[Federal Register Volume 67, Number 14 (Tuesday, January 22, 2002)]
[Rules and Regulations]
[Pages 2962-3029]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 02-4]



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Part III





Environmental Protection Agency





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40 CFR Parts 260, 264, and 271



Amendments to the Corrective Action Management Unit Rule; Final Rule

Federal Register / Vol. 67, No. 14 / Tuesday, January 22, 2002 / 
Rules and Regulations

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 260, 264, and 271

[FRL-7124-3]
RIN 2050-AE77


Amendments to the Corrective Action Management Unit Rule

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

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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

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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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    \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.
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    \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.
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    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.
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    \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\
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    \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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.
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    \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.
---------------------------------------------------------------------------

    \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).
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    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.
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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).

    (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 remediation 
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.
* * * * *

    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 removal and decontamination of equipment, 
devices, and structures used in CAMU-eligible waste management 
activities within the CAMU.
    (iii) In establishing specific closure requirements for CAMUs under 
paragraph (e) of this section, the Regional Administrator shall 
consider the following factors:
    (A) CAMU characteristics;
    (B) Volume of wastes which remain in place after closure;
    (C) Potential for releases from the CAMU;
    (D) Physical and chemical characteristics of the waste;
    (E) Hydrological and other relevant environmental conditions at the 
facility which may influence the migration of any potential or actual 
releases; and
    (F) Potential for exposure of humans and environmental receptors if 
releases were to occur from the CAMU.
    (iv) Cap requirements:
    (A) At final closure of the CAMU, for areas in which wastes will 
remain after closure of the CAMU, with constituent concentrations at or 
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 meet the following performance criteria, except as 
provided in paragraph (e)(6)(iv)(B) of this section:
    (1) Provide long-term minimization of migration of liquids through 
the closed unit;
    (2) Function with minimum maintenance;
    (3) Promote drainage and minimize erosion or abrasion of the cover;
    (4) Accommodate settling and subsidence so that the cover's 
integrity is maintained; and
    (5) Have a permeability less than or equal to the permeability of 
any bottom liner system or natural subsoils present.
    (B) The Regional Administrator may determine that modifications to 
paragraph (e)(6)(iv)(A) of this section are needed to facilitate 
treatment or the performance of the CAMU (e.g., to promote 
biodegradation).
    (v) Post-closure requirements as necessary to protect human health 
and the environment, to include, for areas where wastes will remain in 
place, monitoring and maintenance activities, and the frequency with 
which such activities shall be performed to ensure the integrity of any 
cap, final cover, or other containment system.
    (f) CAMUs used for storage and/or treatment only are CAMUs in which 
wastes will not remain after closure. Such CAMUs must be designated in 
accordance with all of the requirements of this section, except as 
follows.
    (1) CAMUs that are used for storage and/or treatment only and that 
operate in accordance with the time limits established in the staging 
pile regulations at Sec. 264.554(d)(1)(iii), (h), and (i) are subject 
to the requirements for staging piles at Sec. 264.554(d)(1)(i) and 
(ii), Sec. 264.554(d)(2), Sec. 264.554(e) and (f),

[[Page 3028]]

and Sec. 264.554(j) and (k) in lieu of the performance standards and 
requirements for CAMUs in this section at paragraphs (c) and (e)(3) 
through (6).
    (2) CAMUs that are used for storage and/or treatment only and that 
do not operate in accordance with the time limits established in the 
staging pile regulations at Sec. 264.554(d)(1)(iii), (h), and (i):
    (i) Must operate in accordance with a time limit, established by 
the Regional Administrator, that is no longer than necessary to achieve 
a timely remedy selected for the waste, and
    (ii) Are subject to the requirements for staging piles at 
Sec. 264.554(d)(1)(i) and (ii), Sec. 264.554(d)(2), Sec. 264.554(e) and 
(f), and Sec. 264.554(j) and (k) in lieu of the performance standards 
and requirements for CAMUs in this section at paragraphs (c) and (e)(4) 
and (6).
    (g) CAMUs into which wastes are placed where all wastes have 
constituent levels at or below remedial levels or goals applicable to 
the site do not have to comply with the requirements for liners at 
paragraph (e)(3)(i) of this section, caps at paragraph (e)(6)(iv) of 
this section, ground water monitoring requirements at paragraph (e)(5) 
of this section or, for treatment and/or storage-only CAMUs, the design 
standards at paragraph (f) of this section.
    (h) The Regional Administrator shall provide public notice and a 
reasonable opportunity for public comment before designating a CAMU. 
Such notice shall include the rationale for any proposed adjustments 
under paragraph (e)(4)(v) of this section to the treatment standards in 
paragraph (e)(4)(iv) of this section.
    (i) Notwithstanding any other provision of this section, the 
Regional Administrator may impose additional requirements as necessary 
to protect human health and the environment.
    (j) Incorporation of a CAMU into an existing permit must be 
approved by the Regional Administrator according to the procedures for 
Agency-initiated permit modifications under Sec. 270.41 of this 
chapter, or according to the permit modification procedures of 
Sec. 270.42 of this chapter.
    (k) The designation of a CAMU does not change EPA's existing 
authority to address clean-up levels, media-specific points of 
compliance to be applied to remediation at a facility, or other remedy 
selection decisions.

