issue-1996-04-29•Federal Register proposed rules — 1996-04-29
Federal Register proposed rules — 1996-04-29
issue-1996-04-29Federal Register proposed rules — 1996-04-29Proposed Regulation
Published Federal Register documents, not public-inspection drafts. The GPO XML/text rendition is a research aid; the linked complete official PDF retains the printed layout and all graphics. Graphics are retained in that PDF and are not independently reproduced in this text rendition. Publication does not establish that every provision remains legally in force.
FR Doc. 96-10548 Commercial Driver Physical Qualifications As Part of the Commercial Driver's License Process
[Federal Register Volume 61, Number 83 (Monday, April 29, 1996)]
[Proposed Rules]
[Pages 18713-18717]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-10548]
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FEDERAL COMMUNICATIONS COMMISSION
DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
49 CFR Parts 383 and 391
[FHWA Docket No. MC-93-23]
RIN 2125-AD20
Commercial Driver Physical Qualifications As Part of the
Commercial Driver's License Process
AGENCY: Federal Highway Administration (FHWA), DOT.
ACTION: Notice of intent to form a Negotiated Rulemaking Committee on
Commercial Driver's License (CDL) and Physical Qualifications
Requirements.
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SUMMARY: The FHWA proposes to establish a negotiated rulemaking
advisory committee (the Committee) under the Federal Advisory Committee
Act and the Negotiated Rulemaking Act to consider the relevant issues
and attempt to reach a consensus in developing regulations governing
the proposed merger of the State-administered commercial driver's
license procedures and the driver
[[Page 18714]]
physical qualifications requirements of 49 CFR Part 391. The Committee
would be composed of people who represent the interests that would be
substantially affected by the rule.
The FHWA invites interested parties to comment on the proposal to
establish the Committee and on the proposed membership of the
Committee, and to submit applications or nominations for membership on
the Committee.
DATES: Interested parties may file comments and nominations for
committee membership on or before May 29, 1996.
ADDRESSES: Comments and/or nominations should be sent to FHWA Docket
No. MC-93-23, Room 4232, HCC-10, Office of Chief Counsel, Federal
Highway Administration, 400 Seventh Street, SW., Washington, D.C.
20590. All comments received will be available for examination at the
above address from 8:30 a.m. to 3:30 p.m. e.t., Monday through Friday,
except Federal holidays. Those desiring notification of receipt of
comments must include a self-addressed, stamped postcard/envelope.
FOR FURTHER INFORMATION CONTACT: Ms. Teresa Doggett, Office of Motor
Carrier Research and Standards, (202) 366-4001, or Ms. Grace Reidy,
Office of Chief Counsel, (202) 366-0834, Federal Highway
Administration, 400 Seventh Street, SW., Washington, D.C. 20590. Office
hours are from 7:45 a.m. to 4:15 p.m. e.t., Monday through Friday,
except Federal holidays.
SUPPLEMENTARY INFORMATION:
Background
The Secretary of Transportation has authority to establish
standards for physical qualifications that must be met by drivers in
interstate commerce. 49 U.S.C. 31502 and 49 U.S.C. 31136. This
authority is delegated to the Federal Highway Administrator. 49 CFR
1.48. The Federal Motor Carrier Safety Regulations (FMCSRs) set forth
the qualifications of drivers who operate commercial motor vehicles
(CMV) in interstate commerce. 49 CFR 391.11. The Commercial Motor
Vehicle Safety Act of 1986 (CMVSA) provides, in section 12005(a)(8) (49
U.S.C. 31305(a)(8)), that Federal standards may be promulgated to
require issuance of a certification of fitness to operate a CMV to each
person who passes a CDL test and may require such person to have a copy
of such certification in his or her possession whenever operating a
CMV.
In September 1990, the FHWA explored options for giving
responsibility for medical qualification determinations to the State
licensing agencies as part of the CDL process. Six States--Alabama,
Utah, Arizona, North Carolina, Indiana and Missouri--began pilot
programs seeking efficient ways to assure that commercial motor vehicle
drivers meet the Federal physical qualifications requirements before
they are issued a license. The pilots were developed by the FHWA and
its contractors, the Association for the Advancement of Automotive
Medicine and the American Association of Motor Vehicle Administrators,
in conjunction with a committee of State government licensing
officials.
The pilot projects were completed on January 31, 1995, and a final
report was submitted to the agency. The report revealed that the State
driver licensing agencies demonstrated the potential to assume
responsibility for commercial motor vehicle driver medical
qualification determinations as part of the CDL process. However, some
States indicated they would require enabling legislation and additional
funding to administer the process.
Currently, the FMCSRs require that CMV drivers be medically
examined and certified as physically qualified once every two years in
order to operate in interstate commerce. If the driver meets the
Federal physical qualifications requirements, a medical examiner then
issues a medical certificate which indicates that the driver is
qualified to drive. Drivers must carry this certificate while driving
and employers must maintain a copy in the drivers' qualification files.
49 CFR 391.41(a), 391.43, 391.45 and 391.51(b)(1). Enforcement of these
requirements is performed primarily through roadside inspections of
vehicles and drivers or through Federal or State safety compliance
reviews of motor carriers.
In addition, 49 CFR 383.71(a) requires that during the CDL
application process a person who operates or expects to operate in
interstate or foreign commerce, or is otherwise subject to 49 CFR Part
391, shall certify that he or she meets the qualification requirements
contained in 49 CFR Part 391. In practice, some States rely solely on
the drivers' certifications while other States also require drivers who
certify that they meet the qualification requirements of Part 391 to
produce the required medical certificate in order to be issued a CDL.
Before issuing the CDL, a few States also review the medical ``long
form'' that the medical examiner completes to assure that the
regulatory requirements are met.
The FHWA issued an advance notice of proposed rulemaking
(ANPRM)(copy enclosed in Docket File) on July 15, 1994, requesting
comments on merging the CDL and physical qualifications programs. 59 FR
36338. The FHWA stated in the ANPRM that merging the systems would
allow the States to make the physical qualification determinations
prior to issuing a CDL. Under such an approach, the CDL would then be
the sole document a commercial driver would have to carry and would be
evidence that a driver is medically qualified to operate the CMV.
The proposal to merge the medical fitness determination into the
CDL process has several very strong potential benefits. Drivers would
be relieved of the responsibility to carry a medical fitness card, thus
eliminating the potential for such cards to be inadvertently lost,
damaged or destroyed. Enforcement personnel would also have immediate
notice of the medical fitness status of a driver, without the time-
consuming need to refer to and authenticate a separate document.
Carriers would no longer need to maintain driver medical qualification
certificates, as the license document itself would confirm the fitness
of the driver.
In addition, States would be better able to identify unqualified
drivers that currently operate without medical cards or with forged
medical cards. Where questions exist regarding a license applicant, the
driver licensing agency could refer the applicant and the medical
fitness form to the State medical advisory board for further review.
Medical advisory boards are currently in place in many States and are
used to review medical qualifications of passenger car drivers and for
intrastate CMV operators. The agency understands that forty-seven
States currently have either a medical advisory board or some kind of
medical review process for the above-described driver licensing
determinations. In this rulemaking, the FHWA proposes to include
medical determinations involving interstate CMV drivers in existing
State medical review infrastructure programs by taking advantage of
established working practices that are prevalent within State licensing
agencies.
The results of the six-State pilot program provide support for the
benefits of this proposal. The final report found that drivers who did
not meet current medical standards could be readily detected and could
be restricted from driving CMVs entirely or within parameters set by
the driver licensing agency and its medical advisory board. Medical
examiners would be able to contact the driver licensing agency medical
unit or medical advisory board if questions arose during a physical.
The
[[Page 18715]]
review of the fitness qualifications as part of the licensing process
streamlines the procedure and creates a single record for each driver.
The pilot found that fraudulent or expired medical certifications and
the lack of required medical certifications of drivers did not exist in
the six participating States.
In the ANPRM, the FHWA asked interested parties to comment on
specific issues including the feasibility of the ``merger'' concept;
how best to achieve such a system; how to reconcile the differences
between the States' four-year CDL renewal cycle with the FHWA's two-
year medical certificate cycle; whether medical examiners should be
certified to perform examinations; the degree of flexibility States
should have in determining how to implement any new, merged standard;
and the types of resources required by States to implement a new,
merged standard. Seventy-six parties responded to the notice, including
State agencies, for-hire motor carriers, private carriers, safety
advocates, and medical groups.
The responses received from commenters to the ANPRM generally
involved one of five general issues. Because the parties likely to be
interested in this proposed regulation (i.e., State licensing agencies,
carriers, drivers, medical professionals) are fairly well defined, and
the issues identified through the ANPRM are also well defined, the
agency believed that this proposed rulemaking would be a good candidate
for negotiated rulemaking. The range of interested parties and issues
to be addressed are not the only reasons for the decision to initiate a
negotiated rulemaking. The agency is enthusiastic about the opportunity
to work cooperatively with partners in the motor carrier community at
large to discuss this issue and approaches to resolving it in an open
exchange of ideas. The opportunity to engage in face-to-face discussion
of concerns and benefits will hopefully allow for a creative,
cooperative approach to addressing the merger of medical fitness and
licensing decisions.
As referenced earlier, the five general issues identified by the
respondents to the ANPRM were: (1) whether States would have statutory
authority to verify the physical qualifications of a driver; (2)
whether there will be adequate staff available to verify drivers'
compliance with physical qualifications requirements at the time a
license is issued; (3) the feasibility of merging the two-year medical
certificate with the States' four-year licensing cycle; (4) the motor
carrier's role in assuring physical qualifications of the driver; and
(5) the cost of training licensing examiners and/or staffing medical
review boards on the administration of the process.
Comments on the ANPRM included questions on the potential costs to
States of assuming responsibility for verifying medical fitness as part
of CDL issuance or renewal. Some carriers expressed concern that
licensing agencies would be unable to adequately confirm information on
the medical form and suggested that the current carrier responsibility
for driver fitness be maintained. The agency believes that the results
of the six-State pilot program indicate a strong likelihood that States
can assume responsibility for the medical fitness determination
process. This rulemaking will form the basis for addressing the
questions raised by respondents to the ANPRM, as well as other issues
that may be identified as this process continues.
Pursuant to the Negotiated Rulemaking Act, 5 U.S.C. 561-570, the
agency has decided to form a negotiated rulemaking committee. As
discussed earlier, the agency believes that this approach is most
likely to lead to an efficient and successful transfer of
responsibility for medical fitness determinations to State licensing
agencies. Unlike traditional, informal notice and comment rulemaking,
this process will allow for the open exchange of ideas and information
among and between parties with an interest in the outcome of this
issue. The agency believes that in adopting this approach, the process
will lead to creative, innovative approaches to resolving issues that
might not emerge through the individual efforts of commenters to a
docket. The process will still result in the promulgation of a notice
of proposed rulemaking. This will provide an opportunity for comment by
other interested parties and the general public, but the initial
proposal that will be published for comment will reflect the exchange
of ideas and differing proposals that occur in negotiations. One result
of the negotiations will be a better informed commercial motor vehicle
safety community with a fuller understanding of the benefits and
potential problem areas associated with State verification of medical
fitness determinations. This knowledge should help all parties,
including the agency, to develop a more practical, effective means of
dealing with these medical fitness determinations.
Negotiated Rulemaking Process
Conveners
As provided for in 5 U.S.C. 563(b), a convener assists the agency
in identifying the persons or interests that would be significantly
affected by the proposed rule. The convener conducts discussions with
representatives of such interests to identify the issues of concern to
them and to ascertain the feasibility of establishing a negotiated
rulemaking committee.
The FHWA retained the services of a contractor to act as a convener
and provide advice on the feasibility of using a negotiated rulemaking
process for this rule. The convening team met with FHWA officials to
review background information on the issues, including the responses to
the ANPRM, potential interested parties, and objectives of the agency.
Prior to conducting interviews with prospective participants, the
convening team analyzed the views of the various respondents to the
ANPRM and the level of controversy generated by the issues as outlined
in the ANPRM.
The conveners attempted to develop the range of interests that
would be affected by the rule and identify individuals who would be
able to represent or articulate those interests. The conveners then
sought to interview those individuals to determine their views on the
issues involved and whether they would be interested in participating
in the negotiated rulemaking. The convening team sought to determine
whether the negotiated rulemaking process would be effective in
developing the rule. Each party was also asked if there were other
individuals or groups which should be contacted and these additional
parties were also interviewed. Based upon these interviews, the
conveners submitted a convening report (copy enclosed in Docket File)
in December 1995 to the FHWA, recommending that the agency proceed with
the negotiated rulemaking process.
Determination of Need for Negotiated Rulemaking Committee
The purpose of a negotiated rulemaking committee is to develop
consensus on a proposed rule. ``Consensus'' means the unanimous
concurrence among the interests represented on the negotiated
rulemaking committee unless the committee explicitly adopts some other
definition. This requirement also means that the agency itself
participates in the negotiations in a manner similar to that of any
other party.
[[Page 18716]]
Before establishing such a negotiated rulemaking committee, the
Negotiated Rulemaking Act (5 U.S.C. 563(a)) directs the head of an
agency to consider whether:
1. There is a need for the rule;
2. There are a limited number of identifiable interests that will
be significantly affected by the rule;
3. There is a reasonable likelihood that a committee can be
convened with a balanced representation of persons who can adequately
represent those interests and are willing to negotiate in good faith to
reach a consensus on a proposed rule;
4. There is a reasonable likelihood that a committee will reach
consensus on the proposed rule within a fixed period of time;
5. The negotiated rulemaking will not unreasonably delay the
issuance of the notice of proposed rulemaking and the final rule;
6. The agency has adequate resources and is willing to commit such
resources, including technical assistance, to the committee; and
7. The agency, to the maximum extent possible, consistent with its
statutory authority and legal obligations, will use the consensus of
the committee as the basis for the rule proposed by the agency for
notice and comment.
The FHWA believes that all of the requisite negotiated rulemaking
factors are satisfied with regard to the proposal to merge the medical
qualification determination and the CDL processes and that the
negotiating process could provide significant advantages over
conventional informal rulemaking. This determination is based on the
review of the comments to the ANPRM and the convener's report submitted
by the contractor. There is broad consensus among the parties contacted
by the conveners that there are weaknesses in the current medical
qualifications system that can be improved. The potentially affected
interests are limited in number; there are clearly fewer than 25
distinct interests that would be affected by the rule. A balanced
committee representing the various interests at stake in this matter
can be empaneled. The parties contacted by the conveners have expressed
their interests in discussing the issues and believe that there is a
strong likelihood of reaching consensus on the issues within a
reasonable period of time. The FHWA believes that these negotiations
will not delay, but will expedite the rulemaking process since the
negotiations will enable the agency to benefit from the committee
members' practical first-hand insights and knowledge into the operation
of the physical qualifications determinations and the benefits and
costs of integrating those determinations into the licensing process.
Gaining those insights and resolving the controversies surrounding the
identified issues would otherwise take the agency considerably longer
to resolve by using traditional rulemaking. The agency is committed to
facilitating the negotiated rulemaking process and will devote the
necessary resources, including technical assistance, to the Committee.
The member or members of the Committee representing the agency shall
participate in the deliberations and activities of the Committee with
the same rights and responsibilities as other members of the Committee,
and shall be authorized to fully represent the agency in discussions
and negotiations of the Committee. The agency, to the maximum extent
possible, consistent with its statutory authority and legal
obligations, will use the consensus of the Committee as the basis for
the rule proposed by the agency for notice and comment.
Therefore, based on this analysis of the seven factors mentioned
above, the agency has concluded that the use of the negotiated
rulemaking procedure in this case is in the public interest.
Potential Topics for the Negotiated Rulemaking Process
Based on the interviews conducted with potential committee members
and the report provided by the convener, the FHWA proposes that the
following issues would be considered in the negotiated rulemaking
process.
1. Whether the physical qualifications guidelines currently used by
the agency should be modified to more effectively implement the current
medical standards.
2. The scope of any medical qualifications tracking system which
might be used by law enforcement officials, as well as by carriers
interested in medical information that is not currently available.
3. What is the status of the various federally-funded State
Prototype Medical Review pilot programs which explored the merger of
the medical qualifications and licensing processes, and what useful
information can be utilized from these efforts in drafting a rule on
merging CDL and physical qualifications requirements?
4. How much control should various parties have over the medical
review process and should the current commonly-used procedure, in which
a company directs its drivers to physicians it selects, be replaced
entirely or could it simply be modified? For example, should the agency
require drivers to submit a medical long form to employers and the
appropriate State licensing agency instead of replacing the current
system?
5. How can the current physical examination requirements used by
medical providers be clarified? How can these requirements and
guidelines be more effectively communicated to the medical provider
community?
6. Is there a way to allow merger of the separate requirements
without burdening the small operator who moves to another State? In
this case, although the driver's medical certification would still be
valid, he or she might still be required to be recertified in the new
State, thus potentially requiring a new certificate and a corresponding
fee (e.g. medical reciprocity of old certificate to new States).
Once the negotiated rulemaking process begins, Committee members
may raise other issues necessary for successful completion of the
rulemaking.
Potential Participants Who Were Interviewed By Conveners
The following entities were identified as interested parties that
should be included in the negotiated rulemaking process either directly
as members of the Committee or as a part of a broader caucus of similar
or related interests:
Enforcement Groups
Commercial Vehicle Safety Alliance
International Association of Chiefs of Police
State Licensing Agencies
American Association of Motor Vehicle Administrators
Carriers
American Trucking Associations
National Private Truck Council
National School Transportation Association
United Bus Motor Coach Association
American Bus Association
Terra International (Agricultural)
Farmland Industries (Agricultural)
Drivers
Owner-Operators Independent Drivers Association
Independent Truckers and Driver Association
Independent Truck Owner Operator Association
International Brotherhood of Teamsters
Public Interest
Advocates for Highway and Auto Safety
American Automobile Association
[[Page 18717]]
Medical
American College of Occupational and Environmental Medicine
Association for the Advancement of Automotive Medicine
American Association of Occupational Health Nurses
Insurance
Lancer Insurance (Busing Interests)
AI Transportation--AIG (Busing and Trucking)
Insurance Institute for Highway Safety
Proposed Agenda and Schedule
The FHWA anticipates that the negotiated rulemaking committee will
hold six two-day meetings, approximately once a month. The first
committee meeting will focus on such matters as: determining if there
are additional interests that should be represented on the Committee;
identifying issues to be considered; and setting ground rules, a
schedule, and an agenda for future Committee meetings.
Administrative Support
The FHWA's Office of Motor Carrier Research and Standards will
supply logistical, technical, and administrative support to the
Committee. The meetings will be held at the FHWA headquarters in
Washington, D.C. Washington, D.C. is where a majority of the
prospective Committee members are located. In general, Committee
members will be responsible for their own expenses, but the FHWA will
consider requests for compensation in accordance with 5 U.S.C. 568(c).
Applications for Membership on Committee
The FHWA is soliciting comments on this proposal to establish a
negotiated rulemaking advisory committee and on the proposed membership
of the Committee. Persons may apply or nominate another person for
membership on the Committee in accordance with the following
procedures:
Persons who will be significantly affected by the proposed rule and
who believe that their interests will not be adequately represented by
any person on the previously discussed list of potential participants
may apply for, or nominate another person for, membership on the
negotiated rulemaking committee. Each application or nomination shall
include:
1. the name of the applicant or nominee and a description of the
interests such person shall represent;
2. evidence that the applicant or nominee is authorized to
represent parties related to the interests the person proposes to
represent;
3. a written commitment that the applicant or nominee shall
actively participate in good faith in the development of the rule under
consideration; and
4. the reasons that the persons specified in this notice do not
adequately represent the interests of the person submitting the
application or nomination.
Announcement of FHWA Public Meeting
In order to identify and select organizations or interests to be
represented on the Committee, the FHWA will hold a public meeting on
May 14, 1996. The meeting will be held at the Nassif Building, 400 7th
Street, SW, Room 9230, Washington, D.C., at 8:30 a.m. e.t. All parties
interested in this rulemaking, including the potential participants
listed above and parties submitting applications or nominations for
membership, are encouraged to attend this meeting. The convener/
facilitator will also attend this organizational meeting.
As a general rule, the Federal Advisory Committee Act provides that
no advisory committee may meet or take any action until an approved
charter has been filed with the appropriate House and Senate committees
with jurisdiction over the agency using the committee. Only upon the
Secretary of Transportation's approval of the charter and the list of
organizations or interests to be represented on the Committee and the
filing of the charter will the FHWA form the Committee and begin
negotiations.
After review of the comments received in response to this notice
and any additional comments received at the organizational meeting, the
FHWA will issue a final notice announcing the Committee members and the
date of the first Committee meeting.
Authority: [5 U.S.C. 561-570].
Issued on: April 23, 1996.
Rodney E. Slater,
Federal Highway Administrator.
[FR Doc. 96-10548 Filed 4-26-96; 8:45 am]
BILLING CODE 4910-22-P
Complete official Federal Register PDF
FR Doc. 96-10524 Migratory Bird Harvest Information Program; Participating States for the 1996-97 Season
[Federal Register Volume 61, Number 83 (Monday, April 29, 1996)]
[Proposed Rules]
[Pages 18936-18938]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-10524]
[[Page 18935]]
_______________________________________________________________________
Part IX
Department of the Interior
_______________________________________________________________________
Fish and Wildlife Service
_______________________________________________________________________
50 CFR Part 20
Migratory Bird Harvest Information Program: Participating States;
Proposed Rule
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 /
Proposed Rules
[[Page 18936]]
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 20
RIN 1018-AD73
Migratory Bird Harvest Information Program; Participating States
for the 1996-97 Season
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
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SUMMARY: The Fish and Wildlife Service (hereinafter Service) herein
proposes to amend the Migratory Bird Harvest Information Program
(hereinafter Program) regulations. The Service plans to add Alabama,
Georgia, Idaho, Illinois, Maine, Minnesota, Mississippi, Pennsylvania,
Tennessee, and Vermont (beginning with the 1996-97 hunting season) to
the list of participating States. This regulatory action will continue
to require all licensed hunters who hunt migratory game birds in
participating States to register as migratory game bird hunters and
provide their name, address, and date of birth to the State licensing
authority. Hunters will be required to have evidence of current
participation in the Program on their person while hunting migratory
game birds in participating States. The quality and extent of
information about harvests of migratory game birds must be improved in
order to better manage these populations. Hunters' names and addresses
are necessary to provide a sample frame for voluntary hunter surveys to
improve harvest estimates for all migratory game birds. States will
gather migratory bird hunters' names and addresses and the Service will
conduct the harvest surveys.
DATES: The written comment period for the proposed rule will end on May
29, 1996.
ADDRESSES: Written comments should be sent to the Chief, Office of
Migratory Bird Management, U.S. Fish and Wildlife Service, 10815
Loblolly Pine Drive, Laurel, Maryland 20708-4028. Comments received
will be available for public inspection during normal business hours in
Building 158, 10815 Loblolly Pine Drive (Gate 4, Patuxent Environmental
Science Center), Laurel, Maryland 20708-4028.
FOR FURTHER INFORMATION CONTACT: Larry J. Hindman, Office of Migratory
Bird Management, U.S. Fish and Wildlife Service, P.O. Box 68, Wye
Mills, Maryland 21679, (410) 827-8612, FAX (410) 827-5186.
SUPPLEMENTARY INFORMATION: The purpose of this rule is to expand the
Program to include the States of Alabama, Georgia, Idaho, Illinois,
Maine, Minnesota, Mississippi, Pennsylvania, Tennessee, and Vermont
beginning in the 1996-97 hunting season.
Background
The purpose of this cooperative Program is to annually obtain a
nationwide sample frame of migratory bird hunters, from which
representative samples of hunters will be selected and asked to
participate in voluntary harvest surveys. State wildlife agencies will
provide the sample frame by annually collecting the name, address, and
date of birth of each licensed migratory bird hunter in the State. To
reduce survey costs and to identify hunters who hunt less commonly-
hunted species, States will also request that each migratory bird
hunter provide a brief summary of his or her migratory bird hunting
activity for the previous year. States will send this information to
the Service, and the Service will sample hunters and conduct national
hunter activity and harvest surveys.
A notice of intent to establish the Program was published in the
June 24, 1991, Federal Register (56 FR 28812). A final rule that
established the Program and initiated a 2-year pilot phase in three
volunteer States (California, Missouri, and South Dakota) was published
in the March 19, 1993, Federal Register (58 FR 15093). The pilot phase
was completed following the 1993-94 migratory bird hunting seasons in
California, Missouri, and South Dakota.
A State/Federal technical group was formed to evaluate Program
requirements, the different approaches used by the pilot States, and
the Service's survey procedures during the pilot phase. Changes
incorporated into the Program as a result of the technical group's
evaluation were specified in a final rule, published in the October 21,
1994, Federal Register (59 FR 53334), that initiated the implementation
phase of the Program.
Currently, all licensed hunters who hunt migratory game birds in
participating States are required to have a Program validation,
indicating that they have identified themselves as migratory bird
hunters and have provided the required information to the State
wildlife agency. Hunters must provide the required information to each
State in which they hunt migratory birds. Validations are printed on or
attached to the annual State hunting license or on a State-specific
supplementary permit. The State may charge hunters a handling fee to
compensate hunting-license agents and to cover the State's
administrative costs for the Program.
The State/Federal technical group continues to evaluate the Program
to determine the adequacy and timeliness of the sample frame and the
time burden, cost, and other impacts on hunters, State license agents,
State wildlife agencies, and the Service. Emphasis is currently on the
time requirement for the sample frame and on alternative survey methods
for special groups of unlicensed hunters (e.g., junior and senior
hunters).
The Service's survey design calls for hunting-record forms to be
distributed to hunters selected for the survey before they forget the
details of their hunts. Because of this design requirement, States have
only a short time to obtain hunter names and addresses from license
vendors and to provide those names and addresses to the Service.
Currently, participating States must send the required information to
the Service within 30 calendar days of issuance of the hunting license
or permit.
The Service has requested the cooperation of participating States
to facilitate obtaining harvest estimates for hunters who are exempted
from a permit requirement and those that are also exempted from State
licensing requirements. This includes several categories of hunters
such as junior hunters, senior hunters, landowners, and other special
categories. Because exemptions and the methods for obtaining harvest
estimates for exempt groups vary from State to State, the Service will
incorporate these methods into individual memoranda of understanding
with participating States.
Excluding from the Program those hunters who are not required to
obtain an annual State hunting license also excludes their harvest from
the estimates. The level of importance of the excluded harvest on the
resulting estimates depends on how many hunters are excluded and on the
number of birds they bag. If the level of importance is significant,
excluding these hunters will result in serious bias. Minimum survey
standards are being developed for exempted categories. States may
require exempted hunters to obtain permits (e.g., Maryland required
exempted hunters to obtain permits upon entry to the Program in 1994).
The Service previously stated that States will continue to be added
to the Program until all States participate in 1998. A suggested
implementation schedule was published in the October 21, 1994, Federal
Register (59 FR 53334), and was revised in a final rule
[[Page 18937]]
published in the August 18, 1995, Federal Register (59 FR 43318). Three
States (Arkansas, North Carolina, and Wisconsin) have requested one-
year delays to enable them to implement improved licensing systems to
better accommodate the Program.
Proposed Modifications to the Program
In addition to implementation of the Program in Alabama, Georgia,
Idaho, Illinois, Maine, Minnesota, Mississippi, Pennsylvania,
Tennessee, and Vermont, the Service proposes to modify the Program's
implementation schedule by granting one-year delays to Arkansas, North
Carolina, and Wisconsin.
NEPA Consideration
The establishment of the Harvest Information Program and options
have been considered in the ``Environmental Assessment: Migratory Bird
Harvest Information Program.'' Copies of this document are available
from the Service at the address indicated under the caption FOR FURTHER
INFORMATION CONTACT.
Regulatory Flexibility Act
On June 14, 1991, the Assistant Secretary for Fish and Wildlife and
Parks concluded that the rule would not have a significant economic
impact on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.). This rule will eventually
affect about 3-5 million migratory game bird hunters when it is fully
implemented. It will require licensed migratory game bird hunters to
identify themselves and to supply their names, addresses, and birth
dates to the State licensing authority. Additional information will be
requested in order that they can be efficiently sampled for a voluntary
national harvest survey. Hunters will be required to have evidence of
current participation in the Program on their person while hunting
migratory game birds.
The States may require a handling fee to cover their administrative
costs. Many of the State hunting-license vendors are small entities,
but this rule should not economically impact those vendors. Only
migratory game bird hunters, individuals, would be required to provide
this information, so this rule should not adversely affect small
entities.
Collection of Information: Migratory Bird Harvest Information
Program
As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507
(d)), the U.S. Fish and Wildlife Service has received approval for this
collection of information, with approval number 1018-0015, with the
expiration date of August 31, 1998.
The information to be collected includes: the name, address, and
date of birth of each licensed migratory bird hunter in each
participating State. Hunters' names, addresses, and other information
will be used to provide a sample frame for voluntary hunter surveys to
improve harvest estimates for all migratory game birds. The Service
needs and uses the information to improve the quality and extent of
information about harvests of migratory game birds in order to better
manage these populations.
All information is to be collected once annually from licensed
migratory bird hunters in participating States by the State license
authority. Participating States are required to forward the hunter
information to the Service within 30 calendar days of license or permit
issuance. Annual reporting and record keeping burden for this
collection of information is estimated to average 0.015 hours per
response for 1,301,000 respondents, including the time for reviewing
instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection of information. Thus, the total annual reporting and record
keeping burden for this collection is estimated to be 19,515 hours.
Organizations and individuals desiring to submit comments on the
information collection requirements should direct them to the Service
Information Collection Clearance Officer, ms 224--ARLSQ, U.S. Fish and
Wildlife Service, 1849 C Street, NW., Washington, DC 20240, or the
Office of Management and Budget, Paperwork Reduction Project 1018-0015,
Washington, DC 20503.
The Department considers public comments on this proposed
collection of information in:
(1) Evaluating whether the proposed collection of information is
necessary for the proper performance of the functions of the
Department, including whether the information will have practical
utility;
(2) Evaluating the accuracy of the Department's estimate of the
burden of the proposed collection of information, including the
validity of the methodology and assumptions used;
(3) Enhancing the quality, usefulness, and clarity of the
information to be collected; and
(4) Minimizing the burden or the collection of information on those
who are to respond, including through the use of appropriate automated,
electronic, mechanical, or other technological collection techniques or
other forms of information technology, e.g., permitting electronic
submission of responses.
OMB is required to make a decision concerning the collection of
information contained in these proposed regulations between 30 and 60
days after publication of this document in the Federal Register.
Therefore, a comment to OMB is best assured of having its full effect
if OMB receives it within 30 days of publication. This does not effect
the deadline for the public to comment to the Department on the
proposed regulations.
Executive Order 12866
This rule was not subject to OMB review under Executive Order
12866.
Executive Order 12612 - Federalism
The regulations do not have significant Federalism effects as
provided in Executive Order 12612. Due to the migratory nature of
certain species of birds, the Federal Government has been given
responsibility over these species by the Migratory Bird Treaty Act.
State harvest surveys presently cannot provide adequate national
estimates of migratory game bird harvests for the following reasons:
(1) some States do not now conduct annual harvest surveys or maintain
accessible lists of hunter names and addresses; (2) comparable
information is not available from all States because States have
different survey procedures; (3) currently, many State license lists
are not available in time to permit distribution of hunter records
early in the hunting season; and (4) budget constraints often prevent
States from conducting harvest surveys during certain years or could
cause some States to eliminate them completely.
These rules do not have a substantial direct effect on fiscal
capacity, change the roles or responsibilities of Federal or State
Governments, or intrude on State policy or administration. Therefore,
these regulations do not have significant Federalism effects and do not
have sufficient Federalism implications to warrant the preparation of a
Federalism Assessment. In fact, the Service would cooperate with States
in providing special surveys to meet mutual management needs, and
increased cooperation between Federal and State agencies would reduce
duplication of survey efforts.
These rules do not constitute a significant regulatory action as
defined by Executive Order 12866, therefore an assessment of their
effects on State
[[Page 18938]]
governments, under the Unfunded Mandates Reform Act of 1995 (Pub. L.
104-4), is not required. The States may require a handling fee from
licensed migratory bird hunters to cover the administrative costs of
implementing the Program, thus these rules will not have a significant
economic impact on the States.
Executive Order 12360 - Taking of Individual Property Rights
Executive Order 12360 discussed guidelines for the taking of
individual property rights. These rules, authorized by the Migratory
Bird Treaty Act, do not affect any constitutionally-protected property
rights. These rules would not result in the physical occupancy of
property, the physical invasion of property, or the regulatory taking
of any property.
Authorship
The primary author of this rule is Larry J. Hindman, Office of
Migratory Bird Management.
List of Subjects in 50 CFR Part 20
Exports, Hunting, Imports, Reporting and record keeping
requirements, Transportation, Wildlife.
For the reasons set out in the preamble, 50 CFR part 20 is proposed
to be amended as set forth below.
PART 20--MIGRATORY BIRD HUNTING
1. The authority citation for part 20 continues to read as follows:
Authority: 16 U.S.C. 703-711, 16 U.S.C. 712, and 16 U.S.C. 742
a--j.
2. Section 20.20 is revised to read as follows:
Sec. 20.20 Migratory Bird Harvest Information Program.
(a) Information collection requirements. The collections of
information contained in Sec. 20.20 have been approved by the Office of
Management and Budget under 44 U.S.C. 3501 et seq. and assigned
clearance number 1018-0015. The information will be used to provide a
sampling frame for the national Migratory Bird Harvest Survey. Response
is required from licensed hunters to obtain the benefit of hunting
migratory game birds. Public reporting burden for this information is
estimated to average 0.015 hours per response for 1,301,000
respondents, including the time for reviewing instructions, searching
existing data sources, gathering and maintaining the data needed, and
completing and reviewing the collection of information. Thus the total
annual reporting and record keeping burden for this collection is
estimated to be 19,515 hours. Send comments regarding this burden
estimate or any other aspect of this collection of information,
including suggestions for reducing the burden, to the Service
Information Collection Clearance Officer, MS-224 ARLSQ, Fish and
Wildlife Service, Washington, DC 20240, or the Office of Management and
Budget, Paperwork Reduction Project 1018-0015, Washington, DC 20503.
(b) General provisions. Each person hunting migratory game birds in
Alabama, California, Georgia, Idaho, Illinois, Maine, Maryland,
Michigan, Minnesota, Mississippi, Missouri, Oklahoma, Oregon,
Pennsylvania, South Dakota, Tennessee, and Vermont shall have
identified himself or herself as a migratory bird hunter and given his
or her name, address, and date of birth to the respective State hunting
licensing authority and shall have on his or her person evidence,
provided by that State, of compliance with this requirement.
(c) Tribal exemptions. Nothing in paragraph (b) shall apply to
hunters on Federal Indian Reservations or to tribal members hunting on
ceded lands.
(d) State exemptions. Nothing in paragraph (b) shall apply to those
hunters who are exempted from State-licensing requirements in the State
in which they are hunting.
(e) Implementation schedule. The Service is continuing to implement
this Program over the next 2-year period from 1997-1998, which will
incorporate approximately 1.5 million additional migratory bird
hunters. It is proposed that the States participate on or before the
following schedule:
1997--Arizona, Colorado, Florida, Kentucky, North Carolina, Ohio,
South Carolina, Texas, and Virginia.
1998--Alaska, Arkansas, Connecticut, Delaware, Indiana, Iowa,
Kansas, Louisiana, Massachusetts, Montana, Nebraska, Nevada, New
Hampshire, New Jersey, New Mexico, New York, North Dakota, Rhode
Island, Utah, Washington, West Virginia, Wisconsin, and Wyoming.
Dated: March 25, 1996
Robert P. Davison
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 96-10524 Filed 4-26-96; 8:45 am]
BILLING CODE 4310-55-F
Complete official Federal Register PDF
FR Doc. 96-10522 Update of Drug and Alcohol Procedural Rules
[Federal Register Volume 61, Number 83 (Monday, April 29, 1996)]
[Proposed Rules]
[Pages 18712-18713]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-10522]
=======================================================================
-----------------------------------------------------------------------
[[Page 18713]]
DEPARTMENT OF TRANSPORTATION
Office of the Secretary
49 CFR Part 40
[OST Docket OST-96-1295] [Notice 96-13]
RIN: 2105-AC49
Update of Drug and Alcohol Procedural Rules
AGENCY: Office of the Secretary, DOT.
ACTION: Advance Notice of Proposed Rulemaking.
-----------------------------------------------------------------------
SUMMARY: The Department of Transportation is reviewing its procedural
rules for drug and alcohol testing. This review is intended to lead to
a notice of proposed rulemaking to update and clarify provisions of the
rules. This advance notice of proposed rulemaking seeks suggestions for
possible changes to the regulation.
DATES: Comments should be received July 29, 1996. Late-filed comments
will be considered to the extent practicable.
ADDRESSES: Comments should be sent to the Docket Clerk, Docket No. OST-
96-1295, Department of Transportation, 400 7th Street, S.W.,
Washington, D.C., Room PL 401, Washington, D.C., 20590. We request
that, in order to minimize burdens on the docket clerk's staff,
commenters send three copies of their comments to the docket.
Commenters wishing to have their submissions acknowledged should
include a stamped, self-addressed postcard with their comments. The
docket clerk will date stamp the postcard and return it to the
commenter. Comments will be available for inspection at the above
address from 9 a.m. to 5:30 p.m., Monday through Friday.
FOR FURTHER INFORMATION CONTACT: Robert C. Ashby, Deputy Assistant
General Counsel for Regulation and Enforcement, 400 7th Street, S.W.,
Room 10424, Washington, D.C., 20590. (202) 366-9306.
SUPPLEMENTARY INFORMATION: Six of the Department's operating
administrations (the Federal Aviation Administration (FAA), Federal
Highway Administration (FHWA), Federal Transit Administration (FTA),
Federal Railroad Administration (FRA), U.S. Coast Guard (USCG), and
Research and Special Programs Administration (RSPA)) have modal-
specific drug and/or alcohol testing rules. These rules apply to about
8 million transportation employees who work in safety-sensitive
positions (e.g., truck drivers, airline pilots, and railroad
engineers). The operating administration rules impose substantive
requirements concerning the testing program, on subjects such as which
employers must conduct tests, which employees are subject to testing,
what kinds of tests are required, when the tests must be administered,
the consequences of positive tests and other rule violations, how an
employee who has violated the rule can return to duty, and what
recordkeeping and reporting requirements apply to employers. These
modal rules are not being revisited as part of this rulemaking
initiative.
The Office of the Secretary (OST) procedural rule (49 CFR Part 40)
that is the subject of this advance notice of proposed rulemaking
(ANPRM) applies to regulated parties through each of the operating
administration's rules. Part 40 describes, in detail, how the required
tests must be conducted.
The drug testing portion of Part 40 closely follows the Mandatory
Guidelines for Federal Workplace Drug Testing Programs of the
Department of Health and Human Services (DHHS). With respect to the
four operating administrations covered by the Omnibus Transportation
Employee Testing Act of 1991 (FAA, FRA, FHWA, and FTA), the Department
is required by statute to have procedures consistent with the DHHS
Guidelines. We are committed, as a matter of policy, to consistency
with the DHHS Guidelines with respect to the RSPA and Coast Guard drug
testing programs as well. Consequently, the Department is not, in this
ANPRM, entertaining comments that would require substantive departures
from the DHHS Guidelines. Nor is the Department seeking comments on
significant substantive issues that have, in recent years, been the
subject of completed or pending rulemaking actions (e.g., review of
negative drug test results by medical review officers, blood testing
for alcohol, ``shy bladder'' procedures).
The Department conceives this ANPRM, then, not as an occasion for
suggesting major substantive changes to how we test for drugs and
alcohol, but rather as an opportunity to clarify the myriad details of
Part 40. We want to make the rule as easy to understand and apply as we
can, reduce burdens where feasible, take ``lessons learned'' during the
several years of operating the program under Part 40 into account,
correct problems that have been identified, clarify areas of
uncertainty or ambiguity, and incorporate, where appropriate, the
Department's interpretations of Part 40 into the regulatory text. We
also anticipate reordering provisions of the rule so that the material
flows more smoothly and is easier for readers to follow.
While we are soliciting comments on both the drug and alcohol
portions of the regulation, we anticipate that the main focus of this
effort will be on drug testing procedures, which are both more complex
and older than the alcohol testing procedures. We seek the ideas of
everyone involved with the program--employers, employees, consortia and
third-party administrators, laboratories, substance abuse
professionals, medical review officers, collectors, breath alcohol
technicians, and other interested persons--to assist us in this
process.
The Department is contemplating hosting one or more public meetings
or other forums during which interested persons can discuss potential
Part 40 changes with DOT officials and staff. We will issue a notice
announcing such events when plans are in place.
Regulatory Analyses and Notices
This ANPRM, which simply requests public input concerning potential
changes to the Department's drug and alcohol testing procedures, is not
significant for purposes of Executive Order 12866 or Department of
Transportation Rulemaking Policies and Procedures.
Issued this 22nd day of April 1996, at Washington, D.C.
Federico Pena,
Secretrary of Transportation.
[FR Doc. 96-10522 Filed 4-26-96; 8:45 am]
BILLING CODE 4910-62-P
Complete official Federal Register PDF
FR Doc. 96-10509 Airworthiness Directives; Airbus Model A300-600 and A310 Series Airplanes Equipped With General Electric Model CF6-80 Engines
[Federal Register Volume 61, Number 83 (Monday, April 29, 1996)]
[Proposed Rules]
[Pages 18699-18700]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-10509]
-----------------------------------------------------------------------
DEPARTMENT OF AGRICULTURE
DEPARTMENT OF TRANSPORTATION
14 CFR Part 39
[Docket No. 95-NM-175-AD]
RIN 2120-AA64
Airworthiness Directives; Airbus Model A300-600 and A310 Series
Airplanes Equipped With General Electric Model CF6-80 Engines
AGENCY: Federal Aviation Administration, DOT.
ACTION: Notice of proposed rulemaking (NPRM).
-----------------------------------------------------------------------
SUMMARY: This document proposes the adoption of a new airworthiness
directive (AD) that is applicable to certain Airbus Model A300-600 and
A310 series airplanes. This proposal would require an inspection to
detect defects of the directional pilot valves (DPV); and replacement
of any defective DPV with a new DPV, or deactivation of the thrust
reverser system, if necessary. This proposal is prompted by a report
indicating that, during a maintenance check, an uncommanded deployment
and stowage of the thrust reverser occurred due to improperly modified
DPV's. The actions specified by the proposed AD are intended to prevent
uncommanded deployment and stowage of the thrust reverser during
maintenance activities, as a result of improperly modified DPV's, which
could result in injury to maintenance personnel or other people on the
ground.
DATES: Comments must be received by June 10, 1996.
ADDRESSES: Submit comments in triplicate to the Federal Aviation
Administration (FAA), Transport Airplane Directorate, ANM-103,
Attention: Rules Docket No. 95-NM-175-AD, 1601 Lind Avenue SW., Renton,
Washington 98055-4056. Comments may be inspected at this location
between 9:00 a.m. and 3:00 p.m., Monday through Friday, except Federal
holidays.
The service information referenced in the proposed rule may be
obtained from Airbus Industrie, 1 Rond Point Maurice Bellonte, 31707
Blagnac Cedex, France. This information may be examined at the FAA,
Transport Airplane Directorate, 1601 Lind Avenue SW., Renton,
Washington.
FOR FURTHER INFORMATION CONTACT: Charles Huber, Aerospace Engineer,
Standardization Branch, ANM-113, FAA, Transport Airplane Directorate,
1601 Lind Avenue SW., Renton, Washington 98055-4056; telephone (206)
227-2589; fax (206) 227-1149.
SUPPLEMENTARY INFORMATION:
Comments Invited
Interested persons are invited to participate in the making of the
proposed rule by submitting such written data, views, or arguments as
they may desire. Communications shall identify the Rules Docket number
and be submitted in triplicate to the address specified above. All
communications received on or before the closing date for comments,
specified above, will be considered before taking action on the
proposed rule. The proposals contained in this notice may be changed in
light of the comments received.
Comments are specifically invited on the overall regulatory,
economic, environmental, and energy aspects of the proposed rule. All
comments submitted will be available, both before and after the closing
date for comments, in the Rules Docket for examination by interested
persons. A report summarizing each FAA-public contact concerned with
the substance of this proposal will be filed in the Rules Docket.
Commenters wishing the FAA to acknowledge receipt of their comments
submitted in response to this notice must submit a self-addressed,
stamped postcard on which the following statement is made: ``Comments
to Docket Number 95-NM-175-AD.'' The postcard will be date stamped and
returned to the commenter.
Availability of NPRMs
Any person may obtain a copy of this NPRM by submitting a request
to the FAA, Transport Airplane Directorate, ANM-103, Attention: Rules
Docket No. 95-NM-175-AD, 1601 Lind Avenue, SW., Renton, Washington
98055-4056.
Discussion
The Direction Generale de l'Aviation Civile (DGAC), which is the
airworthiness authority for France, recently notified the FAA that an
unsafe condition may exist on certain Airbus Model A300-600 and A310
series airplanes, equipped with General Electric Model CF6-80 engines.
The DGAC advises that it has received a report indicating that, during
a maintenance check, an uncommanded deployment and stowage of the
thrust reverser occurred.
Investigation of this incident revealed that, when the thrust
reverser handle was moved from the ``stow'' position to the thrust
reverser test point, the directional pilot valve (DPV) stuck in the
``open'' (``deploy'') position. The air supply first caused the thrust
reverser to deploy, and then caused the DPV solenoid to move the DPV to
the ``stow'' direction, which resulted in the thrust reverser stowing.
This same sequence of events happened when the opposite engine was
tested. When both DPV's were replaced and a functional test carried
out, no anomaly was found. This indicated that the originally-installed
DPV's apparently were faulty.
Further tests carried out at the Airbus flight line on a General
Electric CF6-80C2 engine with the faulty DPV's installed, demonstrated
that deployment of the thrust reverser could not be reproduced with the
engine running. The thrust reverser deployment could be recreated only
with a progressive increase of ground air supply at low pressure
(approximately 10 to 15 psi) to the ground test point on the airplane.
When direct test pressure of 28 psi was applied to the DPV, the valve
reseated to the ``stow'' position. (This same scenario was confirmed by
bench testing performed by both General Electric and Allied Signal.)
Further investigation of the two faulty DPV's revealed that the
valves had been improperly modified when procedures specified in
General Electric Service Bulletin 78-031 had been accomplished on the
engine. The DPV armature spring had not been replaced with a new
stronger spring in accordance with the service bulletin instructions.
Accordingly, such an improperly modified DPV, if not corrected,
could result in uncommanded deployment and stowage of the thrust
reverser during maintenance activities, which consequently could cause
injury to maintenance personnel or other people on the ground.
[[Page 18700]]
Explanation of Relevant Service Information
Airbus has issued All Operators Telex (AOT) 78-05, Revision 01,
dated February 8, 1995, which describes procedures for a one-time
inspection to detect defects of the DPV; and replacement of the
defective DPV with a new DPV, or deactivation of the thrust reverser
system, if necessary. The DGAC classified this AOT as mandatory and
issued French airworthiness directive 95-052-176(B), dated March 15,
1995, in order to assure the continued airworthiness of these airplanes
in France.
FAA's Conclusions
This airplane model is manufactured in France and is type
certificated for operation in the United States under the provisions of
section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and
the applicable bilateral airworthiness agreement. Pursuant to this
bilateral airworthiness agreement, the DGAC has kept the FAA informed
of the situation described above. The FAA has examined the findings of
the DGAC, reviewed all available information, and determined that AD
action is necessary for products of this type design that are
certificated for operation in the United States.
Explanation of the Requirements of the Proposed Rule
Since an unsafe condition has been identified that is likely to
exist or develop on other airplanes of the same type design, the
proposed AD would require a one-time inspection to detect defects of
the DPV. If a defective DPV is detected, it would be required to be
replaced with a new DPV, or thrust reverser system would be required to
be deactivated until the DPV is replaced. The inspection and
replacement actions would be required to be accomplished in accordance
with the AOT described previously.
Cost Impact
The FAA estimates that 43 airplanes of U.S. registry would be
affected by this proposed AD, that it would take approximately 10 work
hours per airplane to accomplish the proposed one-time inspection, and
that the average labor rate is $60 per work hour. Based on these
figures, the cost impact of the proposed AD on U.S. operators is
estimated to be $25,800, or $600 per airplane.
The cost impact figure discussed above is based on assumptions that
no operator has yet accomplished any of the proposed requirements of
this AD action, and that no operator would accomplish those actions in
the future if this AD were not adopted.
Regulatory Impact
The regulations proposed herein would not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this
proposal would not have sufficient federalism implications to warrant
the preparation of a Federalism Assessment.
For the reasons discussed above, I certify that this proposed
regulation (1) is not a ``significant regulatory action'' under
Executive Order 12866; (2) is not a ``significant rule'' under the DOT
Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
and (3) if promulgated, will not have a significant economic impact,
positive or negative, on a substantial number of small entities under
the criteria of the Regulatory Flexibility Act. A copy of the draft
regulatory evaluation prepared for this action is contained in the
Rules Docket. A copy of it may be obtained by contacting the Rules
Docket at the location provided under the caption ADDRESSES.
List of Subjects in 14 CFR Part 39
Air transportation, Aircraft, Aviation safety, Safety.
The Proposed Amendment
Accordingly, pursuant to the authority delegated to me by the
Administrator, the Federal Aviation Administration proposes to amend
part 39 of the Federal Aviation Regulations (14 CFR part 39) as
follows:
PART 39--AIRWORTHINESS DIRECTIVES
1. The authority citation for part 39 continues to read as follows:
Authority: 49 USC 106(g), 40113, 44701.
Sec. 39.13 [Amended]
2. Section 39.13 is amended by adding the following new
airworthiness directive:
Airbus Industrie: Docket 95-NM-175-AD.
Applicability: Model A300B4-601, -603, -605R, A300-F4-605R, and
A310-203, -203C, -204, -304, -308 series airplanes, equipped with
General Electric Model CF6-80 engines; on which General Electric
Service Bulletin 78-031 has been accomplished; certificated in any
category.
Note 1: This AD applies to each airplane identified in the
preceding applicability provision, regardless of whether it has been
otherwise modified, altered, or repaired in the area subject to the
requirements of this AD. For airplanes that have been modified,
altered, or repaired so that the performance of the requirements of
this AD is affected, the owner/operator must request approval for an
alternative method of compliance in accordance with paragraph (b) of
this AD. The request should include an assessment of the effect of
the modification, alteration, or repair on the unsafe condition
addressed by this AD; and, if the unsafe condition has not been
eliminated, the request should include specific proposed actions to
address it.
Compliance: Required as indicated, unless accomplished
previously.
To prevent uncommanded deployment and stowage of the thrust
reverser during maintenance activities, accomplish the following:
(a) Within 600 flight hours after the effective date of this AD,
perform an inspection to detect defects of the directional pilot
valves (DPV) in accordance with Airbus All Operators Telex (AOT) 78-
05, Revision 01, February 8, 1995.
(1) If no defects are detected, no further action is required by
this AD.
(2) If any defect is detected, prior to further flight, either
replace the defective DPV with a new DPV in accordance with the AOT;
or deactivate the thrust reverser system in accordance with approved
procedures of the Minimum Equipment List (MEL) until the DPV is
replaced
(b) An alternative method of compliance or adjustment of the
compliance time that provides an acceptable level of safety may be
used if approved by the Manager, Standardization Branch, ANM-113,
FAA, Transport Airplane Directorate. Operators shall submit their
requests through an appropriate FAA Principal Maintenance Inspector,
who may add comments and then send it to the Manager,
Standardization Branch, ANM-113.
Note 2: Information concerning the existence of approved
alternative methods of compliance with this AD, if any, may be
obtained from the Standardization Branch, ANM-113.
(c) Special flight permits may be issued in accordance with
sections 21.197 and 21.199 of the Federal Aviation Regulations (14
CFR 21.197 and 21.199) to operate the airplane to a location where
the requirements of this AD can be accomplished.
Issued in Renton, Washington, on April 23, 1996.
S. R. Miller,
Acting Manager, Transport Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 96-10509 Filed 4-26-96; 8:45 am]
BILLING CODE 4910-13-P
Complete official Federal Register PDF
FR Doc. 96-10508 Airworthiness Directives; Airbus Model A300 B2 and B4 Series Airplanes
[Federal Register Volume 61, Number 83 (Monday, April 29, 1996)]
[Proposed Rules]
[Pages 18700-18704]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-10508]
-----------------------------------------------------------------------
DEPARTMENT OF AGRICULTURE
DEPARTMENT OF TRANSPORTATION
14 CFR Part 39
[Docket No. 95-NM-109-AD]
RIN 2120-AA64
Airworthiness Directives; Airbus Model A300 B2 and B4 Series
Airplanes
AGENCY: Federal Aviation Administration, DOT.
[[Page 18701]]
ACTION: Notice of proposed rulemaking (NPRM).
-----------------------------------------------------------------------
SUMMARY: This document proposes the supersedure of an existing
airworthiness directive (AD), applicable to certain Airbus Model A300
B2 and B4 series airplanes, that currently requires inspection for
cracks of the fuselage, wings, and vertical stabilizer structures; and
repairs or modifications, if necessary. That AD was prompted by reports
of cracking in several areas of the fuselage, wings, and vertical
stabilizer structure due to fatigue-related stress. The actions
specified by that AD are intended to prevent such fatigue-related
cracking, which could result in reduced structural integrity of the
fuselage, wing, and vertical stabilizer. This action would provide for
a new optional terminating action, for certain airplanes, and would
expand the applicability of the existing AD to include additional
airplanes.
DATES: Comments must be received by June 10, 1996.
ADDRESSES: Submit comments in triplicate to the Federal Aviation
Administration (FAA), Transport Airplane Directorate, ANM-103,
Attention: Rules Docket No. 95-NM-109-AD, 1601 Lind Avenue SW., Renton,
Washington 98055-4056. Comments may be inspected at this location
between 9:00 a.m. and 3:00 p.m., Monday through Friday, except Federal
holidays.
The service information referenced in the proposed rule may be
obtained from Airbus, 1 Rond Point Maurice Bellonte, 31707 Blagnac
Cedex, France. This information may be examined at the FAA, Transport
Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington.
FOR FURTHER INFORMATION CONTACT: Phil Forde, Aerospace Engineer,
Standardization Branch, ANM-113, FAA, Transport Airplane Directorate,
1601 Lind Avenue SW., Renton, Washington 98055-4056; telephone (206)
227-2146; fax (206) 227-1149.
SUPPLEMENTARY INFORMATION:
Comments Invited
Interested persons are invited to participate in the making of the
proposed rule by submitting such written data, views, or arguments as
they may desire. Communications shall identify the Rules Docket number
and be submitted in triplicate to the address specified above. All
communications received on or before the closing date for comments,
specified above, will be considered before taking action on the
proposed rule. The proposals contained in this notice may be changed in
light of the comments received.
Comments are specifically invited on the overall regulatory,
economic, environmental, and energy aspects of the proposed rule. All
comments submitted will be available, both before and after the closing
date for comments, in the Rules Docket for examination by interested
persons. A report summarizing each FAA-public contact concerned with
the substance of this proposal will be filed in the Rules Docket.
Commenters wishing the FAA to acknowledge receipt of their comments
submitted in response to this notice must submit a self-addressed,
stamped postcard on which the following statement is made: ``Comments
to Docket Number 95-NM-109-AD.'' The postcard will be date stamped and
returned to the commenter.
Availability of NPRMs
Any person may obtain a copy of this NPRM by submitting a request
to the FAA, Transport Airplane Directorate, ANM-103, Attention: Rules
Docket No. 95-NM-109-AD, 1601 Lind Avenue SW., Renton, Washington
98055-4056.
Discussion
On August 13, 1986, the FAA issued AD 86-19-02, amendment 39-5396
(51 FR 29910, August 21, 1986), applicable to certain Airbus Model A300
B2 and B4 series airplanes. That AD requires inspections for cracks of
the fuselage, wings, and vertical stabilizer structures; and repairs or
modifications, if necessary. That action was prompted by reports that,
during fatigue tests conducted by the manufacturer, cracks were
detected in several areas of the fuselage, wings, and vertical
stabilizer structure. The requirements of that AD are intended to
prevent reduced structural integrity of the fuselage, wing, and
vertical stabilizer.
Explanation of New Relevant Service Information
Since the issuance of that AD, Airbus has issued Revision 3 of
Service Bulletin A300-53-182, dated March 16, 1994. The inspection
procedures described in this revision are identical to those described
in the original version of the service bulletin, which was referenced
in AD 86-19-02 as the appropriate source of service information.
However, this new revision of the service bulletin differs in two ways
from the original version:
1. The effectivity listing in the revised bulletin includes
additional airplanes that are subject to the addressed unsafe
condition.
2. For certain airplanes, the revised service bulletin provides
procedures for replacement of the web plate and support fitting at the
level of stringer 18 (left- and right-hand) with a new web plate and
support fitting. Accomplishment of the replacement would eliminate the
need for the repetitive inspections in the web plate between frame 30A
and frame 32 at stringer 18.
The Direction Generale de l'Aviation Civile (DGAC), which is the
airworthiness authority for France, classified this service bulletin as
mandatory and issued French airworthiness directive (CN) 83-102-
053(B)R2, dated March 2, 1994, in order to assure the continued
airworthiness of these airplanes in France.
Explanation of the Provisions of the Proposed Rule
This airplane model is manufactured in France and is type
certificated for operation in the United States under the provisions of
section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and
the applicable bilateral airworthiness agreement. Pursuant to this
bilateral airworthiness agreement, the DGAC has kept the FAA informed
of the situation described above. The FAA has examined the findings of
the DGAC, reviewed all available information, and determined that AD
action is necessary for products of this type design that are
certificated for operation in the United States.
Since an unsafe condition has been identified that is likely to
exist or develop on other airplanes of the same type design registered
in the United States, the proposed AD would supersede AD 86-19-02 to
continue to require inspections for cracks of the fuselage, wings, and
vertical stabilizer structures; and repairs or modifications, if
necessary. However, the applicability of the rule would be expanded to
include additional airplanes that have been identified as subject to
the addressed unsafe condition.
For certain airplanes, the proposed AD would provide for a new
optional replacement action, which would constitute terminating action
for certain repetitive inspection requirements. These actions would be
required to be accomplished in accordance with the service bulletin
described previously.
Operators who previously elected to accomplish Airbus Modification
1691 to terminate the repetitive inspections at stringers 18 and 22, as
was provided by paragraph D. of AD 86-19-02, should note that, under
the provisions of paragraph (d)(4) of this proposal, accomplishment of
that modification
[[Page 18702]]
would constitute terminating action for the repetitive inspections only
at stringer 22.
Additionally, operators should note that paragraph G. of AD 86-19-
02 has not been retained in this proposal. That paragraph required
ultrasonic inspections of the longitudinal lap joints at stringer 29
between frames 72 and 73, and eddy current inspections of the
longitudinal skin splices of the top fuselage joint between frames 72
and 80. The FAA has issued a separate rulemaking action to address
those requirements (reference notice of proposed rulemaking, Docket No.
94-NM-246-AD).
Cost Impact
Approximately 7 Airbus Model A300 B2 and B4 series airplanes of
U.S. registry would be affected by this proposed AD.
The actions that are currently required by AD 86-19-02 take
approximately 919 work hours per airplane to accomplish, at an average
labor rate of $60 per work hour. The cost of required parts will be
nominal. Based on these figures, the cost impact on U.S. operators of
the actions currently required is estimated to be $385,980, or $55,140
per airplane, per inspection cycle.
The new actions that are proposed in this AD action would take
approximately 3 work hours per airplane to accomplish, at an average
labor rate of $60 per work hour. Based on these figures, the cost
impact on U.S. operators of the proposed requirements of this AD is
estimated to be $1,260, or $180 per airplane.
The cost impact figures discussed above are based on assumptions
that no operator has yet accomplished any of the current or proposed
requirements of this AD action, and that no operator would accomplish
those actions in the future if this AD were not adopted.
Regulatory Impact
The regulations proposed herein would not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this
proposal would not have sufficient federalism implications to warrant
the preparation of a Federalism Assessment.
For the reasons discussed above, I certify that this proposed
regulation (1) is not a ``significant regulatory action'' under
Executive Order 12866; (2) is not a ``significant rule'' under the DOT
Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
and (3) if promulgated, will not have a significant economic impact,
positive or negative, on a substantial number of small entities under
the criteria of the Regulatory Flexibility Act. A copy of the draft
regulatory evaluation prepared for this action is contained in the
Rules Docket. A copy of it may be obtained by contacting the Rules
Docket at the location provided under the caption ADDRESSES.
List of Subjects in 14 CFR Part 39
Air transportation, Aircraft, Aviation safety, Safety.
The Proposed Amendment
Accordingly, pursuant to the authority delegated to me by the
Administrator, the Federal Aviation Administration proposes to amend
part 39 of the Federal Aviation Regulations (14 CFR part 39) as
follows:
PART 39--AIRWORTHINESS DIRECTIVES
1. The authority citation for part 39 continues to read as follows:
Authority: 49 U.S.C. 106(g) 40113, 44701.
Sec. 39.13 [Amended]
2. Section 39.13 is amended by removing amendment 39-5396 (51 FR
29910, August 21, 1986), and by adding a new airworthiness directive
(AD), to read as follows:
Airbus Industrie: Docket 95-NM-109-AD. Supersedes AD 86-19-02,
Amendment 39-5396.
-Applicability: All Model A300 B2 and B4 series airplanes,
certificated in any category.
Note 1: This AD applies to each airplane identified in the
preceding applicability provision, regardless of whether it has been
otherwise modified, altered, or repaired in the area subject to the
requirements of this AD. For airplanes that have been modified,
altered, or repaired so that the performance of the requirements of
this AD is affected, the owner/operator must request approval for an
alternative method of compliance in accordance with paragraph (j) of
this AD. The request should include an assessment of the effect of
the modification, alteration, or repair on the unsafe condition
addressed by this AD; and, if the unsafe condition has not been
eliminated, the request should include specific proposed actions to
address it.
Note 2: Airbus Model A300-600 series airplanes are not subject
to this AD.
Compliance: Required as indicated, unless accomplished
previously.
To prevent fatigue-related cracking, which could result in
reduced structural integrity of the fuselage, wing, and vertical
stabilizer, accomplish the following:
(a) For airplanes with serial numbers listed in Airbus Service
Bulletin A300-53-127, Revision 4, dated May 10, 1984: Perform a
visual inspection to detect cracks in the upper fuselage skin at
frame 58 between stringer 5 left and stringer 5 right, in accordance
with the Accomplishment Instructions of the service bulletin, and in
accordance with the times specified in this paragraph.
(1) Perform the initial inspection at the later of the times
specified in paragraph (a)(1)(i) or (a)(1)(ii) of this AD.
(i) Prior to the accumulation of 18,000 total landings or 18,000
total flight hours, whichever occurs earlier; or
(ii) Within one year after September 26, 1986 (the effective
date of AD 86-19-02, amendment 39-5396).
(2) If no crack is detected, repeat this inspection thereafter
at intervals not to exceed 3,000 flight hours.
(3) If any crack is detected, prior to further flight, repair it
in accordance with Figure 2, ``Inspection and Repair Alternative
Chart,'' of the service bulletin.
(4) Installation of Airbus Modification 2147 (reference Airbus
Service Bulletin A300-53-110, Revision 10, dated April 7, 1986) or
Airbus Modification 2526/1693 (reference Airbus Service Bulletin
A300-53-128, Revision 5, dated May 10, 1984) constitutes terminating
action for the repetitive inspection requirements of paragraph
(a)(2) of this AD.
(b) For airplanes with serial numbers listed in Airbus Service
Bulletin A300-53-101, Revision 7, dated May 10, 1984: Perform a
radiographic and ultrasonic inspection to detect cracks in the
circumferential fuselage splice plates and stringer couplings, in
accordance with the Accomplishment Instructions of the service
bulletin, and in accordance with the times specified in this
paragraph.
(1) Perform the initial inspections at the applicable time
specified in paragraph (b)(1)(i) or (b)(1)(ii) of this AD:
(i) For airplanes on which the actions specified in Airbus
Service Bulletin A300-53-053, Revision 2, dated July 30, 1981, have
been accomplished previously: Inspect prior to the accumulation of
20,000 landings since accomplishment of those actions, or within one
year after September 26, 1986, whichever occurs later.
(ii) For airplanes on which the actions specified in Airbus
Service Bulletin A300-53-053, Revision 2, dated July 30, 1981, have
not been accomplished: Inspect prior to the accumulation of 18,000
total landings, or within one year after September 26, 1986,
whichever occurs later.
(2) If no crack is detected, repeat the inspections thereafter
at intervals not to exceed 3,000 landings.
(3) If any crack is detected, prior to further flight, repair it
in accordance with Figures 1 and 2 of the service bulletin.
(4) Installation of Airbus Modification 3760 (reference Airbus
Service Bulletin A300-53-170, Revision 1, dated January 25, 1985)
constitutes terminating action for the repetitive inspection
requirements of paragraph (b)(2) of this AD.
(c) For airplanes with serial numbers listed in Airbus Service
Bulletin A300-53-143, Revision 3, dated May 10, 1984: Perform a
visual inspection to detect cracks in frame
[[Page 18703]]
57A between stringers 15 and 16 (left- and right-hand), and the
stringer 5 connection angle at frame 65 (left- and right-hand), in
accordance with the Accomplishment Instructions of the service
bulletin, and in accordance with the times specified in this
paragraph. .
(1) Perform the initial inspection at the later of the times
specified in paragraph (b)(1)(i) or (b)(1)(ii) of this AD:
(i) Prior to the accumulation of 20,000 total landings; or
(ii) Within one year after September 26, 1986.
(2) If no crack is detected, repeat this inspection thereafter
at intervals not to exceed 3,000 landings.
(3) If any crack is detected, prior to further flight, repair it
in accordance with the service bulletin.
(4) Installation of Airbus Modification 2643 (reference Airbus
Service Bulletin A300-53-132, Revision 4, dated May 10, 1984)
constitutes terminating action for the repetitive inspection
requirement of paragraph (c)(2) of this AD.
(d) For airplanes having serial number 002 through 156
inclusive, on which Airbus Modification 2611 has not been installed:
Perform a visual inspection, and liquid penetrant test if
applicable, to detect cracks in the web plate and support fitting
between frames 30A and 32 at stringer 18, and between stringers 22
and 23 (left- and right-hand), in accordance with Airbus Service
Bulletin A300-53-182, Revision 3, dated March 16, 1994, and in
accordance with the times specified in this paragraph.
(1) Perform the initial inspection at the later of the times
specified in paragraph (d)(1)(i) or (d)(1)(ii) of this AD:
(i) Prior to the accumulation of 30,000 total landings; or
(ii) Within 1,500 landings after the effective date of this AD.
(2) If no crack is detected, repeat the inspection at the
applicable intervals specified in paragraph (d)(2)(i) or (d)(2)(ii)
of this AD.
(i) If, at the time of the most recent inspection, the airplane
has accumulated fewer than 36,000 total landings, repeat the
inspection thereafter at intervals not to exceed 3,000 landings.
(ii) If, at the time of the most recent inspection, the airplane
has accumulated 36,000 or more total landings, repeat the inspection
thereafter at intervals not to exceed 2,000 landings.
(3) If any crack is detected in the web plate between frames 30A
and 32 at stringer 18, prior to further flight, replace the web
plate and support fitting at stringer 18 (left- and right-hand) with
a new web plate and support fitting, in accordance with the service
bulletin. Accomplishment of this replacement constitutes terminating
action for the repetitive inspection requirements for stringer 18 as
required by paragraph (d)(2) of this AD.
(4) If any crack is detected in the web plate between frame 30A
and 32 between stringers 22 and 23, prior to further flight, replace
the web plate and support fitting between stringers 22 and 23 (left-
and right-hand) with a new web plate and support fitting, in
accordance with Airbus Service Bulletin A300-53-182, Revision 3,
dated March 16, 1994. Accomplishment of this replacement constitutes
terminating action for the repetitive inspection requirements for
the subject area between stringers 22 and 23 as required by
paragraph (d)(2) of this AD.
(5) Terminating action for the repetitive inspection
requirements of paragraph (d)(2) of this AD is as follows:
(i) Installation of Airbus Modification 1691 (reference Airbus
Service Bulletin A300-53-063) between stringers 22 and 23
constitutes terminating action for the repetitive inspection
requirements of paragraph (d)(2) of this AD for that area only.
(ii) Replacement of the web plates and support fittings at the
level of stringer 18 (left- and right-hand) with a new web plate and
support fitting, in accordance with Airbus Service Bulletin A300-53-
182, Revision 3, dated March 16, 1994, constitutes terminating
action for the repetitive inspection requirements of paragraph
(d)(2) of this AD for that stringer only.
(iii) Accomplishment of the actions specified in both paragraph
(d)(5)(i) and paragraph (d)(5)(ii) of this AD constitute terminating
action for all repetitive inspection requirements required by
paragraph (d)(2) of this AD.
(e) For airplanes with serial numbers listed in Airbus Service
Bulletin A300-53-112, Revision 2, dated July 20, 1981: Perform a
visual inspection to detect cracks of the skin from frame 28 to
frame 31 between stringers 29 and 31 (left- and right-hand), in
accordance with the Accomplishment Instructions of the service
bulletin, and in accordance with the times specified in this
paragraph.
(1) Perform the initial inspection at the later of the times
specified in paragraph (e)(1)(i) or (e)(1)(ii) of this AD: -
(i) Prior to the accumulation of 24,000 total landings; or
(ii) Within one year after September 26, 1986.
(2) If no crack is detected, repeat the inspection at the
applicable intervals specified in paragraph (e)(2)(i) or (e)(2)(ii)
of this AD:
(i) If, at the time of the most recent inspection, the airplane
has accumulated fewer than 36,000 total landings, repeat the
inspection thereafter at intervals not to exceed 6,000 landings.
(ii) If, at the time of the most recent inspection, the airplane
has accumulated 36,000 or more total landings, repeat the inspection
thereafter at intervals not to exceed 3,000 landings.
(3) If any crack is found, prior to further flight, install
Airbus Modification 1358 in accordance with Airbus Service Bulletin
A300-53-027, Revision 4, dated January 4, 1984. Accomplishment of
this modification constitutes terminating action for the repetitive
inspection requirements of paragraph (e)(2) of this AD.
