53 FR 37082-37247 Friday, Sept. 23, 1988 40 CFR Parts 280 and 281, Underground Storage Tanks; Technical Requirements and State Program Approval; Final Rules--Preamble Section VI. Relationship to Other Agency Programs
VI. RELATIONSHIP TO OTHER AGENCY PROGRAMS
This section discusses the relationship of today's final rules to certain other EPA regulatory programs. This discussion is for informational purposes only.
Section 105 of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA, or Superfund) requires development of a list of national priorities among known sites with releases and threatened releases of hazardous substances, pollutants, and contaminants. The National Contingency Plan (40 CFR Part 300) regulates development of the National Priorities List (of sites with releases) as well as appropriate responses to the most serious releases. These regulations currently apply to releases of CERCLA-designated hazardous substances from underground storage tanks. CERCLA, however, does not apply to releases of petroleum from USTs or other sources.
Releases of hazardous substances from UST systems may require removal or remedial action responses by federal or state agencies, in accordance with 40 CFR Part 300. Some UST releases of hazardous substances are already included in the National Priorities List. When today's final rules become effective (within 90 days), owners and operators of UST systems that release hazardous substances will be subject to the corrective action provisions of the rules and, in selected cases, the removal or remedial action measures of 40 CFR Part 300. It is the responsibility of the owner and operator of a hazardous substance UST system that releases hazardous substances to consult with the implementing agency to determine the applicability of CERCLA requirements and Subtitle I release response and corrective action requirements under Subpart F.
Under sections 102 and 103 of CERCLA, EPA has promulgated regulations (40 CFR Part 302) that identify hazardous substances and quantities of releases of these hazardous substances that must be reported to the National Response Center. Those regulations contain reporting requirements for releases equal to or in excess of the established reportable quantities (RQs). Under CERCLA, owners and operators of all kinds of storage, transportation, and disposal facilities containing hazardous substances must report releases to the National Response Center. Owners and operators of USTs with releases of hazardous substances that exceed the RQs set forth in 40 CFR Part 302 will continue to be subject to those CERCLA reporting requirements.
Under today's rule, owners and operators that store hazardous substances in USTs are also required to report spill or overfill releases of these substances from USTs that exceed the RQ to the implementing agency within 24 hours, or another period specified by the implementing agency, and immediately begin containment and cleanup of the release. Owners and operators with spills or overfills of hazardous substances from USTs that are less than the reportable quantity will not be subject to the release reporting requirements although they will still be responsible to immediately contain and clean them up.
B. Hazardous Waste Tank Program
Under RCRA Subtitle C, EPA promulgated regulations for tank systems containing hazardous wastes (40 CFR Parts 264 and 265, July 14, 1986) including underground tanks. The RCRA Subtitle I rules promulgated today apply to USTs containing "regulated substances." These regulated substances include petroleum and hazardous substances defined in section 101(14) of CERCLA, except for hazardous wastes regulated under Subtitle C. The exclusion of hazardous wastes from the definition of regulated substance avoids most of the overlapping jurisdiction of Subtitle I and Subtitle C. An overlap in jurisdiction does exist, however, for USTs containing petroleum wastes that are subject to the provisions of RCRA 3014. This overlap is discussed in the next section.
There is also a potential overlap in jurisdiction for USTs containing mixtures of petroleum and hazardous wastes. Today's final rules resolve this potential overlap by excluding such USTs from the universe of USTs subject to today's requirements. Unless otherwise exempted, such USTs would be subject to the requirements of Subtitle C. It is intended that today's rules regulate a different set of UST systems from those subject to regulation under Subtitle C.
C. Hazardous Waste Management Regulations
Section 3001 of the Resource Conservation and Recovery Act requires EPA to identify wastes that pose a hazard to human health and the environment if improperly managed. Under the regulatory program established by Subtitle C of RCRA, EPA has developed a process that identifies and publishes lists of hazardous wastes. Generators must determine whether their waste is on one of the lists in 40 CFR Part 261, Subpart D. If a waste is not listed as a hazardous waste, waste generators are required to determine if their waste is hazardous either by testing it to determine if it exhibits any "characteristics," based on knowledge about the physical and chemical composition of the waste. In the latter case, testing of the waste is not necessary if it is believed that it would not exhibit a hazardous waste characteristic. The waste generator, however, remains responsible for making the correct determinations concerning the characteristics of reactivity, corrosivity, ignitability, and extraction procedure (EP) toxicity, as specified in 40 CFR Part 261, Subpart C.
