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57 FR 36866-36867 Friday, Aug. 14, 1992 Deferral of Petroleum UST-Contaminated Media and Debris From RCRA Hazardous Waste Requirements: Notice of Data Availability; Proposed Rule

36866-36867 Federal Register / Vol. 57, No. 158 / Friday, August 14, 1992 / Proposed Rules

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 261

[FRL-34791-5]

Deferral of Petroleum UST-Contaminated Media and Debris From RCRA Hazardous Waste Requirements: Notice of Data Availability; Proposed Rule

AGENCY: Environmental Protection Agency (EPA)

ACTION: Notice of data availability.

SUMMARY: The Environmental Protection Agency (EPA) is today publishing a notice describing several studies which the Agency has completed concerning the temporary deferral from the hazardous waste Toxicity Characteristics (TC) rule of petroleum-contaminated media and debris from underground storage tanks (USTs). Since the temporary deferral was published on march 29, 1990, EPA has conducted several studies and held meetings with interested members of the public regarding the temporary deferral and the anticipated effects of regulating UST petroleum-contaminated media and debris as hazardous wastes under Subtitle C of the Resource Conservation and Recovery Act (RCRA). This notice summarizes the findings of the studies and the results of the public meetings. These materials will be used by the Agency to make a final determination regarding the hazardous waste regulatory status of petroleum UST-contaminated media and debris. EPA encourages public review and comment on these materials.

DATES: Written comments on these materials must be submitted on or before September 28,1992.

ADDRESSES: Written comments on the materials described in today's notice should be addressed to the docket clerk at the following address: U.S. Environmental Protection Agency, RCRA Docket (OS-305), 401 M Street, S.W., Washington, DC 20460. One original and two copies of comments should be sent and identified by regulatory docket reference number F-92-DPUA-FFFFF. The docket is open from 9 a.m. to 4 p.m., Monday through Friday, excluding Federal holidays. Docket materials may be reviewed by appointment by calling (202) 260-9327. Copies of docket materials may be made at a cost of $0.15 per page.

FOR FURTHER INFORMATION CONTACT: For general information about this notice, please contact the RCRA/Superfund Hotline, Office of Solid Waste, U.S. Environmental Protection Agency, Washington, DC 20460, (800) 424-9346 (toll-free) or (202) 260-3000 (local). For the hearing impaired, the number is (800) 553-7672 (toll-free), or (202) 260-9652 (local). For specific information about the studies and meetings described in this notice or about the UST deferral, please contact John Heffelfinger in the EPA Office of Underground Storage Tanks at (703) 308-8881.

SUPPLEMENTARY INFORMATION:

I. Background

A. Toxicity Characteristics Rule

The Toxicity Characteristics (TC) rule for identifying hazardous wastes was promulgated by the Agency on March 29, 1990 (55 Fed. Reg. 11798) and became effective on September 25, 1990. The rule replaced the Extraction Procedure (EP) leach test with the Toxicity Characteristic Leaching Procedure (TCLP), added 25 organic chemicals to the list of toxic constituents of concern and established regulatory levels for these organic chemicals.

The overall effect of the TC rule was to subject additional solid wastes to regulatory control under the hazardous waste provisions of Subtitle C of RCRA. Under this rule, a waste may be a hazardous waste of any chemicals listed in the rule, such as benzene, are present in leachate from the waste (generated from use of the TCLP) at or above the specified regulatory levels. Management of such hazardous waste is subject to stringent RCRA Subtitle C controls.

B. The UST Deferral

Among the wastes that could be TC wastes are petroleum-contaminated media and debris. At the time of promulgation of the final TC rule, the Agency made a determination to temporarily defer applicability of the TC rule to media and debris (e.g. soils and groundwater) contaminated with petroleum from underground storage tanks (USTs) that are subject to the corrective action requirements of Subtitle I of RCRA. 55 FR 11836 (March 29, 1990). The deferral was limited to the 25 newly listed organic chemicals under the TC (i.e. Hazardous Waste Codes D018 through D043 only). See 40 CFR 261.4(b)(10).

The deferral was the result of several factors. Because the potential impact of the TC on materials generated from UST cleanups did not become apparent until very late in the rulemaking process, at the time of promulgation of the final TC rule, the Agency had little information regarding the full impact of the TC rule on UST cleanups, particularly regarding the amount of contaminated media that would become hazardous waste and the type of management feasible and appropriate for such waste. However, available information suggested that the impact of applying Subtitle C to UST cleanups might be severe in terms of the administrative feasibility of both the Subtitle C and Subtitle I programs. A preliminary assessment indicated that the number of UST cleanup sites and the amount of media and debris at each site that would exhibit the toxicity characteristic could be extremely high, with EPA expecting hundreds of thousands of UST releases to be identified in the next few years. The Agency believed that subjecting all, or even a significant portion, of these sites to Subtitle C requirements could overwhelm the hazardous waste permitting program and the capacity of existing hazardous waste treatment, storage, and disposal facilities.

