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46946 Federal Register I Vol. 52, No. 237 / Thursday, December 10, 1987 I Rules and RegulationsENVIRONMENTAL PROTECTIONENVIRONMENTAL PROTECTIONAGENCY

40 CFR Parts 144, 260, 264, and 270

[FRL 3220-1]

Hazardous Waste Miscellaneous Units;Standard; Applicable to Owners andOperators

AGENCY: Environmental ProtectionAgency.ACTION: Final rule.

SUMMARY: The Resource Conservationand Recovery Act (RCRA) authorizesthe Environmental Protection Agency(EPA) to issue standards applicable toowners and operators of hazardouswaste management facilities. Over thepast several years, the Agency haspromulgated standards for specific typesof treatment, storage, and disposal units,including containers, tanks, surfaceimpoundments, waste piles, landtreatment units, landfills, incinerators,underground injection wells, andresearch, development, anddemonstration facilities. However,because some hazardous wastemanagement technologies are notcovered by the existing permittingstandards, owners and operators offacilities utilizing them cannot obtainthe RCRA permits necessary to operatethem.

To fill this gap, the Agency is todaypromulgating a new set of standardsunder Subpart X of Part 264. Thestandards are applicable to owners andoperators of new and existing hazardouswaste management units not coveredunder the existing regulations. This willenable the Agency, and the States thatadopt equivalent authorities, to issuepermits to miscellaneous wastemanagement units.DATE: This final rule is effective January11, 1988.ADDRESSES: The official record for thisrulemaking under docket No. F-87-SPXF-FFFFF is located at the U.S.Environmental Protection Agency, 401 MStreet SW., Washington, DC 20460. It isavailable for viewing from 9:00 a.m. to4:00 p.m., Monday through Friday,excluding holidays. The public shouldmake an appointment to review docketmaterial by calling (202) 475-9327. Thepublic may copy a maximum of 50 pagesof material from any one regulatorydocket at no cost. Additional copies cost$0.20 per page.-FOR FURTHER INFORMATION CONTACT.For general-information, contact the

RCRA/Superfund Hotline at (800) 424-9346 (toll free) or (202) 382-3000 inWashington, DC. For information on thetechnical aspects of this rule, contactKent Anderson, Land Disposal Branch,Waste Management Division, Office ofSolid Waste (WH-565E), U.S.Environmental Protection Agency, 401 MStreet SW., Washington, DC 20460,telephone (202) 382-4654.

Preamble Outline1. AuthorityII. Background

A. Development of the Hazardous WasteRegulatory Program

B. Summary of the Need for Subpart XC. General Approach and Scope of Sub-

part XD. Comments Received on the Proposed

Rule1. Specificity of Subpart X Standards2. Definition of "Miscellaneous Unit"3. Redefinition of "Landfill"

III. The Agency's ApproachA. Alternative Approaches Considered

1. Design and Operating Standards2. Technical Performing Standards3. Containment Standards4. Facility-Specific Risk Assessment5. Environmental Performance Standards6. Combination of Approaches

B. Selected Approach for Subpart X Stand-ards1. Examples of Units Covered Under

Subpart Xa. Placement of Hazardous Waste in

Geologic Repositoriesb. Placement of Hazardous Waste in

Deactivated Missile Silosc. Thermal Treatment Units Other

Than Incineratorsd. Open Burning/Open Detonation of

Explosive Wastese. Certain Chemical, Physical, and Bio-

logical Treatment Units2. Examples of Units Not Covered or

Units for Which Subpart X PermitsWill Not Be Issueda. Treatment, Storage, and Disposal in

Units Currently Regulated UnderParts 264

b. Open Burning of Nonexplosive Haz-ardous Waste

c. Units Excluded from PermittingUnder Parts 264 and 270

d. Mobile Unitse. Disposal of Hazardous Waste Un-

dergound That Is Currently Regulat-ed Under Part 146 -

f. Enclosed Buildings Used for-Treat-ment, Storage, or Disposal

g. Research, Development, and Dem-onstration (RD&D) Units CoveredUnder § 270.65

IV. Amendments to Part 260: DefinitionsA. Miscellaneous UnitB. Landfill

V. Amendments to Part 264: Subpart X Regu-lation for Miscellaneous Units

A. Section 264.600-ApplicabilityB. Section 264.601-Environmental Per-

formance Standards1. Ground-Water and Subsurface Migra-

tion2. Surface Water (Including Wetlands)

and Surface Soils3. Air

C. Section 264.602-Monitoring, Analysis,Inspection, Response, Reporting, andCorrective Action

D. Section 264.603-Post-Closure CareVI. Amendments to Part 270: Permit Require-

mentsA. General Permit RequirementsB. Specific Information Requirements for

Miscellaneous Units in § 270.23C. Conforming Changes

VII. Applicability to State Hazardous WasteManagement ProgramsA. Applicability of Rules in Authorized

StatesB. Effect on State Authorizations

VIII. Effective DatesIX. Regulatory Analyses

A. Regulatory Impact AnalysisB. Regulatory Flexibility ActC. Paperwork Reduction Act

X. Supporting DocumentsXI. List of Subjects

!. Aiuthority

These regulations are issued underauthority of sections 1006, 2002(a), and3001 through 3013 of the Solid WasteDisposal Act (SWDA), as amended bythe Resource Conservation andRecovery Act of 1976 (RCRA), asamended, 42 U.S.C. 6901 et seq.

11. Background

A. Development of the HazardousWaste Regulatory Program

The Environmental Protection Agencyis required by section 3004 of RCRA toestablish standards for owners andoperators of hazardous waste facilitiesin order to protect human health and theenvironment. These standards establishthe duties of and provide the basis forissuing permits to the owners andoperators of hazardous waste treatment,storage, and disposal (TSD) facilitiesunder section 3005 of RCRA. Therefore,these standards serve not only toregulate the operations of these TSDfacilities, but also to provide a basis forevaluating the issuance of these permits.

The Agency has promulgated theseregulations in stages. On May 19, 1980(45 FR 33221), the Agency issuedregulations establishing administrativerequirements for certain types ofhazardous waste management, generalprovisions for facility owners andoperators, permitting procedures forhazardous waste management facilities,and procedures for State program

46946 Federal Register / Vol. 52, No. 237 / Thursday, December 10, 1987 / Rules and Regulations

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Federal Register I Vol. 52, No. 237 /Thursday, December 10, 1987 / Rules and Regulations 46947

authorization. On January 12, 1981 (46FR 2802), the Agency issued regulationsestablishing technical standards andpermitting requirements for certainstorage and treatment facilities. OnJanuary 23,1981 (46 FR 7678), and June24, 1982 (47 FR 27516), the Agency issuedtechnical standards for hazardous wasteincinerators. On April 7, 1982 (47 FR15032), and April 16, 1982 (47 FR 16544).the Agency issued regulations fordemonstrating financial responsibility.On July 26, 1982 (47 FR 32274), the

Agency promulgated technical andpermitting standards for new andexisting TSD facilities on land, includingsurface impoundments, waste piles, landtreatment units, and landfills.

On July 15, 1985 (50 FR 28702). theAgency amended its hazardous wastemanagement rules to codify severalstatutory changes required by theHazardous and Solid WasteAmendments of 1984 (HSWA). Thesechanges included revisions to thetechnical requirements for land TSD

facilities, revisions to the permittingrequirements for all TSD facilities, andlimitations on the placement ofhazardous waste in salt-domeformations, salt bed formations,underground mines, and caves. Inaddition, these amendments includednew rules that allow for the permittingof certain research, development, anddemonstration facilities.

These standards are presented inTable 1.

TALE 1.-FEDERAL RULES PERTAINING TO THE MANAGEMENT OF HAZARDOUS WASTE-

RCRA Code

40 CFR Part 26040 CFR Part 261 ........................40 CFR Part 26240 CFR Part 263 ......................40 CFR Part 264 ...............

40 CFR Part 265 ................................

40 CFR Part 266 ........... ......

40 CFRPart 268 ....... .....

40 CFR Part 269 ...........................40 CFR Part 270 ...............................40 CFR Part 271 ..............................

40 CFR Part 124

Description

Basic regulatory definitions of what is covered under these standards.Definition of a hazardous waste.Requirements for hazardous waste generators.Requirements for hazardous waste transporters.Establishes the permitting standards in the form of specific conditions for facility operation, design,

performance, and location.Estabflishes operational standards for existing facilities (on or before November 19, 1980) with "interim

standards" until the site has obtained a final permit or it loses its interim status because of the provisionsoutlined under HSWA.

Establishes standards applicable to generators and transporters of materials used in a manner thatconstitutes disposal. This also includes standards for disposal of specific hazardous wastes wherehazardous materials are used/recycled for recovery of heat, precious metals, and reclaimed batteries.

Sets treatment standards and schedules for prohibition of wastes for land disposal (including surface units,injection wells, salt domes, salt beds, underground mines or caves, or. concrete vaults or bunkers).

Establishes permitting standards for control and monitoring of air emissions at TSDs.Outlines definitions and basic requirements for RCRA permits.Sets out the guidelines for final approval of State hazardous waste programs that will be used instead of the

Agency's program.Establishes the permit process to be followed under several Agency programs.

B. Summary of the Need for Subpart X

Although the Agency has issuedregulations for the major hazardouswaste management technologies andpractices, gaps still remain. To close thegaps in the RCRA regulations and tocover unregulated hazardous wastemanagement units, on November 7,1986,the Agency proposed the Subpart X rule.Subpart X covers miscellaneous unitsand essentially completes the coverageof hazardous waste management units.

Currently, promulgated regulations in40 CFR Parts 264 and 265 are theprimary regulations for many types ofhazardous waste management units asdefined in § 260.10. These includecontainers, tanks, surfaceimpoundments, waste piles, landtreatment units, landfills, andincinerators. Research, development,and demonstration facilities andunderground injection wells areregulated under Part 270 and theUnderground Injection Control Programof the Safe Drinking Water Act (40 CFRPart 146), respectively.

The Agency is aware, however, thatcertain existing and future hazardous

waste management practices andtechnologies do not or may not fit thedescription of any of the units coveredby the existing regulations. If they donot fit these descriptions, then theycannot be fully permitted and can onlyoperate as interim status facilities. Thisis not desirable because it prevents theconstruction of new units or expansionof existing units. For example, thermaltreatment of hazardous waste in unitsother than incinerators, boilers, orindustrial furnaces may not be fullypermitted because such units are not atpresent cqvered by Part 264 or Part 266.This means that existing units withinterim permit status under Part 265 maynot receive a full Part 264 RCRA permit.In addition, Part 264 permittingstandards provide better environmentalprotection than the interim standards.

The Agency has received a number ofrequests that standards be issued toallow the construction of new hazardouswaste management units not previouslycovered by Part 264. Furthermore, sometypes of new units that cannot now beconstructed may reduce risks to humanhealth and the environment from themanagement of hazardous waste.

Therefore, the Agency regards theSubpart X rule as a means of allowingflexibility for technological developmentand innovation.

C. General Approach and Scope ofSubpart X

This regulation covers miscellaneousunits not regulated under the standardsfor specific types of treatment, storage,and disposal units in Part 264 Subparts Ithrough 0 or Part 146 or Part 270.Because these standards cover bothexisting and future treatment, storage,and disposal technologies, today'sapproach is to promulgate a new set ofgeneral standards that will coverdiverse technologies and units. TheAgency may develop specific technologystandards in the future, if the needarises.

The Agency is regulating undertoday's rule most of those units that arenot covered by a subpart under Part 264or Part 146. For example, units that donot fit the definition of any of the unitscovered by the standards of Part 264 orPart 146 would be regulated as.miscellaneous units. In addition, unlessotherwise excluded, if a new type of unit



46948 Federal Register / Vol." 52, No. 237 / Thursday, December 10, 1987- / Rules and Regulations

were developed that did not fit thedefinition of tank, container, surfaceimpoundment, waste pile, landtreatment unit, landfill, incinerator,boiler, industrial furnace, orunderground injection well, it would beregulated under Subpart X. An example.of a miscellaneous unit would be athermal treatment unit such as a wet-airoxidation device that is not anincinerator or a tank. Another examplewould be a long-term retrievable storageunit that is not a tank, waste pile,landfill, or other Part 264 unit, or anunderground injection well. An exampleof a unit that will not be regulated underSubpart X, as explained in III.B.2., isopen burning of nonexplosive wastes.

Subpart X will not supersede orreplace any specific restrictions onactivities contained in another subpartor provide a vehicle for escaping fromthose restrictions. For example, 40 CFR264.175 stipulates that container storageareas must have a secondarycontainment system to drain andremove leakage. This requirement maynot be evaded by seeking a permit underSubpart X.

Likewise, miscellaneous unitspermitted under Subpart X that are alsodefined by RCRA as "land disposal"units (see final rule at 51 FR 40572) maynot avoid the Part 268 restrictions onland disposal of untreated or improperlytreated hazardous waste. For example,although the use of an undergroundmine, cave, or formation for theplacement of hazardous waste may,under some circumstances, beconsidered a miscellaneous unit, such aunit would also be subject to the Part268 land disposal restrictions, since it isdefined as "land disposal" by RCRA.Therefore, any hazardous waste subjectto land disposal restrictions that isplaced into a miscellaneous "landdisposal" unit must be treated prior toland disposal in compliance with atreatment standard promulgated underPart 268, unless the owner or operatordemonstrates, to a reasonable degree ofcertainty, that there will be no migrationof hazardous constituents from the unitfor as long as the waste remainshazardous.

D. Comments Received on the ProposedRule

The 43 sets of public commentsreceived on the November 7,1986,proposal generally favored theimplementation of Subpart X. TheAgency, considered all the publiccomments and categorized them intothree general areas to provide acollective response:

• Specificity of Subpart X standards,

e Definition of "miscellaneous unit,"and

• Redefinition of "landfill."General responses to the first two

categories appear below. In addition,the Agency discusses certain commentsmore specifically in later sections of thepreamble.

Comments applicable to theredefinition of "landfill" are discussedin Section IV.B of the preamble."Background Document: Subpart XComments and Responses" contains allof the public comments that werereceived in accordance with the requestfor comments in the proposal and theAgency's response to these comments.This document is available in theSubpart X docket.