1. Hazardous Substances
Many hazardous substances regulated by the Subtitle I tank rules are currently on EPA's hazardous waste lists of commercial chemical products at 40 CFR Section 261.33(e) and (f). The products become hazardous wastes when discarded, including when spilled and then not cleaned up and used for their intended purpose. Soils, water, or other debris contaminated by these products are subject to regulation as hazardous waste (see 40 CFR 261.33(d)). A person removing such contaminated soil or debris during a cleanup is a hazardous waste generator, subject to Section 261.5 or Part 262.
2. Petroleum and Petroleum-based Substances
Petroleum-contaminated soils are not an EPA-listed hazardous waste. Based on its physical and chemical nature, petroleum-contaminated soil would not exhibit the hazardous characteristics of corrosivity or reactivity under 40 CFR 261. Some state UST programs have reported to the Agency that they require the use of the EPA tests for ignitability and EP toxicity to assist in making decisions about whether to manage the petroleum-contaminated soils on- or off-site. Other states have simply declared that the soils are not a hazardous waste and, therefore, do not require testing or management as a hazardous waste. Other states require management of petroleum-contaminated soils as a "special waste" that must receive special handling to control environmental and human health risks believed to be associated with the volatile organic chemical emissions known to come from such soils.
Although some states require the use of the EPA tests, petroleum-contaminated soils do not satisfy the EPA criteria for an ignitable hazardous waste. A substance is classified as a hazardous waste if it exhibits the characteristic of ignitability according to one of the following four criteria (40 CFR 261.21) as determined by using an ASTM or Administrator-approved testing procedures. The substance must be: (1) a liquid containing less than or equal to 24 percent alcohol having a flashpoint less than 140¯ F; (2) a nonliquid, but capable under standard temperature and pressure of causing fire through friction, absorption of moisture, or spontaneous chemical changes which burns so vigorously and persistently that it creates a hazard; (3) an ignitable compressed gas, as defined in 49 CFR 173.300; or (4) an oxidizer as defined in 40 CFR 173.151. Gasoline-contaminated soils do not satisfy criteria (1), (3), or (4). They do satisfy the nonliquid requirement of criterion (2); however, the Agency has concluded that they are very unlikely to ever be capable of causing fire by friction, absorption of moisture, or spontaneous chemical changes. These soils, therefore, should not be a hazardous waste under Subtitle C of RCRA due to ignitability.
Several states contacted by EPA reported that they have conducted thousands of EP toxicity tests on petroleum-contaminated soils and they have never exhibited the characteristic of EP toxicity at numerous sites nationwide where soils were contaminated by both leaded and unleaded gasolines. This result is expected because the extraction procedure is designed to identify individual wastes that are hazardous due to their potential to leach significant concentrations of eight specific metals, four insecticides, and two herbicides in a municipal landfill scenario. When subjected to the EP toxicity test, the only constituent of concern for soils contaminated by petroleum is lead. The extremely high adsorption coefficient of lead, however, indicates that such soils are unlikely to ever exhibit the characteristic of EP toxicity.
In summary, the evidence collected by or reported to the Agency to-date indicates it is very unlikely that petroleum-contaminated soils will be found to exhibit any of the characteristics of hazardous waste as currently defined by EPA regulations. However, EPA is also aware that there are potential threats that need to be considered in the management of petroleum-contaminated soils. For example, petroleum-contaminated soils (particularly motor fuels) can contribute significant amounts of volatile compounds to the air or be the source of dissolved contaminants (such as benzene) in ground-water resources. Today's final regulations leave the off-site management of these concerns to existing state and local requirements. EPA believes there are several ways to properly manage petroleum-contaminated soils that are not hazardous wastes, including the following approaches that are already being used in various states:
o Define petroleum-contaminated soils as a non-hazardous waste that requires disposal into permitted solid waste facilities.
o Define it as a special waste that requires special handling (such as land spreading, heat treating, or disposal in designated fill areas) that is tailored to remove the threats posed by the volatile constituents of the petroleum.
o Define petroleum-contaminated soils as a hazardous waste that must be treated or disposed of under the hazardous waste standards.
EPA intends to study this technical issue further and provide more information to the public and the implementing agencies concerning alternative ways to manage petroleum-contaminated soils when they are managed on-site or removed off-site. This information may include, for example, a description of different test methods that could be used to characterize petroleum-contaminated soils in a more meaningful fashion than present methods. EPA is currently investigating techniques to measure and assess the condition of petroleum-contaminated soils, and handling and treatment alternatives that can be used to properly manage the potential risks they pose to human health and the environment.
