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49200 FedeniJlegutn /

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. S e p t e m b e r 22; 1993 : / Rolas .and.Raoniat ia iu

Authority: Sec*. 2002(a). 3006. and 7004(b) of the SoUd Watts Ditpotal Act. u smsttded by the Retouica Contorvation aiid Recoverv Act. 42 U.S.C G912(aj. 0926. aad 6974(b]. '

2. Section 272.2500. Stata Authorizatioai. is removed.

3. Section 272.2501 is revised to read as follows:

§ 272.2501 Wisconsin Ftata edmlniatored pi'OQram; final auUioilzation.

Pursuant to .section 3006(b} of RCRA. 42 U.S.C. 6926(b): Wisconsin has final autliahzatian for the following elements as submitted to EPA in Wisconsin's base program application for final, authorization which waa approved by EPA effsctivB on Januaiy 31,1986, Subsequent progiam revisibu application.'! wer^ appioved effective on June 6,198S. lanuary'^2. l aso , and April 24.1932.

State Statutes and Regulations

(a) The Wisconsin statutes and regulations dted in this paragraph are incorporated by reference as pait of the hazardous waste management p'xigram under subtitle C of RCRA. 42 U.S.C, 6921 et seq.

(1) EPA Approved'WluConsin Statutoiy RequiramentB Applicable to tha Hazaidous Wasta Management Program, (dated August 0,1093).

(2) EPA Approved Wisconsin Regulatory Requiramenta Applicable to tha Hazaidoua Waste Management Progrcm (dated August 9.1993).

(b) The foUowing stotutaa and regu Hans conoeraing Stata enforcement, nlthoiigh not inoorpoiated by referenoa for enfoicement puiposes, ara part of tha aumorized Stata program:

(1) Wisconsin Statutes. Volume 1, §S 19.21; 19.31:19.32(2) and (5); 19.35(3) and (4); 19.38; 19.37(1) and (2); Wisconsin Statutes. Voluma 3, §§ 144.69-144.72; 144.73-144.74; 144.76(2) and (3); Wisconsin SUtutes Voluma 4, §5 227.07; 227.09; 227.14; 227.51: and Wisconsin Statutes, Volume 5, §803.09 (1985-86).

(2) Wisconsin Administrative Coda, Volume 1. §NR: 2.19; 2.195(1); and 2.195(5) (effecjdva April 1.1984); Wisconsin Administrative Code, Volume 12. §NR: 680.06(12) teffactive March 1,1991).

4. Appendix A to part 272, Stata Requiiements. is amended by revising the Appendix heading and addl^^^ the center heading "Missouri" abova the listing, and adding in alphabetical order "Wisconsin" and its listing to read as follows;

MISSOURI

WISCONSIN

Tha statntorr proTisions inchide: Wlicontin Statutes, Voluma 3, SectionK 144.01:144.43-433:144.44 (except 144.44(4X8)): 144.441(1H2): 144.«41(3) (b), (f). and (g); 144.441(4) (a) and (c)-(g]; 144.441'6); 144.442(1), (4H11): 144.443: 144.444:144.60-144.63: and 14444 (2)-(3) (excat i iai 144.64(2)(eKl}).

The regulatory provisiont Include: Wisconsin Administrative Code, Volume 12, § NR 600.01-600.04(2h 600.06; 600.3-600.. 1; 60S.02:60S.04-60S.ll: Appendbc n, 10, IV and V: 610.01-610.09(21; 615.01-61S.13(2)(b); 62aai: 62a04-«2O.10(3); 620.14: 62S.04(4<; e2S.05(l)-62S.07(7)(c)lZ; 625.12(1) and (2j; 63a02:630.04-630.40{3)(c); 635/>2:63Si}5-63S.ie(17)(d}; 635.17(1), (21 ci»<i (3); 64- 17; 640 06(2)(b); 640.0»-640.22" "; 64i 45.: . 645.17(t)(a)(l)-«45.17(lna)3.e; bdO: 655.02: 655.05-655.13(13): 660.02; 660.08-660.20(2); 665.4)3:665J)S(1)-665.10(21; 670.06-67ail(2)(d)3; 675D1-67S.30(6): 680.01-680.51(5); 663.02; 685J)5-68S.08(13)(b).

[FRDoc. 93-23071 FUed&-21-S3; 8:45 am] B3J3ta cooa c3ao-8»-eii

Appendix A t~ Requirements

Part 272—sute

40 CFR Part 300

[FHW-3718-7]

RIM20SO-AC33

Amandmcint tb ttie National Oil and Hazardoua Su^staneaa Poliution Contlngancy Plftn; Procsdtiras for Plarming and Impiamenting on-SIt« Rse .onsc Actiono

AQENCV: Ervrironmental Protecdon Agenr ' (EPA). ACTION: Final rule.

SUUMARY: The U.S. Environmental PiotactiQn Agency (Q>A) is today atnanrling the National Oil and Hazardous Substanca Pollution Contingency Plan ("NCP"). Today's final nile implements tha requirements ofthe Comprehensive Envininmental Response, Ckimpensation and Liability Act ("(ZERCLA") (aa amended by the Superfund Amendments and Reauthorization Act of 1986 (SARA)) and indudes caitain additional requiiements that EPA finds to be appropriate. CERCLA describes procedures that must ba observed when a nsponsa action under CERCLA invoivas off-site management of PRPPT.A hazaidous substances, pollutants or contaminanta (hBreinaftsr rafsind to a: "CERCLA wastes") TOBultiiig from CEBCLA dedsion

SARA UM., afior Octobar 17.1986). TMs nils alsu nuikas these procodum

a p p h c ^ a to off-site msnnjemant of CERCLA wastas nsuiting tem GERCL.V decision documants sigmd bofon tha enactmont of SARA. Prior to tfais r u e . EPA managed tha off-aits transfsr of CERCLA wastas according to tha May 1985 off-sita policy (published in the Fedemi Register on November S. 1985). asxaviaed November 13,1987- (OSWER Oinctiva No. 9834.11). DATES: Effectiva: Tha final rule is efbctive October 22,1993.

CERCLA section 305 piovidas for a legislative veto of ragulatiains -promulgated undar CERCLA. Although INS V. Chadha. 462 U.S. 919,103 S.Ct. 2764 (1983), cast the validity ofthe legislative veto ^nto question. EFA has transmitted a copy ofthis regulation to tha Secretary ofthe Senate and the Clerk of tha Hous(4$::r:^presentatives. If any action by Congress calls the effective date of this regulation into question, EPA will pubUah notica of clarification In the Federal Register, ADDRESSES: The official record for this rulemaking ia located In tha Superfund Docket. U.S. Enviroimijntal Protection Agency (OS-24s;, 401M Street SW., room 2427, Washington, DC 20480 (202/ 260-3048) and is available fbr public inspection from 9 a.m: to 4 p.m.. Mcmday through Friday, exaiiding holidays. Tha docket number is 1 2 1 -POS.

FOR niRTHER MFORStATION CONrACT: Ellen Epstein. RCRA Enfarcament Division. Office of Waste Pragiams Enfiucement (05-520). Environmental Protpr*^ . .-i({ency- 401M Street SW., Washing^Ljrr DC 20480. Phona (202) 280-4849, r t^d RCRA Superfund Hotline (8Uu) 4z:r-9346 (or (703) 920-9810 m the Washington, DC, metropolitan area).

SUPPLEMENTARY INFORMATION:

Table of Contenta I. Authority IL Intioduction m. Backgromid rv. Discussion of Final Rule

A. Applicability 1. C£RCLA Wastes Affected 1. Latxiratory Sampies li. LDR Residues iii. Clarification on Subsequent Tronsters

ofCERCLA W8sts» 2. Actions ASected I. Enforcement Actlvitiflt il. Actions under (XRCLA Section 120 IIL Fadamlly-paraiitted lalsatao lv. Definition of Site 3. RCRA Section 7003 Actions 4. Removals 5. Pre-SARA v. Post^AF ' Actions B. Oetsrmihing Acceptil.4it7 1. State Role • . - ^ I . •:'.-•='' 2.SPA'9Role ."• . . ; ; . .« . . - • . 3. Ditpntjs bstwaan SUtaaasdEPA

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4. No Cooperative Agreement Requirement 5. Facility Acceptability Statua C Determining AcceptaoiUty—Compiianca

Critoria 1. Inspection Requirements 2. Receiving Unit 3. Facility 4. Relevant Violations 5. Minimum Technolosv Requirements

(MTRsl 6. Facilities Operating Under a RCRA

Exemption and Non-RCRA Facilities D. Detemuiung AcceptabiUty-Releaset 1. Identifying Releases 2. De Mi.iimis Releases 3. Releases ti the Air ' 4. Other Releases E. Notification of Aa»ptability 1. Mfanagement Options for Loss of

Acceptability ; 2. Potential Unacceptability \ F. Review Pnx»dures r 1. Agency Response Time { 2. Notification ot Iminediate j

Unacceptability 3. Potentially ResponsibleJg^es CI. Due Process Issues 1. Potenu::. Loss c: Business 2. Payment of Penalties 3. Review of Determination Decision 4. Review Procedures 5. Notification of Decisions H. Re-evaluation of Unacceptability 1. Thresholds/Enforceable Agreements 2. Conective Actioo/CantioUed Releases 3. Releases and Regaining Eligibility 4. Regaining Physical Compliance at

Treatment and Storage Facilities 1. Implementation J. Manifest Requirements

V. Regulatory Analysis A. Regulatory Impact Analysis B. Regulatory Flexibility Act C. Paperwork Reduction Act

VI. Supplementary Document

I. Authority

tdctions I04(c)(3^ 1, and 121(d)(3) ofthe Comprehensive i^'r^-.'iranmental Response, Comoensatioi. ima Liabilitv Act of 1980 ("CiRCLA"), as amended" bv the Superfund Amendments and Reauthorization Act of 1986 ("SARA") (42 U.S.C. 9604(c)(3), 9605, g621(d)(3)); section 311(c)(2) ofthe Clean Water Act (33 U.S.C. 1321(c)(2)); Executive Order 12580 (52 FR 2923. Januarv 29.1987); and Executive Order 12777 (56 FR 54757, October 22.1991).

II. Introduction

Today's final rule amends the National Oil and Hazardous Substances Pollution Contingency Plan ("NCT"), 40 CFR part 300. by adding a new § 300.440. The May 1985 off-isite policy (50 FR 45933-45937 (November 5, 1985)), as revised by the Procedures for Implementing Off-site Response Actions of November 13.1987 (OSWER Directive No. 9834.11), (hereinafter known as the "Off-site Policy"), is superseded by this ruie.

The ptirpose of this off-site regulation is to avoid having CXRCLA wastes irom CERCLA-authorizad or -funded -response actions contribu' i tu present or future environmental problems by direirting these wastes to management imits determined to be envinrnmentaily sound. Congress and EPA have always believed that a CERCXA cleaimp should be more than a relocation of environmental problems, and have attempted to ensure the proper traatment and disposal ofCERCLA wastes removed from a CERCLA site. EPA believes that the process set out in

i this rule for ensuring that CERCLA wastes are transferred' dhlylb properly-pennitted fadUti'es that have no relevant

> violations or uncontrolled releases, assures that the receipt of CERCLA.. waste will not po3e advene effects on the environment..

The off-site resi ladon should help prevent the aggrevatiorj of conditions at problem sites anu iet'...ce the government's and the Superfund's potential liabiUty by establishing criteria governing the off-site transfer of CERCXA wastes from CERCLA-authorized or -funded response actions. The rule should also help to ensure that off-site transfer dedsicms ara made in an environmentally sensible manner, consistent witfa sound public poUcy and business practices.

The requirements of this rule are integraTcoinponenQlXif the "selection of remadial~action" provisicm in CERCXA saction 121, and their proper appUcation wiU help to ensura that response actions selected ara protective of human health and the environment (consistent with CERCXA section 121(b)(1) and, more generailv, with section 104(a)(1)).

Today's final rule impiemwits the requirements of sectipn 121(dj(3)'TJf UJikuAvwhich provides that in the case of any CERCXA response action

I involving the off-site transfer of any : hazardous substance, pollutant, or contaminant (CERCXA waste), that CERCXA. waste may only be placed in a facility that is in compliance with the Resoiirce Conservadon and Recovery

.AcL(RCRA) (or other applicable Federal law) and applicable State requirements. CERCXA requires that for "land disposal facilities," there may be no transfer of CERCXA wastes to a unit with releases, and any releases at other imits must be

controlled. Although CIERCLA section 121(d](3]

appUes compUar.ce criteria to all faciUties, it applies "release" criteria only to RCRA subtitle C land disposal facilities. EPA bcUeves, as a matter of poUcy, that somo release criteria should also be applied to all fadUties that

receive CERCXA wastes from OERCLA autfaorized or fimded issponaa actians. induding RCRA Osatment, starage, and permit-by-rule fadUties. and any non-RCRA subtitie C fadUties (such as subtitle D fadlitias or fadUties permitted to receive hazardous substance wastes tmder the Toxic Substances Control Act (TSCA)) i. The Agency believes that such a step will further tha protection of human health and the environment, and tha development of a sotmd and consistent public policy; it would also serve to further the goals reflected in CERCLA section 121(d)(3).

Similaily, although SARA section 121(b) provides that CERCXA section 121 (and thus section 121(d)(3)} appUes to actions arising from post-SARA decision documents only.'' EPA believes that it Is logical and appiopriate to apply this rule to CERCXA wastes resulting from two other categories of similar cleanup actions: those authorized under CERCLA before the enactment of SARA, and those performed tmder the National Contingency Plan ptirsuant to section 311 ofthe Clean Water Act (for non-petroleum products). Accordingly, this rule applies to a number of situations in addition to those expressly set out in section 121(d)(3) of CuitCLA.

Today's final rule estabUshes the criteria and procedures fbr determining whether facilities are acceptable for the off-site receipt of CERCXA waste fram CERCXA-authorized or -funded response actions and outlines the -CERCLA wastes and actions affected by the criteria. It establishes compliance criteria and release criteria, and establishes a process for determining whether faciUties are acceptable based on those criteria. The rule leaves the final decision of off-site acceptability with EPA, after providing the opportimity for, and encouraging, substantia! consultation with the State in which the off-site fadlity is located.

' A TSCA permitted facility's accsplabililv to rscaive CERCLA wastas ii alio based on compltance and releasa findings. As with • RCRA ilcUity, tlia compliance finding at a TSCA Cadlity hiogea on the absence of relevant violaUoiu at or afEscting the leceiTing unit. Tha leleasa finding for a TSCA facility ia based on tha presence or abienre of nnviranmentally significant leieaias anywhere at tha laciiity (i.e.. not just at tha receiving unit). Such raleasai must ba addressed br conectiva acnon '.mdar a State or Fedenl piogram.

' Saction 121lb)(1) of SARA praridet tbat the requiremenu ofCERCLA socuon 121 shall not apply to any remedial action for whicfa tha Record of Decision ("ROD"! was signed, or ths consent decroa lodged, before the data of aBactDMi.t of SARA. SARA Secnon 121(bX2) pnnidas that if an ROD was signed, or conseni decree lodged, within ths 30-day penod after enactment of SARA, the remedial action should comply with CBICLA saction IZl to tha a a o m u m extant pradtcabla.

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The final rule outlines the State's role in the off-site acceptability determination and ensures that States will remam active panidpants in the dedsionsmaking process. Tha rule also establishes procedures for notification of uhacceptabiUty, appeals of unacceptability determinations, and re­evaluation of unacceptability determinations.

Under the rule, the policy of applying off-site requirements fo actions taicen

' \iRCi.jT section 7003 ofthe Sol<d Waste Disposal Act. as amended by RCRA, is discontinued.

III. Background From the beginning of the C£RCL.\

program, Congress has mandated that CERCLA wastes be treated, stored, and disposed of in an environmentally sound manner. Section 104(c)(3) of CERCLA, as originally enacted in 1980. required States to ens TB the availability ofa hazardous wasta disposal facility in compiianca with RCRA subtitle C for receipt of hazjirdous waste from Fund-financed remedial actions.