1. Specificity of Subpart X StandardsThe Subpart X standards specify that

health and environmental safety mustbe a primary concern during themanagement of hazardous wastes inmiscellaneous units. The standards alsorequire that existing regulations becomean integral part of today's Subpart Xstandards for "miscellaneous" units. TheAgency's intention of incorporatingexisting regulations with generalSubpart X standards was the approachgenerally welcomed by the commenters

The Agency has concluded that it isbest to develop generic standards, nottechnology-specific standards, becausethe generic standards can cover a set ofdiverse technologies effectively. Mostcommenters have confirmed the needfor such an approach. If the Agencydeveloped technology-based standards,the Subpart X rule would not differ fromthe existing requirements in Parts 264and 265. For most of the miscellaneousunits, insufficient information isavailable to develop technology-basedstandards at this time. Even for thoseunits for which there may be sufficientinformation available to developtechnology-based standards, to do sowould result in a major delay inpermitting these units while standardswere developed, proposed, andfinalized. Therefore, the Agency choseto develop generic standards afterconsidering the advantages anddisadvantages of other approaches,including design and operatingstandards, technical and environmentalperformance standards, containmentstandards, and facility-specific riskassessment. Subpart X provides theAgency with flexibility in regulatingmiscellaneous units by providing genericpermitting standards under Subpart X.

The Subpart X rule allows thehazardous waste management industryflexibility in developing newtechnologies or modifying existing

technologies. Public comments suggestthat certain units, such as open burning/open detonation (OB/OD), physical/chemical/biological treatment units(e.g., pyrolysis, stripping, and-in-situbiodegradation), and land-basedhazardous waste disposal units (e.g.,salt beds, salt domes, and undergroundmines or caverns), may requiretechnology-specific standards. Some ofthese technologies are unique methodsfor managing specific types ofhazardous wastes for which noalternative technology exists, and noneof the existing permitting standards maybe applicable However, the Agencybelieves that the generic permittingstandards under Subpart X would bejust as applicable to open burning/opendetonation, physical/chemical/biological treatment units, and land-based hazardous waste disposal unitsas any other Subpart X unit. Moreover,under Subpart X, the Agency has theflexibility to develop technology-specificstandards for these units on a permit-by-permit basis when considering thetechnology-specific data submitted bythe applicant to develop the permitconditions based on the environmentalperformance standards and to issue apermit.

A significant number of commentswere received discussing differenthazardous waste managementtechnologies that the commentersconsidered should be eligible candidatesfor Subpart X permits. For a fewtechnologies, extensive descriptionswere submitted as part of the comment.For example, separate descriptions weresubmitted for each of these technologies:wet air oxidation, abovegroundengineered.vaults, enclosed buildings,in-situ biodegradation, in-situvitrification, and open burning/opendetonation of explosive wastes. Theinformation obtained from thesecomments will be useful when thetechnology becomes widely used. Atthat time, the Agency will considerdeveloping guidance or specificstandards for those units included asmiscellaneous units. As an example, theAgency is developing permit guidancefor open burning/open detonation ofexplosive wastes.* A few commenters objected to theunlimited authority that Subpart X gives-a permit writer when permitting a widerange of miscellaneous units. They sawthis authority as a possible hindrance tothe effective permitting of specific units.

The Agency agrees that there may besome cases in which permit writers mustexercise some discretion. However, theAgency is *developing permit guidancefor certain types of units that will



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provide assistance in the permittingprocess. While this guidance will not bebinding on the Agency, and there stillmay be some permit variations betweensimilar units, we believe that permitguidance will reduce any suchvariations by providing direction topermit writers and permit applicants,with regard to specific Subpart Xtechnologies. For example, the Agency isdeveloping specific Subpart X permitguidance for OB/OD and geologicrepositories other than injection wellsThis guidance will explain how tomitigate emissions or releases fromthese units and thus minimize long-termhealth and environmental hazards. Asmore experience is gained, the Agencymay develop guidances on other SubpartX units. In addition, the Agency will usethe support of EPA's Permit AssistanceTeams (PAT) staff to promotenationwide consistency in the issuanceof Subpart X permits. The PAT staff canalso help the individual permit writerunderstand unfamiliar technologies.

Some commenters requestedclarification on when ground water and/or surface water must be monitored atmiscellaneous units. The Agencyrequires that when applying for apermit, the applicant must assess thepotential for release or migration ofhazardous constituent(s) to each of themedia. Based upon this assessment, adetermination will be made as to thetype and frequency of monitoring thatwill be necessary at any specific unit orsite.

2. Definition of "Miscellaneous Unit""Miscellaneous unit" is defined in the

proposed Subpart X rule as a hazardouswaste management unit that is used totreat, store, or dispose of hazardouswastes but that does not fit the currentRCRA definition of container, tank.surface impoundment, pile, landtreatment unit, landfill, incinerator,boiler, industrial furnace, orunderground injection well

Most of the commenters suggestedthat the Agency should provide a list oftechnologies or units that can becategorized as Subpart X units. Theybelieved this would avoid confusionover which units should be permittedunder Subpart X. If such an all-inclusivelist were published with today's rule,however, it would become quicklyoutdated because new technologies arebeing developed frequently. In responseto commenters' requests, the Agency hasprovided examples of units in SectionIII. B.1 and 2, that are covered and notcovered under today's rule. SinceSubpart X is a catchall category, the listprovided here is not all-inclusive andcomprehensive.

Commenters also indicated that adefinitive listing of all applicable unitswould circumvent the need for requiringtwo types of permits (e~g.,. a tank-likeunit would not need both a tank permitand a Subpart X permit). They claimedthat obtaining two permits is very costlyand time consuming and oftenduplicates efforts. The Agency does notintend to require two permits for anymiscellaneous unit. Under the regulatoryapproach selected today, a Subpart Xpermit would be issued for themiscellaneous unit, which may includecertain requirements that are specific toother types of units. For example, for amiscellaneous unit resembling a tank, aSubpart X permit would be issued thatwould include certain of the Subpart Jtank standard requirements.

3. Redefinition of "Landfill"Comments applicable to the

redefinition of "landfill" are discussedin Section IV.B of the preamble.

III. The Agency's Approach

A. Alternative Approaches ConsideredIn preparing the proposed Subpart X

rule, the Agency considered a number ofregulatory approaches. The Agencyselected a combination approach sinceno singular approach was best suited toprotect human health and theenvironment while still providingflexibility in addressing the diversity ofwaste management units included irSubpart X. Under this approach,appropriate elements of design andoperating standards, technicalperformance standards, containmentstandards, facility-specific riskassessment, and environmentalperformance standards will be appliedto miscellaneous units on a case-by-casebasis. This approach will result in lessdelay by providing permitting standardsfor those miscellaneous units for whichsufficient data are not available todevelop more specific standards. Thealternative approaches considered weredesign and operating standards,technical performance standards,containment standards, facility-specificrisk assessment, environmentalperformance standards, and acombination of these approaches.1. Design and Operating Standards

Design and operating standards wouldrequire the installation of specificequipment or the use of particularprocesses. These standards would beprocess- and unit-specific.

The majority of commenters favoredthese standards, since many wereInterested in obtaining specificrequirements for their units. The Agency

determined that preparing thesestandards would be resource-intensivebecause it would need to collectextensive data on each specific type ofunit. In addition to collecting the data.the Agency would need todevelop aproposed rule and promulgate a finalrule which would also greatly delay thepermitting of miscellaneous units.Therefore, this approach would be adetriment to the development ofinnovative technology, since owners oroperators would need to wait for EPA topromulgate new rules before applyingfor a permit.

Under today's approach, allmiscellaneous units will be permittedunder the general standards of SubpartX. Nevertheless, in the future, theAgency may develop specific design andoperating standards for the varioustypes of units, when there is a betterunderstanding of the technology,process efficiency, and process safetyneeds.

One commenter who disagreed withthe Agency, believed that the design andoperating standards (or technicalperformance standards) for Subpart Xunits would be easy to implement. Incontrast, another commenter agreedwith the Agency's decision not topropose specific design and operatingstandards for miscellaneous units,because it would be impossible toregulate a new technology bypredetermined design and operatingstandards that may or may not beappropriate for the individual unit inquestion. In addition, he further claimedthat these predetermined standardscould be more or less stringent thannecessary to protect human health andthe environment.

The majority of the commenters wereconcerned about the lack of specificdesign and operating standards for OB/OD facilities. They feared that omittingspecific standards may lead to extensivedelays and considerable expense in thepermitting process. They wereconcerned that they may not be able toaddress completely the permitreviewers' requirements and may havedifficulty obtaining a permit.

After reviewing the comments, theAgency believes that the promulgationof unit-specific design and operatingstandards is not necessary at this time.The generic standards, in conjunctionwith the permit guidance underdevelopment for OB/OD units, shouldprovide sufficient information todevelop permits without excessivedelays. Moreover, the Agency isuncertain whether it possesses sufficientinformation to promulgate specificdesign and: operating standards for OB/



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OD units. Even if it had suchinformation, the process of developing,proposing, and promulgating unit-specific standards for these units wouldcause major delays in issuing permitsfor these units. At some later date, theAgency may decide to develop specificdesign and operating standards for theseunits.

2. Technical Performance Standards

This regulatory approach wouldestablish specific engineering objectivesand allow the permit applicant todevelop a design or set of practices toachieve these objectives.

One commenter indicated that it isdifficult to define technical performancestandards, since the technologies andassociated "engineering objectives" willbe continually refined. Anothercommenter suggested "establishingperformance standards whereby atreatment operator would be required todemonstrate a degree of minimalacceptable variability in a treatedproduct with respect to constituents ofconcern." A third commenter stated thatthe Agency should determineperformance capabilities and establishspecific levels of performance forthermal treatment devices (e.g.,pyrolysis, calcination, wet-air oxidation,and microwave destruction]. TheAgency agrees with the first commentermentioned above and has decided not touse this approach, because thespecificity of the engineering objectivescontained in technical performancestandards could make permittingextremely difficult for miscellaneousunits involving innovative technologies.

Inresponse to the second commenter,the Agency agrees that certain technicalperformance standards could bedeveloped to protect human health andthe environment, however, a single setof these standards in all likelihood maynot be suitable for all of the diversetypes of miscellaneous units. Second,other than for possibly one or twotechnologies, the development of all

* technology-inclusive technicalperformance standards is not feasiblebecause of (a) the lack of adequate datafor setting standards and (b) thecontinued development of newtechnologies. In response to both thesecond and third commenters, for thoseunits for which there possibly issufficient information available todevelop technical performancestandards, these units could be excludedfrom the Subpart X rule. However, to doso would result in several years' delayin permitting these units while thestandards are being developed,proposed, and finalized. However, in thefuture, specific standards may be

developed for certain types of unitswhen adequate data become available.

One commenter proposed settingwaste-specific standards rather thantechnical performance standards. TheAgency rejected this suggestion, sincewaste-specific standards would createthe same problems as discussed for thetechnical standards for innovativetechnologies. Moreover, insufficient dataare available to develop waste-specificstandards. As more informationbecomes available, however, theAgency may consider developing suchstandards.

3. Containment Standards

Another approach the Agencyconsidered was the development ofperformance standards requiringcontainment of hazardous waste withincertain boundaries. While such anapproach may prevent environmentalcontamination under somehydrogeological conditions, the Agencyis concerned that it may only delaycontamination in others. In addition,absolute containment in all media maynot always be necessary to protecthuman health and the environment.. The Agency did not receive anysupport for this approach or anysuggestions as to how this approachcould be used for miscellaneous units.On a case-by-case basis, however, some:permits issued under today's rule maybe based on containment (for example,the containment features achieved bythe design and operating standards forlandfill units), such as liners andbarriers or a combination ofcontainment features and geologicalsiting considerations.

4. Facility-Specific Risk Assessment

The Agency's evolving policy is toassess more explicitly the risks involvedin its permitting and regulatorydecisions. Under a facility-specific riskassessment regulatory approach, thepermit applicant would be required toperform fate and transport analyses andhuman health and environmental riskassessments based on the RCRA goal ofprotecting human health and theenvironment. However, since the costsof risk analyses could be extremely highfor miscellaneous units, and since thedata available for estimating risks fromSubpart X units are limited, thisapproach was not considered feasible asa sole regulatory approach.

Three commenters responded to thisapproach. They thought that facility-specific risk assessment would beexpensive, time-consuming,inconclusive, 'and difficult to implement.In addition, they stated that there maynot be enough data available to make

valid risk assessments. One commentersuggested that a comprehensive riskanalysis should be required only whenspecific standards for other permittedoperations or processes (e.g.,wastewater discharges, air emissions)are unavailable.

The Agency agrees that using riskassessment as the sole approach is notappropriate for many of the samereasons identified by the commenters.

Today's approach assesses the risksfrom various releases and the potentialemissions of hazardous constituents in ageneral way. Based on the assessmentdata submitted with a permitapplication, specific design andoperating standards to mitigate the site-specific risks could be identified andincorporated during the permittingprocess.

5. Environmental PerformanceStandards

Environmental performance standardsseek to set either the numerical healthand environmental standards.or thenonnumerical performance requirementsnecessary to protect human health andthe environment. These standards maytake the form of numerical exposurespecifications (such as the allowableconcentration of a chemical at the pointsof human exposure], pollutantconcentrations permitted to be releasedto the environment, or generalobjectives or goals to serve as a guidefor protecting human health and theenvironment.

The Agency views environmentalperformance standards as the mostimportant feature of today's rule for newand existing miscellaneous wastemanagement units. For example,existing environmental performancestandards for air and water may beutilized, as appropriate, in permitting afacility. Section 3005 of RCRA requiresthat standards applicable to owners andoperators of treatment, storage, anddisposal facilities be those "necessary toprotect human health and theenvironment."

If this approach was selected as thesole approach, however, then it might bedifficult for permit applicants of certaintypes of miscellaneous units toconsistently demonstrate compliancewith these standards. For example, withthe open burning/open detonationtechnology, emissions monitoring is notfeasible. Thus, it would be difficult todemonstrate compliance with anestablished performance standard. Forthe same reason, enforcement of thesestandards for certain units might bedifficult. In addition, this approach wasnot selected as the sole approach

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because the existing performancestandards for air and water do notaddress all constituents of concernunder RCRA Subtitle C.

One commenter questioned the needfor special performance evaluationsunder Subpart X. This commenter notedthat air emissions and effluentstandards are now required for moreconventional technologies that could beapplied to most Subpart X thermal,chemical, and biological treatment units,with the exception of open burning/open detonation of explosive wastes. Inaddition, the commenter asserted thattreatment standards for the landdisposal restrictions will apply toSubpart X units and, therefore, shouldreduce requirements for specialoperating and environmental standards.

