU rule. During these discussions,
individual states expressed concerns about potential disruption caused
by the authorization process that would be required in states that are
already authorized for the 1993 CAMU rule, the reduced discretion that
would be available under any amendments to the CAMU rule, and the
potentially more elaborate process that would be involved in making
CAMU decisions.
EPA recognizes that these are valid concerns, and addressed them in
the proposal and today's final rule. For example, EPA has included a
provision that grandfather existing CAMUs and those that are
substantially in the approval process. The rule also includes an
approach to authorization that is intended to reduce disruption for
states with authorized CAMU programs, and to expedite authorization for
states that have corrective action programs but are not yet authorized
for CAMU. In addition, EPA recognizes that increased process would be
introduced by this rule, but, as is described in the background section
of today's preamble, has tried to find a reasonable balance by

[[Page 3024]]

adding sufficient detail to achieve the proposal's goals while
preserving site-specific flexibility that provides incentives to
cleanup. Finally, the rule is designed to incorporate the CAMU
designation process into the existing decision-making process that is
typically used by states and EPA for cleanups, including that used for
making CAMU determinations. For example, EPA designed the principal
hazardous constituent process, and certain final adjustment factors to
reference the overall cleanup decision-making process within which the
CAMU decision is made.

I. Environmental Justice (Executive Order 12898)

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

J. Congressional Review Act

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing today's rule and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A Major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2). This rule will be effective 90 days following publication.

K. Energy Effects (Executive Order 13211)

Today's final 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, EPA has
concluded that this rule is not likely to have any adverse energy effects.

List of Subjects in 40 CFR Parts 260, 264, and 271

Environmental protection, 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: December 21, 2001.
Christine Todd Whitman,
Administrator.

For the reasons set out in the preamble, 40 CFR Parts 260, 264 and
271 are amended as follows.

PART 260--HAZARDOUS WASTE MANAGEMENT SYSTEM: GENERAL

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

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

2. Section 260.10 is amended:
a. By removing the definition of ``Corrective action management
unit (CAMU).''
b. By revising the definition of ``Remediation waste.''
The revision reads as follows:

Sec. 260.10 Definitions.

* * * * *
Remediation waste means all solid and hazardous wastes, and all
media (including ground water, surface water, soils, and sediments) and
debris, that are managed for implementing cleanup.

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

3. The authority citation for Part 264 is revised to read as follows:

Authority: 42 U.S.C. 6905, 6912(a), 6924, 6925, 6927, 6928(h),
and 6974.

4. The title for Part 264 Subpart S, ``Corrective Action for Solid
Waste Management Units,'' is revised to read ``Special Provisions for
Cleanup.''

5. Section 264.550 is added to Subpart S to read as follows:

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

(a) Except as provided in paragraph (b) of this section, CAMUs are
subject to the requirements of Sec. 264.552.
(b) CAMUs that were approved before April 22, 2002, or for which
substantially complete applications (or equivalents) were submitted to
the Agency on or before November 20, 2000, are subject to the
requirements in Sec. 264.551 for grandfathered CAMUs; CAMU waste,
activities, and design will not be subject to the standards in
Sec. 264.552, so long as the waste,

[[Page 3025]]

activities, and design remain within the general scope of the CAMU as
approved.

6. Section 264.552 is redesignated as Sec. 264.551 and newly
designated Sec. 264.551 is amended by revising the section heading and
paragraph (a) introductory text to read as follows:

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

7. A new Sec. 264.552 is added to read as follows:

Sec. 264.552 Corrective Action Management Units (CAMU).

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

[[Page 3026]]