    8. Section 264.554 is amended by adding (a)(1) and adding and 
reserving (a) (2) to read as follows:


Sec. 264.554  Staging piles.

* * * * *
    (a) * * *
    (1) For the purposes of this section, storage includes mixing, 
sizing, blending, or other similar physical operations as long as they 
are intended to prepare the wastes for subsequent management or 
treatment.
    (2) [Reserved]
* * * * *

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


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

    (a) The Regional Administrator with regulatory oversight at the 
location where the cleanup is taking place may approve placement of 
CAMU-eligible wastes in hazardous waste landfills not located at the 
site from which the waste originated, without the wastes meeting the 
requirements of RCRA 40 CFR part 268, if the conditions in paragraphs 
(a)(1) through (3) of this section are met:
    (1) The waste meets the definition of CAMU-eligible waste in 
Sec. 264.552(a)(1) and (2).
    (2) The Regional Administrator with regulatory oversight at the 
location where the cleanup is taking place identifies principal 
hazardous constitutes in such waste, in accordance with 
Sec. 264.552(e)(4)(i) and (ii), and requires that such principal 
hazardous constituents are treated to any of the following standards 
specified for CAMU-eligible wastes:
    (i) The treatment standards under Sec. 264.552(e)(4)(iv); or
    (ii) Treatment standards adjusted in accordance with 
Sec. 264.552(e)(4)(v)(A), (C), (D) or (E)(1); or
    (iii) Treatment standards adjusted in accordance with 
Sec. 264.552(e)(4)(v)(E)(2), where treatment has been used and that 
treatment significantly reduces the toxicity or mobility of the 
principal hazardous constituents in the waste, minimizing the short-
term and long-term threat posed by the waste, including the threat at 
the remediation site.
    (3) The landfill receiving the CAMU-eligible waste must have a RCRA 
hazardous waste permit, meet the requirements for new landfills in 
Subpart N of this part, and be authorized to accept CAMU-eligible 
wastes; for the purposes of this requirement, ``permit'' does not 
include interim status.
    (b) The person seeking approval shall provide sufficient 
information to enable the Regional Administrator with regulatory 
oversight at the location where the cleanup is taking place to approve 
placement of CAMU-eligible waste in accordance with paragraph (a) of 
this section. Information required by Sec. 264.552(d)(1) through (3) 
for CAMU applications must be provided, unless not reasonably 
available.
    (c) The Regional Administrator with regulatory oversight at the 
location where the cleanup is taking place shall provide public notice 
and a reasonable opportunity for public comment before approving CAMU 
eligible waste for placement in an off-site permitted hazardous waste 
landfill, consistent with the requirements for CAMU approval at 
Sec. 264.552(h). The approval must be specific to a single remediation.
    (d) Applicable hazardous waste management requirements in this 
part, including recordkeeping requirements to demonstrate compliance 
with treatment standards approved under this section, for CAMU-eligible 
waste must be incorporated into the receiving facility permit through 
permit issuance or a permit modification, providing notice and an 
opportunity for comment and a hearing. Notwithstanding 40 CFR 270.4(a), 
a landfill may not receive hazardous CAMU-eligible waste under this 
section unless its permit specifically authorizes receipt of such 
waste.
    (e) For each remediation, CAMU-eligible waste may not be placed in 
an off-site landfill authorized to receive CAMU-eligible waste in 
accordance with paragraph (d) of this section until the following 
additional conditions have been met:
    (1) The landfill owner/operator notifies the Regional Administrator 
responsible for oversight of the landfill and persons on the facility 
mailing list, maintained in accordance with 40 CFR 124.10(c)(1)(ix), of 
his or her intent to receive CAMU-eligible waste in accordance with 
this section; the notice must identify the source of the remediation 
waste, the principal hazardous constituents in the waste, and treatment 
requirements.
    (2) Persons on the facility mailing list may provide comments, 
including objections to the receipt of the CAMU-eligible waste, to the 
Regional Administrator within 15 days of notification.
    (3) The Regional Administrator may object to the placement of the 
CAMU-eligible waste in the landfill within 30 days of notification; the 
Regional Administrator may extend the review period an additional 30 
days because of public concerns or insufficient information.
    (4) CAMU-eligible wastes may not be placed in the landfill until 
the Regional Administrator has notified the facility owner/operator 
that he or she does not object to its placement.