The Agency disagrees with thesecomments. EPA foresees the need forspecial performance evaluationsbecause the existing air and waterstandards, when applied to certainSubpart X units, may provideinadequate protection to human healthand the environment since they do notaddress all constituents of concernunder RCRA Subtitle C. As statedearlier, the existing applicable standardsand any additional requirementsspecific to a. given unit will minimize thehealth and environmental risks.Environmental performance standardsas a part of today's approach allowflexibility in meeting goals for theprotection of human health and theenvironment. The flexibility offered bythis approach is needed in Subpart Xbecause of the variability ofmiscellaneous units.

6. Combination of ApproachesThis approach combines the

appropriate elements of all fivepreviously discussed alternatives, andapplies them on a case-by-case basis.Several commenters supported thisapproach as providing flexibility forinnovative technologies. Onecommenter, however, stated that theunits included in Subpart X were sodiverse that one general rule may bedifficult to apply. But the Agencybelieves that the diversity of existingunits and the need to include potentialfuture technologies necessitate a generalrule that can be applied on a case-by-case basis.B. Selected Appoach for Subpart XStandards

After evaluating the variousalternatives, the Agency selected theproposed combination approach withoutmodification for today's rule formiscellaneous units. This approach isbaged on appropriate elements of all

five alternatives discussed above andwill be applied to miscellaneous unitson a case-by-case basis. Under thisapproach, miscellaneous units will berequired to be located, designed,constructed, operated, maintained, andclosed in a manner that will prevent anyrelease that may have adverse effectson human health or the environment dueto migration of waste constituents intothe ground water or subsurfaceenvironment; surface water, wetlands,or soil surface; or air.

The Agency has decided to useSubpart X standards to regulate all unitsthat are not currently includedelsewhere under RCRA. These include.but are hot limited to, (a) placement ofhazardous waste in geologic repositoriesother than injection wells; (b) placementof hazardous wastes in deactivatedmissile silos, other than injection wellsor tanks; (c) thermal treatment unitsother than incinerators, boilers, orindustrial furnaces; (d) units openburning and open detonating explosivewastes and (e) certain chemical/physical/biological treatment units. Theunits that are excluded from Subpart Xinclude: (a) units currently regulatedunder other portions of Part 264; (b)units open burning nonexplosivehazardous wastes; (c) units excludedfrom permitting under Parts 264 and 270;(d) certain mobile units; (f) enclosedbuildings for treatment, storage, ordisposal; (e) underground injection wells(40 CFR 146): and (9) RD&D unitscovered under 270-65.

Units covered under today's rule willcomply with standards that provideperformance objectives for protection ofhuman health and the environment. Theperformance objectives require permitapplicants to evaluate the potentialenvironmental impacts of the unit orfacility and to demonstrate that anyreleases from the unit will not adverselyaffect human health or the environment.

For technologies where (1) a particularhazardous waste management systemresembles another type of unit for whichEPA has promulgated standards and (2)the permit applicant has identified thedifferences between the potential effectson human health and the environmentposed by the two units, the use of site-specific design, operating, monitoring,and containment procedures modified toaccount for the differences must bedeveloped and, therefore, will berequired parts of the facility permit.Generally, these standards will bedrawn from existing regulatoryrequirements and guidance documents,as well as permit guidance beingdeveloped for specific types ofmiscellaneous units. For units that donot resemble another type of unit, the

applicant must still address the unit'seffect on all media, and, whereappropriate, specific requirementsapplicable to other types of units will beadded to the facility permit.

In the permitting process, selectedfeatures of design and operation,technical performance, containment,'and environmental performancestandards; as well as the risk-basedassessment, will be specified, so that theoverall objective of protecting humanhealth and the environment is achieved.Determination of the appropriate*requirements will be made on a case-by-case basis and the rationale for theirapplicability will be provided in eachpermit. In certain cases, the design andoperation of a Subpart X unit mayresemble that of a specific type of unitnow regulated under RCRA (e.g., alandfill). Tothe extent that they aresimilar, the appropriate requirementsunder the existing unit-specific subpartswill be applied. For example, for someunits, liners may be specified.

The regulatory approach finalizedtoday by the Agency offers severaladvantages..First,. it allows the Agencyto address a full range of environmentalissues raised by any waste managementsituation without waiting to establish 'specific design and operating conditionsor other standards. By identifyingseveral sets of environmentalperformance standards in today's rule,the Agency allows development ofwaste- and site-specific permitsresponsive to various ground-water,surface water, and air quality concerns,as well as complex natural processes inthe surface and subsurfaceenvironments that may arise at eachsite. The Agency will also apply theauthority of section 3005(c)(3)"omnibus" to other Part 264 hazardouswaste management units as necessaryto protect human health and theenvironment.

Second, for those Subpart X unitsrequiring compliance with the standardsdeveloped for a specific medium,appropriate portions of the existingstandards will be incorporated into thepermit as required by today's rule. Forexample, in regulating air emissionsfrom pyrolysis units, the Agency willincorporate the applicable portions ofexisting standards (e.g., incinerationstandards for meeting the air qualitystandards).

The Agency has concluded that it isnot possible to set design and operatingstandards forall of the potential SubpartX units, since a variety of units will becovered by today's rule. One set of *

standards either will not be stringentenough or will be excessively stringent



46952 Federal' Register I Vol. 52, No. 237 / Thursday. December 10, 1987 r Rules and Regulationswhen applied to these diversified.technologies. Subpart X will cover anumber- of technologies for-which littleor no information is available; hence,the Agency's decision not to set ,technology-basedi standards.. However,.the site and unit-specific information,submitted during the permitting process.for individual, units will, allow thepermit-issuing authority to tailor eachpermit to the particular risks- andcircumstances. based on the nature ofthe technology, the types of wastes, thesite location, and the regionalmeteorological, climatic, andhydrogeological characteristics. Forexample, in the case of innovativetechnologies, data collected under. aRD&D permit maybe submitted when-risk assessment data are not available.

A comprehensive evaluation asrequiredby today s rule will provideassurance that the permittedmiscellaneous unit poses a minimalenvironmental threat. However,situations may arise when the Agencymust deny a permit or defer a. decision.until additional data, become available.Under certain, circumstances, ter obtain.the additional data, a research,development, and demonstration permitmight be appropriate. hr cases where the.permit application, must be denied;.theAgency will follow the procedures for-the Notice of Deficiency. (NOD) under 40"CFR 124.3.

The major disadvantage of theproposed approach is that the bulk ofthe design, construction, operation,monitoring, and closure specificationswill be developed and specified throughthe permit process. As. discussed above,the Agency will review and adopt ormodify relevant requirements fromSubparts I through 0 of Part 264, asappropriate. As-more permitting orresearch experience and! knowledge aregained, the Agency. may developguidances for specifictypes of facilitiesto aid the permit appiicantand writer(e.g., the Agency is preparing guidanceon open burning and open detonation-of'explosive wastes and on emplacementof wastes in certain massive geologicformations such as salt domes). In.addition, the Agencywill-provideassistance to a permit applicant orwriter.

1. Examples of Units Covered.UnderSubpart X

Because the Agency intends Subpart.X to cover "miscellaneous" units,including future technologies, adefinitive list of the units that will becovered under the subpart cannot beprovided. However, the Agency agreesthat it will be helpful to identify several

types of units that may receive permitsissued under Subpart X

.a. Placement of Hazordbus Waste, in-Geologic Repositories. Placement ofcontainerized hazardous waste or-bulk-non-liquid hazardous waste in geologicrepositories such as underground saltformations, mines, or caves, either forthe purpose. ofdisposaF or long-termretrievable storage, is, included. underSubpart X. Clarification of units that areregulated under the RCRA permit-by-rule for injection wells with-Underground Injection Control permitsis- included in III B.2.(e) of the preamble.

Restrictions on land disposal ofhazardous waste imposed by sections3004(d) through (in) of RCRA apply tothese units. These standards dictate thatrestricted hazardous wastes cannot bedisposed of on land beyond specifieddates, unless they are treated incompliance with Agency-establishedtreatment standards.or unless EPAgrants a variance that demonstrates thatthere will be no migration out of the unitfor-as long as the.wastes remain,hazardous.

b. Placement of 1azardbus Waste in.Deactivated Missile Siios,Treatment,storage, and disposal of hazardouswaste in deactivated missile silos thatare not underground injection, wells- orare not covered under Part, 264standards will be covered under SubpartX. However;. to the extent that thedeactivated missile silo.meets theregulatory definition of an injection wellor tank it would be regulated under 40.CFR Part 146 or Part 264, respectively.Clarification as. to units. that areregulated under the RCRA permit by-rule for injection, wells withUnderground Injection Control permitsis included inl B.2.(e) of the preamble.-c. Thermal Treatment Units Other

Than- Incinerators.. A number ofdifferent types, of thermal treatment.units, including combustion andnoncombustion types, are in operation.today and; have potential application tohazardous waste treatment. Combustionand noncombustion units such as moltensalt pyrolysis, calcination, wet-airoxidation, and microwave destruction,which are not covered under Part 264Subpart- 0 regulations will be coveredunder Subpart. X.. Many of. these unitshave not yet operated on. a commercialscale, but owners of some of these unitsare expected to seek RCRA hazardouswaste facility permits for commercialoperation in the future. .

d.. Open: Burning/Open Detonation. ofExplosive Wastes. These units(as- •defined in § 265.382) are neither typical -

thermal treatment units nor incinerators..The Agency promulgated- interim status-

standards applicable to open burningand open detonation units in Subpart Pof Part 265 (§ 265.382-onMay,19; 1980(45 FR 33251]). These standards require,(1) that units- be. operated' in, a manner-that does not threaten human health and.the environment and (2) that a minimumsafe distance from other properties' bemaintained when waste, explosives aredisposed of'by open burning oropen,detonation. Permitting of hazardous"waste management, units for'openburning or-open detonation ofwasteexplosives is covered in the Subpart Xrule. When upgrading existing-units orpermitting new units, the- applicableportions of Part 265 Subpart P standards(e.g., minimum safe distances) will beincorporated during issuance of SubpartX permits; Because OB/OD is atreatment process, it is not subject to theland disposal restrictions- imposed by

sections 3004 (d) through (in) of RCRA.e. Certain Chemical,. Physical, and

Biological Treatment Units.. Hazardouswaste management units that treat'hazardous waste by chemiqal, physical,or biological methods, in. unit' other thantanks, surface impoundments, and. Landtreatment. units during interim status axecovered under SubpartQ of Part 26S The.Subpart X regulations of Part 264 andthe applicable portion of-Subpart Q ofPart 265-will be. considered in, permittingthese units.. Under the Land disposal'restrictions, no in-situ, hazardous wastetreatment on land wilt be permitted(without the prior use of'a best.demonstrated available technology,(BDAT) for treatment).. Therefore, noneof the in-situ treatment methods will beSubpart X units/technologies.

2. Examples of Units Not Covered orUnits for Which SubpartX Permits WillNot Be Issued

a. Treatment, Storage, and Disposal in.Units Currently Regulated Under Part.264. Under today's. rule,, treatment, .storage, or disposal in units-nowregulated under Part 264.ma-y be.permitted only under the applicablesubparts of Part 264. For example..placement of hazardous waste. in a tankor surface impoundment for treatment is.covered under Subpart J. or Subpart K,respectively, and-disposal of hazardouswaste in a tank is covered underSubpart N, and must be permitted usingthose standards.

b. Open Burning of NonexplosiveHazardous Waste. Although by its termsSubpart X applies to all. units. not: -covered under Part 264,4ncluding open.burning and. open detonation of' " -.nonexplosive hazardous waste- the •Agency has concluded. that open burning,of stich-non-explosivewaste cannot be '- .

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No. 237 / Thursday, December 10, 1987 / Rules and Regulations 46953'

conducted in a manner that is protectiveof human health and the environment.The Agency made this finding in 1980 inpromulgating the general ban on openburning of nonexplosive hazardouswaste (40 CFR 265.382) and has no newinformation to suggest this conclusionshould be revised. The Agency,therefore, intends to deny any permitapplications it receives under Subpart Xfor such activities.

c. Units Excluded From PermittingUnder Parts 264 and 270. Certain unitsare specifically excluded frompermitting under the Part 264 and Part270 standards. For example, publiclyowned treatment works and oceandisposal activities are not permittedunder Part 264 standards, since they arecovered by permits-by-rule (see 40 CFR264.1 (c) and (e)). Another example isoperation of a wastewater treatmentunit (40 CFR 264.1(g)(6)). These unitscontinue to be excluded from Part 264standards and would not be subject toSubpart X.

d. Mobile Units. Mobile wastemanagement units are becomingavailable and may be used for treatmentof hazardous wastes as part of a generalwaste treatment strategy or on a short-term basis to destroy specific wastes for.remedial site cleanup, spill control, andother types of emergency responses.These units are presently regulatedunder 40 CFR 264 and 270, and certainchanges to the permit requirements havebeen proposed and are currently beingevaluated by the Agency. These unitsmay also be involved in research,development, and demonstrationactivities and, as such, may be coveredby a research, development, anddemonstration permit.

Mobile units using technologies thatare covered under other subparts of Part264, such as incineration or treatment incontainers, are excluded from SubpartX. However, those units included inSection IIIB.1., which are mobile, arecovered under today's rule.

e. Placement of Hazardous WasteUnderground That Is CurrentlyRegulated Under Part 146. RCRASubpart X permitting will not applywhere EPA has an existing permitprogram which addresses the particularhazardous waste management practice.It is thus necessary to outline thosewaste management practices currentlycovered by the underground injectioncontrol (UIC) program. Hazardous wasteinjection is regulated under theauthorities and mandates of both theSafe Drinking Water Act (SDWA) andRCRA. Wells must have authorizationunder both acts to operate.Authorization-by-rule under 40 CFR144.21 or a UIC permit under 40CFR 144

Subpart D provides the SDWAauthorization for hazardous waste wells.Interim status under 40 CFR 265.430 or aRCRA permit-by-rule under 40 CFR270.60(b) provides the RCRAauthorization. This permit system is inplace for the injection in bulk form ofliquids, slurries, and sludges. Technicalstandards for these practices are in 40.CFR Part 146.

These current technical standards,however, do not fully address somepotential disposal or storage practicesthat may fall under EPA's regulatorydefinition of well injection. EPA defines"well injection" in 40 CFR 144.3 and146.3 as the "subsurface emplacement offluids through a bored, drilled or drivenwell; or through a dug well, where thedepth is greater than the largest surfacedimension." EPA defines "fluids" in 40CFR 144.3 and 146.3 as "material or..substance which flows or moveswhether in a semisolid, liquid, sludge,gas or any other form or state."