(4) Installation of Airbus Modification 1358 (reference Airbus
Service Bulletin A300-53-027, Revision 4, dated January 4, 1984)
constitutes terminating action for the repetitive inspection
requirements of paragraph (e)(2) of this AD.
(f) For airplanes with serial numbers listed in Airbus Service
Bulletin A300-53-100, Revision 1, dated May 10, 1984: Perform an
internal and external visual inspection to detect cracks of the
longitudinal joint at stringer 51 (left- and right-hand) between
frames 72 and 80, in accordance with the Accomplishment Instructions
of the service bulletin, and in accordance with the times specified
in this paragraph.
(1) Perform the initial inspection at the later of the times
specified in paragraph (f)(1)(i) or (f)(1)(ii) of this AD:
(i) Prior to the accumulation of 12,000 total landings or 15,000
total flight hours, whichever occurs earlier; or
(ii) Within one year after September 26, 1986.
(2) If no crack is found, repeat the internal inspection
thereafter at intervals not to exceed 1,500 flight hours, and repeat
the external inspection thereafter at intervals not to exceed 12,000
flight hours.
(3) If any crack is detected, prior to further flight, repair it
in accordance with the service bulletin.
(4) Installation of Airbus Modification 1421 (reference Airbus
Service Bulletin A300-53-033, Revision 3, dated May 10, 1984)
constitutes terminating action for the repetitive inspection
requirements of paragraph (f)(2) of this AD.
(g) For airplanes with serial numbers listed in Airbus Service
Bulletin A300-55-026, Revision 3, dated May 10, 1984: Perform a
visual inspection of the 6 vertical stabilizer attachment fittings
for cracks, which initiate from the rivet holes, in accordance with
the Accomplishment Instructions of the service bulletin, and in
accordance with the times specified in this paragraph.
(1) Perform the initial inspection at the later of the times
specified in paragraph (g)(1)(i) or (g)(1)(ii) of this AD:
(i) Prior to the accumulation of 20,000 total landings or 20,000
total flight hours, whichever occurs earlier; or
(ii) Within one year after September 26, 1986, whichever occurs
earlier.
(2) If no crack is detected, repeat the inspection thereafter at
intervals not to exceed 1,500 landings.
(3) If any crack is detected, prior to further flight, repair it
in accordance with the service bulletin.
(4) Installation of Airbus Modification 3172 (reference Airbus
Service Bulletin A300-55-024, Revision 4, dated May 25, 1984)
constitutes terminating action for the repetitive inspection
requirements of paragraph (g)(2) of this AD.
(h) For airplanes with serial numbers listed in Airbus Service
Bulletin A300-57-109, Revision 1, dated July 10, 1982: Perform a
visual inspection to detect cracks in the landing angle attached to
the outboard side of the wing leading edge at nose rib 8 (left- and
right-hand), in accordance with the Accomplishment Instructions of
the service bulletin, and in accordance with the times specified in
this paragraph.
(1) Perform the initial inspecton at the later of the times
specified in paragraph (h)(1)(i) or (h)(1)(ii):
(i) Prior to the accumulation of 15,000 total landings; or
[[Page 18704]]
(ii) Within one year after September 26, 1986.
(2) If no crack is detected, repeat the inspection thereafter at
intervals not to exceed 3,000 landings.
(3) If any crack is detected, within the next 1,000 landings
following crack detection, install Airbus Modification 1307 in
accordance with Airbus Service Bulletin A300-57-026, Revision 3,
dated October 21, 1982.
(4) Installation of Airbus Modification 1307 (reference Airbus
Service Bulletin A300-57-026, Revision 3, dated October 21, 1982)
constitutes terminating action for the repetitive inspection
requirements of paragraph (h)(2) of this AD.
(i) Special flight permits may be issued in accordance with
sections 21.197 and 21.199 of the Federal Aviation Regulations (14
CFR 21.197 and 21.199) to operate the airplane to a location where
the requirements of this AD can be accomplished.
(j) An alternative method of compliance or adjustment of the
compliance time that provides an acceptable level of safety may be
used if approved by the Manager, Standardization Branch, ANM-113,
FAA, Transport Airplane Directorate. Operators shall submit their
requests through an appropriate FAA Principal Maintenance Inspector,
who may add comments and then send it to the Manager,
Standardization Branch, ANM-113.
Note 3: Information concerning the existence of approved
alternative methods of compliance with this AD, if any, may be
obtained from the Standardization Branch, ANM-113.
Issued in Renton, Washington, on April 23, 1996.
S.R. Miller,
Acting Manager, Transport Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 96-10508 Filed 4-26-96; 8:45 am]
BILLING CODE 4910-13-P
Complete official Federal Register PDF
FR Doc. 96-10507 Airworthiness Directives; Airbus Model A320-200 Series Airplanes
[Federal Register Volume 61, Number 83 (Monday, April 29, 1996)]
[Proposed Rules]
[Pages 18704-18705]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-10507]
-----------------------------------------------------------------------
DEPARTMENT OF AGRICULTURE
DEPARTMENT OF TRANSPORTATION
14 CFR Part 39
[Docket No. 95-NM-267-AD]
RIN 2120-AA64
Airworthiness Directives; Airbus Model A320-200 Series Airplanes
AGENCY: Federal Aviation Administration, DOT.
ACTION: Notice of proposed rulemaking (NPRM).
-----------------------------------------------------------------------
SUMMARY: This document proposes the adoption of a new airworthiness
directive (AD) that is applicable to certain Airbus Model A320-200
series airplanes. This proposal would require modification of the shock
absorber sub-assembly of the main landing gear (MLG). This proposal is
prompted by reports of internal damage to the shock absorber sub-
assembly due to loose screws in the upper bearing dowels. The actions
specified by the proposed AD are intended to prevent such damage, which
could result in the overextension of the shock absorber and failure of
the torque link. This situation may lead to the inability of the MLG to
retract and subsequent collapse of the MLG.
DATES: Comments must be received by June 10, 1996.
ADDRESSES: Submit comments in triplicate to the Federal Aviation
Administration (FAA), Transport Airplane Directorate, ANM-103,
Attention: Rules Docket No. 95-NM-267-AD, 1601 Lind Avenue SW., Renton,
Washington 98055-4056. Comments may be inspected at this location
between 9:00 a.m. and 3:00 p.m., Monday through Friday, except Federal
holidays.
The service information referenced in the proposed rule may be
obtained from Airbus Industrie, 1 Rond Point Maurice Bellonte, 31707
Blagnac Cedex, France; or Dowty Aerospace, Customer Support Center,
P.O. Box 49, Sterling, Virginia 20166.
This information may be examined at the FAA, Transport Airplane
Directorate, 1601 Lind Avenue SW., Renton, Washington.
FOR FURTHER INFORMATION CONTACT: Tim Backman, Aerospace Engineer,
Standardization Branch, ANM-113, FAA, Transport Airplane Directorate,
1601 Lind Avenue SW., Renton, Washington 98055-4056; telephone (206)
227-2797; fax (206) 227-1149.
SUPPLEMENTARY INFORMATION:
Comments Invited
Interested persons are invited to participate in the making of the
proposed rule by submitting such written data, views, or arguments as
they may desire. Communications shall identify the Rules Docket number
and be submitted in triplicate to the address specified above. All
communications received on or before the closing date for comments,
specified above, will be considered before taking action on the
proposed rule. The proposals contained in this notice may be changed in
light of the comments received.
Comments are specifically invited on the overall regulatory,
economic, environmental, and energy aspects of the proposed rule. All
comments submitted will be available, both before and after the closing
date for comments, in the Rules Docket for examination by interested
persons. A report summarizing each FAA-public contact concerned with
the substance of this proposal will be filed in the Rules Docket.
Commenters wishing the FAA to acknowledge receipt of their comments
submitted in response to this notice must submit a self-addressed,
stamped postcard on which the following statement is made: ``Comments
to Docket Number 95-NM-267-AD.'' The postcard will be date stamped and
returned to the commenter.
Availability of NPRMs
Any person may obtain a copy of this NPRM by submitting a request
to the FAA, Transport Airplane Directorate, ANM-103, Attention: Rules
Docket No. 95-NM-267-AD, 1601 Lind Avenue SW., Renton, Washington
98055-4056.
Discussion
The Direction Generale de l'Aviation Civile (DGAC), which is the
airworthiness authority for France, recently notified the FAA that an
unsafe condition may exist on certain Airbus Model A320-200 series
airplanes. The DGAC advises that it has received reports of internal
damage to the shock absorber sub-assembly of the main landing gear
(MLG). Investigation revealed that, due to an improper fit, the screws
in the upper bearing dowels of the shock absorber sub-assembly can
become loose and come out of position.
A loose screw in the upper bearing dowels can come out and cause
internal damage to the shock absorber tube assembly. If this were to
occur, the shock absorber sub-assembly may overextend and the torque
link may fail, which could result in the inability of the MLG to
retract and the subsequent collapse of the MLG.
Explanation of Relevant Service Information
Airbus has issued Service Bulletin A320-32-1144, dated December 8,
1994, which describes procedures for modification of the shock absorber
sub-assembly of the MLG. The modification involves installing new
dowels and a retaining ring to the shock absorber assembly. The
modification will reduce the possibility of internal damage to the sub-
assembly. (The Airbus service bulletin references Dowty Service
Bulletin 200-32-215, dated July 7, 1994, and Dowty Service Bulletin
200-32-216, Revision 1, dated August 4, 1994, as additional sources of
service information for accomplishment of these procedures.) The DGAC
classified this service bulletin as mandatory and issued French
airworthiness directive (CN) 95-016-063 (B), dated January 18, 1995, in
order to assure the continued airworthiness of these airplanes in
France.
[[Page 18705]]
FAA's Conclusions
This airplane model is manufactured in France and is type
certificated for operation in the United States under the provisions of
section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and
the applicable bilateral airworthiness agreement. Pursuant to this
bilateral airworthiness agreement, the DGAC has kept the FAA informed
of the situation described above. The FAA has examined the findings of
the DGAC, reviewed all available information, and determined that AD
action is necessary for products of this type design that are
certificated for operation in the United States.
Explanation of the Requirements of the Proposed Rule
Since an unsafe condition has been identified that is likely to
exist or develop on other airplanes of the same type design, the
proposed AD would require modification of the shock absorber sub-
assembly of the MLG. The actions would be required to be accomplished
in accordance with the service bulletin described previously.
Cost Impact
The FAA estimates that 115 airplanes of U.S. registry would be
affected by this proposed AD, that it would take approximately 24 work
hours per airplane to accomplish the proposed actions, and that the
average labor rate is $60 per work hour. Required parts would be
provided by the manufacturer at no cost to the operator. Based on these
figures, the cost impact of the proposed AD on U.S. operators is
estimated to be $165,600, or $1,440 per airplane.
The cost impact figure discussed above is based on assumptions that
no operator has yet accomplished any of the proposed requirements of
this AD action, and that no operator would accomplish those actions in
the future if this AD were not adopted.
Regulatory Impact
The regulations proposed herein would not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this
proposal would not have sufficient federalism implications to warrant
the preparation of a Federalism Assessment.
For the reasons discussed above, I certify that this proposed
regulation (1) is not a ``significant regulatory action'' under
Executive Order 12866; (2) is not a ``significant rule'' under the DOT
Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
and (3) if promulgated, will not have a significant economic impact,
positive or negative, on a substantial number of small entities under
the criteria of the Regulatory Flexibility Act. A copy of the draft
regulatory evaluation prepared for this action is contained in the
Rules Docket. A copy of it may be obtained by contacting the Rules
Docket at the location provided under the caption ADDRESSES.
List of Subjects in 14 CFR Part 39
Air transportation, Aircraft, Aviation safety, Safety.
The Proposed Amendment
Accordingly, pursuant to the authority delegated to me by the
Administrator, the Federal Aviation Administration proposes to amend
part 39 of the Federal Aviation Regulations (14 CFR part 39) as
follows:
PART 39--AIRWORTHINESS DIRECTIVES
1. The authority citation for part 39 continues to read as follows:
Authority: 49 USC 106(g), 40113, 44701.
Sec. 39.13 [Amended]
2. Section 39.13 is amended by adding the following new
airworthiness directive:
Airbus Industrie: Docket 95-NM-267-AD.
Applicability: Model A320-200 series airplanes on which Airbus
Modification 24594 (reference Airbus Service Bulletin A320-32-1144)
has not been installed, certificated in any category.
Note 1: This AD applies to each airplane identified in the
preceding applicability provision, regardless of whether it has been
otherwise modified, altered, or repaired in the area subject to the
requirements of this AD. For airplanes that have been modified,
altered, or repaired so that the performance of the requirements of
this AD is affected, the owner/operator must request approval for an
alternative method of compliance in accordance with paragraph (b) of
this AD. The request should include an assessment of the effect of
the modification, alteration, or repair on the unsafe condition
addressed by this AD; and, if the unsafe condition has not been
eliminated, the request should include specific proposed actions to
address it.
Compliance: Required as indicated, unless accomplished
previously. -
To prevent damage to the internal area of the shock absorber
sub-assembly, which could cause an overextension of the shock
absorber and failure of the torque link, accomplish the following:
(a) Prior to the accumulation of 6,000 total landings since the
shock absorber of the main landing gear (MLG) was removed, built, or
overhauled; or within 6 months after the effective date of this AD;
whichever occurs later: Modify the shock absorber assembly of the
MLG, in accordance with Airbus Service Bulletin A320-32-1144, dated
December 8, 1994.
Note 2: Airbus Service Bulletin A320-32-1144 references Dowty
Aerospace Service Bulletin 200-32-215, dated July 7, 1994, and Dowty
Aerospace Service Bulletin 200-32-216, Revision 1, dated November
18, 1994, as additional sources of service information for
modification of the shock absorber.
(b) An alternative method of compliance or adjustment of the
compliance time that provides an acceptable level of safety may be
used if approved by the Manager, Standardization Branch, ANM-113,
FAA, Transport Airplane Directorate. Operators shall submit their
requests through an appropriate FAA Principal Maintenance Inspector,
who may add comments and then send it to the Manager,
Standardization Branch, ANM-113.
Note 3: Information concerning the existence of approved
alternative methods of compliance with this AD, if any, may be
obtained from the Standardization Branch, ANM-113.
(c) Special flight permits may be issued in accordance with
sections 21.197 and 21.199 of the Federal Aviation Regulations (14 CFR
21.197 and 21.199) to operate the airplane to a location where the
requirements of this AD can be accomplished.
Issued in Renton, Washington, on April 23, 1996.
S.R. Miller,
Acting Manager, Transport Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 96-10507 Filed 4-26-96; 8:45 am]
BILLING CODE 4910-13-P
Complete official Federal Register PDF
FR Doc. 96-10506 Airworthiness Directives; Boeing Model 747-400 Series Airplanes Equipped With BFGoodrich Evacuation Slide/Rafts
[Federal Register Volume 61, Number 83 (Monday, April 29, 1996)]
[Proposed Rules]
[Pages 18705-18707]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-10506]
-----------------------------------------------------------------------
DEPARTMENT OF AGRICULTURE
DEPARTMENT OF TRANSPORTATION
14 CFR Part 39
[Docket No. 95-NM-218-AD]
RIN 2120-AA64
Airworthiness Directives; Boeing Model 747-400 Series Airplanes
Equipped With BFGoodrich Evacuation Slide/Rafts
AGENCY: Federal Aviation Administration, DOT.
ACTION: Notice of proposed rulemaking (NPRM).
-----------------------------------------------------------------------
SUMMARY: This document proposes the adoption of a new airworthiness
directive (AD) that is applicable to certain Boeing Model 747-400
series airplanes. This proposal would require modification of door 5
evacuation slide/rafts. This proposal is prompted by reports that the
door 5 evacuation slide/raft failed to deploy properly due to adverse
loads caused by the geometry of this evacuation slide/raft. The actions
specified by the proposed AD are
[[Page 18706]]
intended to prevent failure of the door 5 evacuation slide/raft to
deploy properly, which could contribute to injury of passengers on the
slide and could delay or impede the evacuation of passengers during an
emergency.
DATES: Comments must be received by June 10, 1996.
ADDRESSES: Submit comments in triplicate to the Federal Aviation
Administration (FAA), Transport Airplane Directorate, ANM-103,
Attention: Rules Docket No. 95-NM-218-AD, 1601 Lind Avenue, SW.,
Renton, Washington 98055-4056. Comments may be inspected at this
location between 9:00 a.m. and 3:00 p.m., Monday through Friday, except
Federal holidays.
The service information referenced in the proposed rule may be
obtained from BFGoodrich Company, Aircraft Evacuation Systems,
Department 7916, Phoenix, Arizona 85040. This information may be
examined at the FAA, Transport Airplane Directorate, 1601 Lind Avenue,
SW., Renton, Washington; or at the FAA, Transport Airplane Directorate,
Los Angeles Aircraft Certification Office, 3960 Paramount Boulevard,
Lakewood, California.
FOR FURTHER INFORMATION CONTACT: Andrew Gfrerer, Aerospace Engineer,
Systems and Equipment Branch, ANM-130L, FAA, Los Angeles Aircraft
Certification Office, 3960 Paramount Boulevard, Lakewood, California
90712; telephone (310) 627-5338; fax (310) 627-5210.
SUPPLEMENTARY INFORMATION:
Comments Invited
Interested persons are invited to participate in the making of the
proposed rule by submitting such written data, views, or arguments as
they may desire. Communications shall identify the Rules Docket number
and be submitted in triplicate to the address specified above. All
communications received on or before the closing date for comments,
specified above, will be considered before taking action on the
proposed rule. The proposals contained in this notice may be changed in
light of the comments received.
Comments are specifically invited on the overall regulatory,
economic, environmental, and energy aspects of the proposed rule. All
comments submitted will be available, both before and after the closing
date for comments, in the Rules Docket for examination by interested
persons. A report summarizing each FAA-public contact concerned with
the substance of this proposal will be filed in the Rules Docket.
Commenters wishing the FAA to acknowledge receipt of their comments
submitted in response to this notice must submit a self-addressed,
stamped postcard on which the following statement is made: ``Comments
to Docket Number 95-NM-218-AD.'' The postcard will be date stamped and
returned to the commenter.
Availability of NPRMs
Any person may obtain a copy of this NPRM by submitting a request
to the FAA, Transport Airplane Directorate, ANM-103, Attention: Rules
Docket No. 95-NM-218-AD, 1601 Lind Avenue, SW., Renton, Washington
98055-4056.
Discussion
The FAA has received reports indicating that the door 5 evacuation
slide/raft installed on Boeing Model 747-400 series airplanes failed to
deploy properly. Investigation revealed that the apparent cause of one
of these failures has been attributed to the improper gluing method
used during the manufacturing process. The FAA finds this situation to
be isolated to a specific builder and limited to only seven units in
which only one unit failed.
However, further investigation has revealed that, during the
initial deployment stages of door 5 evacuation slide/raft, the
inflation bottle bag can apply adverse loads to both the forward side
bottle hanger strap and the lower girt attachment on the forward side
of this evacuation slide/raft. Such adverse loads could pull the center
girt attachment partially loose at the forward side, or could tear the
lower inflation tube assembly at the forward edge of the center girt.
The cause of such adverse loads has been attributed to the geometry of
this particular evacuation slide/raft. This condition, if not
corrected, could result in failure of door 5 evacuation slide/raft to
deploy properly, which could contribute to injury of passengers on the
slide, and could delay or impede the evacuation of passengers during an
emergency.
Explanation of Relevant Service Information
The FAA has reviewed and approved BFGoodrich Service Bulletin
7A1469-25-283, dated November 6, 1995, which describes procedures for
modification of door 5 evacuation slide/rafts. The modification
involves replacing the bottle support straps of door 5 with new support
straps, relocating these straps, and directly lacing them to the center
girt attachment. Accomplishment of the modification will eliminate
bonded attachments from the load path and prevent damage to the slide/
raft fabric.
Explanation of the Requirements of the Proposed Rule
Since an unsafe condition has been identified that is likely to
exist or develop on other products of this same type design, the
proposed AD would require modification of the door 5 evacuation slide/
rafts. The actions would be required to be accomplished in accordance
with the alert service bulletin described previously.
Explanation of the Applicability of the Proposed Rule
Operators should note that the applicability of this proposed rule
affects Boeing Model 747-400 series airplanes that are equipped with
certain BFGoodrich escape slide/rafts. The FAA's general policy is
that, when an unsafe condition results from the installation of an
appliance or other item that is installed in only one particular make
and model of aircraft, the AD is issued so that it is applicable to the
aircraft, rather than the item. The reason is simple: Making the AD
applicable to the airplane model on which the item is installed ensures
that operators of those airplanes will be notified directly of the
unsafe condition and the action required to correct it. While it is
assumed that an operator will know the models of airplanes that it
operates, there is a potential that the operator will not know or be
aware of specific items that are installed on its airplanes. It is for
this reason that this proposed AD would be applicable to Model 747-
400's rather than to the BFGoodrich escape slide/rafts. Additionally,
calling out the airplane model as the subject of the AD prevent
``unknowing non-compliance'' on the part of the operator.
The FAA recognizes that there are situations when an unsafe
condition exists in an item that is installed in many different
aircraft. In those cases, the FAA considers it impractical to issue
AD's against each aircraft; in fact, many times, the exact models and
number of aircraft on which the item is installed may not be known.
Therefore, in those situations, the AD is issued so that it is
applicable to the item; furthermore, those AD's usually indicate that
the item is known to be installed on, but not limited to, various
aircraft models.
Cost Impact
The FAA estimates that 150 BFGoodrich evacuation slide/rafts
installed on 75 Boeing Model 747-400
[[Page 18707]]
series airplanes (2 slides per airplane) of U.S. registry would be
affected by this proposed AD, that it would take approximately 1 work
hour per slide to accomplish the proposed actions, and that the average
labor rate is $60 per work hour. Required parts would cost
approximately $84 per slide. Based on these figures, the cost impact of
the proposed AD on U.S. operators is estimated to be $21,600, or $144
per slide.
The cost impact figure discussed above is based on assumptions that
no operator has yet accomplished any of the proposed requirements of
this AD action, and that no operator would accomplish those actions in
the future if this AD were not adopted.
Regulatory Impact
The regulations proposed herein would not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this
proposal would not have sufficient federalism implications to warrant
the preparation of a Federalism Assessment.
For the reasons discussed above, I certify that this proposed
regulation (1) is not a ``significant regulatory action'' under
Executive Order 12866; (2) is not a ``significant rule'' under the DOT
Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
and (3) if promulgated, will not have a significant economic impact,
positive or negative, on a substantial number of small entities under
the criteria of the Regulatory Flexibility Act. A copy of the draft
regulatory evaluation prepared for this action is contained in the
Rules Docket. A copy of it may be obtained by contacting the Rules
Docket at the location provided under the caption ADDRESSES.
List of Subjects in 14 CFR Part 39
Air transportation, Aircraft, Aviation safety, Safety.
The Proposed Amendment
Accordingly, pursuant to the authority delegated to me by the
Administrator, the Federal Aviation Administration proposes to amend
part 39 of the Federal Aviation Regulations (14 CFR part 39) as
follows:
PART 39--AIRWORTHINESS DIRECTIVES
1. The authority citation for part 39 continues to read as follows:
Authority: 49 USC 106(g), 40113, 44701.
Sec. 39.13 [Amended]
2. Section 39.13 is amended by adding the following new
airworthiness directive:
Boeing: Docket 95-NM-218-AD.
Applicability: Model 747-400 series airplanes equipped with
BFGoodrich Evacuation Slide/Rafts at door 5; having slide/raft assembly
part number 7A1469-1, -2, -3, -4, -7, -8, -9, -10, -11, or -12 (all
unit serial numbers); certificated in any category.
Note 1: This AD applies to each airplane identified in the
preceding applicability provision, regardless of whether it has been
otherwise modified, altered, or repaired in the area subject to the
requirements of this AD. For airplanes that have been modified,
altered, or repaired so that the performance of the requirements of
this AD is affected, the owner/operator must request approval for an
alternative method of compliance in accordance with paragraph (b) of
this AD. The request should include an assessment of the effect of
the modification, alteration, or repair on the unsafe condition
addressed by this AD; and, if the unsafe condition has not been
eliminated, the request should include specific proposed actions to
address it.
Compliance: Required as indicated, unless accomplished
previously.
To prevent failure of the door 5 evacuation slide/raft to deploy
properly, which could contribute to injury of passengers on the
slide and could delay or impede the evacuation of passengers during
an emergency, accomplish the following:
(a) Within 36 months after the effective date of this AD, modify
the door 5 evacuation slide/raft in accordance with BFGoodrich
Service Bulletin 7A1469-25-283, dated November 6, 1995.
Note 2: Modification previous to the effective date of this AD
in accordance with Boeing Alert Service Bulletin 747-25A3096, which
references BFGoodrich Service Bulletin 7A1469-25-283, dated November
6, 1995, is considered acceptable for compliance with the
modification requirements of paragraph (a) of this AD.
(b) An alternative method of compliance or adjustment of the
compliance time that provides an acceptable level of safety may be
used if approved by the Manager, Los Angeles Aircraft Certification
Office (ACO), FAA, Transport Airplane Directorate. Operators shall
submit their requests through an appropriate FAA Principal
Maintenance Inspector, who may add comments and then send it to the
Manager, Los Angeles ACO.
Note 3: Information concerning the existence of approved
alternative methods of compliance with this AD, if any, may be
obtained from the Los Angeles ACO.
(c) Special flight permits may be issued in accordance with
sections 21.197 and 21.199 of the Federal Aviation Regulations (14
CFR 21.197 and 21.199) to operate the airplane to a location where
the requirements of this AD can be accomplished.
Issued in Renton, Washington, on April 23, 1996.
S.R. Miller,
Acting Manager, Transport Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 96-10506 Filed 4-26-96; 8:45 am]
BILLING CODE 4910-13-P
Complete official Federal Register PDF
FR Doc. 96-10505 Airworthiness Directives; Jetstream Model 4101 Airplanes
[Federal Register Volume 61, Number 83 (Monday, April 29, 1996)]
[Proposed Rules]
[Pages 18707-18709]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-10505]
-----------------------------------------------------------------------
DEPARTMENT OF AGRICULTURE
DEPARTMENT OF TRANSPORTATION
14 CFR Part 39
[Docket No. 96-NM-49-AD]
RIN 2120-AA64
Airworthiness Directives; Jetstream Model 4101 Airplanes
AGENCY: Federal Aviation Administration, DOT.
ACTION: Notice of proposed rulemaking (NPRM).
-----------------------------------------------------------------------
SUMMARY: This document proposes the supersedure of an existing
airworthiness directive (AD), applicable to certain Jetstream Model
4101 airplanes, that currently requires inspection to determine the
number of hours time-in-service on the landing gear control unit, and
modification of the cable (electrical wiring circuit) of the landing
gear control unit. That AD was prompted by a report of failure of a
micro-switch in the landing gear control unit. This action would
require installation of a new landing gear control unit. This action
also would expand the applicability of the existing AD to include
additional airplanes. The actions specified by the proposed AD are
intended to prevent uncommanded retraction of a landing gear, which
could adversely affect airplane controllability.
DATES: Comments must be received by June 10, 1996.
ADDRESSES: Submit comments in triplicate to the Federal Aviation
Administration (FAA), Transport Airplane Directorate, ANM-103,
Attention: Rules Docket No. 96-NM-49-AD, 1601 Lind Avenue, SW., Renton,
Washington 98055-4056. Comments may be inspected at this location
between 9:00 a.m. and 3:00 p.m., Monday through Friday, except Federal
holidays.
The service information referenced in the proposed rule may be
obtained from Jetstream Aircraft, Inc., P.O. Box 16029, Dulles
International Airport, Washington, DC 20041-6029. This information may
be examined at the FAA, Transport Airplane Directorate, 1601 Lind
Avenue, SW., Renton, Washington.
FOR FURTHER INFORMATION CONTACT: William Schroeder, Aerospace Engineer,
Standardization Branch, ANM-113, FAA, Transport Airplane Directorate,
[[Page 18708]]
1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone (206)
227-2148; fax (206) 227-1149.
SUPPLEMENTARY INFORMATION:
Comments Invited
Interested persons are invited to participate in the making of the
proposed rule by submitting such written data, views, or arguments as
they may desire. Communications shall identify the Rules Docket number
and be submitted in triplicate to the address specified above. All
communications received on or before the closing date for comments,
specified above, will be considered before taking action on the
proposed rule. The proposals contained in this notice may be changed in
light of the comments received.
Comments are specifically invited on the overall regulatory,
economic, environmental, and energy aspects of the proposed rule. All
comments submitted will be available, both before and after the closing
date for comments, in the Rules Docket for examination by interested
persons. A report summarizing each FAA-public contact concerned with
the substance of this proposal will be filed in the Rules Docket.
Commenters wishing the FAA to acknowledge receipt of their comments
submitted in response to this notice must submit a self-addressed,
stamped postcard on which the following statement is made: ``Comments
to Docket Number 96-NM-49-AD.'' The postcard will be date stamped and
returned to the commenter.
Availability of NPRMs
Any person may obtain a copy of this NPRM by submitting a request
to the FAA, Transport Airplane Directorate, ANM-103, Attention: Rules
Docket No. 96-NM-49-AD, 1601 Lind Avenue, SW., Renton, Washington
98055-4056.
Discussion
On May 18, 1995, the FAA issued AD 95-09-03, amendment 39-9241 (60
FR 28035, May 30, 1995), applicable to certain Jetstream Model 4101
airplanes, to require inspection to determine the number of hours time-
in-service on the landing gear control unit, and modification of the
cable (electrical wiring circuit) of the landing gear control unit.
That action was prompted by a report of failure of a micro-switch in
the landing gear control unit. The requirements of that AD are intended
to prevent uncommanded retraction of a landing gear, which could
adversely affect airplane controllability.
In the preamble to AD 95-09-03, the FAA indicated that modification
(Jetstream Modification JM41490) of the cable (electrical wiring
circuit) of the landing gear control unit was considered ``interim
action'' and that further rulemaking action was being considered. As a
follow-on action from that determination, the FAA is now proposing
additional, final action.
Explanation of Relevant Service Information
Since the issuance of AD 95-09-03, Jetstream has issued Service
Bulletin J41-32-044, dated September 22, 1995, which describes
procedures for installation of a new improved landing gear control
unit, identified as Modification JM41501. The procedures involve
installing a new landing gear control unit that has revised switching.
The new switching will prevent uncommanded landing gear retractions
caused by spurious signals from single switch failures.
The installation also involves revising certain wiring, which
includes removing cables installed in accordance with Jetstream
Modification JM41490. Additionally, the installation involves
reallocating a spare pin in the airplane connector to prevent the
operation of the old landing gear control unit in the event that one is
inadvertently installed.
Accomplishment of Modification JM41501 will positively address the
unsafe condition identified as uncommanded retraction of a main landing
gear.
In addition, the effectivity listing of this service bulletin
includes additional airplanes that were not previously affected by AD
95-09-03, and removes certain others.
The Civil Aviation Authority (CAA), which is the airworthiness
authority for the United Kingdom, classified this service bulletin as
mandatory in order to assure the continued airworthiness of these
airplanes in the United Kingdom.
FAA's Conclusions
This airplane model is manufactured in the United Kingdom and is
type certificated for operation in the United States under the
provisions of section 21.29 of the Federal Aviation Regulations (14 CFR
21.29) and the applicable bilateral airworthiness agreement. Pursuant
to this bilateral airworthiness agreement, the CAA has kept the FAA
informed of the situation described above. The FAA has examined the
findings of the CAA, reviewed all available information, and determined
that AD action is necessary for products of this type design that are
certificated for operation in the United States.
Explanation of the Requirements of the Proposed Rule
Since an unsafe condition has been identified that is likely to
exist or develop on other airplanes of the same type design registered
in the United States, the proposed AD would supersede AD 95-09-03. For
those airplanes subject to AD 95-09-03, it would continue to require an
inspection to determine the number of hours time-in-service on the
landing gear control unit, and modification of the cable (electrical
wiring circuit) of the landing gear control unit. For those airplanes
and certain others, it would require installation of a new improved
landing gear control unit. The actions would be required to be
accomplished in accordance with the Jetstream service bulletin
described previously.
The applicability of the proposed AD would include additional
airplanes that have been identified to be subject to the same unsafe
condition (an included in the effectivity listing of the Jetstream
service bulletin).
Cost Impact
There are approximately 44 Jetstream Model 4101 airplanes of U.S.
registry that would be affected by this proposed AD.
The actions that are currently required by AD 95-09-03, and
retained in this proposed AD, take approximately 7 work hours per
airplane to accomplish, at an average labor rate of $60 per work hour.
The required parts are provided by the manufacturer at no cost to the
operator. Based on these figures, the cost impact on U.S. operators of
the actions currently required is estimated to be $18,480, or $420 per
airplane. The FAA has been advised that all affected U.S. operators
have accomplished these requirements; therefore, there is no future
cost impact of these requirements on current U.S. operators of these
airplanes.
The new installation that would be required by this proposed AD
would take approximately 6 work hours per airplane to accomplish, at an
average labor rate of $60 per work hour. Required parts would be
provided at no cost to the operator. Based on these figures, the cost
impact on U.S. operators of the proposed requirements of this AD is
estimated to be $15,840, or $360 per airplane. This cost impact figure
is based on assumptions that no operator has yet accomplished any of
the proposed requirements of this AD action, and that no operator would
accomplish those actions in the future if this AD were not adopted.
[[Page 18709]]
Regulatory Impact
The regulations proposed herein would not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this
proposal would not have sufficient federalism implications to warrant
the preparation of a Federalism Assessment.
For the reasons discussed above, I certify that this proposed
regulation (1) is not a ``significant regulatory action'' under
Executive Order 12866; (2) is not a ``significant rule'' under the DOT
Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
and (3) if promulgated, will not have a significant economic impact,
positive or negative, on a substantial number of small entities under
the criteria of the Regulatory Flexibility Act. A copy of the draft
regulatory evaluation prepared for this action is contained in the
Rules Docket. A copy of it may be obtained by contacting the Rules
Docket at the location provided under the caption ADDRESSES.
List of Subjects in 14 CFR Part 39
Air transportation, Aircraft, Aviation safety, Safety.
The Proposed Amendment
Accordingly, pursuant to the authority delegated to me by the
Administrator, the Federal Aviation Administration proposes to amend
part 39 of the Federal Aviation Regulations (14 CFR part 39) as
follows:
PART 39--AIRWORTHINESS DIRECTIVES
1. The authority citation for part 39 continues to read as follows:
Authority: 49 U.S.C. 106(g), 40113, 44701.
Sec. 39.13 [Amended]
2. Section 39.13 is amended by removing amendment 39-9241 (60 FR
28035, May 30, 1995), and by adding a new airworthiness directive (AD),
to read as follows:
Jetstream Aircraft Limited: Docket 96-NM-49-AD. Supersedes AD 95-09-
03, Amendment 39-9241.
Applicability: Model 4101 airplanes, constructor numbers 41001
through 41073 inclusive; certificated in any category.
Note 1: This AD applies to each airplane identified in the
preceding applicability provision, regardless of whether it has been
otherwise modified, altered, or repaired in the area subject to the
requirements of this AD. For airplanes that have been modified,
altered, or repaired so that the performance of the requirements of
this AD is affected, the owner/operator must request approval for an
alternative method of compliance in accordance with paragraph (d) of
this AD. The request should include an assessment of the effect of
the modification, alteration, or repair on the unsafe condition
addressed by this AD; and, if the unsafe condition has not been
eliminated, the request should include specific proposed actions to
address it.
-Compliance: Required as indicated, unless accomplished
previously. -
To prevent uncommanded retraction of the landing gear, which can
adversely affect airplane controllability, accomplish the following:
-
(a) For airplanes having constructor numbers 41001 through 41046
inclusive, and 41048 through 41052 inclusive; equipped with either
landing gear control unit part number 717701-1 or 717701-1 Mod A:
Within 8 hours time-in-service after June 14, 1995 (the effective
date of AD 95-09-03, amendment 39-9241), perform an inspection to
determine the number of hours time-in-service on the landing gear
control unit, in accordance with Jetstream Alert Service Bulletin
J41-A32-042, dated April 13, 1995. -
(1) For those airplanes on which the control unit has
accumulated less than 200 hours time-in-service: Prior to further
flight, modify the cable (electrical wiring circuit) of the landing
gear control unit in accordance with the alert service bulletin. -
(2) For those airplanes on which the control unit has
accumulated 200 hours or more time-in-service: Within 50 hours time-
in-service or within 7 days after June 14, 1995 (the effective date
of AD 95-09-03, amendment 39-9241), whichever occurs earlier, modify
the cable (electrical wiring circuit) of the landing gear control
unit in accordance with the alert service bulletin. -
(b) For airplanes having constructor numbers 41001 through 41073
inclusive: Within 6 months after the effective date of this AD,
install a new improved landing gear control unit and modify the
wiring, in accordance with Jetstream Service Bulletin J41-32-044,
dated September 22, 1995. -
(c) As of the effective date of this AD, no person shall install
a landing gear control unit having part number 717701-1 or 717701-1
Mod A, on any airplane. -
(d) An alternative method of compliance or adjustment of the
compliance time that provides an acceptable level of safety may be
used if approved by the Manager, Standardization Branch, ANM-113,
FAA, Transport Airplane Directorate. Operators shall submit their
requests through an appropriate FAA Principal Maintenance Inspector,
who may add comments and then send it to the Manager,
Standardization Branch, ANM-113.
-Note 2: Information concerning the existence of approved
alternative methods of compliance with this AD, if any, may be
obtained from the Manager, Standardization Branch, ANM-113. -
(e) Special flight permits may be issued in accordance with
sections 21.197 and 21.199 of the Federal Aviation Regulations (14
CFR 21.197 and 21.199) to operate the airplane to a location where
the requirements of this AD can be accomplished.
Issued in Renton, Washington, on April 23, 1996.
S. R. Miller,
Acting Manager, Transport Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 96-10505 Filed 4-26-96; 8:45 am]
BILLING CODE 4910-13-P
Complete official Federal Register PDF
FR Doc. 96-10504 Airworthiness Directives; Airbus Model A320 Series Airplanes
[Federal Register Volume 61, Number 83 (Monday, April 29, 1996)]
[Proposed Rules]
[Pages 18709-18711]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-10504]
-----------------------------------------------------------------------
DEPARTMENT OF AGRICULTURE
DEPARTMENT OF TRANSPORTATION
14 CFR Part 39
[Docket No. 95-NM-237-AD]
RIN 2120-AA64
Airworthiness Directives; Airbus Model A320 Series Airplanes
AGENCY: Federal Aviation Administration, DOT.
ACTION: Notice of proposed rulemaking (NPRM).
-----------------------------------------------------------------------
SUMMARY: This document proposes the adoption of a new airworthiness
directive (AD) that is applicable to certain Airbus Model A320 series
airplanes. This proposal would require an inspection to detect damage
to the electrical wiring of the fuel tank of the wings and to verify if
the proper P-clip is installed in the electrical wiring. The proposed
AD would also require re-fitting any proper P-clip, replacing any
improper P-clip with a new P-clip, and repairing damaged electrical
wiring. This proposal is prompted by a report that incorrect P-clips
were found installed in the electrical wiring of the fuel system on
these airplanes. The actions specified by the proposed AD are intended
to ensure that the proper P-clips are installed. Improper P-clips could
fail to adequately safeguard the fuel tank of the wing against a
lightning strike, which could result in electrical arcing and resultant
fire.
DATES: Comments must be received by June 10, 1996.
ADDRESSES: Submit comments in triplicate to the Federal Aviation
Administration (FAA), Transport Airplane Directorate, ANM-103,
Attention: Rules Docket No. 95-NM-237-AD, 1601 Lind Avenue, SW.,
Renton, Washington 98055-4056. Comments may be inspected at this
location between 9:00 a.m. and 3:00 p.m., Monday through Friday, except
Federal holidays.
The service information referenced in the proposed rule may be
obtained from Airbus Industrie, 1 Rond Point Maurice Bellonte, 31707
Blagnac Cedex, France. This information may be examined at the FAA,
Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton,
Washington.
FOR FURTHER INFORMATION CONTACT: Charles Huber, Aerospace Engineer,
[[Page 18710]]
Standardization Branch, ANM-113, FAA, Transport Airplane Directorate,
1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone (206)
227-2589; fax (206) 227-1149.
SUPPLEMENTARY INFORMATION:
Comments Invited
Interested persons are invited to participate in the making of the
proposed rule by submitting such written data, views, or arguments as
they may desire. Communications shall identify the Rules Docket number
and be submitted in triplicate to the address specified above. All
communications received on or before the closing date for comments,
specified above, will be considered before taking action on the
proposed rule. The proposals contained in this notice may be changed in
light of the comments received.
Comments are specifically invited on the overall regulatory,
economic, environmental, and energy aspects of the proposed rule. All
comments submitted will be available, both before and after the closing
date for comments, in the Rules Docket for examination by interested
persons. A report summarizing each FAA-public contact concerned with
the substance of this proposal will be filed in the Rules Docket.
Commenters wishing the FAA to acknowledge receipt of their comments
submitted in response to this notice must submit a self-addressed,
stamped postcard on which the following statement is made: ``Comments
to Docket Number 95-NM-237-AD.'' The postcard will be date stamped and
returned to the commenter.
Availability of NPRMs
Any person may obtain a copy of this NPRM by submitting a request
to the FAA, Transport Airplane Directorate, ANM-103, Attention: Rules
Docket No. 95-NM-237-AD, 1601 Lind Avenue, SW., Renton, Washington
98055-4056.
Discussion
The Direction Gonorale de l'Aviation Civile (DGAC), which is the
airworthiness authority for France, recently notified the FAA that an
unsafe condition may exist on certain Airbus Model A320 series
airplanes. The DGAC advises that it has received a report that
incorrect P-clips were found installed in the electrical wiring of the
fuel system on these airplanes. Investigation revealed that, during
production, skydrol-resistant ethylene propylene P-clips were installed
instead of fuel-resistant P-clips. Skydrol- resistant ethylene
propylene P-clips are not suitable for immersion in fuel. Such
immersion causes these clips to swell and lose flexibility. If the
skydrol-resistant ethylene propylene P-clips were to bend slightly,
they could fracture and deteriorate, which could fail to adequately
safeguard the fuel tank of the wing against a lightning strike. This
condition, if not corrected, could result in electrical arcing and
consequent fire.
Explanation of Relevant Service Information
Airbus has issued Service Bulletin A320-28-1052, Revision 1, dated
July 7, 1993, and Revision 2, dated September 8, 1994. The service
bulletins describe procedures for a one-time inspection to detect
damage to the electrical wiring and to verify if the proper P-clip is
installed in the electrical wiring at outboard rib 6 in the inner cell
of the fuel tank of the wings. The service bulletins also describe
procedures for re-fitting proper P-clips, and replacing improper P-
clips with a new fuel-resistant P-clip having P/N NSA5515-03NF or
NSA5516-03NV. The DGAC classified the service bulletins as mandatory
and issued French airworthiness directive 93-191-047(B), dated October
27, 1993, in order to assure the continued airworthiness of these
airplanes in France.
FAA's Conclusions
This airplane model is manufactured in France and is type
certificated for operation in the United States under the provisions of
section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and
the applicable bilateral airworthiness agreement. Pursuant to this
bilateral airworthiness agreement, the DGAC has kept the FAA informed
of the situation described above. The FAA has examined the findings of
the DGAC, reviewed all available information, and determined that AD
action is necessary for products of this type design that are
certificated for operation in the United States.
Explanation of the Proposed Rule
Since an unsafe condition has been identified that is likely to
exist or develop on other airplanes of the same type design, the
proposed AD would require a one-time inspection to detect damage to the
electrical wiring and to verify if the proper P-clip is installed in
the electrical wiring at outboard rib 6 in the inner cell of the fuel
tank of the wings. The proposed AD would also require re-fitting proper
P-clips, and replacing improper P-clips with certain new fuel-resistant
P-clips. The actions would be required to be accomplished in accordance
with the service bulletin described previously. If any damage is
detected to the electrical wiring, the repair would be required to be
done in accordance with the Airplane Wiring Manual.
Cost Impact
The FAA estimates that 44 Airbus Model A320 series airplanes of
U.S. registry would be affected by this proposed AD, that it would take
approximately 3 work hours per airplane to accomplish the proposed
actions, and that the average labor rate is $60 per work hour. Required
parts would cost approximately $100 per airplane. Based on these
figures, the cost impact of the proposed AD on U.S. operators is
estimated to be $12,320, or $280 per airplane.
The cost impact figure discussed above is based on assumptions that
no operator has yet accomplished any of the proposed requirements of
this AD action, and that no operator would accomplish those actions in
the future if this AD were not adopted.
Regulatory Impact
The regulations proposed herein would not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this
proposal would not have sufficient federalism implications to warrant
the preparation of a Federalism Assessment.
For the reasons discussed above, I certify that this proposed
regulation (1) is not a ``significant regulatory action'' under
Executive Order 12866; (2) is not a ``significant rule'' under the DOT
Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
and (3) if promulgated, will not have a significant economic impact,
positive or negative, on a substantial number of small entities under
the criteria of the Regulatory Flexibility Act. A copy of the draft
regulatory evaluation prepared for this action is contained in the
Rules Docket. A copy of it may be obtained by contacting the Rules
Docket at the location provided under the caption ADDRESSES.
List of Subjects in 14 CFR Part 39
Air transportation, Aircraft, Aviation safety, Safety.
The Proposed Amendment
Accordingly, pursuant to the authority delegated to me by the
Administrator, the Federal Aviation Administration proposes to amend
part
[[Page 18711]]
39 of the Federal Aviation Regulations (14 CFR part 39) as follows:
PART 39--AIRWORTHINESS DIRECTIVES
1. The authority citation for part 39 continues to read as follows:
Authority: 49 USC 106(g), 40113, 44701.
Sec. 39.13 [Amended]
2. Section 39.13 is amended by adding the following new
airworthiness directive:
Airbus Industrie: Docket 95-NM-237-AD.
Applicability: Model A320 series airplanes, manufacturer's
serial numbers 129 through 343 inclusive, 345 through 347 inclusive,
and 349 through 363 inclusive; certificated in any category.
Note 1: This AD applies to each airplane identified in the
preceding applicability provision, regardless of whether it has been
modified, altered, or repaired in the area subject to the
requirements of this AD. For airplanes that have been modified,
altered, or repaired so that the performance of the requirements of
this AD is affected, the owner/operator must request approval for an
alternative method of compliance in accordance with paragraph (b) of
this AD. The request should include an assessment of the effect of
the modification, alteration, or repair on the unsafe condition
addressed by this AD; and, if the unsafe condition has not been
eliminated, the request should include specific proposed actions to
address it.
Compliance: Required as indicated, unless accomplished
previously.
To ensure that the proper P-clips are installed, accomplish the
following:
(a) Within 6 months after the effective date of this AD, perform
a one-time inspection to detect damage to the electrical wiring and
to verify if the proper P-clip is installed in the electrical wiring
at outboard rib 6 in the inner cell of the fuel tank of the wings,
in accordance with Airbus Service Bulletin A320-28-1052, Revision 2,
dated September 8, 1994.
Note 2: Accomplishment of the actions specified in this
paragraph in accordance with Airbus Service Bulletin A320-28-1052,
Revision 1, dated July 7, 1993, prior to the effective date of this
AD is considered acceptable for compliance with this paragraph.
(1) If any damage is detected to the wiring, prior to further
flight, repair it in accordance with the Airplane Wiring Manual.
(2) If a P-clip having P/N NSA5515-03NF or NSA5516-03NV is
installed, prior to further flight, re-fit it in accordance with the
service bulletin.
(3) If a P-clip having P/N NSA5516-03NJ is installed, prior to
further flight, replace it with a new fuel-resistant P-clip having
P/N NSA5515-03NF or NSA5516-03NV, in accordance with the service
bulletin.
(b) An alternative method of compliance or adjustment of the
compliance time that provides an acceptable level of safety may be
used if approved by the Manager, Standardization Branch, ANM-113,
FAA, Transport Airplane Directorate. Operators shall submit their
requests through an appropriate FAA Principal Maintenance Inspector,
who may add comments and then send it to the Manager,
Standardization Branch, ANM-113.
Note 3: Information concerning the existence of approved
alternative methods of compliance with this AD, if any, may be
obtained from the Standardization Branch, ANM-113.
(c) Special flight permits may be issued in accordance with
sections 21.197 and 21.199 of the Federal Aviation Regulations (14
CFR 21.197 and 21.199) to operate the airplane to a location where
the requirements of this AD can be accomplished.
Issued in Renton, Washington, on April 23, 1996.
S.R. Miller,
Acting Manager, Transport Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 96-10504 Filed 4-26-96; 8:45 am]
BILLING CODE 4910-13-P
Complete official Federal Register PDF
FR Doc. 96-10461 Importation of Fruits and Vegetables
[Federal Register Volume 61, Number 83 (Monday, April 29, 1996)]
[Proposed Rules]
[Pages 18690-18695]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-10461]
========================================================================
Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
========================================================================
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 /
Proposed Rules
[[Page 18690]]
DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection Service
7 CFR Part 319
[Docket No. 95-068-1]
Importation of Fruits and Vegetables
AGENCY: Animal and Plant Health Inspection Service, USDA.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: We are proposing to allow, under certain conditions, the cold
treatment of imported fruit upon arrival at the ports of Seattle, WA,
Atlanta, GA, and Gulfport, MS. We have determined that there are
biological barriers at these ports that, along with certain safeguards,
would prevent the introduction of fruit flies and other insect pests
into the United States in the unlikely event that they escape from
shipments of fruit before undergoing cold treatment. We are also
proposing to require that cold treatment facilities at the port of
Wilmington, NC, remain locked during non-working hours. These actions
would facilitate the importation of fruit requiring cold treatment
while continuing to provide protection against the introduction of
fruit flies and other insect pests into the United States.
DATES: Consideration will be given only to comments received on or
before June 28, 1996.
ADDRESSES: Please send an original and three copies of your comments to
Docket No. 95-068-1, Regulatory Analysis and Development, PPD, APHIS,
suite 3C03, 4700 River Road Unit 118, Riverdale, MD 20737-1238. Please
state that your comments refer to Docket No. 95-068-1. Comments
received may be inspected at USDA, room 1141, South Building, 14th
Street and Independence Avenue SW., Washington, DC, between 8 a.m. and
4:30 p.m., Monday through Friday, except holidays. Persons wishing to
inspect comments are requested to call ahead on (202) 690-2817 to
facilitate entry into the comment reading room.
FOR FURTHER INFORMATION CONTACT: Mr. Peter M. Grosser, Senior
Operations Officer, Port Operations, PPQ, APHIS, 4700 River Road Unit
139, Riverdale, MD 20737-1236, (301) 734-8891.
SUPPLEMENTARY INFORMATION:
Background
The Fruits and Vegetables regulations, contained in 7 CFR 319.56
through 319.56-8 (referred to below as ``the regulations''), prohibit
or restrict the importation of fruits and vegetables to prevent the
introduction and dissemination of injurious insects, including fruit
flies, that are new to or not widely distributed in the United States.
The Animal and Plant Health Inspection Service (APHIS) of the U.S.
Department of Agriculture administers these regulations.
Under the regulations, APHIS allows certain fruits to be imported
into the United States if they undergo sustained refrigeration (cold
treatment) sufficient to kill certain insect pests. Cold treatment
temperature and time requirements vary according to the type of fruit
and the pests involved. Detailed cold treatment procedures may be found
in the Plant Protection and Quarantine (PPQ) Treatment Manual, which is
incorporated by reference into the regulations at 7 CFR 300.1.
Most imported fruit that requires cold treatment undergoes cold
treatment in transit to the United States. However, APHIS also allows
imported fruit to undergo cold treatment at an approved cold treatment
facility in either the country of origin or after arrival in the United
States at certain ports designated by APHIS in Sec. 319.56-2d(b)(1) of
the regulations.
Currently, cold treatment in the United States is limited to the
following ports: the port of Wilmington, NC; Atlantic ports north of,
and including, Baltimore, MD; ports on the Great Lakes and St. Lawrence
Seaway; Canadian border ports on the North Dakota border and east of
North Dakota; and, for air shipments, Washington, DC, at Baltimore-
Washington International and Dulles International airports.
Imported fruit may undergo cold treatment at the listed ports other
than Wilmington, NC, because biological barriers, including climatic
conditions, exist to prevent the introduction and establishment of
fruit flies and other insect pests that could escape from shipments of
imported fruit after arrival in the United States. Imported fruit may
also undergo cold treatment at the port of Wilmington, NC, because
APHIS has imposed special conditions regarding cold treatment to
mitigate the risk of the introduction of fruit flies and other insect
pests into the United States (see Sec. 319.56-2d(b)(5)(iv)).
Recently, we received formal requests from the Taiwanese
Government, the City of Atlanta Airport Authority, and the Mississippi
State Port Authority to authorize the ports of Seattle, WA, Atlanta,
GA, and Gulfport, MS, respectively, as approved locations for cold
treatment of imported fruit.
Previously Published Notices and Regulations
On November 12, 1993, in response to earlier petitions from
individuals at the ports of Wilmington, NC, and Gulfport, MS, we
published in the Federal Register (58 FR 59953, Docket No. 93-121-1) an
advance notice of proposed rulemaking requesting public comment on
whether we should allow cold treatment at ports in the Southern United
States and in California.
We solicited comments concerning this notice for a 45-day period
ending December 27, 1993. During that period, we received four
comments, three from State governments and one from a grower
organization. Two commenters opposed allowing cold treatment at ports
in the Southern United States and California, arguing that allowing
such treatments would place California and Florida citrus crops at too
great a risk of fruit fly infestation. Another commenter requested that
we perform a detailed pest risk analysis before deciding whether to
allow cold treatment at southern and California ports. Another
commenter supported cold treatment at the port of Wilmington, NC.
We subsequently published a proposed rule in the Federal Register
on May 13, 1994 (59 FR 24968-24971, Docket No. 93-121-2) in which we
proposed to allow imported fruit to be cold treated at the port of
Wilmington, NC, after arrival in the United States. At that time, we
decided to give further consideration to allowing cold treatment at
other ports in the Southern United States and California. In a final
rule published in the Federal Register on August 10, 1994 (59 FR 40794-
40797,
[[Page 18691]]
Docket No 93-121-3), we approved cold treatment, under certain
conditions, at the port of Wilmington, NC.
Proposal of Additional Ports
After performing extensive risk analyses, we are proposing to add
the ports of Seattle, WA, Atlanta, GA, and Gulfport, MS, to the list of
ports in Sec. 319.56-2d that are authorized as approved locations for
cold treatment of imported fruit. This proposal to allow cold treatment
of fruit under certain conditions at the ports of Seattle, WA, Atlanta,
GA, and Gulfport, MS, is based, in part, on a document prepared by
APHIS assessing the pest risks associated with allowing cold treatment
of tropical fruit fly host materials at certain United States ports.
The risk mitigation measures discussed in the document are included in
this proposal as requirements for the ports of Seattle, WA, Atlanta,
GA, and Gulfport, MS. (Copies of this document may be obtained by
writing to the individual listed under FOR FURTHER INFORMATION
CONTACT.) We have determined that in the areas of these ports proposed
for cold treatment, there are biological barriers that, along with
certain safeguards, would prevent the introduction and establishment of
fruit flies and other insect pests in the unlikely event that they
escape from shipments of fruit before undergoing cold treatment.
Risk Groups
Plant Protection and Quarantine (PPQ), APHIS, has established risk
groups for many ports in the United States. These risk groups
characterize the relative risk, without consideration for mitigating
factors, associated with the movement of tropical fruit fly host
material for cold treatment at these ports in the United States. The
ports have been assigned to one of five risk groups based on a number
of criteria, including the individual port's latitude, microclimate,
immediate host availability, and past fruit fly infestations. The risk
groups are assigned numbers I through V; this number scale represents
an ascending level of risk based on the criteria listed above. Group I
ports consist of East Coast ports north of, and including, Baltimore,
MD. Group II ports consist of the ports of Wilmington, NC, Seattle, WA,
Portland, OR, Atlanta, GA, and Norfolk, VA. Group III ports consist of
the ports of Charleston, SC, Savannah, GA, Port Arthur, TX, and
Galveston/Houston, TX. Group IV ports consist of the ports of Gulfport,
MS, Mobile, AL, New Orleans, LA, Corpus Christi, TX, and Pensacola, FL.
Group V ports consist of the ports of San Diego, CA, San Pedro/Long
Beach, CA, San Francisco, CA, Oakland, CA, Tampa, FL, Miami, FL, West
Palm/Ft. Lauderdale, FL, Cape Canaveral, FL, Jacksonville, FL, Ft.
Meyers, FL, Ft. Pierce, FL, Brownsville, TX, and all Hawaiian ports.
The general requirements for cold treatment found in Sec. 319.56-2d
are designed to mitigate the risk of infestation due to fruit fly
escape from shipments intended for cold treatment at Group I ports.
These requirements include delivering, under the supervision of an
inspector of PPQ, shipments of fruit that require cold treatment to an
approved cold storage warehouse where the shipments will be cold
treated; precooling and refrigerating the shipments of fruit intended
for cold treatment promptly upon arrival at the cold treatment
facility; allowing shipments of fruit that require cold treatment to
leave U.S. Customs custody only under a redelivery bond for cold
treatment; and allowing shipments of fruit that require cold treatment
final release from the U.S. Collector of Customs only after official
notification has been received by the Customs officer that the required
cold treatment has been completed.
For shipments of fruit arriving for cold treatment at the port of
Wilmington, NC, a Group II port, the regulations at Sec. 319.56-
2d(b)(5)(iv) also require that bulk shipments of fruit must arrive in
fly-proof packaging that prevents the escape of adult, larval, or pupal
fruit flies; bulk and containerized shipments of fruit must be cold
treated within the area over which the Bureau of Customs is assigned
the authority to accept entries of merchandise, to collect duties, and
to enforce the various provisions of the customs and navigation laws in
force; and advance reservations for cold treatment must be made prior
to the departure of a shipment from its port of origin.
Each of the ports proposed as an approved location for cold
treatment in this document, the ports of Seattle, WA, Atlanta, GA, and
Gulfport, MS, has been assigned to a risk group other than Group I;
consequently, additional mitigating factors need to be put in place
before cold treatment can occur at any of these ports.
Proposal of Special Conditions for the Ports of Seattle, WA, Atlanta,
GA, and Gulfport, MS
We are proposing to impose additional special conditions regarding
cold treatment at each of the ports proposed as an approved location
for cold treatment that mitigate the risk of the introduction and
establishment of fruit flies and other insect pests. The special
conditions that would be assigned to each port are listed below by
port.
Special Conditions for the Maritime Port of Seattle, WA
The maritime port of Seattle has biological barriers to fruit fly
introduction and establishment in that the port is not in a citrus-
producing area. This reduces the likelihood that a fruit fly escaping
from a shipment of fruit intended for cold treatment would find
adequate host material for propagation. However, the maritime port of
Seattle, WA, belongs to the Group II list of ports because the area
surrounding this port contains a small variety of fruit-fly host
material and has a longer growing season than Group I ports. Therefore,
in addition to the requirements in Sec. 319.56-2d (b)(5)(i) through
(b)(5)(iii) of the regulations concerning cold treatment, the following
additional requirements would apply to cold treatment conducted at the
maritime port of Seattle, WA:
1. Bulk shipments (those shipments which are stowed and unloaded by
the case or bin) of fruit must arrive in fruit fly-proof packaging that
prevents the escape of adult, larval, or pupal fruit flies.
This condition would ensure that shipments that arrive at the
maritime port of Seattle, WA, in cases or bins would not be exposed in
such a manner as to allow fruit flies or other insect pests to escape
from the shipment.
2. Bulk and containerized shipments of fruit must be cold treated
within the area over which the Bureau of Customs is assigned the
authority to accept entries of merchandise, to collect duties, and to
enforce the various provisions of the customs and navigation laws in
force.
This condition would restrict the movement of untreated shipments
of fruit intended for cold treatment, further minimizing the risk that
any fruit flies in the shipments would come into contact with host
material that may be in the area.
3. Advance reservations for cold treatment space must be made prior
to the departure of a shipment from its port of origin.
This condition would ensure that untreated shipments of fruit
arriving at the port would not have to wait for an extended period of
time for cold treatment. Ensuring the expeditious cold treatment of the
fruit would minimize the risk of fruit flies maturing in deteriorating
fruit.
[[Page 18692]]
4. The cold treatment facility must remained locked during non-
working hours.
This condition would help ensure that unauthorized persons do not
have access to untreated fruit and, therefore, cannot remove untreated
fruit from the cold treatment facility.
We believe that the biological barriers and these additional
conditions established for cold treatment at the maritime port of
Seattle, WA, would be adequate to prevent the introduction and
establishment of fruit flies and other insect pests.
Special Conditions for the Airports of Atlanta, GA, and Seattle, WA
The airports of Atlanta, GA, and Seattle, WA, each have biological
barriers to fruit fly introduction and establishment in that neither
port is in a citrus-producing area. This reduces the likelihood that a
fruit fly escaping from a shipment of fruit intended for cold treatment
would find adequate host material for propagation. However, both the
airports of Atlanta, GA, and Seattle, WA, belong to the Group II list
of ports because the areas surrounding these airports contain a small
variety of fruit-fly host material and have longer growing seasons than
Group I ports. Additionally, although fruit that travels to the United
States by ship for cold treatment is regularly chilled during transit,
fruit imported into the United States by aircraft for cold treatment is
not. Therefore, the mitigation measures for the Group II airports of
Atlanta, GA, and Seattle, WA, would be more extensive than the
mitigation measures for Group II maritime ports. As such, in addition
to the requirements in Sec. 319.56-2d(b)(5)(i) through (b)(5)(iii) of
the regulations concerning cold treatment, the following additional
requirements would apply to cold treatment conducted at the airports of
Atlanta, GA, and Seattle, WA:
1. Bulk and containerized shipments of fruit must arrive in fruit
fly-proof packaging that prevents the escape of adult, larval, or pupal
fruit flies.
This condition would ensure that all shipments, including those
that that arrive at these airports in cases or bins, would not be
exposed in such a manner as to allow fruit flies or other insect pests
to escape from the shipment.
2. Bulk and containerized shipments of fruit must be cold treated
within the area over which the Bureau of Customs is assigned the
authority to accept entries of merchandise, to collect duties, and to
enforce the various provisions of the customs and navigation laws in
force.
This condition would restrict the movement of untreated shipments
of fruit intended for cold treatment, further minimizing the risk that
any fruit flies in the shipments would come into contact with host
material that may be in the area.
3. The cold treatment facility and PPQ must agree in advance on the
route by which shipments are allowed to move between the aircraft on
which they arrived at the port and the cold treatment facility. The
movement of shipments from aircraft to cold treatment facility would
not be allowed until an acceptable route has been agreed upon.
In most instances, the route would be determined by establishing
the shortest route between the aircraft and the cold treatment facility
that does not include an area that contains host material for fruit
flies during the time of year that the region experiences its most
abundant amount of host material for fruit flies. Then, that route
would be used throughout the year to convey shipments from aircraft to
cold treatment facility. This predetermined route would reduce the
amount of time that a shipment would have to wait before undergoing
cold treatment and would reduce the risk that any fruit flies in the
shipments would come into contact with host material en route to cold
treatment.
4. Advance reservations for cold treatment space must be made prior
to the departure of a shipment from its port of origin.
This condition would ensure that untreated shipments of fruit
arriving at the port would not have to wait for an extended period of
time for cold treatment. Ensuring the expeditious cold treatment of the
fruit would minimize the risk of fruit flies maturing in deteriorating
fruit.
5. The cold treatment facility must remained locked during non-
working hours.
This condition would help ensure that unauthorized persons do not
have access to untreated fruit and, therefore, cannot remove untreated
fruit from the cold treatment facility.
6. Blacklight or sticky paper must be used within the cold
treatment facility, and other trapping methods, including Jackson/
methyl eugenol and McPhail traps, must be used within the 4 square
miles surrounding the cold treatment facility.
This condition would act as a general safeguard. We propose this
condition as an extra layer of defense that would trap any fruit flies
within the facility or within the facility's environs, in the unlikely
event that a fruit fly manages to survive past the stage of pupation in
the cold treatment facility.
7. The cold treatment facility must have contingency plans,
approved by the Deputy Administrator of PPQ, for handling fruit,
including the ability to destroy or dispose of fruit safely.
This condition would ensure that, in the event that a shipment
cannot be cold treated promptly or properly, the contents of the
shipment could be safely treated by alternative means, destroyed, or
disposed of so that fruit flies and other insect pests would not have
the opportunity to escape. Examples of adequate contingency plans would
include the ability to incinerate fruit, to bury fruit, or to re-export
fruit.
We believe that the biological barriers and these additional
conditions established for cold treatment at the airports of Atlanta,
GA, and Seattle, WA, would be adequate to prevent the introduction and
establishment of fruit flies and other plant pests.
Special Conditions for the Port of Gulfport, MS
The maritime port of Gulfport, MS, has biological barriers to fruit
fly introduction and establishment in that it is not in a citrus-
producing area. This reduces the likelihood that a fruit fly escaping
from a shipment of fruit intended for cold treatment would find
adequate host material for propagation. However, the port of Gulfport
belongs to the Group IV list of ports because the area surrounding this
port, among other things, contains a wider variety and greater quantity
of fruit-fly host material than Group I, II, or III ports and has a
lengthy growing season due to its southern location. Therefore, in
addition to the requirements in Sec. 319.56-2d(b)(5)(i) through
(b)(5)(iii) of the regulations concerning cold treatment, the following
additional requirements would apply to cold treatment conducted at the
maritime port of Gulfport, MS:
1. All fruit entering the port for cold treatment must move in
maritime containers. No bulk shipments (those shipments which are
stowed and unloaded by the case or bin) would be allowed at the port of
Gulfport, MS.
This condition would ensure that imported fruit arriving at the
port of Gulfport, MS, for cold treatment would not be exposed to the
outdoors. The shipping container would insulate the fruit, thereby
helping to keep the fruit chilled during unloading, would prevent
leakage of the shipment, and would serve as a barrier to fruit fly
escape from shipments of untreated fruit.
[[Page 18693]]
2. Within the container, the fruit intended for cold treatment must
be enclosed in fruit fly-proof packaging that prevents the escape of
adult, larval, or pupal fruit flies.
This condition would ensure that containerized shipments would be
packaged in such a manner as to prevent fruit flies or other insect
pests from escaping from the shipment when the container is opened.
This condition would provide an extra barrier to fruit fly escape from
a shipment of untreated fruit.
3. Containerized shipments of fruit arriving at the port must be
cold treated within the area over which the Bureau of Customs is
assigned the authority to accept entries of merchandise, to collect
duties, and to enforce the various provisions of the customs and
navigation laws in force.
This condition would restrict the movement of untreated shipments
of fruit intended for cold treatment, further minimizing the risk that
any fruit flies in the shipments would come into contact with host
material that may be in the area.
4. The cold treatment facility and PPQ must agree in advance on the
route by which shipments are allowed to move between the vessel on
which they arrived at the port and the cold treatment facility. The
movement of shipments from vessel to cold treatment facility would not
be allowed until an acceptable route has been agreed upon.
In most instances, the route would be determined by establishing
the shortest route between the vessel and the cold treatment facility
that does not include an area that contains host material for fruit
flies during the time of year that the region experiences its most
abundant amount of host material for fruit flies. Then, that route
would be used throughout the year to convey shipments from vessel to
cold treatment facility. This predetermined route would reduce the
amount of time that a shipment would have to wait before undergoing
cold treatment and would reduce the risk that any fruit flies in the
shipments would come into contact with host material en route to cold
treatment.
5. Advance reservations for cold treatment space must be made prior
to the departure of a shipment from its port of origin.
This condition would ensure that untreated shipments of fruit
arriving at the port would not have to wait for an extended period of
time for cold treatment. Ensuring the expeditious cold treatment of the
fruit would minimize the risk of fruit flies maturing in deteriorating
fruit.
6. Devanning, the unloading of fruit from containers into the cold
treatment facility, must adhere to the following requirements: (1) All
containers must be unloaded within the cold treatment facility; and (2)
untreated fruit may not be exposed to the outdoors under any
circumstances.
Because of the southern location of the port of Gulfport, MS, we
believe that this condition would be a necessary mitigating factor at
this port. This condition would eliminate the possibility of untreated
fruit being unloaded and waiting for cold treatment outside of the cold
treatment facility itself.
If fruit intended for cold treatment was removed from its shipping
container outside of the cold treatment facility, there would be an
increased risk of fruit fly escape due to untreated fruit warming up to
temperatures that would allow the insect pests that may be in the fruit
to become more active and possibly to escape when the fly-proof
packaging is removed from the shipment. Our proposal to require
devanning inside of the cold treatment facility would ensure that all
fruit that requires cold treatment remains in a cool environment.
7. The cold treatment facility must remained locked during non-
working hours.
This condition would help ensure that unauthorized persons do not
have access to untreated fruit and, therefore, cannot remove untreated
fruit from the cold treatment facility.
8. Blacklight or sticky paper must be used within the cold
treatment facility, and other trapping methods, including Jackson/
methyl eugenol and McPhail traps, must be used within the 4 square
miles surrounding the cold treatment facility.
This condition would act as a general safeguard. We propose this
condition as an extra layer of defense that would trap any fruit flies
within the facility or within the facility's environs, in the unlikely
event that a fruit fly manages to survive past the stage of pupation in
the cold treatment facility.
9. During cold treatment, a backup system must be available to cold
treat the shipments of fruit should the primary cold room malfunction.
The facility must also have one or more reefers (cold holding rooms)
and methods of identifying lots of treated and untreated fruit.
This condition would ensure that, in the event that the primary
cold treatment system fails, additional equipment is on hand at the
cold treatment facility to perform cold treatments on shipments of
fruit. Cold holding rooms would be necessary to ensure that shipments
of fruit remain cool during any waiting period that may ensue from a
malfunction of the primary cold room. The identification of shipments
to determine which lots have been treated and which lots need to be
treated would eliminate the possibility of treated fruit being
commingled with untreated fruit and thereby further reduce the
possibility of fruit flies or other insect pests escaping from the cold
treatment facility.
10. The cold treatment facility must have the ability to conduct
methyl bromide fumigations on site. Therefore, the cold treatment
facility must have fumigation equipment approved by the Deputy
Administrator of PPQ and a site for conducting fumigation on the
premises.