In addition, EPA believed that imposition of the requirements could delay UST cleanups significantly, require an enormous new commitment of Federal and State resources, and undermine the State and local focus of the UST program. All of these factors suggested that EPA needed additional time to determine with more certainty what the impacts of the TC would be on UST cleanups before subjecting such materials to hazardous waste requirements. In addition, EPA needed time to investigate whether regulatory changes could be made to the RCRA Subtitle C regulations to allow appropriate integration of the two programs. EPA also believed that the UST regulations governing cleanups at these sites would be adequate to protect human health and the environment in the interim, until a final determination was made regarding the regulation of UST wastes.

In the preamble explaining the need for the deferral, EPA committed to undertaking several studies and meetings in order to make a final determination concerning the regulation of these UST wastes under the Subtitle C program. The studies and meetings described below are those that EPA agreed to undertake in the 1990 TC rule. The information that EPA is making available to the public today for review and comment will provide key inputs into EPA's final determination regarding the permanent regulatory status of UST petroleum-contaminated media and debris as hazardous waste under RCRA Subtitle C.

II. EPA's Studies

As explained above, the application of the TC rule to UST cleanups was temporarily deferred to allow cleanups under the UST program to proceed while the Agency evaluated the extent and nature of the potential impacts of Subtitle C requirements if applied to the UST program and the feasibility of regulatory alternatives for program integration. In fulfillment of the commitment the Agency made in the preamble to the final TC rule, EPA has completed studies that will be used as key inputs to the final determination regarding the regulation of petroleum UST-contaminated media and debris as hazardous waste. These studies are available for review in the docket for this notice and are briefly described below.

A. Technical Study

The Agency is making available today for public comment a draft report entitled "TC Study of Petroleum Contaminated Media." This report is organized as follows:

B. Impacts Study

The Agency is also making available today for public comment a draft report entitled "The Impacts of Removing the TCLP Deferral for Petroleum-Contaminated Media at Underground Storage Tanks Sites." This report is organized as follows:

C. Study Findings

The findings of these two reports corroborate the preliminary assessment that EPA made at the time of promulgation of the temporary deferral. Specifically, the findings of the two studies indicate that removing the TC deferral would significantly affect UST cleanup procedures, delay remedial actions, and increase soil remediation costs. Further, delays in site remediation caused by compliance with Subtitle C requirements could increase health and environmental risks prior to cleanup.

In addition to findings concerning the impacts of removing the deferral, these studies also indicate that many States have programs in place to regulate the management of UST petroleum-contaminated media and debris. The vast majority of these State programs address in some manner the entire cycle of UST petroleum-contaminated soils and groundwater management, from initial characterization through storage and ultimate treatment or disposal.

EPA is interested in any comments that the public may have on the content of these studies and in the use of these studies to support a final determination concerning the regulation of UST petroleum-contaminated media and debris as hazardous waste.

III. Public Meetings

In the preamble to the 1990 TC rule. EPA also stated its intention to convene a public forum to discuss the issues associated with regulating UST petroleum-contaminated soils and debris under Subtitle C of RCRA. To fulfill this commitment, in September and December, 1991. EPA convened several meetings with various interested parties (including representatives from the States, Congressional staff, environmental groups and the waste treatment and waste generating industries) to discuss issues related to the cleanup of petroleum contamination from UST at well as non-UST sources, and the potential impacts of the TC rule on these cleanups.

The thirteen States attending these meetings expressed significant concern about the adverse environmental impacts resulting from the application of the TC rule to petroleum UST releases. In the view of many States, the delays associated with RCRA Subtitle C management would allow for volatilization and migration of certain TC constituents, such as benzene prior to cleanup. Groups representing the waste generating industries generally agreed with the States, although several stated that this problem was not unique to petroleum-contaminated media.

Representatives of environmental groups and certain members of the hazardous waste treatment industry expressed concerns with the deferral as a mechanism for solving the implementation problems posed by Subtitle C regulation of petroleum-contaminated media and debris. They suggested that EPA consider modifying the hazardous waste requirements to accommodate these cleanup wastes rather than exempting the wastes entirely from important procedural and substantive hazardous waste requirements.

A complete summary of these meetings is in the docket for this action. The various viewpoints expressed in these meetings will be considered as part of EPA's final decisionmaking concerning the deferral.

IV. Schedule for Final Determination

EPA will review and evaluate the public comments on the studies and meetings described in this notice as part of its decisionmaking concerning the regulatory status of UST petroleum-contaminated media and debris. The Agency also expects to publish later this year another notice addressing the regulatory status of UST petroleum-contaminated media and debris. That notice will include EPA's evaluation of whether and how the Subtitle C regulations can be amended to accommodate the UST wastes and avoid the administrative and environmental problems associate with regulation of UST wastes as hazardous that are noted above and were discussed in the preamble to the 1990 TC final rule.

Following review of all the public comments submitted on these notices, EPA plans to publish a final determination that will terminate the temporary deferral (codified at 40 CFR 261.4(b)(10)), permanently exempt UST petroleum-contaminated media and debris from the TC, or take some other regulatory action concerning the applicability of hazardous waste requirements to these cleanup wastes. EPA currently expects to publish this determination in the Federal Register by March 31, 1993.

Dated: July 23, 1992.

Don R. Clay,

Assistant Administrator.

[FR Doc. 92-19184 Filed 8-13-92; 8:45 am]

BILLING CODE 8560-50-M

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