A broad reading of these definitionsmight suggest that granular hazardouswaste poured into a salt dome, forexample, would be within the scope ofthe UIC program. The very recentopinion in NRDC v. EPA, Cons. CasesNo. 85-1915 and 86-1096 (1st Cir., July17, 1987) contains language suggestingextremely broad interpretations of thescope of the UIC program. This opinionremands regulations for the disposal ofhigh level radioactive waste, spentnuclear fuel, and transuranic wastes at40 CFR Part 191 which werepromulgated under the -mandates of theNuclear Waste Policy Act of 1982(NWPA) and the authority of the AtomicEnergy Act of 1954. Some of the legalanalysis, however, concernsinterpretations of "well injection" and"fluids" under the SDWA. The opinionsuggests that containers or solidslowered down a shaft would be "wellinjection" of "fluids" if contaminants inthis material might ultimately "flow" ormove into the accessible environment(Slip-Opinion at page 29). The court wasparticularly concerned that EPA had notevaluated the relationship of the SDWAand NWPA.

We are currently evaluating the legalanalysis in this opinion and will addressthe specific issues of these definitions ata later date. However, EPA believes thatit can address the issue of RCRASubpart X and UIC permitting at thistime for the range of long-term ....-retrievable storage and disposal:practices. Part 146 technical standardsdo not currently address practices otherthan the injection of noncontainerizedliquids, slurries, and sludges. Othermanagement practices, such as the'placement of containerized wastes or

solids, would require standards on acase-by-case basis. EPA intends theenvironmental objective for these latterpractices to be the same, such as willmeet the requirements of the SDWA andRCRA, whether a particular practice istermed to be "underground injection" ornot. Specifically, in the context of thisregulation, the Agency intends to applythe mandate of the SDWA to preventthe endangerment of undergroundsources of drinking water, as isconsistent with RCRA's mandate toprotect human health and theenvironment.

This final rule provides that theDirector apply standards for thesemiscellaneous management practicesthrough the RCRA Subpart X permit.RCRA permit procedures provide atleast as much public participation as theUIC permit procedures and are thus, afully appropriate vehicle to imposestandards whether solely under theauthority of RCRA or under thecombined authority of RCRA and theSDWA (See 40 CFR Part 124). The finalrule, therefore, contains amendments to40 CFR Part 144.31 which requires that aSubpart X permit will constitute a UICpermit for hazardous waste wellinjection for which current Part 146technical standards are not generallyappropriate. In promulgating thisamendment to § 144.31, we are notspecifying that these miscellaneousmanagement practices constituteunderground injection, but rather, to theextent any of these practices may bedetermined to be underground injection§ 144.21 will authorize a facility underthe SDWA if the unit has a RCRASubpart X permit.

The above permitting scheme doesnot, in and of itself, remove therestrictions on the placement ofnoncontainerized or bulk liquidhazardous waste in any salt domeformation, salt bed formation,underground mine, or cave undersection 3004(b)(1). That provisionrequires the Administrator to find, afternotice and opportunity for hearings onthe record in the affected areas, thatsuch placement is protective of humanhealth and the environment to removethe prohibition. "Fluids" under the UICprogram are "liquids" under § 3004(b)when they do not pass the Paint FilterLiquids Test contained in Method 9095of the "Test Method for Evaluating SolidWastes, Physical/Chemical Methods"[EPA Publication No. SW-8461].

f. Enclosed Buildings Used forTreatment, Storage, or Disposal. TheAgency is considering under separateaction the appropriate mechanism to -

permit activities in enclosed buildings.

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While this does not rule out thepossibility that these units could be,permitted under Subpart X, no decisionhas been made at this time.

g. Research, Development, andDemonstration (RD&D) Units CoveredUnder § 270.65., The purpose of an RD&Dpermit is to allow for testing. anddemonstration of innovative andexperimental technologies, including themodification of existing technologies. Ifa unit meets. the requirements of anRD&D permit under § 270.65, then, thatunit will not be eligible for a Subpart Xpermit.IV. Amendments to Part 260: Definitions

After evaluating the public comments.and current definitions of Part 260, theAgency has added a new definition for"miscellaneous unit," and has amendedthe "landfill" definition.

A. Miscellaneous- UnitToday the Agency defines the term

"miscellaneous unit" to refer to.hazardous waste management -unitsused to treat, store,, or dispose ofhazardous wastes that do not fit thecurrent definition of container,, tank,surface impoundment, pile, landtreatment unit, landfill,, incinerator,boiler, industrial furnace, undergroundinjection well with appropriate technicalstandards-under 40- CFR Part 146, or uniteligible for an RD&D permit under-§ 270.65;

None ofthe commenters suggestedspecific definitions for "miscellaneousunit." They did', however, addressseveral-units or processes that theybelieve should orshould not be includedas miscellaneous units. One commenterstated that the definition. of"miscellaneous unit" is toobroad andthat the Subpart X standards. along with.this definition. may further encumberthe,already overburdened RCRA permittingprocess. On- the. other hand, anothercommenter indicated that the definitionof "miscellaneous, unit" is adequate,provided the existing expansivedefinition of "landfill" is appropriatelylimited.

Two. commenters requestedclarification.. One suggested thatenclosed- buildings. should not beconsidered waste piles or tanks' andtherefore,. should be consideredmiscellaneous units. The other statedthat clarification, is necessary to avoidpossible confusion between. openburning/open detonation units andwaste piles-and other types of units.

An additional, commnter suggested,that "open burning." as defined in 40CFR 260.10;.does: not accurately definethe nature of thereactionmthatoccurs atfacilities, treating explosive wastes.

Another commenter proposed that thedefinition of "open burning" beamended to include "detonation" and"deflagration." A few commenterssuggested that the Agency define, thetypes of wastes that can, be, burned ordetonated in open burning/opendetonation units.

In general, it appears that some of the.commenters believe that a cleardefinition and' understanding of"miscellaneous unit" is essential to meetapplicable permitting requirementsunder Subpart X without undue delays.Second, commenters requested' adefinitive list of units, processes; ortechnologies that can beconsidered"miscellaneous units" under Subpart Xin order to minimize any confusion inthe permitting process- that may resultfrom this regulation.

Through both the definition and thediscussion in this preamble, the Agencyhas made it clear what is, meant by a"miscellaneous. activity" and what unitscan be eligible candidates for Subpart Xpermits. The Agency concluded that bymaking the definition of "miscellaneousunit" broad, it allows the owner oroperator and the regulatory authority to.incorporate all types of units notpreviously covered under-Part 264. In-the preamble, we have attempted tofurther clarify, the types of units that are.covered and not covered under SubpartX by giving various examples undereach category. However, an. all-inclusivelist of units covered by Subpart X is notprovided. To do so-would require-amending the regulation each- time anew. process is developed. This wouldgreatly delay the permitting of such.units.

B. Landfill

Today's rule defines "miscellaneous:unit" as a catchall category. Previous to.today's change, landfills as defined in 40,CFR'260-10 covered certain-units thatdid not fit within the definition of other-land disposal units. Under thatprovision, "landfill"'meant"a disposal.facility or part of a facility-where,hazardous waste is placed in.or. on landand which is note land treatmentfacility, a surface impoundment, or aninjection well." Therefore,, "landfill" was.a catchall category for all disposalfacilities that did not meet the definitionof a land treatment facility a surfaceimpoundment, or an injection well. Theuse of the. term "miscellaneous, unit" asthe catchall category requires redefining"landfill' so as to limit it to a discretecategory of specific units covered underSubpart N of Part 264. Therefore, in the.Subpart X proposal, the Agencyrequested comments on how to clarify,

the landfill definition such that it nolonger constituted a catchall category.

After considering all of'the commentsreceived' on this issue, the Agency hasdecided to define the term "landfill"'similar to the definition in §. 260.10 witha few minor modifications. Undertoday's rule, the Agency has defined theterm "landfill" to mean a disposalfacility or part of a facility wherehazardous waste is, placed on or in landand which is not a land treatmentfacility, a surface impoundment,-aninjection well. a. pile, a salt dome.formation, a salt bed formation, a cave,or a mine.

In the proposed rule, the Agencyrequested- comment& specific to. the-redefinition of "landfill". After a carefulreview of all the comments, the Agencydecided not to significantly change theprevious "landfill"' definition but ratherto clarify those units that are classifiedas."landfill' facilities.

A significant number of comments.were received on the proposal to.revisethe existing "landfill" definition. The:majority of these. comments addressed,the adequacy of the proposed goal toidentify more precisely the: types ofwaste management practices includedwithinthis category.. The.Agency has-accomplished this goal by listingadditional: practices that are eitherincluded in or excluded from thedefinition.

A "disposal facility!',, as defined: in§ 260.10 means a facility, used fur-intentional placement, where, waste will'remain after-closure. This distinguishesstorage and treatment in. tanks fromdisposal facilities. However. it alsoallows the placement of wastes in tanksand vaults used for disposal providedthe unit meets the landfill standards.

The new "landfill" definition, providesthat piles are not.landfills. When"landfill" was: defined in 1980, it wasclearly the-intent of the Agency toexclude piles.-By amending our-landfilldefinition to reflect this fact, we aresimply clarifying-the scope of thedefinition.

In the 1984.Hazardous and SolidWaste Amendments (HSWA) to theSolid Waste-Disposal Act, Congressrecognized salt dome formations-, saltbed formations, caves,and mines asseparate types of hazardous wastefacilities or units' and in section 3004[b).directed the. Agency to developstandards for these units. If these units.were already covered by the landfill'standards, this would be unnecessary.Similarly, under section 3004(k), ofHSWA, the types' of'units covered bythe land ban are separately listed-aslandfills, salt dome formations, salt-bed'

469.54 -Federal Register /' Vol., 52,




formations, underground mines, caves,etc. Clearly, Congress did not intendthat these units be covered by the term"landfill."

"Landfill" will cover tanks or vaultsused for disposal of hazardous waste.Subpart J of Part 264 only regulatesstorage and treatment in tanks and theAgency to date has not developedspecific standards for disposal ofhazardous waste in tanks. However,under limited circumstances, theSubpart J standards do allow treatmentor storage tanks that cannot remove allcontamination at closure to close and toperform post-closure care in accordancewith the closure and post-closurerequirements for landfills. Disposal intanks will be regulated under theSubpart N standards as a landfillbecause "landfills" and the disposal ofhazardous waste in tanks raises similarhuman health and environmentalconcerns and because tanks aresimilarly placed on or in the land. Thisdoes not result in a change in the waytanks used for disposal are regulated,since previous to today's rule the landfillcategory constituted a catchall categoryfor disposal units not regulatedelsewhere.

By changing the "landfill" definition,the Agency has not changed the statusof those facilities that were previouslyconsidered to be "landfills". Rather, thechange has clarified the previouslydescribed scope of the definition.Consequently, this change has notreduced the scope of facilities coveredunder either the land ban provisions ofsection 3004(d) of HSWA or theminimum technology requirements ofsection 3004(o) of HSWA.

V. Amendments to Part 264: Subpart XRegulation for Miscellaneous Units

The regulations promulgated todayunder 40 CFR Part 264 apply tomiscellaneous waste management unitsthat are used to treat, store, or disposeof hazardous waste. Conformingchanges to accommodate the addition ofSubpart X are provided for in Part 264,Subparts B, E, F, G, and H. Thesechanges merely serve to make thegeneral requirements of Part 264applicable to miscellaneous units.

The Agency intends the generalfacility requirements of Part 264,Subparts A through E, G, and H, toapply to miscellaneous units. Inaddition, although the Agency made anoversight in the proposed rule, undertoday's final rule the corrective actionrequirements of section 3004(u) thatwere codified at 40 CFR 264.101automatically apply to miscellaneousunits. The Subpart F ground-waterprotection requirements will apply

somewhat differently to miscellaneousunits compared to the conventionaltypes of units. For miscellaneous units,Subpart F requirements under § 264.101for corrective action will always apply.However, the requirements under§ 264.91 through 264.100 for monitoringand response action programs applyonly to those units that have a potentialfor contamination of ground water.These standards will apply on a case-by-case basis through the new § 264.602,which is explained below.

It should be noted that the term"Director" has been substituted for"Regional Administrator." "Director"means the Regional Administrator or theState Director in an authorized State, asthe context requires. This changeconforms to the terminology selected foruse in other recent amendments to thehazardous waste managementregulations.

The promulgated standards formiscellaneous units are discussedbelow, section by section.

A. Section 264.600-ApplicabilityThis section limits the applicability of

the regulations of Subpart X to ownersand operators of miscellaneoushazardous waste management units. Byusing the term "miscellaneous," thissection incorporates the definition of"miscellaneous unit" from § 260.10.

B. Section 264.601-EnvironmentalPerformance Standards

The. most important features of theregulations for new and existingmiscellaneous waste management unitsare the environmental performancestandards set forth in § 264.601. Section3004 of RCRA requires that standardsapplicable to owners and operators oftreatment, storage, and disposalfacilities be those "necessary to protecthuman health and the environment." In§ 264.601, the Agency has translated thisoverall goal into a set of objectives thatprovide a guide for owners andoperators of miscellaneous units and forpermit writers. Those objectives are toprotect ground water, surface water(including wetlands), air quality, andsoil, which are the principal pathwaysfor migration of hazardous constituentsto receptors. While each of theseobjectives must be addressed in thepermit, a permit may not need to specifyconditions that protect each of theseenvironmental media.

Most of the commenters suggestedthat the environmental performancestandards if made unit-specific, wouldaid in protecting human health and theenvironment from releases ofcontaminants. Other commentersobjected to the requirement for detailed.

ground-water, surface water, and airquality assessments, especially forfacilities using technologies where it isunlikely that the waste or itsconstituents would come in contact withwater, soil, or air media. As stated in thepreceding paragraph, an assessmentmust be conducted for each medium,however, if the assessment shows thatthere will be no impact on a givenmedium; the permit need not specifyconditions to protect that medium.

Another commenter said that thesestandards are geared to toxic wastes.The commenter further indicated that, inthe case of explosive wastes, there willbe a poor fit between these regulatoryrequirements and a particular unit. Thecommenter stated that ground-watermigration is unlikely during openburning of explosive wastes. Theperformance standards'require that anassessment be conducted for each of themedia. If the assessment shows that, inthis case, ground water will not beimpacted, then the permit need notspecify conditions to protect the groundwater.