remain in place after closure of the CAMU.
(d) The owner/operator shall provide sufficient information to
enable the Regional Administrator to designate a CAMU in accordance
with the criteria in this section. This must include, unless not
reasonably available, information on:
(1) The origin of the waste and how it was subsequently managed
(including a description of the timing and circumstances surrounding
the disposal and/or release);
(2) Whether the waste was listed or identified as hazardous at the
time of disposal and/or release; and
(3) Whether the disposal and/or release of the waste occurred
before or after the land disposal requirements of part 268 of this
chapter were in effect for the waste listing or characteristic.
(e) The Regional Administrator shall specify, in the permit or
order, requirements for CAMUs to include the following:
(1) The areal configuration of the CAMU.
(2) Except as provided in paragraph (g) of this section,
requirements for CAMU-eligible waste management to include the
specification of applicable design, operation, treatment and closure
requirements.
(3) Minimum design requirements. CAMUs, except as provided in
paragraph (f) of this section, into which wastes are placed must be
designed in accordance with the following:
(i) Unless the Regional Administrator approves alternate
requirements under paragraph (e)(3)(ii) of this section, CAMUs that
consist of new, replacement, or laterally expanded units must include a
composite liner and a leachate collection system that is designed and
constructed to maintain less than a 30-cm depth of leachate over the
liner. For purposes of this section, composite liner means a system
consisting of two components; the upper component must consist of a
minimum 30-mil flexible membrane liner (FML), and the lower component
must consist of at least a two-foot layer of compacted soil with a
hydraulic conductivity of no more than 1x10-7 cm/sec. FML components
consisting of high density polyethylene (HDPE) must be at least 60 mil
thick. The FML component must be installed in direct and uniform
contact with the compacted soil component;
(ii) Alternate requirements. The Regional Administrator may approve
alternate requirements if:
(A) The Regional Administrator finds that alternate design and
operating practices, together with location characteristics, will
prevent the migration of any hazardous constituents into the ground
water or surface water at least as effectively as the liner and
leachate collection systems in paragraph (e)(3)(i) of this section; or
(B) The CAMU is to be established in an area with existing
significant levels of contamination, and the Regional Administrator
finds that an alternative design, including a design that does not
include a liner, would prevent migration from the unit that would
exceed long-term remedial goals.
(4) Minimum treatment requirements: Unless the wastes will be
placed in a CAMU for storage and/or treatment only in accordance with
paragraph (f) of this section, CAMU-eligible wastes that, absent this
section, would be subject to the treatment requirements of part 268 of
this chapter, and that the Regional Administrator determines contain
principal hazardous constituents must be treated to the standards
specified in paragraph (e)(4)(iii) of this section.
(i) Principal hazardous constituents are those constituents that
the Regional Administrator determines pose a risk to human health and
the environment substantially higher than the cleanup levels or goals
at the site.
(A) In general, the Regional Administrator will designate as
principal hazardous constituents:
(1) Carcinogens that pose a potential direct risk from ingestion or
inhalation at the site at or above 10-\3\; and
(2) Non-carcinogens that pose a potential direct risk from
ingestion or inhalation at the site an order of magnitude or greater
over their reference dose.
(B) The Regional Administrator will also designate constituents as
principal hazardous constituents, where appropriate, when risks to
human health and the environment posed by the potential migration of
constituents in wastes to ground water are substantially higher than
cleanup levels or goals at the site; when making such a designation,
the Regional Administrator may consider such factors as constituent
concentrations, and fate and transport characteristics under site
conditions.
(C) The Regional Administrator may also designate other
constituents as principal hazardous constituents that the Regional
Administrator determines pose a risk to human health and the environment
substantially higher than the cleanup levels or goals at the site.
(ii) In determining which constituents are ``principal hazardous
constituents,'' the Regional Administrator must consider all
constituents which, absent this section, would be subject to the
treatment requirements in 40 CFR part 268.
(iii) Waste that the Regional Administrator determines contains
principal hazardous constituents must meet treatment standards determined
in accordance with paragraph (e)(4)(iv) or (e)(4)(v) of this section:
(iv) Treatment standards for wastes placed in CAMUs.
(A) For non-metals, treatment must achieve 90 percent reduction in
total principal hazardous constituent concentrations, except as
provided by paragraph (e)(4)(iv)(C) of this section.
(B) For metals, treatment must achieve 90 percent reduction in
principal hazardous constituent concentrations as measured in leachate
from the treated waste or media (tested according to the TCLP) or 90
percent reduction in total constituent concentrations (when a metal
removal treatment technology is used), except as provided by paragraph
(e)(4)(iv)(C) of this section.
(C) When treatment of any principal hazardous constituent to a 90
percent reduction standard would result in a concentration less than 10
times the Universal Treatment Standard for that constituent, treatment
to achieve constituent concentrations less than 10 times the Universal
Treatment Standard is not required. Universal Treatment Standards are
identified in Sec. 268.48 Table UTS of this chapter.
(D) For waste exhibiting the hazardous characteristic of
ignitability, corrosivity or reactivity, the waste must also be treated
to eliminate these characteristics.
(E) For debris, the debris must be treated in accordance with
Sec. 268.45 of this chapter, or by methods or to levels established
under paragraphs (e)(4)(iv)(A) through (D) or paragraph (e)(4)(v) of this
section, whichever the Regional Administrator determines is appropriate.
(F) Alternatives to TCLP. For metal bearing wastes for which metals
removal treatment is not used, the Regional Administrator may specify a
leaching test other than the TCLP (SW846 Method 1311, 40 CFR
260.11(11)) to measure treatment effectiveness, provided the Regional
Administrator determines that an alternative leach testing protocol is
appropriate for use, and that the alternative more accurately reflects
conditions at the site that affect leaching.
(v) Adjusted standards. The Regional Administrator may adjust the
treatment level or method in paragraph (e)(4)(iv) of this section to a
higher or lower level, based on one or more of the following