This condition would act as an additional contingency plan to treat
fruit entering the port of Gulfport, MS. As the risk of fruit fly
infestation is greater at Gulfport, MS, than at the other ports
proposed for cold treatment, we have determined that an extra layer of
protection should be provided by requiring methyl bromide fumigation
capabilities as an alternative means of eliminating pests from
shipments of fruit. The criteria for the approval of fumigation
equipment can be found in the PPQ Treatment Manual.
With respect to methyl bromide fumigation, the Environmental
Protection Agency published a notice of final rulemaking in the Federal
Register on December 10, 1993 (58 FR 65018-65082) which freezes the
production of methyl bromide at 1991 levels and requires the phasing
out of domestic use of methyl bromide by the year 2001. APHIS is
studying the effectiveness and environmental acceptability of
alternative treatments to prepare for the eventual unavailability of
methyl bromide fumigation. Our current proposal assumes the continued
availability of methyl bromide for use as a fumigant for at least the
next few years.
11. The cold treatment facility must have contingency plans,
approved by the Deputy Administrator of PPQ, for safely destroying or
disposing of fruit.
This condition would ensure that, in the event a shipment cannot be
cold treated promptly or properly, the contents of the shipment could
be safely destroyed or disposed of so that fruit flies and other plant
pests would not have the opportunity to escape. Examples of adequate
contingency plans would include the ability to incinerate fruit, to
bury fruit, or to re-export fruit.
We believe that the biological barriers and these additional
conditions
[[Page 18694]]
established for cold treatment at the port of Gulfport, MS, would be
adequate to prevent the introduction and establishment of fruit flies
and other plant pests.
Proposal of Special Condition for the Port of Wilmington, NC
We are also proposing to require that cold treatment facilities at
the port of Wilmington, NC, remain locked during non-working hours as
another special condition to cold treatment at the port of Wilmington,
NC. We have determined that this safeguard, without interfering with
daily operations at the port, would help ensure that unauthorized
persons do not have access to untreated fruit and, therefore, cannot
remove untreated fruit from the cold treatment facility.
Miscellaneous
We are also proposing to make minor editorial changes for clarity
and consistency. We propose to amend the language in Sec. 319.56-
2d(b)(5)(iv)(B) to clarify that shipments coming in for cold treatment
currently consist only of fruit. Section 319.56-2d(b)(5)(iv)(B) states
that the shipments intended for cold treatment consist of fruits and
vegetables, but, presently, only certain fruits from certain countries
are approved for cold treatment.
We also propose to revise Sec. 319.56-2x(b) to update the list of
ports that are approved as locations for cold treatment.
Executive Order 12866 and Regulatory Flexibility Act
This proposed rule has been reviewed under Executive Order 12866.
For this action, the Office of Management and Budget has waived its
review process required by Executive Order 12866.
In accordance with 5 U.S.C. 603, we have performed an Initial
Regulatory Flexibility Analysis, which is set out below, regarding the
impact of this proposed rule on small entities. However, we do not
currently have all of the data necessary for a comprehensive analysis
of the effects of this proposed rule on small entities. Therefore, we
are inviting comments on potential effects. In particular, we are
interested in determining the number and kind of small entities that
may incur benefits or costs from the implementation of this proposed
rule.
Under the Plant Quarantine Act and the Federal Plant Pest Act (7
U.S.C. 150dd, 150ee, 150ff, 151-167), the Secretary of Agriculture is
authorized to regulate the importation of fruits and vegetables to
prevent the introduction of injurious plant pests.
This proposed rule would amend the regulations governing the
importation of fruits and vegetables by allowing, under certain
conditions, the cold treatment of imported fruits upon arrival at the
ports of Gulfport, MS, Atlanta, GA, and Seattle, WA. Modern cold
treatment facilities have been or are in the process of being
constructed at each of these ports.
Approximately 585.4 million kilograms of fresh fruits and
vegetables were imported into the United States through the ports of
Gulfport, MS, Atlanta, GA, and Seattle, WA, during fiscal year 1994.
The port of Gulfport, MS, handled about 98 percent of the total fresh
fruit and vegetable imports for these ports. The ports of Atlanta, GA,
and Seattle, WA, handled 0.25 and 1.75 percent, respectively, of the
total fresh fruit and vegetable imports for these three ports. During
fiscal year 1994, approximately 550,330 kilograms (less than one-tenth
of one percent) of the total fresh fruit imports for these ports were
cold treated in the country of origin or in transit to the United
States and, if these ports had been approved for cold treatment, would
have been eligible for cold treatment upon arrival in the United
States. Should these ports be approved for cold treatment, we expect
that an additional 20 million kilograms of new and rerouted fresh
fruits would be imported through and cold treated at these ports each
year.
According to the Small Business Administration, a ``small'' entity
involved in the wholesale trade of fresh fruits is one that employs no
more than 100 people. Currently, there are 4,388 ``small'' wholesale
importers of fresh fruits in the United States. Use of on-site cold
treatment facilities at the ports of Seattle, WA, Atlanta, GA, and
Gulfport, MS, may slightly reduce transportation costs for foreign
fruit exporters, which, in turn, may slightly reduce transportation
costs for domestic importers and, ultimately, may slightly reduce the
cost of certain fruits for U.S. consumers. We expect, however, that
these reductions in costs would be insignificant.
The alternative to this proposed rule was to make no changes in the
regulations. After consideration, we rejected this alternative because
it appears that, with the safeguards proposed, the cold treatment of
fruit may be conducted at any of the ports proposed in this document
without significant risk of introducing fruit flies or other injurious
plant pests.
Executive Order 12778
This proposed rule would allow cold treatment of certain imported
fruits to be conducted at the ports of Gulfport, MS, Atlanta, GA, and
Seattle, WA. If this proposed rule is adopted, State and local laws and
regulations regarding the importation of fruits under this rule would
be preempted while the fruits are in foreign commerce. Fresh fruits are
generally imported for immediate distribution and sale to the consuming
public, and would remain in foreign commerce until sold to the ultimate
consumer. The question of when foreign commerce ceases in other cases
must be addressed on a case-by-case basis. If this proposed rule is
adopted, no retroactive effect will be given to this rule, and this
rule will not require administrative proceedings before parties may
file suit in court challenging this rule.
Paperwork Reduction Act
This proposed rule contains no new information collection or
recordkeeping requirements under the Paperwork Reduction Act of 1995
(44 U.S.C. 3501 et seq.).
List of Subjects in 7 CFR Part 319
Bees, Coffee, Cotton, Fruits, Honey, Imports, Incorporation by
reference, Nursery Stock, Plant diseases and pests, Quarantine,
Reporting and recordkeeping requirements, Rice, Vegetables.
Accordingly, 7 CFR part 319 would be amended as follows:
PART 319--FOREIGN QUARANTINE NOTICES
1. The authority citation for part 319 would continue to read as
follows:
Authority: 7 U.S.C. 150dd, 150ee, 150ff, 151-167, 450, 2803, and
2809; 21 U.S.C. 136 and 136a; 7 CFR 2.22, 2.80, and 371.2(c).
2. Section 319.56-2d would be amended as follows:
a. In paragraph (b)(1), by revising the second sentence to read as
set forth below.
b. By revising paragraph (b)(5)(iv) to read as set forth below.
c. By adding new paragraphs (b)(5)(v) and (b)(5)(vi) to read as set
forth below.
Sec. 319.56-2d Administrative instructions for cold treatments of
certain imported fruits.
* * * * *
(b) * * *
(1) * * * If not so refrigerated, the fruit must be both precooled
and refrigerated after arrival only in cold storage warehouses approved
by the Deputy Administrator and located at the following ports:
Atlantic ports north of, and including, Baltimore, MD; ports on the
Great Lakes and St. Lawrence Seaway; Canadian border ports on the
[[Page 18695]]
North Dakota border and east of North Dakota; the maritime ports of
Wilmington, NC, Seattle, WA, and Gulfport, MS; Seattle-Tacoma
International Airport, Seattle, WA; Hartsfield-Atlanta International
Airport, Atlanta, GA; and Baltimore-Washington International and Dulles
International airports, Washington, DC. * * *
* * * * *
(5) * * *
(iv) Special requirements for the maritime ports of Wilmington, NC,
and Seattle, WA. Shipments of fruit arriving at the maritime ports of
Wilmington, NC, and Seattle, WA, for cold treatment, in addition to
meeting all of the requirements in paragraphs (b)(5)(i) through
(b)(5)(iii) of this section, must meet the following special
conditions:
(A) Bulk shipments (those shipments which are stowed and unloaded
by the case or bin) of fruit must arrive in fruit fly-proof packaging
that prevents the escape of adult, larval, or pupal fruit flies.
(B) Bulk and containerized shipments of fruit must be cold-treated
within the area over which the Bureau of Customs is assigned the
authority to accept entries of merchandise, to collect duties, and to
enforce the various provisions of the customs and navigation laws in
force.
(C) Advance reservations for cold treatment space must be made
prior to the departure of a shipment from its port of origin.
(D) The cold treatment facility must remained locked during non-
working hours.
(v) Special requirements for the airports of Atlanta, GA, and
Seattle, WA. Shipments of fruit arriving at the airports of Atlanta,
GA, and Seattle, WA, for cold treatment, in addition to meeting all of
the requirements in paragraphs (b)(5)(i) through (b)(5)(iii) of this
section, must meet the following special conditions:
(A) Bulk and containerized shipments of fruit must arrive in fruit
fly-proof packaging that prevents the escape of adult, larval, or pupal
fruit flies.
(B) Bulk and containerized shipments of fruit arriving for cold
treatment must be cold treated within the area over which the Bureau of
Customs is assigned the authority to accept entries of merchandise, to
collect duties, and to enforce the various provisions of the customs
and navigation laws in force.
(C) The cold treatment facility and Plant Protection and Quarantine
must agree in advance on the route by which shipments are allowed to
move between the aircraft on which they arrived at the airport and the
cold treatment facility. The movement of shipments from aircraft to
cold treatment facility will not be allowed until an acceptable route
has been agreed upon.
(D) Advance reservations for cold treatment space must be made
prior to the departure of a shipment from its port of origin.
(E) The cold treatment facility must remained locked during non-
working hours.
(F) Blacklight or sticky paper must be used within the cold
treatment facility, and other trapping methods, including Jackson/
methyl eugenol and McPhail traps, must be used within the 4 square
miles surrounding the cold treatment facility.
(G) The cold treatment facility must have contingency plans,
approved by the Deputy Administrator, for safely destroying or
disposing of fruit.
(vi) Special requirements for the port of Gulfport, MS. Shipments
of fruit arriving at the port of Gulfport, MS, for cold treatment, in
addition to meeting all of the requirements in paragraphs (b)(5)(i)
through (b)(5)(iii) of this section, must meet the following special
conditions:
(A) All fruit entering the port for cold treatment must move in
maritime containers. No bulk shipments (those shipments which are
stowed and unloaded by the case or bin) are permitted at the port of
Gulfport, MS.
(B) Within the container, the fruit intended for cold treatment
must be enclosed in fruit fly-proof packaging that prevents the escape
of adult, larval, or pupal fruit flies.
(C) All shipments of fruit arriving at the port for cold treatment
must be cold treated within the area over which the Bureau of Customs
is assigned the authority to accept entries of merchandise, to collect
duties, and to enforce the various provisions of the customs and
navigation laws in force.
(D) The cold treatment facility and Plant Protection and Quarantine
must agree in advance on the route by which shipments are allowed to
move between the vessel on which they arrived at the port and the cold
treatment facility. The movement of shipments from vessel to cold
treatment facility will not be allowed until an acceptable route has
been agreed upon.
(E) Advance reservations for cold treatment space at the port must
be made prior to the departure of a shipment from its port of origin.
(F) Devanning, the unloading of fruit from containers into the cold
treatment facility, must adhere to the following requirements:
(1) All containers must be unloaded within the cold treatment
facility; and
(2) Untreated fruit may not be exposed to the outdoors under any
circumstances.
(G) The cold treatment facility must remained locked during non-
working hours.
(H) Blacklight or sticky paper must be used within the cold
treatment facility, and other trapping methods, including Jackson/
methyl eugenol and McPhail traps, must be used within the 4 square
miles surrounding the cold treatment facility.
(I) During cold treatment, a backup system must be available to
cold treat the shipments of fruit should the primary system
malfunction. The facility must also have one or more reefers (cold
holding rooms) and methods of identifying lots of treated and untreated
fruits.
(J) The cold treatment facility must have the ability to conduct
methyl bromide fumigations on-site.
(K) The cold treatment facility must have contingency plans,
approved by the Deputy Administrator, for safely destroying or
disposing of fruit.
* * * * *
3. In Sec. 319.56-2x(b), the first sentence would be revised to
read as follows:
Sec. 319.56-2x Administrative instructions; conditions governing the
entry of certain fruits and vegetables for which treatment is required.
* * * * *
(b) If treatment has not been completed before the fruits and
vegetables arrive in the United States, fruits and vegetables listed
above and requiring treatment for fruit flies may arrive in the United
States only at the following ports: Atlantic ports north of, and
including, Baltimore, MD; ports on the Great Lakes and St. Lawrence
Seaway; Canadian border ports on the North Dakota border and east of
North Dakota; the maritime ports of Wilmington, NC, Seattle, WA, and
Gulfport, MS; Seattle-Tacoma International Airport, Seattle, WA;
Hartsfield-Atlanta International Airport, Atlanta, GA; and Baltimore-
Washington International and Dulles International airports, Washington,
DC. * * *
Done in Washington, DC, this 23rd day of April 1996.
Lonnie J. King,
Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 96-10461 Filed 4-26-96; 8:45 am]
BILLING CODE 3410-34-P
Complete official Federal Register PDF
FR Doc. 96-10453 Airworthiness Directives; I.A.M. Rinaldo Piaggio S.p.A. Model P- 180 Airplanes
[Federal Register Volume 61, Number 83 (Monday, April 29, 1996)]
[Proposed Rules]
[Pages 18695-18697]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-10453]
=======================================================================
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[[Page 18696]]
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 39
[Docket No. 95-CE-78-AD]
[RIN 2120-AA64]
Airworthiness Directives; I.A.M. Rinaldo Piaggio S.p.A. Model P-
180 Airplanes
AGENCY: Federal Aviation Administration, DOT.
ACTION: Notice of proposed rulemaking (NPRM).
-----------------------------------------------------------------------
SUMMARY: This document proposes to adopt a new airworthiness directive
(AD) that would apply to certain I.A.M. Rinaldo Piaggio S.p.A.
(Piaggio) Model P-180 airplanes. The proposed action would require
modifying the passenger seat cushion next to the emergency exit door
handle. Reports of interference with the passenger seat cushion and the
emergency exit door handle preventing the door from opening from the
outside prompted this proposed AD action. The actions specified by the
proposed AD are intended to prevent the possibility of not being able
to open the emergency exit door during an emergency evacuation of the
airplane, which could result in injury to the passengers.
DATES: Comments must be received on or before July 5, 1996.
ADDRESSES: Submit comments in triplicate to the Federal Aviation
Administration (FAA), Central Region, Office of the Assistant Chief
Counsel, Attention: Rules Docket No. 95-CE-78-AD, Room 1558, 601 E.
12th Street, Kansas City, Missouri 64106. Comments may be inspected at
this location between 8 a.m. and 4 p.m., Monday through Friday,
holidays excepted.
Service information that applies to the proposed AD may be obtained
from I. A. M. Rinaldo Piaggio, S.p.A., Via Cibrario, 4 16154 Genoa,
Italy. This information also may be examined at the Rules Docket at the
address above.
FOR FURTHER INFORMATION CONTACT: Edward S. Chalpin, Program Manager,
Brussels Aircraft Certification Office, FAA, Europe, Africa, and Middle
East Office, c/o American Embassy, B-1000 Brussels, Belgium; telephone
(322) 513.3830, ext. 2716; facsimile (322) 230.6899; or Mr. Roman T.
Gabrys, Project Officer, Small Airplane Directorate, Airplane
Certification Service, FAA, 1201 Walnut, suite 900, Kansas City,
Missouri 64105; telephone (816) 426-6932; facsimile (816) 426-2169.
SUPPLEMENTARY INFORMATION:
Comments Invited
Interested persons are invited to participate in the making of the
proposed rule by submitting such written data, views, or arguments as
they may desire. Communications should identify the Rules Docket number
and be submitted in triplicate to the address specified above. All
communications received on or before the closing date for comments,
specified above, will be considered before taking action on the
proposed rule. The proposals contained in this notice may be changed in
light of the comments received.
Comments are specifically invited on the overall regulatory,
economic, environmental, and energy aspects of the proposed rule. All
comments submitted will be available, both before and after the closing
date for comments, in the Rules Docket for examination by interested
persons. A report that summarizes each FAA-public contact concerned
with the substance of this proposal will be filed in the Rules Docket.
Commenters wishing the FAA to acknowledge receipt of their comments
submitted in response to this notice must submit a self-addressed,
stamped postcard on which the following statement is made: ``Comments
to Docket No. 95-CE-78-AD.'' The postcard will be date stamped and
returned to the commenter.
Availability of NPRMs
Any person may obtain a copy of this NPRM by submitting a request
to the FAA, Central Region, Office of the Assistant Chief Counsel,
Attention: Rules Docket No. 95-CE-78-AD, Room 1558, 601 E. 12th Street,
Kansas City, Missouri 64106.
Discussion
The Registro Aeronautico Italiano (RAI), which is the airworthiness
authority for Italy, recently notified the FAA that an unsafe condition
may exist on certain Piaggio Model P-180 airplanes. The RAI has advised
that the emergency exit door handle next to the passenger seat is
getting caught on the passenger seat cushion when attempting to open
the door from the outside. The outside door handle is connected to the
inside door handle, which, if caught on the passenger seat cushion,
prevents the door from opening.
Piaggio has issued Service Bulletin (SB) 80-0043; Original Issue
July 28, 1993, which specifies procedures for modifying the passenger
seat cushion to keep the emergency exit door handle from interfering
with the seat cushion. The RAI classified this service bulletin as
mandatory and issued RAI AD 93-302, dated September 30, 1993, in order
to assure the continued airworthiness of these airplanes in Italy.
This airplane model is manufactured in Italy and is type
certificated for operation in the United States under the provisions of
section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and
the applicable bilateral airworthiness agreement between Italy and the
United States. Pursuant to this bilateral airworthiness agreement, the
RAI has kept the FAA informed of the situation described above. The FAA
has examined the findings of the RAI, reviewed all available
information, and determined that AD action is necessary for products of
this type design that are certificated for operation in the United
States.
Since an unsafe condition has been identified that is likely to
exist or develop in other Piaggio Models P-180 airplanes of the same
type design registered in the United States, the proposed AD would
require modifying the passenger seat cushion to keep the emergency exit
door handle from interfering with the seat cushion in accordance with
Piaggio SB 80-0043; Original Issue: September 30, 1993.
The FAA estimates that 4 airplanes of U.S. registry would be
affected by this proposed AD, that it would take approximately 4
workhours per airplane to accomplish the proposed action, and that the
average labor rate is approximately $60 an hour. Parts will be
furnished by the manufacturer at no cost to the owner/operators. Based
on these figures, the total cost impact of the proposed AD on U.S.
operators is estimated to be $960. This figure is based on the
assumption that none of the owner/operators of the affected airplanes
have modified the airplanes. Piaggo has informed the FAA that all 4 of
the Model P-180 airplanes registered for operation in the United States
have performed this action, consequently, there is no further cost to
U.S. operators for this proposed AD.
The regulations proposed herein would not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this
proposal would not have sufficient federalism implications to warrant
the preparation of a Federalism Assessment.
For the reasons discussed above, I certify that this action (1) is
not a
[[Page 18697]]
``significant regulatory action'' under Executive Order 12866; (2) is
not a ``significant rule'' under DOT Regulatory Policies and Procedures
(44 FR 11034, February 26, 1979); and (3) if promulgated, will not have
a significant economic impact, positive or negative, on a substantial
number of small entities under the criteria of the Regulatory
Flexibility Act. A copy of the draft regulatory evaluation prepared for
this action has been placed in the Rules Docket. A copy of it may be
obtained by contacting the Rules Docket at the location provided under
the caption ADDRESSES.
List of Subjects in 14 CFR Part 39
Air transportation, Aircraft, Aviation safety, Safety.
The Proposed Amendment
Accordingly, pursuant to the authority delegated to me by the
Administrator, the Federal Aviation Administration proposes to amend
part 39 of the Federal Aviation Regulations (14 CFR part 39) as
follows:
PART 39--AIRWORTHINESS DIRECTIVES
1. The authority citation for part 39 continues to read as follows:
Authority: 49 U.S.C. 106(g), 40101, 40113, 44701.
Sec. 39.13 [Amended]
2. Section 39.13 is amended by adding a new airworthiness directive
(AD) to read as follows:
I. A. M. Rinaldo Piaggio S.P.A: Docket No. 95-CE-78-AD.
Applicability: Model P-180 (serial numbers 1002 and 1004 through
1022), certificated in any category.
Note 1: This AD applies to each airplane identified in the
preceding applicability provision, regardless of whether it has been
modified, altered, or repaired in the area subject to the
requirements of this AD. For airplanes that have been modified,
altered, or repaired so that the performance of the requirements of
this AD is affected, the owner/operator must request approval for an
alternative method of compliance in accordance with paragraph (c) of
this AD. The request should include an assessment of the effect of
the modification, alteration, or repair on the unsafe condition
addressed by this AD; and, if the unsafe condition has not been
eliminated, the request should include specific proposed actions to
address it.
Compliance: Required within the next 100 hours time-in-service
after the effective date of this AD, unless already accomplished.
To prevent the possibility of not getting the emergency exit
door open during an emergency evacuation of the airplane, which, if
not detected and corrected, could result in injury to the
passengers., accomplish the following:
(a) Modify the passenger seat cushion in accordance with Piaggio
Service Bulletin (SB) 80-0043; Original Issue: September 30, 1993.
(b) Special flight permits may be issued in accordance with
sections 21.197 and 21.199 of the Federal Aviations Regulations (14
CFR 21.197 and 21.199) to operate the airplane to a location where
the requirements of this AD can be accomplished.
(c) An alternative method of compliance or adjustment of the
compliance time that provides an equivalent level of safety may be
approved by the Manager, Brussels Aircraft Certification Office,
FAA, Europe, Africa, and Middle East Office, c/o American Embassy,
B-1000 Brussels, Belgium. The request shall be forwarded through an
appropriate FAA Maintenance Inspector, who may add comments and then
send it to the Manager, Brussels Aircraft Certification Office.
Note 2: Information concerning the existence of approved
alternative methods of compliance with this AD, if any, may be
obtained from the Brussels Aircraft Certification Office.
(d) All persons affected by this directive may obtain copies of
the document referred to herein upon request to I. A. M. Rinaldo
Piaggio, S.p.A., Via Cibrario, 4 16154 Genoa, Italy; or may examine
this document at the FAA, Central Region, Office of the Assistant
Chief Counsel, Room 1558, 601 E. 12th Street, Kansas City, Missouri
64106.
Issued in Kansas City, Missouri, on April 19, 1996.
Henry A. Armstrong,
Acting Manager, Small Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 96-10453 Filed 4-26-96; 8:45 am]
BILLING CODE 4910-13-P
Complete official Federal Register PDF
FR Doc. 96-10452 Airworthiness Directives; the New Piper Aircraft, Inc. (Formerly Piper Aircraft Corporation) PA31, PA31P, and PA31T Series Airplanes
[Federal Register Volume 61, Number 83 (Monday, April 29, 1996)]
[Proposed Rules]
[Pages 18697-18699]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-10452]
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DEPARTMENT OF AGRICULTURE
DEPARTMENT OF TRANSPORTATION
14 CFR Part 39
[Docket No. 95-CE-55-AD]
RIN 2120-AA64
Airworthiness Directives; the New Piper Aircraft, Inc. (Formerly
Piper Aircraft Corporation) PA31, PA31P, and PA31T Series Airplanes
AGENCY: Federal Aviation Administration, DOT.
ACTION: Notice of proposed rulemaking (NPRM).
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SUMMARY: This document proposes to supersede AD 75-26-18, which
currently requires modifying the landing gear selector cable forward
attachment pin assembly by installing a safety lock wire on certain The
New Piper Aircraft Inc., (Piper) PA31, PA31P and PA31T series
airplanes. The proposed action would require the same action as AD 75-
26-18. An incorrect designation of Piper Model PA31 airplanes as Piper
Model PA31-310 airplanes in AD 75-26-18 prompted the proposed AD
action. The actions specified by the proposed AD are intended to
prevent the landing gear selector cable forward attachment pin assembly
from becoming separated from the powerpack control arm, which, if not
corrected, could cause loss of landing gear retraction or extension.
DATES: Comments must be received on or before June 28, 1996.
ADDRESSES: Submit comments in triplicate to the Federal Aviation
Administration (FAA), Central Region, Office of the Assistant Chief
Counsel, Attention: Rules Docket No. 95-CE-55-AD, Room 1558, 601 E.
12th Street, Kansas City, Missouri 64106. Comments may be inspected at
this location between 8 a.m. and 4 p.m., Monday through Friday,
holidays excepted.
Service information that applies to the proposed AD may be obtained
from The New Piper Aircraft, Inc., Attn: Customer Service, 2926 Piper
Dr., Vero Beach, Florida, 32960. This information also may be examined
at the Rules Docket at the address above.
FOR FURTHER INFORMATION CONTACT: Christina Marsh, Aerospace Engineer,
FAA, Atlanta Aircraft Certification Office, Campus Building, 1701
Columbia Avenue, suite 2-160, College Park, Georgia, 30337-2748;
telephone (404) 305-7362; facsimile (404) 305-7348.
SUPPLEMENTARY INFORMATION:
Comments Invited
Interested persons are invited to participate in the making of the
proposed rule by submitting such written data, views, or arguments as
they may desire. Communications should identify the Rules Docket number
and be submitted in triplicate to the address specified above. All
communications received on or before the closing date for comments,
specified above, will be considered before taking action on the
proposed rule. The proposals contained in this notice may be changed in
light of the comments received.
Comments are specifically invited on the overall regulatory,
economic, environmental, and energy aspects of the proposed rule. All
comments submitted will be available, both before and after the closing
date for comments, in the Rules Docket for examination by interested
persons. A report that summarizes each FAA-public contact concerned
with the substance of this proposal will be filed in the Rules Docket.
Commenters wishing the FAA to acknowledge receipt of their comments
submitted in response to this notice must submit a self-addressed,
stamped
[[Page 18698]]
postcard on which the following statement is made: ``Comments to Docket
No. 95-CE-55-AD.'' The postcard will be date stamped and returned to
the commenter.
Availability of NPRMs
Any person may obtain a copy of this NPRM by submitting a request
to the FAA, Central Region, Office of the Assistant Chief Counsel,
Attention: Rules Docket No. 95-CE-55-AD, Room 1558, 601 E. 12th Street,
Kansas City, Missouri 64106.
Discussion
It has been brought to the attention of the FAA that AD 75-26-18,
which is applicable to Piper PA31 series airplanes, should not have
listed a Piper Model PA31-310 airplane. The Piper Model PA31-310
airplane is not a recognized model on the Type Certificate Data Sheet
No. A20SO and the airplane's data plate for the airplane subject to the
AD states Model PA31, not Model PA31-310. The concern was raised that
some owners/operators of Model PA31 airplanes may not have complied
with AD 75-26-18, since the AD currently describes the airplane as a
Piper Model PA31-310, even though their serial number falls within the
serial number range in the current AD. For this reason, the FAA is
proposing to supersede the current AD to change the model designation
in the Applicability section of the AD from a Piper Model PA31-310
airplane to Piper Model PA31 airplane.
Piper has issued service bulletin (SB) No. 488, dated October 24,
1975, which specifies procedures for modifying the landing gear
selector cable forward attachment pin assembly.
After examining the circumstances and reviewing all available
information related to the incidents described above, the FAA has
determined that AD action should be taken to prevent the landing gear
selector cable forward attachment pin assembly from becoming separated
from the powerpack control arm.
Since an unsafe condition has been identified that is likely to
exist or develop in other Piper PA31, PA31P, and PA31T series airplanes
of the same type design, the proposed AD would supersede AD 75-26-18
with a new AD that would retain the same requirement as AD 75-26-18
which is modifying the landing gear selector cable forward attachment
pin assembly, part number (P/N) 53599-00, by installing 3 inches of
safety lock wire (MS20995C41) onto the attachment pin assembly, and the
proposed action requires changing the Applicability section for the
model designations from Piper Model PA31-310 airplanes to Piper Model
PA31 airplanes.
The FAA estimates that 875 airplanes in the U.S. registry would be
affected by the proposed AD, that it would take approximately 1
workhour per airplane to accomplish the proposed action, and that the
average labor rate is approximately $60 an hour. Parts cost
approximately 25 cents per airplane. Based on these figures, the total
cost impact of the proposed AD on U.S. operators is estimated to be
$52,718.75.
The regulations proposed herein would not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this
proposal would not have sufficient federalism implications to warrant
the preparation of a Federalism Assessment.
For the reasons discussed above, I certify that this action (1) Is
not a ``significant regulatory action'' under Executive Order 12866;
(2) is not a ``significant rule'' under DOT Regulatory Policies and
Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated,
will not have a significant economic impact, positive or negative, on a
substantial number of small entities under the criteria of the
Regulatory Flexibility Act. A copy of the draft regulatory evaluation
prepared for this action has been placed in the Rules Docket. A copy of
it may be obtained by contacting the Rules Docket at the location
provided under the caption ADDRESSES.
List of Subjects in 14 CFR Part 39
Air transportation, Aircraft, Aviation safety, Safety.
The Proposed Amendment
Accordingly, pursuant to the authority delegated to me by the
Administrator, the Federal Aviation Administration proposes to amend 14
CFR part 39 of the Federal Aviation Regulations as follows:
PART 39--AIRWORTHINESS DIRECTIVES
1. The authority citation for part 39 continues to read as follows:
Authority: 49 U.S.C. 106(g), 40113, 44701.
Sec. 39.13 [Amended]
2. Section 39.13 is amended by removing Airworthiness Directive
(AD), 75-26-18, Amendment 39-2504, and by adding a new AD to read as
follows:
The New Piper Aircraft, Inc.: Docket No. 95-CE-55-AD; Supersedes AD
75-26-18, Amendment 39-2504.
Applicability: PA31, PA31P, and PA31T series airplanes with the
following Model and serial numbers, certificated in any category.
------------------------------------------------------------------------
Models Serial Nos.
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PA-31 and PA-31-325....................... 31-7300950 through 31-
7612017
PA-31-350................................. 31-7305048, 31-7305049, and
31-7305052 through 31-
7652032
PA-31P.................................... 31P-7300128 through 31P-
7630005
PA-31T.................................... 31T-7400002 through 31T-
7620013.
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Note 1: This AD applies to each airplane identified in the
preceding applicability provision, regardless of whether it has been
modified, altered, or repaired in the area subject to the
requirements of this AD. For airplanes that have been modified,
altered, or repaired so that the performance of the requirements of
this AD is affected, the owner/operator must request approval for an
alternative method of compliance in accordance with paragraph (c) of
this AD. The request should include an assessment of the effect of
the modification, alteration, or repair on the unsafe condition
addressed by this AD; and, if the unsafe condition has not been
eliminated, the request should include specific proposed actions to
address it. Compliance: Required within 50 hours time-in-service
(TIS) after February 9, 1976 (effective date of AD 75-26-18) or
within the next 25 hours TIS after the effective date of this AD,
whichever occurs later, unless already accomplished.
To prevent the landing gear selector cable forward attachment
pin assembly from becoming separated from the powerpack control arm,
which if not corrected could cause loss of landing gear retraction
or extension, accomplish the following:
(a) Modify the landing gear selector cable forward attachment
pin assembly by installing a safety lock wire in accordance with the
Instructions section of Piper service bulletin No. 488, dated
October 24, 1975.
(b) Special flight permits may be issued in accordance with 14
CFR 21.197 and 21.199 to operate the airplane to a location where
the requirements of this AD can be accomplished.
(c) An alternative method of compliance or adjustment of
compliance time that provides an equivalent level of safety may be
approved by the Manager, FAA, Atlanta Aircraft Certification Office,
Campus Building, 1701 Columbia Avenue, suite 2-160, College Park,
Georgia 30337-2748. The request shall be forwarded through an
appropriate FAA Maintenance Inspector, who may add comments and then
send it to the Manager, Atlanta Aircraft Certification Office.
Note 2: Information concerning the existence of approved
alternative methods of
[[Page 18699]]
compliance with this AD, if any, may be obtained from the Atlanta
Aircraft Certification Office.
(d) Alternative methods of compliance approved in accordance
with AD 75-26-18 (superseded by this action) are considered approved
as alternative methods of compliance with this AD.
(e) All persons affected by this directive may obtain copies of
the document referred to herein upon request to The New Piper
Aircraft, Inc., Attn: Customer Service, 2926 Piper Dr., Vero Beach,
Florida, 32960; or may examine this document at the FAA, Central
Region, Office of the Assistant Chief Counsel, Room 1558, 601 E.
12th Street, Kansas City, Missouri 64106.
(f) This amendment supersedes AD 75-26-18, Amendment 39-2504.
Issued in Kansas City, Missouri, on April 19, 1996.
Henry A. Armstrong,
Acting Manager, Small Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 96-10452 Filed 4-26-96; 8:45 am]
BILLING CODE 4910-13-P
Complete official Federal Register PDF
FR Doc. 96-10450 Proposed Approval of State Implementation Plan; Wisconsin Gasoline Storage Tank Vent Pipe, Traffic Marking Materials, and Solvent Metal Cleaning SIP Revisions
[Federal Register Volume 61, Number 83 (Monday, April 29, 1996)]
[Proposed Rules]
[Page 18711]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-10450]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[WI57-01-7105b, WI58-01-7106b, WI59-01-7107b; FRL-5424-3]
Proposed Approval of State Implementation Plan; Wisconsin
Gasoline Storage Tank Vent Pipe, Traffic Marking Materials, and Solvent
Metal Cleaning SIP Revisions
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The EPA is proposing to approve, through the direct final
procedure, a revision to the Wisconsin State Implementation Plan (SIP)
for ozone that was submitted on June 14, 1995. This revision consists
of a volatile organic compound (VOC) regulation to control emissions
from the following sources: gasoline storage tanks, traffic marking
materials, and solvent metal cleaning operations. These regulations
were submitted to generate reductions in VOC emissions, which the State
will use to fulfill the 15 percent requirement of the amended Clean Air
Act. In the final rules of this Federal Register, the EPA is approving
this action as a direct final without prior proposal because EPA views
this as a noncontroversial action and anticipates no adverse comments.
If no adverse comments are received in response to that direct final
rule, no further activity is contemplated in relation to this proposed
rule. If EPA receives adverse comments, the direct final rule will be
withdrawn and all public comments received will be addressed in a
subsequent final rule based on this proposed rule. The EPA will not
institute a second comment period on this action. Any parties
interested in commenting on this document should do so at this time.
DATES: Comments on this proposed action must be received by May 29,
1996.
ADDRESSES: Written comments should be sent to: Carlton T. Nash, Chief,
Regulation Development Section, Air Toxics and Radiation Branch (AT-
18J), EPA, Region 5, 77 West Jackson Boulevard, Chicago, Illinois
60604-3590.
FOR FURTHER INFORMATION CONTACT: Douglas Aburano (312) 353-6960.
SUPPLEMENTARY INFORMATION: For additional information, see the direct
final rule which is located in the Rules section of this Federal
Register. Copies of the request and the EPA's analysis are available
for inspection at the following address: (Please telephone Douglas
Aburano at (312) 353-6960 before visiting the Region 5 office.) EPA,
Region 5, Air and Radiation Division, 77 West Jackson Boulevard,
Chicago, Illinois 60604-3590.
Authority: 42 U.S.C. 7401-7671q.
Dated: November 6, 1995.
Valdas V. Adamkus,
Regional Administrator.
[FR Doc. 96-10450 Filed 4-26-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-10443 Migratory Bird Hunting: Amended Test Protocol for Nontoxic Shot Approval Procedures for Shot and Shot Coatings; Proposed Rule
[Federal Register Volume 61, Number 83 (Monday, April 29, 1996)]
[Proposed Rules]
[Page 18924]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-10443]
[[Page 18923]]
_______________________________________________________________________
Part VII
Department of the Interior
_______________________________________________________________________
Fish and Wildlife Service
_______________________________________________________________________
50 CFR Part 20
Migratory Bird Hunting: Nontoxic Shot Approval Procedures for Shot and
Shot Coatings, Test Protocol; Proposed Rule
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 /
Proposed Rules
[[Page 18924]]
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 20
RIN 1018-AB80
Migratory Bird Hunting: Amended Test Protocol for Nontoxic Shot
Approval Procedures for Shot and Shot Coatings; Proposed Rule
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed Rule; Extension of Comment Period.
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SUMMARY: The U.S. Fish and Wildlife Service (Service) announces the
extension of the comment period for the Service's January 26, 1996,
Amended test protocol for nontoxic shot approval procedures Proposed
Rule published in the Federal Register (61 FR 2470) from March 26,
1996, to May 10, 1996.
DATES: The comment period for the proposed framework will end on May
10, 1996.
ADDRESSES: Written comments should be sent to: Chief, Office of
Migratory Bird Management, U.S. Fish and Wildlife Service, Department
of the Interior, ms--634 ARLSQ, 1849 C Street, NW., Washington, DC
20240. Comments received will be available for public inspection during
normal business hours in Room 634, Arlington Square Building, 4401 N.
Fairfax Drive, Arlington, Virginia.
FOR FURTHER INFORMATION CONTACT: Paul R. Schmidt, Office of Migratory
Bird Management, (703) 358-1714, FAX (703) 358-2217.
SUPPLEMENTARY INFORMATION: The Service announced in the January 26,
1996, Federal Register the amended test protocol for nontoxic shot
approval procedures for shot and shot coatings for migratory bird
hunting. The proposed protocol will update and amend the current
nontoxic shot approval procedures by establishing a 3-tiered approval
process. Shot will be considered at each tier with the testing becoming
progressively more demanding. An environmentally benign shot could be
granted approval at the first tier. This process is designed to include
both candidate shot and shot coatings.
The comment period is being extended to incorporate views from all
parties that have expressed an interest in reviewing the proposed rule.
Dated: April 15, 1996
George T. Frampton, Jr.
Assistant Secretary for Fish and Wildlife and Parks
[FR Doc. 96-10443 Filed 4-26-96; 8:45 am]
BILLING CODE 4310-55-F
Complete official Federal Register PDF
FR Doc. 96-10442 Radio Broadcasting Services; Hicksville, OH
[Federal Register Volume 61, Number 83 (Monday, April 29, 1996)]
[Proposed Rules]
[Pages 18711-18712]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-10442]
=======================================================================
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 73
[MM Docket No. 96-78; RM-8778]
Radio Broadcasting Services; Hicksville, OH
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
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SUMMARY: The Commission requests comments on a petition filed by Lake
Cities Broadcasting Corporation seeking the allotment of Channel 294A
to Hicksville, Ohio, as the community's first local aural transmission
service. Channel 294A can be allotted to Hicksville in compliance with
the Commission's minimum distance separation requirements with a site
restriction of 5.4 kilometers (3.4 miles) northeast, at coordinates 41-
19-35 NL and 84-43-03 WL, to avoid a short-spacing to Station WMRI,
Channel 295B, Marion, Indiana. Canadian concurrence in the allotment is
required
[[Page 18712]]
since Hicksville is located within 320 kilometers (200 miles) of the
U.S.-Canadian border.
DATES: Comments must be filed on or before June 13, 1996, and reply
comments on or before June 28, 1996.
ADDRESSES: Federal Communications Commission, Washington, DC 20554. In
addition to filing comments with the FCC, interested parties should
serve the petitioner, or its counsel or consultant, as follows: Richard
J. Hayes, Esq., 13809 Black Meadow Road, Greenwood Plantation,
Spotsylvania, VA 22553 (Counsel to petitioner).
FOR FURTHER INFORMATION CONTACT: Leslie K. Shapiro, Mass Media Bureau,
(202) 418-2180.
SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's
Notice of Proposed Rule Making, MM Docket No. 96-78, adopted March 19,
1996, and released April 22, 1996. The full text of this Commission
decision is available for inspection and copying during normal business
hours in the FCC Reference Center (Room 239), 1919 M Street, NW.,
Washington, DC. The complete text of this decision may also be
purchased from the Commission's copy contractor, International
Transcription Services, Inc., (202) 857-3800, 2100 M Street, NW., Suite
140, Washington, DC 20037.
Provisions of the Regulatory Flexibility Act of 1980 do not apply
to this proceeding.
Members of the public should note that from the time a Notice of
Proposed Rule Making is issued until the matter is no longer subject to
Commission consideration or court review, all ex parte contacts are
prohibited in Commission proceedings, such as this one, which involve
channel allotments. See 47 CFR 1.1204(b) for rules governing
permissible ex parte contacts.
For information regarding proper filing procedures for comments,
see 47 CFR 1.415 and 1.420.
List of Subjects in 47 CFR Part 73
Radio broadcasting.
Federal Communications Commission.
John A. Karousos,
Chief, Allocations Branch, Policy and Rules Division, Mass Media
Bureau.
[FR Doc. 96-10442 Filed 4-26-96; 8:45 am]
BILLING CODE 6712-01-F
Complete official Federal Register PDF
FR Doc. 96-10441 Radio Broadcasting Services; Rosalia, KS
[Federal Register Volume 61, Number 83 (Monday, April 29, 1996)]
[Proposed Rules]
[Page 18712]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-10441]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 73
[MM Docket No. 96-81; RM-8776]
Radio Broadcasting Services; Rosalia, KS
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
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SUMMARY: The Commission requests comments on a petition by Randall L.
Hughes requesting the allotment of Channel 234A to Rosalia, Kansas.
Channel 234A can be allotted to Rosalia in compliance with the
Commission's minimum distance separation requirements without the
imposition of a site restriction. The coordinates for Channel 234A at
Rosalia are 37-48-54 and 96-37-12.
DATES: Comments must be filed on or before June 13, 1996, and reply
comments on or before June 28, 1996.
ADDRESSES: Federal Communications Commission, Washington, DC 20554. In
addition to filing comments with the FCC, interested parties should
serve the petitioner, or its counsel or consultant, as follows: Randall
L. Hughes, 425 1/2 N. Star, El Dorado, Kansas 67042 (petitioner).
FOR FURTHER INFORMATION CONTACT: Pam Blumenthal, Mass Media Bureau,
(202) 418-2180.
SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's
Notice of Proposed Rule Making, MM Docket No. 96-81, adopted March 20,
1996, and released April 22, 1996. The full text of this Commission
decision is available for inspection and copying during normal business
hours in the FCC's Reference Center (Room 239), 1919 M Street, NW.,
Washington, DC. The complete text of this decision may also be
purchased from the Commission's copy contractor, ITS, Inc., (202) 857-
3800, 2100 M Street, NW., Suite 140, Washington, DC 20037.
Provisions of the Regulatory Flexibility Act of 1980 do not apply
to this proceeding.
Members of the public should note that from the time a Notice of
Proposed Rule Making is issued until the matter is no longer subject to
Commission consideration or court review, all ex parte contacts are
prohibited in Commission proceedings, such as this one, which involve
channel allotments. See 47 CFR 1.1204(b) for rules governing
permissible ex parte contacts.
For information regarding proper filing procedures for comments,
see 47 CFR 1.415 and 1.420.
List of Subjects in 47 CFR Part 73
Radio broadcasting.
Federal Communications Commission.
John A. Karousos,
Chief, Allocations Branch, Policy and Rules Division, Mass Media
Bureau.
[FR Doc. 96-10441 Filed 4-26-96; 8:45 am]
BILLING CODE 6712-01-F
Complete official Federal Register PDF
FR Doc. 96-10436 Radio Broadcasting Services; Imboden, AR
[Federal Register Volume 61, Number 83 (Monday, April 29, 1996)]
[Proposed Rules]
[Page 18712]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-10436]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 73
[MM Docket No. 96-3; RM-8735]
Radio Broadcasting Services; Imboden, AR
AGENCY: Federal Communications Commission.
ACTION: Proposed rule; dismissal.
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SUMMARY: This document dismisses a petition filed on behalf of John J.
Shields, which requested the allotment of Channel 289A to Imboden,
Arkansas, as that community's first local aural transmission service,
based upon the lack of an expression of interest in pursuing the
proposal by the petitioner or any other party. See 61 FR 4393, February
6, 1996. With this action, the proceeeding is terminated.
DATE: This dismissal is made on April 29, 1996.
FOR FURTHER INFORMATION CONTACT: Nancy Joyner, Mass Media Bureau, (202)
418-2180.
SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's
Report and Order, MM Docket No. 96-3, adopted April 4, 1996, and
released April 23, 1996. The full text of this Commission decision is
available for inspection and copying during normal business hours in
the FCC's Reference Center (Room 239), 1919 M Street, NW., Washington,
DC. The complete text of this decision may also be purchased from the
Commission's copy contractors, International Transcription Service,
Inc., (202) 857-3800, 2100 M Street, NW., Suite 140, Washington, DC
20037.
List of Subjects in 47 CFR Part 73
Radio broadcasting.
Federal Communications Commission.
John A. Karousos,
Chief, Allocations Branch, Policy and Rules Division, Mass Media
Bureau.
[FR Doc. 96-10436 Filed 4-26-96; 8:45 am]
BILLING CODE 6712-01-F
Complete official Federal Register PDF
FR Doc. 96-10125 Rules of Practice for Motor Carrier Proceedings; Investigations; Disqualifications and Penalties
[Federal Register Volume 61, Number 83 (Monday, April 29, 1996)]
[Proposed Rules]
[Pages 18866-18898]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-10125]
[[Page 18865]]
_______________________________________________________________________
Part III
Department of Transportation
_______________________________________________________________________
Federal Highway Administration
_______________________________________________________________________
49 CFR Part 361, et al.
Rules of Practice for Motor Carrier Proceedings, Investigations,
Disqualifications and Penalties; Proposed Rule
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 /
Proposed Rules
[[Page 18866]]
DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
49 CFR Parts 361, 362, 363, 364, 385, 386 and 391
[FHWA Docket No. MC-96-18]
RIN 2125-AD64
Rules of Practice for Motor Carrier Proceedings; Investigations;
Disqualifications and Penalties
AGENCY: Federal Highway Administration (FHWA), DOT.
ACTION: Notice of proposed rulemaking (NPRM); request for comments.
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SUMMARY: The FHWA proposes to amend its rules of practice for motor
carrier safety, hazardous materials, and other enforcement proceedings,
motor carrier safety rating procedures, driver qualification
proceedings, and its schedule of penalties for violations of the
Federal Motor Carrier Safety Regulations and the Hazardous Materials
Regulations. The FHWA further proposes to add provisions on
investigative authority and procedures and general motor carrier
responsibilities. These rules would increase the efficiency of the
practices, consolidate existing administrative review procedures,
enhance due process and the awareness of the public and regulated
community, and accommodate recent programmatic changes. The rules would
apply to all motor carriers, other business entities, and individuals
involved in motor carrier safety and hazardous materials administrative
actions and proceedings with the FHWA after the effective date of the
final rule.
DATES: Comments must be received on or before July 29, 1996.
ADDRESSES: Submit written, signed comments to FHWA Docket No. MC-96-18,
FHWA, Office of the Chief Counsel, HCC-10, Room 4232, 400 Seventh
Street SW., Washington, DC 20590. All comments received will be
available for examination at the above address from 8:30 a.m. to 3:30
p.m., e.t., Monday through Friday, except Federal holidays. Those
desiring notification of receipt of comments must include a self-
addressed, stamped postcard/envelope.
FOR FURTHER INFORMATION CONTACT:
Paul Brennan, Office of the Chief Counsel, (202) 366-0834, Federal
Highway Administration, 400 Seventh Street SW., Washington, DC 20590.
Office hours are from 7:45 a.m. to 4:15 p.m., e.t., Monday through
Friday, except Federal holidays.
SUPPLEMENTARY INFORMATION:
Introduction
This rulemaking includes the first comprehensive rewrite of the
FHWA's rules of practice for motor carrier administrative proceedings
since 1985. It is the forerunner of a comprehensive revision of the
Federal Motor Carrier Safety Regulations (FMCSR) anticipated to follow
the completion of a zero-based review of those regulations presently
underway in the agency. These proposed regulations would appear in
previously unused chapters of that portion of the Code of Federal
Regulations reserved for the FMCSR, thus leaving ample room for the
future revisions. The current rules of practice for safety enforcement
and driver qualification proceedings, found in 49 CFR part 386 and in
Sec. 391.47, would be replaced by new part 363. New part 361 restates,
explains and expands upon statutory authority, administrative
enforcement powers, and general responsibilities. New part 364 is the
first general treatment of penalties for violations of safety rules
provided in regulatory form. The amendments embodied in these three
proposed parts are based on the FHWA's experience enforcing the motor
carrier safety regulations through part 386. It is intended that the
new procedures would make administrative actions and proceedings more
efficient while enhancing the guarantee of due process to carriers,
individuals, and other entities by substantially increasing awareness
of the consequences of noncompliance with commercial motor vehicle
safety and hazardous materials regulations.
New part 362 would replace current part 385, which provides
administrative review procedures within the safety ratings process.
Safety ratings continue to gain in relative importance in the entire
safety program in response to legislative mandate, as a part of agency
programmatic changes, and in the significance attached to the ratings
by the industry itself. Updated procedures will allow for better
accommodation of these interests. Parts 385 and 386 would be deleted
and reserved for future use.
This rulemaking preamble will first briefly discuss the current
statutory background. Each proposed part is then analyzed by describing
some of the antecedents of any corresponding current procedures,
followed by a section-by-section analysis of the proposed rules.
Finally, the proposed rules themselves appear.
Statutory Background
Congress has delegated certain powers to regulate interstate
commerce to the Department of Transportation in numerous pieces of
legislation, most notably in the Department of Transportation Act (DOT
Act), section 6, Pub. L. 85-670, 80 Stat. 931 (1966). Section 55 of the
DOT Act transferred the authority of the Interstate Commerce Commission
(ICC) to regulate the qualifications and maximum hours of service of
employees, the safety of operations, and the equipment of motor
carriers in interstate commerce to the Federal Highway Administration
(the agency), an operating administration of the DOT. 49 U.S.C. 104.
This authority, first granted to the ICC in the Motor Carrier Act of
1935, Pub. L. 74-255, 49 Stat. 543, now appears in 49 U.S.C. Chapter
315. The regulations issued under this authority became known as the
Federal Motor Carrier Safety Regulations (FMCSRs), appearing generally
at 49 CFR parts 390-399. The administrative powers to enforce Chapter
315 were also transferred from the ICC to the DOT in 1966, and appear
in 49 U.S.C. Chapter 5.
The Motor Carrier Safety Act of 1984 (1984 Act), Pub. L. 98-554, 98
Stat. 2832, restated, for the first time, the interstate safety
authority in terms of particular classes of commercial motor vehicles
(CMV). These statutory classes coincided identically with the
definition of CMV adopted by the agency in the existing FMCSRs issued
under the Motor Carrier Act of 1935. The 1984 Act is codified at 49
U.S.C. Chapter 311, Subchapter III. These two largely overlapping
statutes, i.e., Chapters 311 and 315, serve as parallel and
complementary authorities for issuance of safety regulations for motor
carriers and commercial motor vehicles operating in interstate
commerce.
It should be noted that both chapters define interstate commerce as
trade, traffic, or transportation in the United States which is between
a place in a state and a place outside of such state or is between two
places in the same state through another state or place outside the
state. The DOT and the ICC interpret as within this jurisdiction
transportation wholly within a state which is part of a continuing
through movement of property or passengers across state lines. This
``crossing state lines'' definition represents a delegation of less
than the full power possessed by Congress to regulate interstate
commerce. A more complete delegation is found in other laws in which
all trade, traffic, and transportation affecting interstate commerce is
deemed
[[Page 18867]]
interstate commerce regardless of its direct connection with a movement
of goods across state lines.
For example, the Commercial Motor Vehicle Safety Act of 1986
(CMVSA), Pub. L. 99-570, 100 Stat. 3 207-170, 49 U.S.C. chapter 313)
applies to trade, traffic, and transportation on public highways wholly
within a state as affecting interstate commerce because such trade,
traffic and transportation intermingles with cross-border movements and
therefore affects interstate commerce. The CMVSA established a national
commercial driver's license program (CDL) for all drivers of CMVs,
which were defined to exclude certain smaller vehicles covered under
the 1984 Act and longstanding FHWA regulations, unless the agency
determined that it was appropriate to include them. The FHWA did
restrict the CDL program to larger vehicles. At the same time, the
CMVSA extended jurisdictional coverage to drivers in commerce that had
previously been considered entirely intrastate and thus beyond the
jurisdictional reaches of the earlier acts. This was a major departure
from the traditional, ICC-inherited zone of jurisdiction based on the
origin and destination of the cargo being transported. The distinction
can be seen most readily in drug testing requirements, which were
initially issued by DOT 1989 under its parallel general safety
authority in sections 31502 and 31136. Congress enacted specific drug
and alcohol testing statutory requirements in 1991 by amending the
CMVSA (49 U.S.C. 31306). This action had the effect of expanding the
reach of testing from drivers of vehicles carrying interstate cargo to
drivers of any vehicles meeting the definition of ``commercial motor
vehicle'' provided in the CMVSA, which, by their very nature, affect
interstate commerce.
The Hazardous Materials Transportation Uniform Safety Act of 1990
(HMTUSA) Pub. L. 101-615, 104 Stat. 3244, replacing the Hazardous
Materials Transportation Act (HMTA), Pub. L. 93-633, 88 Stat. 2156
(1975) required the DOT to issue regulations for the safe
transportation of hazardous materials in inter- and intrastate
commerce. 49 U.S.C. Chapter 51. The Research and Special Programs
Administration (RSPA) of DOT issues the Hazardous Materials Regulations
(HMR), which provide standards on the classification, packaging,
handling, and registration of hazardous materials. The FHWA enforces
the HMR in relation to the transportation of hazardous materials by
highway.
The Motor Carrier Act of 1980, Pub. L. 96-296, 94 Stat. 793, and
the Bus Regulatory Reform Act of 1982, Pub. L. 97-261, 96 Stat. 1121,
established requirements for minimum levels of insurance for for-hire
interstate motor carriers and all carriers of certain hazardous
materials in inter- and intrastate commerce. 49 U.S.C. 31138-31139.
The Intermodal Safe Container Act of 1992, Pub.L. 102-548, 106
Stat. 3646, established weight certification requirements for tenderors
and carriers of intermodal containers. 49 U.S.C. Chapter 59.
The various acts authorize the enforcement of the FMCSRs and HMRs
and provide both civil and criminal penalties for violations. In
practice, when circumstances dictate that an enforcement action be
instituted, civil penalties are more commonly sought than criminal
sanctions. The administrative rules proposed in this rulemaking apply,
among other things, to the administrative adjudication of civil
penalties assessed for violations of the FMCSR and the HMR.
Analysis
Part 361: Administrative
As proposed, this part sets forth the authority granted to the
agency to enforce the commercial motor vehicle safety regulations--the
FMCSRs and HMRs. It also describes the practices followed by the agency
in exercising this authority and prescribes certain responsibilities
imposed by these authorities upon motor carriers and others subject to
these acts.
Background
Except for a somewhat obscure provision in appendix B to chapter
III, subchapter B of the CFR, the authority for the agency's inspection
and other administrative powers appears only in statute (see, e.g., 49
U.S.C. 501-525, 31133, and 5121). Standards and practices for the
agency's training materials, policy guidance, and internal manuals
which are available to the public, but only upon request. Including
these standards and practices in the regulations would provide one
convenient and authoritative reference source for all regulatees and
put them on notice of what may be expected from Federal enforcement
officials as well as what is expected of the regulated community.
Detailed intra-agency delegations of motor carrier safety-related
functions at one time appeared in 49 CFR 301.60, but were removed in
1988 following a significant reorganization of the motor carrier safety
functions and anticipated republication of the regulations under new
authority. 53 FR 2035 (January 26, 1988). Specific delegations of
authority from the Administrator to the Office of Motor Carriers now
appear only in FHWA organizational documents.
Section-by-Section Analysis
Section 361.101 Purpose
This part would spell out the authority and procedures used by the
FHWA to conduct investigations and other enforcement activities related
to commercial motor vehicle safety, and the corresponding obligations
of the regulated industry. Its purpose is to inform the public of the
agency's role, to increase awareness of and compliance with the safety
regulations, and to facilitate public contact with FHWA officials
enforcing the regulations.
361.102 Authority and Delegations
The first sentence of paragraph (a) would list the chapters of
title 49, U.S. Code, in which Congress has conferred on the Secretary
of Transportation the authority to regulate commercial motor vehicle
safety. Many sections of these chapters are cited throughout this
document. One statutory provision which is not mentioned again is 42
U.S.C. 4917, which gives the Secretary the authority to enforce
Environmental Protection Agency standards for the limitation of noise
emissions resulting from the operation of motor carriers engaged in
interstate commerce. The regulations implementing this provision appear
in part 325, and would not be amended in this rulemaking.
The second sentence of paragraph (a) would specify the
administrative powers the FHWA may employ in carrying out its
regulatory authority. The intention of this sentence would be to allow
application of all of these powers in the enforcement of each relevant
regulatory chapter (i.e., 49 U.S.C. chs. 51, 59, 311, 313, and 315).
The powers specified are virtually identical to those listed in title
49 U.S.C. 5121 and 31133, which are to be used in the enforcement of
chapters 51 and 311, respectively. The administrative powers to enforce
chapter 315 are provided in chapter 5 (see 49 U.S.C. 501(b)). Because
the jurisdiction of chapters 311 and 315 are identical as applied by
the FHWA, with 49 U.S.C. 31136 and 31502 routinely cited as parallel
authority for safety regulations, the administrative powers available
to enforce chapter 315 may also be said to be coextensive with those
under chapter 311.
[[Page 18868]]
The authority to investigate violations of chapter 313, the
commercial driver's license program, including drug and alcohol
testing, appears in 49 U.S.C. 322 and 31317. (See 12018(a) of the CMVSA
of 1986, in which the FHWA is granted the power to issue such
regulations as may be necessary to carry out the chapter). It is under
this authority that the administrative powers in 49 U.S.C. 31133 and
chapter 5 would be applied in this rule to enforcement of chapter 313.
Similar authority to enforce chapter 59 may be found in 49 U.S.C. 5907.
Paragraphs (b) and (c) would restate the delegation of these
authorities within the Department of Transportation from the Secretary
to FHWA officials in the field who routinely contact motor carriers.
The delegations are broad in order to allow flexibility. The term
``agency'' is used wherever possible when referring to FHWA officials.
The exact delegations from the Secretary of Transportation which have
been made to the Federal Highway Administration appear in 49 CFR 1.48.
Further delegations within the FHWA appear in FHWA organizational
documents (generally FHWA Order 1-1) available for review at FHWA
regional offices. See 49 CFR part 301. All of these subdelegations of
powers delegated to the Secretary of Transportation are within the
agency's discretion and are carefully designed to comport with
principles of fairness, due process, and efficiency.
Paragraph (d) would restate the delegation of authority to the
States which is provided in 49 U.S.C. 31134. Because States are
partners with the Federal Government in enforcing motor carrier safety
laws, it is important to reemphasize that nothing in this part would
preempt States from enforcing State law. Other parts of the regulations
do, however, provide standards for the preemption of State laws. See 49
CFR part 355; part 397, subpart E; and Sec. 382.109.
Section 361.103 Inspection and Investigation
With the exception of paragraph (e), this section would detail the
scope of the FHWA power to conduct on-site inspections or, as they are
more commonly called, compliance reviews, one of the administrative
powers listed in the previous section. It would be reemphasized in
paragraph (a) that this power applies in carrying out all of the listed
commercial motor vehicle safety chapters of the U.S. Code. The language
on the conduct of on-site inspection and copying of records and
equipment is taken from 49 U.S.C. 504(c) and 5121(c), with the added
proviso that such inspections take place at reasonable times, a
fundamental requirement of the law relating to administrative searches.
Reasonable times would be further explained in paragraph (c) as the
regular working hours of the carrier and certain other times in
particular circumstances.
Consistent with 49 U.S.C. 504, the on-site inspection powers would
apply only to motor carriers and other regulated entities, such as
hazardous materials shippers and tenderors of intermodal containers.
The term ``motor carrier'' is broadly defined in 49 CFR 390.5 as
including a carrier's agents, officers, and representatives. In
contrast, the other investigatory administrative powers, such as the
power to issue subpoenas, require production of records, and take
depositions, would apply to any entity so long as the administrative
action is related to an authorized safety investigation. Thus, an
entity perhaps not directly regulated by the FHWA, such as a trucking
service company, a non-hazardous materials shipper, or a medical
examiner, which possesses information related to an investigation of a
violation of the safety regulations by a motor carrier would be
required to produce records of that information upon request,
enforceable through administrative subpoena and subsequent court order.
No distinction among regulated and other entities in application of
any of the administrative powers, including on-site inspections,
appears in 49 U.S.C. 31133(a). The proposed regulatory approach,
however, is consistent with 49 U.S.C. 502 and 504 and the long-standing
practice of the FHWA.
Proposed paragraph (b) restates two general principles of
administrative law regarding the scope of investigations, questions
about which have arisen in the past during the course of inspections.
First, any records related to an investigation may be inspected,
regardless of whether or not the FHWA requires the records to be
maintained under its regulatory authority. Second, as part of an
inspection and investigation, FHWA officials may question carrier
officials and employees.
The last sentence of paragraph (b) would incorporate the carrier's
right of accompaniment during an inspection, as provided in 49 U.S.C.
31133(b). This means the carrier or its representative must be given
the opportunity to accompany the investigator during the inspection of
records and equipment. The invitation does not have to be accepted, but
it must be offered. Paragraph (d) is modeled on provisions in other
agencies' regulations. It is proposed that an employer's consent to
allow entry on its business premises of an agency official for purposes
of conducting an investigation may not be conditioned on the outcome of
the investigation or any resulting enforcement actions.
An agency official denied entry by an employer would not attempt to
force entry. The right of access for inspection of records and
equipment and administrative subpoenas are enforceable through a civil
action in U.S. District Court for an appropriate order and such other
relief as may be necessary and proper under the circumstances pursuant
to proposed Sec. 304.302 (derived from 49 U.S.C. 507).
Paragraph (e) would restate 49 U.S.C. 505(a) and would be included
because it is related to the scope of investigations. Given the fluid
nature of the motor carrier industry, reviewing lease arrangements may
be essential in determining legal responsibility for compliance with
the safety regulations. Paragraph (f) would detail the confidentiality
of investigatory reports.
Section 361.104 Definitions
To avoid repetition, the definitions provided in Sec. 390.5 are
also applicable to this rule. The few additional definitions necessary
for this rule are provided.
Section 361.105 Employer Obligations
Paragraph (a) would simply restate the responsibility of motor
carriers and other persons to comply with applicable safety
regulations. 49 U.S.C. 31135. Paragraph (b) would establish the duty of
persons to post notices of violations when required by the FHWA. See 49
U.S.C. 521(b)(3). In addition, reasonable standards for posting such
notices are proposed. Paragraph (c) would inform the public that safety
regulations published in the Federal Register are available for review
in FHWA offices.
Paragraph (c) also proposes to require that employers maintain a
copy of applicable safety regulations and make it available to
employees upon request. It has long been a requirement that employers
assure compliance by their employees of the safety regulations (see 49
CFR 390.11). This obligation could not be met without ready access to
the governing regulations. 49 U.S.C. 31502 authorizes the Secretary to
prescribe requirements for the ``safety of operation and the
equipment'' of motor carriers and the practical mandate to maintain an
accessible source of knowledge of the requirements is clearly within
this authority. The FHWA does not consider this an increased paperwork
burden because printed copies of the regulations are readily available
from a number of sources in addition to the
[[Page 18869]]
Government Printing Office at little or no cost.
Paragraphs (d) through (e) would reiterate the on-site inspection
process from the point of view of the person being investigated.
Section 361.106 Vehicle Inspection
Although the FHWA does not generally focus its enforcement efforts
on safety equipment inspections of CMVs on the roadside, this section
would mirror 49 U.S.C. 31142, which provides the authority to conduct
such inspections. Vehicles may also be inspected at a motor carrier's
terminal. See 49 U.S.C. 504(c).
Section 361.107 Complaints
Little in this proposed section goes beyond the statutory language.
Paragraphs (a) through (e) would be a mixture of 49 U.S.C. 506(b) and
31143(a), which set forth the FHWA's procedure and obligations in
responding to complaints of violations of the safety regulations lodged
by members of the public. The only addition to the statutes is the
second sentence of paragraph (b), which would clarify what constitutes
a nonfrivolous complaint. Proposed paragraphs (f) through (g) repeat
the prohibitions in 49 U.S.C. 31105(a) on retaliation against employees
who file complaints alleging violations of the safety regulations.
Because of the numerous questions which the FHWA regularly receives in
this area, paragraph (h) would inform the public that the prohibitions
are enforced by the Department of Labor and cites the relevant
regulations.
Section 361.108 Administrative Subpoenas
The administrative subpoena power would be elaborated, as
authorized in 49 U.S.C. 502(d).
Section 361.109 Depositions and Production of Records
Two more administrative powers would be elaborated, as authorized
in 49 U.S.C. 502 (e) and (f).
Part 362: Safety Ratings
This part would set forth the standards and procedures applicable
to the determination of a motor carrier's safety fitness and the
issuance of a safety rating by the FHWA.
Background
Section 215 of the 1984 Act, enacted on October 30, 1984 (now
codified at 49 U.S.C. 31144), required the Secretary of Transportation
to establish a procedure to determine the safety fitness of owners and
operators of commercial motor vehicles in interstate commerce. Even
before the statutory mandate, the FHWA had been providing safety
fitness information to the Interstate Commerce Commission since 1967,
and had developed a rating system for motor carriers. Following the
1984 Act, the FHWA published an NPRM on June 25, 1986 (51 FR 23088),
and issued a final rule on December 19, 1988, with an effective date of
January 18, 1989 (53 FR 50961). The regulations are codified at 49 CFR
part 385. The regulations were amended by the interim final rule
published on August 16, 1991 (56 FR 40801) to implement the provisions
of the Motor Carrier Safety Act of 1990 (MCSA of 1990) (section 15 of
the Sanitary Food Transportation Act of 1990, Pub. L. 101-500, 104
Stat. 1218) which prohibits a motor carrier that receives an
``unsatisfactory'' safety rating from operating commercial motor
vehicles to transport certain hazardous materials or more than 15
passengers.
The regulations established a ``safety fitness standard'' which the
FHWA uses for assigning motor carrier safety ratings of
``satisfactory,'' ``conditional,'' or ``unsatisfactory.'' The safety
ratings are used to prioritize motor carriers for review and focus
enforcement resources on carriers with the most serious compliance
problems. The safety ratings had routinely been made available to the
ICC for consideration of operating authority applications and self-
insurance, and have been available to the Department of Defense in the
selection of carriers to transport hazardous materials and passengers,
to other governmental and private industry shippers for carrier
selection purposes, to insurance companies to assist in risk
determinations and to the public upon request.
The current rule also prescribes procedures for administrative
review of the rating based on factual disputes, and for requested
changes in safety ratings based upon evidence that corrective actions
have been taken to bring the motor carrier into compliance with the
safety fitness standard.
Since the adoption of the safety rating regulations, the process
has been the subject of occasional dispute. To some, the method used in
determining a safety rating is abstract and confusing, especially when
determined at the same time as, but not necessarily in conjunction
with, the decision whether or not to initiate enforcement actions. The
existence of both ``unsatisfactory'' and ``conditional'' ratings,
moreover, has resulted in unintended significance being given to the
``conditional'' rating. Since it is less than a ``satisfactory''
rating, some shippers and others comparing the performance of various
carriers may give the ``conditional'' ratings an overlay negative
connotation not intended by the agency. Some motor carriers, on the
other hand, equate the satisfactory rating with a level of excellence
unintended by the agency and inconsistent with the general meaning of
the term ``satisfactory,'' i.e., adequate.
Other motor carriers have argued that a rating may be based on
alleged violations of the regulations discovered during on-site audits
but not fully documented. It may then become difficult to contest these
violations in an administrative proceeding challenging the rating. In
practice, the FHWA has addressed this concern by taking a second
investigative look at disputed violations.
Although the FHWA believes that current procedures satisfy the due
process provisions of the Administrative Procedure Act, 5 U.S.C. 551 et
seq., there is room for improvement and greater efficiency. The
situation took on added significance with the enactment of the Motor
Carrier Safety Act of 1990 and its requirement that motor carriers that
receive an ``unsatisfactory'' safety rating be prohibited from
operating commercial motor vehicles to transport hazardous materials
and passengers. This prohibition, which becomes effective 45 days after
receipt of an ``unsatisfactory'' safety rating, would clearly affect a
motor carrier's ability to stay in business. In light of these
concerns, and to improve the objectivity of the information on which
ratings are based, the FHWA has already made several adjustments to the
safety rating methodology and has heightened its responsiveness to
carriers exposed to serious consequences following ratings.
Full compliance with all of the safety and hazardous materials
regulations should certainly be the objective of all responsible motor
carriers. At a minimum, however, a motor carrier must have managerial
control over the critical functions of its operations that reflect on
safety, i.e., it must have an effective system to assure compliance
with the regulations. A negative rating is, of course avoided through
full compliance. It is also avoided by adopting reliable measures to
assure that the motor carrier's employees know what is required by the
regulations, have the opportunity to achieve full compliance, and do
not violate those regulations.
In reviewing a motor carrier's operations for rating purposes, the
FHWA places more emphasis on compliance with those regulations that
have the greatest immediate and direct
[[Page 18870]]
impact on safety. In evaluating the several factors that comprise the
rating, violations of those regulations will have a greater effect on
the overall rating. The FHWA has been using the concepts of ``acute''
and ``critical'' regulations to carry out this purpose. The term
``acute'' refers to regulatory requirements the violations of which
would create an immediate risk to persons or property, e.g., using a
driver after he has tested positive for alcohol. The term critical
refers to those regulatory requirements the violation of which, if
occurring in patterns, would indicate a breakdown in effective control
over essential safety functions, e.g., using drivers beyond their
allowable driving or duty hours. These concepts would now be codified
if this proposal becomes final.