In January 1983, EPA issued Guidance on the Requirements for Selecting an Off-Site Option in a Superfund Response Acition. This first guidance on tha off-site transfer of CERCLi* wastes required a facility inspection and that all major violations at the facility be corrected in order for the facility to receive CERCXA wastes from remedial or removal actions. EPA's May 1985 "Procedures for Plaiming and Implementing Off-Site Response Actions" (50 FR 45933) detailed the criteria for evaluating the acceptability of facilities to '•• , vd CZERCLA wastes.

The NCT, revi';:d in No-.?mber 1985 (40 CFR part 300), ;nco/porated requirements for on-site leceipt of CERCLA waste. The NCT, at 40 CFR 300.68(a)(3j, required that facilities have permits, or other aroropriate authorization to operate, in order to be acceptable for receiving off-site CERCLA waste.

SARA reaffirmed the rationale embodied in CERCXA section 104(c)(3) and the Mav 1985 Off-site Policv. Section 121(d)(3) of CTiRCLA. as added by SARA, explidtly provides that in the case of any (JERCLA "removal or remedial action involving the transfer of any hazardous substance or pollutant or contaminant off-site," such transfer shall only be to a facility operating in compliance with the Solid VVaste Disposal Act (as amended by RCRA and the Hazardous and Solid Wasta Amendments (HSWA)), or, where applicable, the Toxic Substances Control Act (TSCA), or other app able Federal law, and all applicable State

requirements. Tha section aiso requires that receiving units at land disposal facilities have no rei lases of hazardous wastes or hazaraous constituents and that any releases from other units at a land disposal facility be controlled by a RCRA correal ve action program.

Finally, EFA issued revised procedures for impLemenung off-site response actions on November 13, 1987. as a memorandum from ). Winston Porter, Assistant Administrator for Solid Waste and Emiigencv Response, to the EPA Regional Administrators (OSWER Directive No. 9834.11) (the "Off-site PoUcy"). These proceduns, which were effective immediately, provided guidance on complying with the SARA requir°.meats, updated thp 1985 Off-site Policy, and provided detailed praceoures for issuing and reviewing unacceptability determinations.>

The Asencv'jroposed ar- '• ^mens to the NCT on November 29.". J (5: ;"R 48218) to implement the requirements of CTRCXA section 121(d)(3), and to add certain appropriate requirements contained in the Off-site Policy. EPA received over 75 specific comments on the proposed rule and has carefully analyzed those comments and made changes as appropriate in promulgating today's rule. Today's final rule (the "Off-site Rule") implements and codifies the requirements contained in CERCLA section 121(d)(3). and incorporates many provisions of the Off-site Policy. Specific responses to the comments received ara set out below, or in the "Comment-Response Document" to this rule, which is available from the Superfund Docket.

IV. '.: '.iion of Final Rule

Ths O.. Jte Rule generally provides that a facilty uded for the off-site managemb.it of CERCLA wastes must be in physical compliance with RCRA or other applicable Federal and State laws. In addition, the following criteria must be met:

o Units receiving tJiKCXA wastes at RC31A subtitle C facilities must not be releasing any hazardous wastes, hazardous constituents or hazardous substances;

o Receiving units at subtitle C land disposal facilities must meet minimum technology requirements;

• All releases from non-receiving units at land disposal faciUties must be addressed by a corrective action program prior to using any unit at the facility; and

• Environmentally significant releases from non-receiving units at

' For additional discussion on the background of ihu rule, sea die prooosud rule at S3 FR 48219-20 (November 29.196S).

Subtitle C tieatment and storage facilities, and fram ali iinits at other-than-Subtitle C fadUties, must also be addressed by a corrective action program prior to using any imit at the taciiity for the management of CERCLA wastes.

The Rule provides procedures for EPA to notify the faciUty if EPA determines that the facility is unacceptable. It also provides an opportimity for the owner/ operator to discuss the determination '.vith the appropriate govemment official, and if still unsatisfied, to obtain a review of the determination by the Regional Administrator. ' 'The following discussion of today's rule describes the new § 300.440 raquirements and responds to public comments received n the proposal. Two major changes have been made from the oroposed rule as a rbsult of the comments rt -jivedrTtl EPA—not the States—Wl.. ..lake the final determinctions as to whether off-site facilities are "acceptable" under this rule to receive CERCXA wastes, with States being active participants during the decision-maidng process, and (2) the distinction between criteria for CERCLA wastes resulting from pre- and post-SARA decision documents has been removed. These changes, as well as other comments received on the proposed rule, are discnissed below.

A. Applicability

1. CERCLA Wastes Affected

J. Laboratory samples. The proposed rule provided that the transfer of CERCLA site sf-in'os to an off-sita laboratory tc. -.racterization would not be subject to the rule based on the small size of lab sar.ples, the need for prompt and frequent laboratory analysis, and the high level of confidence that lab samples—due to their value to die sending fadlity—will be properiy handled (53 FR 48220). Several commenters contended that the exemption should be enlarged, such that off-site requirements would also not apply to sample shipments from labs to ultimate disposal or treatment facilities. The commenters argued that requiring labs to segregate the small volumes of CERCLA wastes sent to labs for analysis for separate handling under the Off-site Rule would be burdensome, and unnecessary to protect public health. A number of commenters also questioned the wisdom cf preventing labs from sencUng tested samples back to the site, as is common practice. EPA has evaluated these comments, and agrees that it is not necessary to require transfer of lab sample CERCLA Wcstes from labj to meet the full requirements

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Federal Register f Vol. 58, No. 182 / 'Vednesday, September 22, 1993 / Rules and Kegniatioiu49203

of this ruie for reasons distmssed above and in the preamble to the proposed rule. However, today's rule is predicated on the prmciple that CERCLA actions

i should not contribute to existing environmental problems, and that matenals generated from CERCLA

I actions should be transferred oniy to , environmentally sound fadUties. Thus,

EPA does not beUeve it is appropriate for labs to routinely send CiRCL.\ waste samoles Dack to CERCLA sites. .\ccordinaiy, EPA has identified two opuons for the proper disposal of lab-tested sampies of CXRCXA wastes. The .^genc:y believes that these opuons, included in the final rule, respond to commenters' concerns that unnecessary obstacles not be placed in the way of lab testing, whila ensurint, :hat CERCX.\ wastes are handled in an envii .nmentally-soundmatmer.

First, labs ma'.- send'the tested sampies and i...Lt residuss to an appropnate fadUty (i.e., they may treat '.t as material not subiect to this ruie and transfer it to any fadUty that may legally accept such wastes); the Agency expects that the vast majority of the materials sent to labs from CERCXA sites will be handled under this first option. Second, tho lab may return the CXRCLA waste sample to the site from which tha sample came if the Remedial Praject Manager (RPM) or On-Scene CoorcUnator (OSC) agrees to assume responsibiUty for the proper management of the sample and gives pennission for the sampla to be retumed to the site.

Ore commenter requested that a similar exemp''.o.-. ••": ipplied to CERCL^\ wastes ient off-site for treatability studies. Tlie commenter reasoned ihat informai.ion on treatability is valuable, resulting in a high confidence level that these CERCI_\ wastes wiil be properly handled and managed, and that treatability studies promote treatment rather than disposal of CXRCLA wastes: treatment is a preferred waste management ootion under CERCLA. Finally, the RCR.\ program has exempted treatability study wastes from most hazardous waste manaeement requirements.

EPA agrees with the commenter that an exemption from this ruie for treatability CTIRCLA wastes is appropnate. and that it is consistent with the approach taken in the final rule for Identification and Listing Hazardous Waste TreatabiUtv Studies Sample Exemption (53 FR 27290. July 19,1988). Thus, those hazardous wastes at a CERCLA site that are being sent off-site for tieatability studies and that mee the requirements for an exemption from RCRA uniiar 40 CTR 261.4(e), are also

exempt from today's rule. CERCX\ wastes, residues and other matenals that are not RCRA hazardous wastes resulting from treatability studies are subject fo the same disposal options as materiais from lab characterization samples. Again, EPA believes that this approach will help to facilitate prompt site cleanups while ensunng that CERCLA wastes are managed in an environmentally-soimd manner. Non-RC31A hazardous wastes that are bei ig sent off-site for treatability studies and that are below the quantity thresholds estabUshed in the Treatability Studies Sample Exemption Rule are similarly exempt from the requirements of the Off-site Rule.

/'/. Ii7A residues. One commenter objected to applying the requirements of the rule to transfen from a CERCLA site of CTRC A waste residues meeting treati.'ie .t standards estabUshed by the land oi.iDosai restnctions (LDRs), believing that these residues nc ioneer posed a hazard. EPA maintains that RCRA hazaidous wastes or waste residues meeting LDR treatment standards are still considered hazardous under RCRA. unless they no longer exhibit a characteristic of hazardous waste, 31 if appropriate, ara delisted. Moreover, even if a CERCLA waste mee'ing LDR treatment standards is found not to be a RCRA hazardous waste, it may still be CERCLA wasta. Under today's rule, CERCLA waste that is not a RCRA hazardous waste may be sent to ether than a RCRA subtitle C fadlity for disposal (if that faciUty meets the requirements of the ruie), e.g., a RCRA subtitie D landfill. EPA believes that the rule as it stands should not prove curdensoma and that it should be reiauv'eiy easy to find capacity for such CERCL,\ wastes, Therefore, the final rule does not exempt CERCX\ waste residues meeting LDR treatment standards when thay are transferred from the CERCLA si'te.

ijf. Clarification on Subsequent Transfers of CERCL\ Wastes. The prior comment raises die related issue of how tha Off-site Rule appUes to subsequent transfers of CERCLA waste. When a CTRCXA waste is to be transferred off-site as part of a CTRCXA funded or authorized cleanup, the contiact implementing the dedsion document should identify the final disposition point for the (JERCXA waste (i.e. the final treatment or disposal facility), and any intermediate fadUties that will store or pre-lreat the wastes (e.g., waste brokers, blenders). All such fadUties woula be rec^ired to be acceptable under the final rule.

CDnce the CZRCLA waste is finally disposed cf off-site, or treated off-site t j

BDAT levels or in die absence of BDAT. treated to substantially reduce its mobiUty, toxidty, or persistence, it is no longer considered a CIERCXA waste and subsequent transfers oi the waste would .lot be regulated under this rule. However, if residues derived from the treatment of the CERCXA wasta are RCRA hazardous wastes, they must be managed e*; such under RCRA.

2. Actions Affected

/. Enforcement Activities. EPA would like to clarify and respond to several commenters' questions concerning which enforcement activities ara affected by today's rule. The Off-site Rule applies only to those actions being taken unoiir a CERCXA authority or using CERoLA funds. These include actions taken under section 104, CERO \.consent agreements, decrees (inciuamg spedal covenants under se- - " 122(f)(2)(A)), Records of ..c . . jns iRODs), secuon 106 orders, and actions taken under pre­authorization CERCXA dedsion documents. State response actions conduaed under a CERCXA cooperative agreement, are also subject to the off-site raquirements.

Actions which would not trigger the off-site requirements include notification of a spill of a reportable quantity under CERCXA section 103, cleaning up a site using only State authority and State funds (whether or not the site is Usted on the Superfund National Priorities List (NPL)), and condwcting a voluntary cleanup invc mg govemment oversight (e.g., by th- : . Coast Guard), unless und. CTRCIA or a CERCLA order or decn

In ora commenter's example, if a PRP' has taken a voluntary response action (not under a CERCLA order and without CERCXA funds), that action is not subject '.o the Off-site Rule; thus, in a cost recoverv action under CERCXA section 107('a)(4)(B), the PRP may demonstrate action "consistent with the NCT" without having to show compliance with the Off-site Rule requirements.

il. Actions under CERCLA section 120. The proposed rule states that the requirements of this rule do apply to ail Federal facility actions tmder CfERCL.\. including those taken by EPA andyor another Federal agencv under CERCL.\ sections 104.106. and'l20 (53 FR 43220). One commenter objeaed to applying this rule to Federal fadUties. arguing that this was not equitable because the ruie covers private party actions at NPL sites t -"iy. The commenter asked th... tiie rule only be .ipplied to EPA-funded or Federal-

49204Fede ra i Register / VoL ^B. No. 182 / Wednesday, Septeniber 22. 1993 / Rules and Regtiiatioiis

agencv-lead CXRCXA actions taken p.t NPL sites.

In response, EPA does take CERCLA actions at private fadUties ^ t ara not on the NPL (e.g., enforcement aaions and ramovals) and these actions ara subject to the Off-site Rule when they are conducted tmder CTRCXA authority or using CERCXA monev. Consistent with CTRCLA 120(a), EPA does not beUeve it is appropriate tr ^raat CERCLA actions at non-NPL Federal faciUties differanilv. Thus, if a Federal agency plans to transfer CERCXA wastes off-site from a Federal faciUty imder a CERCXA authority or with CERCXA funds (as comparad to being transferrad under another statutory authority), the Federal agency may transfer CERCXA wastes only to facilities found to be acceptable under this rule. Federal faciUties may transfer CERCLA wastes off the CERCXA site to treatnent, storooe pr disposal units on the same Federal property, but only if the other r- '*s (and' the larger Federal facility' o. .jtallation) meet the requirements of this rule.

iii. Federally-permitted releases. In the proposed rule, the Agency stated that Federally-permitted releases should not be routinely included within the concept of "release" for the purposes of section 121(d)(3). For "Federally-permitted raleases,".as defined in NCT, § 300.5 (1990 ed.) and CERCLA section 101(10), the govemment has specifically identified the types and levels of hazardous substances that may safely and appropriately beraleased (e.g., a NPDES water discharge permit), and it would not make sense to find a facility unacceptable based the existence of such an authorized ...^ planned release. Of course, unauthonzed releases that are being studied, cleaned up, or contiolled under a cc: active action portion of a pennit, would not be considered to be "Federally permitted" for the purposes of this rule.

The Agency further stated in the proposed rule that although FederaUy permitted releases would not routinely be considered to be a "release" for the purpose of acceptability under this rule, if tho permitted release comes to constitute a threat to human health and the environment, the release can and should be considered under this rule (53 FR 48224).

One commenter argued that EPA should not limit the exemption for Federally-permitted releases. If a permit is not sufficiently protective it should be altered, rather than determining that the facility is unacceptable under the Off-site Rule. If the Agency were to decide not to fully exer"pt Federally-permitted releases from this rule, the commente asked EPA to narrow the limitation from

"threat"' to "significant threat." and to clarify dmun.stances tmder which a. release is considered a threat.

EPA agrees that permits that aie not suffidently protective should be upgraded. However, upgrading of permits may not addrass past containination and the upgrading may take time to accomplish. Thus, tmtil such permits are upgraded, or until the thraat to human health and the environment is otherwise addrassed [e.g., through a corrective action order), EPA wiU not send CXRCLA wastes to such faciUties and theraby contribute to an unsound environmental situation. Similarly, EPA beUeves it is appropriate to cease sending CERCLA wastes to fadUties with Federally-permitted releases if a thraat to human healtfa or the environment is posed by the ralease. This approach is consistent with Agency poUc / and the goals of CERCLA section 121(d)(3). It als^ mainta... J consistenc/ with practices under the NCT in its handling of Federally-permitted releases. For example, the Agency lists certain sites on the NPL whera an "observed ralease" has been documented, even if tfaat release was Fedaially permitted and was witfain regulatory limits (47 FR 31188, July 16, 1982; 48 FR 40665, September 8,1983).

iv. Definition of site. One commenter requested a definition ofthe term "site" (in order to imderstand what is "off-site"), and asked that tfae definition indude property in tfae immecUata vicinity of tfae cleanup.

In the recent revisions to the NCT, 55 FR 8840 (Marcfa 8,1990), EPA defined "cn-site" to include all s'litable areei in very close ^-oximity to tfae contaminatio" necessary for implementat.jn ofthe response action, 40 CFR 300.400(e)(1) (1990); tills additional space would be available for treatment systems that require considerable area for construction, and for staging areas. Areas not covered by this definition come, by extension, within the definition of "off-site."