[[Page 3029]]

    (5) If the Regional Administrator objects to the placement or does 
not notify the facility owner/operator that he or she has chosen not to 
object, the facility may not receive the waste, notwithstanding 40 CFR 
270.4(a), until the objection has been resolved, or the owner/operator 
obtains a permit modification in accordance with the procedures of 
Sec. 270.42 specifically authorizing receipt of the waste.
    (6) As part of the permit issuance or permit modification process 
of paragraph (d) of this section, the Regional Administrator may 
modify, reduce, or eliminate the notification requirements of this 
paragraph as they apply to specific categories of CAMU-eligible waste, 
based on miminal risk.
    (f) Generators of CAMU-eligible wastes sent off-site to a hazardous 
waste landfill under this section must comply with the requirements of 
40 CFR 268.7(a)(4); off-site facilities treating CAMU-eligible wastes 
to comply with this section must comply with the requirements of 
Sec. 268.7(b)(4), except that the certification must be with respect to 
the treatment requirements of paragraph (a)(2) of this section.
    (g) For the purposes of this section only, the ``design of the 
CAMU'' in 40 CFR 264.552(e)(4)(v)(E) means design of the permitted 
Subtitle C landfill.

PART 271--REQUIREMENTS FOR AUTHORIZATION OF STATE HAZARDOUS WASTE 
PROGRAMS

    10. The authority citation for Part 271 continues to read as 
follows:

    Authority: 42 U.S.C. 9605, 6912(2), and 6926.

    11. Section 271.1(j) is amended by adding the following entry to 
Table 1 in chronological order by date of publication in the Federal 
Register, to read as follows:


Sec. 271.1  Purpose and scope.

* * * * *
    (j) * * *

               Table 1.--Regulations Implementing the Hazardous and Solid Waste Amendments of 1984
----------------------------------------------------------------------------------------------------------------
                                                                Federal Register
          Promulgation date             Title of Regulation        reference              Effective date
----------------------------------------------------------------------------------------------------------------
 
*                  *                  *                  *                  *                  *
                                                        *
January 22, 2002....................  Corrective Action......          [FR pages  April 22, 2002.
                                      Management Unit........           numbers]
                                      Standards..............
                                      Amendments.............
*                  *                  *                  *                  *                  *
                                                        *
----------------------------------------------------------------------------------------------------------------


    12. Section 271.24 is amended by revising paragraph (c) to read as 
follows:


Sec. 271.24  Interim authorization under section 3006(g) of RCRA.

* * * * *
    (c) Interim authorization pursuant to this section expires on 
January 1, 2003, except that interim authorization for the revised 
Corrective Action Management Unit rule (except 40 CFR 264.555) 
promulgated on January 22, 2002 and cited in Table 1 in Sec. 271.1 
expires on August 30, 2004 if the State has not submitted an 
application for final authorization.

    13. A new Sec. 271.27 is added to Subpart A to read as follows:


Sec. 271.27  Interim authorization-by-rule for the revised Corrective 
Action Management Unit rule.

    (a) States shall be deemed to have interim authorization pursuant 
to section 3006(g) of RCRA for the revised Corrective Action Management 
Unit rule if:
    (1) The State has been granted final authorization pursuant to 
section 3006(b) of RCRA for the regulation entitled ``Corrective Action 
Management Units and Temporary Units,'' February 16, 1993 and cited in 
Table 1 in Sec. 271.1; and
    (2) The State notifies the Regional Administrator by March 25, 2002 
that the State intends to and is able to use the revised Corrective 
Action Management Unit Standards rule as guidance.
    (b) Interim authorization pursuant to this section expires on 
August 30, 2004 if the State has not submitted an application for final 
authorization.
[FR Doc. 02-4 Filed 1-18-02; 8:45 am]
BILLING CODE 6560-50-P