It is also being proposed that the safety ratings be reduced to
only one category, eliminating both the ``satisfactory'' and
``conditional'' safety rating categories. Conditions may be attached to
the avoidance of an ``unsatisfactory'' rating, but they would not place
the motor carrier in a rating category from which negative assumptions
may be drawn. This raises some additional questions to be resolved in
the final rule, e.g., whether and how best to describe those carriers
which are not rated ``unsatisfactory'' and what should be done with the
ratings of those carriers currently rated ``conditional.''
The FHWA believes that Congress has expressed its will in the MCSA
of 1990 (49 U.S.C. 5113) and in subsequent oversight reports that
severe consequences should attach to an ``unsatisfactory'' rating.
Although the language in that provision employs the terms
``satisfactory'' and ``conditional,'' no particular significance is
attributed to those terms other than they are an improvement from the
``unsatisfactory'' classification. This proposal reflects the FHWA's
continuing intention to focus on the ``unsatisfactory'' category and
assure that before carriers are assigned such a rating, it is indeed a
reflection of demonstrably poor compliance or performance. If the
unsatisfactory safety rating is to be considered tantamount to a
determination that the carrier assigned such a rating should not to be
operating commercial motor vehicles in interstate commerce without
appropriate corrective measures, then such a carrier should be well
below average and the percentage of carriers earning such a rating
ought to be relatively small. The information used to assign such a
rating should be put to a more strenuous test before consequences
attach.
The FHWA is, therefore, also proposing to give motor carriers
advance notice of unsatisfactory ratings so that any challenges to the
ratings can be resolved before the rating takes effect. In addition,
expedited procedures for the review of unsatisfactory ratings are
proposed for carriers when their ability to stay in business might be
affected by such a rating. Finally, the FHWA is also proposing to
recognize a practice that has been evolving over the last few years by
affording some discretionary relief to motor carriers adversely
affected by ratings that are able to demonstrate a willingness to
comply and accept conditions designed to improve their safety
management systems and practices.
It must be recognized that the FHWA will never be able to complete
an individual on-premises compliance review of every motor carrier in
existence. More and more, the information obtained from State accident
reports and reports generated by the 2 million roadside inspections
conducted each year is being used to identify carriers that may be
experiencing safety or compliance problems and therefore pose potential
safety risks. (As prescribed in current regulations, this information
is also factored into a carrier's rating.) Complaints are also
indications of the possible existence of compliance problems, and there
is a statutory duty to investigate nonfrivolous complaints. As the
amount and reliability of external information grows, the absence of
negative indicators becomes a more reliable premise for refraining from
individual, on-site compliance reviews. Moreover, a ``satisfactory''
rating produced by a compliance review is only a current assessment of
a motor carrier's level of compliance, and its significance obviously
diminishes with time.
In a one-category rating system, therefore, an ``unsatisfactory''
rating is definitely a negative finding, which is likely to have
adverse impacts on the motor carrier's business opportunities. The
remaining group of carriers that are not rated ``unsatisfactory'' would
be comprised of those carriers with existing ``satisfactory'' or
``conditional'' ratings (which may be dated) and other carriers that
are not rated (this would be the largest group). The latter subgroup of
unrated carriers would be comprised both of carriers that survive
future compliance reviews without receiving an ``unsatisfactory''
rating and those that have not been subject to on-premises compliance
reviews. In this proposal, we would not use any terminology to describe
carriers that are not rated ``unsatisfactory,'' so that no connotation,
positive or negative, would attach. If readers are particularly opposed
to this approach, the FHWA is interested in receiving comments on the
use of categories and the proper terminology to be applied to them.
In this proposal, the FHWA would be prescribing the immediate
termination of ``satisfactory'' and ``conditional'' ratings. This would
have no impact on carriers presently holding such ratings as they would
not be grouped in the unsatisfactory category. The FHWA is also
particularly interested in comments on this issue.
In recent times, the FHWA has considered programs that would
provide incentives to those carriers that demonstrate exceptional
performance and compliance. Nothing in this proposal should be
interpreted to mean that we have abandoned such concepts. The agency
will continue to work with other organizations and associations, such
as the Commercial Vehicle Safety Alliance, to develop the potential of
using positive incentives to promote compliance.
Finally, the safety rating is only one means of promoting
compliance with the safety regulations. The FHWA will continue to
employ selective compliance and enforcement measures in the form of
inspections, investigations, civil penalty assessments and criminal
prosecutions. These will be driven, for the most part, by performance
indicators and complaints. We will also continue to rely heavily on the
partnership developed with State safety enforcement agencies through
the Motor Carrier Safety Assistance Program. Enforcement actions are
considered an effective tool to promote compliance and penalties will
be imposed for violations of the safety regulations when circumstances
warrant, regardless of the carrier's rating. This recognizes that many
otherwise satisfactory motor carriers will tolerate violations of the
regulations from time to time, or will get careless in their management
practices designed to detect and eliminate violations. Enforcement is
appropriate in such situations without necessarily affecting a
carrier's overall rating.
This following section-by-section analysis explains these changes
in more detail.
Section-by-Section Analysis
Section 362.101 Purpose
This section would identify the scope and purpose of the part. The
definitions section of part 385 would be removed as unnecessary.
[[Page 18871]]
Section 362.102 Motor Carrier Identification Report
This requirement is presently found at Sec. 385.21, and provides
that interstate and foreign carriers must file a Motor Carrier
Identification Report, Form MCS-150 (copy provided in the appendix),
within 90 days of beginning operations. This is essential to an
accurate motor carrier census and relates to the assignment of a DOT
identification number. It also assists the FHWA in scheduling reviews
of unrated motor carriers. Since this is a continuing requirement, the
provision in the current rule requiring the filing of the report within
90 days of the effective date of the rule has been eliminated.
Section 362.103 Safety Fitness--Standard and Factors
The safety fitness standard in the current Sec. 385.5 and the
factors in Sec. 385.7 would be clarified, simplified and combined into
one section. This proposal also elaborates on the factors used to
determine the rating and codifies the practice of placing special
emphasis on compliance with ``acute'' and ``critical'' regulations.
Section 362.104 Determination of Safety Fitness--Safety Ratings
The current 49 CFR 385.9 would be amended to define the one safety
rating that may be issued by the FHWA (``unsatisfactory''), and to
describe what constitutes such rating. For example, a carrier would be
issued an unsatisfactory rating if it is determined that the carrier
does not have adequate safety management controls in place to ensure
compliance with the safety fitness standards and factors prescribed in
proposed Sec. 362.103, and which has resulted in one or more of the
specific occurrences listed in Sec. 362.103(b)(1) (i) through (x). In
addition, this section provides that an ``unsatisfactory'' safety
rating may be avoided based on conditions, such as compliance with
specific provisions of the safety or hazardous materials regulations,
the requirements of a compliance order or settlement agreement, or
notices to abate, which may be imposed at the time the proposed safety
rating is issued.
This requirement is not intended to replace the current
``conditional'' safety rating. Rather, it is intended to provide the
agency with flexibility to promote compliance with the regulations by
obtaining the correction of deficiencies in specific areas of a
carrier's operations without calling the motor carrier's entire safety
fitness into question. The conditions upon which it would avoid
``unsatisfactory'' would be known by the motor carrier and the agency.
No separate status would attach to the rating, nor would the existence
or the nature of the conditions be routinely available to the public
under Sec. 362.110. The motor carrier could correct deficiencies
without having its ability to stay in business negatively affected, as
is generally the case with the current ``conditional'' safety rating.
Section 362.105 Unsatisfactory Rated Motor Carriers--Prohibition on
Transportation of Hazardous Materials and Passengers; Ineligibility for
Federal Contracts
This section would incorporate and clarify the existing
prohibitions and penalties listed in section 49 CFR 385.13 that are
applicable to motor carriers that receive a safety rating of
unsatisfactory. The listing of applicable penalty statutes would be
replaced with a reference to the penalty provisions listed in appendix
A to part 386 of this chapter (Part 364 in this proposal). Finally, the
references to the 45-day period during which a motor carrier must
improve the safety rating would be removed and incorporated into the
procedures for obtaining review of the rating (new Sec. 362.108, see
description below).
Section 362.106 Notification of a Safety Rating
This section would clarify and incorporate the rating notification
requirements of the current Sec. 385.11, and establish the concept of a
proposed safety rating of unsatisfactory. A proposed safety rating of
unsatisfactory would become the motor carrier's final safety rating 45
days after the date the notice of proposed safety rating is received by
the motor carrier, unless the carrier petitions for a review or obtains
relief pursuant to proposed Sec. 362.108 (see below). This proposed
rating incorporates the requirement in the MCSA of 1990 that a motor
carrier receiving an unsatisfactory safety rating be given 45 days to
improve its rating before the Act's prohibition of hazardous materials
and passengers transportation takes effect. It would also eliminate a
distinction between carriers based on type of operation by applying the
concept of the proposed rating to all unsatisfactory findings and would
afford all carriers the opportunity to be heard during that period and
to improve the rating before consequences attach. This section also
would provide that a proposed safety rating would not be made routinely
available to the public until it becomes final. This would ensure that
a proposed safety rating of unsatisfactory will not affect a motor
carrier's business before the carrier is given the opportunity to
improve or challenge its proposed rating.
The FHWA recognizes that the assignment of a negative safety rating
often has graver consequences for the rated motor carrier than any
civil penalties that might be sought for individual violations
considered in the compilation of the rating. Several prohibitions
attach to the assignment of an unsatisfactory rating and decisions are
made daily by shippers and insurers on the basis of safety ratings.
This is a primary purpose of the rating as conceived by Congress and
implemented by the agency. For this reason, the agency treats the
rating as a valuable compliance and enforcement measure and provides an
administrative proceeding to afford the ratee with the opportunity to
be heard before the rating is made known. The FHWA believes that
withholding information about a proposed rating from the public is
consistent with the Freedom of Information Act, which provides an
exemption from required release of information compiled for law
enforcement purposes (Exemption 7). The exemption applies because (a) a
law enforcement proceeding would be pending, i.e. the determination of
the motor carrier's safety fitness; and (b) the premature release of a
proposed rating could reasonably be expected to cause harm in that the
consequences would attach before a final decision was made. Since the
purpose of providing the administrative proceeding is to prevent
unintended consequences from inchoate determinations, release of
proposed ratings to shippers and insurers who may very well act on the
information could easily frustrate that purpose. It could also increase
demand for expedited adjudication which could adversely impact an
orderly consideration of all relevant issues. Moreover, the length of
time between a proposed rating and a final rating is finite and would
rarely exceed 45 days. The FHWA also recognizes that release of a
proposed rating may be unavoidable under some circumstances, but it
would be the agency's intent that routine release under Sec. 362.110
would not occur.
Section 362.107 Change to Safety Rating Based on Corrective Actions
This section would continue the remedy presently available in
Sec. 385.17 by allowing for a change in an unsatisfactory rating to be
requested both within the 45 days the rating remains in a proposed
status and at any time after the rating becomes final. The
[[Page 18872]]
filing of a petition for change of a proposed rating would not stay
this 45-day period, but if the FHWA cannot make a determination within
the 45-day period and the motor carrier has submitted evidence that
corrective actions have been taken, the period may be extended for up
to an additional 10 days. This would allow the agency to prioritize
requests based on the consequences a particular carrier may face from
an adverse rating. This section would also provide for a higher level
agency review of a denial of a request for a rating change. In cases
where the resulting unsatisfactory rating causes an out-of-service
order to be issued, an expedited review by the Associate Administrator
would also be available.
Section 362.108 Administrative Review
This section would consolidate, clarify, and revise the existing
procedures in Secs. 385.15 and 385.17 dealing with petitions for review
of safety ratings. The section would establish a single procedure
applicable to reviews of proposed safety ratings of unsatisfactory and
of denials of requests for changes in ratings under Sec. 362.106.
Petitions for reviews of safety ratings of unsatisfactory under this
section would be similar to the procedures in the present Sec. 385.15
applicable to reviews by the Director, Office of Motor Carrier Field
Operations, in cases where there are factual or procedural disputes to
be resolved. A motor carrier receiving notice of a proposed safety
rating of unsatisfactory would still have the option of requesting a
change in the rating based on corrective actions taken. This section
would provide a carrier selecting that action with the additional
opportunity to petition for review if it believes the rating or the
denial of a change was based on errors of procedure or fact.
The existing 90-day filing deadline for petitions under this
section would be reduced to 45 days for consistency and finality. When
the procedure applies to proposed safety ratings of unsatisfactory, the
request for review must be submitted during the 45-day period before
the proposed rating becomes final. This section would maintain the
current statutory requirement that the FHWA complete the review within
30 days in cases where the petition is filed by a motor carrier subject
to the hazardous materials and passenger prohibition in Sec. 362.105.
The petitioner would be required to submit with its petition all
arguments and information it desires to be considered on review. In
most cases, the Director, Office of Field Operations, will complete the
review and render a decision on the basis of the written submission.
The Director would have the discretion to request additional
information or to call a conference. If it is determined that the motor
carrier operations still fail to meet the safety fitness standard, the
motor carrier would be provided with written notification that its
petition has been denied and that the proposed safety rating of
unsatisfactory is final. Except as provided below, the decision of the
Director, Office of Motor Carrier Field Operations, would become the
final agency action. Because the unsatisfactory rating generates an
out-of-service order for a passenger or hazardous materials carrier,
such motor carrier would have the right to an expedited administrative
review of this decision by the Associate Administrator for Motor
Carriers in accordance with 5 U.S.C. 554 and corresponding procedures
are proposed in part 363. This is a new review procedure proposed to
better guarantee due process of law. The expedited review, if timely
requested, would be provided within 10 days from the date of the notice
of denial of the initial review petition. The Associate Administrator
may refer the petition for review for a hearing before an Administrator
Law Judge (ALJ). The Associate Administrator or ALJ may stay any safety
rating during the pendency of the expedited administrative review.
Section 362.109 Temporary Relief From Rating
This section would provide a means to grant temporary relief to a
motor carrier from dire consequences of an unsatisfactory rating upon a
showing of willingness to adopt necessary changes in safety management
polices and practices and to make good faith efforts to improve safety
performance. The temporary relief would be entirely discretionary on
the part of the Regional Director, in the case of a petition for change
in the rating, and the Director of the Office of Field Operations, in
the case of an initial administrative review. The exercise of
discretion by these officials is not reviewable as every carrier
affected by a proposed rating or final rating is provided with ample
opportunity for administrative review in this Part. This provision
merely institutionalizes a practice that has been growing in the recent
past whereby a rating is ``conditionally rescinded,'' to allow a motor
carrier to demonstrate its improved practices in order to earn a better
rating. If a motor carrier is forced to cease operating because of an
unsatisfactory rating, it presumably would be unable to gather any
experience with improved systems that would convince a reviewer that it
had indeed committed itself to safety compliance. The proposed
procedure would require the motor carrier to operate under a consent
order for a period not to exceed 60 days at the conclusion of which a
final rating would be assigned.
Section 362.110 Safety Fitness Information
This section would incorporate the requirements of the current
Sec. 385.19. The section has been clarified to make clear that the
information would also be made available to State agencies.
Part 363: Enforcement Proceedings
The goal of this proposal is to improve the current rules of
procedure for motor carrier enforcement proceedings. Mindful that this
must also have been the goal each of the numerous times the rules have
been amended since their inception in 1969, the task has been
approached deliberately. To open the process to new ideas, various
external sources have been consulted, notably the Model Adjudication
Rules of the Administrative Conference of the United States (December
1993) and various procedural rules of other Federal agencies. On the
other hand, in recognition of the importance of the historical context
of the rules, the predecessors of the current rules, and their
extensive amendments, were reviewed in hopes of identifying
shortcomings and determining the underlying rationale for certain
provisions which may now seem unnecessary, unclear, or unavailing.
This review reveals that even the first incarnation of motor
carrier procedural rules by the FHWA, spare though they may have been,
were not created in a vacuum, but were largely based on practices and
procedures of the Interstate Commerce Commission from whence the FHWA
inherited its motor carrier safety functions. Each subsequent amendment
was believed to be necessary to address programmatic or statutory
changes or to increase efficiency and fairness. And each amendment or
wholesale revision was built on the foundation of previous rules. This
effort is no different, notwithstanding the recourse to model rules.
Because of the importance of past practice in understanding both
the current system and needed changes, and because such a history has
not been compiled elsewhere, a fairly extensive examination of previous
rules is offered.
[[Page 18873]]
The proposed rules will then be explained in this context.
Background
The current rules are the legacy of two distinct strains of
administrative procedures of the ICC. Until 1966, the ICC had the sole
responsibility on the Federal level for regulating motor carrier
safety. In addition to its pervasive regulation of interstate routes,
rates and services through a comprehensive system of certificates of
authority to operate, the ICC also established standards for the safety
of operation of motor carriers. Interstate Commerce Act, sec. 104, 24
Stat. 379, (1887); added ch. 498, 49 Stat. 546 (1935). Most of the
safety standards were enforced through a rather onerous process
involving numerous formal steps--opening an investigation,
investigation, record production and depositions, proceedings before
the full Commission, compliance orders, and, if it came to that, the
withdrawal of operating authority.
In addition, the ICC had limited authority under section 222(h) of
the Interstate Commerce Act to levy civil, monetary penalties against
carriers for failure to keep records, file reports, or respond to
questions posed by the ICC, so-called recordkeeping violations. Acts of
fraud, misrepresentation, false statements, and intentional violations
of nonrecordkeeping requirements in the FMCSRs were punishable solely
as criminal offenses in Federal court, or through the formal process
relating to operating authority. The section 222(h) recordkeeping
violations subject to monetary penalties were enforced by the ICC in
civil actions in the United States District Courts in the event
informal administrative procedures to resolve such actions were
unsuccessful.
The two separate enforcement tracks were carried over to the FHWA
after the ICC's safety functions were transferred to DOT. In 1969, the
FHWA issued rules of practice for motor carrier proceedings which
crystallized the dichotomy. 34 FR 936 (January 22, 1969). Part 385 of
title 49 CFR was entitled ``Collection and Compromise of Claims for
Forfeiture under Section 222(h) of the Interstate Commerce Act.'' Part
386 provided ``The Rules of Practice for Motor Carrier Safety
Proceedings under section 204(c) of the Interstate Commerce Act.''
Part 385 was very brief, providing requirements for claim notices
and settlement agreements. Respondents were instructed that they should
respond to the claim and should state whether they wished to discuss
payment. A response was not mandatory. Section 222(h) claims that did
not result in a settlement or to which there was no response were
enforced through litigation in U.S. District Court. Mirroring the ICC
situation, no administrative procedure was provided to resolve the
claims.
As the FHWA's version of the ICC's formal process, part 386 was
considerably more involved than part 385 and established the framework
for the current rules of procedures.
All proceedings under part 386 alleging safety violations began
with issuance of a notice of investigation (NOI) to a motor carrier, a
procedural relic of the cumbersome ICC process. Under 49 U.S.C. 506, an
order to compel compliance could not be issued without an NOI and an
``opportunity for a proceeding.'' The Federal Highway Administrator
assigned to a hearing examiner all NOIs properly contested by the
carrier in the form provided in the rule. After a hearing, the hearing
examiner issued an order disposing of the proceedings, which was
reviewable by the Administrator on his/her own motion or that of a
party. The proceedings could also be disposed of by issuance of a
consent order pursuant to the agreement of the parties. Improperly
contested or unanswered NOIs could result in unilateral issuance of a
final order by the Administrator. For the most part, the orders
directed the carrier to comply with the safety regulations it was
already duty bound to follow.
For enforcement of orders against regulated carriers, the FHWA had
to petition the ICC to open its own investigation into the carrier's
operating authority, thus bringing the matter back to that cumbersome
process. Moreover, a revocation proceeding by the ICC would generally
not be commenced without a showing that an FHWA order had been
violated.
In 1977, the FHWA made the first extensive revisions to these
procedural rules. 42 FR 18076 (April 5, 1977). Part 385 was repealed
and its settlement procedures incorporated into part 386. The
respondent's statement of desire to discuss payment of the amount of
the claim became mandatory and an occasional source of confusion or, at
least, an excuse not to file a proper response. It is not difficult to
see that a statement expressing a willingness to settle could be seen
by the uninitiated as a quasi admission of culpability at odds with a
statement contesting the allegations of the claim. Some respondents
merely stated they wished to discuss settlement and failed to file a
reply consistent with the rules, thereby risking waiver of the right to
contest the claim, waiver of the right to a hearing, or worse, default.
This situation was exacerbated by regulatory changes in action taken by
the FHWA upon a failure to reply.
In the interest of uniformity, the scope of Part 386 was expanded
in 1977 to include monetary penalty actions arising under section
222(h) of the ICC Act (formerly processed under part 385) and the HMTA
and to include driver qualification determinations. Unfortunately for
uniformity, the standards for these proceedings varied in particulars.
For example, the commencement of proceedings was trifurcated into
issuances of claim letters for civil penalties, letters of
disqualification or determinations for driver qualifications, and NOIs
for violations of other safety rules. Significantly, monetary penalty
assessments were now, for the first time, subject to an extensive
administrative process.
In terms of procedures, no longer would all properly contested
matters result in a hearing. Instead, ``to expedite the decisionmaking
process and to reduce the number of unnecessary hearings,'' the
Associate Administrator (AA) for Safety, rather than the Federal
Highway Administrator, would only assign matters with material factual
issues in dispute to a hearing officer. If no hearing was requested in
the reply, the AA could simply issue a final order based on the
evidence and arguments submitted.
When no reply was received at all, the outcome varied by the type
of proceeding. If a driver failed to reply in accordance with the rules
to a letter or determination of disqualification in a driver
qualification proceeding, the letter or determination automatically
became the final order of the Associate Administrator 30 days later. In
contrast, no such automatic procedure existed when no reply at all was
made to claim letters or NOIs. The AA still had to issue a final order,
although it could be done sua sponte.
Also added to part 386 were pre-trial procedures on discovery and
motion practice designed to expedite the proceedings and clarify
procedural points which had arisen under the 1969 rules.
Minor revisions were made to the rules later in 1977, based on
comments received from the public and six months of practice. 42 FR
53965 (October 4, 1977). Most significant among the changes, a motion
by a party was required before the AA could issue a final order where
no reply was made to the NOI or claim letter. In addition, discovery
and amendment of pleadings were expanded to situations in which a
[[Page 18874]]
matter was not assigned for a hearing but decided by the AA based on
the pleadings. Finally, for matters under the HMTA only, an option was
added whereby a respondent could reply to a claim or NOI with a notice
to submit evidence, rather than request a hearing, and then submit the
evidence at a later date.
In 1985, the rules were again comprehensively amended. 50 FR 40304
(October 2, 1985). The precipitating factors were again statutory
changes and internal reorganization. Pursuant to the Motor Carrier
Safety Act of 1984 and amendments to the HMTA, the rule contained
provisions for the FHWA to seek to enjoin in U.S. District Court
carrier actions in violation of the FMCSRs and HMRs and to order out-
of-service all carrier operations constituting an imminent hazard to
safety.
A section on judicial appeal of final orders was also added to the
rule consistent with the 1984 Act. This became important because the
1984 Act authorized the FHWA, for the first time, to assess civil,
monetary penalties for non-recordkeeping violations of the FMCSRs.
Prior to the 1984 Act, monetary penalties could only be assessed for
violations of the HMRs and recordkeeping requirements in section 222(h)
of the ICC Act and the FMCSR. The 1984 Act expressly made all penalty
assessments subject to the notice and hearing requirements of the
Administrative Procedure Act. Thus, the reach and depth of the FHWA's
civil penalty authority was greatly expanded, and the procedural rules
were amended to reflect this new authority and responsibility.
In terms of procedure, however, the basic trichotomy of the 1977
rules was continued--driver qualification, civil penalty, and NOI
proceedings. Despite the sudden predominance of civil penalties in
terms of the safety program generally, and, specifically, of the
relative number of administrative proceedings, the civil penalty
procedures were little changed from the 1977 rules, which, in turn,
were largely based on the old ICC NOI procedures. Although these
procedures met the requirement in the 1984 Act to comply with the
Administrative Procedure Act, they perhaps did not offer the clearest
and most efficient method of resolving the new influx of cases.
The civil penalty procedures were amended, however, in several
minor ways relevant to this discussion. First, similar to the earlier
provisions for driver qualification proceedings, the failure to reply
to a claim letter automatically resulted in the letter becoming the
final order of the Associate Administrator for the newly organized
Office of Motor Carriers (AA) without a separate order having to be
issued upon the motion of a party. Unlike the qualification section,
however, this seemingly applied only to a complete failure to reply,
and not merely a failure to reply in the form provided in the rule. For
NOIs, nothing changed in this regard. Final orders continued to be
issued by the AA only upon motion of a party. Second, the procedure for
notice of intent to submit evidence without a hearing was extended from
hazardous materials cases to all civil penalty proceedings. Third,
Administrative Law Judges formally replaced hearing officers as
arbiters, although this had been the practice for some time. Fourth,
the discovery and hearing procedure sections were made more detailed to
closer approximate the Federal Rules of Civil Procedure (title 28,
U.S.C.).
The important results of the 1985 amendments were the expansion of
civil penalty authority and the addition of out-of-service order
authority. These two developments further marginalized the venerable
NOI process. In practice, civil penalty proceedings came to greatly
overshadow the cumbersome NOI proceedings. Instead of having to endure
a long administrative process possibly resulting in an order to comply
with regulations with which a carrier was already bound to comply, and
which could only be enforced through intervention in ICC proceedings,
another long process, direct administrative action could be taken
against the carrier in the form of financial penalty. If a carrier
persisted in a state of noncompliance, it could now be directly ordered
out of service as an imminent hazard. An NOI-based order to comply with
the regulations paled in comparison with these new powers.
The next revision of the rules made only technical amendments. 53
FR 2035 (January 26, 1988). Added to the authorities and scope sections
in part 386 were references to the CMVSA of 1986 (49 U.S.C. Chapter
313), in order to implement the CMVSA-based civil and criminal
penalties added to 49 U.S.C. 521(b). The Administrative Law Judge's
power to dismiss matters referred by the AA for a hearing was made
explicit. And the rather detailed delegations of authority from the
Administrator to various positions within the Office of Motor Carriers
were removed from the regulations and placed in the FHWA Organization
Manual,\1\ consistent with an agency-wide trend to maximize
flexibility.
---------------------------------------------------------------------------
\1\ FHWA Orders 1-1, Part I, Chapter 7, Motor Carrier Safety, is
available for inspection and copying as provided at 49 CFR part 7,
appendix D.
---------------------------------------------------------------------------
A small change was made to the rules on December 19, 1988 (53 FR
50961). The FHWA clarified that an out-of-service order designed to
eliminate an imminent hazard applied immediately, pending an
opportunity for review within 10 days.
More extensive amendments were made in 1991. 56 FR 10183 (March 11,
1991); NPRM, 55 FR 11224 (March 27, 1990). A new subpart G spelled out
the statutory civil penalty assessment criteria and specified the four
types of FHWA orders the violation of which could lead to additional
penalties. The four types of orders were notice to abate, notice to
post, final order, and out-of-service order. New appendix A to part 386
established a penalty schedule ranging from $500 to $10,000 for
violations of such orders. These amendments implemented a provision of
the 1984 Act (49 U.S.C. 521(b)(7)).
Another 1991 amendment added a ``new'' order to the AA's
enforcement arsenal--the compliance order, last heard from in ICC
proceedings predating the formation of the DOT. See Sec. 386.21. The
compliance order attempted to give meaning to the largely moribund NOI
process, the procedures for which nevertheless remained in the
regulations. The compliance order became the name of the final order
issued by the AA in an NOI proceeding in which a consent order could
not be achieved. A compliance order could go beyond the NOI in that it
could direct a carrier to ``take reasonable measures beyond the
requirements of the regulations, in the time and manner specified, to
assure future compliance.'' The order warned that failure to take those
measures would constitute a violation of a final order of the AA,
subjecting the carrier to the additional penalties of appendix A and an
out-of-service order if the carrier's operations constituted an
imminent hazard to safety. In practice, it is not common for a
compliance order to be issued directing a carrier to take compliance
measures beyond those required in the safety regulations, but such
measures may be dictated by the circumstances. The rule allows
challenges to the reasonableness of these measures. In order to
expedite the use of NOIs, the NOI and civil penalty procedures were
merged into Sec. 386.14, though the differences in default standards,
discussed above, remained. The combination of NOIs and civil penalty
[[Page 18875]]
claims into a single administrative proceeding has been permitted since
the 1985 rules.
In practice, it is common for NOIs and notices of claims to be both
combined or issued separately at the same time in parallel proceedings,
on those occasions when NOIs are used. The primary use of the NOI is as
a warning that further violations of the same regulations could
constitute an imminent hazard and lead to an out-of-service order, as
provided in Sec. 386.21(c).
The 1991 rulemaking made two further amendments worth mentioning.
First, settlement agreements were amended to require a statement that
failure to pay in accordance with the agreement resulted in the
original claim amount becoming due and payable immediately. Second, a
provision was added to the out-of-service procedure allowing a vehicle
in transit at the time it is ordered out of service to proceed to its
immediate destination. Both of these concepts are incorporated in the
proposed rules.
Section-by-Section Analysis
Subpart A--Civil Penalty Proceedings
Section 363.101 Nature of Proceeding
Civil penalty proceedings would be defined broadly as
administrative proceedings in which the FHWA seeks payment of a fine or
orders a motor carrier, individual, or other regulated entity, the
``respondent,'' to take some action. Civil penalty proceedings are
based on violations of the FMCSRs or HMRs, which must be established
administratively by final order of the agency. Civil penalty
proceedings would include all motor carrier safety, hazardous materials
and intermodal container administrative enforcement proceedings by the
FHWA, other than those involving driver qualification and safety
ratings. For example, proceedings resulting from issuance of an out-of-
service order are civil penalty proceedings.
Driver qualification procedures are proposed in subpart B of this
part. Safety ratings are issued and may generally be contested in
accordance with proposed part 302. However, when the safety rating has
the effect of placing a carrier out of service, the carrier is offered
the same opportunity for an expedited hearing as is available to a
carrier subject to a direct out-of-service order.
The notice of investigation (NOI) procedure, the resurfaced, ICC-
originated process which allows for a finding of violations but
provides no penalties, would finally be laid to rest. Any orders,
findings, notices, or warnings the NOI procedure may have allowed would
be incorporated into the civil penalty process. The use of one set of
procedures for all claims arising from a single set of violations
should result in clearer standards and greater efficiency, and would
eliminate parallel proceedings arising from an NOI and a monetary claim
based on a single set of violations.
The procedures are designed to comport with the Administrative
Procedure Act and principles of due process. The proposed rules ensure
that persons are adequately notified of the violations they are alleged
to have committed and of their right to the opportunity to be heard by
the agency, and, in the appropriate circumstances, to a hearing before
an Administrative Law Judge.
Section 363.102 Notice of Violation (Complaint)
A Notice of Violation setting forth the allegations of the claim of
the agency against the respondent would begin a proceeding. Paragraphs
(a) and (b) propose the minimum information to be included in the
notice. The only item which is not a restatement of part 386 is the
reply form at paragraph (a)(5), which will be discussed below. To
ensure that respondents are notified of the agency's claim, paragraph
(c) would specify as the form of service to be used in issuing the
notice one which utilizes a return receipt. This requirement is
consistent with current practice.
Section 363.103 Form Reply to Notice of Violation
It is proposed to include with each notice of violation a reply
form on which the respondent is asked to check off its intended
response to the claim. The respondent may check only one option on the
reply form. The choices are to: (1) Pay the penalty, (2) discuss
settlement, and (3) contest the claim. If (2) is chosen, respondent
retains the right to contest the claim or pay the penalty at a later
date, as detailed below. For the first time, replies may be sent by
telefax, although respondent retains the burden to prove it has made a
timely reply. If no reply form (or payment or answer to the claim) is
served on the agency within 15 days, the notice of violation becomes
the final order, the violations are established as alleged, and the
respondent waives the right to contest the claim.
The intent of these provisions is to increase the efficiency of the
notice of claim process currently provided in part 386. Providing one
or two time periods in which to respond to claims and disqualification
determinations would be simpler than the 3 or 4 periods currently
provided in part 386. Though it adds a step, the reply form is designed
to provide a clear starting point to the process and to obtain a clear
and simple statement from the respondent of its intentions with regard
to the claim. Cases involving respondents that do not reply can be
processed expeditiously.
On the other hand, the reply form would add flexibility. The agency
can easily amend the claim to reflect any changed circumstances
discovered as a result of settlement negotiations. Respondents would
avoid generating perhaps lengthy and involved replies on the record,
only to resolve the matter later outside formal channels.
Because of the immediate severity of an out-of-service order, and
the consequent reduction in the time period to resolve contested
issues, no reply form is sent along with an out-of-service order. See
Sec. 363.110.
Section 363.104 Special Procedures for Out-of-Service Orders
This section is largely a restatement of what presently appears in
Sec. 386.72(b)(1), but would add a requirement for personal service, a
reference to the penalty for noncompliance, and a provision for
expedited adjudication under proposed Sec. 363.110. The authority
summarily to order a motor carrier to cease all or parts of its
operations because violations of the FMCS are creating an imminent
hazard is found at 49 U.S.C. 521(b)(5)(A).
Section 363.105 Payment of the Claim
This is the first, and obviously simplest, resolution to a notice
of violation assessing a monetary penalty. Because payment terminates
the proceeding, it may be made with or without filing the reply form.
However, if payment is chosen on the reply form, but is not made to the
agency within the time to reply, the notice becomes the final agency
order as if the respondent failed to reply. Paragra
FR Doc. 96-10125 Rules of Practice for Motor Carrier Proceedings; Investigations; Disqualifications and Penalties
ph (a) would provide
that payment may be made at any time in the course of the proceeding
before issuance of a final order. If it takes the form of a settlement
agreement, however, it must be done in accordance with Sec. 363.106. Of
course, payment of the monetary claim might not terminate the
proceeding if some other order is also being sought.
Paragraph (c) makes it clear that payment of the claim is
tantamount to a final order finding the facts of the violations as
alleged in the notice, unless the parties expressly agree in writing to
treat the violations otherwise. This is important because certain
future agency enforcement actions may be
[[Page 18876]]
based on, and certain consequences may flow from, prior and continued
violations of the safety regulations.
Section 363.106 Settlement of Civil Penalty Claims; Generally
Settlement may occur at any time in the process including after the
termination of negotiations under Sec. 363.107 and during a hearing.
Settlement procedures have been a key feature of the FHWA civil penalty
process since their inception in 1969. Settlement of alleged violations
before resort to a final formal adjudication is efficient and promotes
the partnership of the FHWA and its regulated entities directed toward
safer commercial motor vehicle transportation.
The content of settlement agreements would not be substantively
altered from that required in part 386. As civil penalty proceedings
are not limited in this proposed rule to monetary claims, so may
settlement agreements resolve the terms of other orders sought against
respondent by the agency. Thus, the consent order procedure in part
386, which provided for issuance by the agency of such other orders,
and which could include settlement agreements resolving monetary claims
anyway, is no longer necessary.
It should be noted that settlement agreements will contain a
finding that certain violations did, in fact, occur. Settlement
agreements should not be necessary in cases in which full payment of
the claim is made and no other orders are sought or terms placed on
respondent. Full payment automatically results in a finding of the
violations as alleged in the notice.
Paragraph (d) involves the situation in which partial payment is
made by a respondent, with or without an accompanying unilateral
expression of the respondent's intent in offering the payment. The
FHWA's acceptance of partial payment, as indicated by cashing a check,
for instance, in no way should be interpreted as settlement of the
claim or as forgiving the remainder of the claim. All settlement
agreements must be in the form provided in paragraph (b).
Paragraph (e) would allow execution of settlement agreement during
the course of administrative proceedings, upon the consent of parties
and without the approval of the AA.
Section 363.107 Settlement Negotiations
In contrast to the general requirements in the preceding section
applying in all instances of settlements, this section would establish
procedures when the settlement negotiations option is chosen by the
respondent on the form reply. Respondents would retain the opportunity
to convert the proceeding into a contested claim at any point in the
negotiation process. They could do this by requesting an administrative
adjudication and filing an answer to the notice of violation. For its
part, the agency could discontinue negotiations it feels are not
proving fruitful by sending the respondent a final notice of violation.
Paragraph (d) proposes a 90-day limit on this initial negotiation
process. If a settlement agreement is not reached within 90 days, the
agency may issue a final notice of violation to the respondent. The
purpose of this provision is to keep the administrative case moving
toward resolution. As justice delayed is justice denied, so does a
delayed penalty reduce its effectiveness. Under current practice, some
cases in which a respondent has indicated a willingness to settle have
a tendency to languish when agreement cannot be readily reached. This
provision should help to avoid consequent case backlogs and should
actually promote settlement as it pushes the case along the track
toward resolution. In accordance with Sec. 363.106, a settlement may be
reached at any point in the civil penalty process, including in
contested claims being administratively adjudicated.
Paragraph (e) would establish the procedures when a final notice of
violation is sent to a respondent after negotiations have been
expressly terminated by one of the parties or 90 days have passed
without settlement. For flexibility, the final notice may simply
incorporate the original notice of violation. For efficiency, if the
negotiations have revealed, for example, that one of the claimed
violations did not occur, the final notice may be amended deleting that
charge. The procedures for replying to the final notice similarly would
incorporate those for immediately contesting the original claim. At
this point, after negotiations have indicated that the parties cannot
agree on resolution of the claim and that it is indeed contested, the
respondent would have no choice but to answer the notice in writing.
Section 363.108 Request for an Administrative Adjudication
This section proposes procedures for contested claims. The
procedures would apply when the ``contest the claim'' option is chosen
on the reply form or when the settlement option is chosen but
settlement is not reached. A contested claim would be resolved in an
administrative proceeding adjudicated by a neutral third party provided
by the agency. Depending on the choice of the respondent and the
existence of material factual issues in dispute, the third party may be
the Associate Administrator (AA) or an Administrative Law Judge (ALJ).
The AA would decide whether or not a case will be referred to an ALJ.
Paragraph (a) would provide a respondent 28 days from receipt of
the notice of violation to serve a written answer on the agency
contesting the claim. If the answer is responding to an original notice
of violation this means that the respondent would be required to send
the agency the reply form in 15 days and the written answer within
another 13 days after that. Of course, respondent may choose to file an
answer within 15 days of the notice of violation, in which case a reply
form would be unnecessary. As with the reply form, the answer may be
served on the agency by telefax.
The content of the answer in paragraph (c) would be similar to that
currently required in replies under Part 386. Paragraph (c)(3) would
clarify that referral to an ALJ may not be available in all instances
where it is requested, but only where there are factual issues in
dispute. Part 386 presently states this concept in terms of an oral
hearing, i.e., an oral hearing is only available for cases with factual
issues. Questions sometimes arise when contested claims without factual
issues are decided by the AA without referral to an ALJ, much less an
oral hearing, even though a hearing was requested. Though
Sec. 386.16(b) clearly gives the AA this power, as provided by the 1977
amendments, the section on content of replies does not reflect it. The
proposed rule clearly states the agency's intent that the opportunity
for a hearing does not mean that all contested matters are referred to
an ALJ for a hearing. Finally, consistent with the standard in Part
386, failure to request referral to an ALJ would result in a waiver of
the right to opportunity for it.
The provision in part 386 allowing the respondent to file a notice
of intent to submit evidence without an oral hearing, with its own
array of deadlines, would be eliminated as unnecessary. Paragraph
(c)(3) would simply give the respondent the option of requesting
referral to an ALJ or not. For tactical or efficiency reasons, a
respondent may very well wish the AA, instead of an ALJ, to resolve its
contested claim, even where factual issues are present. (See, however,
discussion under Sec. 363.109).
If the respondent fails to answer the claim, paragraph (d) would
provide that the notice of violation becomes the final agency order in
the same manner as
[[Page 18877]]
when the reply form was not served on the agency. Moreover, merely
choosing an administrative adjudication on the reply form without
filing an answer would also be deemed a failure to answer.
If the notice is answered, but not in the form provided in this
section, the respondent may be found in default in the discretion of
the AA or ALJ. Default would have the same effect as a failure to
answer. In both situations, the ALJ or AA would issue a final order
without inquiry as to the charged violations.
These provisions would clearly assign the power to determine the
adequacy of the answer in various situations. Findings of default and
failure to answer, and resulting Final Order finding of the violations
as alleged, would support any subsequent collection actions taken by
the agency.
Section 363.109 Procedures in Administrative Adjudications
All contested claims would be transmitted to the AA to either
decide or refer to an ALJ for decision. Only the AA could determine
whether or not there are factual issues in dispute and assign an ALJ to
resolve a contested claim, unless the AA expressly requests the ALJ to
make that determination. Assigning to an ALJ only those cases with
apparent or potential factual issues has been a feature of the rules
since 1977, and has been upheld in litigation on numerous occasions as
complying both with the Administrative Procedure Act and due process
principles. Issues of efficiency and adjudicative economy dictate that
this standard continue in effect.
The first sentence of subsection (b) proposes that if there are
facts in dispute and respondent has requested referral, the AA must
refer the matter to an ALJ. Subsection (c) proposes to provide the AA
with the discretion to decide the matter in two circumstances: (1)
Where referral is requested but there are no factual issues, and (2)
where referral is not requested.
There may be another situation between these two poles, however. If
respondent has not requested referral, but the AA nevertheless believes
referral would be beneficial to resolve a factual or other issue,
should the AA have such discretion? May respondents be required to
participate in possibly costly adjudication even though respondent is
comfortable with potentially ``lesser'' process? The second sentence of
subsection (b) would allow referral in those instances in the
discretion of the AA. The FHWA requests comments on this issue.
Subsections (d) and (e) would accomplish in two short statements
and one reference what the procedures have attempted over the years to
do by detail. The Federal Rules of Civil Procedure, the approximation
of which served as justification for the ever expanding standards in
part 386 on discovery and motion practice, are incorporated into the
civil penalty process, thereby eliminating the need for virtually all
of subpart D to part 386. The AA and ALJ may suspend or adapt the
Federal rules as appropriate, in conformance with the Administrative
Procedure Act.
Subsections (f) and (g) would authorize the ALJ to employ
appropriate process, including alternative dispute resolution.
Subsection (h) would set minimal standards for appearance of
representatives of respondents in administrative proceedings.
Subsection (i) would provide that the parties in an administrative
adjudication may withdraw the matter under certain circumstances.
Withdrawal by a party, or by the consent of the parties, would
terminate the jurisdiction of the ALJ.
Section 363.110 Expedited Review by Associate Administrator
This section proposes expedited procedures for administrative
review of out-of-service orders or unsatisfactory safety ratings after
review by the Director of the Office of Field Operations. Subsection
(c) would reduce the time to conduct an entire administrative
adjudication to 10 days because subsection (b) provides that the out-
of-service order shall remain in effect pending resolution of the
contested claim. This last provision has been a part of the regulations
since the 1985 amendments added the out-of-service procedure. The FHWA
believes that it complies with intent of Congress in the 1984 Act. The
rest of subsection (b) would restate the ``immediate destination''
exception which was added to part 386 in the 1991 amendments. In the
interest of uniformity, subsection (d) would incorporate the procedures
in Sec. 363.109.
Sections 363.111 Through 363.116
With few exceptions, these sections would incorporate the
provisions of subpart E of part 386, on decisions and appeals, into the
new rule without substantive change. Section 386.66, which set a one
year period before considering motions for modification of orders,
would not be carried over. There would be no minimum time for an order
to be in effect before it may be rescinded or modified by order of the
AA or ALJ. Any such motions may be made pursuant to Sec. 363.109(e).
For the sake of clarity, Sec. 363.114 would add a sentence to what
is now in Sec. 386.67, liberally interpreting 49 U.S.C. 521(b)(8) to
allow judicial review for contested claims resulting in a final agency
order, but not for those claims that are resolved through settlement
agreement or in which respondent failed to answer or defaulted. The
statute provides that judicial review is only available after a
hearing. The FHWA believes its interpretation is appropriate because
these proposed rules provide for resolution of contested claims in an
administrative adjudication without a formal reply. Of course,
ultimately the courts must interpret the statute to determine their
scope of review.
The grounds for review of an ALJ's decision by the Associate
Administrator would be explained in somewhat greater detail in 49 CFR
363.111(b) than current 49 CFR 386.62.
Subpart B--Driver Qualification Proceedings
Section 363.201 Nature of the Proceeding
Driver qualification (DQ) proceedings are the means by which the
agency adjudicates challenges to its determinations concerning a
driver's qualifications to operate a CMW.
Section 363.202 Commencement of Proceedings
DQ proceedings would begin with a notice of determination or letter
of disqualification, which may be sent to a driver unilaterally by the
agency, in resolution of a conflict of medical evaluations under
Sec. 363.204 (formerly Sec. 391.47), or to notify the driver of the
consequences of a conviction for certain driving offenses.
Section 363.203 Answer
The content of an answer is proposed. A failure to answer would
result in the notice of determination or letter of disqualification
becoming the final order of the agency automatically in the same manner
as a failure to answer a notice of violation in a civil penalty
proceeding. Thus, the three different standards for failure to reply
under Part 386 are condensed into one under this proposed rule.
Section 363.204 Special Proceeding for Resolution of Conflicts of
Medical Evaluation
This section, because it is entirely procedural in nature, would be
moved from its present location in Sec. 391.47 and remain relatively
unchanged. A change is proposed as to the status of drivers
[[Page 18878]]
during the pendency of this special proceeding and is discussed under
Sec. 363.205, below.
Section 363.205 Driver's Qualification Status Pending Proceedings
Two different statuses are possible under current provisions. A
driver is either physically qualified or unqualified. This section
would clarify the driver's status during proceedings based on the
circumstances that brought about the proceedings. It would also change
current Sec. 391.47, which requires that a driver be considered
unqualified while any conflict of medical opinion is being resolved.
Although the agency operated in the past on a presumption that, in the
interest of safety, the driver was unqualified, such a result is not
required in all cases. It is likely, moreover, that this presumption
inhibited drivers from seeking resolution through the FHWA, which has
primary authority to make qualification determinations for drivers in
interstate commerce.
After consultations with the Department of Labor and the Equal
Employment Opportunity Commission, which have responsibilities for
implementing the anti-discrimination provisions of the Rehabilitation
Act, 29 U.S.C. 701 et seq., and the Americans with Disabilities Act, 42
U.S.C. 12101 et seq., respectively, the change in status is being
proposed. The changes would allow the driver's status, supported by at
least one medical opinion, to remain qualified during the pendency of
driver qualification proceedings with respect to the driver's employer
if the conflict arose during the term of employment. However, if a
driver involved in a conflict is not currently employed, e.g., an
applicant, the driver, would be deemed unqualified with respect to a
potential employer with which the driver's status is in conflict.
Section 363.206 Administrative Adjudication
The procedures for agency action on answers to notices of
determination would track those for administrative adjudication of
contested civil penalty claims. The civil penalty administrative
procedures would be incorporated by reference.
Subpart C--General Provisions
Section 363.301 Applicability
These general provisions would apply to this part and part 362 on
safety ratings.
Section 363.302 Computation of Time
The time computation standards would be largely unchanged from
Sec. 386.32 (a) and (b). Those provisions in that section which
currently allow the addition of five days to specified time periods to
account for use of the U.S. Postal Service in serving documents,
Sec. 386.32(c) (1) and (3), would not be carried over to the proposed
rule. Instead, the proposed rule would provide that service is complete
upon mailing so that the date of the postmark would control.
Section 363.303 Service
A general definition of service would be added to the regulations.
A certificate of service would be required to accompany all documents
served in an administrative proceeding, except the agency's notice and
the respondent's form reply, which occur before a matter is contested.
A service list will be provided in the agency's notice, which will
establish the persons who must be served with documents. Whereas
Sec. 386.31 states these certificate and list requirements in terms of
pleadings and motions, this section would make it clear that service
requirements apply early in administrative proceedings, before any
assignment of an ALJ.
Section 363.304 Extension of Time
This section would be carried over from part 386, with the added
provision that an extension of time may be effected pursuant to mutual
consent of the parties.
Section 363.305 Administrative Law Judge
This section would enumerate the powers of the ALJs, as well as the
limitations on that power. It would also provide for the
disqualification of ALJs. The provisions on limitations and
disqualification are modeled after the procedural regulations of the
Federal Aviation Administration. See 14 CFR 13.205 (b) and (c).
Section 363.306 Certification of Documents
This section would provide good faith standards for the filing of
documents in administrative proceedings. Sanctions are also proposed
for the ALJ or AA to impose if the standards are not met. This section
is based on 14 CFR 13.207.
Section 363.307 Interlocutory Appeals
This section, based on 14 CFR 13.219, would provide standards and
procedures for interlocutory appeals to the AA of matters before the
ALJ.
Part 364: Violations, Penalties, and Collections
Background
Much of the penalty information in this part appears in the U.S.
Code and, until now, has not appeared in published regulations. One
exception is appendix A to part 386 on penalties for violations of
agency notices and orders, which was published in 1991. Other
exceptions are the driver disqualification periods in 49 CFR 383.51 and
391.15 and the special penalties for violations of out-of-service
orders in Sec. 383.53, all of which were required to be published by
the CMVSA of 1986 and subsequent amendments.
Section-by-Section Analysis
Subpart A--General
Section 364.101 Purpose
The purpose of this proposed subpart is to inform the public of the
standards for assessment and collection of penalties for violations of
the FMCSRs and HMRs.
Section 364.102 Policy
This section would serve as a general summary of the part.
Subsection (a) would state the general policy that penalties serve as a
tool to obtain compliance with the regulations. Generally, the
enforcement program is but a part, albeit significant, of the mission
of the Office of Motor Carriers to reduce highway accidents and
injuries by increasing compliance with safety regulations. Most
carriers, drivers, and other entities choose to comply with the
regulations willingly. Various educational and other compliance
programs are available to assist them. For those carriers who
intentionally refuse to comply with or carelessly ignore the
regulations, however, enforcement may become necessary.
Subsection (b) would list the statutory penalty criteria used by
the FHWA to assess penalty amounts. These factors would be explained in
depth in Sec. 364.104. The last sentence would inform respondents that
information developed in an administrative adjudication may affect the
amount of penalty ultimately ordered. Subsection (c) would express the
notion that good faith efforts to achieve compliance will be taken into
account in assessing penalties or settling claims. Subsection (e) would
apply concepts of comity and resource allocation in stating that it is
within the discretion of the agency not to act to enforce violations of
the safety regulations when another governmental entity has already
imposed appropriate penalties for the same violations.
[[Page 18879]]
Subpart B--Civil Penalties
Section 364.201 Types of Violation and Maximum Monetary Penalties
The penalty amounts in this section would be listed by the type of
violation and would track the structures of the relevant statues.
Subsection (a) would refer to violations of parts 382 and 390-399
of the FMCSRs and is based on the penalty structure in 49 U.S.C.
521(b)(2)(A), part of the 1984 Act. The penalty structure is
incorporated into the enforcement scheme for violations of Part 382
drug and alcohol testing requirements in 49 CFR 382.507, as authorized
by 49 U.S.C. 31306, 31317, and 322(a).
The statutory description of violation types would be augmented in
places by language from the legislative history of the 1984 Act,
especially the description in proposed Sec. 364.201(a)(2) of what
constitutes a serious pattern of violations. See S. Rep. No. 424, 98th
Cong., 2d Sess. 10-13 (1984). The definition of a serious pattern would
be further elucidated by the agency's interpretation. The
interpretation in Sec. 364.201(a)(1) of a ``knowing'' recordkeeping
violation as including violations occurring where the means to verify
the incorrect records existed is based on published decisions of ALJs
in civil penalty proceedings. See In the Matter of Trinity
Transportation, Inc., 55 FR 43291 (October 26, 1990); for other
decisions, see Federal Register notices beginning at 55 FR 43264; 55 FR
2924 (January 29, 1990); 57 FR 29710 (June 26, 1992); 58 FR 16916
(March 31, 1993); 58 FR 62450 (November 26, 1993). Various examples of
types of violations are also proposed in the section.
Subsection (b) would list violations and amounts pertaining to
commercial driver's licenses and is based on 49 U.S.C. 521(b)(2)(B).
Paragraph (1) of subsection (c), on the penalty amount for failing
to maintain minimum levels of financial responsibility, is based on 49
U.S.C. 31138-31139. Paragraph (2) would state the rebuttable
presumption that lack of proof of insurance indicates lack of
insurance. It also states the current enforcement practice which allows
rebuttal of that presumption upon presentation of proof within 10 days.
Though the statute makes no distinction in penalties, allowing a
$10,000 maximum for all violations, paragraph (3) would provide that
mere failure to present proof of insurance, where the insurance
actually exists, is a separate recordkeeping offense, subject to a much
smaller penalty than the failure to have the insurance.
Proposed subsection (d), on violations of the HMRs, is based on 49
U.S.C. 5123. Subsection (e) would represent the current appendix A to
part 386, on violations of notices and orders.
Section 364.202 Civil Penalty Assessment Factors
This section would further explain the penalty assessment criteria
listed in Sec. 364.102(b). The criteria are statutory and found in 49
U.S.C. 5123(c) and 521(b)(2)(C). The criteria would be categorized as
involving either the violation or the violator. The proposed
explanation of each factor is based on the agency's reasonable
interpretation of the statute in light of current agency practice.
Particular attention should be paid to the factor proposed in paragraph
(2) of subsection (b), history of prior offenses, which may be used by
the agency to determine if a carrier's operations constitute an
imminent hazard to safety subject to an out-of-service order. Proposed
subsection (c) is a reminder that the application of the factors in a
particular case may be used in a decision to pursue means of
enforcement other than monetary penalties.
Subpart C--Criminal Penalties and Other Sanctions
Section 364.301 Criminal Penalties
Criminal penalties are rarely pursued by the Federal government of
violations of commercial motor vehicle safety regulations. Since
passage of the 1984 Act, the object of the great majority of safety
enforcement cases has been compliance with the regulations through the
assessment of monetary penalties. Other civil penalties, such as out-
of-service orders, have also gained in importance since 1984. The
commercial motor vehicle safety program is administrative in the first
instance. Generally, commercial motor vehicle transportation is a
highly regulated industry, with safety as an important part of the
overall regulatory scheme. International Brotherhood of Teamsters v.
U.S. DOT, 932 F.2d 1292, 1300 (9th Cir. 1991). The FHWA's regulatory
program is not converted into a criminal law enforcement scheme merely
because the government also retains certain parallel criminal penalty
authority.
The advantage to this structure is that the agency can take direct
administrative action against violators, when necessary, supported by
the authority to enforce agency orders in court. Before the 1984 Act,
the agency had only limited civil and criminal penalty authority which
could not be enforced directly by the agency in Federal court. In
practice, these cases generally did not receive very high priority in
the hierarchy of demands placed upon many United States Attorneys and
the courts. This regrettable situation was largely ameliorated with the
expanded civil penalty authority of the 1984 Act. This section would
serve as notice, however, that the criminal penalty authority still
exists. In fact it was enhanced in the 1984 Act. Subsection (e) would
notify the public that willful violations may be referred to the
Department of Justice for possible criminal enforcement.
Section 364.302 Injunctions
This proposed section is intended to notify the public of the
authority of the FHWA to bring civil actions in U.S. District Court to
enforce many of its safety regulations and orders, and, in the case of
the transportation of hazardous materials, to eliminate an imminent
hazard to safety. It is based on 49 U.S.C. 507 and 5122. In practice,
the form of relief sought is usually injunctive, typically an order to
a motor carrier to cease operations, although the statutes allow all
appropriate or necessary relief, including punitive damages.
It is important to note that the regulations and orders which may
be enforced in this way are somewhat limited, and do not include all of
the safety regulations which have been discussed in this document.
Hazardous materials regulations and orders may be enforced, and
imminent hazards eliminated, pursuant to 49 U.S.C. 5122. For most, but
not all, CMV safety violations not involving hazardous materials, 49
U.S.C. 507 authorizes enforcement actions. But 49 U.S.C. 507
specifically excepts violations of the financial responsibility
requirements for motor carriers, found in 49 U.S.C. 31138 and 31139,
from the authority to enforce directly through civil action. This is
unlike the statutory section authorizing the use of administrative
powers (49 U.S.C. 31133), which contains no such exclusion and thus
does apply to enforcement of financial responsibility requirements.
Neither chapter 313, on the CDL program, nor chapter 59, on
Intermodal Safe Container Transportation, contain any express
provisions for injunctive relief, nor are those chapters mentioned at
all in 49 U.S.C. 507. Therefore, those chapters are not included in
this section articulating the statutory authority for injunctive
relief.
Finally, the authority to seek an injunction directly in court (49
U.S.C. 507) should be distinguished from the
[[Page 18880]]
authority to administratively order a vehicle, employee, or employer to
cease operations which pose an imminent hazard to safety (49 U.S.C.
521(b)(5)(A)). The latter process contemplates an administrative
proceeding before any attempts at enforcement in court. This ``out-of-
service order'' procedure is discussed in subsections (c) and (d), and
may be used to enforce CDL and intermodal container violations.
Section 364.303 Driver Disqualifications
This section would be a restatement of disqualification periods
applicable to drivers who commit certain violations. These
disqualification sanctions also appear in Secs. 383.51 and 391.15.
Drivers are also unqualified for any period in which they fail to meet
the qualification requirements of part 391.
Subpart D--Monetary Penalty Collections
Section 364.401 Payment
Payment is demanded upon issuance of a final order imposing a
monetary penalty and generally due and payable within 30 days
thereafter. Unless judicial review is sought, the penalty amount is
subject to the accrual of interest after the date specified in the
final order.
Section 364.402 Collections
This section would provide that monies due and payable will be
collected pursuant to the Federal debt collection regulations. If
administrative actions fail to result in payment, the matter will be
referred to the Department of Justice for collection in a civil action
filed in U.S. District Court. 49 U.S.C. 521(b)(4), 5123(d),
31138(d)(4), 31139(f)(4).
Removal of Parts 385 and 386
Because this rulemaking is a comprehensive revision of safety
ratings and enforcement case procedures, it is proposed to remove and
reserve parts 385 and 386 from the Code of Federal Regulations.
Removal and Reservation of Section 391.47
Because the procedure for resolution of medical conflicts would be
revised and relocated in subpart B of part 303, it is proposed to
remove and reserve Sec. 391.47 of 49 CFR part 391.
Rulemaking Analyses and Notices
Executive Order 12866 (Federal Regulation) and DOT Regulatory Policies
and Procedures
FHWA has determined that this action is not a significant
regulatory action within the meaning of Executive Order 12866 or
significant within the meaning of Department of Transportation
regulatory policies and procedures. The proposals contained in this
document would not result in an annual effect on the economy of $100
million or more, or lead to a major increase in costs or prices, or
have significant adverse effects on the United States economy. This
proposal would augment, replace or amend existing procedures and
practices. Any economic consequences flowing from the procedures in the
proposal are primarily mandated by statute. A regulatory evaluation is
not required because of the ministerial nature of this action.
Regulatory Flexibility Act
In compliance with the Regulatory Flexibility Act (5 U.S.C. 601 et
seq.), the agency has evaluated the effects of this NPRM on small
entities. No economic impacts of this rulemaking are foreseen as the
rule would impose no additional substantive burdens that are not
already required by the regulations to which these procedural rules
would serve as the adjective law. Therefore, the FHWA certifies that
this proposed rule would not have a significant economic impact on a
substantial number of small entities.
Executive Order 12612 (Federalism Assessment)
This action has been analyzed in accordance with the principles and
criteria contained in Executive Order 12612. The rules proposed herein
in no way preempt State authority or jurisdiction, nor do they
establish any conflicts with existing State role in the regulation and
enforcement of commercial motor vehicle safety. It has therefore been
determined that the NPRM does not have sufficient federalism
implications to warrant the preparation of a federalism assessment.
Executive Order 12372 (Intergovernmental Review)
Catalog of Federal Domestic Assistance Program Number 20.217, Motor
Carrier Safety. The regulations implementing Executive Order 12372
regarding intergovernmental consultation of Federal programs and
activities apply to this program.
Paperwork Reduction Act
This proposed rule does not contain a collection of information
requirement for purposes of the Paperwork Reduction Act of 1980. 44
U.S.C. 3501 et seq.
National Environmental Policy Act
The agency has analyzed this action for purposes of the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and has
determined that the proposed rule would not have any effect on the
quality of the environment.
Regulation Identification Number
A regulation identification number (RIN) is assigned to each
regulatory action listed in the Unified Agenda of Federal Regulations.
The Regulatory Information Service Center publishes the Unified Agenda
in April and October of each year. The RIN contained in the heading of
this document can be used to cross reference this action with the
Unified Agenda.
List of Subjects in 49 CFR Parts 361, 362, 363, 364, 385, 386, and 391
Administrative procedures, Commercial motor vehicle safety,
Highways and roads, Highway safety, Motor carriers.
Issued on: April 18, 1996.
Rodney E. Slater,
Federal Highway Administrator.
In consideration of the foregoing, the FHWA proposes to amend title
49, CFR, subtitle B, chapter III, by removing and reserving parts 385
and 386, and by adding parts 361, 362, 363, and 364 as set forth below:
1. Chapter III is amended by adding parts 361, 362, 363, and 364 to
read as follows:
PART 361--ADMINISTRATIVE ENFORCEMENT
Sec.
361.101 Purpose.
361.102 Authority and delegation.
361.103 Inspection and investigation.
361.104 Definitions.
361.105 Employer obligations.
361.106 Vehicle/driver inspection.
361.107 Complaints.
361.108 Administrative subpoenas.
361.109 Depositions and production of records.
Authority: 49 U.S.C. 104, 307, chapters 5, 51, 59, 311, 313, and
315.
Sec. 361.101 Purpose.
This part:
(a) Restates the authority of the Department of Transportation
(DOT) to regulate and investigate persons, property, equipment, and
records relating to commercial motor vehicle transportation, intermodal
safe container transportation, and the highway transportation of
hazardous materials;
[[Page 18881]]
(b) Describes certain obligations and rights of motor carriers and
other entities subject to DOT regulations; and
(c) Identifies the DOT officials authorized to enforce motor
carrier and hazardous materials regulations.
Sec. 361.102 Authority and delegation.
(a) The authority of the Secretary of Transportation to regulate
and investigate commercial motor vehicle safety, including motor
carriers, commercial motor vehicles and drivers, and the highway
transportation of hazardous materials, is codified in 49 U.S.C.
Chapters 5, 51, 59, 311, 313, and 315, and 42 U.S.C. 4917. In carrying
out the provisions of these chapters, the Secretary may conduct
inspections and investigations, compile statistics, make reports, issue
subpoenas, require the production of records and property, take
depositions, hold hearings, prescribe recordkeeping and reporting
requirements, conduct or make contracts for studies, development,
testing evaluation and training, and perform other acts the Secretary
considers appropriate.
(b) The authority of the Secretary listed in paragraph (a) of this
section has been delegated to the Federal Highway Administrator (49
U.S.C. 104(c); 49 CFR 1.48), and is codified in 49 CFR part 325 (Noise
Control), the Federal Motor Carrier Safety Regulations (FMCSRs) (49 CFR
Parts 350-399) and relevant portions of the Hazardous Materials
Regulations (HMRs) (primarily 49 CFR Parts 171-173, 177-178, and 180).
The Federal Highway Administrator has delegated the authority to
enforce the FMCSRs and the HMRs to the Associate Administrator for
Motor Carriers.
(c) The Associate Administrator for Motor Carriers has retained the
authority to approve operating procedures for investigations under this
part, including inspections, and has delegated to subordinate managers,
supervisors, and field personnel, hereinafter ``special agents,'' the
authority to perform such investigations.
(d) The Administrator may delegate to a State which is receiving a
grant under 49 U.S.C. 31102 such functions respecting the enforcement
(including investigations) of the provisions of this subchapter and
regulations issued herein as the Administrator determines appropriate.
Nothing in this part shall preempt the authority of any State to
conduct investigations, initiate enforcement proceedings, or otherwise
implement applicable provisions of State law with respect to motor
carrier safety.
Sec. 361.103 Inspection and investigation.
The FHWA may begin an investigation on its own initiative or on a
complaint.
(a) Upon a display of official DOT credentials, special agents may
enter without delay at reasonable times any place of business,
property, equipment, or commercial motor vehicle of a person subject to
the provisions of 49 U.S.C. Chapters 5, 51, 59, 311, 313, and 315, and
42 U.S.C. 4917. Special agents may take the following actions:
(1) Inspect the equipment and property of a motor carrier or other
person on the premises of the motor carrier, or the equipment of the
motor carrier at any other location, and inspect any commercial motor
vehicle of the motor carrier whether or not in operation; and
(2) Inspect and copy any record of--
(i) A carrier, lessor, association, or other person subject to the
provisions of 49 U.S.C. Chapters 5, 51, 59, 311, 313, and 315, and 42
U.S.C. 4917; and
(ii) A person controlling, controlled by, or under common control
with a carrier, if the agent considers inspection relevant to that
person's relation to, or transaction with, that carrier.
(3) Inspect and copy records, property, and equipment related to
manufacturing, fabricating, marking, maintaining, reconditioning,
repairing, testing, or distributing a package or a container for use by
a person transporting hazardous material by commercial motor vehicle,
and to the highway transportation of hazardous materials.
(b) Special agents may inspect and copy any record related to an
investigation, whether or not it is required to be maintained by
Federal Highway Administration (FHWA) regulations or orders. Special
agents may ask any employer, owner, operator, agent, employee, or other
person for information necessary to carry out their statutory and
regulatory functions. Special agents shall offer the employer or other
person subject to the investigation a right of accompaniment during an
inspection and shall notify the person of the general purpose for which
the information is sought.
(c) Reasonable times for inspections are the regular working hours
of the motor carrier or other person, or other times agreed to by the
carrier or other person, required by exigent circumstances, or
authorized by any court of the United States. If the person operates
twenty-four hours per day, reasonable time means whenever authorized
agents can obtain access to records necessary to conduct an inspection,
and a representative of the person can exercise the right of
accompaniment.
(d) The right of a special agent to enter upon the premises of any
person, inspect vehicles, examine records, or interview any person
shall not imply or be conditioned upon a waiver of any cause of action,
claim, order or penalty.
(e) The Associate Administrator may require a motor carrier to file
with the FHWA a copy of any lease agreement or other business
arrangement that is related to transportation safety.
(f) Information received in an investigation, including the
identity of the person investigated and any other person who provides
information during the investigation, may be kept confidential under
the investigatory file exception, or other appropriate exception, to
the public disclosure requirements of 5 U.S.C. 552.
Sec. 361.104 Definitions.
Words or phrases defined in 49 CFR 383.5 and 390.5 of this
subchapter apply in parts 361-364. In addition--
Abate or abatement means to discontinue regulatory violations by
refraining from or taking actions, identified in a notice, to correct
noncompliance.
Administrative law judge means an administrative law judge
appointed pursuant to the provisions of 5 U.S.C. 3105.
Associate Administrator means the Associate Administrator for Motor
Carriers or an authorized delegate of that official.
Federal Motor Carrier Safety Regulations (FMCSRs) means safety
regulations issued by the Federal Highway Administration under the
authority provided in 49 U.S.C. 104(c) or delegated by the Secretary of
Transportation in 49 CFR 1.48, and set forth in subchapter B of this
chapter.
Hazardous Materials Regulations (HMR) means safety regulations
issued by the Research and Special Programs Administration under
authority delegated by the Secretary of Transportation in 49 CFR 1.53,
and set forth in subchapter C of chapter I of this title.
Respondent means a party against whom relief is sought or claim is
made.
Special agent means an individual employed by the Federal Highway
Administration and empowered by the Secretary through delegations of
authority to perform the activities referred to in Sec. 361.103.
Sec. 361.105 Employer obligations.
(a) An employer, employee, and other person shall comply with
applicable commercial motor vehicle safety regulations.
[[Page 18882]]
(b) A violator shall post all notices of violation which have
become final, as required by any notice issued by a special agent. Such
notices shall be posted by the employer in each motor carrier's places
of employment in a conspicuous place or places where notices to
employees are customarily posted. Each employer shall insure that such
notices are not altered, defaced, or covered by other materials.
(c) All regulations on commercial motor vehicle safety and
hazardous materials safety are published in the Federal Register,
codified in the Code of Federal Regulations, and available for review
and copying at the Regional Offices of the Federal Highway
Administration. An employer shall maintain current copies of applicable
regulations, and shall make them available for inspection to any
employee upon request.
(d) After proper identification of a special agent through the
display of credentials, and an explanation of the purpose of the
investigation, a person shall, upon the request of the special agent,
provide access to:
(1) The records requested to be reviewed;
(2) Employees of the person to be interviewed; and
(3) Any equipment or property used in the transportation of persons
or property or to ensure compliance with the Federal Motor Carrier
Safety Regulations and the Hazardous Materials Regulations.
(e) The request for the production of records or access to
employees or equipment may be made at the initiation of the
investigation or at any time thereafter.
Sec. 361.106 Vehicle/driver inspection.
Upon the instruction of a duly authorized Federal, State or local
enforcement official, each commercial motor vehicle used in interstate
commerce shall be subject to an inspection of all safety equipment and
operating conditions required under the Federal Motor Carrier Safety
Regulations and Hazardous Materials Regulations. Each driver of such
vehicle shall also be subject to an inspection by such enforcement
officials of all documents required to be maintained by that driver
under those regulations.
Sec. 361.107 Complaints.
(a) A person, including a governmental authority, may file with the
Associate Administrator a complaint concerning an alleged violation of
this chapter. The complaint must state the facts that are alleged to
constitute a violation. Any office of the FHWA's Office of Motor
Carriers will accept a written complaint. For a listing of FHWA
Regional Offices see Sec. 390.27 of this subchapter. There are also
Office of Motor Carrier facilities located in each State and listed in
local telephone directories.
(b) The Associate Administrator shall timely investigate any
nonfrivolous written complaint alleging that a substantial violation of
any regulation issued under this chapter is occurring or has occurred
within the preceding 60 days. Nonfrivolous written complaints are
allegations of violations of applicable safety regulations containing
sufficient descriptive detail and knowledge of events to create a
reasonable suspicion that the violations occurred or are occurring.
Substantial violation in this context means the same as a pattern of
serious violations or a substantial health and safety violation, as
those terms are defined in part 364 of this subchapter, or patterns of
record falsification that evidences an intent to avoid detection of
such violations.