EPA believes it is essential for the sound operation of the CERCLA program to define "on-site" and "off-site" in a concerted manner. Were EPA not to apply the general definition of -"on-site" to this rule, an anoinalous situation would result in which CERCLA wastes tiansferred to the "on-site," proximate area used for implementation, would constitute an off-site tiansfer. Moreover, such transfers might be disallowed in many cases where the non-receiving unit (the "waste portion" ofthe site) had raleases that wera not yet controlled for purposes of the Off-site Ruie.

3. RCRA Section 7003 Actions.

EPA received ttiraa conunents on the proposal not to extend tfais rule to cover cleanup actions carried out underRCRA section 7003 (53 FR 48221). All thrae commenten agreed witfa EPA that the rule should not apply to off-8it» disposal assodated with RCIRA section 7003 actions. Therafbra, the Agency will not requira RCRA section 7003 actions to comply with the off-site requiraments as part of this CERCXA rulemaking.

4. Removals

Three commentera supported the proposed rule's exemption from the regulation for emergency removal actions in situations posing a significant thraat (53 FR 48220). One ofthese commenters asked EPA lo extend the exemption to remedial actions taken in situations of immediate and significant threat. Two comnienters asked that the language be moaified to confirm that private parties, as well as govemment entities, are eligible for the exemption.

EPA believes that an exemption for emergency removals is appropriate, and should also apply to emergendes occurring during remedial actions (e.g., occurrence or substantial threat of oonurence of fire or explosion); the final rule reflects that change. However, tfae Agency does not believe it is appropriate to allow private parties to usa tfae emeigencry exemption witfaout obtaining approval from a CERCLA On­Scene Coordinator (OSC). This prioi approval requirement will avoid the possibility of a responsible party abusing the emergency exemption in order to use unacceptable off-site facilities whir' ' may be less environmentally sound. Note that the Off-site Rule only applies to private parties engaged in response actions that are fimded or ordered under CERCXA.

Another commenter stated that it was not clear what criteria the OSC should use to determine that a faciUty in noncompliance with the rule can ba used for off-site disposal.

EPA believes that the OSC should weigh, to the extent practicable: exigencies of the situation; the availability of altemative receiving facilities; and the reasons for the primary facility's unacceptabiUty, their relation to public health threats, and the likelihood of a return to compliance. In some situations (e.g., fire, explosion), it may be necessary to remove materials off-site before an off-site fadlity's acceptability may even be reviewed.

5. Pre-SARA V. Post-S.ARA Actions In the proposed rule, EPA explained

the evolution of a svstem under which

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different off-site requirements were appUed to CERCXA wastes, depending upon whether the CERCXA decision document was signed pre- or post-SARA (S3 FR 48220). One commenter argued for eUminating the confusing distinctions between pre- and oost-SARA CTRCXA wastes. Altiioiigh die statute appUes only to post-SARA dedsion documents, the commenter saw no reason why these requirements could not be extended to CE31CXA wastes from pre-SARA dedsion documents, particularly given the ambiguity ofthe May 1985 off-site poUcy. Several other commentera supported simpUfying the Rule generally.

EIPA agrees that eliminating the different criteria for CERCXA wastes from pre- and post-SARA dedsion docuir snts would simplify the understanding and implementation of the rule. The Agencys axpenence with thp revised Off-site F'olicy (since 1987) has been that the dual system is confusing, and potentially subiect to inconsistent interpretation. The onginal reason for having different requirements for CTRCLA wastes from pre- vs. post-SARA dedsion documents was to avoid dismpting contracts and actions already in place at tha time SARA (and section 121(d)(3)) were enaded. However, in response to the commenter's suggestion, EPA has surveyed the existing pre-SARA ROD coiitracts and the acceptability status of fadUties currently receiving CERCXA wastes from pre-SARA actions. The information 'Jiered indicates that few ifany CTRCL i waste tiansfers resulting from pre-SARA decision documents would be disrupted b v application of the n"wer criteria.* Indeed, most facilities receiving CERCLA waste already meet both the pre- and post-SARA criteria, in order to be acceptable to receive all CERCLA waste. The elimination of separate standards for CTRCLA wastes from pre-SARA dedsion documents would be neither burdensome nor disruptive. Therefore, in the final rule. CERCL\ wastes from

, pre-SARA actions and CERCLA wastes from post-SARA actions are treated the same.

B. Determining Acceptability

In its November 29. 1988, Federal Register notice. EFA proposed, and requested comment on. allowing States that were authorized to carry out tho corrective action portions of RCRA, to make off-site acceptability determinations for RCRA subtitle C

fadUties within their respective •urisdictio' r .e Agency noted that the "States often have the most direa responsibiUty over the potential receiving fadUties * * *, and thus may ba in the best position to make the findings reouired under the Off-site Rule.'"(53 FR 48221) However, at tha same time, EPA noted that retaining the off-site dedsion in the EPA Regional Offices would offer the advantages of "more easily assunng consistent application of the rule, and avoiding conflicts between the Region and the State regarding the acceptability of a fadUty." (53 FR 48222) Thus, tlie Agency specifically requested comment on whether quaUfying States should make off-site acceptabiUty determinations, or whether EPA Regions should exercise that dedsion-making authority.

EPA r-"eivei.. eight specific comments on the State decision-making issue. Six of the commants objected to allowing States to make the off-site determinations, based on the need for national consistency and concems that some States might i""- "'"9 off-site authority to prohibit the receipt of out-of-state CERCLA wastes. Two of these six commenters added that States should be allowed to make acceptabiUty determinations only if they agree to follow the notice and re-qualification procedures that apply to EPA. A seventh commenter (a State) critidzed the proposed approacdi on the grounds that it would effectively deny any input on the acceptability determination from m' ':* States, since most States are not au. -rized to carry out corrective aaion unrar RCRA; the commenter recom.-nended that States be given a. least 30 days to comment on a proposed decision before the faciUty is notified of the final acceptability status. A second commenting State suggested that the agency inspecting the facility for RCRA compliance should make the off-site acceptability determination: however, it added that "it appears obvious that it should be a joint determination."

The Agency also received four comments on a related point—the difficulty of receiving ready access to a Ust of acceptable facihties.' In effea. these comments indicate that it has been difficult for the public to quitJcly and accurately determine what facilities are

' A Memorandum summarizing the information collected is included in the docket of this rule.

I Several commenters suggested that tha present system of having tan £P ^ regional conucu should bw replaced by a more easily implemented iyiiem under which one consolidated Ust would be mads available to the public. However, the Agency recognizes thai it would be Impossible to publish a list of accepuble i-icilities nationwide (or even rogionolly), aa lhe off.iile sutus of fadlUles is constantly chongmg, and any tach list would be outdated before it waa distributed. - '

acceptable under even the present Off-site Policy, under which one need check with oniy ten regional off-site contacts. EPA has reviewed this comment in light of the issue of whether States should make final off-site determinations, and has concluded that the problem identified by the commentera would grow dramatically if the pubUc wero requirad to verify off-site acceptabiUty with up to fifty State contacts. Further, allowing the State to make off-site acceptability determinations as proposed would not eUminate the need for the EPA Regional contacts; a State could not make determinations for other Federal programs, such as the Toxic Substances Control Act (TSCA). Thus, the public would be requirad to check with State t^ontaas and EPA Regional contacts in order to determine which fadUties ar^_" -ceptable to receive • certain types of CERCXA wastes. The prospea ' • squiring interested parties to check u-_eptability status with all fifty .states (for portions of RCRA) and ail ten EPA Regions (for other portions of RCRA. and TSCA, etc.) would place an unreasonable burden on the people who need to locate acceptable capadty.

Based on a careful review of all the comments received on the proposed rule, as well as a review of the Agency's experience to date in implementing the Off-site Policy, EPA still believes that it is essential for the off-site acceptability process to take into account tfae important role of the States in making compliance findings (and, in some States, release findings) under RCRA; however, the omments received and EPA's experience also demonstrate a strong need for national consistency, and for facilitating timely pubUc access to acceptable i.-pacity. Thus, while the basic approach and struaure of the ruie remains u'^-'Uered. the Agency is

I making several important changes in the language of the rule, in order to help malce States aaive partidpants in off-site determinations, while at the same time preserving final off-site

, determination authority within EP.\.

1. State Role The off-site acceptability

determination for a fadUty is based, in large part, on a compliance finding and a release finding. Authorized States may .-nake the initial compliance findings for those parts of the program for whicli thev are authorized. If a State finds a violation at a unit of a faciUty, EPA wiil evaluate the finding for "relevance " under the rule (e.g., whether the violation occurred at the receiving unit and thus is "relevant" under tbo rule; "relevant" is discussed in mora detail in section IV.C.4 of this preamble). If the

49206Federa i Register / Vol. SB. No. 182 / Wednesday, Sapiember 22. 1993 / Ru'.- • a^ui Rsguiations

.Agency condudes that the violations ara relevant, it will issue an initiai determmation of unaccentabiUtv. meamng that ths fadUty wiU be unacceptaole to receive CERCXA wastes . in 60 davs iless EPA fi'' -is that the facility is operating in physical compuancs with appiicabie law at that

I t ime. If a State is authorized to c:aiTy out the

correcuve action authorities of RCRA sections 3004 (u) and (v), it may also make initial findings regaitling releases at the ladUty. Again. EPA wiil evaluate such findings and. if it finds the releases ara relevant imder the rule, will issue an initial determination that tha fadUty wiU be unaccaptaiile in 60 days imless EPA finds that thera ara no uncontrolled releases at the fadUty at that time.

In order to further incraasa the States' role througnout the i;jp;-7Bss. the Agency wiU also take the fcllowing steps:

a Encourage the -» extmanee of information betwet^ otates ana EFA Regional offices concermng violations and releases at fadUties:

• Afford States the opportunity to partidpate in all meetings with EPA and the bdUty owner/operator regarding the fadUty's acceptability;

• Provide States with copies of all initial and final unacceptabiUty deteiminations as soon as they are Issued:

e Provide States with the opportunity to call foi additional meetings with Regional officials to discuss the off-site acceptability of a fadUty. and whether a fadUty has returned, or can return, to compliance within the 60-day review period: and

• Provide in the rule that if the State disagrees with the EPA Region's jetermmation (after the informal conference), it may obtain review of that decision by the Re^'onai Administrator.

2. EP.K's Role

Where a State does not have authority to carry out portions of the RCRA program. EPA will make the initial compliance and/or release findings. In cddition, EP.\ will make the compliance and release finding with respect to appiicabie regulations under other Federal Statutes (e.g., TSCA). EPA may also make findings at fnciUties where the State has programmatic authonty, as a supplement to State oversight. (Howevsr, in such cases, the Agency expeas most findings to be made bv the States.) Further, as noted above. EP.\ -.Vlll evaluate all initial findings of violations or releases to determine

' whetiier ;. y .re "relevant" und^ todav's ruie.

.Mthoueh States will make many of the initial RCRA findings for off-site

unacceptabiUty determinations. £PA wiU retain the ultimate dedsion-making authority for aii off-site determmauons. including those at RCRA faciUties. EPA Regionai. Offices, having coUected information on the compuancs and releasa status of a RCRA fadUty, ana having consuitad with the State in which the frudlity is located, wid be responsi'ole for determming whether a fadUty is operating in compUance with applicable law'<md thus has no re. jr.: violationsi at the end of the 60-aay period, and whether thera ara any uncontroUed ralevant raleases a', the end of the 60-day period; if EPA finas tiiat tha ralevant violations or raleases alleged in the initial notice are supported by the facts and are continuing, the imactsptabiUty determination wiU take effect, as provided beic '^'-e ""ricn3 vill also bo responsib' - B* .K i. i-to- • '.ta recorcis of tho;>d KCRA tauiities tnat ara acceptable and those that are noL As discussed above, these steps will help to ensure national consistency in off-site dadsions. and wiU fadiitate timely public access to off-site accoptability information.

The Agency beUeves it is appropriate for EFA to retain the final auiihority for making off-site acceptability determmations. Because CERCLA cleanups ara generaUy ordered or funded by EPA. the off-site determination is. in effect. EPA's business dedsion as to where CTRCLA wastes under the Agency's control shoidd be sent

It is also important that EPA issue the final, consolidated acceptabiUty determinations in order to retain control over, and help hilfill, the Agency s programmatic responsibilities. In order to pian CTRCL.\ cleanup actions on reliable schedules, and proceed with them quickly, EPA neeas to resolve off-site issues relatively quickly, and make alternative contraas and plans as appropriate. As the proposed rule explained, this was a ma^or reason for t.he estabUshment of a 60-day penod in which to discuss acceptability wiih tho relevant parties. EPA is aiso sensitive to the need to afford owner/operators a reasonable opportunity to contest the • violation/release nnding, or to return to compliance, within this 60-day revjew period.

3. Disputes Between States and EP.\ EP.\ intends t j issue initial

unacceptabiUty determinations in cases where States have made initial findings of violation •. or releases that EPA finds are relevant under the final rule: thus. States may piay a maior role in initiating the off-site review process. EPA

Regionai officials, odidals finm the Slate m wm^^ the on-site-fecility is located, and representatives of the iadUtv owuer/operator wiii then have the opportunity to meet during the 60-day review penod to Hiipoisr (i) The 'casis for tha finding of a violation or .-eiease. (2) the relevance ofthe violatioiu'ieieasa under the Off-sita Rule, and (3) what steps ara necussarv .'or the fadUcV m return to compiianca or contiol relaases witiiin Lha 6b-day review period (or whether suffident steps have already been taken). After the informal conference with the owner/ operator, at wfaich the State may be present. EPA wiU notify tha State of its program level determination; the Agency wiU decide whether the initial finding, of a relevant violation or release was supported by the facts, and whether '.he v "i^-pn or release is continmne (or has b»'ia controlled). If thb State lor tne ownr operator! disagrees with the dens, .n by the EPA Regiouai staff. It may ootain a review of the dedsion oy '.he EPA Regionai Administrator.

EPA expects that in most cases, there wiU be no dispute between it and the State over these issues. However, the Agency recugmzes that tfaen may be instances whe 'c cUsagreements couid arise with the State, or whera the Agency must act independently. FoUowing are three tnajoc examples of situations whera a disagraement might otxur between State and EPA officials.

First, there may be instances where Lhe State is unable or unwilling to meet with EPA and the affected faciUty within .a 60-day period (e.g., where the case 's in 'iticj i c and the State chooses not to meet separately with ons potentiaJl'- -esponsible party). Similany, ZPA mui: act in cenain situations wiihout mil participation from ine State, such as during emergency cleanup actions. In such cases, in order •,o fulfill its mandates to accomplish planned CERCL.\ cleanups and to administer the Off-site Rule, the EP.*. Region may need to meet with the Dwner/operator independently to r-jsolve lhe compliance or release problems expeduiousiy.

Second, a State may disagree with certain ilndinas committed to the tiiscretion of the Aaency under the Off-^ite Rule, such as the finding that a violation or release is (or is nott "relevant" under the ruie, or that a faciUty has tor has not) takan adequaid steps to resolve a violatioa or control a release. Such findings are integral pans ofthe off-site determination, and rausi ::"• consistentiy appued to facilities regulated under RCRA. TSCA. or other applicable laws. The Agency believes that in the interest of national

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consistencv. it is appropriate for EP.\ to retain the final decision-making authonty in these areas. However, as with all Off-site Rule issues, the S'.ates will be invited to discuss these issuej with EP.\. and will be afforded an opportunity to obtain review of such decisions with the Regionai .administrator.

Third, there may be isolated cases where EP.\ and the State disagree on the ...itial finding of violation or release. (This could generally be expeaed to arise during the review period, as EPA plans to initiate the off-site review process where the State makes a finding that EPA determines is relevant under the rule.) In such cases, EPA vnll consult with the State, and the State may request additional meetings with the Agenc'. HowevDr. in order to fulfill its obUgauons C^^'T the statute. EP.\ must have the dbiiity to mfike an independent assessment ofthe faciuty's status at the end of the 60-day penod to determine if the faciUty is currently operaung in compUance and/or has anv uncontroUed relevant releases, for the Umited purpose ofthe Off-site Rule. These judgments dc not prevent the State from purauing an enforcement action for past violations, or even arguing that violations are continuing.