The Agency, however, does not feelthat it is appropriate to promulgatespecific environmental performancestandards at this time. Given thatmiscellaneous units will be regulated byissuing individual permits that are unit-and site-specific, human health and theenvironment can be protected withoutbeing overly stringent in some casesand/or too lenient in Others. It isexpected that the unit-specificenvironmental performance standardsdefined in Subparts I through 0 willprovide baseline, acceptable protectionand, at the same time, will allowflexibility in issuing case-by-casevariation during the permitting under theSubpart X regulation. In addition, theAgency is developing unit-specificguidance for certain units and may, inthe future, provide additionaltechnology-specific guidance, .ifnecessary.

The Agency does not view § 264.601as a set of specifications that willdirectly apply to all owners andoperators of miscellaneous units. Rather,§ 264.601 provides a general set ofobjectives that will guide the permitapplicant (owner or operator), theAgency, and the public in evaluating theacceptability of each unit and theadequacy of the unit design andoperation to mitigate risk. The permitapplicant is expected to propose thespecifications for location, design,construction, operation, monitoring,maintenance, closure, and, whereappropriate, post-closure care based on



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supporting data and information on theSpecific unit.

Detailed analysis of each factor in.§ 264.601.may not be necessary in apermit application, depending on itsrelevance to the type of unit underconsideration and the associated healthand environmental risks. For example,certain completely enclosed biological,-physical, or chemical treatment unitsmay not require permit conditions -imposing monitoring requirements for.air or ground water. On the other hand,specific thermal treatment units covered.under this subpart may requireextensive air monitoring. All of the.factors identified in § 264.601, however,should be considered and theirrelevance should be addressed in theapplication.

Based on the information about theenvironmental impacts, specificconditions beyond those suggested bythe applicant may be included by theAgency in the permit. Once issued, thepermit governs where a unit is.to belocated and how it is to be designed,constructed, operated, monitored,maintained, and closed.

Few comments were received on eachenvironmental medium--e.g., ground-water migration, surface water andsoils, and air. The majority ofcommenters elaborated on theirconcerns related to the hazardassessment and the need for controlsunder the broad category of -....environmental performance standards.The commenters indicated that theyfavored development of Subpart Xpermitting standards because theyprovide flexibility for developing unit-and/or site-specific assessments ofcontamination of specific media in thepermitting process.

The Agency below discusses whatfactors should be considered byapplicants and permit writers inassessing the potential for adverseeffects on each medium. These factorsinclude the type of waste managed, thetypes of technologies, the types andquantities of emissions or releases, andthe extent of migration or dispersion ofthe waste in various media. The permitapplicant must submit information onthese assessments, which must beincluded in the permit in order to beconsidered as a complete permitapplication. These assessments must bein sufficient detail to support theapplicant's position in demonstratingminimal impact and/or minimizingadverse impacts on each medium.

1. Ground-Water and SubsurfaceMigration

Section 264.601(a) lists several factorsto be considered to prevent any release

that may have adverse effects on humanhealth or the environment due to

-migration of waste constituents in theground water or subsurfaceenvironment. These factors must beaddressed to prevent ground-watercontamination and the subsurfacemigration of hazardous waste frommiscellaneous units (e.g., geologic

* repositories and hazardous wastemanagement units that are placed in or,onland).. The first factor includes the volume,

concentration, and physical andchemical characteristics of the waste

.placed in 'the unit. The volume andconcentration determine the maximumamount and concentration of waste thatmay enter the ground water. Physicaland chemical characteristics determine(1) the toxicity of the waste; (2) theability of the waste to be contained,immobilized, degraded, or attenuated orto migrate in various soils and materials;and (3) the probability of undesirablereactions taking place among wastes orbetween wastes and liners or othercontainment structures.

The second, third, and fourth factorsare the hydrogeologic characteristics ofthe site and surrounding land, theexisting ground-water quality, and thequantity and direction of ground-waterflow, respectively. Because these threefactors affect the movement of wasteconstituents in the subsurfaceenvironment, they are crucial inassessing the impact on human healthand the environment. The hydrogeologic,characteristics of the site determine theeffect of human activities in the area onthe ground water. The third factorfocuses on the existing ground-waterquality and sources of contaminationother than the miscellaneous unit. Thisfactor is relevant for predicting futureground-water uses and the incrementalrisk of the new unit. The fourth factorassesses the rate and direction ofmigration and the potentialcontamination of the site.

The fifth factor is the proximity to andwithdrawal rates of current andpotential ground-water users. Whileground water as a source of drinkingwater is a primary concern, agriculturaland industrial uses of ground watershould also be considered. Clearly,water that is contaminated byhazardous waste leachate may presenthealth risks. Information on Stateground-water planning and regulatoryefforts should also be considered. Also,any changes in ground-waterwithdrawal rates or patterns can alterthe rate of ground-water movement,which influences the rate and directionof migration of contaminants toexposure points. This information is not

only necessary to identify potentialimpacts to the ground water, but-it alsocan be used in determining monitoringwell locations, where necessary.

The sixth factor focuses on land-usepatterns. Land-use patterns can changehydrogeologic characteristics and theyin turn can alter the rate and direction ofpotential migration to and distribution ofwastes in ground water. This

-information will be used to identifypotential impacts to the ground water.

The seventh factor is movement ofwaste constituents in the subsurface.This includes migration of waste ingaseous or vapor forms. Subsurfacemigration of wastes is a type ofenvironmental degradation apart fromcontamination of ground water. TheLove Canal incident provides a classicexample of unsaturated zone migration.There, waste constituents migrated froma landfill into the basements of nearbyhomes. The residents were directlyexposed through physical contact with.waste and inhalation of volatilecontaminants. The potential adverseeffects of subsurface migration of wasteconstituents must be considered inaddition to any direct effects on surfacewater and ground water. The samefactors that influence ground-waterprotection are significant whenconsidering subsurface migration.

Both the saturated and unsaturatedzones must be considered in evaluatingthe potential for subsurface migration.This requires knowledge of thecharacteristics of the waste in the unitand the hydrogeology of the surroundingarea. The patterns of land use in thearea, including proximity to residentialbuildings, are particularly importanthere.

Also considered in factor seven is themigration of wastes to the soil root zoneof food-chain crops and othervegetation. Phytotoxicity may occur as aresult, as in the case of heavy metals athigh concentrations. Even moreimportant, roots may absorb certainhazardous constituents, which the plantmay uptake and pass into the humanfood chain. :

The eighth and ninth factors are thepotential adverse impacts that exposureto waste constituents can have onhuman health and on animal health,plants, .and physical structures,respectively. This potential depends onmany factors, including theconcentration, quantity, toxicity, andtransport of the waste constituents.

One commenter agreed that thefactors listed in " 264.601 for groundwater were necessary to evaluate theadequacy of protection provided by aparticular unit. Another commenter



No. 237 / Thursday, December 10, 1987 / Rules and Regulations 46957

suggested that the rule is unclear onhow the need for gtound-watermonitoring will be evaluated. One othercommenter questioned why all units.must.provide .data on;hydrogeologiccharacteristics, land-use patterns,ground-water.quality, associated humanhealth effects, and animal and cropexposure assessments..This commenterfurther suggested that data requirementsbe tailored to the specific type of unit.Another commenter pointed out that it isnot necessary to perform a detailedground-water and surface waterassessment for a facility managing ortreating a waste that never comes incontact with the surface of the ground.For example, some open detonationfacilities have a synthetically lineddetonation range.

In response to the above concerns, theAgency does not necessarily requirethat all miscellaneous units provide adetailed assessment for each of the ninefactors. The standard in § 270.23(b)requires that the factors be consideredand evaluated, and assessment datamust be presented in the permitapplication. If the permit applicant'spreliminary assessment of these factorsindicates that the facility will not impactthe factor, and the preliminaryassessment of that factor is convincingto the Director, then a detailedassessment is not needed. However, adetailed assessment and associatedpermit conditions must be developed forthose factors found by the preliminaryassessment to have the potential forground-water contamination andmigration. The preliminary and detailedassessment piAedures are notenvisioned as'- two-tiered permitprocess. The preliminary assessment isa tool used by an applicant to avoid theneed to conduct a detailed assessment,if the preliminary assessment showsthat a detailed assessment is notnecessary. The adequacy and findings ofthe assessments will be considered bythe Director as part of the permit reviewprocess.

2. Surface Water (Including Wetlands)and Surface Soils

Improper disposal of hazardouswastes can have immediate, far-reaching, and long-term effects onhuman health or the environment due tomigration of waste constituents insurface water or wetlands or on surfacesoils. Units for which factors related tosurface water, wetlands, and surfacesoils may require particular emphasisare those that are situated on land andare used in an open or semi-enclosedmanner. It is, therefore, essential toensure that these structures aredesigned and constructed to prevent

surface water, wetlands, and surface"soil contamination.

Many of the same factors thatinfluence ground-water protection andminimize risk from subsurface migrationof waste constituents are significant for'the protection of surface water,wetlands, and surface soils. Therefore,the sections listed in § 264.601(b) aresimilar to those in § 264.601(a).

The first factor to be evaluated is thevolume of the waste in the unit and thewaste's physical and chemicalcharacteristics. This factor determinesthe potential for contamination ofsurface water, wetlands, and surfacesoils.

The effectiveness of containmentstructures should be considered in thesecond factor because surface waters,wetlands, and surface soils may becontaminated by ground-watermigration and by overland flow of wasteconstituents. Precipitation, run-on, andrunoff controls and subsurfacestructures should be considered,including liners, dikes, diversion ditches,and cut-off walls.

The third, fourth, fifth, and sixthfactors require considerations of thehydrogeology and climate of the area.These factors evaluate the area'stopography, rainfall patterns,characteristics of ground-water flow,and the proximity of a unit to surfacewaters. These factors determine thedistribution and degree of surface water,wetlands, and surface soilcontamination.

The seventh, eighth, and ninth factorsevaluate patterns of surface water andland use, existing surface water,wetlands, and surface soil quality, othersources of contamination, and waterquality standards. This information isneeded to provide insight into thelikelihood of health or environmentalimpacts. Water quality standardsprovide numerical and narrative criteriatied to particular uses of water bodies.These criteria should guide the Agency,permit applicants, and the public inevaluating the acceptability of managingwaste in a particular unit.

In the tenth and eleventh factors, theimpacts of waste constituents enteringsurface waters on human health and onanimals, plants, and physical structuresmust also be analyzed.

One commenter suggested thatsurface soil for the active portion ofopen burning/open detonation facilities,as well as soil samples from the primarydownwind areas, be monitored and thatthe monitoring schedule be based on thevolume of waste destroyed. The Agencyhas concluded that establishment ofmonitoring schedules is more

appropriately defined in the permittingprocess than in the standards. However,because open burning/open detonationof explosive waste is carried out in pits,trenches, or on the ground surface, or inareas exposed to precipitation, theAgency agrees that it is vital that thefactors in this section be adequatelyaddressed so that run-on and runoff arecontrolled and residual wastes areeffectively contained within a well-defined open burning/open detonationarea.

3. Air

Some waste management units maypresent a significant potential foradverse effects on air quality. Section264.601(c) requires the prevention of anyrelease that may have adverse effectson human health or the environment dueto migration of waste constituents in theair, and lists various.factors that may beconsidered in protecting air quality,

The first factor considers the volumeand characteristics of the waste in theunit and its potential to react orevaporate to form gaseous, aerosol, orparticulate products that enter theatmosphere.

The second factor considers theeffectiveness of systems and structuresto prevent gaseous, aerosol, orparticulate emissions.

The third factor considers theoperating parameters of the units thatmake air emissions likely and create apotential for the production of toxic orexplosive gases, aerosols, orparticulates.

The fourth and fifth factors take intoaccount the atmospheric, meteorologic,and topographic conditions of the sitelocationt the existing air quality, and thesourcesohf contamination near the site.

The sixth and seventh factors assessthe potential adverse impacts on humanhealth and on plants, animals, andphysical structures. Of special concernis the inhalation of hazardousconstituents by humans exposed to airemissions from these units.

Units for which these air standardshave particular importance include openburning/open detonation units andthermal treatment units, such ascalcination, pyrolysis, and multi-hearthfurnaces. Inmost cases, air emissionsfrom open burning/open detonationcannot be controlled since it isimpossible to operate these units undertotally enclosed conditions. Because ofthis, it is essential that open burning/open detonation (OB/OD) permitapplicants consider the volumes andcharacteristics of the waste, as well asthe meteorologic and topographicconditions of the site location. However,




46958 Federal Register / Vol. 52, No. 237 I Thursday, December 10. 1987 I Rules and Regulations

one commenter suggested an alternativetechnology for controlling air emissionsfrom open burning (not detonation) ofexplosive wastes. This technologyeffectively reduces emissions by usingan air scrubber. It may, therefore, be anattractive option for some facilities thatopen burn explosive wastes. In addition,units that thermally treat hazardouswastes can release hazardous airemissions. While permits for thesethermal treatment units may incorporatemost of the incinerator performancestandards under Part 264, thesestandards may not be sufficient orapplicable for Subpart X units; therefore,these units must provide the assessmentof air quality factors.

One commenter observed that just asa surface facility must consider andguard against accidental contaminationof waters or soils, it must also considerthe possibility of contaminated air orgas emissions. Therefore, thiscommenter suggested that the seven.factors included in § 264.601(c) be fullyconsidered. In contrast, commentersI

expressed concern over the use of theword "any" release, viewing it as toorestrictive and not warranted for generalapplicability to all units. Threecommenters noted that air emissionsresulting from OB/OD cannot becontrolled and, therefore, thistechnology should be exempt from therequirements of § 264.601(c).

By using the word "any." the Agencydoes not necessarily mean "no"releases. When a potential exists for arelease (e.g., during OB/OD, where airemissions are difficult to control), anassessment must be made of all thefactors important in protecting airquality.

There was also concern that if the unitis subject to evaluation and topermitting requirements for stationarysources under the Clean Air'Act orunder State and local air pollutioncontrol standards, such standardsshould be implemented by theseauthorities, as they are beyond theAgency's authority under RCRA in thosejurisdictions. The Agency does not agreethat its RCRA authority does not applyto air emissions. Section 3004(n) clearlyrequires EPA to control air. emissionsfrom hazardous waste facilities. EPAwill attempt to minimize any duplicationof control by incorporating applicablestandards from the Clean Air Act intothe RCRA permit. A permit may alsoinclude additional necessary conditionsimposed under RCRA authorities. Forexample, current standards under theClean Air Act may not address all typesof hazardous air emissions at treatment,storage, and disposal facilities.