(c) The Associate Administrator may dismiss a complaint determined
not to state reasonable grounds for investigation and need not conduct
separate investigations of duplicative complaints.
(d) The complainant shall be timely notified of findings resulting
from an investigation or of dismissal of a complaint.
(e) The agency shall not disclose the identity of complainants
without their consent unless it is determined that such disclosure is
necessary to prosecute a violation. If disclosure becomes necessary,
the Associate Administrator shall take every practical measure within
his authority to assure that the complainant is not subject to
harassment, intimidation, disciplinary action, discrimination, or
financial loss as a result of such disclosure.
(f) No motor carrier or other employer subject to the regulations
in this chapter shall discharge, discipline, or in any manner
discriminate against any employee with respect to the employee's
compensation, terms, conditions, or privileges of employment because
such employee (or any person acting pursuant to a request of such
employee) has filed any complaint or instituted or caused to be
instituted any proceeding relating to a violation of a commercial motor
vehicle safety rule, regulation, standard, or order, or has testified
or is about to testify in any such proceeding.
(g) No motor carrier or other employer subject to the regulations
in this chapter shall discharge, discipline, or in any manner
discriminate against an employee with respect to the employee's
compensation, terms, conditions, or privileges of employment for
refusing to operate a vehicle when such operation constitutes a
violation of any Federal rules, regulations, standards, or orders
applicable to commercial motor vehicle safety or health, or because of
the employee's reasonable apprehension of serious injury to himself or
the public due to the unsafe condition of such equipment. The unsafe
conditions causing the employee's apprehension of injury must be of
such nature that a reasonable person, under the circumstances then
confronting the employee, would conclude that there is a bona fide
danger of an accident, injury, or serious impairment of health,
resulting from the unsafe condition. In order to qualify for protection
under this section, the employee must have sought from his employer,
and have been unable to obtain, correction of the unsafe condition.
(h) Violations of paragraphs (f) and (g) of this section are
subject to enforcement by the Occupational Safety and Health
Administration (OSHA) of the Department of Labor. The proper steps for
an employee to follow when pursuing their rights under these paragraphs
are found in 49 U.S.C. 31105(b) and 29 CFR part 1978.
Sec. 361.108 Administrative subpoenas.
(a) The Associate Administrator may subpoena witnesses and records
related to a proceeding or investigation from a place in the United
States to the designated place of the proceeding or investigation.
(b) If a person fails to comply with a subpoena, the Associate
Administrator may file a civil action in the district court of the
United States in which the proceeding or investigation is being
conducted to enforce the subpoena. The court may punish a refusal to
obey an order of the court to comply with a subpoena.
(c) A motor carrier not complying with a subpoena of the Associate
Administrator to appear, testify, or produce records is subject to a
fine of at least $100 but not more than $5,000, and imprisonment of not
more than one year.
Sec. 361.109 Depositions and production of records.
(a) In any proceeding, compliance review, or investigation, the
Associate Administrator may take testimony of a witness by deposition
and may order the witness to produce records. If a witness refuses to
be deposed or to produce records under this section, the
[[Page 18883]]
Associate Administrator may subpoena the witness to appear for a
deposition, produce the records, or both.
(b) A deposition may be taken before a judge of a court of the
United States, a United States magistrate, a clerk of a district court,
or a chancellor, justice, or judge of a supreme or superior court,
mayor or chief magistrate of a city, judge of a county court, or court
of common pleas of any State, or a notary public who is not counsel or
attorney of a party or interested in the proceeding or investigation.
(c) Notice must be given in writing to the person being deposed in
accordance with the Federal Rules of Civil Procedure. The notice shall
state the name of the witness and the time and place of taking the
deposition.
(d) The testimony of a person deposed under this section shall be
taken under oath. The person taking the deposition shall prepare, or
cause to be prepared, a transcript of the testimony taken. The
transcript shall be subscribed by the deponent, unless signature is
waived.
(e) The testimony of a witness who is in a foreign country may be
taken by deposition before an officer or person designated by the
Associate Administrator or agreed on by the parties by written
stipulation filed with the Associate Administrator. The deposition
shall be promptly filed with the Associate Administrator.
(f) Each witness summoned before the Associate Administrator or
whose deposition is taken under this section and the individual taking
the deposition are entitled to the same fees and mileage paid for those
services in the courts of the United States.
PART 362--SAFETY RATINGS
Sec.
362.101 Purpose.
362.102 Motor Carrier Identification Report.
362.103 Safety fitness--standards and factors.
362.104 Determination of safety fitness--safety ratings.
362.105 Unsatisfactory rated motor carrier--prohibition on
transportation of hazardous materials and passengers; ineligibility
for Federal contracts.
362.106 Notification of a safety rating.
362.107 Change to safety rating based on corrective actions.
362.108 Administrative review.
362.109 Temporary relief from rating.
362.110 Safety fitness information.
Appendix to Part 362--Form MCS-150, Motor Carrier Identification Report
Authority: 49 U.S.C. 104, 504, 521(b)(5)(A), 31144, and 31502;
49 CFR 1.48.
Sec. 362.101 Purpose.
(a) This part establishes standards and procedures applicable to
motor carrier identification, the determination of a motor carrier's
safety fitness and the issuance of a safety rating by the FHWA. This
part also notes the restrictions applicable to unsatisfactory rated
motor carriers, provides for availability of safety fitness
information, and includes procedures for administrative review of
safety ratings.
(b) The procedures set forth in 49 CFR part 363, subpart C also
apply to this part.
Sec. 362.102 Motor Carrier Identification Report.
(a) All motor carriers currently conducting operations in
interstate or foreign commerce shall file a Motor Carrier
Identification Report, Form MCS-150 (see appendix to this part), within
90 days after beginning operations.
(b) The Motor Carrier Identification Report, Form MCS-150, is
available from all FHWA region and division motor carrier safety
offices nationwide and from the FHWA Office of Motor Carrier
Information and Analysis, 400 Seventh Street, SW., Washington, DC
20590.
(c) The completed Motor Carrier Identification Report, Form MCS-
150, shall be filed with the FHWA, Office of Information and Analysis,
400 Seventh Street, SW., Washington, DC 20590.
Sec. 362.103 Safety fitness--standards and factors.
(a) To meet safety fitness standards, a motor carrier must
demonstrate through its performance that it has adequate safety
management controls in place to ensure compliance with applicable
safety and hazardous materials regulations and to facilitate the safe
movement of property and passengers by highway.
(b) The information obtained from reviews, investigations, roadside
inspections, and other available performance data is used to assess a
motor carrier's safety fitness in the context of the following factors:
(1) The adequacy of safety management controls. Safety management
controls are those systems, programs, practices and procedures
implemented by a motor carrier to ensure regulatory compliance and
reduce the safety risks associated with:
(i) Commercial driver's license violations (49 CFR part 383),
including controlled substances and alcohol testing violations (49 CFR
part 382):
(ii) Inadequate levels of financial responsibility (49 CFR part
387);
(iii) The failure to record and track accidents and incidents. (49
CFR part 390).
(iv) The use of unqualified drivers (49 CFR part 391);
(v) Improper use and driving of motor vehicles (49 CFR part 392);
(vi) Unsafe vehicles operating on the highways (49 CFR part 393);
(vii) The use of fatigued drivers (49 CFR part 395);
(viii) Inadequate inspection, repair, and maintenance of vehicles
(49 CFR part 396);
(ix) Transportation and routing of hazardous materials (49 CFR part
397); and
(x) Violations of hazardous materials regulations (49 CFR parts
107-177, 180).
(2) Frequency and severity of violations of applicable safety and
hazardous materials regulations and orders, including violations of
compatible state regulations and orders.
(3) Number and frequency of driver/vehicle violations resulting in
driver/vehicle being placed out of service.
(4) Frequency of accidents and hazardous materials incidents,
including: The recordable accident rate per million miles; the
recordable preventable accident rate per million miles; other accident
indicators; and whether these accident and incident indicators have
improved or deteriorated over time.
(c) In considering violations referred to in paragraph (b)(2) of
this section, particular attention is given to violations of
regulations that are critical or acute. These terms as used in this
paragraph to denote the seriousness of regulatory requirements are
defined as follows:
(1) Critical regulation--violations of which, if occurring in
patterns, reflect a breakdown of management control directly related to
essential safety functions. A pattern is evident when violations are
occurring at a rate in excess of 10 percent. Examples of violations of
critical regulations are using drivers to operate commercial motor
vehicles after they have exceeded the allowable driving time or on-duty
time.
(2) Acute regulation--violations of which are so severe as to
require immediate correction, and by themselves reflect negatively on
the motor carrier's ability to manage safety compliance, regardless of
its overall safety posture. An example of a violation of an acute
regulation is allowing a driver to operate after the drivers has tested
positive for alcohol have exceeded the allowable driving time or on-
duty time.
Sec. 362.104 Determination of safety fitness--safety ratings.
(a) Following a review of a motor carrier, the degree to which the
[[Page 18884]]
operations of the motor carrier are consistent with the safety fitness
standards and factors set forth in Sec. 362.103 determines whether the
following rating will be assigned:
(1) Unsatisfactory--an unsatisfactory safety rating means a failure
by a motor carrier to have adequate safety management controls in place
to prevent involvement in crashes by its vehicles and drivers,
evidenced by higher than normal accident rates, or to ensure compliance
with the applicable safety standards, regulations and orders, as
evidenced by inordinate ratios of violations detected in on-site
reviews or roadside inspections associated with the factors listed in
Sec. 362.103(b).
(2) [Reserved]
(b) An otherwise unsatisfactory safety rating may be deferred,
suspended or otherwise avoided if conditions imposed as a result of a
review of a motor carrier's operation and performance are met, which
would include compliance with specific provisions of the safety or
hazardous materials regulations, the requirements of an order or
notices to abate, or other commitments to improve compliance and
performance. The conditions may be imposed in lieu of an unsatisfactory
rating, and failure of the conditions may result in the immediate
assignment of an unsatisfactory rating.
Sec. 362.105 Unsatisfactory rated motor carriers--prohibition on
transportation of hazardous materials and passengers; ineligibility for
Federal contracts.
(a) A motor carrier rated unsatisfactory is prohibited from
operating a commercial motor vehicle to transport--
(1) Hazardous materials for which vehicle placarding is required
pursuant to part 172 of Chapter I of this title; or
(2) More than 15 passengers, including the driver.
(b) A motor carrier subject to the provisions of paragraph (a) of
this section is ineligible to contract or subcontract with any Federal
agency for transportation of the property or passengers referred to in
paragraphs (a)(1) and (a)(2) of this section.
(c) Penalties. When it is known that the carrier transports the
property or passengers referred to in paragraphs (a)(1) and (a)(2) of
this section, an order will be issued placing those operations out of
service. Any motor carrier that operates commercial motor vehicles in
violation of this section will be subject to the penalty provisions
listed in part 364 of this chapter.
Sec. 362.106 Notification of a safety rating.
(a) Written notification of the safety rating will be provided to a
motor carrier as soon as practicable after assignment of the rating.
(b) Before a safety rating of unsatisfactory is assigned to any
motor carrier, the FHWA will issue a notice of proposed safety rating.
The notice of proposed safety rating will list the deficiencies
discovered during the review of the motor carrier's operations, for
which corrective actions must be taken.
(c) A notice of a proposed safety rating of unsatisfactory will
indicate that, if the unsatisfactory rating becomes final, the motor
carrier will be subject to the provisions of Sec. 362.105, which
prohibit motor carriers rated unsatisfactory from transporting
hazardous materials or passengers, and other consequences that may
result from such rating.
(d) A proposed safety rating will not be made available to the
public under Sec. 362.110.
(e) Except as provided in Sec. 362.107, a proposed safety rating
issued pursuant to paragraph (b) of this section will become the motor
carrier's final safety rating 45 days after the date the notice of
proposed safety rating is received by the motor carrier.
Sec. 362.107 Change to safety rating based on corrective actions.
(a) Within the 45-day period specified in Sec. 362.106(e), or at
any time after a rating has become final, a motor carrier may request a
change to a proposed or final safety rating based on evidence that
corrective actions have been taken and that its operations currently
meet the safety standards and factors specified in Sec. 362.102.
(b) A request for a change to a safety rating must be made, in
writing, to the Regional Director, Office of Motor Carriers, for the
FHWA Region in which the carrier maintains its principal place of
business, and must include a written description of corrective actions
taken and other documentation that may be relied upon as a basis for
the requested change to the proposed rating.
(c) The final determination on the request for change will be based
upon the documentation submitted and any additional investigation
deemed necessary.
(d) The filing of a request for change to a proposed rating under
this section does not stay the 45-day period established in
Sec. 362.106(e), after which a proposed safety rating becomes final. If
the motor carrier has submitted evidence that corrective actions have
been taken pursuant to this section and a final determination cannot be
made within the 45-day period, the period of the proposed safety rating
may be extended for up to 10 days at the discretion of the Regional
Director.
(e) If it is determined that the motor carrier has taken the
corrective actions required and that its operations currently meet the
safety standards and factors specified in Sec. 362.103, the motor
carrier will be provided with written notification that the proposed
unsatisfactory rating will not be assigned, or, if already assigned,
rescinded.
(f) If it is determined that the motor carrier has not taken all
the corrective actions required or that its operations still fail to
meet the safety standards and factors specified in Sec. 362.103, the
motor carrier shall be provided with written notification that its
request has been denied and that the proposed safety rating of
unsatisfactory will become final pursuant to Sec. 362.106(e), or that
an unsatisfactory safety rating currently in effect will not be change.
(g) Any motor carrier whose request for change is denied pursuant
to paragraph (f) of this section may petition for administrative review
pursuant to Sec. 362.108 within 45 days of the denial of the request
for rating change. If the unsatisfactory rating has become final, it
shall remain in effect during the period of any administrative review
unless stayed by the reviewing official.
Sec. 362.108 Administrative review.
(a) Within the 45-day notice period provided in Sec. 362.106(e), or
within 45 days after denial of a request for a change in rating as
provided in Sec. 362.107(g), the motor carrier may petition the FHWA
for administrative review of a proposed or final safety rating by
submitting a written request to the Director, Office of Motor Carrier
Field Operations, 400 Seventh Street, SW., Washington, DC 20590.
(b) The petition must state why the proposed safety rating is
believed to be in error and list all factual and procedural issues in
dispute. The petition may be accompanied by any information or
documents the motor carrier is relying upon as the basis for its
petition.
(c) The Director, Office of Motor Carrier Field Operations, may
request the petitioner to submit additional data and attend a
conference to discuss the safety rating. Failure to provide the
information requested or attend the conference may result in dismissal
of the petition.
(d) The petitioner shall be notified in writing of the decision on
administrative review. The notification will occur within 30 days after
receipt
[[Page 18885]]
of a petition from a hazardous materials or passenger motor carrier.
(e) If the decision on administrative review results in a final
rating of unsatisfactory for a hazardous materials or passenger motor
carrier, the decision shall be accompanied by an appropriate out-of-
service order and provide for an expedited agency appeal of such
decision pursuant to Secs. 363.108 and 363.110 of this subchapter.
(f) All other decisions on administrative review of ratings
constitute final agency action. Thereafter, improvement in the rating
may be obtained under Sec. 362.107.
Sec. 362.109 Temporary relief from rating.
(a) Proposed rating. At any time before a proposed unsatisfactory
rating becomes final, the Regional Director in the region wherein the
motor carrier maintains its principal place of business for safety
purposes may temporarily suspend the proposed rating for a period up to
60 days; provided: the motor carrier consents in writing to an order
directing compliance with conditions designed to assure that the safety
fitness standard will be met and satisfactory performance will be
achieved. The temporary suspension is discretionary with the Regional
Director after consideration of circumstances satisfying that official
that a good faith effort by the motor carrier will be made and that
this effort is reasonably certain to bring about compliance. The
consent order must contain a provision that the temporary recision will
be withdrawn and the proposed unsatisfactory rating will become final
upon a failure of one or more of the conditions in the order. If a
satisfactory level of compliance is achieved after the period covered
by the consent order, the Regional Director may withdraw the proposed
unsatisfactory rating, which action may or may not be subject to
prescribed conditions.
(b) Final rating. The Director of the Office of Field Operations,
or other official designated by the Associate Administrator, may
temporarily suspend a final rating of unsatisfactory under the same
conditions set forth in paragraph (a) of this section.
Sec. 363.110 Safety fitness information.
(a) Final ratings will be made available to other Federal and State
agencies in writing, telephonically or by remote computer access.
(b) The final safety rating assigned to a motor carrier will be
made available to the public upon request. Any person requesting the
assigned rating of a motor carrier shall provide the FHWA with the
motor carrier's name, principal office address, and, if known, the DOT
number or the ICC docket number, if any.
(c) Requests shall be addressed to the Office of Motor Carrier
Information Management and Analysis, HIA-1, Federal Highway
Administration, 400 Seventh Street, SW., Washington, DC 20590.
(d) Oral requests by telephone will be given an oral response.
Appendix to Part 362--Form MCS-150.Motor Carrier Identification Report
(Approved by OMB under control number 2125-0544)
BILLING CODE 4910-22-M
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[GRAPHIC] [TIFF OMITTED] TP29AP96.006
BILLING CODE 4910-22-C
[[Page 18887]]
Notice
The Form MCS-150, Motor Carrier Identification Report, must be
filed by all motor carriers operating in interstate or foreign
commerce. A new motor carrier must file Form MCS-150 within 90 days
after beginning operations. Exception: A motor carrier that has
received written notification of a safety rating from the Federal
Highway Administration (FHWA) need not file the report. To mail,
fold the completed report so that the self-addressed postage paid
panel is on the outside. This report is required by 49 CFR Part 385
and authorized by 49 U.S.C. 504 (1982 & Supp. III 1985).
The public reporting burden for this collection of information
on the Form MCS-150 is estimated by the FHWA to average 20 minutes.
If you wish to comment on the accuracy of the estimate or make
suggestions for reducing this burden, please direct your comments to
the Office of Management and Budget and the FHWA at the following
addresses:
Office of Management and Budget, Paperwork Reduction Project,
Washington, DC 20503
and
Federal Highway Administration, OMC Field Operations, HFO-10, 400
7th Street, SW., Washington, DC 20590
Instructions for Completing the Motor Carrier Identification Report
(MCS-150)
(Please Print or Type All Information)
1. Enter the legal name of the business entity (i.e.,
corporation, partnership, or individual) that owns/controls the
motor carrier/shipper operation.
2. If the business entity is operating under a name other than
that in Block 1, (i.e., ``trade name'') enter that name. Otherwise,
leave blank.
3. Enter the principal place of business street address (where
all safety records are maintained).
4. Enter mailing address if different from the physical address,
otherwise leave bank. Also, applies to #7, #8, #12-#14.
5. Enter the city where the principal place of business is
located.
6. If a Mexican motor carrier or shipper, enter the Mexican
neighborhood or barrio where the principal place of business is
located.
7. Enter the city corresponding with the mailing address.
8. If a Mexican motor carrier or shipper, enter the Mexican
neighborhood or barrio corresponding with the mailing address.
9. Enter the name of the county in which the principal place of
business is located.
10. Enter the two-letter postal abbreviation for the State, or
the name of the Canadian Province or Mexican State, in which the
principal place of business is located.
11. Enter the zip code number corresponding with the street
address.
12. Enter the name of the county corresponding with the mailing
address.
13. Enter the two-letter postal abbreviation for the State, or
the name of the Canadian Province or Mexican State, corresponding
with the mailing address.
14. Enter the ZIP code number corresponding with the mailing
address.
15. Enter the telephone number, including area code, of the
principal place of business.
16. Enter the identification number assigned to your motor
carrier operation by the U.S. Department of Transportation, if
known. Otherwise, enter ``N/A.''
17. Enter the motor carrier ``MC'' or ``MX'' number under which
the Interstate Commerce Commission (ICC) issued your operating
authority, if appropriate. Otherwise, enter ``N/A.''
18. Enter the employer identification number (EIN #) or social
security number (SSN #) assigned to your motor carrier operation by
the Internal Revenue Service.
19. Circle the appropriate type of carrier operation.
A. Interstate.
B. Intrastate, transporting hazardous materials (49 CFR 100-180).
C. Intrastate, NOT transporting hazardous materials.
Interstate--transportation of persons or property across State
lines, including international boundaries, or wholly within one
State as part of a through movement that originates or terminates in
another State or country.
Intrastate--transportation of persons or property wholly within
one State.
20. Circle the appropriate type of shipper operation.
A. Interstate
B. Intrastate
Interstate & Intrastate--See #19 above.
21. Enter the carrier's total mileage for the past calendar
year.
22. Circle appropriate classification. Circle all that apply. If
``L. Other'' is circled, enter the type of operation in the space
provided.
A. Authorized For Hire
B. Exempt For Hire
C. Private (Property)
D. Private Passengers (Business)
E. Private Passengers (Non-Business)
F. Migrant
G. U.S. Mail
H. Federal Government
I. State Government
J. Local Government
K. Indian Tribe
L. Other
Authorized For Hire--transportation for compensation as a common
or contract carrier of property, owned by others, or passengers
under the provisions of the ICC.
Exempt For Hire--transportation for compensation of property or
passengers exempt from the economic regulation by the ICC.
Private (Property)--means a person who provides transportation
of property by commercial motor vehicle and is not a for-hire motor
carrier.
Private Passengers (Business)--a private motor carrier engaged
in the interstate transportation of passengers which is provided in
the furtherance of a commercial enterprise and is not available to
the public at large (e.g., bands).
Private Passengers (Non-Business)--a private motor carrier
involved in the interstate transportation of passengers that does
not otherwise meet the definition of a private motor carrier of
passengers (business) (e.g., church buses).
Migrant--interstate transportation, including a contract
carrier, but not a common carrier of 3 or more migrant workers to or
from their employment by any motor vehicle other than a passenger
automobile or station wagon.
U.S. Mail--transportation of U.S. Mail under contract with the
U.S. Postal Service.
Federal Government--transportation of property or passengers by
a U.S. Federal Government agency.
State Government--transportation of property or passengers by a
U.S. State Government agency.
Local Government--transportation of property or passengers by a
local municipality.
Indian Tribe--transportation of property or passengers by a
Indian tr
FR Doc. 96-10125 Rules of Practice for Motor Carrier Proceedings; Investigations; Disqualifications and Penalties
ibal government.
Other--transportation of property or passengers by some other
operation classification not described by any of the above.
23. Circle all the letters of the types of cargo you usually
transport. If ``Z. Other'' is circled, enter the name of the
commodity in the space provided.
24. Circle all the letters of the types of hazardous materials
(HM) you transport/ship. In the columns before the HM types, either
circle C for carrier of HM or S for a shipper of HM. In the columns
following the HM types, either circle T if the HM is transported in
cargo tanks or P if the HM is transported in other packages (49 CFR
173.2).
25. Enter the total number of vehicles owned, term leased and
trip leased, that are, or can be, operational the day this form is
completed.
Motorcoach--a vehicle designed for long distance transportation
of passengers, usually equipped with storage racks above the seats
and a baggage hold beneath the cabin.
School Bus--a vehicle designed and/or equipped mainly to carry
primary and secondary students to and from school, usually built on
a medium or large truck chassis.
Mini-bus/Van--a multi-purpose passenger vehicle with a capacity
of 10-24 people, typically built on a small truck chassis.
Limousine--a passenger vehicle usually built on a lengthened
automobile chassis.
26. Enter the number of interstate/intrastate drivers used on an
average work day. Part-time, casual, term leased, trip leased and
company drivers are to be included. Also, enter the total number of
drivers and the total number of drivers who have a Commercial
Drivers License (CDL).
Interstate--driver transports people or property across State
lines, including international boundaries, or wholly within one
State as part of a through movement that originates or terminates in
another State or country.
Intrastate--driver transports people or property wholly within
one State.
100-mile radius driver--driver operates only within a 100 air-
mile radius of the normal work reporting location.
27. Print or type the name, in the space provided, of the
individual authorized to sign
[[Page 18888]]
documents on behalf of the entity listed in Block 1. That individual
must sign, date, and show his or her title in the spaces provided
(Certification Statement, see 49 CFR 385.21 and 385.23).
PART 363--ENFORCEMENT PROCEEDINGS
Subpart A--Civil Penalty Proceedings
Sec.
363.101 Nature of proceeding.
363.102 Notice of violation (complaint).
363.103 Form reply to notice of violation.
363.104 Special procedures for out-of-service orders.
363.105 Payment of the claim.
363.106 Settlement of civil penalty claims; generally.
363.107 Settlement negotiations.
363.108 Request for administrative adjudication.
363.109 Procedures in administrative adjudications.
363.110 Expedited review by the Associate Administrator.
363.111 Administrative Law Judge decision.
363.112 Review of Administrative Law Judge decision.
363.113 Decision on review.
363.114 Reconsideration.
363.115 Judicial review.
363.116 Failure to comply with final order.
Subpart B--Driver Qualification Proceedings
Sec.
363.201 Nature of Proceeding.
363.202 Commencement proceedings.
363.203 Answer to medical qualification determination or letter of
disqualification.
363.204 Special proceeding for resolution of conflicts of medical
evaluation.
363.205 Driver's qualification status pending determinations and
proceedings.
363.206 Administrative adjudication.
Subpart C--General Provisions
Sec.
363.301 Applicability.
363.302 Computation of time.
363.303 Service.
363.304 Extension of time.
363.305 Administrative Law Judge.
363.306 Certification of documents.
363.307 Interlocutory appeals.
Subpart A--Civil Penalty Proceedings
Sec. 363.101 Nature of proceeding.
Civil penalty proceedings are proceedings pursuant to 5 U.S.C. 554
in which the agency makes a monetary claim or seeks an order against
the respondent, based on violation of the FMCSRs or HMRs. Final agency
orders that may result from civil penalty proceedings include one or
more of the following:
(a) Monetary penalty;
(b) Settlement agreement;
(c) Out-of-service order;
(d) Notice to post;
(e) Notice of abate; and
(f) Any other order within the authority of the agency.
Sec. 363.102 Notice of violation (complaint).
(a) Civil penalty proceedings are commenced by the issuance of a
notice of violation, which serves as the complaint in subsequent
proceedings and represents the claim of the agency against respondent.
Each notice shall contain the following:
(1) The provisions of law and regulation alleged to have been
violated;
(2) A recitation, separately stated and numbered, of each alleged
violation, including a brief statement of the material facts
constituting each violation.
(3) The amount being claimed and the maximum amount authorized to
be claimed under the statute, and the contents of any order sought to
be imposed;
(4) A statement that failure to answer the notice within the
prescribed time will constitute a waiver of the opportunity to contest
the claim;
(5) A reply form to be completed and returned to the agency, except
in the case of an out-of-service order; and
(6) The address and telefax number to which the reply form and/or
full payment of the amount claimed may be sent, and the telephone
number to call to discuss settlement.
(b) A notice may contain such other matters as the FHWA deems
appropriate, including a notice to abate.
(c) A notice of violation is transmitted by the agency to the
respondent using a method of delivery with a return receipt, such as,
but not limited to, certified mail and personal delivery evidenced by a
certificate of service.
Sec. 363.103 Form reply to notice of violation.
(a) Time for reply. The reply form included in the notice of
violation must be served on the agency by the respondent within 15 days
of respondent's receipt of the notice. The form reply may be sent to
the agency by mail, personal delivery, or telefax. Although a return
receipt is not required, the burden is on the respondent to prove it
has made a timely answer.
(b) Contents of reply form. The respondent must provide the
information requested on the reply form, and indicate, by checking the
appropriate box, its response to the Notice of Violation. Respondent
may select only one option on the reply form. The response options are:
(1) Pay the full amount claimed in the Notice of Violation (check
included), and/or agree to comply with the order by signing where
indicated;
(2) Enter into settlement negotiations (while preserving the right
to contest the claim at a later date); and
(3) Contest the claim immediately through the institution of
administrative adjudication.
(c) Failure to reply. If a completed reply on the form provided, or
in a form containing the same information, is not served on the agency
within 15 days of the respondent's receipt of the notice of violation,
the notice of violation becomes the final agency order in the
proceeding. Respondent's failure to reply constitutes an admission of
all facts alleged in the notice of violation and a waiver of the
respondent's opportunity to contest the claim.
Sec. 363.104 Special procedures for out-of-service orders.
(a) Whenever it is determined that a violation of the FMCSRs poses
an imminent hazard to safety, the agency may order a vehicle or
employee operating such vehicle out of service, or order a motor
carrier to cease all or part of the employer's commercial motor vehicle
operations. In making any such order, no restrictions shall be imposed
on any employee or motor carrier beyond that required to abate the
hazard.
(b) An out-of-service order must be personally served on the driver
when a driver or vehicle is being placed out of service, and on a
responsible representative of the motor carrier at its principal place
of business or other location to which the order applies when all or
part of a motor carrier's commercial motor vehicle operations are being
placed out of service.
(c) A motor carrier or employee shall comply with the out-of-
service order immediately upon its issuance. The penalty for violating
an out-of-service order shall be specifically noted in the order. An
out-of-service order shall not prevent vehicles of the motor carrier in
transit at the time the order is served from proceeding to their
immediate destinations, unless any such vehicles or drivers are
specifically ordered out of service effective immediately. Vehicles and
drivers proceeding to their immediate destination shall be subject to
compliance with the order upon arrival.
(d) If the out-of-service order is contested, an administrative
adjudication shall be made available on an expedited basis under
procedures provided in Sec. 363.110.
(e) For purposes of this section, the term immediate destination
means the next scheduled stop of the vehicle
[[Page 18889]]
already in transit where the cargo on board can be safely secured, and
the term imminent hazard means any condition of vehicle, employee, or
commercial motor vehicle operations which is likely to result in
serious injury of death if not discontinued immediately.
Sec. 363.105 Payment of the claim.
(a) Payment of the full amount claimed may be made at any time
before issuance of a final order, with or without the reply form. After
the issuance of a final order, claims are subject to interest,
penalties, and administrative charges in accordance with 4 CFR part
103.
(b) If the full payment option is selected by the respondent on the
reply form, but payment is not made on the agency within 15 days of the
respondent's receipt of the notice of violation, the notice of
violation becomes the final agency order in the proceeding.
(c) Unless otherwise provided in writing by the mutual consent of
the parties, payment and/or compliance with the order constitutes an
admission of all facts alleged in the notice of violation and a waiver
of the respondent's opportunity to contest the claim, and results in
the notice of violation becoming the final agency order.
Sec. 363.106 Settlement of civil penalty claims; generally.
(a) Settlement of disputed civil penalty claims may occur at any
time before the issuance of a final order.
(b) Content of settlement agreements. When agreement is reached to
resolve the claim, a settlement agreement constituting the final
disposition of the proceeding shall be signed by the parties. The
settlement agreement shall contain the following:
(1) The legal basis of the claim, including an admission of all
jurisdictional facts;
(2) Unless otherwise provided, a finding of the facts constituting
the violations committed;
(3) The amount due the FHWA and the terms of payment, and/or the
terms of the order;
(4) An express waiver of the right to further procedural steps and
of all rights to judicial review;
(5) A statement that the agreement is not binding on the agency
until executed by the agency's authorized representative; and
(6) A statement that failure to pay other otherwise perform in
accordance with the terms of the agreement will result in the notice of
violation becoming the final agency order, and the amount claimed in
the notice of violation becoming due and payable immediately.
(c) An executed settlement agreement is binding on the parties
according to its terms. The respondent's signed, written consent to a
settlement agreement may only be withdrawn, in writing, if the agency
has not executed the agreement within 28 days after execution by
respondent.
(d) The agency's acceptance of partial payment of a claim tendered
unilaterally by a respondent does not constitute a settlement
agreement. All settlement agreements must be in the form specified in
paragraph (b) of this section.
(e) Settlement agreements reached during the course of an
administrative adjudication need not be approved by the Administrative
Law Judge or Associated Administrator unless specifically directed by
those officials.
Sec. 363.107 Settlement negotiations.
This section establishes procedures when the settlement
negotiations option is selected on the reply form.
(a) The parties should enter into negotiations expeditiously and in
good faith, using all reasonable means.
(b) Opportunity for an administrative adjudication. Respondents
electing on the reply form to engage in settlement negotiations retain
the opportunity to contest the claim through an administrative
adjudication if the negotiations do not result in a settlement
agreement.
(c) Discontinuance of negotiations within 90 days. The agency may
discontinue negotiations within 90 days of the notice of violation by
sending the respondent a final notice of violation. The respondent may
discontinue negotiations within the same period by requesting an
administrative adjudication and sending the agency a written answer to
the notice of violation.
(d) Failure to reach agreement after 90 days. If the parties do not
reach a settlement agreement within 90 days, a final notice of
violation shall be issued by the agency to the respondent.
(e) Final Notice of Violation. The final notice of violation
represents the agency's final claim against the respondent. The final
notice of violation may incorporate the notice of violation by
reference, amend the notice of violation to reflect the settlement
negotiations, or include some combination of both.
(1) A final notice of violation shall be transmitted to the
respondent using a method of delivery within a return receipt, such as,
but not limited to, certified mail and personal delivery evidenced by a
certificate of service.
(2) The reply to the final notice of violation shall be completed
in conformance with the requirements of Sec. 363.108(c).
Sec. 363.108 Request for administrative adjudication.
The respondent may contest the claim by requesting an
administrative adjudication and sending a written answer to the agency.
An administrative adjudication is a process to resolve contested claims
before the Associate Administrator or an Administrative Law Judge.
Unless settled, the Associate Administrator shall decide the matter or
refer it to an Administrative Law Judge expeditiously.
(a) Time for answer. Respondents who select administrative
adjudication on the reply form to the notice of violation, or who
receive a final notice of violation, must serve a written answer on the
agency within 28 days of receipt of the applicable notice.
(b) Form of answer. The answer may be sent to the agency by mail,
personal delivery, or telefax. Though a return receipt is not required,
the burden is on the respondent to prove it has made a timely answer.
(c) Contents of answer. Generally, the answer must state the
grounds for contesting the claim and any affirmative defenses that the
respondent intends to assert. Specifically, the answer:
(1) Must admit or deny each separately stated and numbered
allegation of violation in the claim. A statement that the person is
without sufficient knowledge or information to admit or deny will have
the effect of a denial. Any allegation in the claim that is not
specifically denied in the answer is deemed admitted. A general denial
of the claim is grounds for a finding of default;
(2) Must include all affirmative defenses, including those relating
to jurisdiction, limitations, and procedure;
(3) Must request referral to an Administrative Law Judge, if
desired. Referral to an Administrative Law Judge is generally available
only to resolve material issues of fact. Failure to request it results
in a waiver of the right to an opportunity for referral; and
(4) May include a motion to dismiss, but a motion to dismiss is not
a substitute for an answer.
(d) Failure to answer. If a written answer meeting the requirements
of this section is not served on the agency by the respondent or
representative of the respondent within 28 days, the notice of
violation or final notice of violation,
[[Page 18890]]
whichever is applicable, becomes the final agency order in the
proceeding. Merely selecting the adjudication option on the reply form,
without submitting a written answer in accordance with this section,
also results in the notice of violation becoming the final agency order
in the proceeding. Respondent's failure to answer constitutes an
admission of all facts alleged in the notice of violation and a waiver
of the respondent's opportunity to contest the claim.
(e) Default. If an answer is not in the form required by paragraph
(c) of this section the respondent may be found in default by the
Associate Administrator or Administrative Law Judge and a final agency
order issued in the proceeding. Default by respondent constitutes an
admission of all facts alleged in the notice of violation and a waiver
of the respondent's opportunity to contest the claim, and results in
the Notice of Violation becoming the final agency order in the
proceeding.
Sec. 363.109 Procedures in administrative adjudications.
(a) Associate Administrator. Contested claims shall be transmitted
to the Associate Administrator for resolution by final order or for
assignment to an Administrative Law Judge. The Associate Administrator
determines if there are material factual issues in dispute, but may
refer the matter to an administrative law judge to make the
determination.
(b) Referral to an Administrative Law Judge. If there are material
factual issues in dispute and respondent has requested referral to an
Administrative Law Judge, the Associate Administrator shall assign the
matter to an Administrative Law Judge. The Associate Administrator may,
in his or her discretion, refer other matters to an Administrative Law
Judge.
(c) Decision. If there are no material factual issues in dispute or
the matter has not been referred to an Administrative Law Judge, the
Associate Administrator may resolve the Matter and issue a final order.
(d) Except as otherwise provided in these rules, in the
Administrative Procedure Act, 5 U.S.C. 551 et seq., or by the Associate
Administrator or Administrative Law Judge, the Federal Rules of Civil
Procedure and the Federal Rules of Evidence shall apply in all
administrative adjudications.
(e) Motions. An application for an order or ruling in an
administrative adjudication shall be by motion. Unless made during an
oral hearing, motions shall be made in writing, shall state with
particularity the grounds for relief sought, and shall be accompanied
by any relevant affidavits or other evidence. Any party may file a
response to a written motion within 7 days, or within such other time
provided by the Associate Administrator or the Administrative Law
Judge. Failure to respond to a motion may constitute grounds for
granting it. Oral argument or briefs on a motion may be ordered by the
Administrative Law Judge or by the Associate Administrator.
(f) The Associate Administrator and the Administrative Law Judge
have the discretion to conduct an oral hearing on the record, decide
the matter on the pleadings, or employ any other appropriate process.
(g) The Associate Administrator and the Administrative Law Judge
may conduct or permit forms of alternative dispute resolution upon the
consent of the parties.
(h) Appearance. Any party to an administrative proceeding may
appear personally and be represented by an attorney or other person. A
representative must serve a notice of appearance on all parties,
including the name of the respondent or title of the matter, as well as
the representative's name, address, and telephone number, before
participating in the proceeding.
(i) Withdrawal. At any time after a request for an administrative
adjudication, but prior to the issuance of a decision by the
Administrative Law Judge or Associate Administrator, any party may, in
writing, withdraw a request for an administrative adjudication or the
agency may withdraw the notice of violation. If a proceeding before an
Administrative Law Judge is so withdrawn, the assignment of the
Administrative Law Judge is terminated and the Administrative Law Judge
shall dismiss the proceeding with prejudice. A withdrawal by the
respondent constitutes and irrevocable waiver of the respondent's right
to an administrative adjudication on the matter presented in the notice
of violation.
Sec. 363.110 Expedited review by the Associate Administrator.
(a) Decisions to order a motor carrier's operations out of service
is whole or in part are subject to review by the Associate
Administrator in accordance with 5 U.S.C. 554, except that such review
must be provided within 10 days from the date of the out-of-service
order; provided a written request for review is received by the
Associate Administrator within 5 days from the date of the notice.
Written requests received after the 5th day but within 10 days of the
effective date of the out-of-service order or final unsatisfactory
rating resulting in an out-of-service order will be reviewed within 10
days from the date of the request.
(b) Any petition for review received more than 10 days after the
date of an out-of-service order will be treated as a request for
administrative adjudication under Sec. 363.108 of this part, unless the
Associate Administrator, in his or her discretion, provides otherwise.
(c) Any requests for review submitted pursuant to this section must
be in writing and particularly address the matters which are disputed,
the grounds for the dispute, and the reasons why expedited review is
required.
(d) The Associate Administrator may refer the matter for a hearing
before and Administrative Law Judge within the same time prescribed for
expedited review. The procedures in Sec. 363.109, except for time
periods, shall apply to the hearing.
(e) The Associate Administrator or Administrative Law Judge may
stay any order or safety rating during the pendency of the expedited
review. Thereafter, the matter may be administered pursuant to
Sec. 363.109.
(f) Unless a stay is granted under paragraph (e) of this section or
the period extended by mutual consent of the parties, the decision on
an expedited review shall be issued within the time prescribed for such
expedited review.
(g) The decision of the Administrative Law Judge on referral from
the Associate Administrator shall become the final agency order after
24 hours unless amended or vacated by the Associate Administrator.
Sec. 363.111 Administrative Law Judge decision.
(a) After considering the evidence and arguments of the parties,
the Administrative Law Judge shall issue a decision. The decision shall
be sent to the parties and to the Associate Administrator. The
Administrative Law Judge may issue an oral decision in the presence of
the parties, which will be entered in the record of the proceedings.
(b) Finality. Except for expedited review under Sec. 363.110, the
decision of the Administrative Law Judge becomes the final decision of
the agency 45 days after it is issued, unless a petition for review is
filed under Sec. 363.112 within that period, or the Associate
Administrator, on his own motion, reviews or vacates the decision.
Sec. 363.112 Review of Administrative Law Judge decision.
(a) All petitions to review administrative adjudication decisions
of the Administrative Law Judge must be accompanied by a statement of
the
[[Page 18891]]
grounds for review. Each petition must set out in detail objections to
the decision and refer to any evidence in the record which is relied
upon to support the petition. It shall also state the relief requested.
Failure to object to any error in the decision constitutes a waiver of
the right to allege such error in subsequent proceedings.
(b) A party may petition for review of a decision of the
Administrative Law Judge on only the following three grounds:
(1) A finding of fact is not supported by substantial evidence;
(2) A conclusion of law is not made in accordance with applicable
law, precedent, or public policy; and
(3) The Administrative Law Judge committed prejudicial error in
applying the governing procedural rules.
(c) Reply briefs may be filed within 35 days after the petition for
review is filed. Further pleadings may be filed by a party only if
expressly allowed by the Associate Administrator.
(d) Copies of the petition for review and all motions and briefs
must be served on all parties.
(e) Oral argument will be permitted only if expressly allowed by
the Associate Administrator.
Sec. 363.113 Decision on review.
(a) The Associate Administrator may adopt, modify, or reverse the
Administrative Law Judge's decision and may make any necessary findings
of law or fact. The Associate Administrator may also remand the matter
to the Administrative Law Judge with instructions for further
proceedings. If the matter is not remanded, the Associate Administrator
shall issue a final order disposing of the proceedings and serve it on
all parties.
(b) Finality. Unless otherwise stated, an order of the Associate
Administrator on review becomes the final order of the agency upon
issuance.
Sec. 363.114 Reconsideration.
Within 21 days of a decision by the Associate Administrator, any
party may petition for reconsideration. The filing of a petition for
reconsideration does not stay the effectiveness of a final order unless
so ordered by the Associate Administrator.
Sec. 363.115 Judicial review.
(a) Any aggrieved person, who, after an administrative
adjudication, is adversely affected by a final order issued may, within
30 days, petition for review of the order in the United States Court of
Appeals in the circuit wherein the violation is alleged to have
occurred, or where the violator has its principal place of business or
residence, or in the United States Court of Appeals for the District of
Columbia Circuit.
(b) Judicial review shall be based on a determination of whether or
not the findings and conclusions in the final order were supported by
substantial evidence or otherwise in accordance with law. No objection
that has not been urged before the agency must be considered by the
court, unless reasonable grounds existed for failure or neglect to do
so. The commencement of proceedings under this section shall not,
unless ordered by the court, operate as a stay of the final order of
the agency.
Sec. 363.116 Failure to comply with final order.
If, within 30 days of receipt of a final agency order issued under
this part, the respondent does not pay a civil penalty assessed, take
any other action required by the order, or file a petition under
Secs. 363.114 or 363.115, the case may be referred to the Attorney
General with a request that an action be brought in the appropriate
United States District Court to enforce the terms of the order or
collect the civil penalty.
Subpart B--Driver Qualification Proceedings
Sec. 363.201 Nature of proceeding.
Driver qualification proceedings are the means by which the agency
resolves challenges to or disputes involving a determination of a
driver's medical qualification to operate a commercial motor vehicle or
challenges to disqualification by the Federal Highway Administration of
a driver following convictions for certain driving offenses.
Sec. 363.202 Commencement of proceedings.
(a) Driver qualification proceedings are commenced by the issuance
to a driver or motor carrier of:
(1) A notice of determination by the agency (the determination may
be issued unilaterally by the agency or in resolution of a conflict of
medical evaluations pursuant to Sec. 363.204); or
(2) A letter of disqualification issued by the agency, based upon a
conviction for a disqualifying offense or other cause listed in
Sec. 383.51 or 391.15 of this subchapter.
(b) Each notice of determination or letter of disqualification
shall contain the following:
(1) A statement of the provisions of the regulations under which
the action is being taken;
(2) A copy of all documentary evidence relied on or considered in
taking such action, or, in the case of voluminous evidence, a summary
of such evidence;
(3) Notice that the determination or disqualification may be
contested, and that failure to answer will constitute a waiver of the
opportunity to contest the determination or disqualification; and
(4) Notice that the burden of proof will be on the applicant in
cases arising under Sec. 363.204.
(c) In a medical qualification proceeding, the notice of
determination must be transmitted to the driver involved. In cases
arising under Sec. 363.204, the notice of determination shall also be
transmitted to the motor carrier and any other parties involved in the
resolution of a conflict of medical evaluations. Any party may respond.
In a disqualification proceeding, the letter of disqualification must
be transmitted both to the driver and to the employing motor carrier,
if the latter is known.
(d) The notice or letter commencing the proceeding is transmitted
by the agency to any respondent or necessary party using a method of
delivery with a return receipt, such as, but not limited to, certified
mail and personal delivery evidenced by a certificate of service.
Sec. 363.203 Answer to medical qualification determination or letter
of disqualification.
(a) Time to answer. An answer to the notice of determination or
letter of disqualification must be completed by the respondent and
served on the agency within 2 months of respondent's receipt of the
notice of determination. The answer may be sent to the agency by mail
or telefax. Though a return receipt is not required, the burden is on
the respondent to prove it has made a timely answer.
(b) Contents of the answer. The answer must contain the following:
(1) The grounds for contesting the determination;
(2) Copies of all evidence upon which petitioner relies.
(3) A request for referral to an Administrative Law Judge, if one
is desired, which must set forth material factual issues believed to be
in dispute.
(c) Supporting evidence. All written evidence shall be submitted in
the following forms:
(1) An affidavit of a person having personal knowledge of the facts
alleged;
(2) Documentary evidence in the form of exhibits attached to an
affidavit identifying the exhibit and giving its source;
(3) A medical report (or reports) prepared by a medical examiner or
authorized representative of a medical institution; and
(4) An official record of a government agency.
(d) Failure to answer. If a written answer contesting the notice or
letter is
[[Page 18892]]
not received by the agency within 2 months, the notice of determination
or letter of disqualification becomes the final agency order in the
proceeding. Respondent's failure to answer constitutes and admission of
all facts alleged in the letter or notice and a waiver of the
respondent's opportunity to contest the determination of
disqualification.
(e) Letter of Disqualification. In proceedings based on convictions
for disqualifying offenses, the only relevant defenses are that:
(1) The respondent driver was not convicted as alleged;
(2) The alleged conviction was overturned, vacated, remanded, or
otherwise voided on appeal;
(3) The violation for which the conviction was entered is not a
disqualifying offense; or
(4) The term of the disqualification period has already been served
in whole or in part because of State action.
Sec. 363.204 Special procedures for resolution of conflicts of medical
evaluation.
(a) Applications. An application for determination of a driver's
medical qualifications under standards in part 391 of this chapter will
only be accepted if they conform to the requirements of this section.
(b) Conditions. Each applicant must meet the following conditions.
(1) The application must be in writing and contain the name and
address of the driver, motor carrier, and all physicians involved in
the conflict.
(2) The applicant must provide documentary evidence that there is
disagreement between the physician for the driver and the physician for
the motor carrier concerning the driver's medical qualifications.
(3) The applicant must submit a written opinion and report from an
independent medical specialist in the field in which the conflict
arose, together with the results of all tests performed by that
independent specialist. The independent medical specialist should be
one agreed to by the motor carrier and the driver.
(4) If no agreement to select an independent specialist can be
reached, the applicant must demonstrate it agreed and the other party
refused to submit the matter to a specialist. If possible, the
applicant must then submit the report of an independent specialist
selected by the applicant. The report should be based on personal
examination or, if that is not possible, on an evaluation of the
reports of the two examining physicians in conflict.
(5) The independent medical specialist must be provided with a copy
of the regulations in part 391 of this subchapter, and this part, a
medical history of the driver, and a detailed statement of the work the
driver performs or is to perform, which must be noted in the
specialist's report.
(6) The applicant must submit all medical records, statements and
reports of all physicians known to have provided opinions as to the
driver's qualifications.
(7) The applicant must submit any other documentary evidence which
may reflect on the driver's qualifications.
(8) The application must allege that the driver intends to drive or
is intended to be used as driver in interstate commerce.
(9) The application and all supporting documents must be submitted
in triplicate to the Director, Office of Motor Carrier Research and
Standards, Federal Highway Administration, Washington DC 20590.
(c) Initiation. Upon receipt of a satisfactory application, the
Director will issue a notice to all parties that an application for
resolution of a medical conflict has been received with respect to the
identified driver, and may require additional information from the
parties.
(d) Reply. Any party may submit a reply to the notice within 30
days after service. The reply must be accompanied by all evidence the
party desires to be considered by the Director in making a
determination.
(e) Parties. For purposes of this section, the parties are the
driver, the motor carrier, and any other person whom the Director
designates as such.
(f) Determination. After considering all the medical evidence
submitted by the parties and the opinions of medical experts to whom
any matter under consideration may have been referred, the Director
shall issue a Determination of Qualification deciding whether the drive
is qualified under part 391 of this subchapter.
(g) Petitions for review. A driver or motor carrier adversely
affected by the Director's determination may within 60 days petition
for review to the Associate Administrator under this part.
Sec. 363.205 Driver's qualification status pending determinations and
proceedings.
(a) In proceedings which are unilaterally commenced by the agency,
the driver shall be deemed qualified unless and until a final order is
issued disqualifying the driver.
(b) In proceedings arising under Sec. 363.204:
(1) If the driver is not yet employed by the motor carrier with
which the conflict of medical qualification arises, the driver shall be
deemed unqualified as a driver only with respect to that motor carrier.
(2) If the conflict arises from a biennial or other medical
examination conducted after the driver was previously found qualified
and employed as a driver by the motor carrier with which the conflict
exists, the driver shall be deemed qualified only with respect to that
motor carrier unless and until a final determination by the Director,
Office of Motor Standards is issued finding the driver unqualified, or
unless the Associate Administrator otherwise provides.
(c) During the pendency of a proceeding on a petition for review of
the Determination of Qualification issued by the Director under
Sec. 363.204, the driver's status will remain as decided in that
Determination, unless otherwise provided by the Associate
Administrator.
Sec. 363.206 Administrative adjudication.
(a) Referral to an Administrative Law Judge. If there are material
factual issues in dispute and respondent has requested referral to an
Administrative Law Judge, the Associate Administrator may assign the
matter to an Administrative Law Judge.
(b) Decision. If there are not material factual issues in dispute
or respondent has not requested referral, the Associate Administrator
may resolve the matter and issue a final order.
(c) Procedures. Administrative adjudication and any agency review
are conducted in accordance with Secs. 363.109 and 363.111-363.115.
Subpart C--General Provisions
Sec. 363.301 Applicability.
The general provisions in this subpart apply to part 362 of this
subchapter and this part 363.
Sec. 363.302 Computation of time.
(a) Generally, in computing any time period set out in these rules
or in an order issued hereunder, the time computation begins with the
day following the act, event, or default. The last day of the period is
included unless it is a Saturday, Sunday, or legal Federal holiday, in
which case the time period shall run to the end of the next day that is
not a Saturday, Sunday, or legal Federal holiday. All Saturdays,
Sundays, and legal Federal holidays except those falling on the last
day of the period shall be counted.
(b) Date of entry of orders. In computing any period of time
involving the date of the entry of an order, the date of entry shall be
the date the order is served.
[[Page 18893]]
Sec. 363.303 Service.
(a) Definition.
Service means the delivery of documents to necessary entities in
the context of an administrative proceeding. Service by mail is
complete upon mailing.
(b) Certificate of service. A certificate of service shall
accompany all documents served in an administrative proceeding, except
the notice of violation on Sec. 363.102, the reply form in
Sec. 363.103, and the notice of determination and letter of
disqualification in Sec. 363.202. It shall consist of a certificate of
personal delivery or a certificate of mailing, executed by the person
making the personal delivery or mailing the document.
(c) Service list. The initial notice or other document of the
agency in an administrative proceeding shall have attached a list of
persons to be served. This service list shall be updated by the agency
as necessary. Copies of all documents must be served on the persons,
and in the number of copies, indicated on the service list.
(d) Form of delivery. All service required by these rules shall be
made by mail or personal delivery, unless otherwise prescribed.
Sec. 363.304 Extension of time.
(a) Unless directed otherwise by the Associate Administrator or
Administrative Law Judge before whom a matter is pending, the parties
may stipulate to reasonable extensions of time by filing such
stipulation in the official docket and serving copies on all parties on
the service list.
(b) All requests for extensions of time shall be filed with the
office in the agency to which the answer is to be sent, or, if the
matter is an administrative adjudication, with the Administrative Law
Judge or the Associate Administrator, whichever is appropriate. All
requests must state the reasons for the request. Only those requests
showing good cause or upon the mutual consent of the parties may be
granted by the appropriate official. No motion for continuance or
postponement of a hearing date filed within 7 days of the date set for
a hearing will be granted unless it is accompanied by an affidavit
showing that extraordinary circumstances warrant a continuance.
Sec. 363.305 Administrative Law Judge.
(a) Powers of an Administrative Law Judge. In accordance with the
rules in this subchapter, an Administrative Law Judge may:
(1) Give notice of and hold prehearing conferences and hearings;
(2) Administer oaths and affirmations;
(3) Issue subpoenas authorized by law
(4) Rule on offers of proof;
(5) Receive relevant and material evidence;
(6) Regulate the course of the administrative adjudication in
accordance with the rules of this subchapter;
(7) Hold conferences to settle or simplify the issues by the
consent of the parties;
(8) Dispose of procedural motions and requests;
(9) Make findings of fact and conclusions of law, and issue
decisions.
(b) Limitations on the power of the Administrative Law Judge. The
Administrative Law Judge is bound by the procedural requirements of
this part and the precedent opinions of the agency as recorded in
written opinions of the Associate Administrator or in opinions adopted
by the Associate Administrator. If the Administrative Law Judge imposes
any sanction not specified in this subchapter, a party may file an
interlocutory appeal of right with the Associate Administrator pursuant
to Sec. 363.307. This section does not preclude an Administrative Law
Judge from barring a person from a specific proceeding based on a
finding of obstreperous or disruptive behavior in that proceeding.
(c) Disqualification. The Administrative Law Judge may disqualify
himself or herself at any time, either at the request of any party or
upon his or her own initiative. Assignments of Administrative Law
Judges are made by the Chief Administrative Law Judge upon the request
of the Associate Administrator. Any request for a change in such
assignment, including disqualification, will be considered only for
good cause which would unduly prejudice the proceeding.
Sec. 363.306 Certification of documents.
(a) Signature required. The attorney of record, the party, or the
party's representative shall sign each document tendered for filing
with the hearing docket clerk, the Administrative Law Judge, the
Associate Administrator, or served on a party.
(b) Effect of signing a document. By signing a document, the
attorney of record, the party, or the party's representative certifies
that the attorney, the party, or the party's representative has read
the document and, based on reasonable inquiry and to the best of that
person's knowledge, information, and belief, the document is--
(1) Consistent with these rules;
(2) Warranted by existing law or that a good faith argument exists
for extension, modification, or reversal of existing law; and
(3) Not unreasonable or unduly burdensome or expensive, not made to
harass any person, not made to cause unnecessary delay, not made to
cause needless increase in the cost of the proceedings, or for any
other improper purpose.
(c) Sanctions. If the attorney of record, the party, or the party's
representative signs a document in violation of this section, the
Administrative Law Judge or the Associate Administrator may:
(1) Strike the pleading signed in violation of this section;
(2) Strike the request for discovery or the discovery response
signed in violation of this section and preclude further discovery by
the party;
(3) Deny the motion or request signed in violation of this section;
(4) Exclude the document signed in violation of this section from
the record;
(5) Dismiss the interlocutory appeal and preclude further appeal on
that issue by the party who filed the appeal until an initial decision
has been entered on the record; or
(6) Dismiss the petition for review of the Administrative Law
Judge's decision to the Associate Administrator.
Sec. 363.307 Interlocutory appeals.
(a) General. Unless otherwise provided in this subpart, a party may
not appeal a ruling or decision of the Administrative Law Judge to the
Associate Administrator until the Administrative Law Judge's decision
has been entered on the record. A decision or order of the Associate
Administrator on the interlocutory appeal does not constitute a final
order for the purposes of judicial review under Sec. 363.115.
(b) Interlocutory appeal for cause. If a party files a written
request for an interlocutory appeal for cause with the Administrative
Law Judge, or orally requests an interlocutory appeal for cause, the
proceedings are stayed until the Administrative Law Judge issues a
decision on the request. If the Administrative Law Judge grants the
request, the proceedings are stayed until the Associate Administrator
issues a decision on the interlocutory appeal. The Administrative Law
Judge shall grant an interlocutory appeal for cause if a party shows
that delay of the appeal would be detrimental to the public interest or
would result in undue prejudice to any party.
(c) Interlocutory appeals of right. If a party notifies the
Administrative Law
[[Page 18894]]
Judge of an interlocutory appeal of right, the proceedings shall be
stayed until the Associate Administrator issues a decision on the
interlocutory appeal. A party may file an interlocutory appeal with the
Associate Administrator, without the consent of the Administrative Law
Judge, before the Administrative Law Judge has made a decision, in the
following situations:
(1) A ruling or order by the Administrative Law Judge barring a
person from the proceedings;
(2) Failure of the Administrative Law Judge to dismiss the
proceedings in accordance with Sec. 363.109(i);
(3) A ruling or order by the Administrative Law Judge in violation
of Sec. 363.305(b); and
(4) Denial by the Administrative Law Judge of a motion to
disqualify under Sec. 363.305(c).
(d) Procedure. A party must file a notice of interlocutory appeal,
with any supporting documents, with the Associate Administrator, and
serve copies on each party and the Administrative Law Judge, not later
than 10 days after the Administrative Law Judge's decision forming the
basis of an interlocutory appeal of right or not later than 10 days
after the Administrative Law Judge's decision granting an interlocutory
appeal for cause, whichever is appropriate. A party must file a reply
brief, if any, with the Associate Administrator and serve a copy of the
reply brief on each party, not later than 10 days after service of the
appeal brief. The Associate Administrator shall render a decision on
the interlocutory appeal, on the record and as a part of the decision
in the proceedings, within a reasonable time after receipt of the
interlocutory appeal.
(e) The Associate Administrator may reject frivolous, repetitive,
or dilatory appeals, and may issue an order precluding one or more
parties from making further interlocutory appeals in a proceeding in
which there have been frivolous, repetitive, or dilatory interlocutory
appeals.
PART 364--VIOLATIONS, PENALTIES, AND COLLECTIONS
Subpart A--General
Sec.
364.101 Purpose.
364.102 Policy.
Subpart B--Civil Penalties
364.201 Types of violations and maximum monetary penalties.
364.202 Civil penalty assessment factors.
Subpart C--Criminal Penalties and Other Sanctions
364.301 Criminal penalties.
364.302 Injunctions.
364.303 Disqualifications.
Subpart D--Monetary Penalty Collection
364.401 Payment.
364.402 Collections.
Authority: 49 U.S.C. Chapters 5, 51, 311, 313 and 315.
Subpart A--General
Sec. 364.101 Purpose.
The purposes of this part are to define the various types of
violations of the Federal Motor Carrier Safety Regulations (FMCSRs) and
Hazardous Materials Regulations (HMRs), and orders authorized to be
issued thereunder; to describe the range of penalties that may be
imposed for such violations and how those penalties are assessed; and
to identify the means that may be employed to collect those penalties
once it has been finally decided by the agency that they are due.
Sec. 364.102 Policy.
(a) Penalties are assessed administratively by the agency for
violations of the FMCSRs, HMRs, and administrative orders at levels
sufficient to bring about satisfactory compliance. Criminal penalties
are also authorized to be sought in U.S. District Court under certain
circumstances.
(b) The maximum amounts of civil penalties that can be assessed for
regulatory violations subject to the proceedings in this subchapter are
established in the statutes granting enforcement powers. The
determination of the actual civil penalties assessed in each proceeding
is based on those defined limits and consideration of information
available at the time the claim is made concerning the nature,
circumstances, extent and gravity of the violation and, with respect to
the violator, the degree of culpability, history of prior offenses,
ability to pay, effect on ability to continue to do business, and such
other matters as justice and public safety may require. In adjudicating
the claims and orders under the administrative procedures in this
subchapter, additional information may be developed regarding these
factors that may affect the final amount of the claim.
(c) When assessing penalties for violations of notices and orders
or settling claims based on these assessments, consideration will be
given to good faith efforts to achieve compliance with the terms of the
notices and orders.
(d) Criminal penalties may be sought against a motor carrier, its
officers or agents, a driver, or other persons when it can be
established that violations were deliberate or resulted from a willful
disregard for the regulations. Criminal penalties may be sought against
an employee only when a causative link can be established between a
knowing and willful violation and an accident or hazardous materials
incident or the risk thereof.
(e) If a State, political subdivision of a State, foreign nation,
or other governmental entity imposes any civil or criminal penalty for
acts constituting violations of the regulations covered by this part,
and those penalties are determined by the Associate Administrator to be
appropriate for such violations, no further penalties will be assessed
by the Federal Highway Administration.
Subpart B--Civil Penalties
Sec. 364.201 Types of violations and maximum monetary penalties.
(a) Violations of parts 350-399 of the FMCS are divided into three
categories, each of which carries a maximum penalty as noted below.
Unless otherwise noted, a separate violation occurs for each day the
violation continues:
(1) Recordkeeping--violations which involve knowing failure to
prepare or maintain a record required by the regulations, or knowing
preparation or maintenance of a required record which is incomplete,
inaccurate or false. Maximum penalty: $500 per violation, which may be
increased by $500 for each day the violation continues up to $2,500.
Actual or constructive possession of the means with which to verify the
existence or accuracy of the record is presumptive evidence that the
person responsible for maintaining such record committed a knowing
violation when such record is incomplete, inaccurate, or false.
(2) Serious pattern of safety violations--no civil penalties are
assessed for isolated violations of non-recordkeeping provisions of the
regulations. The term ``serious patterns of violations'' describes a
middle range of violations between those of recordkeeping noncompliance
and willful disregard of the regulations. These types of violations are
not the isolated human errors, but are tolerated patterns of equipment
violations or operating conduct that any responsible business entity
could detect and correct if it wanted to meet its full safety
responsibility to the public. A pattern may be established by single
violations
[[Page 18895]]
of more than one regulation, as well as by multiple violations of a
single regulation. No set number of acts are required. All that is
needed is a basis to infer that the acts are not isolated or sporadic.
More than one pattern may be alleged in a single claim. For example, in
one notice of violations, patterns of hours-of-service violations, use
of unsafe equipment, and employment of unqualified drivers may be
alleged and supported with separately counted violations in each
category. The area of noncompliance may be further broken down if
patterns are discernible to that extent. In the same notice, for
instance, it may be alleged that each driver used by a carrier
constitutes a separate pattern and further that each such driver may
account for separate patterns of violations of the 10-hour driving rule
(49 CFR 395.3(a)(1)), the 15-hour on-duty rule (Sec. 395.3(a)(2)), and
the 70-hours in 8 days on-duty rule (Sec. 395.3(b)(2)), each of which
presents a separate pattern. When serious patterns of violation are
detected, civil penalties not to exceed $1,000 for each violation
within a pattern up to a maximum of $10,000 for each pattern may be
assessed.
(3) Substantial Health and Safety Violations. This category applies
to violations which could reasonably lead to, or have resulted in,
serious personal injury or death. These are violations that are serious
in their nature and have been allowed to occur or continue by the motor
carrier who knew or should have known of their existence. Illustrative
of such violations are vehicles that are dispatched or continued in a
condition which would result in an out-of-service order; drivers who
are dispatched or continued in use when they are unqualified,
disqualified, or have tested positive for drugs; and drivers who are
dispatched or continue in an unsafe or fatigued condition. Penalties up
to $10,000 may be assessed for each violation.
(4) Limitation on employee non-recordkeeping violations. Except for
recordkeeping violations, no civil penalty may be assessed against an
employee of a motor carrier unless it is determined that the employee's
actions amounted to gross negligence or reckless disregard for safety.
When that can be shown, the maximum civil penalty is $1,000.
(i) Owner operators. For purposes of this section, an owner-
operator while in the course of personally operating a commercial motor
vehicle is considered an employee. When that same owner-operator is not
acting in a driving capacity, he or she shall be treated as a motor
carrier or employer.
(ii) Gross negligence is an act or omission of an aggravated nature
regarding a legal duty, as opposed to a mere failure to exercise
ordinary care. It amounts to indifference to or utter disregard of a
legal duty so far as other persons may be affected. Reckless disregard
for safety is conduct evincing indifference to consequences under
circumstances involving danger to life or safety of others even though
no harm was intended.
(b) Violations pertaining to commercial drivers licenses (CDL).
Violations with respect to the operations of commercial motor vehicles
(CMV) for which a CDL is required under part 383 of this chapter are
subject to civil penalties up to a maximum of $2,500 per violation.
These violations include the operation of a CMV by a driver who has not
obtained a CDL or has more than one driver's license; failure to make
required notifications of traffic violations, license suspensions or
previous employment; and operating a CMV after the driver or the CMV
was placed out-of-service by a duly authorized enforcement official.
(c) Violations pertaining to minimum levels of Financial
Responsibility.
(1) Failure by a motor carrier to maintain the prescribed levels of
financial responsibility pursuant to Part 387 of this chapter
constitutes a violation for which a civil penalty of up to $10,000 may
be assessed for each violation. Each time a motor carrier dispatches a
commercial motor vehicle without the required level of Financial
Responsibility may be counted as a separate violation with no overall
limitation.
(2) Failure to produce the required proof of Financial
Responsibility (MCS-90 or MCS-82) is presumptive evidence of failure to
maintain the required levels of Financial Responsibility. The
presumption may be rebutted by presentation of the required proof of
Financial Responsibility covering the applicable period of time within
10 days of demand.
(3) Failure to maintain the required proof of Financial
Responsibility upon demand is a separate offense for which a civil
penalty of up to $500 may be assessed. A separate civil penalty of $500
may be assessed for each day such record is not produced after demand
has been made.
(d) Violations of the Hazardous Materials Regulations. The
violations in this subsection apply to motor carriers, drivers, and
shippers when the transportation is by highway in commercial motor
vehicles.
(1) All violations of the Hazardous Materials Transportation Act
(HMTA), as amended, or orders or regulations issued under the authority
of that Act applicable to the transporting of hazardous materials by
highway or the causing of them to be transported by highway are subject
to a civil penalty of not more than $25,000 and not less than $250 for
each violation. When the violation is a continuing one, each day of the
violation constitutes a separate offense.
(2) All violations of the HMTA, as amended, or orders, regulations,
or exemptions issued under the authority of that Act applicable to the
manufacture, fabrication, marking, maintenance, reconditioning, repair
or testing of a packaging or container which is represented, marked,
certified or sold as being qualified for use in the transportation of
hazardous materials by highway are subject to a civil penalty of not
more than $25,000 and not less than $250 for each violation.
(3) Whenever regulations issued under the authority of the HMTA, as
amended, require compliance with another set of regulations, e.g., the
Federal Motor Carrier Safety Regulations, while transporting hazardous
materials, any such violation of the latter regulations will be
considered a violation of the HMR and subject to a civil penalty of not
more than $25,000 and not less than $250.
(4) Transporting hazardous materials requiring the display of
placards or transporting more than 15 passengers by a motor carrier
during any period in which such motor carrier has a final safety rating
of unsatisfactory is considered a violation of the MHTA and subject to
a civil penalty of not more than $25,000 and not less then $250, and
each transportation movement by such carrier is considered a separate
violation.
(e) Violations of Notices and Orders. Additional civil penalties
pursuant to 49 U.S.C. 521(b) are chargeable for violations of notices
and orders which are issued in proceedings under part 306, as follows:
(1) Notice to Abate.
(i) Failure to cease violations of the safety regulations in the
time prescribed in the notice may subject the motor carrier to
reinstatement of any deferred assessment or payment of a penalty or
portion thereof. (The time within which to comply with a notice to
abate shall not begin with respect to contested violations until such
time as the violations are established.)
(ii) Failure to comply with specific actions prescribed in an order
(other than to cease violations of the regulations), which were
determined to be essential to abatement of future
[[Page 18896]]
violations is subject to a civil penalty of $1,000 per violation per
day up to a maximum of $10,000 per violation.
(2) Notice to Post. Failure to post the notice of violation as
directed is subject to a civil penalty of $500 for each such failure.
(3) Final Order. Failure to pay the penalty assessed in a final
order within the time prescribed in the order will result in an
automatic waiver of any reduction in the original claim found to be
valid and immediate restoration to the full amount assessed in the
notice of violation.
(4) Out-of-Service Order.
(i) Operation of a commercial motor vehicle by a driver during the
period the driver was placed out of service subjects the driver to
civil penalty of $1,000 to $2,500 per violation. (For purposes of this
violation, the term ``driver'' includes an independent contractor who,
while in the course of operating a commercial motor vehicle, is
employed or used by another person.)
(ii) Requiring or Permitting a driver to operate a commercial motor
vehicle during the period the driver was placed out of service subjects
the motor carrier to a civil penalty of $2,500 to $10,000 per
violation.
(iii) Operation of a commercial motor vehicle by a driver after the
vehicle was placed out of service and before the required repairs are
made subjects the driver to a civil penalty of $1,000 to $2,500 each
time the vehicle is so operated. (This violation applies to drivers as
defined in paragraph (e)(4)(i) of this section.)
(iv) Requiring or Permitting the operation of a commercial motor
vehicle after the vehicle was placed out of service and before the
required repairs were made subjects the motor carrier to a civil
penalty of $2,500 to $10,000 each time the vehicle is so operated after
notice of the defect is received. (This violation applies to motor
carriers, including independent contractors who are not ``drivers'' as
defined in paragraph (e)(4)(i) of this section).
(v) Failure to return written certification of correction as
required by the out-of-service order is subject to a civil penalty of
up to $500 per violation.
(vi) Knowingly falsifying written certification of correction
required by the out-of-service order is considered the same as
operating or requiring or permitting a driver to operate an out-of-
service vehicle and is subject to the same civil penalties provided in
paragraph (e)(4)(iii) and (iv) of this section. Falsification of
certification may also result in criminal prosecution under 18 U.S.C.
1001.