It is important to note that the question of whether or not a unit is operating in compUance, or has retumed to physical compUance, is an issue separate and distinct from the question of whether an enforcement action for past vi '.ations is appropriate. The statute cleariy focses tlie acceptability determination on present compliance: CERCLA wastes "shaU oniy be tiansferred to a fadUty operating in physical compUance with" RCRA or other applicable law (CXRCL.\ section 121(d)(3']). Thus, where a fadUty has retumed to compliance and, where appropriate, changed its operations ta prevent recurrence, the fadUty "is operating" in compliance and should not be unacceptable under the Off-site Rule simply because a complaint for past violations is still pending."

4. No Cooperative Agreement Requirement

Under the proposed rule. EP.\ had suggested allowing States that were autiiorized to carrv out RCRA corrective

acuon to mak=! •'--• off-site determmations .av were found to be capable, tmder & ^ERCXA Ckire Cooperative agreement, of carrying oul certain funcuons. Because the Agency has decided to retain the authonty to make the final detennination, and use Stat'e findings as a basis for the mitial determinations, there is no longer a need for States to enter into sucn agreements for the purpose of the Off-site Rule.

5. FadUty AcceptabiUty Status

Section 300.440(a)(4) of the proposed mle (53 FR 48232) stated that '"'(a) faciUty is acceptable until the responsible Agency notifies the fadUty otherwise"; Lha scope of this section needs to be clarified. For faciUties that have already sen notified that they are acceptable u ler the rui (or the preceding ; • ic\'), the fadUty would remam acceptable unul EPA detenmnes otherwise according to the provisions of final rule § 300.440(d). This allows both receiving fadUties and CERCX\ site managers adequate time tc -«!spond to new circumstances. By contrast, the language quoted above was not meant to apply to fadUties for which EPA has never made a determination of acceptabiUty under this rule (or the preceding poUcy), and at which CERCXA wastes are not likely to be in transit: for such faciUties, EPA beUeves that affirmative determinations of "compUance " and "control of releases" are necessary before a fadUty may be deemp-^ acceptable for the receipt c* CERCX wastes, consistent with th' language of CERCX\ § 121(d)(3).'' Final rale § 300.440(a)(4) h.is been revised to clarify this pomt.

C. Determining Acceptability-Compliance Criteria

1. Inspection Requirements

Section 300.440(c)(1) ofthe proposed mle provided that a fadUty "raust have received an appropriate fadUty compUance inspection within six months prior to receiving CXRCLA waste" (53 FR 48232). Three commenters expressed concem that a receiving facility, which would otherw-ise be in compUance, could be penalized because ofthe failure ofthe

• . - •

'Qf course, in some cases, ths violation cannot be imdone and may be argued to t)e a "continuing violation." EP.^ has already addressed this case ov providing a mechanism for retummg to compliance by resolving lhe vioiauon. including penalties and any oiforcgment actions brought by EPA. See proposed rule at S3 FR 48229. November 29. 1988: tee o/so discussion below, at secdon IV.C4, and IV.R4.

' .Mlhousn EF.\ will meet with the owner/ operators ot sucn Carlities durug the 60-day p«nod after a relevant release or violation is found, the .Agency does not Delleve that it would be appropriate to accord a 60-day penod of acceptability to mch facilities, where the avaiiabia informauon inxcatas non-compliance or uncontrolled releasus. and no aisrupuoo to on­gomg CERCLA cleanups would be occasionea by lha finding. Final rule secuon 300.440(dl(3) has been revised '.o clonfy this poinL

regulatory agency to condua inspecuons at the required trequencv. One of these commentera objected to being penaUzed for EPA or State tardiness, and believed that the mie sugge..ted that EPA :ould not condua an inspection during the BO-day penod following a Notice of UnacceptabiUtv.

EPA continues to beUeve that penodic inspecuons to update information on fddUties receiving CERCXA wastes are important to the effective implementation of this mle, and the Agency will address the recommended frequency of inspections in guidance. The Agency notes that inspections are already carried out under a number of regulatory programs; sucdi as RCRA. EPA agrees thet *he absence of an inspection six moudiS prior to the receiot o^CERCXA waste (orthe absence of a CiME c. 0«tf3»nspection for RCRA iand disoosal fadUties within one year prior to tne receipt of CERCXA wastes i should not in itself be grounds for unacceptability, unless the fadlity refused to allow an inspection to be performed. The requirement for updating inspection within a defined time frame has thus been eUminati i from final mle § 300.440(c). (Of course. as discussed above, final rule § 300.440(a)(4] maintains the requirement for an affirmative determination of acceptabiUty when a fadUty first seeks to receive CERCX\ wastes imder this mle, and this may involve a co^ _;'ip.rcp "Jid release inspection.) In response to the last comment, EPA would like to clarify that the language in the proposal was no: meant to suggest that EPA could not. if appropnate. condua an inspection during the 60-day review penod.

2. Receiving Unit

Several commenters supported the definition of "receiving unit" as that unit which direaly received the waste in question (53 FR'48222). This definition reraains the same in the final mle.

3. Facility

Three commenters supported the proposed definition of "fadUty" (53 FR 48222): however, one commenter questioned the concept of fadUty-wide violations that couid render the enure fadUty unacceptaole, rather than iust the violating unit. The commenter asked for a clear and predsc example of both unit-specific and fadUty-wide violations.

Exar-pies of fadlity-wide violations induda the failure to have or comply with the faciUty's waste pre-acceptance procoduies, waste analysis plan. contineency..plan, finandal

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responsibiUty requirements, and tfae closure pian. Criminal violations also create a lack of uonfidence in a fadUty's abiUty to handle waste at any unit, and thus may aiso be considered "fadUty-wide." Unit-spedfic violations include failure to comply with the design and operating requiraments.

4. Relevant Violations Numerous commouters asked for

clarification conceming the definition of relevant violations, as set out in the proposed rule (53 FR 48223-48232), and more precise guidance regarding what constitutes a relevant violation. Many commenters also had suggestions on what the definition of r ' ' oyant violation should indude.

One commenter suggested that relevant k^ulation!. oe Irtfilted to violations that p ose a threat tb the physical integrity of the disposal unit; EPA finds this suggestion unact:eptable. The environmentai laws and reguiaticms contain many requiraments, aU of whicfa have been detennined to be important to assuring the protection of tLi environmenL For example, finandal assurance requirements and ground-' watei monitoring are critical to a fadlity's safe operation, although neither involves a present thraat to the pfaysical integrity of tfae disposal unit. Hia legislative fiistory specifically re£ara to excliiding onljTinindr. paperwork, violations wfaen delm-minin^ wfaetfaer a fadUty is in compliance. H. Rept. 962, r qtfa Cong.. 2nd sess. at 248 (1986). The .Latute specifies that the fadUty must be operating in compliance with RCRA (or, whera appU'-.ble, with TSCA or other appUcable law) and all applicable State raquiraments. Therafora, it would not be reasonable for EPA to offer broad generic exduslons, like those proposad by commenters, for "isolated instances of noncompliance," violations which do not threaten human health and tha environment, oi violations that ara not of an "ongoing natura." These suggestions ara not consistent with the mandate of the statute. Further, these types of ralativaly minor violations may often be resolved witiiin the 60-day review period, bafora a determination of unacceptabiUty would take effect at the violating &dUty. The definition oL ralevant violation from the proposed rule is ratained without change (Section

> 300.440(bKl](U).) Ia general, EPA ! beUeves that relevant violations wiU

generally be Class.I violations by high priority violators (HPVs). Guidaiica for detennining what is a Class I violation orHPV c~i ba found in tfae Revised RCXA Enfocoemant RespcDse Policy (OSWER DL-wtiva No. 9900.0-lA). &iminai' vioioti ' t« (aftar tha issuaaca of

an indictment) ara aiso generally relevant violations.*

One commenter asked the Agency to delete ths word " indude" from the firat sentence of the discussion of ralevant violation in 8 300.440(b)(l)(u). as it iraplies that mattera not listed in the section may also be induded as relevant violations. The Agency has decided to retain the word "include" in the final n::3, as deleting the word could uimecessarily limit the Agency's discretion in making determinations regarding what constitutes a ralev^jit \dolation imder the nde. Althougfa EPA has attempted to describe the type of violation that would be deemed relevant i'. cannot forasee aU possible circumstances. EPA will evaluate findings jf ^ iolation and determine if they ara r° »vant .T cr • rula on a case-by-ctus basis: ianiei> will have an opportunity to discuss that dedsion with EPA during the 60-day period for the review of the unacceptafaiUty detennination.

Another commenter maintained tfaat the proiiibition on relevant violations should apply to the entire fadUty, ratfaer than just the ucit(s) reoeiving tfae waste.

SPA has dedded to continue to limit the appUcation of relevant violation criteria to the receiving unit except in cases where tfae violation affects tfae entira facility. As explained in the -proposed rule, EPA beUeves that tfais inteipretation is consistent vrith Congressional intent that response

.tions be designed to ensura that no .lew on"'Tnr>'nontnl problems are created' tnis goal is accomplished by seeding CERCLA wastes only to units that ara in compUance with applicable Federal and State requirements (and at which raleases ara contiolled). See 53 FR 48223-48224. In addition, this interpretation furthera tfae Congressionally-mandated preference for treatment by aUowing the use of indneratora and altemative treatment technologies even if there is some violation elsewhere on the property. See 53 FR 48222-23. At the same time, the release criteria do apply to non-receiving units, and ensure that CERCXA wastes wiU not be sent to faciUties where significant, uncontrolled releases are occuning at any unit.

Another commenter objeded to requiring fadUties to meet any requirements, other than compUance with a RCRA pennit In response, the rule does not impose any diract requirements on RCRA fadUties: it

• S w lha pcapoa«l imta. 83 FR 4 a u 4 : Ofi-alta PoUcjr.atpi >«:aadUaaann<li iafra«aBraceM. DlaraaBd. •Vlf-iltMftMBr I (Auguat £<>.- IMSL . -. -

simply provides that CERCXA wastes may not be transfened to a RCRA faciUty that it out of compUance or that has un(X>ntiolied releases. Congress specifically recognized that leaks at RCRA faciUties inight not constitute violations, and thus a requirement to control releases was added. See 53 FR 48219-48220 (proposed mle).

FinaUy, one commenter asked EPA to clarify what an applicable Stats environmental law was and who (EPA or the State) has the final say over whether a particulai enviionmental law is applicable.

EFA, after conferring with the State, wiU deteimir'e what State and Federal laws are appUcable, and if the fadUty is operating in compUance with those laws. In most cases, EPA expects to reach co^c^sus with the State as to a faciUty's ccmpUance with State requirements. However. EPA will make its own independent determination on a fadUty's retum to compUance for the purpose of the Off-site Rule. EFA emphasizes that a fadUty will be deemed acceptable under the mle If it demonstrates to EPA's satisfaction that it is operating in compUance with applicable laws and has addressed aU relevant releases. EPA can be satisfied that a facility has retumed tb physical compUance with State law even if there is an outstanding State enforcement action. The only situation in which off-site acceptability will be conditioned upon resolution of all legal adions is where the violation cannot be "und"^"." For example, if a faciUty had iu_ ..'ated wastes not spedfied in its permr v''-.sposed of unpermitted waste.<; n a ;nanner tiiat to require their removal would causa harm, EPA wiil not require recovery of the waste as a condition for letuming to acceptability; however, in such cases EPA would not consider the fadlity to have retumed tc compUance until certain steps were taken, such as the payment of penalties, thus removing any economic advantace the faciUty may have enjoyed during thr period of violation. See 53 FR 48229. {.\ similar approach may be appropriate for fadUties with criminal violations; tfae payment of penalties, institution of new training procedures, and other such steps may be necessary in order to restore ctmfidence that the fadUty can again safely handle CERCXA wastes.) Convereely, a fadlity that had been out of compUance with groimd-wvter motutoring or financial assurance requiraments, but tfaat faad brought the ground-water moni ^ring system tiack into physical comp-.ance or met its finandal assurance obUgations could be coQsidared tohaveretumed to physical compiisnce-even if legai actions were

Federal Register / Vol. 58. No. 182 / Wednesday. September 22, 1993 / Rnles and Regulations49209

outstanding or penalties had not been paid.

"Physical compliance" does not include bemg in compliance with a schedule to return to physical Compliance.

:->. .Minimum Technology Requirements vJvITRs)

EPA received conflicting comments on the oroposal to require a RC3RA Subtitle C land disposal unit to comply with the more rigorous minimum technicai requirements of RC RA $ 30O4(o) in order to be acceptable to receive RCRA hazardous wastes from a CERCLA cleanup (53 FR 48224). EP.^ believes that this requirement is appropriate in order to assure that CERCLA waste that are RCJIA hazardous wastes remain safely disposed of in the future. HSWA establitfOod minimum tecimoi .i^, standards for new iand disposal facilities (i.e.. fadUties Commencing construction after Nov. 8. 1984). These standards aru more strmgent than the requirements for existing (i.e., pre-1984) land disposal facilities because Congress considered existing requirements to be inadequate to prevent liazardous waste from entering the environment. Of course. Waivers from MTRs are allowed if the owner/operator can show that altemative design and operating practices, together with location characteristics, will prevent the migration of any hazaidau.s waste constituent into the ground water or surface water at least as effectively as he required linera < "H leachate

collection systc. .0 CTR 264.301) An MTR unit is less Ut"' • tc iiave future problems than a nor MTR unit, and inerefore the requirement that receiving RCRA Subtitie C land disposal units must meet MTRs is consistent with Congressional intent not to send CERCLA wastes to land disposal units that may leak.

6. FaciUties Operating Under a RCRA Exemption and Non-RCRA FadUties

One commenter suggested that a fadlity operating under a RCRA exemption should stiU have to meet certain conditions, such as justifying the exemption, obtaiiung all necessary permits, and passing an inspection. EPA agrees that faciUties subject to a RCRA exemption are still covered by the Off-site Rule. CERCXA wastes may be transferred to such a fadUty only if the facility is operating in compliance with applicable law (which for some faciUties operating under a RC31A exemptior may still include some provisions of RC Ji] , has obtair 'd aU necassary permits (if anv). and has controlled anv

environmentally significantreleases. EP.\ will rely upon in: Tmation developed during inspeaions m making such determinations. These requirements wera specifically set out in the proposed mle for other-tnan-RCRA-facilities. and remain in the final ruie as requirements (53 FR 48225-26; DroDosedS§300.440fb)(l), 300.440(b)(2)(D)).

D. Determining Acceptability-Releces

1. Identifv'ing Releases For aU RCRA Subtitle C faciUties. a

facility-wide investigation (e.g.. a RCRA Facility Assessment (RFA) or a Preliminary Assessment/Site Investigation (PA/SD) by the responsible .'Agency is necessary to determine if a release has ocurred. or if there is a substantial th.-aat ot release, prior to its initial use fo: the ~°ceipt of off-site CERCLA wastes. iOnt» a fadUty has been found to be acceptable, it remains acceptable until EPA notifies the fadUty otherwise, as provided in § 300.440(a)(4) ofthe mie.) If a release has been identified outside the scope of such an investigation, completion of tha investigaticm is not necessary prior to issuing a notica of unacceptabiUty or initiating a corrective acticm piogram (in such situations, the corrective acticm program should be designed to include a fadUty-wide investigaticm). Although the performance of a &dUty-wide investigation is no longer discussed in the mle (see proposed rule § 300.440 (c)(2)), it remains an important part of the off-site evaluation program.

One coiiimenter objected to including "substantiil threat of a release" in the definition of ralease (53 FR 48224), claiming that tiiis exceeds EPA's statutorv authority.

Although CERCLA section 121(d)(3) does not specufically state whether or not a "substantial tfareat of release" is intended to be cxivered by the terms of the provision. EPA beUeves that the indusion of substantial threats is consistent with the intent of the seaion that CERCLA wastes be tiansferred only to environmentaUy-sound facilities, and that they not add to envircmmental

. problems. Where there is a substantial threat of a release, e.g., a crack in a containment wall, tha transfer of CERCXA wastes to the site would not be environmentally sound.