One commenter also objected to theuse of "hazardous constituent" in§ 264.601. He preferred "hazardousconstituent of the waste." The Agencydid not change the wording "hazardousconstituent" because if the unit is onlymonitored for hazardous constituents ofthe waste, then hazardous constituentsof possible reaction products will goundetected.

Another commenter suggested thatsince most State air pollution controlregulations prohibit open burning butprovide an exemption for explosivewaste, the RCRA permitting of openburning should be limited to thoseexemptions or waivers. The Agencyagrees with this commenter and hasrestricted permitting of OB/OD toexplosive wastes.

One commenter indicated that a studyis being completed to identify andcharacterize emissions generated atmilitary OB/OD facilities. Thiscommenter suggested that the Agencyconsider the data, conclusions, andrecommendations from this study indetermining.the type of monitoringrequirements for OB/OD disposalactivities. The Agency intends to usethis information in developing a permitguidance document on OB/OD.

C. Section 264.602-Monitoring,Analysis, Inspection, Response,Reporting. and Corrective Action

Under § 264.602, each miscellaneouswaste management unit must have amonitoring program that includes, whereappropriate, a ground-water, surfacewater, soils, and air quality monitoringsystem. (Alternatives to ambient airmonitoring and analysis may includeanalysis of waste, emissionsmeasurements, and periodic monitoringwith portable detectors.) A monitoringprogram must include procedures forsampling, analysis, and evaluation ofdata, suitable response procedures, anda regular inspection schedule. Thisrequirement is intended to ensure thatthe permit specifies all monitoring,inspection, and response activities andthe frequency with which theseactivities are to be conducted. Includingthese specifications in the permit willrequire monitoring by the owner oroperator to prevent violation of permitrequirements and to prevent damage. Itwill also enable the oversight agency,through inspections and enforcement, toassess whether the unit is in compliancewith the permit and, therefore, with therequirements of § 264.601.

Since each miscellaneous unit coveredby this section may be distinctive in itsdesign, operation, and location, theAgency is leaving the specifications aswell as the extent of the monitoring,

inspection, and response program to theevaluation of the permitting official. At aminimum, the monitoring program for amiscellaneous unit should be capable ofdetermining the unit's impacts on groundwater in the uppermost aquifer, surfacewater, air quality, and the extent ofsurface and subsurface contaminantmigration, to ensure compliance with§ 264.601.

The-program should consider thefollowing: (1) The depth and location ofmonitoring wells or other samplingdevices necessary to obtainrepresentative samples of constituentsin various media; (2) the constituents tobe monitored and the frequency ofmonitoring; (3) procedures to maintainthe integrity of monitoring devices; (4)sample collection and preservationprocedures; (5) analytical methods usedfor sampling and analysis; (6) applicableprocedures for the evaluation of datafrom the monitoring program; and (7)appropriate response procedures forcases where the monitoring programindicates' that the unit is not incompliance with § 264.601.

The monitoring, inspection, andresponse program under a Subpart Xpermit will include requirements linkinginspections and monitoring of the unit tothe appropriate response. The Agencywill incorporate the Part 264 Subpart Fstandards for ground-water monitoring,protection,'and corrective action for -establishing a ground-water monitoringprogram at appropriate Subpart X units.

The owner or operator of eachmiscellaneous waste management unitcovered by this section must complywith the biennial reporting requirementsspecified under § 264.75. Theserequirements are the same as those ineffect for all hazardous waste treatment,storage,'and disposal facilities that arespecifically regulated under Part 264.

Under RCRA authority contained insections 3004 (u) and (v), the Agency isdeveloping standards for correctiveaction at facilities seeking a RCRApermit. EPA has already codified thegeneral obligation to perform correctiveaction for release from Solid WasteManagement Units (SWMUs) athazardous waste facilities (see 40 CFR264.101). In the interim, EPA will make adecision on appropriate correctiveactions for SWMUs on a case-by-casebasis in individual permit proceedings.These standards, scheduled to beproposed in late 1987, will be applicableto hazardous Waste management unitsincluding Subpart X units to the extentthat they can be applied withoutresulting in highly hazardous situationsor adverse cross-media contaminationand are technically feasible. Until these

46958 Federal Register / Vol. 52, No. 237 / Thursday, December 10, 1987 / Rules and Regulations




new standards are finalized, thecorrective action requirements in§ 264.101 apply to Subpart X.

One commenter suggested that theregulations relating to ground-water andsurface water monitoring are necessarybut should be clarified. The commenterfurther noted that for some operations(e.g., OB/OD] only some of the factorsneed to be addressed. Additionally, thiscommenter suggested that the scope ofthe requirements should be clarifiedwhen a more extensive analysis isindicated. In this commenter's opinion,the requirement in § 270.23(b) is overlybroad and the information necessary fordetailed assessments often will not beavailable. Thus, these assessments maybe prohibitively expensive if therequirement is broadly interpreted.Another commenter was concerned thatthe Agency is leaving the specifications,as well as the extent of the monitoring,inspection, and response requirements,to the evaluation of the permittingofficial.

The Agency agrees to some extentwith these commenters. If the Agencyprovides a comprehensive list of permitrequirements, it will be easier for bothpermit applicants and permit writers inaddressing the informationalrequirements. However, because of thediversity of the types of miscellaneousunits, it is impossible to identify specificinformation requirements for individualunits. Where applicable, the Agencyprefers that a permit applicant provide(a) detailed plans and engineeringreports; (b) hydrologic, geologic,atmospheric, and meteorologicassessments; (c) information on thepotential pathways of exposure ofhumans or environmental receptors andthe extent of exposure; and (d) closureand post-closure procedures. Inaddition, because the nature of each unitcan vary a great deal, any steps taken tomeet the requirements of the Subpart Xenvironmental performance standardsmust also be furnished.

One commenter was concerned thatthe Subpart F standards for ground-water monitoring are not mandated,carte blanche, but are used whereappropriate. He noted that in somesections it is clearly stated thatmiscellaneous units need not complywith Subpart F requirements, and that

* conversely, in other sections of therules, the Agency implies that the permitapplicant must comply with Subpart Fwhere ground-water monitoring isdeemed necessary. This commenter

* suggested that these inconsistenciesshould be clarified to require permitapplicants to establish a ground-watermonitoring program where it is

necessary to protect human health andthe environment. The Agency agreesand requires compliance with Subpart Fground-water monitoring requirementson a case-by-case determination whennecessary to protect human health andthe environment.

The monitoring, analysis, inspection,response, and reporting requirementsdescribed in this rule are designed to begeneric with the establishment of unit-specific requirements during thepermitting process. By providingspecifics for OB/OD units and geologicrepositories in permit guidance to bedeveloped, the Agency will identify unit-specific monitoring and analysis needs.

D. Section 264.603--Post-Closure CareIn addition to complying with the

appropriate post-closure standards ofSubpart G of Part 264 during the post-closure care period, owners andoperators of miscellaneous unitspermitted under Subpart X that disposeof hazardous wastes must continue tomeet the environmental performancestandards of § 264.601 that applied inthe operating period. This requirement isincluded to ensure that units used fordisposal are maintained properly afterclosure. It is also applicable to treatmentor storage units that cannot completelyremove or decontaminate soils orground water at closure.

Maintaining the unit during this periodmust be based upon procedures that arespecified in a written post-closure plan,as required in § 264.118. Whereappropriate, the post-closure plan mustinclude monitoring, response, andmaintenance procedures.

In response to post-closurerequirements, one commenterrecommended that the miscellaneousunit concept also be incorporated intoPart 265. He stated that this would allowfor the use of innovative technologiesduring closure of facilities with interimstatus. He also stated that oftenmaterials present at sites regulatedunder Part 265 must be treated as part ofthe closure activity and that preparationof a RCRA Part B permit application fornew activities at a facility can take up totwo years. He argued that someregulatory mechanism should beavailable for the amendment of a RCRAPart A permit to allow for new activitiesrelated to the closure of a site. Unlessthe miscellaneous unit concept isexpanded to Part 265 and an expeditiousprocedure is developed to amend Part Apermits, new technologies for treatinghazardous waste will be largelyunavailable to facilities closing underinterim status.

The Agency recognizes thecommenter's concern related to

innovative technologies developedunder interim status. This commenter isattempting to close a facility using aninnovative technology. If the commenteris developing a new technology to treathazardous waste at the facility beingclosed, or if he is demonstrating theapplication of a newly developedtechnology to treat hazardous waste,then this commenter may be able to usea research, development, anddemonstration permit under § 270.65,assuming that he meets all of therequirements of that section. Thepurpose of RD&D permits is to allow fortesting and demonstration of innovativeand experimental technologies,including the modification of existingtechnologies, if the technology isexperimental or innovative and thereare no permit standards for the activity.Cleanup of facilities may occur, incidentto testing and demonstration, under anRD&D permit. If the. activity does notqualify for an RD&D permit, then thefacility owner or operator must apply fora Subpart X permit.

The commenter stated that guidanceon what is meant by removing all"contamination," as well as other "howclean is clean" issues, would be usefulin closing Subpart X units. The Agency.agrees and is preparing a "cleanclosure" guidance for release in the fallof 1987 that will provide usefulinformation on one option for closure ofland-based units.

Another commenter suggested thatSubpart X should address closure ofmiscellaneous units in a fashion similarto that set forth in subparts relating totanks, landfills, waste piles, etc.Specifically, § 264.110 should beamended to reference Subpart X. A newsection in Subpart X should addressclosure and post-closure in languagesimilar to the analogous sections inSubparts I through 0.

The Agency disagrees with thiscommenter. Because of the uniquecharacteristics of the miscellaneousunits, the specific requirements given inSubparts I through 0 for closure andpost-closure are not necessarilyappropriate. Therefore, under § 264.603,these units must continue to complywith the appropriate post-closurestandards of Subpart G of Part 264 andthe environmental performancestandards of § 264.601 during the post-closure care period. However, for a unitthat resembles, by definition, one of theunits in Subparts I through 0, thosestandards may provide a starting pointin developing closure and post-closurerequirements for the miscellaneous unit.

In one commenter's opinion, requiring'post-closure c re if a facility cannot

Federal. Register / Vol. 52,



46960 'Federal Register .1 Vol. 52, No. 237 jI Thursday, December 10, -1987 / Rules and ;Regulations

.,remove all contaminated .soils ,orground water" .at closure is -undulyrestrictive and should be limited to toxicand hazardous constituents remainingatthe facility after closure at a leveldetermined to be a threat to humanhealth and the environment. In responseto this comment, the Agency, under aseparate action,.is developing a clean,closure guidance. In addition, theAgency in the preamble to .the March 19,1987, Part II, Federal Register sets forththe RCRA standards for "clean closure."

VI. Amendments 'to Part 270: PermitRequirements

A. General Permit RequirementsApplication and review requirements

for permitting hazardous wastemanagement facilities under RCRA arecontained in Part 270. All owners andoperators of units that treat, store, ordispose of hazardous waste inmiscellaneous units must obtain permitsunder Part 270 regulations. Subpart Xapplicants must comply with the generalapplication requirements, including PartA permit requirements, Part B generalapplication requirements of § 270.10,and Part B specific informationrequirements. Part.270 regulationsspecify what information ,owners andoperators of facilities must submit intheir permit applications to demonstratecompliance with the Part 264 standards(both the general standards in SubpartsA through E, G and H, F when required,and the specific standards in Subpart X).The general information requirements inPart 270 apply to all owners andoperators of miscellaneous units.

Most of the -comments specific to thepermit requirements indicated a need for(1) .standardization and acceleration -ofthe permitting process; (2) minimizationof the need for individual permits -byproviding an industry-specific variance,a class permit, or a special permit; and(3] an individual analysis of theapplicability -of permits and regulationsprior to .the permitting process. Somecommenters were concerned thatpermitwriters will be too autonomous, -and thattoo much specialization will be requiredto issue Subpart X permits effectively.This could complicate the permittingprocess by causing both a shortage ofqualified permit writers and increasedcosts to industry, as well as creating aninconsistency in the implementation ofthe permit standards by the writers.

The Agency has attempted to alleviateto some degree the commenters'concerns over the diverse permitrequirements in today's rule byproviding.a standard, generic permitrequirement for miscellaneous units.This standard permit requirement

incorporates Part 264's individualcompliance standards required underSubparts A through H, as well as thespecific standards in Subpart X. In theAgency's opinion, technical supportfrom the Permit Assistance Teams, anytechnology-specific permit :guidance,and the availability of detailedtechnology descriptions, engineeringreports, and information on monitoring,operational features, as well asmaintenance, inspection, analysis, andclosure procedures contained in thepermit application should provide thepermit writer with sufficient informationto effectively develop permits on themiscellaneous units.

One commenter suggested that theAgency should incorporate standardsdeveloped by'other agencies, such as theDepartment of Defense (DOD),Department of Energy (DOE), and theNuclear Regulatory Commission (NRC).Another commenter requested that ageneric permit application form forSubpart X units be developed. Othercomme'nters preferred a specificexemption for de minimis quantities ofwaste processed by certain unitsoperated by the explosives industry.Under RCRA, Small Quantity'Generators (SQG~s are providedexemption from the permittingrequirement in '§ 261. However, none ofthe treatment and disposal standardscontained in Part 264 provide exemptionfrom the permitting requirements formanaging de minimis quantities and theAgency has no authority to, nor does itsee any reason to exempt de minimisquantities.

The Agency regards these commentsas very constructive and hasincorporated portions of them in thedevelopment of today's rule. Forexample, in cooperation with theDepartment of the Army, the Agency isdeveloping a permit guidance for OB/OD. The Agency also intends to reviewDOE's and NRC's permitting standardsdeveloped for the disposal of nuclearwastes in salt domes and deactivatedmissile-silos. In the Agency's opinion,existing Part B permit application formsused for all other subparts of'Part 264are sufficient and provide adequatedetail. Hence, no specific permitapplication form for Subpart X units iswarranted. Although the Agency is notproviding specific Subpart X permitapplications, it is identifying the specificinformation requirements in thefollowing section.

Another commenter suggested that ttheAgency should concentrate onestablishing an information systemcapable of informing permit writers ofmiscellaneous units and providing up-to-

date information on what units 'havebeen permitted in various States andEPA regions. Inlhis judgment this wouldshorten the time spent "reinventing thewheel." The Agency welcomes thissuggestion and wants to point out thatthe Hazardous Waste 'Data ManagementSystem '(HWDMS) data base, eventhough not seen as a perfect informationdissemination tool, does serve thepurpose of data transfer among theStates, EPA regions, and EPAHeadquarters.