(vii) Operating or causing to operate in violation of an order to
cease all or part of the motor carrier's commercial motor vehicle
operations, i.e., failure to cease operations as ordered, is subject to
a civil penalty of up to $10,000 per day after the effective date and
time of the order to cease.
Sec. 364.202 Civil penalty assessment factors.
(a) The nature, circumstances, extent, and gravity of the
violations listed in Sec. 364.201 may serve as mitigating or
aggravating factors affecting the amount of the penalty assessed. These
factors relate to the violations per se, i.e., their magnitude,
blatancy, frequency and potential for immediate consequences. They
could be determinative in charging substantial health and safety
violations or patterns of safety violations, as well as assessing a
high, medium, or low penalty. In evaluating a motor carrier's safety
fitness, the terms acute and critical are used in reference to
particular regulations of which violations are noted. Violations of
these regulations, therefore, are by their nature serious, and this
will be considered in assessing penalties. Similarly, when the
circumstances in which violations occur are so obvious that any
responsible motor carrier could easily correct them, the continuation
of such violations is an aggravating factor to be considered in
assessing the level of civil penalty. When violations are so numerous,
frequent or longstanding as to indicate habitual noncompliance, the
extent of the violations is a consideration. Finally, the gravity of
the violation relates to the likelihood of immediate and harmful
consequences. When violations have resulted in death or serious
injuries, the level of civil penalty is likely to be higher. Similarly,
the occurrence of death or serious injury in other instances resulting
from the same type of violation increases the gravity of the offense.
(b) Violator factors. The following factors relate to the
disposition or conduct of the violator for consideration in the
assessment of civil penalties.
(1) Degree of culpability. This factor requires an evaluation of
blameworthiness on the part of the violator. It will range from the low
end, where a motor carrier may have had various knowledge of violations
but little actual involvement, to the high end, where the motor carrier
had actual knowledge and disregarded or even promoted noncompliance.
(2) History of prior offenses. Persistent noncompliance reflects a
disregard for safety which, in turn, increases the prospect for
imminently hazardous conditions leading to accidents. Timely correction
of violation patterns should prevent imminent hazards from developing
and reduce the likelihood of accidents. Consequently, this factor is a
major indicator of a motor carrier's knowledge of its responsibility
and disposition toward compliance. Evaluation of this factor will range
from a low end, where there is no history of previous violation, to a
history of previous noncompliance with the regulations generally, to
prior violations of similar regulations, to recent violations of the
same regulations, to the high end of repeated and persistent violations
of the same regulations.
(3) Ability to pay. The violator's size, gross revenues, resources,
and the standards in 4 CFR part 103 (Standards for Compromise of
Claims: Inability to Pay) should be taken into consideration in making
a determination whether to charge the total potential assessment. This
consideration may affect the decision as to the number of violations to
cite as well as the level of the penalty to be assessed for each
violation. The violator may submit evidence of its ability to pay at
any time, and it will be considered in mitigation of the amount
claimed. However, this evidence may not be given much weight when the
other factors in this paragraph (b) indicate a high assessment is
warranted.
(4) Effect on ability to continue to do business. Insofar as this
factor is distinguishable from paragraph (b)(3) of this section, it
relates to the timeliness of payment and abatement of violations.
Evidence that immediate payment of even a mitigated civil penalty will
effectively terminate a motor carrier's or shipper's business will be
considered in determining whether to defer payment or to allow
installment payments of the civil penalty assessed.
(5) Other matters as justice and public safety may require. Matters
other than those specifically included in the factors listed in this
section may also be either aggravating or mitigating in the interest of
justice or public safety. These may include such factors as cooperation
or lack thereof; general attitude toward compliance; institution or
revision of a safety program; hiring or assignment of personnel with
specifically defined safety responsibilities; comprehensiveness of
corrective actions; and effectiveness and speed of compliance.
(c) The preponderance of aggravating factors may also indicate the
need for more intensive enforcement in the form of other orders,
revocations of operating authority, out-of-service, injunctions, or
criminal prosecutions.
[[Page 18897]]
Subpart C--Criminal Penalties and Other Sanctions
Sec. 364.301 Criminal penalties.
(a) Except as provided in paragraph (b) of this section, any person
who knowingly and willfully violates any provision of the FMCS shall,
upon conviction, be subject for each offense to a fine not to exceed
$25,000 or imprisonment for a term not to exceed one year, or both,
except that, if such violator is an employee, the violator shall only
be subject to penalty if, while operating a commercial motor vehicle,
the violator's activities have led to or could have led to death or
serious injury, in which case the violator shall be liable upon
conviction, for a fine not to exceed $2,500.
(b) Any person who knowingly and willfully violates sections 12002,
12003, 12004, 12005(b), or 12008(d)(2) of the Commercial Motor Vehicle
Safety Act of 1986 (49 U.S.C. 31302, 31303, 31304, 31305(b), or
31310(g)(2)), or regulations issued under such sections, shall, upon
conviction, be subject for each offense to a fine not to exceed $5,000
or imprisonment for a term not to exceed 90 days, or both.
(c) Any person who knowingly violates 49 U.S.C. 5104(b), or any
person who knowingly and willfully violates any provision of the HMTA,
as amended, or any regulation issued thereunder, shall be fined under
title 18 of the United States Code, imprisoned for 5 years, or both.
(d) Additional criminal penalties appear in 49 U.S.C. 522-526.
(e) If the agency becomes aware of any willful act for which a
criminal penalty may be imposed as noted in this section, the facts and
circumstances of such violation may be reported to the Department of
Justice for criminal prosecution of the offender.
Sec. 364.302 Injunctions.
(a) The Associate Administrator may file a civil action to enforce
or redress a violation of a commercial motor vehicle safety regulation
or order of the FHWA under 49 U.S.C. chapters 5, 51, 311 (except
sections 31138 and 31139), and 315, in an appropriate district court of
the United States. The court may grant such relief as is necessary or
appropriate, including injunctive and equitable relief and punitive
damages.
(b) Imminent Hazard--Hazardous Materials Regulations. The Associate
Administrator may file a civil action to suspend or restrict the
transportation of hazardous material responsible for an imminent hazard
or to eliminate or ameliorate such a hazard, in an appropriate district
court of the United States. The court may grant such relief as is
necessary or appropriate, including injunctive and equitable relief and
punitive damages. ``Imminent hazard'' means that there is substantial
likelihood that death, serious illness, or severe personal injury will
result from the transportation by motor vehicle of a particular
hazardous material before an administrative proceeding to abate the
risk of harm can be completed.
(c) Imminent Hazard--Federal Motor Carrier Safety Regulations.
Whenever it is determined that a violation of the FMCS poses an
imminent hazard, the Associate Administrator or the authorized delegate
of that official shall order a commercial motor vehicle or the operator
of a commercial motor vehicle out of service, or order an employer to
cease all or part of its commercial motor vehicle operations until such
time as the violations creating the imminently hazardous condition are
satisfactorily abated. ``Imminent hazard'' means any condition of
commercial motor vehicle, driver or commercial motor vehicle operations
which is likely to result in serious personal injury or death if not
discontinued immediately.
(d) The employer or driver shall comply immediately upon the
issuance of an order under paragraph (c) of this section. Opportunity
for review shall be provided in accordance with Sec. 363.110 of this
subchapter. An order to an employer to cease all or part of its
operations shall not prevent vehicles in transit at the time the order
is served from proceeding to their immediate destinations, unless any
such vehicle or its driver is specifically ordered out of service
forthwith. Vehicles and drivers proceeding to their immediate
destinations shall be subject to full compliance with the order upon
arrival.
(e) For purposes of paragraph (d), the term immediate destination
means the next scheduled stop of the vehicle already in motion where
the cargo on board can be safely secured.
Sec. 364.303 Disqualifications.
In addition to any civil or criminal penalties provided for in this
part, operators of commercial motor vehicles who are convicted of
certain offenses may also be disqualified for periods from 60 days to
lifetime, as follows:
(a) Serious traffic violations.
(1) Two serious traffic violations in a 3-year period--sixty days.
(2) Three serious traffic violations in a 3-year period--one
hundred twenty days.
(b) Violations of out-of-service orders.
(1) First violation of operating a commercial motor vehicle during
the period that the operator, operation, or vehicle are placed out of
service--ninety days.
(2) Second violation in a ten-year period of operating a commercial
motor vehicle during the period that the operator, operation, or
vehicle are placed out of service--one to five years.
(3) Third violation or more in a ten-year period of operating a
commercial motor vehicle during the period that the operator,
operation, or vehicle are placed out of service--three to five years.
(4) First violation of operating a commercial motor vehicle
transporting hazardous materials or passengers during the period that
the operator, operation, or vehicle are placed out of service--180
days.
(5) Second violation or more of operating a commercial motor
vehicle transporting hazardous materials or passengers during the
period that the operator, operation, or vehicle are placed out of
service--three to five years.
(c) First violation of driving a commercial motor vehicle under the
influence of alcohol or a controlled substance--at least one year.
(d) First violation of leaving the scene of an accident involving a
commercial motor vehicle operated by the violator--at least one year.
(e) Using a commercial motor vehicle in the commission of a felony
(except a felony described in paragraph (i) of this section--at least
one year.
(f) Second or further violations described in paragraphs (c) and
(d) of this section--lifetime.
(g) Using a commercial motor vehicle in the commission of more than
one felony arising out of different criminal episodes--lifetime.
(h) Any combination of violations described in paragraphs (c)
through (f) of this section--lifetime.
(i) Using a commercial motor vehicle in the commission of a felony
involving manufacturing, distributing, or dispensing a controlled
substance, or possession in a commercial motor vehicle with intent to
manufacture, distribute, or dispense a controlled substance--lifetime.
Subpart D--Monetary Penalty Collection
Sec. 364.401 Payment.
All monetary penalties are due and payable as provided in the final
agency order or settlement agreement disposing of the notice of
violation or claim. Interest will accrue from the date payment was due
and payable after issuance of a final order, and will be added to all
outstanding balances not timely paid.
[[Page 18898]]
Sec. 364.402 Collections.
Unpaid monetary penalties or balances will be pursued aggressively
under the Federal Standards for the Administrative Collection of Claims
at 4 CFR part 102, as adopted by the Department of Transportation and
delegated to the Federal Highway Administration in 49 CFR part 89.
Penalties may be recovered in an action on behalf of the United States
in the appropriate U.S. District Court.
PARTS 385 AND 386 AND Sec. 391.47--[REMOVED AND RESERVED]
2. Chapter III of title 49, CFR, is amended by removing and
reserving parts 385 and 386 and Sec. 391.47.
[FR Doc. 96-10125 Filed 4-26-96; 8:45 am]
BILLING CODE 4910-22-M
Complete official Federal Register PDF
FR Doc. 96-10096 Requirements for Management of Hazardous Contaminated Media (HWIR-Media)
[Federal Register Volume 61, Number 83 (Monday, April 29, 1996)]
[Proposed Rules]
[Pages 18780-18864]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-10096]
[[Page 18779]]
_______________________________________________________________________
Part II
Environmental Protection Agency
_______________________________________________________________________
40 CFR Part 260, et al.
Requirements for Management of Hazardous Contaminated Media; Proposed
Rule
Federal Register / Vol. 61, No. 83 / Monday, April 29, 1996 /
Proposed Rules
[[Page 18780]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 260, 261, 262, 264, 268, 269 and 271
[FRL-5460-4]
RIN 2050-AE22
Requirements for Management of Hazardous Contaminated Media
(HWIR-Media)
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: As part of the President's regulatory reform initiative, the
United States Environmental Protection Agency (EPA) is proposing new
regulations for contaminated media, including contaminated soils,
ground water, and sediments, that are managed during government-
overseen remedial actions. The proposed rule would address contaminated
media that are currently subject to regulation as ``hazardous waste''
under the Resource Conservation and Recovery Act (RCRA). The rule's
purpose is to develop more flexible management standards for media and
wastes generated in the course of site cleanups.
To accomplish the objective, the proposal would establish modified
Land Disposal Restrictions (LDR) treatment requirements, and modified
permitting procedures for higher-risk, contaminated media that remain
subject to hazardous waste regulations; and give EPA and authorized
States the authority to remove certain lower-risk, contaminated media
from regulation as ``hazardous wastes'' under most of Subtitle C of
RCRA. Under this proposal, many contaminated media management units
would be relieved from the obligation to comply with Minimum
Technological Requirements (MTRs). The State-authorization procedures
for RCRA program revisions would be simplified for this proposed rule;
the Hazardous Waste Identification Rule (HWIR-waste); and the Revised
Technical Standards for Hazardous Waste Combustion Facilities. Today's
proposal also proposes to withdraw the regulations for corrective
action management units (CAMUs). In addition, dredged material
permitted under CWA or MPRSA would be exempted from Subtitle C.
DATES: Written comments on this proposal should be submitted on or
before July 29, 1996.
The Agency will hold a public hearing on this proposal on June 4,
1996.
ADDRESSES: Commenters must send an original and two copies of their
comments referencing docket number F-96-MHWP-FFFFF to: (1) If using
regular US Postal service mail: RCRA Docket Information Center, Office
of Solid Waste (5305W), U.S. Environmental Protection Agency
Headquarters (EPA, HQ), 401 M Street, SW, Washington, D.C. 20460 or (2)
if using special delivery, such as overnight express service: RCRA
Docket Information Center (RIC), Crystal Gateway One, 1235 Jefferson
Davis Highway, First Floor, Arlington, VA 22202. Comments may also be
submitted electronically through the Internet to: RCRA-
D[email protected]. These comments should be identified by the
docket number F-96-MHWP-FFFFF, and submitted as an ASCII file to avoid
the use of special characters and encryptions.
Please do not submit any Confidential Business Information (CBI)
electronically. An original and two copies of CBI must be submitted
under separate cover to: RCRA CBI Document Control Officer, Office of
Solid Waste (5305W), U.S. EPA, 401 M Street, SW, Washington, D.C.
20460.
Public comments and supporting materials are available for viewing
in the RCRA Information Center (RIC) located at Crystal Gateway One,
1235 Jefferson Davis Highway, First Floor, Arlington, VA. The RIC is
open from 9:00 a.m. to 4:00 p.m., Monday through Friday, excluding
Federal holidays. To review docket materials, please make an
appointment by calling (703) 603-9230. The public may copy a maximum of
100 pages from any regulatory docket at no charge. Additional copies
will cost $.15/page.
The June 4, 1996 public hearing will be held at the Key Bridge
Marriott, located at 1401 Lee Highway, Arlington, VA 22209. The main
switchboard number for the hotel is (703) 524-6400. Individuals
interested in more complete directions or room reservations should
contact the hotel directly. Registration for the hearing will begin at
8:30 a.m.. The hearing will begin at 9:00 a.m. and end at 5:00 p.m.
unless concluded earlier. Oral and written statements may be submitted
at the public hearing. Time for the public hearing is limited; oral
presentations will be made in the order that requests are received and
will be limited to 15 minutes, unless additional time is available.
Requests to speak at the hearing should be submitted in writing to:
Carolyn Hoskinson (5303W) U. S. Environmental Protection Agency, 401 M
Street, SW, Washington, D.C. 20460. Please clearly mark your request as
a request to speak at the public hearing and include both the scheduled
date of the hearing (June 4, 1996) and the docket number (F-96-MHWP-
FFFFF). Requests to speak may also be made on the day of the hearing by
registering at the door; requests to speak by individuals who choose to
register at the door on the day of the hearing will be granted in the
order received, as time permits. Individuals are requested to provide a
copy of their testimony for the record.
FOR FURTHER INFORMATION CONTACT: For general information, contact the
RCRA Hotline at 1-800-424-9346 or TDD 1-800-553-7672 (hearing
impaired). In the Washington metropolitan area, call 703-412-9810 or
TDD 703-412-3323.
For more detailed information on specific aspects of this
rulemaking, contact Carolyn L. Hoskinson, Office of Solid Waste
(5303W), U.S. Environmental Protection Agency, 401 M Street, SW,
Washington, D.C. 20460, (703) 308-8626. For further information on
EPA's development of the guidance document ``Best Management Practices
for Soils Treatment Technologies,'' contact Subijoy Dutta (703) 308-
8608, (internet address: [email protected]). For further
information on EPA's development of a guidance document for sampling
and analysis, which is associated with today's proposal, contact James
R. Brown (703) 308-8656, (internet address:
[email protected]).
SUPPLEMENTARY INFORMATION: The index is available on the Internet.
Please follow these instructions to access the information
electronically:
Gopher: gopher.epa.gov
WWW: http://www.epa.gov
Dial-up: (919) 558-0335
This report can be accessed from the main EPA Gopher menu in the
directory: EPA Offices and Regions/Office of Solid Waste and Emergency
Response (OSWER)/Office of Solid Waste (RCRA)/Hazardous Waste/
Corrective Action/(HWIRMDIA).
FTP: ftp.epa.gov
Login: anonymous
Password: Your Internet Address
Files are located in /pub/gopher/OSWRCRA
The official record for this action will be kept in paper form.
Accordingly, EPA will transfer all comments received electronically
into paper form and place them in the official record, with all of the
comments received in writing. The official record is the paper record
maintained at the address in ADDRESSES at the beginning of this
document.
[[Page 18781]]
EPA's responses to comments, whether written or electronic, will be
printed in the Federal Register, or in a ``response to comments
document'' placed in the official record for this rulemaking. EPA will
not immediately reply to commenters electronically other than to
clarify electronic comments that may be garbled during transmission or
conversion to paper form.
Outline
The information presented in this preamble is organized as follows:
I. Authority
II. Background
A. Purpose and Context for Today's Proposed Rule
B. Relationship to Previous Regulatory Initiatives
1. Proposed Subpart S Corrective Action Requirements
2. Final Rules for Corrective Action Management Units (CAMUs)
3. Proposed Land Disposal Restrictions for Hazardous Soils
4. Deferral of the Toxicity Characteristic for Petroleum
Contaminated Media and Debris from Cleanup of Releases from Underground
Storage Tanks (USTs)
5. Suspension of the Toxicity Characteristic for Non-UST Petroleum
Contaminated Media (proposed rule)
6. Proposed Hazardous Waste Identification Rule (May 20, 1992)
7. Relationship to CERCLA
8. Relationship to HWIR-waste Rule (Dec. 21, 1995)
9. Relationship to RCRA Legislative Reforms
C. Origin of Today's Proposed Rule
III. EPA's Policy Objectives for the HWIR-media Rule
IV. Introduction and Overview of Today's Proposal and Alternatives to
Today's Proposal
A. Today's Proposed Approach
B. Alternative Approaches Including Unitary Approach
C. Relationship to HWIR-waste Rule
V. Section by Section Analysis
A. General Provisions
1. General Scope of Today's Proposal--Sec. 269.1
2. Purpose/Applicability--Sec. 269.2
3. Definitions--Sec. 269.3
4. Identification of Media Not Subject to Regulation as Hazardous
Waste--Sec. 269.4
B. Other Requirements Applicable to Management of Hazardous
Contaminated Media
1. Applicability of Other Requirements--Sec. 269.10
2. Intentional Contamination of Media Prohibited--Sec. 269.11
3. Interstate Movement of Contaminated Media--Sec. 269.12
C. Treatment Requirements
1. Overview of the Land Disposal Restrictions
2. Treatment Requirements--Sec. 269.30
3. Constituents Subject to Treatment
4. Nonanalyzable Constituents
5. Review of Treatment Results--Sec. 269.33
6. Management of Treatment Residuals--Sec. 269.34
7. Media Treatment Variances--Sec. 269.31
8. Request for Comment on Other Options
9. LDR Treatment Requirements for Non-HWIR-media Soils
10. Issues Associated with Hazardous Debris
D. Remediation Management Plans (RMPs)
1. General Requirements--Sec. 269.40
2. Content of RMPs--Sec. 269.41
3. Treatability Studies--Sec. 269.42
4. Approval of RMPs--Sec. 269.43
5. Modification of RMPs--Sec. 269.44
6. Expiration, Termination, and Revocation of RMPs--Sec. 269.45
E. Streamlined Authorization Procedures for Program Revisions (Part
271)
1. Statutory and Regulatory Authorities
2. Background and Approach to Streamlined Authorization
3. Streamlined Procedures--Sec. 271.21
4. Authorization for Revised Technical Standards for Hazardous
Waste Combustion Facilities
5. Request for Comment on Application of Category 1 Procedures to
Portions of HWIR-waste Proposal
6. HWIR-media Specific Authorization Considerations--Sec. 271.28
7. Effect in Authorized States
8. Request for Comment on EPA's Approach to Authorization
F. Corrective Action Management Units--Sec. 264.552
G. Remediation Piles--Secs. 260.10 and 264.554
H. Dredged Material Exclusion--Sec. 261.4
VI. Alternative Approaches to HWIR-media Regulations
A. The Unitary Approach
1. Overview of the Unitary Approach
2. Legal Authority for the Unitary Approach
3. LDRs Under the Unitary Approach
4. The RAP Process Under the Unitary Approach
5. State Authorization for the Unitary Approach
6. Enforcement Authorities Under the Unitary Approach
7. State Jurisdiction Under the Unitary Approach
B. Hybrid Approach
C. Key Elements of an HWIR-media Rule
1. Scope of the Rule (Regarding Non-media Remediation Wastes)
2. The Bright Line
3. RAPs, RMPs, and RCRA Permits
4. Request for Comment
VII. Effective Date of Final HWIR-media Rule
VIII. Regulatory Requirements
A. Assessment of Potential Costs and Benefits
1. Executive Order 12866
2. Background
3. Need for Regulation
4. Assessment of Potential Costs and Benefits
5. Regulatory Issues
B. Regulatory Flexibility Analysis
C. Paperwork Reduction Act
I. Authority
These regulations are proposed under the authority of sections
2002(a), 3001, 3004, 3005, 3006, and 3007 of the Solid Waste Disposal
Act of 1970, as amended by the Resource Conservation and Recovery Act
of 1976 [RCRA], as amended by the Hazardous and Solid Waste Amendments
of 1984 [HSWA], 42 U.S.C. Secs. 6912(a), 6921, 6924, 6925, 6926, and
6927.
II. Background
A. Purpose and Context for Today's Proposed Rule
Since 1980, the Environmental Protection Agency (EPA) has developed
a comprehensive regulatory framework under Subtitle C of RCRA that
governs the identification, generation, transportation, treatment,
storage, and disposal of hazardous wastes. The RCRA program is
generally considered prevention- rather than response-oriented. The
regulations center around two broad objectives: to prevent releases of
hazardous wastes and constituents through a comprehensive and
conservative set of management requirements (commonly referred to as
``cradle to grave management''); and to minimize the generation and
maximize the legitimate reuse and recycling of hazardous wastes.
The RCRA regulations constitute minimum national standards for
management of hazardous wastes. In general, they apply equally to all
hazardous wastes, regardless of where or how generated, and to all
hazardous waste management facilities, regardless of how much
government oversight any given facility receives. In order to ensure an
adequate level of protection nationally, the RCRA regulations have
[[Page 18782]]
been conservatively designed to ensure proper management of hazardous
wastes over a range of waste types, environmental conditions,
management scenarios, and operational contingencies.
In the course of administering current RCRA regulations, to
contaminated media generated during site cleanups, EPA and the States
have recognized fundamental differences in both incentives and
objectives for prevention- and cleanup-oriented programs. For example,
the stringent treatment requirements established by RCRA land disposal
restrictions (LDRs) have encouraged many generators to reduce the
amount of hazardous waste they generate. On the other hand, when these
requirements are applied in the context of site cleanup, they often
provide a strong incentive to leave hazardous waste and contaminated
media in place, or to select alternate remedies that will minimize the
applicability of RCRA regulations. This can result in remedies that are
less protective of human health and the environment. (See 54 FR 41566,
October 10, 1989; 58 FR 8658, (February 16, 1993); and the information
in the docket to today's proposed rule)).
In the administration of remedial programs such as Superfund and
the RCRA corrective action program, EPA and the States are already
faced with an unacceptable situation that must be remedied while
operating within the technical and practical realities of the site.
Remedial actions generally receive intensive government oversight, and
remedial decisions are made by a State or Federal Agency only after
site-specific conditions have been thoroughly investigated. In
contrast, prevention-oriented hazardous waste regulations are generally
implemented independently by facility owner/operators through
compliance with national regulatory requirements.
In addition to differences in the incentives and objectives of
cleanup- and prevention-oriented programs, EPA and the States recognize
that frequently there are significant differences between ``as-
generated'' process wastes and contaminated media or other remediation
wastes. For example, contaminated media are often physically quite
different from as-generated wastes. Contaminated soils often contain
complex mixtures of multiple contaminants, and are highly variable in
their composition, handling, and treatability characteristics. For this
reason, treatment of contaminated soils can be particularly complex,
involving one or a series of custom-designed treatment systems. As-
generated wastes, however, are usually more consistent in composition,
since they are derived from specific known manufacturing processes.
Historically, EPA and the States have sought to address the
application of RCRA's prevention-oriented standards to remedial actions
through a series of regulatory and policy directives. These policies
aim at preserving RCRA's goal of protectiveness, while providing
government regulators the flexibility and tools necessary to craft
effective site-specific remedies. These include the ``Area of
Contamination'' policy, the ``Contained-in'' policy, the presumption
for LDR treatment variances for contaminated soils, and the regulations
for Corrective Action Management Units and Temporary Units, which are
discussed in section (V)(F) of this preamble. (See e.g., memorandum
from Michael Shapiro, Director, Office of Solid Waste, Stephen D.
Luftig, Director, Office of Emergency and Remedial Response, and Jerry
Clifford, Director, Office of Site Remediation Enforcement, EPA to RCRA
Branch Chiefs and CERCLA Regional Managers, (March 13, 1996); section
(V)(A)(4)(a) of today's preamble; 55 FR 8666, 8758-8760 (March 8,
1990); ``Superfund LDR Guide #6A (2nd Edition) Obtaining a Soil and
Debris Treatability Variance for Remedial Actions'' EPA/Superfund
Publication: 9347.3-06FS (September 1990); ``Superfund LDR Guide #6B
Obtaining a Soil and Debris Treatability Variance for Removal Actions''
EPA/Superfund Publication: 9347.3-06BFS (September 1990); and 58 FR
8658 (February 16, 1993)).
With the exception of the Corrective Action Management Unit
regulations, EPA is not proposing that this rulemaking withdraw any of
these policies or directives.
Instead, EPA seeks to formally recognize the differences between
as-generated waste and contaminated media, by creating a framework
that: (1) Allows State and Federal regulators to impose site-specific
management requirements on lower-risk contaminated media, and (2)
modifies LDR treatment and other requirements that are applicable to
higher-risk contaminated media. Since EPA proposes that higher-risk
contaminated media remain subject to regulation as ``hazardous waste,''
management of these media would remain subject to most of the other
applicable RCRA Subtitle C requirements.
EPA has found that the administrative procedures associated with
issuance of RCRA permits can often significantly delay cleanup actions.
To relieve this problem, EPA is also proposing to streamline the
administrative requirements for hazardous waste permits that are needed
for government-overseen remedial actions. In addition, the proposal
contains provisions for State authorization not only for today's
proposal, but for all RCRA program revisions, specifically including
the Revised Technical Standards for Hazardous Waste Combustion
Facilities and the HWIR waste proposals. These are much more
streamlined than the RCRA program's current procedures.
In today's notice, EPA is also soliciting comment on an approach
that would remove remediation wastes--defined broadly-- from the
definition of solid waste, if they were managed under a State or EPA-
approved plan.
In another matter, today's proposal would exclude dredged material
from RCRA Subtitle C when it is managed according to a permit under CWA
or MPRSA.
Finally, EPA wishes to emphasize that this proposal and other
alternatives discussed address only the management of wastes that are
generated during cleanup actions--it does not consider issues
associated with what wastes should be cleaned up, what the cleanup
levels should be, or how remedies are selected. EPA believes that these
and other ``how clean is clean'' issues are best determined by other
State and Federal regulations and guidelines.
Throughout the development of today's proposal, EPA has worked very
closely with States as ``co-regulators,'' and the Agency believes that
most States share the views and goals expressed in these pages by EPA.
B. Relationship to Previous Regulatory Initiatives
As noted above, the need for an alternative regulatory scheme for
management of contaminated media and remediation waste has been
recognized for some time. In recent years, EPA has developed several
regulatory initiatives to address that need. Today's proposal is
intended to address the issues and problems discussed above in a
single, comprehensive regulatory package. As such, it modifies and/or
replaces many of the Agency's previous regulatory initiatives, as
discussed below.
1. Proposed Subpart S Corrective Action Regulations
In July 1990, EPA proposed comprehensive regulations to address the
substantive and procedural requirements for implementing corrective
actions at RCRA facilities under the authorities of RCRA sections
3004(u) and 3004(v) (42 USC Secs. 6924(u),(v)). Commonly known as the
[[Page 18783]]
``Subpart S proposal,'' the proposal discussed various technical issues
associated with site cleanup including ``action levels'', cleanup
standards, remedy selection, points of compliance and other cleanup
requirements. The Subpart S proposal has been the primary guidance for
the RCRA corrective action program since its publication.
In general, the Subpart S proposal contemplated that contaminated
media would be subject to the same regulatory requirements that apply
to as-generated wastes. Although EPA generally did not use the Subpart
S proposal to address issues associated with contaminated media
management, the Agency did introduce the concept of Corrective Action
Management Units (CAMUs) and temporary units (TUs) as a means of
providing some relief from the burdens that LDRs and other Subtitle C
requirements can impose on cleanup activities. The CAMU concept is
discussed more completely below, and in section (V)(F), of today's
proposal.
Today's proposal would establish a more definitive and
comprehensive set of requirements for the management of contaminated
media--and provide considerably more regulatory relief--than the
Subpart S proposal would have in this area. Currently EPA is
reexamining the Subpart S proposal, and working to finalize and/or
repropose some of those regulations in approximately 18 months. As a
precursor to the Subpart S rulemaking, the Agency is issuing an
Advanced Notice of Proposed Rulemaking (ANPRM). One of the purposes of
the ANPRM is to describe the relationship of the Subpart S initiative
to other Agency initiatives, including today's proposal. The Agency
expects that if finalized, the HWIR-media rules will be an essential
complement to and an integral part of the final RCRA corrective action
regulations.
2. Final Rules for Corrective Action Management Units (CAMUs)
On February 16, 1993 EPA published final regulations for CAMUs and
TUs (58 FR 8658). In essence, the CAMU concept provides considerable
flexibility to EPA and implementing States to specify design,
operating, and closure/post closure requirements for units used for
land-based temporary storage, or for treatment of wastes that are
generated during cleanup at an RCRA facility. The CAMU also specifies
requirements for units that are used as long-term repositories for
cleanup wastes. Decision criteria for the designation of CAMUs are
specified in those rules. Most importantly, the placement of cleanup
wastes into an approved CAMU does not trigger RCRA LDR requirements (40
CFR 264.552 (a)(1)). Thus, appropriate treatment requirements can be
specified by the overseeing Agency 1 on a site- and waste-specific
basis. In addition, the CAMU rule provides that consolidation or
placement of cleanup wastes into a CAMU does not trigger RCRA section
3004(o) minimum technology requirements (MTRs) (40 CFR 264.552 (a)(2)).
---------------------------------------------------------------------------
\1\ Throughout this notice, EPA uses the term ``overseeing
agency'' to mean either EPA or the State authorized for the HWIR-
media program. Most States are authorized for the RCRA base program,
and so would be eligible, as appropriate, to receive authorization
for the HWIR-media program if they chose to do so (for a discussion
of authorization for LDRs under this proposal, see the State
authorization discussion in this preamble). For those States not
authorized for the RCRA base program, EPA would operate the HWIR-
media program in that State, just as it operates the rest of the
RCRA program in that State. Also, EPA might run a cleanup program
(e.g., RCRA Corrective Action or Superfund) in a State that receives
authorization for the HWIR-media program. In that case, EPA would
consult with or seek approval from the State, as appropriate, in
order to approve the RMP. The Agency hopes that the EPA Regions and
States will develop agreements regarding how this approval will take
place.
---------------------------------------------------------------------------
The CAMU rule did not address, however, issues pertaining to the
delay often caused by the need to obtain RCRA permits for cleanup
actions. While the regulations provide relief from MTRs and LDRs, CAMUs
must be approved by the same procedures used for approving other types
of hazardous waste management units; i.e., through RCRA permits or
permit modifications, or through orders.
The CAMU rule received broad support from many affected
stakeholders. Since its adoption, EPA and the States have been using
the CAMU rule to provide appropriate regulatory relief for cleanups
conducted under RCRA, CERCLA, and State cleanup authorities. Some
parties, however, have expressed concern that, according to the rule,
LDRs do not apply to wastes managed in a CAMU. They have questioned
whether the rule provides too much discretion to EPA and the States,
and whether this discretion could result in unacceptably lenient
treatment requirements. On May 14, 1993 these parties filed a petition
for review with the U.S. Court of Appeals for the District of Columbia
Circuit which challenged both the legal and policy bases for the final
CAMU rules. Environmental Defense Fund v. EPA, No. 93-1316 (D.C. Cir.).
As part of the dialogue that prefaced the creation of the HWIR
Federal Advisory Committee (discussed more fully in section C, ``Origin
of Today's Proposed Rule''), the Agency agreed to reexamine the CAMU
regulations in the context of developing this proposal, which is
intended to be a broader, more comprehensive response to the problems
in applying traditional RCRA Subtitle C standards to the management of
remediation wastes. As discussed in detail elsewhere in this preamble
(see section (V)(F)), today's proposal would supersede the CAMU
regulations. A more detailed discussion of the relationship between
today's proposal and the CAMU regulation is presented in section
(V)(F).
3. Proposed Land Disposal Restrictions for Hazardous Soils
On September 14, 1993 (58 FR 48092), EPA proposed the ``Phase II''
land disposal restriction regulations, which included provisions to
establish constituent-specific treatment standards for soils
contaminated with hazardous wastes. In that proposal, the Agency
reiterated that combustion is not always the appropriate BDAT for
soils, and proposed treatment standards tailored specifically to
contaminated soils. The Agency acknowledged the limitations of the data
available when the proposal was written regarding the levels that can
be achieved by treating various matrices of contaminated soils with
available technologies (58 FR 48092, 48125 (September 14, 1993)).
Because of these uncertainties, the Agency outlined several options to
establish treatment standards for contaminated soils. Two options
described in the proposal's preamble would have based soil treatment
standards on some multiplier of the universal treatment standards for
hazardous wastes (which were included in the same proposal). Another
proposed option was based on a simple 90% reduction standard. The Phase
II proposal also contained provisions for codifying the RCRA
``contained-in'' policy for soils. This policy, which is discussed in
detail in section (V)(A)(4)(a) of this preamble, is based on the
concept that environmental media (e.g., soils, ground water) that are
contaminated with listed hazardous wastes or that exhibit a hazardous
characteristic are not of themselves hazardous. However, these media
must be regulated under Subtitle C because they contain hazardous
wastes; conversely, once they are determined to no longer contain
hazardous wastes, the media are generally no longer regulated under
RCRA Subtitle C.
EPA received a number of comments on the proposed soil treatment
standards, many of which strongly urged the Agency to address LDR
treatment standards for contaminated
[[Page 18784]]
soils and codification of the contained-in policy in the context of
HWIR-media regulations, rather than as part of the LDR Phase II rule.
The Agency agreed with those who commented, and in a subsequent Federal
Register notice (58 FR 59976, November 12, 1993) announced its
intention to use the HWIR-media rule as the vehicle for promulgating
these standards. That notice also extended the deadline for comments
and data concerning Phase II provisions for hazardous soils to March
18, 1994. The Phase II final rule (minus the soil treatment standards)
was promulgated on September 19, 1994 (59 FR 47980).
4. Deferral of the Toxicity Characteristic for Petroleum Contaminated
Media and Debris From Cleanup of Releases From Underground Storage
Tanks (USTs)
On February 12, 1993, EPA published a proposal to defer the
applicability of the toxicity characteristic (TC) rule for petroleum
contaminated media and debris that are generated during underground
storage tank cleanups. This was a follow-up proposal to the Agency's
original temporary deferral, which was part of the final rulemaking for
the toxicity characteristic (55 FR 11798, 11862, March 29, 1990). The
Agency will be assessing studies to support a final decision as to
whether UST petroleum contaminated media and debris should be regulated
as hazardous wastes under RCRA Subtitle C. Today's proposal does not
address whether or not this material should be regulated as hazardous
waste; thus, the temporary exclusion described here will remain in
effect until the Agency publishes a separate final rulemaking
determination. (Note that because today's proposal does not address
this issue, it does not reopen the comment period for the February 12,
1993 proposal.)
5. Suspension of the Toxicity Characteristic for Non-UST Petroleum
Contaminated Media (Proposed Rule)
On December 24, 1992, EPA proposed to suspend temporarily the
applicability of the toxicity characteristic (TC) to media contaminated
with releases of petroleum from sources other than underground storage
tanks. This proposal was developed in response to petitions from a
number of States. Their contention was that exempting petroleum
contaminated media from UST cleanups--while cleanup of petroleum
releases from other sources (such as aboveground tanks) remained
subject to Subtitle C--made little sense.
In December 1992, EPA answered the States' petitions, and announced
its intention to suspend the applicability of the toxicity
characteristic to all petroleum contaminated media (57 FR 61542). The
suspension would have taken effect only in States that certified that
they had effective authorities and programs in place that could compel
cleanup and regulate the management of such petroleum contaminated
media in a protective manner. Also, the suspension would only apply to
media generated during State or Federally supervised cleanup actions.
EPA proposed that the suspension be effective for three years, during
which time the Agency would conduct more thorough studies to determine
whether or not--and how--petroleum contaminated media should be
regulated under RCRA.
After the proposed suspension was published, it became clear that
many issues addressed in that proposal applied not only to media
contaminated by petroleum releases, but also to the management of all
types of contaminated media. The issues associated with judging the
adequacy of State cleanup programs and whether such programs can ensure
protective management of cleanup wastes outside of the Subtitle C
system were also recognized as relevant to other regulatory initiatives
involving State authorization under RCRA.
Soon after the publication of the proposed suspension, the Agency,
in concert with the States and other stakeholders, launched a major,
comprehensive effort to address the regulation of contaminated media
under Subtitle C. (See the following discussion of the HWIR-media
rulemaking proposal). EPA and the others recognized that these more
comprehensive HWIR-media rules would have to deal essentially with the
same set of issues addressed in the proposed suspension for petroleum
contaminated media. Thus, finalizing the proposed suspension would have
required reaching decisions on a number of issues common to both rules.
In effect, finalizing the TC suspension rule would have preempted
the HWIR-media process in many respects. To preserve the process, and
to avoid the redundancy of developing two regulations to address the
same basic problems, EPA decided not to proceed with finalizing the TC
Suspension. Instead, the Agency chose to address those issues in the
broader context of the HWIR-media rulemaking process.
The Agency believes that the flexibility introduced into Subtitle C
requirements in today's proposal sufficiently addresses the issues
raised under the proposed ``Suspension of the Toxicity Characteristic
for Non-UST Petroleum Contaminated Media,'' and therefore believes that
if the HWIR-media rule is finalized, it will not be necessary to
finalize the TC suspension. The Agency requests comments on whether
additional flexibility (beyond that provided for in today's proposal)
is necessary for non-UST petroleum contaminated media.
6. Proposed Hazardous Waste Identification Rule (May 20, 1992)
Shortly after the publication of the proposed TC suspension, the
Agency completed a separate (but related) rulemaking proposal, commonly
referred to as the Hazardous Waste Identification Rule (HWIR) (57 FR
21450, May 20, 1992). This proposed rule was issued in response to the
U.S. Court of Appeals, District of Columbia Circuit's vacature of the
mixture and derived from rules (Shell Oil Co. v. EPA, 950 F.2d 741
(D.C. Cir. 1991)), which were issued in 1980 as part of the original
RCRA hazardous waste regulations. In that HWIR proposal, EPA outlined
alternative regulatory approaches for establishing ``exit'' levels for
hazardous wastes (i.e., concentration levels below which listed
hazardous wastes would no longer be subject to Subtitle C
jurisdiction). The primary focus of the HWIR proposal was on the
``exit'' of as-generated hazardous wastes from the Subtitle C system.
However, a separate portion of the proposal outlined conceptual
approaches for revising Subtitle C requirements as they currently apply
to the management of contaminated media (57 FR 21450, 21463, May 20,
1992).
The HWIR proposal received considerable interest. A number of
commenters expressed strong concerns about the proposal as a whole, and
the process that was used to develop it. Some of the concerns focussed
on EPA's failure to consult with the States and the public prior to
issuing the very complex and significant proposal. Because of process
related issues, the strong views expressed by the States, and the
importance of the rulemaking, EPA decided that a more deliberate and
inclusive process was needed for developing the regulations. On October
5, 1992 the Agency formally announced its intention to withdraw the May
20, 1992 proposal, and start a series of discussions with various
stakeholders to develop a new, carefully considered approach to
crafting both exit levels for ``as-generated'' wastes and management
standards for cleanup of contaminated media.
[[Page 18785]]
7. Relationship to CERCLA
The rule being proposed today would be expected to have a
significant impact at sites being addressed under CERCLA. Superfund
sites generate large quantities of remediation waste, and compliance
with RCRA requirements in the management of this waste has been a
recurring concern. The substantive requirements of RCRA Subtitle C,
including land disposal restrictions, apply to hazardous wastes at
these sites, and permits are required for off-site actions.
Under the approach proposed today, the flexibility being provided
for management of remediation waste would be available to CERCLA
responses. It should be noted, however, that CERCLA responses must
comply with all ``applicable'' or ``relevant and appropriate''
requirements, both Federal and State. Therefore, until a RCRA
authorized State is authorized for the HWIR-media rule, the State's
existing RCRA regulatory system would be applicable (or relevant and
appropriate) to Superfund actions in the State.
8. Relationship to HWIR-waste Rule (Dec. 21, 1995)
See preamble section (IV)(C).
9. Relationship to RCRA Legislative Reform
On March 16, 1995 the President committed to identify high cost,
low benefit provisions of the Resource Conservation and Recovery Act
(RCRA) for legislative reform. After an extensive stakeholder outreach
process, the Administration selected two issues. The first issue for
legislative reform, an exemption for certain low risk wastes from
costly regulation under RCRA's land disposal restrictions program, was
signed into law--the Land Disposal Flexibility Act--by the President on
March 26, 1996.
The second topic identified for legislative reform was the
application of RCRA hazardous waste management requirements to cleanup
wastes. The Administration currently is discussing with stakeholders
and Congress the possible development of bipartisan legislation to
expedite the safe and cost-effective management of cleanup wastes that
are currently subject to RCRA hazardous waste management requirements.
In addition to RCRA cleanup sites, the type of reform being discussed
would benefit site cleanups under Superfund, Brownfields and State
voluntary programs. EPA has requested comment on a range of
alternatives to today's proposal that are consistent with the range of
alternatives being discussed for legislative reforms.
C. Origin of Today's Proposed Rule
In order to facilitate discussions with various stakeholders, EPA
established a formal advisory Committee, chartered under the Federal
Advisory Committee Act (FACA). Chaired jointly by the Director of the
Office of Solid Waste and the Commissioner of the Oregon Department of
Environmental Quality (representing the States as ``co-regulators''),
the HWIR FACA Committee included representatives from industry,
environmental organizations, the States, and other affected
organizations.
One of the initial decisions reached by the FACA Committee was to
create separate sub-groups to address the two major components of the
rule--the provisions for contaminated media, and the provisions for as-
generated wastes. Since then, these two efforts have proceeded in
parallel, and have evolved into separate but obviously related
rulemakings. A more complete description of the proceedings of the HWIR
FACA Committee and subsequent deliberations of its two sub-groups can
be reviewed in the Docket for this rule, and the HWIR-waste rule (60 FR
66344-469, Dec. 21, 1995).
In July 1993 the FACA Committee developed and approved a conceptual
framework for the HWIR-media rule. Commonly referred to as the
``Harmonized Approach,'' this framework embodied a number of
compromises reached among the participants in the process. It was
recognized by the Committee that the Harmonized Approach was only a
conceptual outline for crafting a proposed HWIR-media rule, and that a
number of important issues remained to be resolved. However, the
participants agreed that EPA, in partnership with the States, should
begin the formal rulemaking process with the objective of assessing the
remaining issues, determining the viability of such a rule from a
legal, technical, and policy standpoint, and if possible, developing a
proposed rule that embodied the general concepts and directions
outlined in that approach. Today's proposal represents the culmination
of those efforts.
It should be understood that this proposal, which is patterned
after the Harmonized Approach, represents the Agency's best efforts to
fulfill the directive of the HWIR FACA Committee. In developing the
proposal it was necessary to make decisions on a number of important
issues, some of which were not specifically addressed in the Harmonized
Approach, including some issues that were not identified during the
FACA process. The Agency recognizes that although tentative consensus
was reached by the FACA Committee on the harmonized approach, it cannot
be assumed that today's proposal will meet with the approval of all
members of the Committee. In fact, some stakeholders have already
expressed concerns with some of the specifics of today's proposal.
It is the Agency's view that today's proposal would offer many
benefits beyond the present regulatory situation. However, it is quite
possible that other, different regulatory approaches could achieve the
same objectives and levels of protection, and might offer other
advantages in terms of simplicity, cost-effectiveness and/or ease of
implementation. A discussion of possible alternative approaches to
today's proposed rule is presented in sections IV and VI of this
preamble.
In any case, EPA in consultation with the States, will continue to
seriously examine the strengths and weaknesses of the proposal
presented in today's notice, and of the alternatives discussed. The
Agency specifically requests comments on the approaches taken in
today's proposed rule, and the specific strengths and weaknesses of the
proposed options as well as the alternatives discussed in section VI of
this preamble.
Alternative regulatory approaches, and any advantages they may have
in comparison to today's proposal, will be very carefully considered.
The Agency is committed to issuing a final HWIR-media rule that
achieves as much desirable regulatory relief as possible, that is
protective of human health and the environment, and that can be easily
understood and implemented.
III. EPA's Policy Objectives for the HWIR-Media Rule
In developing today's proposal, EPA, in consultation with the
States, identified several key policy objectives. These are discussed
below.
Special Requirements Should Be Developed That Are Appropriate for
Management of Contaminated Media
As discussed above, based on their experiences overseeing and
implementing environmental cleanups, EPA and the States believe that
many of the current prevention-oriented regulations under RCRA are
inappropriate for regulating the management of contaminated media. EPA
and the States have found that these prescriptive standards can create
disincentives for action, and constrain the range of options available
to
[[Page 18786]]
environmental remediators. Thus, in order to better align the
regulatory controls for the unique challenges associated with
contaminated media, existing Subtitle C requirements should be modified
to create a more flexible and common-sense regulatory system for
management of contaminated media.
Requirements for Management of Contaminated Media Should Be Flexible
and Should Reflect Actual Media Cleanup Site Conditions and the
Characteristics of the Contaminated Media
EPA and the States have found that cleanup of hazardous waste sites
often requires regulators to make numerous site- and media-specific
cleanup decisions that can be at odds with RCRA's uniform national
standards. Although some may argue that applying uniform national LDR
treatment standards and other national standards is appropriate for
contaminated media, EPA is persuaded that for the most part, site-
specific flexibility is necessary to ensure the most effective
management of these wastes. EPA further believes that EPA and/or State
oversight of media management activities will ensure that this
additional flexibility will not be abused.
State and Federal Cleanup Programs That Have Adequate Authorities and
That Are Responsibly Administered Can and Should Be Relied Upon To
Exercise Sound Professional Judgment in Implementing HWIR-Media
Regulations
For some time many States have been successfully operating cleanup
programs under State authorities. These States have often completed
cleanups at substantial numbers of sites, and have demonstrated a
capability for overseeing technically complex cleanups while ensuring
adequate protection of human health and the environment. Many of these
programs are patterned after existing Federal programs such as CERCLA
or RCRA corrective action. EPA is confident, therefore, that many
States will be able to effectively implement these new regulations, and
exercise sound judgment in making site-specific management decisions.
HWIR-Media Regulations Should to the Extent Possible Remove
Administrative Obstacles To Expedite Cleanups, and Provide Incentives
for Voluntary Initiation of Cleanup by Responsible Parties
The obstacles posed by RCRA permit requirements for cleanups that
involve on-site treatment, storage or disposal of contaminated media,
and other cleanup wastes have been recognized for some time. EPA
believes that today's proposal would provide considerable relief from
these administrative obstacles. At the same time, adequate
opportunities for public participation must be maintained. EPA believes
that the new administrative procedures presented in today's proposal
for remedial actions that would otherwise require traditional RCRA
permits would meet the goal of streamlining the process, while
maintaining opportunities for public participation.
Because this proposal would provide considerable substantive relief
(through more flexible management standards), and relief from
administrative obstacles, EPA believes that the rule would have the
additional benefit of stimulating voluntary initiation of cleanup
actions by owners and operators of contaminated properties.
Authorizing States for HWIR-Media Regulations Should Be Streamlined and
Simplified To Save Time and Resources
The process for authorizing States for the RCRA Subtitle C program
has been characterized by lengthy procedures, large resource
expenditures, and detailed, line-by-line reviews of State authorization
applications. The goal of these procedures has been to ensure before
the State may receive authorization, that State programs are
equivalent--in the strictest sense of the word--to the Federal program.
EPA views the HWIR-media regulations as an opportunity to rethink the
State authorization process, with the goal of creating a new approach
that relies on less up-front review by EPA, a greater reliance on
certification by States, and more credible and effective sanctions on
States that do not effectively implement the regulations for which they
are authorized. EPA expects that this new approach to State
authorization will be applied to other parts of the RCRA program. If it
is successful, the approach may become the template for the RCRA
program as a whole. (This is discussed in more detail in section
(V)(E).)
The Regulations Should Be Easy To Understand
The RCRA Subtitle C program has been criticized by many for being
overly complex and thus difficult to comply with. This rule is not
intended to fix all of the program's complexities; however, a primary
objective in creating this new regulatory framework for management of
contaminated media was to ensure that the new regulations are as easy
to understand--and implement--as possible.
IV. Introduction and Overview of Today's Proposal and Alternatives to
Today's Proposal
A. Today's Proposed Approach
Today's proposal would establish two new regulatory regimes for
management of contaminated media that would otherwise be subject to
regulation under the current RCRA Subtitle C regulations, if the media
are managed under the oversight of EPA or an authorized State. The rule
would establish a ``Bright Line''--a set of constituent-specific
concentrations--to distinguish between those two regimes based on
whether media are more highly contaminated, or contaminated at lower
levels.
Media which were contaminated with constituent concentrations below
Bright Line values would be eligible to exit from Subtitle C regulation
if the State or EPA determined that the media did not contain waste
that present a hazard (i.e., hazardous waste). (See RCRA Sec. 1004(5)).
Most management requirements for contaminated media that do not contain
hazardous wastes would be specified by the overseeing Agency on a case-
by-case basis.
Today's proposal also addresses application of the Land Disposal
Restrictions (LDRs) to both hazardous and non-hazardous contaminated
media. Hazardous contaminated media are environmental media that
contain hazardous wastes or exhibit a hazardous characteristic and have
not been determined, pursuant to Sec. 269.4, to no longer contain
hazardous wastes. Non-hazardous contaminated media are media
determined, pursuant to Sec. 269.4, not to contain hazardous waste.
LDRs apply to media contaminated by hazardous wastes when the wastes
were land disposed after the effective date of the applicable land
disposal prohibitions. When the wastes that are contaminating the media
were land disposed before the effective date of the applicable land
disposal prohibitions, LDRs attach to the media when the media are
removed from the land, unless the media have been determined not to
contain hazardous wastes before they are removed from the land. Media
subject to the LDRs must be treated to meet LDR treatment standards
prior to placement, or re-placement, in a land disposal unit (except a
no-migration unit). As stated above, media contaminated by hazardous
wastes placed before the effective dates of the applicable land
disposal prohibitions and determined to no-longer contain hazardous
waste before they are removed from the land are not subject to the land
disposal restrictions.
[[Page 18787]]
In some cases, hazardous contaminated media may be determined to
no-longer contain hazardous waste, but may remain subject to the land
disposal restriction treatment standards. As discussed more completely
later in today's preamble, this is based on the logic that, once
attached, the obligation to meet land disposal restriction treatment
standards continues even if a waste is no longer considered hazardous
under RCRA Subtitle C.
Under current regulations, media subject to the land disposal
restriction treatment standards must meet the standards for the
hazardous wastes contained (or, in some cases, formerly contained) in
the media, that is, the same treatment standard the contaminating
hazardous wastes would have to meet if they were newly generated.
Today's proposal would modify the land disposal restriction treatment
standards for media subject to the LDRs so that the treatment standards
reflect the site-specific nature of cleanup activities and media
treatment technologies and strategies more accurately and
appropriately. Today's proposal also establishes new Media Treatment
Variances to ensure that, when the generic LDR treatment standards are
technically impracticable or inappropriate or, for contaminated media
with all constituent concentrations below the Bright Line, when the
statutory LDR standard can be met with less treatment than required by
the generic LDR treatment standards, appropriate treatment will be
required. When contaminated media determined by a State or EPA to no-
longer contain hazardous waste is still subject to the LDRs, today's
proposal establishes a policy that site-specific Media Treatment
Variances would be appropriate.
Contaminated media that contain hazardous wastes would continue to
be regulated as hazardous wastes, but certain Subtitle C requirements
would be modified. Most importantly, the LDR treatment standards for
media would be amended, to account for the highly variable
characteristics of media (such as soils) that are mixed with hazardous
wastes, and the technical uncertainties involved with treating such
heterogeneous materials. One of the primary objectives of the proposed
rule is to replace generic, national standards with more tailored and
flexible requirements for contaminated media. The rule would establish
a new mechanism for imposing these site-specific requirements--
remediation management plans (RMPs). These plans would be the vehicle
for imposing (and enforcing) the new requirements, while ensuring
public participation in the decision making process. An approved RMP
would be required for both wastes that contain hazardous wastes and
those determined not to contain hazardous wastes. Thus, the regulations
would not be self-implementing--the increased flexibility allowed under
the new rules would be available to owner/operators and other
responsible parties only when there is sufficient government oversight
to ensure that such flexibility is not abused.
The use of RMPs should accelerate and streamline cleanup actions in
several ways. First, an approved RMP would be considered a RCRA permit,
eliminating the need to issue traditional, time-intensive RCRA permits
for cleanup actions. Second, the procedures for reviewing and approving
RMPs would be considerably less complex than those required for RCRA
permits. Third, RMP's would not trigger the requirement for facility-
wide (and beyond facility boundary) corrective action requirements
under Sec. 3004(u) and (v) of RCRA. Thus, the delays and other
disincentives that have often been caused by the need to obtain a RCRA
permit for certain cleanup activities should be significantly eased.
It should be noted that certain types of remediation wastes, such
as sludges, debris, and other non-media remediation wastes, would not
be subject to the more flexible treatment standards specified in the
proposal and could not exit from hazardous waste regulation through a
contained-in determination. Such materials would be subject to the
traditional Subtitle C regulations, including LDR requirements.
However, RMPs could be used (at the discretion of the overseeing
Agency) to address all types of remediation wastes.
Today's proposal would also replace the current regulations for
CAMUs, which were promulgated on February 16, 1993. New CAMUs could not
be approved after the publication date of the final HWIR-media rule;
however, existing CAMUs would be ``grandfathered'', and could continue
operating for the duration of the remedial operations. For situations
in which cleanup wastes are simply stored or treated in piles as part
of cleanup activities, a new type of unit--a remediation pile--could be
used without triggering LDRs and MTRs. A significant difference between
the requirements for these remediation piles and the current CAMU
requirements is that these piles would be only temporary and could not
be used as a disposal option for remediation wastes. Remediation piles
could only be used during the duration of the cleanup activities at the
site.
Another important feature of this proposal is it's new approach to
authorizing States for the rule, which would be much more streamlined
than existing authorization procedures. Under the new approach, States
would certify that they have an equivalent program, and EPA would only
do a very brief review prior to authorization, rather than a meticulous
line-by-line review of the States' regulations to determine
equivalence. Once authorized, EPA would monitor the State's
implementation of the program. Ultimately, the Agency could revoke a
State's authorization specifically for this rule, without having to
revoke the State's entire RCRA program (as is currently the case).
B. Alternative Approaches Including Unitary Approach
The Agency also solicits comments regarding alternative approaches
to implementing the objectives of today's proposal. An alternative that
was originally suggested by Industry stakeholders has received
attention and support from many stakeholders. This alternative approach
is commonly referred to as the ``Unitary Approach.2'' The Unitary
Approach would exempt all cleanup wastes (including contaminated media
and non-media remediation wastes) from Subtitle C regulation if they
meet certain conditions (the rule would thus be based on a conditional
exclusion theory). The conditional exclusion requires that these
remediation wastes be managed under an enforceable ``Remedial Action
Plan'' or RAP approved by EPA or an authorized State program. The
Unitary Approach would not include a Bright Line concept. All cleanup
wastes would be subject to site-specific management requirements set by
the overseeing Agency (EPA or State) in the RAP. EPA also believes that
many of the key elements of different options and alternatives
discussed in this proposal could be combined in different ways to
construct an effective HWIR-media program. The following table
illustrates three different combinations of the key elements, and is
intended to facilitate comparison of options. A further discussion of
alternative approaches and hybrids, is provided in section VI of the
preamble to today's proposal.
---------------------------------------------------------------------------
\2\ See letter from James R. Roewer, USWAG Program Manager,
Utilities Solid Waste Activities Group, to Michael Shapiro,
Director, Office of Solid Waste, EPA (September 15, 1995) in the
docket for today's proposal.
[[Page 18788]]
Table 1
----------------------------------------------------------------------------------------------------------------
Hybrid contingent
Key elements Proposed option management option Unitary approach
----------------------------------------------------------------------------------------------------------------
Legal Theory..................... Contained-in............. Conditional Exclusion Conditional Exclusion.
for below the Bright
Line.
Scope............................ Media only............... All remediation wastes.. All remediation wastes.
Bright Line...................... Bright Line--10-3 and Bright Line (a) (for No Bright Line.
Hazard index of 10. media) same as
proposal, or (b)
qualitative Bright
Line1.
Hazardous vs. Non-hazardous...... All media above Bright All remediation wastes All remediation wastes
Line are subject to above Bright Line are managed according to
Subtitle C; below is subject to Subtitle C; RAP or RMP are not
site- specific decision. below (when managed hazardous.
according to RAP or
RMP) are not hazardous.
LDRs............................. LDRs required for media LDRs required for wastes LDRs required for wastes
where LDRs attaches 2. where LDRs attaches 2. where LDRs attaches.3
Permitting....................... RMP serves as RCRA permit RMP serves as RCRA No requirement that RAP/
for media that remain permit for wastes that RMP serve as RCRA
subject to Subtitle C. are above the Bright permit, since wastes
Line; for wastes below are not subject to
the Bright Line, RMP Subtitle C.
does not have to serve
as RCRA permit.
----------------------------------------------------------------------------------------------------------------
\1\ See discussion of qualitative Bright Line below.
\2\ See discussion of applicability of LDRs in section (V)(C).
\3\ See discussion of alternative option for LDR applicability in section (VI)(A)(3).
The Agency believes that the alternative approaches provide more
flexibility than today's approach, and requests comments on the Unitary
Approach as an alternative to today's proposal, as well as other
options that combine different key elements.
C. Relationship to HWIR-Waste Rule
EPA recently proposed two approaches for exemptions from Subtitle C
regulation that focus on listed hazardous wastes that are not
undergoing remediation (60 FR 66344-469, Dec. 21, 1995). Under the
``HWIR-waste'' proposal, listed wastes, wastes mixed with listed wastes
and wastes derived from listed wastes would be eligible for exemption
from Subtitle C where tests show that all hazardous constituents fall
below one of the two sets of ``exit levels'' set out in the proposal.
EPA's goal for the generic option was to identify levels of
hazardous constituents that would pose no significant threat to human
health or the environment regardless of how the waste was managed after
it exited Subtitle C jurisdiction. EPA derived these exit levels by
making reasonable worst case assumptions about releases from a variety
of solid waste management units. The exit values are designed to be
protective even if there is no further regulation or oversight by any
Federal or State agency. Moreover, the proposal does not require any
regulatory agency to review exit claims or make decisions as to whether
an exit is warranted. As noted in that proposal, in addition to listed
hazardous wastes, both contaminated media and wastes that do not
contain media, but are undergoing cleanup, would be eligible to exit
Subtitle C at these levels under this self-implementing process.
However, since the exit levels do not account for site-specific factors
that may exist at cleanup sites, large quantities of remediation wastes
and contaminated media might not qualify for exit.
The second set of exit levels proposed in the HWIR-waste notice is
somewhat less conservative because risk reduction credit is given for
the conditions of the exemption, thus, adhering to the overall risk
protection goal. These levels, however, would be available only to
waste handlers that comply with specified conditions for the management
of the exempted wastes. (The proposed option has a condition
prohibiting management in land application units.) The notice also
describes and requests preliminary comments on several other options
for conditional exemptions with more extensive conditions that would
increase risk protection and would, presumably, yield even less
conservative exit levels. One of these options described could allow
regulatory agencies to calculate exemption levels for individual waste
management facilities using site-specific data. Waste that exited under
this option would be subject to the conditions of the exit, enforced
through ordinary, periodic compliance inspections, as opposed to
special site-specific oversight.
Today's HWIR-media proposal, unlike the HWIR-waste generic option,
does not seek to identify constituent concentrations that would be safe
regardless of the manner in which the media is managed. Rather, it
tries to distinguish between (1) contaminated media that are eligible
to exit because it is likely that they can be managed safely under
cleanup authorities outside of Subtitle C, and (2) media that contain
so much contamination that Subtitle C management is warranted. For
exempted media EPA is proposing to require that a regulatory agency
make any appropriate site-specific decisions about the management of
remediation wastes, and impose those decisions in an enforceable
document. EPA also expects that States will conduct significant
oversight of these requirements during the course of their remediation
activities. This scheme provides for more extensive oversight than most
of the conditional exemption options in the HWIR-waste proposal.
Consequently, the ``Bright Line'' concentrations in this proposal (that
identify media that are eligible for exclusion from Subtitle C) are not
as conservative as either the generic or the proposed conditional
exemption option in the HWIR-waste proposal. EPA anticipates that
larger quantities of contaminated media will be eligible for exemption
under this proposal than under the HWIR-waste proposal. (For a further
discussion of the technical methodologies used for developing the HWIR-
waste exit levels and the HWIR-media Bright Line levels see section
(V)(A)(4)(c) of today's preamble and the background documents for the
two proposals in the docket.)
Finally, this proposal, unlike the HWIR-waste proposal, provides
additional flexibility for materials that remain subject to Subtitle C
jurisdiction. For example, EPA is proposing special
[[Page 18789]]
permitting and land disposal restriction standards for proposed Part
269. EPA believes this relief will increase environmental protection by
reducing regulatory disincentives to cleanup.
V. Section-by-Section Analysis
A. General Provisions
1. General Scope of Today's Proposal--Sec. 269.1
Today's proposal would establish a new Part 269 of 40 CFR, which
would prescribe special standards for State or EPA-overseen cleanups
managing contaminated media.
In Sec. 269.1, today's proposed rule articulates several important
provisions that apply generally to the Part 269 regulations, which are
intended to clarify what these rules are intended to do. The following
is a discussion of each of those provisions.
The first provision (Sec. 269.1(a)) clarifies that the rules
(except the provisions for RMPs, in Subpart D) would apply only to
materials that would otherwise be subject to Subtitle C hazardous waste
regulations. The rules would not expand the coverage of Subtitle C
regulations, or otherwise cause wastes to be considered hazardous that
have not been so regulated before. In other words, contaminated media
would have to be hazardous by characteristic, or be contaminated with a
listed hazardous waste to become subject to this rule's provisions.
Other contaminated media--regardless of constituent levels--would not
have to be managed as hazardous wastes, and therefore, would not fall
under the scope of this rule.
In discussions with various stakeholders, EPA has become aware that
the ``coverage'' issue has been the source of some confusion. The rule
has been perceived by some as applying to all media that might be
managed as part of cleanup activities, rather than just those media
that are currently subject to regulation as hazardous wastes. This
provision is intended to clarify this point.
The second provision (Sec. 269.1(b)) is intended to explain that
today's proposal would only affect certain specific Subtitle C
regulations as they apply to hazardous contaminated media (i.e., media
that contain hazardous waste). The primary effect of Part 269
concerning these media would be to replace the current LDR regulations
(specified in Part 268) with modified treatment requirements, and to
significantly streamline permit requirements. Other regulations that
apply to treatment, storage, and disposal of hazardous wastes would
continue to apply to hazardous contaminated media.3 For example,
if hazardous contaminated media were generated from cleanup
activities--and subsequently stored in tanks or containers for greater
than 90 days--the tanks and containers would have to comply with the
Subparts I or J requirements of Part 264 (or Part 265, if at an interim
status facility). Other Part 264 and 265 requirements would continue to
apply in similar fashion.
---------------------------------------------------------------------------
\3\ Note that this only applies to hazardous contaminated media;
media exempt from Subtitle C because of contained-in decisions (see
Sec. 269.4) would not be subject to any Subtitle C regulations
except perhaps LDRs. (See discussion of LDRs in section (V)(C) of
this preamble).
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The third provision (Sec. 269.1(c)) addresses the interplay between
these HWIR-media rules and other cleanup-related laws and regulations.
Specifically, it clarifies that remedy selection standards, other
``how-clean-is-clean'' standards, and guidelines that are specified in
cleanup statutes and/or regulations, would not be affected by these
rules. EPA wishes to emphasize that the proposed HWIR-media rules would
not affect which media or wastes at a site must be cleaned up, or how
much contaminated media should be excavated. Such decisions are usually
made according to Federal or State cleanup laws and regulations, most
of which specify certain guidelines or criteria for determining how
sites are to be cleaned up. Only after those decisions are made would
these HWIR-media regulations come into play.
The fourth provision (Sec. 269.1(d)) is meant to emphasize a very
important point regarding the Bright Line, which is that the Bright
Line values identified in the proposal are not designed as cleanup
levels. As stated elsewhere in this preamble (see (V)(A)(4)(c)), the
Bright Line concept has very little to do with setting cleanup levels
or making other ``how-clean-is-clean'' decisions. Cleanup levels
usually take into account various site-specific and contaminant-
specific factors, and are meant to ensure that risks from exposure to
residual contamination are at acceptable levels. Bright Line
concentrations would determine only whether the overseeing Agency has
the discretion to conclude that media no longer contain hazardous
waste, and therefore decide what management standards would apply to
that media if generated during a cleanup. The use of Bright Line
concentrations as cleanup levels would generally be inappropriate.
The fifth, and final provision, (Sec. 269.1(e)) specifies that
these rules would not be self-implementing. As explained elsewhere in
this preamble, and in the proposed rule language (Sec. 269.1(e)), the
provisions of Part 269 can only be implemented with oversight by EPA or
an authorized State, by an approved Remediation Management Plan (RMP)
or analogous document.
2. Purpose/Applicability--Sec. 269.2
As described above, this rule would modify the existing Subtitle C
requirements for the management of more highly contaminated media, and
would, in effect, exempt lesser contaminated media (that are determined
not to contain any hazardous waste, and are managed in accordance with
an approved Remediation Management Plan (RMP)) from most RCRA Subtitle
C requirements. For such less-contaminated media, EPA and the States
would impose appropriate management requirements on a site- and waste-
specific basis, pursuant to authorities not reliant on the presence of
RCRA hazardous waste.
The Agency is proposing to promulgate these regulations in a new
Part (Part 269) of Title 40 of the Code of Federal Regulations. Issuing
the rules for contaminated media management in a readily identified,
discrete part of the Subtitle C regulations should help to make them
clearer and easier to understand for both regulators and the regulated
community. Although an alternate approach was considered that would
have promulgated the rules as a series of amendments and modifications
to the existing Subtitle C regulations (Parts 260 to 271), EPA believes
such an alternative would be more difficult to understand, and would
add to the complexity of an already complex body of rules.
Section 269.2 of today's proposal is intended to establish the
general scope and applicability of these rules. As such, this part of
the proposal addresses a number of important issues that were the
subject of considerable debate during the FACA Committee process. The
following is an explanation of how this proposal addresses those
specific issues.
Section 269.2 specifies that Part 269 (except Subpart D) would
apply only to hazardous contaminated media, not to all cleanup wastes.
Therefore, non-media remediation wastes (e.g., excavated drum waste)
would be subject to the same regulatory requirements that apply to as-
generated hazardous wastes (with the exception of the Subpart D
provisions for Remediation Management Plans). Likewise, hazardous
debris under today's proposal would be subject to the existing LDR
treatment standards
[[Page 18790]]
for debris, as well as other Subtitle C requirements.
The question of which types of remediation wastes should be covered
under the HWIR-media rule was one of the major issues left unresolved
by the FACA Committee under the Harmonized App
FR Doc. 96-10096 Requirements for Management of Hazardous Contaminated Media (HWIR-Media)
roach. Although all
parties on the Committee agreed that hazardous contaminated media (as
defined in Sec. 269.3--see ensuing preamble discussion) should be
subject to this modified regulatory system, some groups argued that
other types of remediation wastes, such as sludges, and other
remediation wastes should also be covered by the rule. Those groups
argued that separating media from non-media in this context is an
artificial distinction that is inconsistent with the realities of
managing wastes during cleanup operations. They contended that the
rationale for modifying requirements for contaminated media applies
equally to these non-media wastes (e.g., the presence of an overseeing
agency, and disincentives for cleanup created by Subtitle C
requirements). They maintained that the coverage of the rule should
reflect the differences between cleanup- and prevention-oriented waste
management, rather than create new categories of remediation wastes.
Other parties involved in the FACA Committee argued strongly that
the rule should be narrower in scope, and should include only the types
of remediation wastes that are clearly different in nature from newly-
generated wastes. They said that because non-media remediation wastes
(e.g., drummed wastes and sludges), are physically and chemically
similar to as-generated hazardous wastes they should be subject to the
same treatment standards and other requirements that apply to as-
generated wastes. The fact that such wastes are managed as a result of
cleanup actions (those parties argued) does not mean that they should
be subject to the more flexible rules for remediation waste proposed
today.
EPA decided to limit the scope of today's proposal to contaminated
media for several reasons. First, the contained-in concept used in this
proposal for exempting materials from Subtitle C only applies to media
(and, as discussed below, debris). Thus, a different legal concept
would have to be used to exempt other types of remediation wastes from
Subtitle C. Further discussion of this issue is presented in section
(VI)(A) of this preamble.