Evan if tha statute is not read to compel this result, EFA believes it is a sound one as a matter of poUcy under CERCnJV. It is within the Agency's authority to respond to both releases and "tubstantiai threats of release" undai CTRCLA saction 104. It would be inconsistent with the purposas of

CERCXA sec::ons 104 and 121(d)(3) and the goal of protecting haallh and the environment, for EFA to transfer CTRCLA was:es to fadUties where a substantial threat of release has been Identified, and thus where the threshold for a CERCXA response action has been met. The general position that both "releases " and "substantial threats of releases" ara serious causes of concern IS refleaed in the definition of "release " in the NCT revisiwos (40 CFR 300.5), which states that for the purposes of the NCT, release also means threat of release.

Thiee commenters questioned the criteria EIPA wiU use to determine whether a release exists. One commenter asked EP> 'o provide more spedfie criteria for when the Agency may find a site to be unacceptable based on a reieVTSt release, while two other comme.ittirs asked that determinations of unacceptabiUty be grounded on very firm evidence, usmg objective criteria.

in evaluating releases and threatened releases, the Agency beUeves that it should rely on all available information, including information on the design and operating characteristics of a unit. The determination that there is a release (including a substantial thieat ofa release) may be made based on sampling results or may be deduced from other relevant infonnation. For instance, as discussed in the proposed mle at 53 FR 48225, a broken dike may be evidence of a release (or of a substantial threat of release). In order to protect public health and the environment, and prevent CERCXA deanups from contributing to future problems, the -Agency needs to consider relevant information in addition to sampUng data.

However, EPA does not have "unfettered discretion" in this regard, contr&-y to the comments of one party. The Agency vvill first make findings based on available information; the owner/operator will then have 60 days to offer evidence to the contrary if the fadlity disagrees with the Agent:y's findings. FinaUy, if the owner/operator disagrees with EPA's final decision, it may recpiest a review by the Regional .Administrator.

The final mle, therefore, will continue to allcrw the Agency to make release determinaticms based on information other than sampiing data.

2. De Minimis Releases fai the proposal, the Agency

interpreted the concept of release in seaion 121(d)(3) not to indude de minimis releases (53 FR 48224). Several coiimientv.:s supported the cfe miaimis exemption, but ciisputed the narrow

*. .

49210Federa l Register .' Vol. 58. No. 182 / Wednesciay, September 22, 1993 / Rules and Regulations

scope ofthe exemption. One commenter argued that only tiiose releases that pose a threat to human health and the environment should render a facility ineligible. Two commenters disagreed with the example of a non-fl'e minimis release between landfill liners, and asked EPA to correct this misunderstanding when issuing the final mle. by stating that accumulations of liquids between the liners are not "releases into the envonment . "

The statute direas EPA not to transfer CTRCLA wastes to a unit of a land disposal fadlity that is releasing "any" hazardous waste, or constituent thereof, into the environment (CTRCLA seaion 121(d)(3)(A)), and to control "all such releases" from non-receiving units (seaion 121(d)l3)(B)). Contrary to the suggestion of the first commenter, the language of the statute does not provide that "only rele ses that pose a threat to human health and the environment" should render a land disposal facility unacceptable under the Off-site Rule. As explained in the proposed mle. 53 FR 48219-48220, Congress was very concerned about leaking land disposal units, and set out in section 121(d)(3) a very stringent standard for the tiansfer of CTRCLA wastes to Such units. (The Agency has greater discretion for setting a standard for units that were not addressed by the statute.)

EPA recognized, however, that tfaere are releases of sucfa a minor nature as to be considered "de minimis," or of sucfa a trifUng nature that the law does not take notice of them. See Alabama Power Co v Cosffe, 636 F.2d 323, 360 (D.C. C . 379); Black's Law Didionarv (4th ed.), vVi.n Publishing, 1968, at p. ' 482. EPA ccj-sidera a de minimis release as substantially less than a release that poses a threat to human health and the environment. Releases will be considered i be de minimis only in exceptional cases. To aid the public, the Agency has attempted to identify some examples: releases to the air from the temporaiy opening and closing of bimgs, and emissions of non-toxic and non-regulated substances from units not otherwise subject to Federal or State permits.* De minimis releases will be exempt from the definition of release.

However, as two of the commentera noted, one example in the proposed mle

was incorrea: "releases" between

• One oommantar misread languaae in the praambia to lha proposed rule (S3 FR at 482^41 as saying that de muumit raleosaa ara "any releases that do nol advaraaly eBect public health or the environmeot" rathor than mareiy minimal releases—widi no adverse effect— '-.e Ihose set out in lha oxamplea In tba praambia. the extant the prior language was confusing, it is clarified by the u j o u i u m in this preamble sutemenL

liners. The accumulation of liquid -between iine s that are controlled by leachate collection systems does not involve a release to the environment: thus tha presence of leachate between Hr.-jrs will not necessarily make a unit unacceptable.

3. Relea'ses to the Air

Two commenters stated that until the promulgation of regulations for the control y air emissions from hazardous waste management units (under RCRA section 3004(n)), it is impossible to tell what releases are lormal during hazardous waste management operations. Thus, they argued that air releases should no' be cAinsidered as a basis fo: unacceptability under the Off-site Rule at this time.

In rest onse to the comments. EPA agrees n a t standarc no- vet exist for differentiating betwbon accbptable releases to the air and air releases that may pose a threat to human health and the environment. Because almost all liquids evaporate or volatilize, air releases of some kind may be expeaed at almost every site, making a "no release to air" standard unrealistic. Indeed, the statute does not restrict the use of units with releases to the air. See secticn 121(d)(3)(A). Tfaus, as a matter of poUcy, air emissions not otherwise permitted that result from hazardous waste management imits will be -considered releases under this mle only if they exceed the standards promulgated under RCRA section 3004(n)(when they have been oromulgated). However, until the

;ion 3004(n) rule is final, air e 'sions from such units will be c- ..sideved releases where they are fouid to pose a threat to human health and the tinvironment. Similarly, air emissions that are not covered by RCRA section 3004(n) standards will be considered releases under this mle only where they are found to pose a threat to human healtfa or the environment.

4. Other Releases

Ono commenter was concemed that releases from non-receiving units at RC3RA Subtitle C land disposal facilities could result in unacceptabiUty of the entire facility. Specifically, tha commenter stated that § 3'00.440(b)(2)(B) could preclude the use of an incinerator at a land disposal facUity where a non-receiving unit has a release. The commenter agreed with prohibiting the use of a land disposal unit in a land cUsposil facility with a leaking non-receiving unit, bec:ause tiiere are likely to be similar problems with otfaer units. The commenter argued that tfaese

problems have no relation to indnerators.

The legislative history isee. e.g.. 53 F-" 48219-48220). shows that Congress wa.-very concemed about releases to the land. That concern was reilectcc in thr-statute by providing special statutory requirements for the transfer of any hazardous substance or pollutant or contaminant from a CERCLA site to a iand dlsposai facility. By providine tne-EPA may not use land disposal faciiitie -.vith uncontrolled releases at non-receiving units, the statute suggests tn;-EPA should not, through CERCLA cleanups, do business with facilities that have leaking land disposal units. Sending CTRCLA wastes to faciliiies a: which reiev&..i releases have been controlled avoids adding to en.vironmenfjji«problems. and further.'; i.he "•• •'.Eressionai policy to rewara or., the ocst facilities with CERCLA contracts.

The fact that the receivine unit mai be an incinerator does not change thi: analysis. The environmental damage from leaking units is still present. Further, unlike receiving units at a lan„ disposal facility which must eliminate all releases, non-receiving units need only "control" their releases in order " be acceptable, a reasonable step to require before deeming the facility' acceptable to receive the govemment's CTRCLA waste. Finally, as RCRA regulations make clear, the presence o: a single land disposal unit makes a facility a land disposal facility (see propose • -"'»., 53 FR 48225); therefore, where - ..-icinerator is part ofa facilif, with land disposal units, the final ruie still require? comDiiance with the release requirements for land disposal facilities in order for the incinerator to be acceptable to receive CTRCLA wastes.

E. Notification of Acceptability

1. Management Options for Loss of Acceptability

Two coinmenters asked EPA to discuss the ramifications on a cleanup contiact ifthe disposal facility becomes unacceptable during a remedial action They also asked that claims from a contractor be made an eligible cost of the action.

Loss of acceptability during a response action constitutes an implementation problem that will be handled on a case-by-case basis througr. the contraaing prcxiess with the individual facility. EPA dr -s not believe that this needs to be addre.^^ed in the r-ie. There are, however, several points to note.

Federal Register / Vol. 53, Ko. 182 / V/ednesday.--September 22. 1993 / Rules and Regulations49211

Ll most cases, there will be a 60-dsy review penod before the initial notice of unacceptability takes effect. The facility .may use this time to take steps to return to acceotability, and there'oy avoid dismpnon or the remedial action. This 60-day time period was aiso pro\'ided to afford the lead agency the opporttmity to arrange for alternative disposal capacity (if the remedy will not be completed within the 60 dav's, or the faciltty is not expeaed to return to compiimce in 60 days) (53 FR 48227), Second, the issue of who should bear added costs stemming from a fadUty's loss of acceptabiUty must be a matter of contract negotiation between the parties. Finally, the Regional Administiator does have tha discretion to extend the 60-day period if all ."ictors, such as a lack of available altemauve disposal ca.adty and a low thraat to human heaith ana tH environment, so warrant.

2. Potential L'.iacceptahiUty One commenter asked for clarification

in both the preamble and the raie on the relationship between the initial notice of potential unacceptabiUty and the ability of a fadUty to continue to receive CERCLA wastes for 60 days after the notice of unaccBptabiUtv (5 300.440(d)(3)).' In addition, the commenter believtid tfaat a determination of unacceptabiUty should be pubUshed in the Federal Register.

'The receipt of an initiai notice of potmtial tmacceptabiUty does imt usually render a fadUty imacceptable unless or until the final determination har been made c:id takes effiact (usually 60 days after th. [z.Jal notice, or after an altemative time period as provided under § 300.440 (d)|8) cr (d)(9)) (53 FR 48227). As discussed earUer. a facility for which EPA has never made a determination of unacceptability will not be afforded a 60 day pericxi of acceptability after the initial notice. Note that in exceptional cases, unacxeptabiUty notices c:an be made immediatelv effective. See 53 FR 48227-48228. EPA will not pubUsb unacceptabiUty notices in the Federal Register: because of tho ability of a faciUty to take steps to return to ccmipUance at any time. acceptabiUty status is dynamic, and marry suc:h notices wiil be out eff date before they get pubUshed. In addition, such a pubUcation reqmrement vrould obUgate EPA to pubbsh in tfae Federal Register notices of when fadUties retumed to compliance: the effort involved would be significant (with Uttie asstzrant» of being timely), and could detrat:t frcnn mora imponant Agehtiy business. Kather, EPA maintain»«n up-to-data record of the acceptability status of

commerdai fiidUties in each Region. This information is available to parties directiy invoK-ed in locating sites for disposal, and to the interested pubUc, from the "Regional Off-Site Contact" in each Regionail Office. A Ust of these coordmatora and their telephone .lumbers is included as Appendix I to this preamble, and updated lists wiU be available from tha Supeifund Hotline and Superfund docket

F. Review Procedures

1. Agency Response Time Two commentera asked EPA to

identify a tpedfic time frame for .\goncy review erf a fadUty's retum to acceptabiUty stafis, and a spedfied respo.T'.te ticiie for review of unacceptabiUty determinations by the Regio: al Administrator (the commenter su^^ >ted that tha appeal to the RA sh'iu .d bd compisted within the 60-day ra'/iew penod).

EPA does not beUeve it is feasible or appropriate to estabUsh a tpedfic time frame within whi(± it must respond to a fadUty's request to retum it to acceptabiUty (whether that request comes within the 60 day review period or after a final determinaticm of unacceptabiUty faaa been issued), A2±ougfa the Agency is commitied to making every effort to respond to snrh requests as quickly as tfae case aUows, tfae Agencry cannot allow its priorities to be driven by artifidal deadliiies. Furtfaer, if the Agency were not able to verify a faciUty's alleged retnm to compUance by a recjuired date, and in fact the ctnrrpany had'not returned to compUance, CERCXA. wastes would be trs'-is •' rred to imacccotable fadUties, ii: violation of CTRCLA "section 121(d)(3). Companies that ara imacceptable must bear some respcmsibiUty for their statns; EPA will attempt to evaluate s retum to acceptabiUty as promptly as practicable.

As to the comment that tfae appeal to the Regional Administrator should always condude within the eo-day review period. EPA notes that the statute estabUshes a critical mandate: tho Agency shaU not send CTIRCXA wastes to unacceptable fadUties. Tha Agency hss already provided a -reasonable period for review and comment after an initial finding of violatian, daring which time the fadUty will have an opportimity to meet witfa Regional offidals. As an added protection, EPA has provided a rigfat to appeal the staff-level dedsion to tha Regi'Ti'U .'.dmiiustrator, who wiU Issue a dedsicm as stxm as possible. However, EPA canno^ allow this procxss to routinehr mutinua intiuGnltHiy. and f cannot violate Congress' clear duuLtiuii

not to send CERCLA wastes to fadiities •.vith relevant violations or releases. For 'Jie reasons set out at 53 FR 482''7, the .•\gency beUeves mat a 60-day review penod-is a reasonable compromise among competmg interests. Of course, the Regional Achninistrator has the discretion to extend the 60-day penod. if appropriate, depending on the factors in the r • JB. Ln dedding whether to extend the 60-day period, the Regionai .Administrator should, for example, consider the need to proceed with the cleanup expeditiously and the namre of the violations or releases found at the fadUty (i.e., the potential danger in continuing to send wastes to the tite), against the adecniacy of the record oeveloped at the staff level and the due procsss concems of tfae faciUty.

2. Notification of Immediate U.-inX'ebtabiUty

•" the proposed rule, EPA statea tha-„ case of either an extension or

immediate unacceptabiUty, the iaahiy should be notified as quiciklv as possible" (53 FR 48228). On'e commenter asked that in cases whera immediate unacceptafaiUty is triggereo, the owner/operator bs notified witiun 24 hours.

The Agencry wiU maka every effort to notify a fadUty as soon as possible aftei a finding of immediate unacceptabiUty. In many cases, this may be within a 24-houi period. The Agency notes as well that in serious safety or emeigency titnatioos. it may be appropriate m moVe a finding of unacceptabiUty e jtive in less than 60 clays, although

mediate unacceptabiUty is n^. required. Ti a mis has been chanc .i' ~ reile-t this fact.

3. Potentially Responsible Parties CDne commenter asked EP.\ to

ascer*ain whether a determinaUon of unacceptabiUty might have an impact on removal or remedial actions being conducted by potentiaUy responsible parties (PRPs). The commentei maintained that a representative of the PRPs should ba aUowed to attend any conference held on the determinauon of unacceptabiUty.

.\ detennination of unacceptabiUty may have an impaa on PRP actions if those actians are being conducted pursuant to a CERCXA authority or using CERCXA funds (e.g., a mixed funding case); ui.sudi.a.casB^ off-site transfers of CERCX.\ wastes would be required to comply witfa this rule.

EPA does not beUeve that it is nec:essary to invite ^T^s to partidpate in its deiiberatian . acceptabiUty detenninations (although EFA may da so in appropriate cases). The effect of

49212Federal.Register / VoL 58, No. 182 / Wednesday, September 22. 1993 / Rules.and Regulations

acceptabiUty detenninations on PRPs involved in CERCLA actions is Umited to determining wfaere tfaey i:an tiansport tfaeir waste. The parties most knowledgeable about tfae fadUty's status—tfae owner/operator, EPA and the State—already partidpate. The possible needXo.r.spme PRPs.to maJto ... altemative anangem ats for tiansport of a CERCXA waste is not a direct element of an acceptabiUty detennination.