Finally, EPA notes that under proposed revisions to the toxicity characteristic under the Agency's hazardous waste regulations (40 CFR 261.24), benzene and a number of other compounds would be added to those constituents that, when measured in waste leachate, will determine whether a waste exhibits a hazardous waste characteristic. (See 51 FR 21648; June 13, 1986.) When these rule revisions are issued in final form, a large amount of petroleum-contaminated soils that are currently considered nonhazardous may have to be managed as hazardous waste. For example, all petroleum-saturated soils may be characterized as a hazardous waste under the proposed revisions. EPA is unsure of the impacts of this proposed rule change at this time, and in fact recently requested additional public comments on the levels for benzene and other constituents. (See 53 FR 18024; May 19, 1988.) However, the public comment period is closed on this issue. The Agency will provide further guidance on this issue at a later date.
D. Used Oil Regulations
Underground tanks storing used oil (e.g., automobile and truck used crankcase oil) are under the jurisdiction of Subtitle I. Pursuant to section 9001(2)(B) of RCRA, underground tanks containing "petroleum, including crude oil or any fraction thereof which is liquid at standard conditions of temperature and pressure . . ." are within the scope of Subtitle I. Since used oil is primarily composed of petroleum, although it may contain contaminants due to use of the oil, it is subject to Subtitle I requirements. Owners and operators of UST systems containing used oil were required to notify designated state agencies of the presence of such tanks by May 8, 1986. Owners and operators of newly installed used oil UST systems have also been subject to the requirements of the Interim Prohibition, which has been in effect since May 8, 1985.
As discussed above, however, today's regulations exclude any tanks regulated under Subtitle C of RCRA. Under Subtitle C, EPA has the authority to regulate recycled oil, and to regulate used oil that is disposed of under Subtitle C if such oil is identified or listed as a hazardous waste. Under the authority of Subtitle C of RCRA, EPA proposed to list used oil as hazardous waste (50 FR 49269-49270, November 29, 1985) and has proposed standards for recycled oil (50 FR 49250-49258, November 29, 1985). Since those publications in the FEDERAL REGISTER, several important decisions in terms of these proposed rulemakings have been made, namely:
(1) Storage of used oil (even when recycled) will be regulated, and
(2) Recycled oil will not be listed as a hazardous waste (51 FR 41900, November 19, 1986).
The storage of used oil, however, is not currently regulated as a hazardous waste under Subtitle C. Unless and until the Agency regulates the storage of used oil as a hazardous waste under Subtitle C, it will be subject to Subtitle I. Accordingly, the Agency is today including application of the technical requirements to used oil UST systems. This is discussed in further detail in section IV.A.
Under section 311 of the Federal Water Pollution Control Act, EPA has promulgated regulations for the prevention of oil spills into navigable waters. These rules (40 CFR Part 112) known as the Spill Prevention Control and Countermeasure (SPCC) regulations are intended to prevent and contain releases of oil into surface waters which are navigable.
Comparatively few UST systems are subject to SPCC regulations. Only those tanks of greater than 42,000 gallons capacity that are located near navigable waters of the U.S. or adjoining shorelines may be affected. UST systems which, due to their location, could reasonably be expected to discharge oil into or upon navigable waters of the United States or adjoining shorelines and which have a storage capacity greater than 42,000 gallons are subject to both today's rules and the SPCC rules.
F. DOE High-Level Radioactive Waste Program
Under the Atomic Energy Act of 1954 (42 U.S.C. 2001 et seq.), the U.S. Department of Energy (DOE) has promulgated rules for the management of high-level radioactive waste resulting from atomic energy defense activity. DOE Orders 5480.1, 5480.2, and 5820.2 regulate the underground storage of these wastes, including corrective actions in the event of a release.
The UST rules include the storage of radioactive waste because any radionuclide is a "hazardous substance" under CERCLA and thus a regulated substance under Subtitle I. However, in view of the differences in high-level radioactive waste from other RCRA Subtitle I regulated substances and the much larger tanks storing this waste, EPA is today deferring regulatory action on these DOE radioactive waste facilities. Until a determination is made as to whether, and how, the UST rules should apply to DOE facilities storing high-level radioactive wastes, today's UST requirements, except corrective action and the Interim Prohibition requirements, do not apply to these facilities. More details are provided on this in section IV.A.