Another reason for limiting the applicability of the rule to
contaminated media is that the cost-benefit analysis prepared for this
rule indicates that, on a national basis, contaminated media comprise
approximately 80% of the total volume of material that is typically
managed at Superfund (Federal and State) sites, RCRA corrective action
sites, and voluntary cleanup sites. The rule would thus provide a
considerable amount of regulatory relief, thereby removing the
disincentive for cleanup this rule is designed to address. It can also
be argued that the need for regulatory relief, particularly from LDR
requirements, is more acute for contaminated media than other
remediation wastes. This is because, as discussed in section (II)(A) of
this preamble, they are often more complex to treat effectively, since
there are often large, heterogeneous volumes of media, with numerous
types of contaminants present, requiring multiple types of treatment
technologies. In addition, this rule, if finalized, will constitute a
major change in the way the covered materials are regulated under RCRA
and will require a ``break-in'' period while regulators and the
regulated community adjust to the new system. Therefore, it may be
prudent to limit the rule to cover only contaminated media, at least
until EPA and the States have established a track record in
implementing this new regulatory system.
By limiting the applicability of this proposed rule to contaminated
media, EPA is not discounting the arguments of those who believe that
the rule should be more expansive in scope. It is acknowledged that the
rule as drafted may create complexities for site managers and
regulators in distinguishing and separating media from other
remediation wastes at a site, and then applying two different
regulatory regimes to their management. The Agency also recognizes that
at many cleanup sites, the issue of whether to pick up and manage
remediation wastes or to leave them in place, involves old wastes, not
media. The Agency has also found in the Cost/Benefit assessment for
today's proposed rule that an alternative which would include all
remediation wastes in the scope of this rule would provide
significantly more cost savings than the proposed option. As discussed
in section (VI)(A) of this preamble, the Agency is seriously
considering applying the rule to all remediation wastes and
specifically requests comments and factual data concerning whether it
is appropriate to do so. Specifically, the Agency seeks comment on the
benefits of including all cleanup wastes, and what types of
implementation difficulties, if any, would be created by regulating
hazardous contaminated media and other hazardous remediation wastes
separately and how easy those problems are to overcome.
Debris. A related issue concerning the scope of today's proposal is
whether the substantive portions of the rule should cover hazardous
debris.4 Although the FACA Committee did not examine this question
in detail, individual members of the committee, as well as several
other stakeholders (including several States) have recently contended
that the rule should include debris and should allow it to be addressed
under the same modified regulatory scheme as for media. These parties
argue that although under today's proposal, requirements for debris
could be addressed in an RMP, separate management standards
(particularly the LDR treatment standards) for debris can complicate
cleanups by requiring physical separation of debris from non-debris
remediation wastes, and requiring different treatment technologies,
where debris and media often can be handled together without
compromising environmental protection.
---------------------------------------------------------------------------
\4\ Debris is defined in 40 CFR 268.2(g) as ``solid material
exceeding a 60 mm particle size that is intended for disposal and
that is: a manufactured object; or plant or animal matter; or
natural geologic material. However, the following materials are not
debris: any material for which a specific treatment standard is
provided in Subpart D, Part 268, namely lead acid batteries, cadmium
batteries, and radioactive lead solids; process residuals such as
smelter slag and residues from the treatment of waste, wastewater,
sludges, or air emission residues; and intact containers of
hazardous waste that are not ruptured and that retain at least 75%
of their original volume. A mixture of debris that has not been
treated to the standards provided by Sec. 268.45 and other material
is subject to regulation as debris if the mixture is comprised
primarily of debris, by volume, based on visual inspection.''
Hazardous debris is defined in 40 CFR 268.2(h) as ``debris that
contains a hazardous waste listed in Subpart D of Part 261 of this
chapter, or that exhibits a characteristic of hazardous waste
identified in Subpart C of Part 261 of this chapter.''
---------------------------------------------------------------------------
Because this issue arose late in the preparation of today's
proposed rule, EPA has decided, with a few exceptions,5 not to
include hazardous debris in the scope of today's proposal. However,
should the Agency receive persuasive comments, it will consider
including hazardous debris in the final rule.
---------------------------------------------------------------------------
\5\ The exceptions are today's proposed regulations for
remediation management plans and remediation piles, as discussed in
the applicable sections of today's preamble.
---------------------------------------------------------------------------
EPA requests comment on whether hazardous debris should be included
in the final Part 269 rule and, if debris is included, the management
standards or combinations of management standards (e.g., some
combination of the existing Debris Rule standards and the standards for
contaminated media proposed today)
[[Page 18791]]
that should be imposed. EPA requests that commenters address the
distinctions, if any, which should be made between naturally occurring
debris (e.g., gravel, tree roots) and man-made debris (e.g., crushed
drums, sorbants). For example, should naturally occurring debris be
included in the final Part 269 rule and subject to the same standards
as contaminated media because it is often co-located with media? While
these issues were specifically raised in the context of petroleum
contaminated debris, EPA believes they are also applicable to debris
more generally.
Details associated with the potential application of today's
proposed requirements for contaminated media to hazardous debris are
discussed later in sections (V)(A)(4)(b) and (V)(C)(10) of this
preamble.
Oversight. Section 269.2(b) specifies that the regulations of Part
269 would apply only to cleanup activities that are overseen by EPA or
an authorized State agency, in accordance with an approved plan (i.e.,
a RMP). This limitation is a key feature of the proposal.
As discussed earlier, remedial actions under RCRA, CERCLA, and
other Federal and State cleanup programs are typically conducted with
substantial government oversight. Often this occurs because the
implementing agencies have decided to make many decisions relating to
cleanup on a site-specific basis rather than promulgating generally
applicable regulations. Agencies have preferred site-specific decision-
making in the area of cleanup because remedial management decisions are
extremely complex, and because site-specific factors play very
important roles in the design and implementation of protective
remedies. It is the Agency's belief that the government agency
overseeing a particular remedial action is generally best suited to
make decisions concerning the management of the contaminated media from
that site, because they would be most familiar with the site-specific
conditions that would affect how the media should be properly managed.
Thus, for the majority of media (i.e., those with all constituent
concentrations below the Bright Line), today's proposal would allow EPA
or the State to impose site-specific standards in lieu of most of the
current Subtitle C requirements.
In many States, several cleanup programs are operated by different
programs or agencies of the State government. It is the intention of
the Agency to authorize for this rule, State RCRA programs that have
incorporated the rule and plan to rely on companion authorities that
are not reliant on the presence of hazardous wastes for jurisdiction
(e.g., State solid waste laws, or State Superfund laws, and RCRA
corrective action authority at TSDFs), and that are capable of assuring
sound media management decisions for media determined to no longer
contain hazardous wastes. EPA would then allow those States to
determine which companion authority(s) should be used to define media
management requirements at any specific site. Likewise, management
standards for media determined to no longer contain hazardous wastes
may be imposed, as appropriate, under Federal cleanup programs, such as
Superfund or RCRA corrective action.
Since these proposed Part 269 regulations and appropriate site-
specific management standards for media determined to no longer contain
hazardous wastes would be implemented and enforced on a site-by-site
basis, some mechanism must be available for the overseeing Agency to
document the site-specific requirements, and thus provide a means to
enforce compliance with those requirements. The proposal specifies that
these rules will only apply when EPA or an authorized State approves a
remediation management plan for the site. The requirements that
contained-in decisions and appropriate non-Subtitle C management
standards must be included in RMPs would also serve the very important
purpose of providing the information necessary for the Agency to
monitor whether an authorized State is implementing the HWIR-media rule
in a protective manner (e.g., whether the State is making protective
contained-in determinations). As discussed more fully in section (V)(E)
below, today's proposal would allow EPA to withdraw a State's HWIR-
media authorization if the Agency determines that the State is not
managing the contaminated media addressed by the rule in a protective
manner.
An approved RMP may also constitute a RCRA permit in cases where
such permits are required specifically for cleanup activities. Further
discussion of RMPs is presented elsewhere in this preamble.
Sec. 269.2(c) is designed to make clear that this rule does not
expand the applicability of Subtitle C requirements to any materials
for which Subtitle C would otherwise not apply. Materials and
activities that are not already subject to Subtitle C would not be
required to begin complying with Subtitle C standards. For example, if
a site owner managed hazardous contaminated media under the 90-day
accumulation provision of 40 CFR 262.34, this rule would not require
him to obtain a RCRA Part B permit or a RMP. Similarly, if a site owner
treats hazardous contaminated media in situ (i.e., without triggering
the RCRA Land Disposal Restrictions), this rule would not subject him
to the proposed media-specific LDR standards in Part 269.
3. Definitions--Sec. 269.3
Section 269.3 defines several important new terms that are unique
to Part 269 6. These terms are defined here, rather than in
Sec. 260.10 (where most of RCRA's regulatory terminology is defined),
for the sake of convenience, and to emphasize that these are terms that
would be specific only to this portion of the hazardous waste
regulations. Of course, the definitions in Sec. 260.10 would apply to
Part 269 as well. The following is a discussion of each new term.
---------------------------------------------------------------------------
\6\ The term ``Director'' as used in today's proposed rule means
``Director'' as defined currently in 40 CFR 270.2. The HWIR-waste
proposal (60 FR 66344-469, Dec. 21, 1995) would move that definition
to 260.10, in which case the 260.10 definition would be sufficient
to define ``Director'' for purposes of today's proposal. For that
reason, today's rule does not propose a definition for ``Director.''
---------------------------------------------------------------------------
Bright Line Constituent. Today's proposal specifies the following
definition:
Bright Line constituent means any constituent found in media
that is listed in Appendix A of this Part, and which is: (1) The
basis for listing of a hazardous waste (as specified in Appendix VII
of 40 CFR Part 261) found in that media; or (2) a constituent which
causes the media to exhibit a hazardous characteristic.
This definition would be used to establish which constituent
concentrations in the media must be measured against Bright Line
concentrations, which in turn would determine whether the Director has
the discretion to decide that the media do not contain hazardous waste.
The Agency considered several approaches for defining this term,
including defining it to include any constituent that: (1) May be
present in the media, (2) may be present in the media and originated
from hazardous waste, or (3) may be present in the media, originated
from hazardous waste, and was a constituent that either formed the
basis for the waste's hazardous waste listing or caused the media to
exhibit a hazardous characteristic.
The Agency rejected the first option because it could be over
inclusive; i.e., there could be concentrations of constituents in the
media that exceed Bright Line concentrations, but did not originate
from hazardous waste (e.g.,
[[Page 18792]]
naturally occurring constituents). Since under the contained-in
principle, media are only regulated under Subtitle C because they
contain hazardous waste, this approach could inappropriately extend the
reach of the Subtitle C regulations.
EPA chose the third option over the second reasoning that the use
of the same constituents that have caused the wastes in the media to be
regulated as hazardous form a sound basis for deciding whether those
same media should be eligible to be ``deregulated.'' The sole purpose
of the Bright Line is to determine whether the media should be eligible
for a contained-in determination; the conclusion that all Bright Line
constituents are below the Bright Line does not necessarily determine
that the media no longer contain waste. If the media contain other
constituents of concern, the Director could, where appropriate, use the
constituents as the basis for denying a request that the media be
determined to no longer contain hazardous wastes.
At some point in the site-cleanup process it would be necessary to
determine which constituents in the media are Bright Line constituents.
For media that exhibit a hazardous characteristic, the Bright Line
constituents should be readily identified (i.e., by chemical analysis).
For media contaminated with listed hazardous wastes, Appendix VII to 40
CFR Part 261 lists the constituents that were the basis for listing the
waste as hazardous.
The Agency recognizes that identifying the presence of listed
wastes (and thus the Bright Line constituents) in media is not always
simple. It has been the Agency's longstanding policy that in cases
where the origin of the contaminants is unknown, the lead agency may
assume that contaminants in media did not originate from listed
hazardous wastes. (See e.g., 55 FR 8666, 8758, March 8, 1990, and 53 FR
51394, 51444, (December 21, 1988)). It is generally the responsibility
of the owner/operator or responsible party to make a good faith effort
to determine whether hazardous constituents in media have originated
from listed hazardous wastes. If the origin of constituents in media
cannot be determined, and the media do not exhibit a hazardous
characteristic, then the media would not be subject to Subtitle C
regulations in the first place.
Although Bright Line constituents may help to determine the
regulatory status of media they would not necessarily be the only
constituents subject to LDR treatment standards. A discussion of how
LDR standards would be applied to hazardous waste constituents in
hazardous contaminated media is presented in section (V)(C) of this
preamble.
The tables in Appendix A specify concentrations for 100
constituents for which verified human health effects data were
available to the Agency at the time of the proposal's publication.
These constituents are also the ones most commonly found in
contaminated media at Superfund sites. EPA expects that Bright Line
concentrations for additional constituents will be available before
publication of the final Part 269 rules. However, it is likely that for
some time Appendix A will be an incomplete list. Comment is invited as
to whether this list should be updated, as data become available, to
include as many constituents as possible, or whether for purposes of
this regulation it is acceptable to have a Bright Line list that does
not specify levels for every constituent that might be found at a
cleanup site.
In cases where constituents are present in media but are not among
those listed with concentration values in Appendix A to Part 269--the
Director would have the discretion (but not the obligation) to specify
site-specific or State-wide Bright Line concentrations. The Director's
discretion to decide whether media contained hazardous wastes is
unconstrained with respect to these constituents.
For constituents that do not have established Bright Line
concentration values, EPA believes it would generally be appropriate to
use similar assumptions to those used to establish the current Bright
Line concentrations. The technical background documents which describe
the assumptions, equations, and models used to set the Bright Line
numbers are in the docket for today's rule.
Additional discussion of the Bright Line concept is presented in
section (V)(A)(4)(c) of this preamble, including information on the
specific numbers in Appendix A and how they were calculated. The Agency
requests comments on this definition of Bright Line constituents. In
particular, the Agency seeks comments on the approach of defining
Bright Line constituents as those constituents that caused the waste to
be hazardous in the first place. For example, would it make more sense
to define Bright Line constituents as any constituents for which LDR
treatment would be required? (Constituents that would be required to be
treated for LDR are discussed in section (V)(C)(3) below.) This
approach may be appropriate, since the owner/operator would already be
addressing these constituents for LDR purposes. The Agency requests
comments on approaches for making contained-in decisions for
constituents that do not have levels specified in Appendix A.
Hazardous contaminated media. Today's rule proposes the following
definition of hazardous contaminated media:
Hazardous contaminated media means media that contain hazardous
wastes listed in Part 261 Subpart D of this chapter, or that exhibit
one or more of the characteristics of hazardous waste defined in
Part 261, Subpart C of this chapter, except media which the Director
has determined do not contain hazardous wastes pursuant to
Sec. 269.4 of this Part (non-hazardous contaminated media).
This definition would be used to identify media that remain subject
to regulation as hazardous wastes under RCRA Subtitle C.
Media. Today's rule proposes the following definition of media:
Media means materials found in the natural environment such as
soil, ground water, surface water, and sediments; or a mixture of
such materials with liquids, sludges, or solids which is inseparable
by simple mechanical removal processes and is made up primarily of
media. This definition does not include debris (as defined in
Sec. 268.2).
This definition is intended to include a broad range of naturally
occurring environmental media that may become contaminated with
hazardous wastes. Debris has not been included in this definition, for
reasons cited in the earlier discussion of debris, section (V)(A)(2),
although, as discussed in that section, EPA solicits comments on
whether it should be. However, hazardous debris or other remediation
wastes may be managed in remediation piles (see discussion of proposed
Sec. 264.554), and could be addressed in a remediation management plan
under today's proposal.
Media Remediation Site. Today's rule proposes the following
definition of media remediation site:
Media remediation site means an area contaminated with hazardous
waste that is subject to cleanup under State or Federal authority,
and areas that are in close proximity to the contaminated area at
which remediation wastes are being managed or will be managed
pursuant to State or Federal cleanup authorities (such as RCRA
corrective action or CERCLA). A media remediation site is not a
facility for the purpose of implementing corrective action under
Sec. 264.101, but may be subject to such corrective action
requirements if the site is located within such a facility (as
defined in Sec. 260.10).
EPA also proposes to amend the definition of facility in
Sec. 260.10 to
[[Page 18793]]
exclude media remediation sites (except those located at a TSDF).
The concept of a media remediation site is new in the RCRA context,
although it is similar to the ``on-site'' concept that is defined in
the Superfund program. Traditionally, RCRA has focused on
``facilities'' for purposes of applying hazardous waste regulations.
These are generally properties where industrial operations manage
hazardous wastes that they have generated, or where commercial
hazardous waste treatment, storage, and/or disposal operations are
conducted. For purposes of implementing corrective actions under
Sec. 3004 (u) and (v) and 3008(h), a facility is defined (see
Sec. 260.10) as ``all contiguous property under the control of the
owner or operator'' where hazardous wastes are managed.
Applying this concept of a facility to cleanup actions can be
problematic in some cases, particularly where cleanup activities are
being conducted on property that was never before regulated under RCRA
(e.g., land that became contaminated before RCRA regulations were
promulgated). Under the current regulations, if the cleanup activities
at such a site require a RCRA permit, the site would become a
``facility'' for RCRA purposes, and corrective action requirements
would apply to all contiguous property that is under the control of the
owner or operator. This has created disincentives for cleanups at
properties not heretofore regulated under RCRA. For example, obtaining
a permit can be a time- and resource-intensive undertaking, and the
facility-wide corrective action requirements that attach once the
permit is issued can also deter cleanups. Since a media remediation
site would not be considered a facility for RCRA purposes, a RMP issued
for the cleanup activities at the site would not trigger any of the
RCRA corrective action requirements mandated by RCRA Sec. 3004 (u) and
(v).
EPA believes that using the concept of a media remediation site in
applying Part 269 regulations, instead of calling them RCRA facilities,
is sensible and consistent with the RCRA statute. The HWIR FACA
Committee also supported this approach. As originally conceived, RCRA
facilities were generally properties whose owners and operators were
engaged in ongoing hazardous waste management. Requiring corrective
action for such facilities (both facility-wide and beyond the facility
boundary) was seen as a quid pro quo; i.e., one of the costs of doing
business for those engaged in--and in some way profiting from--the
management of hazardous wastes. In a remedial context, however, there
is no profit or advantage gained by owners and operators from managing
hazardous wastes; it is simply incidental to performing an act that is
environmentally beneficial (i.e., cleaning up a site). Viewing cleanup
sites as traditional hazardous waste facilities (and thus imposing
additional cleanup responsibilities) can have the effect of penalizing
those who wish to clean up their properties.
EPA does not believe that Congress intended for RCRA to create
obstacles like this one to cleaning up contaminated sites. Under
Sec. 3004(u) of RCRA, the corrective action requirement applies to ``a
treatment, storage, or disposal facility seeking a permit.'' This
clearly refers to facilities that need permits because they are in the
business of hazardous waste management. In the Agency's opinion, sites
that only conduct hazardous waste management incidental to cleanup
activities are not the types of facilities to which Congress intended
to apply the Sec. 3004 (u) and (v) facility-wide (and beyond the
facility boundary) corrective action requirements.
In some cases, a media remediation site could be part of an
operating (or closing) RCRA hazardous waste management facility that is
already subject the Sec. 3004 (u) and (v) corrective action
requirements; in those cases, identifying an area of the facility as a
media remediation site would not have any effect on the corrective
action requirements for that site or the rest of the facility. The only
advantage to designating part of a RCRA-regulated facility as a media
remediation site would be that more streamlined permit procedures (for
RMPs--see Sec. 269.43) could be used for that part of the facility.
Under the proposed definition, a media remediation site would be
limited to the area that is contaminated and subject to cleanup, and
adjacent areas that are used for managing remediation wastes as part of
cleanup activities. Areas that are remote from the contaminated site
would not be eligible to be media remediation sites. For example, if
remediation wastes were generated from a site and subsequently
transported off-site for treatment or disposal, the treatment/disposal
sites could not be considered media remediation sites. These off-site
units would be subject to regulation as RCRA facilities for permitting
and corrective action purposes.
Of course, units used to manage non-hazardous remediation wastes
(including non-hazardous contaminated media--e.g., media determined not
to contain hazardous waste), would not need to comply with Subtitle C
regulations, nor would such units need RCRA permits. In other words, if
the Director determined that media did not contain hazardous waste,
units used for subsequent management of the media (on or off site)
would not be subject to permitting or other Subtitle C requirements.
EPA considered the option of allowing certain off-site areas to be
considered media remediation sites, such as sites dedicated to managing
only remediation wastes, and sites where only remediation wastes from a
specific cleanup site were managed. These options could provide
significant advantages. For example, excavating wastes from a site
located in a floodplain, and staging those wastes in a more secure
location away from the floodplain, prior to ultimate disposal could be
a reasonable remedy. As proposed, the off-site staging area could not
be considered a media remediation site--it would have to be permitted
as a traditional hazardous waste storage facility. The Agency
recognizes that allowing the use of RMPs at off-site staging facilities
might be more streamlined than requiring RCRA permits. However, an
option that would allow off-site areas to be considered media
remediation sites (or to be permitted under RMPs) could be more
complicated to administer. The Agency does not want to restrict off-
site management of remediation wastes, but simply to ensure that these
off-site locations are adequately overseen. The Agency requests
comments on allowing off-site areas to be regulated as media
remediation sites under Part 269, and any specific requirements or
limitations that should be imposed on off-site media remediation sites.
Today's proposal would allow the Director to include areas in close
proximity to contaminated land that is being cleaned up as part of a
designated media remediation site. This would allow the site managers a
limited amount of room for conducting cleanup operations outside the
area that is actually contaminated. For example, cleaning up a lagoon
full of sludges might involve constructing and operating a treatment
unit at the site; in many cases, it might be impractical or impossible
to locate the treatment unit within the lagoon. This provision would
require some judgment on the part of regulators responsible for
defining the boundaries of a media remediation site. EPA solicits
comments on this provision, and on the more general question of how
expansive the definition should be, and what types of operations or
areas should be included or excluded.
[[Page 18794]]
Non-hazardous contaminated media. Today's rule proposes the
following definition of non-hazardous contaminated media:
Non-hazardous contaminated media means media that are managed as
part of cleanup activities and that the Director has determined do
not contain hazardous wastes (according to Sec. 269.4), but absent
such a determination would have been hazardous contaminated media.
This definition is intended to encompass any media that would have
been subject to RCRA Subtitle C management requirements but the
Director determined that they do not contain waste that presents a
hazard (i.e., hazardous waste) based on controls in a RMP. (See
discussion in section (V)(A)(4)(a) of this proposal). This definition
is intended to differentiate non-hazardous contaminated media from
media which would never have been subject to Subtitle C in the first
instance (e.g., soil that was never contaminated with hazardous waste.)
Under today's proposal, management of non-hazardous contaminated
media would nevertheless be subject to control and oversight from EPA
or an authorized State. As discussed in section (V)(A)(4)(a), in order
for hazardous contaminated media to be designated non-hazardous
contaminated media, the Director would need to specify any appropriate
management controls in an approved RMP. Since the intent of this rule
is not to expand the reach of RCRA Subtitle C requirements, ``never
contaminated soil'' would not be subject to the requirements set forth
in this part for non-hazardous contaminated media.
Inherent in this definition is the idea that, even though these
media would not be regulated as hazardous wastes, they might
nevertheless be ``contaminated'' enough to be of some concern to the
overseeing agency's site cleanup decisions. In fact, most of the media
that are generated and managed as part of cleanups would likely be
eligible to be considered non-hazardous, according to the results of
the Regulatory Impact Analysis prepared for this proposed rule.
Remediation Management Plan (RMP). Today's rule proposes the
following definition for Remediation Management Plan:
Remediation Management Plan means the plan which describes
specifically how hazardous and non-hazardous contaminated media will
be managed in accordance with this Part. Such a plan may also
include, as allowed under Subpart D of this Part, requirements for
other remediation wastes and any other (non-Part 269) requirements
applicable to hazardous contaminated media.
The requirements of today's proposal depend on a responsible
overseeing agency (EPA or an authorized State) to approve and monitor
compliance with many site-specific decisions regarding the management
of hazardous contaminated media. The RMP would provide the
documentation of the plan and relevant information to demonstrate
compliance with applicable requirements. A unique aspect of the RMP is
that there could be several different kinds of RMPs. Since hazardous
and non-hazardous contaminated media would be managed under any number
of Federal and State programs, the Agency believes that it would be
unnecessarily burdensome to require a fixed form of documentation, as
long as the required information is adequately included or described in
the documents already being used by the programs that implement the
remedial activities. In other words, this rule would allow any
enforceable document containing the information required to be included
in a RMP if it also goes through at least the minimum public
participation requirements in proposed Sec. 269.43.
Sediment. Today's proposal specifies the following definition for
sediments:
Sediment is the mixture of assorted material that settles to the
bottom of a water body. It includes the shells and coverings of
mollusks and other animals, transported soil particles from surface
erosion, organic matter from dead and rotting vegetation and
animals, sewage, industrial wastes, other organic and inorganic
materials, and chemicals.
This definition is from EPA's Office of Water's document from June
1993, entitled ``Selecting Cleanup Techniques for Contaminated
Sediments,'' EPA 823-B93-001, p. xiv, which is available in the docket
to today's proposal. For further discussion of how the proposal would
affect management of contaminated sediments, see sections (V)(A)(4)(c)
and (V)(H) of this preamble.
Soil. Today's proposal specifies the following definition of soil,
for the purpose of implementing Part 269 regulations:
Soil means unconsolidated earth material composing the
superficial geologic strata (material overlying bedrock), consisting
of clay, silt, sand, or gravel size particles (sizes as classified
by the U.S. Soil Conservation Service), or a mixture of such
materials with liquids, sludges, or solids which is inseparable by
simple mechanical removal processes, and is made up primarily of
soil.
This definition was originally proposed in the September 14, 1993
Phase II LDR proposal (58 FR 48092, 48123). It would allow regulators
to distinguish between soils, debris, and other remediation wastes by
judging the results of simple, in-situ mechanical removal processes to
separate the materials. These processes would include pumping,
dredging, or excavation by backhoe, or other devices.
This approach would eliminate requirements for chemical analysis of
soil, to differentiate between waste, soil and debris (e.g.,
considering such things as soil particle size, elemental composition of
the soil, or other properties that might distinguish soil from other
remediation wastes). The Agency is not proposing that owner/operators
or the Director distinguish more precisely than specified in today's
proposal between waste, soil, or debris--through a chemical analysis or
other tests--since these approaches would be difficult to develop,
support, and administer. Specifically, a basis for chemical analysis or
other tests has not been developed, and implementation of this approach
would most likely not be beneficial. Instead it would simply delay the
progress of remedial actions. The Agency specifically solicits comments
on this proposed definition for soil, and this type of approach for
classifying mixtures of soil and other materials.
4. Identification of Media Not Subject to Regulation as Hazardous
Waste--Sec. 269.4
Section 269.4 specifies that, as long as media do not contain
Bright Line Constituents that are at or above Bright Line
concentrations, the Director may determine if those media contain
hazardous wastes. If not, the Director may determine that the media
would not be subject to most RCRA hazardous waste management
requirements.7 This does not mean, however, that management of
those media would be unrestricted. Instead, the rule would require EPA
or the State to impose appropriate management requirements in an
approved RMP, using authorities that do not depend on the presence of
hazardous wastes (i.e., general cleanup authorities as provided in
Federal or State cleanup statutes).
---------------------------------------------------------------------------
\7\ The exception is, in some cases, the requirement to comply
with the land disposal treatment standards. (See discussion in
(V)(C).)
---------------------------------------------------------------------------
The Agency is imposing this condition on decisions that media no
longer contain hazardous wastes, because the proposed rule, as
discussed below, would allow those decisions to be made where media may
be more highly contaminated than media the Agency has traditionally
deemed to no longer contain hazardous waste. If, for some reason, a RMP
were terminated prior to completion of a remedy, those
[[Page 18795]]
media would again become subject to Subtitle C regulation.
Understanding the role of the Bright Line and the contained-in
principle is essential to understanding how today's proposal would
work. Both the contained-in principle and the Bright Line are explained
below.
a. The contained-in principle in today's proposed rule background.
The contained-in principle is the basis for EPA's longstanding policy
regarding the application of RCRA Subtitle C requirements to mixtures
of environmental media (e.g., soils, ground water, sediments) and
hazardous wastes. This concept has been discussed previously in several
Agency directives and in several RCRA rulemakings. (See, e.g., 58 FR
48092, 48127 (September 14, 1993)). In today's proposed rule the Agency
is expanding this concept as the basis for allowing EPA or an
authorized State to exempt certain contaminated media from the
stringent, prevention-oriented RCRA regulations for hazardous waste
management that previously would have applied.
The contained-in concept was originally developed to define the
regulatory status of environmental media that are contaminated with
hazardous wastes. The mixture rule at 40 CFR 261.3(a)(2)(iv) states
that ``a mixture of solid waste and one or more [listed] hazardous
wastes'' constitutes a listed waste itself (emphasis added). Similarly,
the derived-from rule at 40 CFR 261.3(c)(2)(i) provides that ``a solid
waste generated from the treatment, storage, or disposal of a hazardous
waste'' is a hazardous waste (emphasis added).
Since media are not solid wastes, these rules do not apply to
mixtures of media and hazardous wastes. However, two other regulations
subject contaminated media to Subtitle C requirements. Under 40 CFR
261.3(c)(1) a ``hazardous waste will remain a hazardous waste'' unless
and until certain specified events occur. Under 40 CFR 261.3(d)(2) a
``waste which contains'' a listed waste remains a hazardous waste until
it is delisted. Together these regulations provide for continued
regulation of hazardous wastes even after they are released to the
environment and mingled with media.
The U.S. Court of Appeals for the District of Columbia Circuit
upheld this interpretation of Secs. 261.3(c)(1) and (d)(2) in Chemical
Waste Management Inc. v. EPA, 869 F.2d 1526, 1538-40 (D.C. Cir. 1989),
and EPA has explained the policy and its regulatory basis in numerous
preambles and letters. (See 53 FR 31138, 31142, 31148 (Aug. 17, 1988);
57 FR 21450, 21453 (May 20, 1992) (inadvertently citing 40 CFR
261(c)(2) in lieu of Sec. 261.3(d)(2)); memorandum from Marcia E.
Williams, Director, EPA Office of Solid Waste, to Patrick Tobin, EPA
Region IV (Nov. 15, 1986); letter from Jonathan Z. Cannon, EPA Acting
Assistant Administrator, Office of Solid Waste and Emergency Response,
to Thomas Jorling, Commissioner, New York Department of Environmental
Conservation (June 19, 1989); and letter from Sylvia K. Lowrance,
Director, EPA Office of Solid Waste, to John Ely, Enforcement Director,
Virginia Department of Waste Management (Mar. 26, 1991). Under the
contained-in policy, media contaminated with listed hazardous wastes
are not wastes themselves, but they contain hazardous wastes and must
therefore be managed as hazardous wastes until they no longer contain
the waste. This concept is based on the idea that at some point (e.g.,
at some concentration of hazardous constituents) the media would no
longer contain the hazardous waste, or be subject to RCRA Subtitle C
regulations.
Because the regulations that serve as the basis for the contained-
in policy are part of the ``base'' RCRA program that was in effect
prior to 1984, the Agency has taken the position that EPA or the State
agency authorized to administer the ``base'' RCRA regulations may
determine whether media contain listed wastes. Decisions that media no
longer contain listed hazardous wastes (or ``contained-in'' decisions)
have typically been made on a case-by-case basis, according to the
risks posed by the contaminated media. The Agency has not issued any
definitive guidance or regulations for determining appropriate
contained-in levels; however, EPA Regions and States have been advised
that conservative, health-based levels derived from direct exposure
pathways would clearly be acceptable as ``contained-in'' levels. (See
memorandum from Sylvia K. Lowrance to Jeff Zelikson, Region IX,
(January 24, 1989)). It has been the common practice of EPA and many
States to specify conservative, risk-based levels calculated with
standard conservative exposure assumptions (usually based on
unrestricted access), or site-specific risk assessments.
With regard to mixtures of media and characteristic wastes, EPA has
often stated that media are regulated under RCRA Subtitle C if they
exhibit a hazardous waste characteristic. (See 57 FR 21450, 21453, (May
20, 1992)). But, since media generally are not wastes, they become
regulated when they have been contaminated with solid or hazardous
wastes and the resultant mixture exhibits a characteristic. EPA has
also taken the position that contaminated media cease to be regulated
as hazardous waste when sufficient quantities of hazardous constituents
are removed so that the mixture ceases to exhibit a characteristic
8 (57 FR 21450, 21453, May 20, 1992).
---------------------------------------------------------------------------
\8\ Recent developments under the RCRA land disposal
restrictions (LDRs) may suggest a qualification to this latter
point. (See discussion of LDRs in section (V)(C) of today's
preamble.)
---------------------------------------------------------------------------
The contained-in concept in today's proposed rule. One of the
primary objectives of today's proposal is to remove lower risk
contaminated media from Subtitle C jurisdiction so that more
appropriate, site-specific management requirements can be specified by
the overseeing Agency. For the purpose of this rulemaking EPA has
chosen to use the contained-in concept as the basis for allowing these
materials to be exempted from Subtitle C requirements. In formulating
the proposal, the Agency considered alternative concepts that might be
provided under the RCRA statute that would produce the same or similar
exemption. Those concepts are discussed in section (VI)(A)(2) of this
preamble.
Today's proposal would allow two separate regulatory regimes to be
applied to the management of contaminated media under EPA or State-
approved cleanups. For media determined to contain hazardous wastes,
modified LDR treatment standards would apply, as would other applicable
Subtitle C requirements. For media determined not to contain hazardous
wastes, Subtitle C requirements would generally not apply, and the
State or EPA would have considerable discretion in applying appropriate
management standards.
The proposed rule would limit an overseeing agency's discretion to
make site-specific decisions that media no longer contain wastes by
specifying ``Bright Line'' concentration levels. Media that are
contaminated below Bright Line concentrations would be eligible for
contained-in decisions by the overseeing Agency. However, Bright Line
concentrations would not constitute an automatic exemption from
Subtitle C; rather, they would represent the concentration below which
the State or EPA might determine that media do not contain hazardous
waste.
As described below, EPA believes it would generally be acceptable
to make a decision that media do not contain hazardous waste at the
Bright Line concentrations specified in today's proposal. However, the
proposed rule is
[[Page 18796]]
designed to provide for site-specific discretion in making such
decisions. Thus, it is possible that some States might choose to
specify--on a site-specific basis, more broadly as a matter of policy,
or in regulations--contained-in levels that are lower (i.e., more
stringent) than the Bright Line concentrations specified in today's
proposal. Moreover, States can be more stringent than the Federal
program, and adopt lower Bright Line concentrations.
In applying the contained-in concept, today's proposed rule does
not distinguish between media that are contaminated with listed
hazardous wastes, and media that exhibit a hazardous waste
characteristic. In both cases, it is the concentration levels of the
individual hazardous constituents in the media that determine how the
media will be regulated under Part 269. The origin of the constituents
(i.e., listed wastes or characteristic hazardous wastes) is irrelevant
in comparing measured levels in the media with Bright Line
concentrations and/or contained-in concentrations.
EPA sees no reason to apply the Bright Line concept differently to
media contaminated with listed hazardous wastes and media that exhibit
a hazardous characteristic. In either case the media could presumably
be contaminated with the same types of hazardous constituents, at
similar concentrations, that would present similar potential risks if
mismanaged. Thus, applying these rules differently, depending on how
the media came to be regulated as hazardous, would be unnecessary and
artificial, and would further complicate how these rules would be
implemented in the field.
EPA recognizes that today's rule could have the effect of excluding
from Subtitle C regulation some media that until now have been
considered hazardous--i.e., media that exhibit a hazardous waste
characteristic, with constituent concentrations below the Bright Line
and EPA or the State makes a determination that the media no longer
contain hazardous waste (often based on protective management
controls). However, EPA believes that there is no compelling
environmental rationale for not including such media in Part 269
regulation. The risk presented even by characteristic wastes is
dependent on site-specific circumstances. Therefore, because today's
proposal would require the Director to impose any management controls
on contaminated media that are necessary to protect human health and
the environment, whether the media is contaminated with listed or
characteristic waste is unimportant.
Under today's proposed rule, contained-in decisions would be
documented in the site's approved Remediation Management Plan (RMP). If
an approved RMP expires or is terminated, the provisions of today's
proposal would no longer apply. Therefore, all contaminated media that
are addressed in the RMP (i.e., media that are contaminated both above
and below contained-in concentrations) would again prospectively be
subject to the ``base'' Subtitle C regulations. For example, if a
cleanup of contaminated soil was half completed when a RMP was
terminated or expired, the half that was completed in compliance with
the RMP while it was in effect, would continue to be considered to be
in compliance. For example, if contaminated soil was determined not to
contain hazardous waste, and was disposed of in a Subtitle D landfill
according to the requirements of the RMP, that Subtitle D landfill
would not be considered retroactively to have accepted hazardous
wastes. The half of the cleanup that was not completed when the RMP was
terminated or expired, however, would have to be completed
prospectively in compliance with the non-Part 269 Subtitle C
regulations.
Effect of contained-in decisions under today's rule. Once the
overseeing Agency has made a decision that media with constituents at
certain concentrations no longer contain hazardous wastes (i.e., ``a
contained-in decision''), the media would no longer be regulated as
hazardous wastes under Federal RCRA regulations (Sec. 261.4(g) and
Sec. 269.4(a)).9 The Agency requests comments, however, on whether
the Agency should exempt the media instead, only if it were managed in
compliance with the provisions of the RMP. The Agency did not propose
this approach primarily because it could be unduly harsh, since any
violation, no matter how minor, would result in a reversion to Subtitle
C. However, this approach could be incorporated into RMPs on a case-by-
case basis, where the Director could specify in the RMP the
provision(s) who's violation would result in a reversion to Subtitle C
regulation. (See discussion below).
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\9\ The Agency notes, however, that by explicitly providing in
Sec. 261.4 that decisions under Part 269 that media no longer
contain hazardous waste are not subject to most Subtitle C
regulations, EPA would not intend to affect in any way the authority
of EPA and authorized States to make contained-in decisions outside
of the HWIR-media context.
---------------------------------------------------------------------------
A contained-in decision for wastes at a cleanup site would not,
however, eliminate the Administrator's authority to require the owner/
operator (or other responsible parties at sites not regulated by RCRA)
to conduct remedial actions for media that do not contain hazardous
wastes. Specifically, Federal cleanup authorities under RCRA section
3004(u) at TSDFs, section 7003, and CERCLA authorities, authorize the
Agency to require cleanup of a broad spectrum of hazardous constituents
and/or hazardous substances, however, the presence of hazardous
waste(s) in media is not a requirement for exercising those
authorities. Many State cleanup authorities have similar provisions.
Decision factors for contained-in decisions. Because the Agency
does not want to constrain site-specific decision-making, today's
proposed rule would not mandate specific factors for making contained-
in decisions, but would allow the Director to base these decisions on
appropriate site-specific factors. However, EPA requests comments on
whether decision factors should be codified for making contained-in
decisions. EPA believes that the Bright Line concentrations will
generally be acceptable for contained-in decisions; however, decision
factors could help authorities determine, on a site-specific basis,
what types of management controls (see discussion below), if any, would
make the Bright Line concentrations appropriate concentrations at which
to make contained-in decisions. Decision factors could also aid in
determining other appropriate levels at which to make contained-in
decisions.
Given the multiplicity of different types of sites, EPA requests
comments on what decision factors, if the Agency decided to include
them in the final rule, would ensure consistent decision-making, and
yet keep the process efficient and flexible. Although EPA does not
believe it would be appropriate to do a risk assessment at every site,
particularly if the cleanup is of a relatively simple nature, the
Agency does believe that the following factors (adapted from the LDR
proposal for hazardous soils) contain the types of information that may
be appropriate (depending on the specific circumstances at a given
site) to consider in making contained-in decisions:
--Media properties;
--Waste constituent properties (including solubility, mobility,
toxicity, and interactive effects of constituents present that may
affect these properties);
--Exposure potential (including potential for direct human contact, and
potential for exposure of sensitive environmental receptors, and the
[[Page 18797]]
effect of any management controls which could lessen this potential);
--Surface and subsurface properties (including depth to groundwater,
and properties of subsurface formations);
--Climatic conditions;
--Whether the media pose an unacceptable risk to human health and the
environment; and
--Other site or waste-specific properties or conditions that may affect
whether residual constituent concentrations will pose a threat to human
health and the environment.
Most of these factors were proposed in the LDR proposal for
hazardous soil (58 FR 48092, September 14, 1993) as decision factors
that might be considered by the Director in making contained-in
decisions. If the proposal for hazardous soil had been finalized, it
would have codified the contained-in principle for hazardous soil.
Today's suggested factors differ from those in the hazardous soil
proposal in one significant respect. The Agency has determined that it
may be appropriate, when assessing ``exposure potential,'' to consider
site-specific management controls imposed by the Director that limit
potential exposures of human or environmental receptors to media. The
Agency made this change because EPA believes that States overseeing
cleanups might determine that media that would have traditionally been
considered to contain hazardous waste (e.g., media that contained
listed wastes and posed an unacceptable risk under traditional exposure
scenarios) no longer presented a hazard (and thus did not contain
``hazardous'' waste), based on site-specific management controls
imposed by the Director.
This position is based upon EPA's understanding that RCRA provides
EPA and the States the discretion to determine that a waste need not be
defined as ``hazardous'' where restrictions are placed on management
such that no improper management could occur that might threaten human
health or the environment. (See definition of hazardous waste at RCRA
section 1004(5)(B)). The HWIR-waste proposal included a full discussion
of the legal basis for this position. For the sake of clarity, it is
repeated below (60 FR 66344-469, Dec. 21, 1995).
EPA's original approach to determining whether a waste should be
listed as hazardous focused on the inherent chemical composition of the
waste, and assumed that mismanagement would occur, causing people or
organisms to come into contact with the waste's constituents. (See 45
FR 33084, 33113, (May 19, 1980)). Based on more than a decade of
experience with waste management, EPA believes that it is inappropriate
to assume that worst-case mismanagement will occur. Moreover, EPA does
not believe that worst-case assumptions are compelled by statute.
In recent hazardous waste listing decisions, EPA identified some
likely ``mismanagement'' scenarios that are reasonable for almost all
wastewaters or non-wastewaters, and looked hard at available data to
determine if any of these are unlikely for the specific wastes being
considered, or if other scenarios are likely, given available
information about current waste management practices. (See the
Carbamates Listing Determination (60 FR 7824, February 9, 1995) and the
Dyes and Pigments Proposed Listing Determination (59 FR 66072, December
22, 1994)). Further extending this logic, EPA believes that when a
mismanagement scenario is not likely, or has been adequately addressed
by other programs, the Agency need not consider the risk from that
scenario in deciding whether to classify the waste as hazardous.
EPA believes that the definition of ``hazardous waste'' in RCRA
section 1004(5) permits this approach to hazardous waste
classification. Section 1004(5)(B) defines as ``hazardous'' any waste
that may present a substantial present or potential hazard to human
health or the environment ``when improperly * * * managed.'' EPA reads
this provision to allow it to determine the circumstances under which a
waste may present a hazard and to regulate the waste only when those
conditions occur. Support for this reading can be found by contrasting
section 1004(5)(B) with section 1004(5)(A), which defines certain
inherently dangerous wastes as ``hazardous'' no matter how they are
managed. The legislative history of Subtitle C of RCRA also appears to
support this interpretation, stating that ``the basic thrust of this
hazardous waste title is to identify what wastes are hazardous in what
quantities, qualities, and concentrations, and the methods of disposal
which may make such wastes hazardous.'' H. Rep. No. 94-1491, 94th
Cong., 2d Sess.6 (1976), reprinted in, ``A Legislative History of the
Solid Waste Disposal Act, as Amended,'' Congressional Research Service,
Vol.1, 567 (1991) (emphasis added).
EPA also believes that section 3001 gives it flexibility in order
to consider the need to regulate as hazardous those wastes that are not
managed in an unsafe manner (section 3001 requires that EPA decide, in
determining whether to list or otherwise identify a waste as hazardous
waste, whether a waste ``should'' be subject to the requirements of
Subtitle C). EPA's existing regulatory standards for listing hazardous
wastes reflect that flexibility by allowing specific consideration of a
waste's potential for mismanagement. (See Sec. 261.11(a)(3)
(incorporating the language of RCRA section 1004(5)(B)) and
Sec. 261.11(c)(3)(vii) (requiring EPA to consider plausible types of
mismanagement)). Where mismanagement of a waste is implausible, the
listing regulations do not require EPA to classify a waste as
hazardous, based on that mismanagement scenario.
Two decisions by the U.S. Court of Appeals for the District of
Columbia Circuit provide potential support for the approach to defining
hazardous waste, in Edison Electric Institute v. EPA, 2 F.3d 438, (D.C.
Cir. 1993) the Court remanded EPA's RCRA Toxicity Characteristic
(``TC'') as applied to certain mineral processing wastes because the TC
was based on modeling of disposal in a municipal solid waste landfill,
yet EPA provided no evidence that such wastes were ever placed in
municipal landfills or similar units. This suggests that the Court
might approve a decision to exempt a waste from Subtitle C regulation
if EPA were to find that mismanagement was unlikely to occur. In the
same decision the Court upheld a temporary exemption from Subtitle C
for petroleum-contaminated media because such materials are also
subject to Underground Storage Tanks regulations under RCRA Subtitle I.
The court considered the fact that the Subtitle I standards could
prevent threats to human health and the environment to be an important
factor supporting the exemption. Id. At 466. In NRDC v. EPA, 25 F.3d
1063 (D.C. Cir. 1994) the Court upheld EPA's finding that alternative
management standards for used oil promulgated under section 3014 of
RCRA reduced the risks of mismanagement and eliminated the need to list
used oil destined for recycling. (The Court, however, did not consider
arguments that taking management standards into account violated the
statute because petitioners failed to raise that issue during the
comment period.)
The Agency believes, therefore, that EPA and the States may
consider site-specific management controls when making contained-in
decisions pursuant to proposed Part 269. EPA believes that this
approach is especially appropriate in the Part 269 context, because of
the significant level of oversight generally given to cleanup actions.
Management controls that are tailored to site-specific
[[Page 18798]]
circumstances and imposed in enforceable documents, and State or EPA
oversight of cleanup activities, would ensure that the site-specific
management controls that the Director relied upon in making each
contained-in decision would continue to be implemented. In addition
(although EPA is not proposing to require it as a federal matter),
States may want to consider making such contained-in decisions
conditional; i.e., media would only be considered nonhazardous so long
as they were managed in the manner considered by the Director in making
the contained-in decision. Deviations (any, or specific ones) would
result in a reversion to Subtitle C regulation.
EPA specifically requests comments on the following: (1) Should the
Agency specify a list of criteria to consider; (2) should the Agency
prepare decision factors as guidance; (3) should the Agency promulgate
decision factors as part of the final rule; (4) are the above decision
factors appropriate for making these decisions; (5) if so, should the
criteria listed above be more or less specific regarding the conditions
that would allow or preclude contained-in decisions; (6) are there
other factors the Director should consider when making contained-in
decisions, in addition to those listed above; and (7) should there be
fewer factors to consider?
b. Issues associated with hazardous debris. When EPA promulgated
land disposal treatment standards for hazardous debris, it also
codified the contained-in principle for debris contaminated with listed
hazardous waste. (See 57 FR 37194, 37221, (August 18, 1992)). At the
time EPA codified the contained-in principle for hazardous debris, it
was the Agency's practice to make contained-in decisions at ``health-
based,''\10\ levels, thus a decision that debris no longer contain
hazardous waste would clearly also constitute a ``minimize threat''
determination for purposes of RCRA section 3004(m). Therefore,
contained-in decisions under 40 CFR 260.3(f)(3) also eliminate the duty
to comply with the land disposal restriction requirements of 40 CFR
Part 268. EPA requests comments on whether the contained-in principle
codified for hazardous debris is adequate or whether the contained-in
policy should be applied to debris in the same way today's proposed
rule applies it to hazardous contaminated media. For example, should
contained-in decisions for debris incorporate the Bright Line concept?
If a Bright Line is established for debris, should it be the same as
the Bright Line in today's proposed rule for hazardous contaminated
media or would some other Bright Line values or methodology be more
appropriate for debris? Are there issues associated with requiring that
debris be tested to determine if it has constituent concentrations
greater than Bright Line concentrations? Is testing routinely too
complicated for debris matrices? Should contained-in decisions for
debris be based on determinations made for media co-located with the
debris (i.e., if debris were located in the same area as media that was
determined not to contain hazardous wastes, should the debris be
presumed not to contain hazardous wastes)? Similarly, if debris is
located in the same area as media that have constituent concentrations
less than Bright Line concentrations, should the debris be presumed to
also be below the Bright Line?
---------------------------------------------------------------------------
\10\ See memoranda discussed in section (V)(A)(4)(a) of today's
preamble.
---------------------------------------------------------------------------
Alternatively, should the Director be able to make contained-in
decisions, as they are described in today's proposed rule, without
application of the Bright Line to debris (as we are proposing for
sediment? (See preamble (V)(A)(4)(c)). If allowed, should these
contained-in decisions replace the existing contained-in decisions
available for debris or should the existing contained-in decisions be
maintained with non-Bright Line contained-in decisions (as discussed in
today's proposed rules addressing sediments--see preamble (V)(A)(4)(c))
available for debris managed under a RMP? Are other combinations of the
existing debris contained-in decision provisions and the contained-in
decision provision for media in today's proposed rule appropriate?
While today's proposed rule does not include changes to the
existing contained-in principle as applied to debris contaminated with
listed hazardous waste, EPA could include revisions to the standard in
response to public comment. Issues associated with hazardous debris and
the possibility of including debris in the final Part 269 rules are
also discussed in sections (V)(C)(10) and (V)(A)(2) of today's
preamble.
c. The Bright Line. One of the key features of the ``Harmonized
Approach'' developed through the FACA process was the concept of a
``Bright Line.'' The Bright Line would divide contaminated media into
two different categories, which would be subject to two different
regulatory regimes. Although straightforward in concept, the Agency has
found it challenging to establish a set of numbers to serve this
purpose.
As conceived by the FACA Committee, and presented in Appendix A to
today's proposal, the Bright Line is a set of constituent-specific,
risk-based concentration levels. In agreeing on a Bright Line approach,
the FACA Committee anticipated that a substantial proportion of
contaminated media would fall below the Bright Line, and thus be
eligible, at the Director's discretion, for flexible, site-specific
requirements (non-Subtitle C) set by the overseeing Agency. At the same
time, the FACA Committee agreed that the Bright Line should ensure that
very highly contaminated media (traditionally considered ``hot spots'')
be subject to uniform national protective standards (e.g., treatment).
EPA believes that the Bright Line values presented in today's proposal
are a reasonable attempt to balance both of these important objectives.
As originally conceived, the Bright Line was intended to represent
in some manner the relative risk posed by contaminated media. Simply
put, media contaminated above Bright Line concentrations should pose
higher risks than media below the Bright Line under a given exposure
scenario. Since the Bright Line is only an indicator of relative risk,
the levels should not be interpreted as representing what is protective
or ``clean.'' The actual risk of any particular contaminated medium
depends on the circumstances by which human or environmental receptors
may be exposed to the medium. EPA wishes to emphasize that Bright Line
concentrations are not cleanup levels. The Bright Line simply is a
means of identifying which regulatory regime may be appropriate for the
contaminated media at a cleanup site.
The Agency believes that the management of contaminated media would
be conducted in a protective manner under either of the regulatory
schemes that would be established by the rule. The underlying
assumption is that managing contaminated media under the HWIR-media
rule would eliminate significant exposures to humans or ecological
receptors. This is because the overseeing agency's presence ensures
that media will be managed in a way that directly addresses the risk
posed by site-specific circumstances. Thus, protection of human health
and the environment can be ensured by applying either the national
standards for media that contain hazardous waste, or the site-specific
standards specified by the overseeing agency for media, which the
overseeing agency has determined do not contain hazardous waste, based
on the proposed management standards
[[Page 18799]]
identified in the RMP. Thus, in establishing Bright Line
concentrations, EPA finds it reasonable to consider the potential
effect of different sets of Bright Line concentrations in terms of the
proportional volumes of media that would fall above and below the
Bright Line. EPA believes that unless a substantial amount of
contaminated media are eligible for site-specific decision-making, the
disincentives for clean-up will not be eliminated (therefore resulting
in greater overall risk to human health and the environment).
Thus, EPA's goal was to develop Bright Line concentrations that
would remove a significant amount of contaminated media from Subtitle C
jurisdiction, while ensuring that ``hot spots'' would remain subject to
mandatory national standards. In deciding how to determine such levels,
the Agency considered several approaches that included selecting
concentrations based solely on volume. This approach, however, was
rejected because there was no way to account for the relative degree of
risk posed by different constituents. In other words, because some
constituents are more hazardous than others at the same concentration,
a Bright Line based purely on volume would not account for this
difference.
EPA, therefore, wanted to set Bright Line concentrations for
different constituents at different levels in order to account for this
variance in relative risk. In order to do this, EPA needed to consider
a potential exposure scenario that would account for the difference in
relative risk of these different constituents. Because risk occurs only
when there is a chance of exposure, at least one set of exposure
assumptions would be necessary to establish the Bright Line.
Since one of the goals of the Bright Line was to identify the most
highly contaminated media, the FACA Committee recommended using
10-3 as a benchmark for setting the Bright Line. Therefore, the
Bright Line values in Appendix A were based on a 10-3 risk level
for carcinogenic constituents (using the assumptions described above),
and a health index of 10 for non-carcinogens, (that is, 10 x the
concentration at which adverse health effects occur) according to
certain exposure assumptions. This approach is consistent with the
Superfund Principle Threats concept which uses 10-3 as a factor to
identify the principle threats at Superfund sites.
Describing the Bright Line theory was relatively easy compared with
determining Bright Line concentrations for all media which would be
subject to today's Part 269 proposal. Today's rule proposes to define
soil, ground water, surface water, and sediments as media. However, the
potential exposure assumptions that could be used to determine Bright
Line concentrations vary for different types of media. Therefore, EPA
established two sets of Bright Line values, one for soils, and one for
ground water and surface water.
Today's proposed rule does not include Bright Line numbers for
contaminated sediments. The amount of sediment that is classified as
RCRA hazardous is very low. Thus, EPA proposes that site-specific
contained-in decisions be made for hazardous contaminated sediments.
The Agency requests comments on whether to develop a Bright Line
specifically for contaminated sediments. The Agency also requests
comments on whether it would be appropriate to use the Bright Line for
soil for sediments.
Bright Line concentrations for soils. In setting the Bright Line
for soils, EPA chose to use exposure scenarios and assumptions that
were developed for the Superfund Soil Screening Levels (SSLs), because
that effort used standard risk scenarios that have been widely used and
accepted by the Agency (and by many States). The SSLs were developed
for a purpose different from the Bright Line; 11 however, the
exposure scenarios used in that effort are good indicators of relative
risk for developing Bright Line values.
---------------------------------------------------------------------------
\11\ Superfund Soil Screening Levels (SSLs) were developed as a
screening tool to determine when further investigation is necessary
at Superfund sites. Because the SSLs are intended to be
conservative, and trigger investigation whenever prudent, they are
set at a 10-6 level for carcinogens. For more information on
SSLs, call David Cooper (703) 603-8763.
---------------------------------------------------------------------------
The SSLs are based on three human exposure scenarios; direct
contact ingestion, inhalation, and drinking contaminated ground water.
Each scenario is based on a specific set of assumptions for such things
as body weight, frequency of exposure, daily intake rates, and other
factors.
FR Doc. 96-10096 Requirements for Management of Hazardous Contaminated Media (HWIR-Media)
The inhalation pathway also uses certain models to calculate
wind dispersion and the uptake of airborne contaminants by human
receptors.
Today's proposed Bright Line numbers for soils are based on only
two of those human exposure scenarios--direct contact ingestion and
inhalation. The Bright Line value for each constituent is based on
whichever pathway yields the more conservative (i.e., lower)
concentration. EPA recognizes that protection of ground water is one of
RCRA's major goals and that many of the Subtitle C design and operating
standards were developed to protect ground water resources. Therefore,
EPA considered the possibility of using the ground water exposure
pathway in setting Bright Line concentrations for soils. However, the
migration of contaminants from soils to ground water is fundamentally
site-specific, and influenced by a number of site-specific factors such
as depth to ground water; soil porosity; carbon content and other soil
characteristics; amount of rainfall; solubility of the contaminants;
and numerous other site- and constituent-specific conditions. The
Agency has found less variability in fate and transport potential for
inhalation and ingestion exposures in residential settings.
EPA is reluctant to use a greatly simplified ground water model
that would not take any site-specific or constituent-specific factors
into account. In order to address concerns posed to ground water on a
more appropriate site-specific basis, EPA prefers to allow for
consideration of ground water risks in making site-specific decisions
regarding either the contained-in decision and/or the site-specific
management requirements. Given the overseeing Agency's discretion to
determine these standards on a site-specific basis, and given that EPA
believes that site-specific decisions are most appropriate for ground
water risk decisions, the Agency has proposed that the ground water
exposure pathway should not be considered in setting the national
Bright Line values for soils. Finally, EPA proposes two considerations
to overlay the soil Bright Line numbers. EPA proposes to cap the Bright
Line values at 10,000 ppm, equivalent to 1% of the volume of the
contaminated media. EPA believes that it is reasonable to classify
media as highly contaminated if 1% of the volume of media is
contaminated with a particular constituent. Therefore capping the
Bright Line at 10,000 ppm is consistent with the intention that the
Bright Line distinguish between highly contaminated and less
contaminated media. The second cap on the soil Bright Line values is
the saturation limit (Csat). EPA believes it is sound science to
compare the concentrations developed through the inhalation and
ingestion risk scenarios to the actual concentration that could
physically saturate the soil. If the Csat was lower than the
concentrations from the inhalation or ingestion scenarios, EPA set the
Bright Line concentration at the Csat. For further details on specific
assumptions and methodologies used to
[[Page 18800]]
determine the Bright Line values for soils, see Appendix A-1.
The Agency also considered several alternatives for establishing
exposure assumptions for soil Bright Line numbers. These alternatives
are discussed below. Estimates of the impacts of each alternative (in
terms of volumes of media exempted) are all based on a 10-3 risk
for carcinogens, and a health index of 10 for non-carcinogens (that is
10 x the concentration at which adverse health effects occur).
Alternative #1--Bright Line for soils based on inhalation,
ingestion, and migration to ground water. In addition to inhalation and
ingestion pathways, this alternative would use a generic model to
derive soil levels that, given certain fate and transport assumptions,
would result in transfer of contaminants in the soils to ground water
at or below drinking water standards (i.e., maximum concentration
levels, or MCL's). EPA did not choose this alternative primarily
because of the site-specific variability of calculating ground water
exposure scenarios (as discussed above). In addition, this approach
would result in Bright Line numbers that were considerably lower than
those in the proposed option. The Agency estimated that under this
alternative, approximately 50 percent of contaminated media would fall
below the Bright Line, compared to 70 to 75 percent under the proposed
option.
Alternative #2--Bright Line for soils based on inhalation and
ingestion pathways, with concentrations calculated on a site-specific
basis for the soil-to-ground water pathway. This option would yield
Bright Line numbers that would approximate more closely ground water
risks for each site. However, it would have the disadvantage of
requiring considerable data gathering and analysis simply to calculate
Bright Line concentrations, and these concentrations would obviously
differ from site to site. This contradicts the idea of the Bright Line
as ``bright''--i.e., an easily referenced set of numbers that can be
applied in a standard fashion. However, since Bright Line numbers would
vary widely across the range of cleanup sites, volume estimates for
this alternative are not possible to calculate.
Alternative #3--Bright Line numbers for soils based on a
multipathway analysis. Under this alternative, numerous exposure
pathways would be considered for each constituent, and Bright Line
concentrations would be set for the most conservative pathway (i.e.,
the pathway that resulted in the lowest concentration level). In some
respects this approach would be consistent with the multipathway
approach being used in the HWIR proposed rule for as-generated wastes
(60 FR 66344-469, Dec. 21, 1995). However, the Bright Line is intended
for a very different purpose than the ``exit levels'' being developed
for that proposed rule. For instance, the exit levels in the HWIR-Waste
rule (discussed in section (II)(B) of this preamble) generally assume
that exited wastes will not be subject to any management requirements,
whereas this proposal assumes that these wastes will be managed
protectively under State/EPA oversight. In addition, the resulting
Bright Line values would be much lower than those proposed today, thus
much less media would be regulated ``below the line.''
Bright Line concentrations for ground water and surface water.
Today's proposed rule also establishes Bright Line values specifically
for contaminated ground water. (See Appendix A-2 and discussion below).
As with contaminated soils, highly-concentrated, contaminated ground
water would be subject to specific national management standards, while
less-contaminated ground water could be managed according to site-
specific requirements imposed by the State or EPA.
To set Bright Line concentrations for ground water and surface
water (Appendix A-2), EPA used standard exposure assumptions for human
ingestion of contaminated water. EPA believes that it is appropriate to
use the same Bright Line values for surface water and ground water. And
for the same reasons discussed above for soils, the Agency believes a
multi-pathway approach, or ``actual risk'' approach is not necessary
for setting Bright Line concentrations for ground water and surface
water.
EPA has used the same philosophical approach for the ground water/
surface water Bright Line as it has used for soils, by analyzing
relative risk and relying on the oversight of authorized States or EPA
to ensure that hazards are addressed on a site-specific basis. In
addition, EPA used a 10,000 ppm cap for the ground water/surface water
Bright Line, just as for the soil Bright Line. This is explained in the
soil Bright Line section of the preamble. Finally, if the
concentrations from the ingestion of contaminated water were below the
detection limits for that constituent in water (the EQC), EPA set the
Bright Line at the EQC. More details on the specific assumptions and
methodologies used to determine these concentrations are included in
Appendix A-2.
Issues common to both sets of Bright Line numbers. In developing
today's proposed Bright Line concentrations, some stakeholders said
that EPA would need to calculate a number of additional direct and
indirect pathways to evaluate the relative risks of contaminated media
completely. The stakeholders also said that the Agency would need to
predict risks to ecological receptors (i.e., plants and animals) as
well as human health risks. EPA, however, does not believe that
evaluation of additional pathways is necessary. The pathways selected
already provide a sufficient basis for distinguishing relatively lower-
risk contaminated media from relatively higher-risk media. The
evaluation of other pathways and receptors would be important and, in
some cases, necessary if the Bright Line represented ``safe'' levels of
contamination. As explained above, however, the Bright Line serves no
such purpose. It merely identifies which of two regulatory schemes
would apply to certain contaminated media. If site-specific factors
demonstrate that a decision that media no longer contain hazardous
wastes, would be inappropriate, then the overseeing agency has the
discretion not to make such a determination.
Some stakeholders have voiced concerns about the land use
assumptions that were used to set the Bright Line. The SSLs used
residential land use assumptions; therefore, residential land use
assumptions form the basis for the proposed Bright Line for soils. EPA
recognizes that the residential land use assumptions that underlie the
ingestion and inhalation exposure pathways used for today's Bright Line
values for soil may be inappropriate for managing risks at many sites
that would be subject to these HWIR-media regulations. However, since
the purpose of using risk assessment to develop the Bright Line is to
differentiate between the relative risks of constituents, and not to
establish the risks posed at specific sites, either residential or
industrial assumptions would have been equally appropriate. Since the
Agency's residential risk assessment methodology is more developed than
the industrial methodology, the Agency chose to use residential
assumptions for developing the Bright Line. The Bright Line for ground
water and surface water does not include assumptions about land use.
(See discussion above).
Request for comment. EPA solicits comments on the approaches used
to develop today's proposed Bright Lines. The Agency also requests
comment on the alternatives described above, as well
[[Page 18801]]
as any other possible approaches to developing the Bright Line.
In addition, EPA requests comments on whether it is necessary to
have a Bright Line at all. If there were no Bright Line, all media
would be eligible for contained-in decisions by the overseeing agency
on a site-specific basis. Alternatively, the ``unitary approach,''
discussed in section VI of this preamble, would eliminate the Bright
Line, and instead would exempt all cleanup wastes managed under a RMP
from Subtitle C requirements.
Technical methodology. As discussed above, the technical
methodologies used in calculating Bright Line concentrations for soil
ingestion and inhalation are those that were used to develop ``soil
screening levels'' for contaminated sites (59 FR 67706, December 30,
1994). In the proposed soil screening level guidance, values for the
soil-to-ground water pathway would generally be calculated with data
derived from site-specific factors and conditions, although generic
values for this pathway would be presented in situations where site-
specific data were unavailable. These technical methods and formulae
are available for review in the docket for this rulemaking, and in the
docket for the soil screening level proposal since they support both
rules.
EPA requests comments on the methods, formulae, and technical
underpinnings used for this rulemaking. Comments could include
information on particular constituents that could change proposed
Bright Line concentrations, information that may be used to determine
Bright Line numbers for constituents that currently do not have Bright
Line numbers. Commenters should keep in mind that the Agency's
objective is to provide regulatory relief by encouraging contaminated
media with a lower degree of risk to exit from Subtitle C regulation--
provided that adequate safeguards exist to protect human health and the
environment.
EPA has often found it necessary to propose sets of risk-based
numbers to address contaminated media, for example; Subpart S action
levels, (55 FR 30798, July 27, 1990), Superfund Soil Screening Levels
(see below), and today's proposed rule. Since the Agency's
understanding of risk assessment and the science surrounding risk based
numbers is constantly developing, EPA has realized that almost as soon
as risk-based numbers are published, they can become outdated. As a
very current example, today EPA is proposing Bright Line concentrations
based, in part, on the Superfund Soil Screening Levels (EPA/9355.4-
14FS, EPA/540/R-94/101 PB95-963529 (December 1994)). After today's
proposed Bright Line concentrations were calculated, but before this
proposal was published, some of the technical inputs used to calculate
the Superfund Soil Screening levels were adjusted in response to public
comments (e.g., volatilization factors, cancer slope factors, etc.).
EPA did not have time to recalculate the Bright Line concentration
before publishing them.
In response to this problem, EPA requests comment on alternatives
to keep the Bright Line concentrations up-to-date with the most current
Agency risk information and policies (e.g., adjustments to the Soil
Screening levels,12 changes in reference doses or cancer slope
factors in the IRIS or HEAST databases). For purposes of comment on
this proposal, EPA will update the Bright Line calculations and place
them in the docket for this rule.
---------------------------------------------------------------------------
\12\ The Soil Screening Guidance has addressed this problem by
publishing the methodology as the guidance itself, and only
providing the actual concentrations as examples in the appendix to
the guidance.
---------------------------------------------------------------------------
EPA believes it might be appropriate, instead of promulgating
actual Bright Line concentrations in the final rule, to promulgate the
methodology that could be used to develop constituent-specific
concentrations, in Appendix A to this rule, and to provide guidance on
appropriate sources for needed underlying risk-based information. EPA
believes it might then be appropriate for States to update their lists
of Bright Line concentrations on a regular basis, such as every six
months, to remain current with developments in risk information. As an
alternative, EPA believes it may be appropriate for States and/or EPA
to calculate new Bright Line concentrations for each new RMP at the
time it is proposed for public comment. In any case, the Bright Line
concentrations being used under a RMP must be stated in the RMP, and
available during public comment on the RMP. The Agency requests comment
on these alternatives, and any other suggestions for keeping Bright
Line concentrations up-to-date.
The Agency also recognizes the problems of trying to comply with a
``moving target.'' A cleanup could be completed or underway using a
certain set of Bright Line concentrations that could then change. EPA
believes it might be appropriate to protect those past and on-going
cleanup operations from the requirement to change course mid-way, or to
revisit completed remediation waste management under a RMP which used
outdated Bright Line concentrations. In the Superfund program,
requirements that are revised or newly promulgated after the ROD is
signed must be attained only when EPA determines that these
requirements are ARARs and that they must be met to ensure that the
remedy is protective (40 CFR 300.430(f)(1)(ii)(1)). Another alternative
could be a shield such as is provided for RCRA permits in 40 CFR 270.4,
which could specify that compliance with a RMP would equal compliance
with RCRA. EPA requests comments on this protection issue, and how best
to achieve it.
Relationship of the HWIR-media Bright Line to the HWIR-waste exit
levels. As described earlier in this preamble (in section (IV)(C)) the
objectives for the HWIR-waste exit levels and the HWIR-media Bright
Line are different. The HWIR-waste exit levels are intended to identify
levels of hazardous constituents that would pose no significant threat
to human health or the environment regardless of how the waste was
managed after it exited Subtitle C jurisdiction. The HWIR-media Bright
Line levels are simply intended to distinguish between (1) contaminated
media that are eligible to exit Subtitle C because it is likely that
they can be managed safely under cleanup authorities outside of
Subtitle C, and (2) media that contain so much contamination that
Subtitle C management is warranted. Because of these different
objectives, EPA developed the two proposals using different
methodologies. For the soil Bright Line, HWIR-media used a calculation
based on ingestion and inhalation of soil at 10-3 cancer risk, and
a hazard index of 10 for non-carcinogens. For the non-wastewater HWIR-
waste exit level (which is most readily comparable to the soil Bright
Line), EPA used an analysis that evaluates exposures from multiple
pathways to identify those pathways that may result in a 10-6
cancer risk and hazard index of 1 for non-carcinogens. EPA then
selected the most limiting pathway, (most conservative), as the exit
criteria. EPA believed that the HWIR-waste levels would be more
conservative than the HWIR-media concentrations. However, upon a recent
comparison of the two sets of numbers, some HWIR-waste exit levels are
at higher concentrations (less conservative) than the HWIR-media Bright
Line concentrations. In the comparison of those concentrations, EPA
determined that for about 27% of the HWIR-media Bright Line
concentrations of chemical constituents for soil, the HWIR-waste exit
levels for non-wastewater were higher.
A similar result was found when EPA compared the HWIR-media
[[Page 18802]]
groundwater/surface water Bright Line concentrations to the HWIR-waste
wastewater exit levels. In that case, EPA used direct ingestion of
groundwater resulting in a cancer risk of 10-3 and hazard index of
10 for non-carcinogens to calculate the HWIR-media Bright Line. For the
HWIR-waste wastewater exit level, EPA again analyzed multiple pathways
to identify those that would result in a cancer risk of 10-6 and a
hazard index of 1 for non-carcinogens and then selected the most
limiting pathway as the exit criteria. For approximately 20% of the
HWIR-media Bright Line concentrations for groundwater/surface water the
HWIR-waste concentrations for wastewater were higher.