G. Due Process Issues 1. Potential Loss of Business

One commenter asserted that the Off-site Rule may infringe on the constitutionally proteded interests of private parties; spedfically, tfae commenter argued tfaat tfae "opp 'rtunity" to compete for business is denied wfaeco.er-EPA determines that a faciUtv is imacceptable. Sucifa decision", b i negative impact on a company's reputation, furtfaer subjecting tfaem to a potential loss of business, and therefore, these dedsions must be made within the confines of the due process clause.

As noted in the preamble to tfae proposed nde (53 FR 48226), EPA agrees tfaat fadUties witfa valid RCRA pennits are autfaorized to receive certain types of wastes and have the opportunity to compete for tfaose wastes, but it does not czeate tfae rigfat to receive any particular wasta sfaipments, from tfae govemment or any otfaer party. EPA is, at tfae same time, sensitive to tl .ompany's concems tfaat EPA's prccec. .:.. dedding whici fadUties to USH must be a fair one. Tfaus,

I Cons9Sajbas.estabUsfaed.the.parameters ifoijhat^edsir- Tn^dtrngprocess^ii^,jio ishipmentsB"vjblatingorleakliig -ifadUtiesjTahd lias'fequife'cra'minimBl procedural procress. In implementing the i^ongrassionally mandated scfaeme, tfais rale sets out a 60-day period for a meeting with Regional and State officdals, an opportunity for comment, a dedsion by the appropriate Regional Waste Management Division, and tfaen tfae opportunity for appeal to the Regional Admiiiistrator. The final mle makes raview by tfae EPA Regional Administrator available to tfae State and tfae receiving fadUty owner/operator, as compared to a discretionary matter left up to tfae Regional Administrator.

EPA faas made every effort to estabUsh prcKedural protec:tion for affected fadUties tfaat wiU ensura tfaat off-site acceptabiUty detenninations ara made in a care 'il and consistent maimer. The Agency beUeves adequate due rotaiss protectian has baan provided. With regard to the conunent of a negative impad fiym the off-site determination,

EPA adcU^ssed this issue in the. proposed rule (53 FR 48226-48227). An EPA dedsion not to use a fadUty is simply a response to, and recognition of the finding of a vioiauon or release. Tho facility must accept some responsibiUty foi its actions (or inactions) and negative impacts which may result.

2. Payment of Penalties A commenter charged tfaat off-site

detenninations are a means of fonnng the payment of penalties and of forcing an owner/operator to forego the right to appeal corrective action ordera or permit provisions; the commenter argued tfaat payment of a penalty should be irrelevant to whetfaer tfae fadUty faas corrected tfae violation. Furtfaer, tfae commenter asked tfaat tfae burden in § 300.44 i(e) for establishing accepts jiUty during chal\< !:ees to conective ac:tion ' icision..., shou.d be reve: sed to provide that a faciUty is acceptable during the period of an appeal, unless EPA (rather tfaan the faciUty) can demonstrate tiiat interim measures are inadequate and that otfaer conective action me« sures are necessary to protect fauman faealtfa and tfae • environment

As stated earUei in tfais preamble (secrtion rV.C.4), tfae question of whether or not a fadUty has retumed to pfaysical compUance witfa appUcable laws is generally separate and cUstinct from tfae question of wfaetfaer penalties may be appropriate for past violations; a company's rigfat to appeal any penalties assodated witfa underlying violations is imaffeded in mos*. erases. However, EIPA has •' antified one major except' — to this ru' 1. Whera a violation cannot physi.-.iUy be "undone" (or the Ag .acy has determined that it is safer to leave waste in place], one can argue that the receiving unit is "tainted," and that the violation is a continuing one. In order to avoid suc:h a harah rasult, EPA has provided that in such cases, the fadUty may be said to faave retumed to pfaysical compUance after any required steps have been taken to prevent reaurence of the violation, and any outstanding penalties to EPA have been paid (ses 53 FR 48229). EPA needs assurance tfaat tfaere will be no repetition of tfae violation, and tfae payment of a penalty helps provide tfaat needed assurance. In. effed, it is tfae praventive measura plus the penalty that "corrects" the violation in the se erases. Tfaus, tfae Off-site Rule is not "forcmig" tfae payment of penalties; in most cases, sucih payment is not requirad to acfaieve acceptabiUty. Wfaere pfaysical compUance is not tecfanicaUy achievable, or would be extremely difficult to acfaieve (e.g., excavating. entira landfills oi draining entira surface

impoimdments at great risk to workera or the environment), tfae Agency has provided another avenue for correcting violations.

Similarly, EPA is not "forcing an owner/operator to forego tfae rigfat to an appeal." Congress has cUrected EPA to clean up Superfund sites expeditiously, and at the same time not to send CTRCLA wastes to sites that are in violation of appUcable laws or that have uhcontiolled relevant releases. Thus, the Agency must make these latter determinations promptiy, wfaile allowing tfae owner/operator a reasonable right to review. EPA beUeves that the 60-day review period with access to two levels of decisionmakers, as provided under this rale, represents such a balance. However, withhelding decisions during months and yeara of administrative and judicial cfa'allenge would not allow the Agency to comply with its statutory mandate, and would encourage cUlatory appeals. (See discussion at S3 FR 48228.)

On the appeal issue specifically, EPA has gone even further, providing an additional mechanism for an owner/ operator to be considered acceptable during intermptions in corrective action to contiol releases due to the need to pursue permit mocUfications. Altfaougfa -the statute conditions acceptability on the "contiol" of releases, and no conective action will be on-going under the permit or order during corractive action appeals or pennit modifications, EPA will consider the faciUty acceptable if the Agency is satisfied tfaat suffident interim corrective action steps ara underway, or if it is convinced tfaat no conective action is needed during the interim period. Thus, a fadlity wishing to remain acceptable and wishing to appeal may do both. Confrary to a commenter's suggestion, this burden is properly on the owner/operator, if it wishes to ramain acceptable during the period of its permit mocUfication appeal. After a certain point, the Agency must be able to get on with its business of cleaning up sites.

3. Review of Determination Decisions One commenter argued tfaat the

procedures set out in the proposed rule for review of off-site unacceptabiUty detenninations (S3 FR 48227) would not promote consistency in decisionmaking, which a tUstrict coun fotmd to be a serious flaw in the original Off-site PoUcry. Tfae commenter requests the right to an expecUtious raview by an impartial dedsionmaker (someone otfaer than the person who originally made tfae dedsionj, and a rigfat to raview of EPA Regional decisions by EFA Headquarters (preferably tfae (kneral Counsel).

Federal Register / Vol. 58, No. 182 / Wednesday, September 22, 1993 / Rules and Regulations 4 9 2 1 3

EPA believes tfaat it has estabUshed a system of review which will promote consistency in decisionmaking. The procedures to be applied are clearly set out. and will be overeeen by coordinators in the ten EP.\ Regions. The Agency intends to provide training and guidance to these coordinators in order to assure consistent applications. The consistency ^iroblem identified by the district court and cited by a commenter. stemmed from irapiementation ofthe May 1985 Off-site Policy, which was dramatically more iimitedin scope and procedures than this final rule. Procedures for notice and opportunity to comment by affected facilities were added by the revised Off-site Policy in Novem'oer 1987, and those procedures are being expanded by this rule. Moreover, the fact that such procedures will now be legally ei-.forceaoie regulatior.j—as compared to policy guidance—adds to the certaintv ;;iat the procedures will be consistently followed.

The request for expeditious review by an impartial decisionmaker, other than the person who originally raade the decision, is satisfied by the provision in the final mle for appeal to the Regional .\dministiator. The Regional Administrator is not involved in the day-to-day compliance and release findings of the Regional Waste Management Divisions, and does not raake tfae initial acceptability determination based on the meetings with the owner/operator within 30 days ofthe notice letter. Rather, the Regional .•\dministrc jr supervises all operations cf the Region, and is available to hear 5ujpeals from those -^"cisions. if requested.

it nas oeen EPA's axpenence under the revised Off-site Policy that Regional .•\dministiatore do not mbber-stamp staff recommendations on off-site acceptabiUty, and have overmled or remanded such recommendations in appropriate cases. The courts have further stated that Agency decisionmakers are presumed to be unbiased. See Withroww Larkin. 421 U.S. 35, 47 (1975).

4. Review Procedures One commenter argued that the

informal conference and written comment procedure (described at 53 FR 48227) is not suffident for review, and suggested using the orocedures proposed in 40 CFR 32.312 (d) and (e) (52 FR 39202, Oct. 20,1987). This refers to proposed regulations for Debarment and Suspension under EFA Assistance. Loan, and Benefit Programs, which provide for an informal faearing witfaout formal mles of evidence or prtx^dure;

opportuni c ippear witfa counsel, submit documentary evidence, ana present and confront witnesses; and a iransaipt of the prcx:eedings to be made available to the respondent.

The more complex debarment procedures are not appropriate for the Off-site Rule. The review proceaures set out by EP.\ under the Off-site Rule already provide for an informal heanng, opportunity to appear with counsel, and submission of documentary evidence. EPA does not believe it is appropnate or necessary to call and confront wimesses in order to determine ifthe facility's operations reveal relevant violations or releases. Moreover, a key distinaion between the f> vo sets of mles is that acceptability is within the control of the owner/operate , unlike a disbarment for a set pp-i.od o up to three yeare. unacceptablliry status may be terminateo once the fadlity retums to physical compliance or controls relevant releases.

The informal procedures set out in the Off-site Rule are a. . .insistent with the purpose and terms of tfae statute. CTRCLA requires swift action in these cases; the use of procedures provided in this rale allow relatively qiuck action, while provicUng due process. Further, the procedures go well beyond those required in tfae statute (simple "notification") and those suggested in the Conference report on SARA ("an opportunity to meet informally," and " •"'st-determination dispute resolution c jedures" for release determinations). (£ae 53 FR 48227.)

EPA notes ihat only one commen.o.-suggested that the mle's review procedures were inadequate.

5. Notification of Decisions

The proposal, at 53 FR 48227, provides that the Agency will inform the owner/operator "in writing" ofits decision after tfae informal conference and review of comments. EP.\ thus agrees witfa the comment that the basis for all decisions should be clearly articulated in writing. EPA also agrees that owner/operatore should receive responses to their ma)ar comments on the acceptability decision. Regions will spedfy in notices of unacceptability why a fadUty or imit has been found unacceptable, and in post-conference decisions why a final unacceptabiUty determination has been made. Sucfa steps will also fadUtate the revierw by tfae Regional Administrator, who may liinit review to the underlying record.

H. Re-Evaluation of Unacceptability

1. Thresholds/Elnforceable Agreements

One comraenter asked for a clarification on the threshold that will render a facility inappropriate for .accepting waste.

The.criteria for determining when a facility crosses ine threshold into unacceptability are described in § 300.440(b). In shon. for a facility to be acceptable to receive CERCLA wastes, it must have no relevant violations under applicable law, and it must control all relevant releases (and, for certain categories of facilities, eliminate all relevant releases at tfae receiving units). EPA will determine whether these criteria have been met based on regular inspections.

c. -The commenter also obieaed to the

requirer ". that a Federal facility must control 1.. ..jtiant releases under an "enforceable agreement" in order to 'oe acceptable to receive CERCLA wastes (53 FR 48229). The commenter noted that there may be fully-permitted units at Federal installations that could safely accept CERCLA wastes: faowever, these units will be unavailable becrause of the presence of releases elsewhere on the installation tfaat are part of a fadlity-wide investigation, but not under an enforceable agreement. Thus, agencies would be forced to use facilities off the Federal property for receipt of CTRCLA waste, adding to costs and delay.

- Congres. .early stated that CXRCLA wastes shoL.d not be tiansferred to leaking units at land cUsposai facilities or to land disposal facilities with leaking non- .caiving units that are not being 'controlled." EPA maintains that an enforr-o.able agreement is necessary to ensure that such releases are controlled, and to ensure the continued implementation of a corrective action program approved by EPA or. when appropriate, the State. EPA sees no reason why Federal facilities should be treated differently from private parties (see CERCXA section 120(a)). Altiiough it might be easier for some Federal fadiities to use aaive RCRA units on their property to receive CERCLA wastes, they may only do so if those units meet the conditions set forth in this mle. The requirement to have relevant releases at non-receiving units controlled by an enforceable agreement may be satisfied through a permit (e.g., 'the corrective action portion of the RCRA permit), or consent agreement (e.g., an interagency agreement under CERCXA section 120), botfa of whicfa are available to Federal fadUties.

V

49Z14F«dknl ItegUler / Vol. 58. No. 182 / Wedneedav. Seotember 22. 1993 / Rules and Ragulatiaos

2. CofTective Action/Contiolled Relaases Oae oommentTaiijtaud that a fadlity

witfa a corrective action program in place -hould foe considered atxeptable. and supported the i>roader definition of what coiislilutet a cuiiectire sciiuii program (proposed § 300.44O(f){3)(iii)), induding tiie nsa of •quivaiant Stata autfaoritias.

The final raie otmtinues to provide that cotncrtiva action programs must be paiionaad uiadar a RCRA order or permit or undar anotliar appropiiata authonty if tha ralease ia at an otfaor-tfaan-RCKA subtitla C fadlity. EPA cautions, homvar. tfaat pravisians in State oniars or pennits issued fafy States not authorizad fiir HSWA oonactivB action ira gananlly not aocsaptifala to satisfy tfais requ^^c^ent at RC3A fadlitias. (Ses S3 FR 48229.) The major excvption to t is when States authorizad for me base RCRA program have issued a vaUd pennit raquiiing corractive acrtioa for raleases from regulated units to the ground waiar (purauaat to 40 CFR 264.100).

OoB conunanlar.ob|actsii to considering a rdeaaa at a ncMHScseiving unit to ba "controllad'" based simply cm tfae issuance of an ordar or paonit; t>in

- commaoier claimed i a* In sucfa cases, an ownei/oparator would not fae raquiied to sfaow tfaat tfae ralease is actiuUy undar ccmtroL as called for in tfaastatuta.

For puiposes of tfais rule. EPA is considering raleases from non-raceiving units "controlled" 'wfaen an eirfmceable

. oidei or peiiiut to stntly the problem has been issued. Tfae Agentnr believes tfaat cmc» a fadlity is under such en enrarceabte order or permit or agreement, the situaticm is "under txmtral.** (If acticm is necessary to pi'otect fauman health and the environment during the term of the study, interim nteesures may ba required.) The situstian will be considerad under control unless or until tha oidar, pennit, or agraament is violated or the docxnnent needs to ba nwdifiad to proceed to tha naxt phase of acrtioa. Provided tlia owiiwi opwatw is taking positive acrtion end remains in compliance with tha terms spedfied in an order or permit, tha fadlitr may remain aocaptnbla.

In addition, inrestigations can often take a long titne to complete, end most waste UusAimnt, sturega end disposal facilities have at laest minor relmses fro. :. jn-TOceiving unitrthe i. requiring fadiities to completa coiiacUva imaaiuaB bafora being cmsicierBd eocxptabla coaid aevarely

., .. limit accepftbta otMita managwuetit

options. afCadtively radwmtg tfaa avaiiabia capadty to nmning.

Raquiring tlia owiwc/oDeratar to physicaUy eiinrinata tiia reieass at iu»-receiving units in order to iie acoeptabia would also go bayond the strict terms of the luls to "rnnuol" xelaasas. Fuitfaar. it would be a particulaiiy harsh resuk given the statute's requiramem to control '.'any" release at a land - isposai facility. By encouraging fadUties to begin studying and eliminating releaaes, this rule furthera the control of leaking units. Further, by requiring, ach work to be conduded under an duforceable order or corroctrve airtian permit, EPA has tfae ability to ensure that the required steps are carried out expeditiottsiy. 3. Belaasfr <"d F*< .iici.-ig SUgihility

One Cu..,...0nu;> chalidnge.^ as too inflexible the provisicm in the propoead mla (53 FR 4B229) thatrac|uirat tha eUminatioa ofall reieasas frnm a receiving unit in order to logaiu . acceptability. Tha f^mmanti»r argued that raquiiing alimination to Ifae extent tecfanically faasifala and to a level wfaicfa poses no tfaraat to human faealth and the environment wouldbe mora realistic:.