The HWDMS data 'base can beaccessed through 'the National 'ComputerCenter ,(NCC), Research Triangle Park,North Carolina, by the Headquarters,Regional, and State EPA officials ortheir approved contractors. This database provides hazardous wastegenerators and management facility-specific information:related to Parts Aand B permit status. For each type ofhazardous waste facility, detailedinformation is coded. The informationincludes Standard Industrial Codes(SIC); the -facility's name and address;the permit status; the quantities andtypes of wastes generated and managed;the types of treatment, storage, anddisposal methods and their capacities;and financial and ownership status. Thedata base is updated and revisedfrequently.

Currently, such a status-reportingmechanism is used by the Agency fortracking research, development, anddemonstration (RD&D) permits.Similarly, the Agency may provide thestatus of various Subpart X permits toPermit Assistance Teams [PAT) staffand permit writers. The intent of theSubpart Xunits' status reports is toprovide current information, such as (a]the types of units for which permitapplications are submitted, (b) the unit'spermit status, and :(c) a brief descriptionof the unit. 'This will allow variouspermit writers and PAT :staff in differentregions to permit 'similar unitsconsistently and efficiently.B. Specific Information Requirementsfor Miscellaneous Units In § 270.23

The specific information requirementsfor miscellaneous units included in§ 270.23 are intended to 'clarify anddefine the type of unit that is beingpermitted. The applicant must describethe unit, its physical characteristics,materials of construction, anddimensions. The bulk of the applicationis expected to contain detailed'plansand engineering reports describing howthe unit will be located, designed,constructed, operated, maintained,monitored, inspected, and closed tocomply with the requirements ,of




§ § 264.601 and 264.602. The plan should.include a detailed process description.

In developing the application, each ofthe environmental performancestandards must be assessed. Where thisassessment indicates that releases toair, surface water, or griound water arepossible, the applicant is expected toprovide detailed hydrologic, geologic,and meteorologic assessments and mapsfor the region surrounding the site.Applications for disposal units mustcontain a description of the plans tocomply with the post-closurerequirements of § 264.603.

The permit application mus t containinformation (a) on the potentialpathways of exposure 'to humans orenvironmental receptors of hazardouswaste or hazardous constituents and (b)on the potential magnitude and nature ofsuch exposures. In addition; for eachtreatment unit, any reports ondemonstrations of the effectiveness ofsimilar treatment based on laboratory,bench-scale, pilot-scale, or field datagathered under an RD&D permit shouldbe submitted.

If the unit to be permitted involves aninnovative or experimental wastetreatment process or technology whereinsufficient data are available to assessits effectiveness, if it is to bedemonstrated over a short period oftime, and if the technology will beconducted in a unit that meets the RD&Dcriteria, an RD&D permit may benecessary. For additional information onRD&D permits, refer to § 270.65 and EPAPublication No. EPA/530-SW-86-008,"Guidance Manual for Research,Development, and DemonstrationPermits Under 40 CFR Section 270.65." Ifthe demonstration is to be long term(i.e., may eventually be used as acommercial-scale treatment process) ordoes not meet the RD&D criteria, apermit may be obtained under SubpartX. Under certain circumstances, anRD&D permit may be necessary togather additional data that may berequired to fulfill Subpart X permit-related risk assessment needs. To gathersuch data the owner/operator can usethe RD&D permit as a vehicle todemonstrate the effectiveness of atechnology.

If a multi-stage demonstration projectis to be permitted under Subpart X, twopossible permitting options areavailable. First, a single permit thatcovers the entire demonstration couldbe written. As revisions are needed to apermit to reflect the outcome ofindividual stages, permit modificationscould be requested under 40*CFR 270.41and 270.42, provided the reason forrequesting a modification meets one ofthe criteria for modification in these

subparts. Alternatively, Where theoutcome of one stage may radicallychange the subsequent stages, a permitcould be obtained for this first stage. Atits completion, a permit could be issuedfor the subsequent stages. Each permitwould terminate with the completion ofa stage, and a new permit would beissued for the succeeding stage, basedupon an evaluation of the results of theconcluded stage. The exact permittingstrategy to be used Would be determinedby the permit writer, based upon thetype of treatment process and thedemonstration.

Under § 270.23, a detailed descriptionof the unit will be required specific tothe development of a unit's design,construction, location, operation,maintenance, inspection, and closure sothat it meets the requirements of theenvironmental performance standards.

One commenter was concerned overthe information requirements onpotential pathways of exposure ofhumans or environmental receptors tohazardous wastes or constituents. Hesuggested that knowledge of thepotential magnitude and nature' Of suchrequirements for every miscellaneousunit to be permitted under Subpart Xstandards may be unnecessary incertain cases. In his opinion,development of such extensive data forfate and transport studies would becost-prohibitive and time-consuming. Hefurther suggested that a petition processcould be instituted to demonstrate on acase-by-case basis an exemption fromsuch an information requirement.

As mentioned previously, a detailedrisk assessment is not necessary.However, at a minimum, the applicantmust identify the potential impacts ofhazardous constituents in differentmedia. If the preliminary assessmentconducted by the permit applicantindicates that releases to each of themedia are possible, the permit applicantmust further evaluate whether releaseswill occur and demonstrate ways tominimize the potential releases. Thisallows the permit writer to develop.specific monitoring, analysis, andreporting guidelines for each particularunit.

C. Conforming Changes

Conforming changes are in othersections of Part 270 to accommodate thenew, Subpart X regulations. The Agencyis not proposing to make changes to thePart 124 permit processing procedures.Issuance of permits for miscellaneousunits would be subject to Part 124 in thesame manner as other hazardous wastepermits.

VII. Applicability to State HazardousWaste Management Programs

A. Applicability of Rules in AuthorizedStates

Under section 3006 of RCRA, theAgency may authorize qualified Statesto administer and enforce the RCRAprogram within the State. (See 40 CFRPart 271 for the standards andrequirements for authorization.)Following authorization, the Agencyretains enforcement authority undersections 3008, 7003, and 3013 of RCRA,although authorized States have primaryenforcement responsibility.

Prior to the Hazardous and SolidWaste Amendments of 1984 (HSWA), aState with final authorizationadministered its own hazardous wasteprogram, rather than the Agencyadministering the federal program inthat State. The Federal requirements nolonger applied in the authorized State,and the Agency could not issue permitsfor any facilities that the State wasauthorized to permit. When new, morestringent Federal requirements werepromulgated or enacted, the State wasobliged to enact equivalent authoritywithin specified time frames. NewFederal requirements did not take effectin an authorized State until the Stateadopted the requirements as State law.

In contrast, under section 3006(g) ofRCRA, 42 U.S.C. 6927, new requirementsand prohibitions imposed by HSWAtake effect in authorized States at thesame time that they take effect innonauthorized States. The Agency isdirected to carry out those requirementsand prohibitions in authorized States,including the issuance of permits, untilthe State is granted authorization to doso. While States must still adoptHSWA-related provisions as State lawto retain final authorization. HSWAapplies in authorized States in theinterim.

B. Effect on State Authorizations

Today's announcement promulgatesstandards that are not effective in.authorized States because therequirements are not being imposedpursuant to HSWA. Thus, therequirements will be applicable only inthose States that do not have interim orfinal authorization. In authorized States,the requirements will not be applicableuntil the State revises its program toadopt equivalent requirements underState law.

Under 40 CFR 271.21(e)(2), States thathave final authorization must modifytheir programs to reflect equivalentrequirements and by July 1, 1989, mustsubmit the modifications to the Agency



46962 Federal Register / Vol. 152, ,No. 237 J Thursday, December 10, 1987 .1 Rules and Regulations

for approvaL This -deadline can beextended in certain cases (40 CFR 271.21(e)(3)). Once the Agency approves themodification, the 'State requirementsbecome Subtitle C RCRA requirements.

States with authorized RCRAprograms may already haverequirements.similar to those in today',srule. These State regulations have notbeen assessed against the federalregulations being promulgated today -todetermine whether they meet the testsfor authorization. Thus a-State is notauthorized to carry out requirements inlieu .ofthe.Agency until the Stateprogram modification is -ubmitted to .theAgency andapproved. Of course, Stateswith existing standards may continue .toadminister and enforce their standardsas a matter of State law.

States that submit their officialapplications for final authorization lessthan 12 months after the effective dateof these standards are not required toinclude equivalent standards in theirapplications. 1-lowever, they mustmodify their programs by the deadlinesset forth in 1 271.21(eJ. States thatsubmit official applications for finalauthorization 12 months after theeffective date of these standards mustinclude standards equivalent'to thesestandards in their applications. Therequirements a State must meet whensubmitting its final -authorizationapplication are set forth in 40,CFR 271.3.

The Agency is -precluded from issuingpermits ,to new units in Statesauthorized to implement RCRA in lieu -ofthe Agency. However, 40,CFR 264.1(f)(2)provides an-exception: wthe Agency mayissue permits in authorized States if-theunit was not regulated under RCRA atthe.time of theState's authorization andits standards for -permitting the unitwere promulgatedofter-the Statereceived final authorization. Thus,according to this provision, the Agencymay issue apermit.to:a new-facilityunder Subpart X in an authorized State.The Agency's permitting authoritywould cease, however, once the Statemodified its program, in accordancewith § 271.21(e), lo-eflect the FederalSubpart X standards.

VIII. Effective Dates

Today's rule is effective 30,days fromdate -of :publication [in compliance 'withsection 553(d) of the AdministrativeProcedures Act). -EPA believes that ithas a sound basis forsuspending thestatutory six-month effective date(RCRA Section 3010(b)) for thisregulatory amendment. Section 301 %blprovides that EPA may shorten theeffective date for good cause found,andpublished with the regulation. TheAgency believes that there 'is good -cause

to suspend this six-month periodbecause of the demand by the regulatedcommunity to apply for -and obtainSubpart X permits. Currently, personsare prohibited from building .newSubpart X facilities or expandingexisting interim status facilities that willbe covered under.Subpart X. Byshortening -the effective date of today'srule to 30 days, the Agency-enables suchpersons to obtain the necessary permitsexpeditiously. -Since such permits arenot required to be obtained within thesix-month period, shortening theeffective date will not burden theregulated community.

IX. Regulatory Analyses

A. Regulatory Impact AnalysisUnder 'Executive Order No. 12291, the

Agency must judge whether a regulationis "major" ,and thus subject to therequirement of a Regulatory ImpactAnalysis. The notice published today isnot major because the rule will notresult in an effecton the economy of$100 million or more, will -not result -inincreased costs or prices. will not havesignificant adverse effects oncompetition. employment, Investment,productivity, and innovation, and willnot significantly disrupt domestic orexport markets. Therefore, the Agencyhas not prepared a Regulatory.ImpactAnalysis under the Executive Order.

This regulation was submitted to theOffice of Management and Budget forreview as required by Executive OrderNo. 12291.

B. Regulatory Flexibility ActThe Regulatory Flexibility Act (5

U.S.C. 601 et seq.) requires'each Federalagency to consider the 'effects of theirregulations on small entities and -toexamine alternatives that may reducethese effects. With respect'to today'srule, there is no means -of anticipatingexactly how many -miscellaneous units,if -any, -will 'be owned and operated bysmall entities. In general, the Agencybelieves that the large amounts -ofcapital required and the technicalcomplexity -necessary to'establish safeand secure miscellaneous units willmean that larger entities willpredominate. Therefore, the Agencycertifies that this regulation will nothave a significant impact on asubstantial numberzof small entities.

C. Paperwork Reduction Act.The information collection

requirements contained in this rule havebeen approved by the-Office ofManagement and Budget,(OMB) underthe provisions of ithe PaperworkReduction Act of 1980, 44 U.S.C. 3501,et

seq. have been assigned OMB controlnumber 2050-0074; "

X. Supporting Documents

In preparing the final -rle, the Agencyhas used the -following major sources ofinformation. They'have been placed inthe rulemaking docket at U:S.Environmental Protection Agency, EPARCRA Docket {sub-lbasementi, 401 MStreet, SW., Washington, DC 20460. Thedocket is open from 9:00 a.m. to 4.'00p.m., Monday through Friday, -except forFederal holidays.-The public must makean appointment to reView docketmaterials by calling (202) 475-9327.

The major sources are: I- PublicComments on the November .7. 1986.proposal to regulate -miscellaneous units.All -the public comments received on theproposal are included in the docket atEPA Headquarters. These commentswere considered by EPA in developingtoday's finalrule.

2. Background Document: Subpart XComments and Responses, Versar Inc.(November 1987). This documentprovides the Agency's -response tospecific comments to the proposal.

List of Subjects

40 CFR Part 144

Administrative practice andprocedure, Hazardous materials, Wastetreatment and disposal.

40 CEFR Part 260

Administrative practice andprocedures, Confidential businessinformation, Hazardous materials,Waste treatment and disposal.

40 CFR Part 264

Hazardous material. Packaging andcontainers, Reporting requirements,Security measures, Surety bonds, Wastetreatment and -disposal.

40 CFR Part 270

Administrative practice andprocedures, Reporting andrecordkeeping requirements. H-azardousmaterials, Waste treatment anddisposal, Water pollution control. -Watersupply, Confidential businessinformation.

Date: -November 25,1987Lee M. Thomas,Administor.

Forthe reasons set out -in thepreamble, Parts 144.260,264, and 270 ofChapter- -of Title 40 of the -Code ofFederal Regulations are amended asfollows.




PART 144-UNDERGROUNDINJECTION CONTROL PROGRAM

1. The authority citation for Part 144continues to read as follows:

Authority: Pub. L. 93-523, as amended byPub. L. 95-190, Pub. L 96-63, Pub. L 96--502and Pub. L 99-339, 42 U.S.C. 300f et seq.

2. Section 144.31(a) is amended byadding the following sentence at the endof the paragraph to read as follows:

§ 144.31 Application for a permit;authorization by permit.

(a) * * * A RCRA permit applyingthe standards of Part 264 Subpart X willconstitute a UIC permit for hazardouswaste injection wells for which thetechnical standards in Part 146 are notgenerally appropriate.* * * * *

PART 260-HAZARDOUS WASTEMANAGEMENT SYSTEM: GENERAL

3. The authority citation for Part 260 isrevised to read as follows:

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

4. Section 260.10 is amended byadding the definition "MiscellaneousUnit" in alphabetical order and revisingthe definition "Landfill" to read asfollows:

§ 260.10 Definitions.* * . * .