[[Page 3027]]

factors, as appropriate. The adjusted level or method must be
protective of human health and the environment:
(A) The technical impracticability of treatment to the levels or by
the methods in paragraph (e)(4)(iv) of this section;
(B) The levels or methods in paragraph (e)(4)(iv) of this section
would result in concentrations of principal hazardous constituents
(PHCs) that are significantly above or below cleanup standards
applicable to the site (established either site-specifically, or
promulgated under state or federal law);
(C) The views of the affected local community on the treatment
levels or methods in paragraph (e)(4)(iv) of this section as applied at
the site, and, for treatment levels, the treatment methods necessary to
achieve these levels;
(D) The short-term risks presented by the on-site treatment method
necessary to achieve the levels or treatment methods in paragraph
(e)(4)(iv) of this section;
(E) The long-term protection offered by the engineering design of
the CAMU and related engineering controls:
(1) Where the treatment standards in paragraph (e)(4)(iv) of this
section are substantially met and the principal hazardous constituents
in the waste or residuals are of very low mobility; or
(2) Where cost-effective treatment has been used and the CAMU meets
the Subtitle C liner and leachate collection requirements for new land
disposal units at Sec. 264.301(c) and (d); or
(3) Where, after review of appropriate treatment technologies, the
Regional Administrator determines that cost-effective treatment is not
reasonably available, and the CAMU meets the Subtitle C liner and
leachate collection requirements for new land disposal units at
Sec. 264.301(c) and (d); or
(4) Where cost-effective treatment has been used and the principal
hazardous constituents in the treated wastes are of very low mobility;
or
(5) Where, after review of appropriate treatment technologies, the
Regional Administrator determines that cost-effective treatment is not
reasonably available, the principal hazardous constituents in the
wastes are of very low mobility, and either the CAMU meets or exceeds
the liner standards for new, replacement, or laterally expanded CAMUs
in paragraphs (e)(3)(i) and (ii) of this section, or the CAMU provides
substantially equivalent or greater protection.
(vi) The treatment required by the treatment standards must be completed
prior to, or within a reasonable time after, placement in the CAMU.
(vii) For the purpose of determining whether wastes placed in CAMUs
have met site-specific treatment standards, the Regional Administrator
may, as appropriate, specify a subset of the principal hazardous
constituents in the waste as analytical surrogates for determining
whether treatment standards have been met for other principal hazardous
constituents. This specification will be based on the degree of
difficulty of treatment and analysis of constituents with similar
treatment properties.
(5) Except as provided in paragraph (f) of this section, requirements
for ground water monitoring and corrective action that are sufficient to:
(i) Continue to detect and to characterize the nature, extent,
concentration, direction, and movement of existing releases of hazardous
constituents in ground water from sources located within the CAMU; and
(ii) Detect and subsequently characterize releases of hazardous
constituents to ground water that may occur from areas of the CAMU in
which wastes will remain in place after closure of the CAMU; and
(iii) Require notification to the Regional Administrator and
corrective action as necessary to protect human health and the
environment for releases to ground water from the CAMU.
(6) Except as provided in paragraph (f) of this section, closure
and post-closure requirements:
(i) Closure of corrective action management units shall:
(A) Minimize the need for further maintenance; and
(B) Control, minimize, or eliminate, to the extent necessary to
protect human health and the environment, for areas where wastes remain
in place, post-closure escape of hazardous wastes, hazardous constituents,
leachate, contaminated runoff, or hazardous waste decomposition products
to the ground, to surface waters, or to the atmosphere.
(ii) Requirements for closure of CAMUs shall include the following,
as appropriate and as deemed necessary by the Regional Administrator
for a given CAMU:
(A) Requirements for excavation, removal, treatment or containment
of wastes; and
(B) Requirements for remo