In issponse. de miaimis rakases from receiving units ara already axemptad frcnn the mle. EPA beUeves tfaat any furtfaer ralaxation of tfae no-ralease standard for receiving units at RCRA fadlitisa is against the intent ofthe statnta which states tfaat -waste may only be transfened to a land disposal unit that "is not releasing any hazardous wests, or txmstituent tfaereof, into the groundwatar or surfaoe water or soil." CoograiB ainipiy does nex want CERCXA wastes sent to l«mking RCRA land disposal units. Sea 53 FR 48219. EPA believes tfaat the same standard sfaould apply to receiving units at RCRA tieatment and storage faciUties. See 53 FR 48225.

4. Regaiinng Plrysitral C/impUanse ol Traatment and Storage FadUties

In the preamble to the proposed mle, at 53 FR 48229, EPA distmssed how a facility crtmld retu'm to compliance after the fadUty had been found to be imaoceptafale based on a ralevimt violatian. One commenter supported two of the tfaree conditians under which a unit will be cxmsidarad to itava regainad physical compliance, but disagreed with tlia ccmtention tiiat, "in most cases, piiysical complianaa crsnnat be regained until all legal proceedings, (etc.) ara resoivacL" The commenter chained that final reaolution of disputes reganling what legal cxnisaqueooes shou' i flow from a violation are*

itiateeont to the ouestion of whether a unit con safely handle hazardous waste.

This "sue iias already been largely addressed in this preamble statement at seaion IV.C.4 ("Relevant Violations "1 and secriim IV.G.2 ("Payment of Penalties"). Final resolution of legal proceedings <including payment of penalties) is not a prB-c»ndition to regaining acaxptabiiity where tha facility can, in effect, undo the violation (e.g.. remove improperly disprased waste) and thereby retum to physitail compUance. Htrwever, resolution of penalties and of EPA legal proceedings are generally pra-conditions to regaining accrsptability in those cases where a violation cannot be undcmo. (Sea examples in the discmssion of Relevant Viclciions, C.4.) In those cases. U^?cially where a dedsion has been Tisae to leave wastes in place in a land

sposai unit), the Agency is allowing a physical compUance determination to be made despite what some might see as a £orever-ongoing violation. For such cases, the Agency faas a need for greater certainty tfaat every actian has been taken ^ t can be taken to assure that the violation will not recur. In effect, it is tfae'taldng of required preventative measures and tfae payment of tha penalty tfaat "corrects" the violation in these cases. /. fmpJetiwn tation

Throe irommenten suggested that in orda.' to fadiitate implementation of this ml , EPA sfaould establish a nation"^ ftjtj hasr 01 o'iie' mecrhanism so tht off-site contacts and their staff can easilv eU which fadUties, nationwide, are in comphance with the Off-Site Rule. With such a listing system. EF.\ and 'Other Agendas could reacUly know or actress a list of approved off-site disposal fadiities. One of these commentera aiso asked EPA to develop a mora focmaUzed list which reports which fadUties have significant violations under appiicabla Federal and State laws or regulations.

Itiias been EPA's experience that off-site acceptability status changes frequently and is difficult to usefully reduce to a published list. Thus, the Agency believes that the oniy way to ensure up-to-date, accrurate information is to continue to reiv on the ten Regional Off-^ite Contacts (ROCs). The Agency does not believe that it is an unreasonable burden to recruire interested parties to make one to several phone calls to determine the aooeptability status of fiidlities near a given site or with specialized capadty. Tlie Regional Off-Site Contects-will

* -nsintain up-to-d'te infonnation on the

Federal Register / Vol. 58, No. 182 / Wednesday, September 22, 1993 / Rules and Regulations 4 9 2 1 5

acceptabiUty of fadiities within their Region.

However, in order to ensura that the informauon is readily available. EFA will strongly encourage the maintenance of a back-up contaa for use when the primary Off-Site Contact is unavailable. EPA will keep a copy of the ROCs in the Superfund docket and witfa the RCRA/ CERCLA Hotline (a list is also included

Appendix I to this preamble, altfaougfa It will obviously become outdated in tfae future, and interested parties should consult with the sources named for revised lists).

Due to the dynamic nature of the acceptability determinations, EFA faas no plans at this time to pubUsh a national list of acceptable (or unacceptable) units. The Agency beUeves ±a t s i ^ i i s t s could serve more as a source of misiaformation (or out-of-date informauon) than reUable information. EPA's recognition ofthe dynamic nature of acceptability is reflected in the Agency's policy that an off-site facility does not need to be accreptable to bid on accepting waste from a CERCXA clean-up, but must be acceptable under this mle to be awarded sucfa a centred.

In order to avoid problems resulting from contradora whose designated receiving fadUties become unacceptable under this rale, agendes and PRPs may want to provide for back-up or altemative fadUties in their contracts.

/. Manifest Requirements

One comment!:.- objeded to the statement in tfae prean nk to the proposed rule (53 FR 48230) that Umits the requirement to file a "Unifonn Hazardous Waste Manifest" form to CTRCLA wastes that are also RCRA wastes; the commenter asked that the requirement cover all types of wastes.

Tfae preamble simply noted tfaat already existing manifest requirements under RCRA must be met. Tfaere is no manifest requirement under CXRCXA, and tfais mle does not establisfa an independent fracking system for CERCXA wastes. CompUance witfa tfae mle is assured tfarougfa inspecrtions. and enforcement of contiaa provisions.

V. Regulatory Analysis

A. Regulatory Impact Analysis

Under Execrutive Carder No. 12291, EPA must detennine whetfaer a regulation is "major" and tfaus whetfaer the Agency must prepare and consider a Regulatory Impact Analysis in coimection witfa tfae rale. Today's rale is not maior because it simply codifies an Agency poUcy tfaat faas been in effecrt since i-i&y otAPSS and largely mirrora

a revision of Jr -loUcy tfaatfaas been APPENDIX I.—REGIONAL OFF-SFTE in effect since t vember of 1987. As CONTACrrs (ROCS)—Continued discrussed in tfae preamble to the proposed mle (53 FR 48230-48231), this mie contains criteria that EPA will use to determine where it will send waste from Superfund cleanups, but does not regulate or otherwise impose any new requirements on crommennal waste handlers. Acceptability under tfais ruie is largely based on compliance witfa appUcable regulations tfae Agency already enforces. As a result of today's rale some fadUties may cfaoose to initiate corrective action sooner.than if tfaey waited for tfae conecrtive action conditians in tfaeir final operating permit purauant to RCRA 3004 (u) and (v). However, regardless ofthe requirements if tfais rule, under tfae autfaority of - xrtion 300P(fa) of RCRA. EPA already .ompels corrective acrtion at RCRA interim status faciUties witfa known or suspected releases. The rule, tfaen, should not result in increased long-term costs to the commerdai waste handUng industry.

B. Regulatory Flexibility Act

Under the Regulatory FlexibiUty Ad, 5 U.S.C. 601 et seq., at the time an Agency publishes any proposed or final rule, it must prepare a Regulatory FlexibiUty Anaiysis that describes the unpad of the rule on smaU entities, unless die Adminisfrator certifies Uiat ^ist of Subject, in 40 CFR Part 300 tfae rale wiu not faave a sigmficant ' impad on a substantial niunber of small Air pollution control, Cfaemicals, entities Today's final rule describe? Hazardous substance. Hazardous waste, proceo .es for determining tfae Intergovemmental relations. Natural acceptabiUty of a fsdUty foi off-site resources. Penalties, Reporting and management of CERCLA wastes. It does recordkeeping reqmrements, Superfund. not impose significant additional Water pollution conttol. Water supply, requirements or compUance burdens on Dated: September 14,1993. tfae regulated community. Therefore, c«rol M. Brown.:?, purauant to 5 U.S.C. 60ib. I certify that ^dniimsfimor. tfais regulation will not faave a „ „ „ „ . , . significant economic impact on a r ,1° ° ^ ^ ^ ^°° " ™«°'^«'* "^ substantial number of smaU entities. foUows:

Region

II

l.l

IV

V

VI

Vll

Vlll

IX

X

Primary con­tact/phone

Greg Zaacaitii. (212) 264-9504.

Sarah Casoar, (215) 597-1857.

Edmund Burks. (404) 347-7603.

Gertrucj Matuschkov­itz. (312) 3.'^'^-7921.

Ron Shannon, (214)655-

2e*a Gerakj McKIn--

ney (913) 551-7816.

Teny Brown, (303) 293-1823.

Diane Bo.lne, (415) 744-2130.

Ron Ullkrh, (206) 553-6646.

BackuD con-tact/prxme

Joel Golumbek. (212) 264-2638.

Naomi Henry, (215) 597-8338.

John Dickin­son, (404) 347-7603.

Uytalne McMahon. (312) 886-444.S.

Joe Dougherty. (214) 655-2281.

David C}ovle, (913) 5 5 1 -7667.

George Dandk. (303) 293-1506.

Gk>rta BFOwr.iay, (415) 744-2114.

Kevin Schanilac. (206) 5.W-1061.

C. Paperwork Reduction Act

This rale does not contain any new information collection recpiirements subject to OMB review under the Paperwork Ruduction Ad . 44 U.S.C 3501, etseq.

VI. Supplementary Oocnment

APPENDIX I.—REGIONAL OFF-SITE

CONTACTS ( R O C S )

Regkxi

'

Primary ccxv tact/phone

Lynn Hanitan, (617) 573 -9662.

Backuoccxv tact/phone

Austina Frawtay, (617) 573-1754.

PAFIT 300—NATIONAL OIL AND HAZARDOUS SUBSTANCES CONT)NGF.NCY PLAN

1. The authority dtation for part 300 continues to read as follows:

Authoritv: 42 U.S.C 0601-9657; 33 U.S.C. 1321(c)(2); E.O. 12777, 56 FR 54757. 3 CFR, iggi Comp., p. 351: E.C. 125B0. 52 FR 2923, 3 CFR, 1987 Comp., p. 193.

2. Section 300.440... added to part 300 to read as follows:

§ 300.440 Procaaurea tor planning and imp'ementins off-site reaponsa ectlons.

(a) Applicability. (1) This section app' ' '5 to any remedial or removal action invol'ving tfae off-site transfer of any faazr-rtops substance, pollutant or

4 9 2 1 6 F e ( h r a l Ssgiater / VoL 58. No. i82 I Weiinaadav, September 22, 19S3 / Rules and Reguiadans

contaminiTO' is defined under CERCLA sections lOl (14) and (33) ("CERCLA waste") that is conducted by EPA, States, private panies. or otiier Federal agencies, tfaat is Fund-finanoed and/or is taken pursuant to any CERCXA authority, including cleanups at Federal faciUties under section 120 of CTRCXA, and cleanups under section 311 of tfae Claan Watar Act (except for cleanup of petroleum exempt luidsr CTRCLA). .\pnUcability ax.onds to those acUons taken iomtly under CERCLA and anotiier aatfaority.

(2) [n cases of emeigeiury removal actions under CERCXA. emergency actions taken cfairing remecUal actions, or response actions under section 311 of tfae Clean Watei A d '"^lera the ralease poses an immediate and sigmficant tfaraat to fai.man healtfa and tfae enviicr'^'>at. th.. On-^Sne Coordinator (C3SC) may de*'eniuna that it is necessary to tiansfar CERCLA waste off-site without fallowing the rec^iraments of tfais aactian,

(3) This section applies to CERCLA wastes from deanup actions based on CERCXA detrision (locmme its signed or consast decrraes lodged after Odobei 17, 1988 rpoBt-SARA CERCXA wastes") as well as those basea on CERCLA dndgjnn documents signed and consent daoaes lodged prior to October 17,1986 ("pre-SARA CERCLA wastes"). Pre-SARA and post-SARA CERCXA wastes ara sub)Bct to tfae same acrtraptability criteria in § 300.440(b) (1") PTid 121.

(4) GPA (usually the EPA Regional C3ffi<3B) will determine the ectraptability Jider dda secrdon of any fi idii^

selected &r the treatment, storage, or dispoeal of CERCXA ¥mete. EPA will datennina it thera ara ralevant releaaes or ralevant vioiatioiis at a facriUty prior to tfae facriUty's initial receipt of

I CERCXA Waste. A facriUty wfaicrfa faas

i previously been evaluated and found acceptriile tmder tfais rule (or tfae preceding poUcrv) is acceptable until the

I EPA Regional Offica notifies the fadlity ' otfaerwise purauant to § 300.440(d}.

(5) Off-site transfen of tfaose laboratory samples and traatability stniiy CERCLA wastes from CERCLA sites set out in paiagmpfas (aXSi (i) tiuougfa (iiij of ihij8 sei^inn, ara nn* subject tn the raquirameats of this saction. However, tfaose CERCXA wastes may not be transmirBd bac^ to the 1 :KH(7r.A BJttt i i n loea t h n H a m n r i i a l

Projed Manager or C3SC assures tfae proper management of the CERCXA watte aawipies cr i Haiiiiiea and givea permiasioM to tiie labotabwy or traatment facOitr fat tiia n inpies and/or rasidnaa to be renimad to tha ttte.

(U SaotpjoB of CESCLA waataa sent to a ialxBBtaiy ibr

(u) S A faozoidous wastes tliat ara being transfairad from a CESCLA site for tteatabiiity studies and tfaat meat tite requiiBments ror an exemption ior RCRA undergo CFR 2fil.4(ei;and

(iu) Non-RC^RA wastes that ara being transfaired from a CERCXA sits for treatabiUty studies and that are below the quantity thrasbold estabUshed at 40 CTR 261^eK2).

(b) Acceptability cntena. (1) Fac :tY -ompliaace. (i) A fadUty will ba daamad in cximplioncre for tiie puiposa of tfais rule if tfaen are no relevant violations a tnr affecting tha unit or units ratraiving C3SCLA watte:

(A) For traatment to standards spedfied in 40 CFR part 268. subpart D. includir j any pra-traatmant or storage units used prior to trnatmant;

(Bl F i r I reatmnnt to substantially reduce " mob tn-- jty ^r parBiBtt • -ia in UAO absence of a dfidaed treatment standarcL induding any pre­treatment or storage unils used prior to treatment or , (Cn For storage or ultimate disposal of I CTRCXA waste not trented to the {previous crritaria at tfae same duality. i (U) Relevant violations indude signifiirant deviations from reguktions, compUancra aider provisions, or_penuit cronditians designed to: ensura that CERCXA waste is destined far and deliverad to authtsrized fiidlitfes; prevent reiaeaas of nazardous waste, haardous constituents, or hazaidous substsnireb to the enriranment; ensura early detection of sucrfa raleases; or -ompel ^twrective action for raleases. Jriminid violations which result in incUcSmbtut are also relevant violations. In additicm, violadaas of the followring requirements may ba txmsidered relevant;

(A) Appiioable subsections of sections 3004 and 3005 of RC3^ or,'wdieie appUcable, other Federal laws (sucrfa as the Toxic Setastaitoss Ccmtroi A d and SubtitieD of RCRAh

(B) AppUtrable sections of Stata environmental laws; and

(C) In addition, lend disposal uniu at RCRA subtitle C fadUties reoeiving RCRA haEaidous waste from raspoaee actions audtorizad or ifimded under CERCXA must be in compUance witfa RCRA section 3004(o) minimum tecrfanology Tec^irements. Exceptitms may be made only if tfae unit faas been granted a waiver from tfaese , reouiramsuts under 40 CFR 264.301.

(2) fle^eoaes. (i) Releaae is defined in § 300.5 of tfais part. Releeses tmder this section do not incfaida:

(A) i3s numousiaiaases; (B) Re^flasee pennittad under Federal

ptuyams tv under Fedaaal programs delegated to the States. (Federally

permittad rajoaeat ara defined in § 300.5), except to tfae extent that such reieases ara iound to pose a tiiraat to human health and tfae environment: or

[C\ Releases to the sir that do not exceed standaids piomuisBted purauant to RCRA section 3004(n). or absent such standards, or whera such standards do not apply, reieases to tiie air that do not present a tfaraat to human heaith or the environment.