"Landfill" means a disposal facility orpart of a facility where hazardous wasteis placed in or on land and which is nota pile, a land treatment facility, asurface impoundment, an undergroundinjection well, a salt dome formation, asalt bed formation, an undergroundmine, or a cave.

"Miscellaneous unit" means ahazardous waste management unitwhere hazardous waste is treated,stored, or disposed of and that is not acontainer, tank, surface impoundment,pile, land treatment unit, landfill,incinerator, boiler, industrial furnace,underground injection well withappropriate technical standards under40 CFR Part 146, or unit eligible for aresearch, development, anddemonstration permit under § 270.65.• * * * *

PART 264-STANDARDS FOROWNERS AND OPERATORS OFHAZARDOUS WASTE TREATMENT,STORAGE, AND DISPOSALFACILITIES

5. The authority citation for Part 264 isrevised to read as follows:

Authority: 42 U.S.C. 6905, 6912(a), 6924, and6925.

6. Section 264.10 is amended byrevising paragraph (b) to read asfollows:

§ 264.10 Applicability.* * • * *

(b) Section 264.18(b) applies only tofacilities subject to regulation underSubparts I through 0 and Subpart X ofthis part.

7. Section 264.15 is amended byrevising the last sentence of paragraph(b)(4) to read as follows:

§ 264.15 General Inspection requirements.* * * *o *

(b) * * *

(4) * * * At a minimum, the

inspection schedule must include theterms and frequencies called for in§ § 264.174, 264.194, 264.226, 264.253,264.254, 264.303, 264.347, and 264.602,where applicable.

8. Section 264.18 is amended byrevising the introductory text ofparagraph (b)(1)(ii) to read as follows:

§ 264.18 Location standards.* . * . .

(b) " " *(1) * *

(ii) For existing surfaceimpoundments, waste piles, landtreatment units, landfills, andmiscellaneous units, no adverse effectson human health or the environment willresult if washout occurs, considering:• * * * *

9. Section 264.73 is amended byrevising paragraph (b)(6) to read asfollows:

§ 264.73 Operating record.• * * *

(b) * "(6) Monitoring, testing or analytical

data, and corrective action whererequired by-Subpart F and § § 264.226,264.253, 264.254, 264.276, 264.278, 264.280,264.303, 264.309, 264.347, and 264.602;

10. Section 264.90 is amended byadding a new paragraph (d) to read asfollows:

§ 264.90 Applicability.* * * * ,

(d) Regulations in this subpart mayapply to miscellaneous units whennecessary to comply, with §§ 264.601through 264.603.

11. Section 264.111 is amended by.revising paragraph (c) to read asfollows:

§ 264.111 Closure performance standard.

(c) Complies with the closurerequirements of this subpart, including,but not limited to, the requirements of§ § 264.178, 264.197, 264.228, 264.258,264.280, 264.310, 264.351, and 264.601through 264.603.

12. Section 264.112 is amended byrevising paragraph (a)(2) to read asfollows:

§ 264.112 Closure plan; amendment ofplan.* * * * *

(a) * *

(2) The Director's approval of the planmust ensure that the approved closureplan is consistent with §§ 264.111through 264.115 and the applicablerequirements of § § 264.90 et seq.,264.178, 264.197, 264.228, 264.258, 264.280,264.310, 264.351, and 264.601. Until finalclsoure is completed and certified inaccordance with § 264.115, a copy of theapproved-plan and all approvedrevisions must be furnished to theDirector upon request, including requestby mail.

.13. Section 264.114 is amended byrevising the first sentence to read asfollows:

§ 264.114 Disposal or decontamination ofequipment, structures, and soils.

During the partial and final closureperiods, all contaminated equipment,structures, and soils must be properlydisposed of or decontaminated, unlessotherwise specified in §§ 264.228,264.258, 264.280, or 264.310, or under theauthority of § 264.601 and § 264.603.

14. Section 264.117 is amended byrevising paragraphs (a)(1)(i] and(a)(1)(ii) to read as follows:

§ 264.117 Post-closure care and use ofproperty.

(a) (1) * *

(i) Monitoring and reporting inaccordance with the requirements ofSubparts F, K, L, M, N, and X of thispart; and

(ii) Maintenance and monitoring ofwaste containment systems inaccordance with the requirements ofSubparts F, K, L, M, N, and X of thispart.

15. Section 264.118 is amended byrevising paragraphs (b)(1) and (b)(2)(i)and (b)(2)(ii) to read as follows:

§ 264.118 Post-closure plan; amendmentof plan.* * * * *




46964 Federal Register / Vol. 52, No. 237 / Thursday, December 10,

(b) * * *(1) A description of the planned

monitoring activities and frequencies atwhich they will be performed to complywith Subparts F, K, L, M,.N, and X ofthis part during the post-closure careperiod; and

(2) * *

(i) The integrity of the cap and finalcover or other containment systems inaccordance with the requirements ofSubparts F, K, L, M, N, and X of thispart; and

(ii) The functionof the monitoringequipment in accordance with therequirements of Subparts, F, K, L, M, N.and X of this part; and

16. Section 264.142 is amended byrevising the introductory text ofparagraph (a) to read as follows:

§ 264.142 Cost estimate for closure.(a) The owner or operator must have a

detailed written estimate, in currentdollars, of the cost of closing the facilityin accordance with the requirements in,§§ 264.111 through 264.115 andapplicable closure requirements in§ § 264.178, 264.197, 264.228, 264.258,264.280, 264.310, 264.351, and 264.601through 264.603.

17. Section 264.144 is amended byrevising the introductory text ofparagraph (a] to read as follows:

.§ 264.144 Cost estimate for post-closurecaie.

(a) The owner or operator of adisposal surface impoundment, disposalmiscellaneous unit, land treatment unit,or landfill unit, or of a surfaceimpoundment or waste pile requiredunder § § 264.228 and 264.258 to preparea contingent closure and post-closureplan, must have a detailed writtenestimate, in current dollars, of theannual cost of post-closure monitoringand maintenance of the facility inaccordance with the applicable post-closure regulations in § § 264.117 through264.120, 264.228, 264.258, 264.280, 264.310and 264.603.

Section 264.147 is amended byrevising the first sentence of paragraph(b) introductory text to read as follows:

§ 264.147 Uability requirements.

(b) Coverage for nonsuddenaccidental occurrences. An owner oroperator of a surface impoundment,landfill, land treatment facility, ormiscellaneous disposal unit that is usedto manage hazardous waste, or a groupof such facilities, must demonstratefinancial responsibility for bodily injury

and property damage to third partiescaused by nonsudden accidentaloccurrences arising from operations ofthe facility or group of facilities. * * ** * .* * *

19. Part 264 is amended by addingSubpart X consisting of §§ 264.600through 264.999 to read as follows:Subpart X-Miscellaneous UnitsSec.264.600 Applicability.264.601 Environmental performance

* standards.* 264.602 Monitoring, analysis, inspection,

response, reporting, and correctiveaction.

264.603 Post-closure care.264.604 through 264.999 [Reserved]

Subpart X-Miscellaneous Units

§ 264.600 Applicability.The requirements in this subpart

apply to owners and operators offacilities that treat, store, or dispose ofhazardous waste in miscellanenousunits, except as § 264.1 provide

* otherwise.

§ 264.601 Environmental performancestandards.

A miscellaneous unit must be located,designed, constructed, operated,maintained, and closed in a manner thatwill ensure protection of human health

* and the environment. Permits formiscellaneous units are to contain such

-terms and provisions as necessary toprotect human health and the

_ environment, including, but not limitedto, as appropriate, design and operatingrequirements, detection and monitoringrequirements, and requirements forresponses to releases of hazardouswaste or hazardous constituents fromthe unit. Permit terms and provisionsshall include those requirements ofSubparts I through 0 of this part, Part270, and Part 146 that are appropriate for

* the miscellaneous unit being permitted.Protection of human health and the

i environment includes, but is not limitedto:

(a) Prevention of any releases thatmay have adverse effects on humanheath or the environment due to

* migration of waste constituents in theground water or subsurfaceenvironment, considering:

(1) The volume and physical andchemical characteristics of the waste inthe unit. including its potential formigration through soil, liners, or othercontaining structures;

(2) The hydrologic and geologiccharacteristics of the unit and thesurrounding area;

(3) The existing quality of groundwater, including other sources of

contamination and their cumulative:impact on the ground water;

(4) The quantity and direction ofground-water flow;

(5) The proximity to and withdrawalrates of current and potential ground-water use'b,

(6) The patterns of land use in theregion; .

(7) The potential for deposition ormigration of waste constituents intosubsurface physical structures, and intothe root zone of food-chain crops andother vegetation;

(8) The potential for health riskscaused by human exposure to. wasteconstituents; and

(9) The potential for damage todomestic animals, wildlife, crops,vegetation, and physical structurescaused by exposure to wasteconstituents;

(b) Prevention of any releases thatmay have adverse effects on humanhealth or the environment due tomigration of Waste constituents insurface water, or wetlands or on the soilsurface considering:

(1) The volume and physical andchemical characteristics of the waste inthe unit;

(2) The effectiveness and reliability ofcontaining, confining, and collectingsystems and structures in preventingmigration;

(3) The hydrologic characteristics ofthe unit and the surrounding area,including the topography of the landaround the unit;

(4) The patterns of precipitation in theregion;

(5) The quantity, quality, and directionof ground-water flow;

(6) The proximity of the unit to surfacewaters;

(7) The current and potential uses ofnearby surface waters and any waterquality standaids established for thosesurface waters;

(8) The existing quality of surfacewaters and surface soils, including othersources of contamination and theircumulative impact on surface watersand surface soils;

(9) The patterns of land use in theregion:

(10) The potential for health riskscaused by human exposure to wasteconstituents; and

(11) The potential for damage todomestic animals, wildlife, crops,vegetation, and physical structurescaused by exposure to wasteconstitutents.

(c) Prevention of any release that mayhave adverse effects on human health orthe environment due to migration of

1987 /' Rues'and Regulations



Federal Register / Vol. 52, No. 237 / Thursday, December '10, 1987 / Rules and Regulations 46965

waste constituents in th6 air,considering: .

(1) The volume and physical andchemical characteristics of the waste inthe unit, including its-potential for theemission and dispersal of gases,aerosols and particulates;

(2) The effectivenessand reliability ofsystems and structures to reduce orprevent emissions of hazardousconstituents to the air;

(3) The operating characteristics of theunit;

(4) The atmospheric, metorologic, andtopographic characteristics of the unitand the surrounding area;

(5) The existing quality of the air,including other sources of contaminationand their cumulative impact on. the air;

(6) The potential for health riskscaused by human exposure to wasteconstituents; and

(7) The potential for damage todomestic animals, wildlife, crops,vegetation, and physical structurescaused by exposure to wasteconstituents.

§ 264.602 Monitoring, analysis, Inspection,response, reporting, and corrective action.

Monitoring, testing, analytical data,inspections, response, and reportingprocedures and frequencies must ensurecompliance with § § 264.601, 264.15,264.33, 264.75, 264.76, 264,77, and 264.101as well as meet any additionalrequirements needed to protect humanhealth and the environment as specifiedin the permit.

§ 264.603. Post-closure care.A miscellaneous unit that is a disposal

unit must be maintained in a mannerthat complies with § 264.601 during thepost-closure care period. In addition, if atreatment or storage unit hascontaminated soils or ground water thatcannot be completely removed ordecontaminated during closure, thenthat unit must also meet therequirements of § 264.601 during post-closure care. The post-closure planunder § 264.118 must specify the

procedures that will be used to satisfythis requirement.

§§ 264.604 through 264.999 [Reserved]

PART 270-EPA ADMINISTEREDPERMIT PROGRAMS: THEHAZARDOUS WASTE PERMIT .

PROGRAM

20. The authority citation for Part 270is revised to read as follows:

Authority: 42 U.S.C. 6905, 6912, 6925, 6927,6939, and 6974.

21. Section 270.14 is amended byrevising paragraphs (b)(5) and (b)(13) toread as follows:

§ 270.14 Contents of Part B: Generalrequirements.,* * * *r *

(b) * * *

(5) A copy of the general inspectionschedule required by § 264.15(b).Include, where applicable, as part of theinspection schedule, specificrequirements in § § 264.174, 264.194,264.226, 264.254, 264.273, 264.303, and264.602.

(13) A copy of the closure plan and,where applicable, the post-closure planrequired by §§ 264.112 and 264.118.Include, where applicable, as part of theplans, specific requirements in§ § 264.178, 264.197, 264.228, 264.258,264.280, 264.310, 264.351, 264.601, and264.603.

22. Part 270 is amended by adding anew § 270.23 to Subpart B to read asfollows:§ 270.23 Specific Part B Information

requirements for miscellaneous units.

Except as otherwise provided in§ 264.600, owners and operators offacilities that treat, store, or dispose ofhazardous waste in miscellaneous unitsmust provide the following additionalinformation:

(a) A detailed description of the unitbeing used or proposed for use,including the following:

(1) Physical characteristics, materialsof construction, and dimensions of the'unit;

(2) Detailed plans and engineeringreports describing how the unit will belocated, designed, constructed, operated;maintained, monitored, inspected, andclosed to comply with the requirementsof §§ 264.601 and 264.602; and

(3) For disposal units, a detaileddescription of the plans to comply withthe post-closure requirements of§ 264.603.

(b) Detailed hydrologic, geologic, andmeteorologic assessments and land-usemaps for the region surrounding the sitethat address and ensure compliance ofthe unit with each factor in theenvironmental performance standardsof § 264.601. If the applicant candemonstrate that he does not violate the'environmental performancestandardsof § 264.601 and the Director agrees withsuch demonstration, preliminaryhydrologic, geologic, and meteorologicassessments will suffice.

(c) Information on the potentialpathways of exposure of humans orenvironmental receptors to hazardouswaste or hazardous constituents and onthe potential magnitude and nature ofsuch exposures.

(d) For any treatment unit, a report ona demonstration of the effectiveness ofthe treatment based on laboratory orfield data.

(e) Any additional informationdetermined by the Director to benecessary for evaluation of complianceof the unit with the environmentalperformance standards of § 264.601.

(The information requirements in this sectionhave been approved by the Office ofManagement and Budget and assigned OMBControl Number 2050-0074.)

§§ 270.24 through 270.29 [Reserved].[FR Doc. 87-27997 Filed 12-9-87; 8:45 am]BILLING CODE 6560-50-M