(ii) Releases from units at a fadhty designated far off-sita tiansfer of CERCLA wasta must be addressed as follows:

(A) Receiving units at RCRA subtitle C fttciimes. CERCXA wastes may be transfener' to an off-site unit regulated under subtitle C of RCRA. includina a faciUtv ragidatad under the permit-bv-ruie pri^l^ions of 40 CTR 270.60 (a),'(b) or <c|, only if tiiat unit is not rateasinc any hazaidcnis waste, hazardous constituent t s faazardous substanca inte the ground water, suifacre water, soil or air.

(B) Other units at RCRA subtitle C land disposal facilities. CERCXA wastes may not ba trensfsned to any unit at a RCSA subtitle C land disposal fsdUty whera a non-raceiving unit it raleating any haxoxdous watte, haxaidoot constituent or hazardous substance into tbe ground water, suifKre water, soil, or air. imless that releaaa is controlled by an enforceable agreeinent far corrective action under subtide C of RCRA or other appUcable Federal or Stata authority. For purposes of this section, a RCKA " le ' - ' lljposal fadUty" is any RCRA fai.A. y at whitrh a land disptjsai unit is locate . n. . ...rdless of whether a land dispoi.cj ui.it is the receiving tmit '

(Q Other units at RCRA Tubtitle C treatinent. storage, and permit-6y-m(e faciiitivs. CERCXA wastes may not be ttansfeiied to any unit at a RCJRA subtitle C tie&tment, storage or permit-by^ruie fscality, where a ralease of any hazardous waste, hazaidous trtmstituent. or hazardous substantre fram non-receiving units poses a significant threat to pubUc health ar tha en'vironment, unless tfaat ralease is controlled by an enforceable agreement for corrective action under subtiUe C of RCRA or other appUcable Federal or State authority.

(D) AJi other facilities. CERCLA wastes should not be transferred to any unit at on otiier-tlian-RCRA subtitle C fadUty if the £FA Regional OEBta has i-ntnrwnmtittnt inHi tmt fng t h a i ( Q

enviraamentailv si^oifioant release of hazardous snbttance° lias otxaBod at thatisidiity. uniesst ..relsateis contmUad by aa enfaccaafale agreemau foo'.anactive acdoti miliar anappiicaliie Fad^. ' . orltiaaniilliriity.

i . i ^ l HI I IJJ.- . I , I i n — i » 5 j r ^

Federal Register / Vol. .58, No. 182 / Wednesday, September 22. 1993 / Rules and Regulations49217

(ui) Reieasas are considered to be "conttoUed" for the purpose of tfais section as provided in § 300.440 (r)(3)(iv) and (f)(3)(v). A release is not considerad "controUed" for the purpose of this section during the pendency of administrative or judidal challenges to corrective action requirements, unless '.he fadUty has made the requisite showing under § 300.440(e).

(c) Bas'; for determining •acceptability. [\] If a State finds that a facility witiiin its juriscUction is operating in non-compliance with state law rbquirements including the requirements of any Federal program for which tfae State has been authorized, EPA will determine, afier consulting with the State as appropriiiL,3, if tfae violation is relevant under the mie and ifso, issue an initial detemiination of unacceptability. ^ ^

(2) If a S'lte finds that releases are occumng at a facility regulated under State law or a Federal program for which tfae State is autfaorized. EPA will determine, after consulting witfa tfae State as appropriate, if tfae release is relevant tmder tfae rule and if so. issue an initial datermination of unaccreptability.

(3) EPA may also issue initial determinations of unacrcreptability based on its own findings. EPA can undertake any inspecrtions, data croUecrtion and/or assessments necessary. EPA will tfaen notify witfa tfae State about tfae results and issue a determination notice if a relevant violation or releasa is found.

(d) Determination of unacceptability. (1^ 'Ipon initial deterrp'-'tion by tfae EP.-i Regitmal Offia. _ .JC a fadlity being considered for the off-si ir- sfer of any CTRCLA waste does not . .eet the. criteria for acceptability stated in § 300.440(b). tfae EPA Region sfaaU notify the owner/operator of sucfa facility, and the responsible agencry in the State in which the fadUfy is loeatad. of the unacceptabiUty finding. The notice will be sent by certificKl and firat-class maiL retum receipt requested. The certified notice, if not acknowledged by the retum receipt crard. sfaould be considered to faave bean received by the addressee if properly sent by regular mail to ths last address known to tfae EPA Regional Offic&

{ (2) The notice shaU generally: state I that based oh available informatitmlrom a RCRA Facility Assessment (RFA),

I Inspecrtion. or otfaer data sources, l^e / fadUty faas been found not to meet tfae ' requirements of $ 300.440: d ta tfae ' spedfie acts, omissicms, or conditians

which form tha basis of these findings; and inform the owner/operator of tfae

, piocredural r e c Jise available under tfais 'regulatiozL

(3) A facility u hicfa VIB--, previously evaluated and found acce jtabla undar this rule (or the precreding policy) may ' continue to receive CTRCXA waste for 60 calendar days after the date of issuance of the nouce, unless otharwifiai determinad in aurordance with ' paragraphs (d)(8) or (d)(9) ofthis section.

(4) If the owner or operator of the I fadUty in question submits a written request for an in.'ormal conference with , the EPA Regional Office within"tQl calendar davs from the issuanceTif the.. n'oti'cB,.t&e EPA Regional Office sfaaU provide the opponunity for such conference no later than 30 cralendar days after the date of the notice, if possible, to discuss the basis for the underlying violation or release determination, a; d its relevance to the facility's accepteiilitv to receive CTRCLA deanup wastes. State representatives may attend the informal confer mee. submit written comments prior to the informal conference, and/or request additional meetings with the EPA Region, relating to the unacceptability issue during the detennination process. If no State representative Is present, EPA sfaall notify tfae State of tfae outcome of tfae conference. An owner/operator may submit written comments by tfae 30tfa day afier issuance of the notice, in addition to or instead of requesting on informal conference.

(5) If the owner or operator neither rec{uests an infmmal conference nor . submits 'Written tromments, the fadlity becomes tmacrreptable to i jceive CERCIA wasta dn the 60th day afier the notice is issued (or on such other dats designated under paragraph (d)(9) of this section). Tbe faciUty will remain unacceptable until such time as the EPA Regional Office notifies the owner or operator otherwise.

(6) If an informal conferentre is held or written comments are received, tfae EPA Region shall decide whether or not the Information provided is suffident to show that the fadlity is operating in physical compUance with respect to tho relevant violaticms d ted in the initial notice of unacceptabiUty. and tfaat aU ralevant releases faave been eliminated or controlled, as required in paragraph (b)(2) of tfais section, such that a detennination of acceptability would be appropriate. EPA wiU notify the owner/ operator in writing whether or not the information provided is suffident to support a determination of acceptability. Unless EPA deteimines that informaticm provided by the owner/ operator and tha S^ts is suffident to support a datbiuiinatioa of acceptability, the ;aciUty bairomas

unacceptable cm the 60th calendar day afier issuance of the onginal notice of unacceptability (or other date estabUshed pursuant to paragrapiis |d)(8) or (d)(9) of this seaion).

(7) Within 10 days of haaring from the EPA Regionai Officre afier the informal conference or the submittal of written comments, the owner/operator or the State may request a reconsideration of the unacceptabiUty datermination by the EPA Regional Administrator (RA). Reconsideration may be by review of the record, by conference, or by otfaer means deemed appropriate'by tfae Regional Administrator .reconsideration does.not-autoinatically jtay,the dPtermination beyond tHe 60-day gorioc' Themvnor/ operator will receive notice m writing of the decision of the RA. "' "~

(8) The EPA Regio.iaf Administtator may dedde to extend the 60-day pencxl if more time is required to review a submission. The facility owner/operator shall ba notified in 'wnting if the Regional Administrator extends the 60 davs.

(9) The EPA Regional Office may dedde that^a fadUty's imacceptability is Immediateiy'^effBdive (oreffedive in less than 60 days) in extraordinary situations such as, but not limited to. . emergendes at the fadlity..pT^gTegious violations. The EPA Region shall notify t he^d l i t y crwner/operator ofthe date of unaccreptability, ancl may modify timeframes for cromments and otfaer procedures accordingly. —(e) Unacceptability during administrative and judicial challenges af corrective a c t i c decisions. For a fadlity with releases that are subject to a conective action pennit, order, or decree, an administrative or judidal challenge to the corrective action (or a challenge to a permit modification calUng for additional coirective adion) shall not be considered to be part of a corrective action "program" conttolUng those releases and shall not act to stay ' a determination of unactreptabilify under this mle. However, such facility may remain acceptable to recreive CTRCX\ waste during tfae pendency of the appeal or litigation if:

(1) It satisfies ths EPA Regional Office that adequate interim ccjrretrtive action measures will continue at the fadlity; or

(2) It demonsttates to the EPA Regional Office the absence of a need to take corrective action during the <ihort-term, interim period. Either demonstration may be made during the 60-day review period in the context of tfae informal conference and RA reconsider'^icm.

(f) Re-evaluatiag antuxeptability. If, after notification of unacrcsptafaifaty aiid

4 3 2 1 8 F e d e r a l Reg i s t e r / Vol . 58 , N o . 182 / W e d n e s d a y , S e p t e m b e r 22, 1993 / Rules a n d • Reffuiadons

the opponun i tv to confer as described in § 300.440(d), the fadUty remams unacceptable, the fadUty can reeam acceptability. A faciUty found to be unacceptable to receive CTRCI-\ wastes based on relevant violations or reieases may regain acceptabiUty i f the following condit ions are met:

(1) Judgment on the merits. Tho facility has prevailed on the m e n t s in an adminis t rauve or l ud ida l crfap.ilenge to the f iding of noncompUance or unconttol led releases upon wnich the imacceptabili ty determination was based.

(2) Relevant violations. The fadl i ty has demonstrated to the EPA Region its return to physical compiianca for the relevant violations cited in the notice.

(3) Releases. The fac i l ty has demonstrated to die EPA 'Region that:

(i) All releases from_receiving uni ts at RCRA subtitle C fadh'-ias have been eliminated and prior contaminat ion from such releases is conuol led by a corrective acuon orogram approved under subtitle C of RCRA;

(ii) All releases from other uni ts at RCRA subtitle C land disposal facilities are conuol led by a corrective action program approved under subtit ie C of RCRA:

(iii) All releases from other uni ts at RCRA subtitle C Ireatment and storage faciUties do not pose a significant threat to h u m a n health or the envi ronment , or are conuol led by a coirective a a i o n program approved under subtit le C of RCRA.

(iv) A RCRA subtitie C corrective action program may be incorporated into a permit, c " ' or decree, including the n.. jv/ing: a ronec t i ve action order unoe* F.CFA section 3008(h), section 7C.J c : r e a i o n 3013. a RCRA perm;: under 40 CFR 264.100 or 264.101, or a permit u n d e r an equivalent authoritv in a State authorized for con^jctive action under RC31A s e a i o n 3004(u). Releases will be deemed conttoUed upon issuance of the order, permit, or decree which initiates and requires completion of one or more o f the following: a RCRA Facility Investigation, a RCRA Conect ive Measures Study, and/or Cor rea ive Measures Implementat ion. The release remains conttoUed as long as the fadli ty is in compliance with the order, permit, or decree, and enters into subsequent agreements for implementat ion of addit ionai conect ive a a i o n measures when necessary, except during periods of administ ta t ive or judicial challenges. when the fadUty must make a demonstrat ion under §300.4401e) in order to remain acceptable.

(v) Facilities with releases reguiated under ui.aer cipplicable Federal laws, or

State laws under a Federally-delegated program may regain pcceptability under this secrtion if tfae releases ara deemed by tfae EPA Regic.iai Office not to pose a tfaraat to human health or the environme ^t, or if the facility entera into an enforceable agreement under those laws to conduct co r rea ive a a i o n activities to con ' rol releases. Releases will be deemed conttoUed upon the issuance of an order, permit, or decree wfaicrfa initiates °nd requires one or more of tfae following: a fadli ty investigation, a conecrtive action study, and/or corrective measures implementat ion. Tfae release remains controlled as long as tfae fadl i ty is in compliance with the order, o e r m i t or decree, and entera into subsequent agreements for implerLidntatioii of addit ional cor rea ive measures when -'.ecessary, except during periods f adminis t t ' - ' ' "e or jucUdal challur <es, when t- .cii'. must make a demonstrat ion under § 300.440(e) in order to remain acceptable.

(4) Prior to the issuance of a determination that a facility has r e tumed to acceptabiUty, the EPA Region shaU notify the State in whicfa the facility is located, and provide an opportuni ty for the State to cUscuss the fadUty's acceptabilitv status witfa EPA.

(5) An unacceptabfe fadUty may be reconsidered for acceptability whenever die EPA Regional Office finds tiiat the fadUty fulfills the criteria stated in § 300.440(b), Upon such a finding, the EPA Regionai Office shall notify Uie facility and the State in writing.

IFR Doc. 93-:3069 Filed 9-21-93; 8:45 ami ': KtO-60-P

DEPARTMENT OF HEALTH AND HUMAN S E R V ^ E S

Administration for Children and Families

45 CFR Parts 205 and 233

RIN 0970-Aai4

Aid to Families With Dependent Children Program; Certain Provisions of the Omnibus Budget Reconciliation Act of 1990

AGENCY: Adminis t ta t ion for Children and Families (.\CT), HHS. ACTION: Interim final m le .

SUMMARY: These interim final rules implement three sections of the Omnibus Budget RecondUation Act (OBRA) of 1990 tiiat apply to die Aid to Families wi th Dependent Children (AFDC) program. They are: Secrtion 5053, wh ich deletes all references to

'.ncome deeming by legal guardians m r?.mor parent cases: section 5054. which expands State agency responsibiUty for reporting, to an appropriate agency or offidai, known or s u s p e a e d instances of child abuse and neglect of a crhild receiving AFDC; and section 50f>5, •Afhicfa adds an exp i id t reference to utle rV-E on the list of programs for which information about AFDC appUcants and reap ien t s may be made available.

In ddcUtion. we deleted the reference to atie rV-C since the WIN program is no longer operative. Other OBRA 90 changes pertaining to the AFDC-UP program and the Eamed Income Tax Credit disregard were publ ished luly 9. 1992, in the final mles implementing the related AFDC amendments of the Family Support Act of 1988 (57 FR 30408-30409).

DATES: E.T..t".-e Datifi"!5eptember 22. 1993.

Comments: Comments must be received on or oefore October 22. 1993. ADDRESSES: Comments should be submitted in wn t ing to the Assistant Secretary for Children and FamiUes. . \ t tention: Mr. Mack A. Storra. Direaor . Division of AFDC Program, Office of family Assistance, Fifth Floor, 370 L'Enfant Promenade, SW., Washington. DC 20447. Comments may be inspected between 8 a.m. and 4:30 p.m. during regular business days by malting anangements wi th the contact peraon identified below.

FOR FURTHER INFORMATIOri CONTACT: Mack A. Storra, Di reaor , Division of AFDC Program. Dffice of Family .'\ssistance, r-'^ . ...or. 370 L'Enfant Promenade. S \ \ . , Washington, DC 20447, te lephone i202) 401-9289.

SUPPLEMENTARY INFORMATION:

Discussion of Inter im Rule Provisions

Eliminating the Use of the Term "Legai Guard ian" (Section 233,20 o f the Interim Rule)

The Omnibus Budget Reconciliation Act (OBRA) of 1981 added s e a i o n 402(a)(39) of the Social Security .^ct to require that, in determining AFDC benefits for a dependent crhild whose parent or legal guardian is under the aee of 18, the State agency must include the income of the minor parent 's own parents or legal guardians who are living in the same home.

Section 5053 of Omnibus Budget Reconciliation j \ c t of 1990 (OBRA 90) amended s e a i o n 402(a)(39) of the Social Security A a by eliminating the use of the term "legal guarcUan." Section 402(a)(39) provides that in d e t e r ning AFDC benefits for a dependent cnild whose parent ir under the age of IS , the