One of the practical concerns that arises from this difference in
concentrations is this: if contaminated media is below the HWIR-waste
exit levels, then that media is eligible for exit under that rulemaking
just like any other hazardous waste. Therefore, if the HWIR-media rule
specified that media at concentrations below the HWIR-waste exit levels
were still ``above the Bright Line'' and not eligible for a contained-
in determination, the two rules would be inconsistent. EPA recognizes
that this inconsistency must be addressed before promulgation of these
two final rules, and requests comments on how to resolve this issue. A
preliminary description of the primary differences in the methodologies
follows.
One of the most significant differences between the HWIR-waste and
the HWIR-media methodologies is that the HWIR-waste methodology was
designed to calculate an acceptable concentration at which as-generated
waste and treatment residuals could exit the Subtitle C system. A part
of that methodology assumed that exited wastes might be managed in such
a way as to contaminate soils and groundwater, and calculated the
potential risk to receptors from the contaminated soil or groundwater.
Therefore, the HWIR-waste analysis models fate and transport between
the original waste and the contaminated media, assuming some loss of
concentration due to many factors, such as: partitioning of
constituents to air, soil, and water; losses of contaminant mass
through biodegradation; bioaccumulation through the food chain; and
volatilization, hydrolysis, and dispersion of contaminants during
transport. The HWIR-media methodology begins at the point where soils
and groundwater are already contaminated. Therefore, the HWIR-media
Bright Line did not incorporate fate and transport considerations to
calculate the Bright Line concentrations, but assumed the receptor was
in direct contact with the contaminated media.
Specific comparison of soil Bright Line to non-wastewater exit
levels. If contaminated soil were managed under the HWIR-waste
proposal, the soil would be subject to the exit criteria for non-
wastewaters. That is why EPA compared the soil Bright Line to the non-
wastewaters exit level. For this analysis, the HWIR-media Bright Line
for soil based on ingestion or inhalation was compared with the exit
criterion for non-wastewater identified as the most limiting pathway
(e.g., soil ingestion, fish ingestion) in the HWIR-waste proposal.
Thus, the analysis was not necessarily a comparison of exit criteria
and Bright Lines for similar exposure pathways.
The analysis indicated that for 27 of the HWIR-media Bright Line
constituent concentrations for soil, the proposed Bright Line
concentration was lower than the exit criterion for HWIR-wastes for
non-wastewater. Of these constituents, six of the lower proposed Bright
Line concentrations are lower because the HWIR-media number was
intentionally ``capped'' at 10,000 parts per million. EPA decided to
propose a 10,000 ppm cap, equivalent to 1% of the volume of the
contaminated media, (as discussed above) because EPA believes that it
is reasonable to classify media as highly contaminated if 1% of the
volume of media is contaminated with a particular constituent.
Therefore capping the Bright Line at 10,000 ppm is consistent with the
intention that the Bright Line distinguish between highly contaminated
and less contaminated media. The HWIR-waste proposal did not propose to
cap the exit levels because it was not intended to differentiate wastes
based on higher vs. lower concentration, but instead to differentiate
based on risk factors.
For 12 of the 27 constituents, HWIR-media Bright Lines are
established at soil saturation limits (Csat) that are less than the
corresponding HWIR-waste exit level. EPA believes it is sound science
for a rule establishing soil concentrations to compare the
concentrations developed through the inhalation and ingestion risk
scenarios to the actual concentration that could physically saturate
the soil. If the Csat was lower than the concentrations from the
inhalation or ingestion scenarios, EPA set the Bright Line
concentration at the Csat. The HWIR-waste proposal (since it is
proposed for as generated wastes, not soils) did not propose to cap the
exit levels at the soil saturation limit.
For the other nine of the 27 constituents, differences in the
results can be attributed to several factors related to the underlying
assumptions of the methodologies used to calculate the criteria.13
These include the fate and transport differences discussed above, and:
---------------------------------------------------------------------------
\13\ If the HWIR-media proposed Bright Line concentrations were
updated to reflect the updated Soil Screening levels, as discussed
above, two of these nine remaining constituents would have higher
HWIR-media Bright Line concentrations than HWIR-waste exit levels.
--Receptors. Although many of the exposure assumptions (e.g., exposure
duration, exposure frequency, ingestion rate) are common to the
analyses, there are still significant differences in the location of
the receptors that will affect the exit criteria. The HWIR-media Bright
Lines are based on an exposure scenario in which a resident lives
directly on the contaminated media and ingests contaminated soil or
inhales particulate and volatile emissions. The HWIR-waste exit levels
consider several exposure scenarios; however, none are directly
comparable to the HWIR-media exposure scenario. These exposure
scenarios include an off-site resident, an adult off-site resident, a
child off-site resident, an adult and child on-site 10 years after site
closure, and an on-site worker.
--Sources. The HWIR-media Bright Lines for soil ingestion and
inhalation exposure pathways are based solely on contaminated soils and
assume that the soil is an infinite source. The HWIR-waste non-
groundwater non-wastewater exposure pathways consider three sources:
land application units, waste piles, and ash monofills. Waste piles and
ash monofills are assumed to be infinite sources; however, the land
application units are assumed to be finite sources. This assumption may
result in higher (less conservative) exit criteria under HWIR-waste.
A comparison of the toxicity benchmarks indicates that the HWIR-
media Bright Lines and the HWIR-waste exit levels generally start with
the same toxicity benchmark (all but three chemicals for oral ingestion
and all but four chemicals for inhalation use the same toxicity
benchmarks). Thus, the apparent discrepancies in the criteria can be
attributed to the significant differences in the fate and transport
modeling of the chemicals in the HWIR-process waste analysis, the
receptors evaluated, and assumptions related to the sources (as
described above).
[[Page 18803]]
Specific comparison of Groundwater/Surface Water Bright Line to
wastewater exit levels. If contaminated groundwater were managed under
the HWIR-waste proposal, the groundwater would be subject to the exit
criteria for wastewaters. That is why EPA compared the groundwater/
surface water Bright Line to the wastewaters exit level. For this
analysis, the HWIR-media Bright Line for groundwater/surface water
based on ingestion of groundwater was compared with two options for the
exit criterion for wastewater for the HWIR-waste proposal, one based on
toxicity benchmarks and one based on toxicity benchmarks and MCLs.
The analysis indicated that 38 constituents had higher proposed
HWIR-waste exit criteria than proposed HWIR-media Bright Line
concentrations.14 For one of these 38 constituent, only the MCL
option for the HWIR-waste exit level was higher. For four of the 38
constituents, only the toxicity benchmark only option for the HWIR-
waste exit level was higher. None of these 38 constituents were
affected by the HWIR-media 10,000 ppm cap, and there is not a
saturation limit cap on the HWIR-media groundwater/surface water Bright
Line.
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\14\ If the HWIR-media proposed Bright Line concentrations were
updated to reflect current updated risk information, as discussed
above, two of these 38 constituents would have higher HWIR-media
Bright Line concentrations than HWIR-waste exit levels.
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Similar to the comparison of the HWIR-media soil Bright Line to the
HWIR-waste non-wastewater exit levels, the HWIR-media groundwater/
surface water Bright Line and the HWIR-waste wastewater exit levels use
different methodologies, and therefore produce different results.
Again, a key difference between the two sets of concentrations is the
use of fate and transport modeling. The HWIR-waste proposal assumes
some loss through fate and transport, whereas the HWIR-media
methodology assumes direct ingestion of the contaminated groundwater
(more details on the two methodologies can be found in the dockets for
the two proposed rules).
Request for comments. Because of the above comparisons, EPA has
determined that for some constituents, because the HWIR-media
methodology was more conservative than the HWIR-waste methodology, that
conservatism outweighed the fact that the HWIR-media risk target
(10-3 for limited pathways) was less conservative than the HWIR-
waste risk target (10-6 for multiple pathways). Therefore some of
the HWIR-waste exit levels, which were intended to be more conservative
overall than the HWIR-media Bright Line, are set at higher
concentrations. As described above, EPA recognizes that these
discrepancies must be resolved before promulgation of the two proposed
rules. For further detail on the methodologies used to develop the
HWIR-media Bright Line, Soil Screening Levels and the HWIR-waste exit
levels, see the docket for the two proposed HWIR rules. EPA requests
comments on how to resolve these issues.
B. Other Requirements Applicable to Management of Hazardous
Contaminated Media
1. Applicability of Other Requirements--Sec. 269.10
The purpose of today's proposed rule would be to modify the
identification, permitting, management, treatment, and disposal
requirements for contaminated media. It is not intended to replace the
entire scope of Subtitle C requirements as they relate to media. For
that reason, many existing Subtitle C requirements would continue to
apply to remedial actions conducted in accordance with this Part.
Specifically, 40 CFR Parts 262-267 and 270 would continue to apply when
complying with this Part, except as specifically replaced by the
provisions of this Part. In addition, when treating media subject to
LDRs according to the treatment standards in Sec. 269.30, the following
provisions of Part 268 would continue to apply` Secs. 268.2-268.7
(definitions, dilution prohibition, surface impoundment treatment
variance, case-by-case extensions, no migration petitions, and waste
analysis and recordkeeping), Sec. 268.44 (treatment variances), and
Sec. 268.50 (prohibition on storage). Again, the Agency does not intend
to recreate all of the Subtitle C requirements, but in this case only
replace certain requirements themselves as they relate to hazardous
contaminated media.
2. Intentional Contamination of Media Prohibited--Sec. 269.11
EPA recognizes that promulgation of standards for hazardous
contaminated media that are less onerous than the requirements for
hazardous waste may create incentives for mixing waste with soil or
other media to render the waste subject to these provisions. The Agency
expressly proposes to prohibit this behavior (Sec. 269.11).
EPA recognizes, however, that sometimes it is necessary to have
some mixing of contaminated media for technical purposes to facilitate
cleanup. That mixing is not the prohibited mixing referred to here.
This prohibition specifically includes the intent to avoid regulation.
If the intent of the mixing is to better comply with the regulations
that would apply to the wastes prior to mixing, then it would not be
prohibited under this clause. The Agency requests comments on whether
further safeguards, in addition to this proposed provision and the
civil and criminal enforcement authorities of RCRA, are needed to
ensure that no attempts are made to mix wastes with media to take
advantage of the reduced requirements of the proposed HWIR-media rule.
3. Interstate Movement of Contaminated Media--Sec. 269.12
EPA recognizes that media that would be exempted under today's
rule, but that previously would have been managed as hazardous wastes,
would be transported to and through States that were not the overseeing
agency for the remedial action that generated those media. Therefore,
the Agency designed the interstate movement requirements of proposed
Sec. 269.12 to ensure that receiving (consignment) States--or States
through which media would travel--could approve the designation that
the media is not hazardous before they accepted the media for transport
or disposal.
The default in these requirements is that the media must be managed
as Subtitle C waste in the receiving or transporting State if the
receiving or transporting State has not been notified of the
designation as non-hazardous, or if the receiving or transporting State
does not agree with the determination. Receiving and transporting
States would also have to be authorized for this Part in order to
approve these decisions in their States. If a receiving or transporting
State agrees to the redesignation, then the media may be managed as
non-hazardous.
EPA requests comments on these interstate movement requirements,
specifically on any implementation concerns with this approach, and any
suggestions to ease implementation. Several people have expressed
concern about notifying the States through which the media would be
transported, but not ultimately disposed. The Agency believes that it
may be appropriate to limit notification requirements to the States
ultimately receiving the media. EPA also feels that it would be
necessary to limit the designation of media as non-hazardous only to
States that are authorized for this Part. The Agency believes that this
would be necessary because the authority to make these contained-in
decisions is an integral element for authorization for this Part. EPA
believes
[[Page 18804]]
that it may be appropriate to allow States not authorized for this Part
to simply approve another authorized States' decision that the media
are not hazardous. The Agency requests comments on these issues.
C. Treatment Requirements
1. Overview of the Land Disposal Restrictions
The Hazardous and Solid Waste Amendments (HSWA) to the Resource
Conservation and Recovery Act (RCRA), enacted on November 8, 1984,
largely prohibit land disposal of hazardous wastes.15 Once a
hazardous waste is prohibited from land disposal, the statute provides
only two options: comply with a specified treatment standard prior to
land disposal, or dispose of the waste in a unit that has been found to
satisfy the statutory no migration test (referred to as a ``no
migration'' unit) (RCRA section 3004(m)). Storage of waste prohibited
from land disposal is also prohibited, unless the storage is solely for
the purpose of accumulating the quantities of hazardous waste that are
necessary to facilitate proper recovery, treatment, or disposal (RCRA
section 3004(j)). For purposes of the land disposal restrictions, land
disposal includes any placement of hazardous waste into a landfill,
surface impoundment, waste pile, injection well, land treatment
facility, salt dome formation, salt bed formation, or underground mine
or cave (hereafter referred to as ``placement'') (RCRA section
3004(k)).
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\15\ The LDR requirements are not cleanup requirements; LDR
treatment standards do not trigger removal, exhumation, or other
management of contaminated environmental media; however, other
applicable requirements, such as State or Federal cleanup
requirements, could trigger such actions which, in turn, could
trigger LDR requirements.
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Not all management of hazardous waste constitutes placement for
purposes of the LDRs. EPA has interpreted ``placement'' to include
putting hazardous waste into a land-based, moving hazardous waste from
one land-based unit to another, and removing hazardous waste from the
land, managing it in a separate unit, and re-placing it in the same (or
a different) land-based. Placement does not occur when waste is
consolidated within a land-based unit, when it is treated in situ, or
when it is left in place (e.g., capped). (See 55 FR 8666, 8758-8760,
(March 8, 1990) and ``Determining When Land Disposal Restrictions
(LDRs) Are Applicable to CERCLA Response Actions,'' EPA, OSWER
Directive 9347.3-O5FS, (July 1989)).
Congress directed EPA to establish treatment standards for all
hazardous wastes restricted from land disposal at the same time as the
land disposal prohibitions take effect. According to the statute,
treatment standards established by EPA must substantially diminish the
toxicity of the waste or substantially reduce the likelihood of
migration of hazardous constituents from the waste so that short- and
long-term threats to human health and the environment are minimized
(RCRA section 3004(m)(1)). In Hazardous Waste Treatment Council v. EPA,
886 F.2d 355 (D.C. Dir. 1989), Cert. Denied 111 S.Ct 139 (1990), the
court held that section 3004(m) allows both technology- and risk-based
treatment standards, provided that technology-based standards are not
established ``beyond the point at which there is not a `threat' to
human health or the environment.'' id. at 362 (i.e., beyond the point
at which threats to human health and the environment are minimized) (59
FR 47980, 47986, September 19, 1994). Hazardous wastes that have been
treated to meet the applicable treatment standard may be land disposed
in land disposal facilities that meet the requirements of RCRA Subtitle
C (RCRA section 3004(m)(2)).
Congress established a schedule for promulgation of land disposal
restrictions and treatment standards for all hazardous wastes listed
and identified as of November 8, 1984 (the effective date of the HSWA
amendments) so that treatment standards would be in effect, and land
disposal of all hazardous waste that did not comply with the standards
would be prohibited, by May 8, 1990 (RCRA section 3004(g)). For some
classes of hazardous wastes, Congress established separate schedules:
for certain hazardous wastes identified by the State of California
(``California List''), Congress directed EPA to establish treatment
standards and prohibit land disposal by July 8, 1987; for hazardous
wastes containing solvents and dioxins, Congress directed the Agency to
establish treatment standards and prohibit land disposal by November 8,
1986. (RCRA sections 3004(d) and (e)). For wastes listed or identified
as hazardous after the HSWA amendments (referred to as ``newly
identified wastes''), EPA must establish treatment standards and land
disposal prohibitions within six months of the effective date of the
listing or identification (RCRA section 3004(g)(4)). Under current
regulations, environmental media containing hazardous waste are
prohibited from land disposal unless they are treated to meet the
treatment standards promulgated for the original hazardous waste in
question (i.e., the same treatment standard the contaminating hazardous
waste would have to meet if it were newly generated). (See 58 FR 48092,
48123, (September 14, 1993)).
The land disposal restrictions generally attach to hazardous
wastes, or environmental media containing hazardous wastes, when they
are first generated. Once these restrictions attach, the standards
promulgated pursuant to section 3004(m) must be met before the wastes
(or environmental media containing the wastes) can be placed into any
land disposal unit other than a no migration unit. In cases involving
characteristic wastes, the D.C. Circuit held that even elimination of
the property that caused EPA to identify wastes as hazardous in the
first instance (e.g., treating characteristic wastes so they no longer
exhibit a hazardous characteristic) does not automatically eliminate
the duty to achieve compliance with the land disposal treatment
standards. (Chemical Waste Management v. U.S. EPA, 976 F.2d 2,22 (D.C.
Dir. 1992), cert. denied, 113 S.Ct 1961 (1993).) The Agency has
examined the logic of the Chemical Waste decision and concluded that
the same logic could arguably be applied in the remediation context;
i.e., a determination that environmental media once subject to LDR
standards no longer contain hazardous wastes may not automatically
eliminate LDR requirements. While the Chemical Waste court did not
specifically address the remediation context, the Agency believes it
may be prudent to follow the logic the court applied to characteristic
wastes, and has developed today's proposal accordingly.
It is important to note that the land disposal restrictions apply
only to hazardous (or, in some cases, formerly hazardous) wastes and
only to placement of hazardous wastes after the effective date of the
applicable land disposal prohibition--generally May 8, 1990 for wastes
listed or identified at the time of the 1984 amendments, or six months
after the effective date of the listing or identification for newly
identified wastes.16 In other words, the duty to comply with LDRs
has already attached to hazardous wastes land disposed (``placed'')
after the applicable effective dates, but not to hazardous wastes
disposed prior to the applicable effective dates. Accordingly,
hazardous
[[Page 18805]]
wastes disposed prior to the effective date of the applicable
prohibition only become subject to the LDRs if they are removed from
the land and placed into a land disposal unit after the effective date
of the applicable prohibition. (See 53 FR 31138, 31148, (August 17,
1988) and Chemical Waste Management v. US EPA, 86 9 F.2d 1526, 1536
(D.C. Cir. 1989)), ``treatment or disposal of [hazardous waste] will be
subject to the [LDR] regulation only if that treatment or disposal
occurs after the promulgation of applicable treatment standards.'')
Similarly, environmental media contaminated by hazardous wastes placed
before the effective dates of the applicable land disposal restrictions
does not become subject to the LDRs unless they are removed from the
land and placed into a land disposal unit after the effective dates of
the applicable restrictions.
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\16\ A detailed listing of when the land disposal prohibitions
took effect for individual hazardous wastes can be found in 40 CFR
Part 268, Appendix VII.
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The land disposal restrictions do not attach to environmental media
contaminated by hazardous wastes when the wastes were placed before the
effective dates of the applicable land disposal prohibitions. If these
media are determined not to contain hazardous wastes before they are
removed from the land, then they can be managed as non-hazardous
contaminated media and they're not subject to land disposal
restrictions. For example, soil contaminated by acetone land disposed
(``placed'') in 1986 (prior to the effective date of the land disposal
prohibition for acetone) and, while still in the land, determined not
to contain hazardous waste, is not subject to the land disposal
restrictions.17 This is consistent with the Agency's approach in
the HWIR-waste rule, where it indicates that LDRs do not attach to
wastes that are not hazardous at the time they are first generated (60
FR 66344, December 21, 1995).
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\17\ Similarly, soil contaminated by acetone placed in a solid
waste management unit in 1986, but leaked into the soil at some
point after 1986, is not subject to the land disposal restrictions
provided that, while the soil is still in the land, the Director
determines it does not contain hazardous wastes. LDRs would not
attach because, in this case, it is the initial placement of
hazardous waste that determines whether there is a duty to comply
with LDRs.
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Since application of the land disposal restrictions is limited, in
order to determine if a given environmental medium must comply with
LDRs one must know the origin of the material contaminating the medium
(i.e., hazardous waste or not hazardous waste), the date(s) the
material was placed (i.e., before or after the effective date of the
applicable land disposal prohibition), and whether or not the medium
still contains hazardous waste (i.e., contained-in decision or not).
Facility owner/operators should make a good faith effort to
determine whether media were contaminated by hazardous wastes and
ascertain the dates of placement. The Agency believes that by using
available site- and waste-specific information such as manifests,
vouchers, bills of lading, sales and inventory records, storage
records, sampling and analysis reports, accident reports, site
investigation reports, spill reports, inspection reports and logs, and
enforcement orders and permits, facility owner/operators would
typically be able to make these determinations. However, as discussed
earlier in the preamble of today's proposal, if information is not
available or inconclusive, facility owner/operators may generally
assume that the material contaminating the media were not hazardous
wastes. Similarly, if environmental media were determined to be
contaminated by hazardous waste, but if information on the dates of
placement is unavailable or inconclusive, facility owner/operators may,
in most cases assume the wastes were placed before the effective date.
The Agency believes that, in general, it is reasonable to assume
that environmental media do not contain hazardous wastes placed after
the effective dates of the applicable land disposal prohibitions when
information on the dates of placement is unavailable or inconclusive,
in part, because current regulations, in effect since the early 1980's,
require generators of hazardous waste to keep detailed records of the
amounts of hazardous waste they generate. These records document
whether the waste meets land disposal treatment standards and list the
dates and locations of the waste's ultimate disposition. With these
records, the Agency should be able to determine if environmental media
were contaminated by hazardous wastes and if they would be subject to
the land disposal restrictions.
In addition, EPA believes that the majority of environmental media
contaminated by hazardous wastes were contaminated prior to the
effective dates of the applicable land disposal restrictions.
Generally, the contamination of environmental media by hazardous waste
after the effective date of the applicable land disposal restriction
would involve a violation of the LDRs, subject to substantial fines and
penalties, including criminal sanctions. The common exception would be
one-time spills of hazardous waste or hazardous materials. In these
cases, the Agency believes that, typically, independent reporting and
record keeping requirements (e.g., CERCLA sections 102 and 103
reporting requirements or state spill reporting requirements) coupled
with ordinary ``good housekeeping'' procedures, result in records that
will allow the Agency to determine the nature of the spilled material,
and the date (or a close approximation of the date) of the spill. The
Agency requests comments on this approach and on any other assumptions,
records, or standards of evaluation that would ensure that facility
owner/operators would identify any contaminated media subject to land
disposal restrictions properly and completely.
Information on contained-in decisions should be immediately
available since, generally, these determinations are made by a
regulatory agency on a site-specific basis and careful records are
kept.
2. Treatment Requirements--Sec. 269.30
a. Approach to treatment requirements and recommendations of the
FACA Committee. RCRA section 3004(m) requires that treatment standards
for wastes restricted from land disposal, ``* * * specify those levels
or methods of treatment, if any, which substantially diminish the
toxicity of the waste or substantially reduce the likelihood of
migration of hazardous constituents from the waste so that short-term
and long-term threats to human health and the environment are
minimized.'' A recurring debate through EPA's development of the land
disposal restriction program has been whether treatment standards
should be technology-based (i.e., based on performance of a treatment
technology) or risk-based (i.e., based on assessment of risks to human
health and the environment that are posed by the wastes). The Agency
believes that both approaches are allowed. It has long been recognized
that Congress did not directly address the questions of how to set
treatment standards in the language of section 3004(m).\18\ In
addition, Congress did not specifically address whether the LDR
treatment standards for newly generated wastes and remediation wastes
must be identical; the structure of RCRA's LDR provisions suggests that
Congress believed that remediation waste may merit special
consideration. (See, RCRA sections 3004(d)(3) and 3004(e)(3), which
[[Page 18806]]
provided a separate schedule for establishing LDR prohibitions and
treatment standards for most remediation wastes).
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\18\ See, e.g., 51 FR 40572, 40578 (November 7, 1986); Hazardous
Waste Treatment Council v. US EPA, 886 F.2d 355, 361-3 D.C. Cir.
1989); 55 FR 6640, 6641 (February 26, 1990). The legislative history
of section 3004(m) is likewise inconclusive. See discussion of the
legislative history at 55 FR 6640, 6641-6642 (February 26,
1990)''[a]t a minimum, the [legislative history shows] that Congress
did not provide clear guidance on the meaning of `minimize
threats'.''
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EPA's preference would be to establish generic nationwide risk-
based treatment standards that represent minimized threats to human
health and the environment in the short- and long-term. However, the
difficulties involved in establishing risk-based standards for
contaminated media on a generic nationwide basis are formidable \19\,
due, in large part, to the wide variety of site-specific physical and
chemical compositions encountered during cleanups in the field. In the
absence of the information necessary to develop generic, risk-based
standards for contaminated media, the Agency is proposing generic
standards using a technology-based approach and, for lower-risk media
subject to the LDRs, provisions for site-specific, risk-based minimize
threat determinations. (See discussion of Media Treatment Variances,
below).
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\19\ The Agency has proposed a rule that would define hazardous
constituent concentrations below which certain wastes will no longer
be listed or identified as ``hazardous'' under RCRA Subtitle C. (60
FR 66344-469 (December 21, 1995)). In some instances, these
concentrations may also serve as risk-based LDR treatment standards.
The Agency can set risk-based LDR treatment standards for certain
as-generated hazardous wastes (and not for hazardous contaminated
environmental media) because the Agency has significantly more
information on as-generated wastes streams and as-generated waste
streams are typically more homogeneous that contaminated
environmental media waste streams.
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Technology-based standards achieve the objective of minimizing
threats by eliminating as much of the uncertainty associated with
disposal of hazardous waste as possible. For this reason, technology-
based standards were upheld as legally permissible so long as they are
not established ``beyond the point at which there is not a ``threat''
to human health or the environment.'' (See, Hazardous Waste Treatment
Council v. EPA, 886 F.2d 355, 361-64 (D.C. Cir. 1989),cert. denied 111
S.Ct. 139 (1990), page 362; see also (55 FR 6640, 6642, February 26,
1990)).
Today's proposed regulations would modify the land disposal
restriction treatment standards for contaminated media so that they
reflect appropriate treatment technologies and strategies for
environmental media, and the site-specific nature of cleanup activities
more accurately. When non-hazardous contaminated media is still subject
to LDRs (e.g., because hazardous wastes contaminating the media were
land disposed (``placed'') after the effective date of the applicable
LDR prohibition, or because the media were determined to still contain
hazardous wastes when removed from the land), today's proposal would
establish, as a policy matter, a presumption for site-specific LDR
treatment variances. This approach is consistent with the
recommendations of the FACA Committee, which agreed that the land
disposal treatment standards for ``as-generated'' wastes are not
generally appropriate for contaminated environmental media, and that
higher-risk media should be subject to generic national standards while
requirements for lower-risk media should be determined on a site-
specific basis in the context of agency-overseen cleanups.
b. Proposed treatment standards for contaminated media (1)
Applicability. Hazardous contaminated media are environmental media
that contain hazardous waste or that exhibit a hazardous characteristic
and have not been determined, pursuant to Sec. 269.4, to no longer
contain hazardous wastes. Non-hazardous contaminated media are
environmental media that have been determined, pursuant to Sec. 269.4,
not to contain hazardous wastes. Media contaminated by hazardous wastes
placed after the effective date of the applicable land disposal
prohibition must be treated to meet LDR treatment standards before it
is placed into a land disposal unit. In this case, the land disposal
restrictions attach because hazardous waste was originally land
disposed--placed--after the effective date of the applicable land
disposal prohibition and the standards of section 3004(m) were never
met. Likewise, hazardous contaminated media removed from the land after
the effective date of the applicable land disposal restriction and
placed into a land disposal unit, must be treated to meet LDR treatment
standards. The land disposal restrictions attach in this case because,
although the hazardous waste was not restricted from land disposal when
first disposed, it has subsequently been prohibited from land disposal
and, therefore, if removed from the land after the effective date of
the applicable prohibition, cannot be placed into a land disposal unit
until it meets the standards of RCRA section 3004(m). As discussed
earlier in today's preamble, once the land disposal restrictions
attach, the standards of section 3004(m) must be met before the wastes
(or environmental media) may be placed into any land disposal unit
other than a no migration unit, elimination of the property that cause
the waste to be hazardous (e.g., deciding, pursuant to Sec. 269.4, that
a given environmental medium no longer contains hazardous waste) does
not automatically mean the wastes have complied with RCRA section
3004(m). 20
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\20\ Of course, if the environmental media is determined not to
contain hazardous wastes before it is removed from the land, the
land disposal restrictions and duty to comply with RCRA section
3004(m) do no attach, because no placement of hazardous waste will
occur after the effective date of the applicable land disposal
prohibition. In addition, if contaminated environmental media are
determined not to contain solid or hazardous waste (i.e., it's just
media) it would not be subject to any RCRA Subtitle C standard,
including LDRs.
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(2) Today's proposal. In today's proposed rule, EPA would, (1)
establish generic, technology-based treatment standards for higher-risk
contaminated media subject to the LDRs (i.e., hazardous contaminated
media) and, (2) for lower-risk contaminated media subject to the LDRs
(i.e., non-hazardous contaminated media), establish, as a policy
matter, a presumption for site-specific LDR treatment variances. The
treatment standards proposed today would only apply when media subject
to the LDRs are managed under a RMP. For hazardous contaminated media
other than soils (e.g., groundwater and sediments), the proposed rule
would require treatment to meet the LDR treatment standards applicable
to the hazardous wastes contained in the media. (See Sec. 269.30(f)).
For example, ground water contaminated with a commercial chemical
product such as acetone (hazardous waste number U002) would have to be
treated to the standards specified in Part 268 for acetone.
For hazardous contaminated soils, the proposed rule would establish
alternative soil-specific LDR standards. Proposed Sec. 269.30(e) would
require that, generally, soils be treated so that the concentrations of
constituents subject to treatment are reduced by 90 percent with
treatment capped at 10 times the Universal Treatment Standard. If
treatment of a given constituent to meet the 90 percent reduction
standard would result in reducing constituent concentrations to less
than 10 times the UTS, treatment beyond 10 times the UTS would not be
required. For non-metal contaminants, total concentrations of
constituents subject to treatment would have to be reduced by at least
90 percent from their initial concentrations (or 10 times the Universal
Treatment Standard, whichever is higher). For metal contaminants, the
90 percent standard would apply either to the total concentrations of
metals (for treatment technologies that remove metal contaminants), or
to the concentrations of the metals in leachate as measured using the
TCLP (for solidification-type treatment technologies). In addition to
[[Page 18807]]
treating for constituents subject to treatment, for soil that is
hazardous because it exhibits the characteristics of ignitability,
corrosivity, or reactivity, the Agency proposes to require treatment
until the soil no longer exhibits the characteristic.
(3) Justification for soil-specific LDRs. EPA believes that it is
appropriate to set soil-specific LDR standards because the soil matrix
often poses distinct treatment issues. Specifically, the Part 268
Universal Treatment Standards that would otherwise apply to soil
subject to the LDRs are based, in large part, on incineration for
organics and high temperature metal recovery (HTMR) for metals.
Although incineration and HTMR are highly effective technologies, their
selection was based on treatment of concentrated, as-generated
hazardous wastes, and they are not generally appropriate for the large
volumes of low and moderately contaminated soil typically encountered
during site remediation. Thus, the Agency believes that technology-
based standards for contaminated soil should not rely exclusively on
incineration or HTMR and that, in many cases, innovative (i.e., non-
combustion) technologies will be more appropriate (See 55 FR 8666,
8760-8761, (March 8, 1990) and 58 FR 48092, 48125, (September 14,
1993)). While the Agency believes that soil is, in most cases, most
appropriately treated using non-combustion technologies, data gathered
for the Phase II Soil proposal do not demonstrate conclusively that the
Universal Treatment Standards can be met using technologies other than
combustion; therefore, EPA is proposing the alternative soil treatment
standards discussed today at levels somewhat above UTS levels.
(4) Application of soil-specific LDRs to other media. EPA
considered applying the alternative 90% or 10 times the UTS treatment
standard to hazardous contaminated media other than soils, but decided
not to because there is little information available to the Agency to
indicate that the LDR treatment standards that currently apply to these
other media are inappropriate, or otherwise pose the same type of
technical challenges as they do for soils. In individual cases where
the existing UTS standards is inappropriate, the Director would be able
to use the proposed Media Treatment Variance procedures outlined below
to set alternative LDR treatment standards for these other media.
(5) Request for comments. EPA requests comments and data on the LDR
treatment standards that would be established by today's proposed
regulations. The Agency is especially interested in comments which
document that the current LDR treatment standards are appropriate or
inappropriate for hazardous contaminated media other than soils (e.g.,
groundwater, sediments), or are otherwise compatible or incompatible
with the remediation context. The Agency is also interested in comments
which document whether the proposed LDR treatment standards for
contaminated soils are achievable using technologies appropriate at
remediation sites.
c. Detailed analysis of proposed treatment standards for hazardous
contaminated soils. EPA first proposed LDR treatment standards
specific to hazardous contaminated soil in the LDR Phase II Rule (58 FR
48092, September 14, 1993). In the Phase II Rule, EPA requested comment
on three options for soil treatment standards: Option 1 was 90%
treatment provided treatment achieved concentrations at least equal to
or less than one order of magnitude above the Universal Treatment
Standard (90% and 10 times UTS); Option 2 was treatment to one order of
magnitude above the Universal Treatment Standard (10 times UTS); and
Option 3 was 90% treatment with no ceiling value (90%). Commenters on
the Phase II proposal strongly supported the 10 times UTS treatment
standard,21 indicating that they thought it would be easy to
implement, provide for appropriate levels of protection, and be
achievable using a range of treatment technologies. Available data
supports the achievability of the 10 times UTS standard, 91% of the
data pairs in EPA's Soil Treatability Database were treated to 10 times
UTS using non-combustion technologies such as biological treatment,
thermal desorption, and dechlorination. Commenters also supported
various combinations of the 90% reduction and 10 times UTS standards,
including the 90% or 10 times UTS approach proposed today.
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\21\ Of the 34 comments received, 14 supported 10 times the UTS;
6 supported 90% and 10 times the UTS; 4 supported 90%; 6 supported
other combinations of 90% and 10 times the UTS, including the
combination proposed today; and 4 supported other options.
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Ultimately, EPA has chosen to propose the approach it believes will
provide the most flexibility to overseeing agencies and facility owner/
operators. Providing for flexibility in the management requirements for
contaminated media is one of EPA's goals for the HWIR-media rulemaking.
While EPA agrees with some of the comments on the Phase II proposal and
believes that many facility owner/operators will be able to achieve the
10 times UTS treatment standard using non-combustion soil treatment
technologies, the Agency does not have information to show that 10
times UTS will be necessary to fulfill the requirements of RCRA section
3004(m) at all sites. In addition, the data pairs in EPA's Soil
Treatment Database are primarily from bench and pilot schedule studies
and may not reflect the ``potentially problematic soil matrices and
varying contaminant levels'' likely to be encountered in the field (58
FR 48092, 48124, September 14, 1993). Finally, the FACA committee
agreed on a 90% treatment standard for contaminated media with
constituent concentrations above Bright Line concentrations. Therefore,
the Agency believes it is appropriate to also allow for 90% reduction.
As discussed below, the Agency believes compliance with either standard
fulfills the requirements of RCRA section 3004(m). EPA intends to use
the treatability data it receives pursuant to the requirements in
proposed Sec. 269.41(c)(9) and Sec. 269.42(b) to fill in gaps in the
data on which the proposed standards are based, and intends to amend
the standards if appropriate.
EPA acknowledges that because the 90% reduction standard does not
guarantee any particular final constituent concentrations, it may
increase the chance, in individual cases, that soil treatment standards
will not be appropriate to the site or might not meet the statutory
standard. To address this concern, the Agency has built a ``safety
net'' into the proposed soil treatment standards in today's
regulations, by allowing the Director to specify more stringent soil
treatment standards that are based on site-specific factors when he/she
finds that the 90% or 10 times the UTS treatment standard does not
``minimize threats'' (e.g., where initial concentrations of hazardous
constituents in the media are abnormally high). (See Sec. 269.32.)
In developing the LDR treatment standards proposed today for
hazardous contaminated soils and the standards discussed in the Phase
II proposal, the Agency did not use its normal approach to setting
technology-based LDR standards. In setting LDR treatment standards, the
Agency generally examines available treatment data and sets a standard
based on the ``best'' of the demonstrated available technologies
(``BDAT''). The Agency typically finds a technology to be
``demonstrated'' when the data show that it can operate at the required
levels, and ``available'' when, among other things, it is commercially
available and provides ``substantial''
[[Page 18808]]
treatment. The Agency's selection of the ``best'' of these technologies
is generally based on a statistical evaluation of the treatability
data. (See 51 FR 40572, 40588-40593 (Nov. 7, 1986).) Instead of this
standard approach, the Agency selected options that could be achieved
by available technologies and that would result in the
``substantia[l]'' reductions mandated by RCRA section 3004(m) to
develop the standards proposed today.
The Agency believes that RCRA allows this alternative approach to
implementing section 3004(m). Specifically, RCRA Sec. 3004(m) does not
require the use of ``BDAT'' to implement a technology-based approach.
In fact, as the D.C. Circuit has specifically recognized, section
3004(m) need not be read ``as mandating the use of the best
demonstrated available technologies (BDAT) in all situations.''
Chemical Waste Management, Inc. v. US EPA, 976 F.2d 2, 15 (D.C. Cir.
1992). Instead, any substantial treatment method that ``minimizes''
threats according to the statutory objectives is permissible.
Id.22 In other instances the Agency chose a BDAT approach because
it believed that applying BDAT standards best served the Congressional
objectives when the LDR requirements for as-generated wastes were
enacted (55 FR 6640-6643, February 26, 1990).
---------------------------------------------------------------------------
\22\ The legislative history of section 3004(m) supports the
reading that the legislative preference expressed for ``BDAT'' could
be achieved using something less than only the ``best''
technologies:
The requisite levels of [sic] methods of treatment established
by the Agency should be the best that has [sic] been demonstrated to
be achievable. This does not require a BAT-type process as under the
Clean Air or Clean Water Acts which contemplates technology-forcing
standards. The intent here is to require utilization of available
technology in lieu of continued land disposal without prior
treatment. It is not intended that every waste receive repetitive or
ultimate levels of [sic] methods of treatment * * *
130 Cong. Rec. S. 9178 (daily ed. July 25, 1984) (statement of
Sen. Chaffee) [emphasis added].
---------------------------------------------------------------------------
The policy considerations that argue for BDAT as the basis for
technology-based standards for as-generated wastes do not, however,
support a BDAT approach in the remediation context. EPA has long
maintained that setting BDAT standards for newly generated wastes best
fulfilled the Congressional goal of reducing the amount of wastes
ultimately disposed on the land (55 FR 6640, 6642, February 26, 1990);
RCRA section 1003(6). While this may be true for newly generated waste
not yet disposed, such standards do not further this goal in the
remediation context. As discussed in section (II)(A) of this preamble,
current standards can create disincentives to excavation, and more
protective management of wastes already disposed of on the land,
because excavation of contaminated media for the purposes of treatment
may trigger LDRs. Site decision makers are often faced with the choice
of either capping or treating the wastes in place (to avoid LDRs), or
excavating and triggering the costly BDAT treatment standards. This
situation creates an incentive to leave wastes in place, a result
obviously not contemplated by Congress in enacting LDRs. For a fuller
discussion of this issue, see 54 FR 41566-41569, (Oct. 10, 1989). EPA
has justified BDAT standards based in part on the fact that imposing
them would create an incentive to generate less of the affected waste
in the first instance. (See Steel Manufacturers Association v. EPA, 27
F.3d 642, 649 (D.C. Cir. 1994) (upholding the LDR standard, in part,
because it minimized the amount of waste that would be generated)). In
the remediation context the waste is already in existence, therefore,
such ``waste minimization'' is not an issue. Typically, the threats to
human health and the environment that the land disposal restrictions
were intended to address are better controlled through excavation and
management of remedial wastes and such action should therefore be
encouraged, not discouraged.
Accordingly, EPA believes that it is appropriate to set LDR
standards for soil subject to the LDRs based on something less than the
``best'' demonstrated available technologies, so long as those
standards encourage the development of more permanent remedies and
result in the ``substantia[l]'' reductions contemplated by section
3004(m). The Agency believes that the 90% or 10 times the UTS standard
proposed today will, by providing flexibility to cleanup decision
makers, encourage the development of more permanent remedies. The
Agency also believes that the 90% or 10 times the UTS standard
represents a level of treatment that will, in general,
``substantially'' diminish the toxicity of the wastes or substantially
reduce the likelihood of migration of hazardous constituents from the
wastes so that short- and long-term threats to human health and the
environment are minimized. Among other things, the Agency looks to the
percentage of constituents removed, destroyed, or immobilized when
deciding whether treatment is ``substantial'' (51 FR 40572, 40589,
November 7, 1986). On this basis, the Agency believes that the 90%
component is clearly substantial. Since EPA has previously determined
that the UTS standards result in ``substantial'' treatment, the Agency
believes that a standard one order of magnitude higher should be
considered substantial when addressing matrices that can be
significantly more difficult to treat.
d. Application of proposed treatment standards to media which no
longer contain hazardous waste. In some cases, contaminated media with
constituent concentrations below the Bright Line will be determined to
no longer contain hazardous waste, but may remain subject to the land
disposal treatment requirements. As discussed earlier in today's
preamble, EPA's analysis in this proposal is based on the logic that
once the land disposal restrictions attach to hazardous wastes (or
environmental media that contain hazardous wastes) the standards of
section 3004(m) must be met before the wastes can be land disposed in
any unit other than a no migration unit. Once attached, the obligation
to meet land disposal restriction treatment standards continues even if
a waste is no longer considered hazardous under RCRA Subtitle C (e.g.,
by eliminating a hazardous characteristic, or, in the case of an
environmental medium, by making a contained-in decision 23).
---------------------------------------------------------------------------
\23\ Of course, as discussed earlier in today's preamble, if
soils were contaminated by hazardous waste prior to the effective
date of the applicable land disposal prohibition and a contained-in
decision was made prior to removal of the contaminated material from
the land, the land disposal restrictions and the duty to treat to
LDR treatment standards would not attach in the first instance.
Since the Agency believes most environmental media contaminated by
hazardous waste were contaminated prior to the effective date of the
applicable land disposal restrictions, the Agency believes instances
where contaminated environmental media is determined to no longer
contain hazardous waste but remains subject to the LDR requirements
will be few.
---------------------------------------------------------------------------
In these cases, EPA believes that it will generally be appropriate
to use the additional opportunities for Media Treatment Variances
proposed in Sec. 269.31 to establish site-specific LDR treatment
requirements based on risk. While the Agency is proposing generic
technology-based treatment standards for higher-risk environmental
media (i.e., hazardous contaminated media); EPA continues to believe
that LDR treatment standards for lower-risk contaminated media (i.e.,
media determined not to contain hazardous wastes) are best addressed on
a site-specific basis. This belief was supported by the FACA Committee,
which said that lower-risk media should be exempt from the land
disposal restrictions, and addressed on a site-specific basis in the
context of agency-overseen cleanups.
Media Treatment Variances are discussed in more detail in section
(V)(C)(7) of today's preamble. Most of these variances are also
available for higher-risk media, the difference is a
[[Page 18809]]
matter of assumptions. The Agency believes that lower-risk media that
remain subject to the
FR Doc. 96-10096 Requirements for Management of Hazardous Contaminated Media (HWIR-Media)
LDRs (i.e., media determined to no longer contain
hazardous waste) should be addressed on a site-specific basis in the
context of an Agency overseen cleanup and, because they present less
risk, should, as a policy matter, be afforded additional flexibility.
Therefore, treatment variances are presumed to be appropriate and are
encouraged for these media. It is presumed that hazardous contaminated
media will be treated to meet generic, nationwide treatment standards,
although a variance may be appropriate in individual circumstances
based on site-specific conditions.
e. More stringent treatment standards--Proposed Sec. 269.32. As
discussed above, because of the great diversity among cleanup sites--in
terms of the contaminated media's properties; the exposure potential;
size; topography; climate, and many other factors--EPA believes that it
is appropriate to provide for situations where meeting the proposed
treatment standards for hazardous contaminated media may be
insufficient to meet RCRA section 3004(m)'s requirements that ``* * *
threats to human health and the environment are minimized.'' For
example, a site might be located in a particularly sensitive
environmental setting (e.g., over a shallow aquifer used for drinking
water), where large volumes of contaminated soil containing high
concentrations of highly-mobile, toxic constituents will be excavated,
treated, and disposed on-site. In order to minimize the potential for
releases from the on-site landfill over the long-term, it could be
appropriate to require some type of treatment that is more stringent
than the standards proposed in Sec. 269.30. While EPA believes these
situations would be rare, it is sensible to explicitly give overseeing
Agencies the authority to impose more stringent LDR treatment
requirements when they believe them necessary in order to meet the
intent of RCRA section 3004(m). Because these decisions would be made
on the record during the RMP approval process, they would be subject to
notice and comment. Any final Agency decision to impose more stringent
standards would be subject to challenge during the RMP review and
approval process.
f. Cross-media transfer. Paragraph (h) of proposed Sec. 269.30
specifies that the technologies employed in meeting any treatment
standard for contaminated media must be designed and operated in a
manner that would control the transfer of contaminants to other media.
This general standard is intended to eliminate from consideration any
technology, such as uncontrolled air stripping, that would remove
contamination from one medium by simply contaminating another. For a
discussion of the Agency's tentative position concerning at what point
cross-media transfers of constituents from land-based units could
result in an invalidation of that unit as a treatment unit, see 60 FR
43654, 43656, (August 22, 1995). In addition, in conjunction with this
rulemaking effort, EPA is developing guidance on controlling cross-
media transfer of contaminants for a wide range of soil treatment
technologies. The Agency plans to issue this guidance prior to or in
conjunction with the final HWIR-media rulemaking. Further information
on this guidance may be obtained from Subijoy Dutta in the Office of
Solid Waste at (703) 308-8608.
3. Constituents Subject to Treatment
EPA is proposing that hazardous contaminated media be treated for
each UTS constituent that originated from the contaminating hazardous
waste, and that is subject to the treatment standard for such hazardous
waste as it was generated (hereafter ``constituents subject to
treatment'') (Sec. 269.30(g)). For contaminated media other than soil
(e.g., groundwater, sediments), treatment would be required for each
constituent subject to treatment with concentrations above the UTS. For
contaminated soil, treatment would be required for each constituent
subject to treatment with concentrations greater than 10 times the UTS.
EPA believes it is appropriate to link LDR treatment requirements
to the contaminating hazardous waste because, under the contained-in
principle, environmental media only become subject to hazardous waste
management requirements because they contain hazardous waste. The duty
to treat, therefore, should only attach to those constituents for which
treatment would have been required if the wastes were not contained in
environmental media.
EPA is proposing to apply the definition of constituents subject to
treatment to environmental media contaminated by both listed and
characteristic wastes. Under the proposed rule, if environmental media
were contaminated only by listed hazardous wastes (or mixtures of
listed hazardous wastes and solid wastes) treatment would be required
solely for Part 268 ``regulated hazardous constituents'' in these
wastes (identified in the table entitled ``Treatment Standards for
Hazardous Wastes'' at 40 CFR 268.40). If environmental media exhibit a
characteristic, treatment would be required for the characteristic
constituent (in the case of TC wastes) or the characteristic property
(in the case of ignitable, reactive, or corrosive wastes), and for all
constituents listed in Sec. 268.48 ``Table UTS--Universal Treatment
Standards'' present in the media. As stated above, this approach, in
essence, incorporates the rule for characteristic wastes that requires
treatment of all ``underlying hazardous constituents''; underlying
hazardous constituents are those constituents for which the Agency has
promulgated Universal Treatment Standards (except for zinc and
vanadium) that can reasonably be expected to be present in the wastes,
and that are present in concentrations exceeding the UTS levels (or,
for contaminated soil, ten times the UTS level). (See 40 CFR 268.2(i);
40 CFR 268.40(e); 60 FR 11702, (March 2, 1995); and discussion of
underlying hazardous constituents at (59 FR 47980, 48004, (September
19, 1994)).
The Agency requests comments on the scope of the constituents that
would be subject to treatment under today's proposed approach. For
example, should background concentrations of naturally occurring
hazardous constituents be explicitly evaluated when identifying
constituents that are subject to treatment? Would it be more
appropriate, as was suggested in the Phase II proposal (58 FR 48092,
48124, September 14, 1993), for the Agency to make all constituents
present (even in media containing listed wastes) above UTS levels (or
for contaminated soil, 10 times UTS levels) subject to treatment? Are
there other ways to address the scope of constituents subject to
treatment?
The Agency notes that ``Bright Line constituents'' and
``constituents subject to treatment'' are two different sets of
constituents. Under today's proposal, the Bright Line does not define
the applicability of LDR treatment requirements or the constituents
subject to treatment in media subject to the LDRs. Contaminated
environmental media that contains one or more hazardous constituents at
concentrations greater than Bright Line concentrations would be
ineligible for a contained-in decision and would become subject to the
requirements for hazardous contaminated media, including LDR treatment
requirements. Once subject to LDR treatment requirements, contaminated
media would have to be treated to the generic, technology-based
treatment standards for all constituents subject to treatment,
including those below the Bright Line.
[[Page 18810]]
EPA requests comments on this approach. For example, should EPA allow
site-specific minimized threat Media Treatment Variances (discussed
below) for constituents subject to treatment that have initial
concentrations below Bright Line concentrations and require compliance
with the generic treatment standards only for constituents subject to
treatment that have initial concentrations above Bright Line
concentrations? How would this affect overseeing agencies that choose
to set contained-in levels at concentrations more stringent than the
Bright Line?
4. Nonanalyzable Constituents
Some contaminated environmental media may contain constituents that
do not have analytical methods. For media containing multiple organic
constituents, some of which are analyzable and some of which are
nonanalyzable, the Agency believes that treating the analyzable
constituents to meet treatment standards should provide adequate
treatment of any nonanalyzable constituents. As a general principle,
the destruction of an analyzable organic surrogate constituent is an
effective indicator for destruction of nonanalyzable organic
constituents. The Agency is therefore not proposing treatment standards
for nonanalyzable organic constituents found in hazardous contaminated
media. The Agency requests comment on this approach as well as data on
the degree to which non-analyzable organic constituents are treated
when environmental media are treated for other organic contaminants.
If, based on public comments, EPA should choose to regulate these
constituents, the Agency could require treatment by specific
technologies known to achieve adequate treatment of the constituent.
In cases where contaminated environmental media are contaminated
solely with nonanalyzable constituents, (i.e, media contaminated only
by nonanalyzable U or P wastes), EPA proposes requiring treatment by
the methods specified in Sec. 268.42 for those U or P wastes. For a
list of U and P wastes, see 40 CFR 261.33. The Agency solicits comments
on whether other technologies should be allowed for treatment of such
media.
5. Review of Treatment Results--Sec. 269.33
Once treatment under an approved RMP has been completed, the
proposal would require the overseeing agency to review the treatment
results and determine whether the treatment standard was achieved. If
the treatment standard were not achieved, EPA proposes that the
facility owner/operator would be required to: submit a new RMP that
includes plans and procedures designed to re-treat the material, or
submit an application for a Media Treatment Variance (if a variance is
appropriate). The Director, at his/her discretion, could require that
the owner/operator continue to treat the materials until the treatment
standard is met, or grant a Media Treatment Variance.
6. Management of Treatment Residuals--Sec. 269.34
Depending upon the type of treatment system used, residuals from
the treatment of media under Part 269 could either be media (hazardous
contaminated or otherwise) or wastes (hazardous or otherwise) that have
been separated from the media being treated. Under the proposed rule,
waste residuals would be managed according to applicable RCRA Subtitle
C or Subtitle D requirements. Media residuals would remain subject to
Part 269. This is consistent with the Agency's approach to residuals
from treating hazardous debris. (See 57 FR 37194, 37240, (August 18,
1992)). If media residuals from treatment of contaminated media meet
the treatment standards, they can be disposed of in a Subtitle C land
disposal facility. If those media have met their treatment standards
and also no longer contain hazardous wastes, they are no longer subject
to Subtitle C requirements and can be used, re-used, or returned to the
land absent additional Subtitle C control. Under proposed Sec. 269.33,
media residuals that do not meet the treatment standards would be re-
treated or, if appropriate, granted a Media Treatment Variance.
The Agency requests comments on this approach and on whether
regulatory standards for management of non-media treatment residuals
are necessary under this Part. For example, should residuals from
treating media using stabilization technologies (i.e., stabilized
media) be considered waste residuals and subject to the applicable
subtitle C or D standard? Should the Agency address, through
regulations or guidance, the methods used to determine whether
treatment residuals are media or non-media? For example, should the
Agency use the approach it promulgated for treatment residuals from
treatment of hazardous debris and require that media and non-media
treatment residuals be separated using simple physical or mechanical
means?
Some treatment methods may distinctly separate hazardous wastes
from contaminated media (e.g., carbon adsorption for groundwater). In
these cases, each residual can be measured to certify compliance with
the applicable land disposal restriction treatment standards. For other
treatment technologies that may not as distinctly separate media from
non-media residuals, it may be more difficult to determine which LDR
treatment standards should be applied. For example, some treatment
methods (e.g., combustion technologies) may result in destruction of
the media treated, leaving only non-media residuals. In these cases,
should the residuals be subject to the treatment standards for
contaminating hazardous wastes (e.g., the Universal Treatment Standard)
or the treatment standards for media (e.g., the 90% or 10 times the UTS
alternative soil treatment standard proposed today).
7. Media Treatment Variances--Sec. 269.31
This section provides a mechanism which the Director can use to
establish alternative treatment standards for contaminated media
subject to the land disposal restrictions. The Agency is proposing to
allow variances from generic treatment standards in three situations:
when the generic standard is technically impracticable, when the
generic standard is inappropriate, or when the Director can
demonstrate, based on site-specific circumstances, that lower levels of
treatment ``minimize threats'' in accordance with the standard of RCRA
section 3004(m). Each situation is discussed in more detail below.
EPA encourages use of these procedures to establish site-specific
LDR treatment standards for media that have been determined to no
longer contain hazardous wastes but remain subject to LDRs. In
addition, although EPA believes the generic, nationwide technology-
based treatment standards for hazardous contaminated media should be
appropriate and achievable for the majority of media managed at cleanup
sites, the Agency acknowledges that because of the wide range of soils
and contaminants that may be encountered in the field, there may be
situations where such standards would be inappropriate.
Paragraphs (a) and (b) of Sec. 269.31 would list the situations
under which the Agency believes a Media Treatment Variance would be
appropriate. Paragraph (c) of Sec. 269.31 would provide the overseeing
agency with the authority to request any information from the owner/
operator that may be necessary to determine whether a treatment
variance should be approved, and paragraph (d) provides that an
alternative treatment standard approved according to this
[[Page 18811]]
section may be expressed numerically, or as a specified technology.
In order to ensure that the Media Treatment Variance provisions are
not used simply to seek approval of an inferior technology or a poorly
operated treatment system, Sec. 269.31(e) would specify that any
technology used to meet an alternative standard would have to be
operated in a manner that optimizes efficiency, and result in
substantial reductions in the toxicity or mobility of the media's
contaminants. For the reasons discussed above, any such technology
would be required to control the cross-media transfer of constituents.
The Media Treatment Variances in today's proposed rule are
analogous to the existing site-specific treatment variances in Part
268. (See Sec. 268.44(h)). EPA considered using Sec. 268.44(h) for
contaminated media, but decided to propose media-specific variance
provisions for three reasons. First, for clarity, EPA has made a
conscious effort to develop the HWIR-media rules to operate as a
complete system and minimize cross-references to other portions of the
regulations. Second, EPA believes that including Media Treatment
Variances will make it easier and less disruptive for states to adopt
and implement the final HWIR-media rules. Third, EPA believes that it
is valuable to propose regulations clarifying the circumstances under
which media treatment variances are appropriate, especially in the case
of the variance for a site-specific minimize threat determination. The
Agency requests comments on the need for the specific Media Treatment
Variances proposed today and the relationship of the proposed Media
Treatment Variances to the existing site-specific variance procedures
in Sec. 268.44(h).
a. The generic technology-based treatment standard is technically
impractical (Sec. 269.31(a)(1)). In some cases, an owner/operator may
be able to demonstrate to the overseeing agency that achieving the
generic LDR standard is technically impracticable. While EPA believes
it will typically be possible to achieve the general standards using
common remedial technologies (e.g., biological treatment, soil washing,
chemical oxidation/precipitation, activated carbon, air stripping), the
Agency recognizes that, in some cases, these technologies may not be
able to meet the 90% or 10 times the UTS standard. For example,
comparison of leachate concentrations from some metal-bearing wastes
before and after stabilization or solidification may not indicate a 90%
reduction (and may not be at concentrations below 10 times the UTS).
b. The generic technology-based treatment standard is inappropriate
(Sec. 269.31(a)(2)). Many site-specific circumstances could cause the
generic treatment standard to be inappropriate. In some cases, the
media to be treated may differ significantly from the material upon
which the generic treatment standard was based. For example, the
Universal Treatment Standards for water were based on treatment of
industrial wastewater. In some situations facility owner/operators
could be treating groundwater that poses unique treatability issues,
and may merit an alternative treatment standard (e.g., groundwater that
is highly saline or has high concentrations of other naturally
occurring contaminants such as iron). In another example, treatment of
soils contaminated by heavy chain polynuclear aromatics (PNAs) with
non-combustion strategies may not be sufficient to meet the 10 times
the UTS standard.
In other cases, the generic treatment standard will be
inappropriate because use of an alternative treatment standard would
result in a net environmental benefit. For example, use of innovative
treatment technology might result in substantial reductions in
constituent concentrations in the near-term, while use of a more
traditional treatment technology might eventually achieve the generic
treatment standard but take twice as much time. For a discussion of
EPA's position that a treatment standard may be deemed inappropriate
when imposing it ``could result in a net environmental detriment.''
(See 59 FR 44684, 44687, (August 30, 1994)).
c. Threats can be minimized with less treatment than the generic
technology-based standard would require (Sec. 269.31(b)). As discussed
earlier, EPA prefers to base land disposal restriction treatment
requirements on risk. While information is not available to establish
generic risk-based treatment standards for contaminated environmental
media, EPA believes that adequate information may be available to
establish site-specific, risk-based treatment standards. Using this
variance, the Director would be able to make a site-specific, risk-
based determination of Sec. 3004(m) treatment requirements. In other
words, the regulations would allow the Director to determine on a site-
specific basis, ``levels or methods of treatment, if any, which
substantially diminish the toxicity of the waste or substantially
reduce the likelihood of migration of hazardous constituents from the
waste so that short-term and long-term threats to human health and the
environment are minimized'' (RCRA section 3004(m)).
EPA is proposing this site-specific approach to ensure appropriate
levels of treatment, and to provide some relief from the generic LDR
treatment standards where an examination of actual site circumstances
demonstrates that the requirements of section 3004(m) may be met with
lesser treatment than that required by the generic, technology-based
standards proposed today. The Agency has long recognized that section
3004(m) could be implemented on a risk basis, and that the risk
approach often would require less treatment than the BDAT approach (51
FR 1602, 1611, (January 14, 1986); 55 FR 6640, 6642, (February 26,
1990); and Hazardous Waste Treatment Council v. US EPA, 886 F.2d 355,
361 (D.C. Cir. 1989) (upholding the Agency's view that although
permissible, risk-based treatment standards are not compelled by
section 3004(m)).
The Agency believes that a great number and variety of site-
specific factors would influence minimize threat determinations;
therefore, it is not proposing generic decision criteria. In general,
however, EPA believes that the decision factors for contained-in
decisions discussed earlier would be appropriate. This is similar to
the approach in the LDR Phase II proposal, in which the Agency
expressed the view that when a regulatory authority determined that
media no longer contain hazardous waste, the regulatory authority could
also make a site-specific determination that threats had been
``minimized'' (58 FR 48092, 48128, September 14, 1993).
The Agency further believes the site-specific minimize threat
variance would be particularly appropriate in situations when the
Director would be able to determine that constituent concentrations
greater than the proposed soil treatment standards minimize threats at
a site because not providing such relief would result in a less
protective remedy. Often, when excavation of environmental media would
trigger the duty to comply with LDRs, the LDR treatment standards serve
as a disincentive to excavation and treatment in the remediation
context. In proposing the NCP, EPA discussed the effect that LDRs can
have on CERCLA decision making:
For wastes potentially subject to the LDRs, essentially only two
options will generally be available--treatment to BDAT standards, or
containment (including containment of wastes treated in situ). The
range of treatment technologies between these two extremes that may
be practical and cost-effective, and yield
[[Page 18812]]
highly protective environmental results, would not be available to
decision makers. In some cases, given only these two remedial
choices, decision makers may be pressured to select containment
remedies that offer less permanence than treatment options that
might otherwise be selected if the LDRs were not applicable (54 FR
41566, 41568, (October 10, 1989)).
EPA has experienced the same effect in the RCRA closure program. (See
54 FR 41566, 41568, (October 10, 1989)). ``EPA's experience with the
RCRA closure program has shown that owner/operators, faced with the
choice of using BDAT treatment, or no treatment or in situ treatment,
have a strong incentive to choose the less costly option * * *, which
may actually result in less effective long-term performance for many
closed units'').
While Congress did not address how to determine when threats are
minimized in the remediation context, it obviously did not intend LDRs
to act as a barrier to aggressive cleanup when enacting RCRA section
3004(m). Therefore, the Agency believes that in cases presenting the
dilemma outlined above, and where imposing a lesser standard would
encourage more protective management of the media, it would be
reasonable for the Director to decide that, because overall risks at
the site would be significantly reduced, imposition of lesser LDR
treatment requirements would minimize threats at that site; therefore,
as a general rule, cleanup to health-based standards through
implementation of an approved remedy in the context of an agency-
overseen cleanup can be presumed to minimize threats even when the
remedy involves placement (or re-placement) of contaminated media which
does not meet the generic, technology-based LDR treatment standards.
The Agency notes that most Federal and State remedy selection criteria
and cleanup procedures include independent requirements or preferences
for treatment to ensure that remedies are protective over the long-
term, although such would not necessarily be to the generic,
technology-based LDR treatment standards.
Consistent with the recommendations of the FACA Committee, which
agreed that higher-risk contaminated media should be subject to
generic, nationwide standards, while lower-risk contaminated media
should be addressed on a site-specific basis in the context of agency
overseen cleanups, the Agency is proposing to limit the availability of
the site-specific minimized threats variance to hazardous (or formerly
hazardous) contaminated environmental media with all constituent
concentrations below the Bright Line. For media that does not have a
Bright Line (i.e., sediments) program implementors should consider the
Bright Line risk levels and principles when determining if a site-
specific minimize threat variance is appropriate. Despite this
limitation, the Agency believes that the site-specific, minimize threat
determination will provide significant and appropriate relief since
Agency experience has shown that the dilemma of choosing between
capping and/or treating media in place or excavating and triggering
inflexible LDR treatment standards is much more likely to present
itself with less contaminated media (such as media in which all
constituents are below the Bright Line) (54 FR 41566, 41567, October
10, 1989). This is because an in situ option is much more likely to be
acceptable under a remedial authority where wastes are not highly
concentrated.
EPA recognizes that there may be concerns regarding the ability of
the overseeing agency to grant a treatment variance based on a site-
specific determination that threats are minimized. However, it should
be noted that these decisions would go through the same notice and
comment procedures as other substantive standards included in RMPs. Any
concerns with risk-based treatment standards identified in a particular
RMP could be raised during the comment period, and the overseeing
agency would be required to address them when finalizing the RMP.
EPA seeks comments on its approach to site-specific, minimize
threat variances. For example, should EPA propose more specific
standards for making minimize threat determinations? Should the Agency
allow site-specific minimize threat variances for any constituent
subject to treatment that has initial concentrations that are less than
Bright Line concentrations even though other constituents in the same
medium might have concentrations that are greater than Bright Line
concentrations? Should EPA allow site-specific, minimize threat
variances when constituent concentrations drop below Bright Line
concentrations even if the generic, technology-based LDR treatment
standards (i.e., 90% or 10 times the UTS) have not yet been achieved?
Should EPA allow site-specific, minimize threat variances for
constituents with initial concentrations that are greater than the
Bright Line?
EPA requests that commenters who support specific standards for
minimize threat determinations suggest standards for EPA consideration,
and address the application of these standards in the remediation
context. Commenters who support minimize threat determinations for
contaminated media with constituent concentrations above the Bright
Line should address the relationship of these determinations to
contained-in decisions (which, under today's proposed rule are not
allowed for contaminated media with constituent concentrations above
the Bright Line).
The Agency also requests comments on whether it should attempt to
provide explicit opportunities for site-specific minimize threat
determinations outside of the HWIR-media context (e.g., add appropriate
provisions for non-HWIR-media contaminated media to the current
treatment variance rules at Sec. 268.44(h))? If so, should these
determinations be limited to media with constituent concentrations
below the Bright Line?
8. Request for Comment on Other Options
Two of the Agency's stated policy objectives for the HWIR-media
rule are to develop requirements that are appropriate for contaminated
media and to remove administrative obstacles to expeditious cleanups
where possible. EPA has struggled with these objectives in the context
of LDR requirements. The applicability of land disposal treatment
requirements depends, in part, on whether contaminated environmental
media are determined to contain hazardous waste. Under today's proposed
rule, contaminated environmental media that contain hazardous waste,
are placed after the effective date of the applicable land disposal
prohibition, and have concentrations of hazardous constituents above
the Bright Line will always be subject to the LDRs because contained-in
decisions are not allowed for contaminated environmental media with
constituent concentrations above the Bright Line. For such contaminated
environmental media with constituent concentrations below the Bright
Line, overseeing agencies would have the discretion to make contained-
in decisions, as discussed in section (V)(A)(4)(a), above. Accordingly,
in some cases, the LDRs might apply to contaminated environmental media
with all constituent concentrations below the Bright Line (e.g., where
the duty to comply with LDRs attached to the contaminating waste prior
to the initial act of disposal), while in other cases they might not.
While the Agency believes that today's proposed LDR requirements
are consistent with the goals and objectives
[[Page 18813]]
of the HWIR-media rulemaking and would provide significant and
appropriate relief from the LDR treatment requirements for as-generated
wastes, it requests comments and suggestions that identify other
options for developing appropriate land disposal restriction standards
for contaminated media.
The Agency is especially interested in comments that address
environmental media with all constituent concentrations below the
Bright Line. For example, the HWIR FACA Committee expressed the view
that it would be appropriate, as a policy matter, to exempt
contaminated media with constituent concentrations below the Bright
Line from LDR treatment requirements when these media were subject to
agency-overseen cleanups. Comments are therefore invited on how the
Agency could attain this result consistent with the requirements of
section 3004(m). For example, would it be appropriate for EPA to define
contaminated soil and/or other contaminated environmental media (e.g.,
groundwater, sediments) as a separate LDR ``treatability group?''
Changes in treatability groups generally result when the properties of
a waste that affect treatment performance have changed enough that the
waste is no longer considered similar to those in its initial group.
Each change in a waste's treatability group constitutes a new point of
generation; if the waste is no longer considered ``hazardous'' at the
time of the change (e.g., through a contained-in decision), LDRs would
not attach even though the initial waste might have been subject to
LDRs prior to the change in treatability group (55 FR 22520, 22660-
22662, June 1, 1990). The Agency notes that the treatability group
approach could be Bright Line dependent (i.e., available only for
contaminated media with all constituent concentrations below the Bright
Line) or Bright Line independent (i.e., available for all contaminated
media regardless of constituent concentrations).
9. LDR Treatment Requirements for Non-HWIR-media Soils
In some cases, hazardous contaminated soils would not be subject to
the alternative LDR treatment requirements in today's proposal. This
will be the case in states that choose not to adopt the HWIR-media
rules and may also occur at sites where cleanup occurs without direct
agency approval (e.g., voluntary cleanup sites). The Phase II proposal
would have modified the LDR treatment standards for all hazardous soils
regardless of the presence of agency-oversight; however, under today's
proposal, the alternative LDR soil treatment standards would only be
available when applied by an overseeing agency through issuance of a
RMP.
Today's proposal would limit application of the alternative soil
treatment standards proposed today because they were developed, in
part, using the assumption that they would only be applied with agency-
oversight and, therefore, could be easily adjusted, either upward or
down, to account for site-specific conditions. Nonetheless, the Agency
requests comment on whether it would be appropriate to extend the 90%/
10 x UTS treatment standard proposed today to all hazardous
contaminated soils, instead of limiting them to soils managed under an
approved RMP. This would allow their use in States that do not seek
authorization for this rule, or by facility owner/operators who wish to
proceed with remedies ahead of formal agency approval of a RMP.
Alternatively, should the Agency adopt soil treatment standards
that are adjusted to account for the lack of State or Agency oversight
over how they are administered? For example, should the Agency
promulgate a 10 times the UTS only standard for non-HWIR-media
hazardous soils? This would account for the fact that the ``safety-
net'' provided by proposed Sec. 269.32, which would allow the Director
to impose more stringent treatment standards Director on a case-by-case
basis, would not be applicable in the non-HWIR-media situation. Would
some other combination of a greater percent reduction and lesser UTS
multiplier be more appropriate?
10. Issues Associated With Hazardous Debris
Earlier in the preamble for today's proposal, EPA requested comment
on whether the substantive requirements of today's proposed rules
should be applied to hazardous debris as defined in 40 CFR 268.2(h).
Hazardous debris are currently subject to a specific set of LDR
treatment standards, promulgated in the LDR Debris rule (57 FR 37194,
37221, August 18, 1992).24 In individual cases where the generic,
national LDR treatment standards are not appropriate or un-achievable
for certain hazardous debris, EPA and authorized states may grant site-
specific treatment variances using the procedures in 40 CFR 268.44(h).
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\24\ EPA is not now reopening the comment period on the LDR
Debris Rule.
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The LDR treatment standards for hazardous debris promulgated in the
LDR Debris Rule are generally expressed as generic, specified
technologies, rather than constituent concentrations. While EPA
believes that the technologies specified for debris treatment are
generally compatible with most types of remedial activities, the Agency
recognizes that applying different regulatory schemes at the same site
(one for media and one for debris) may unnecessarily complicate
cleanups and raise cleanup costs without a discernable environmental
benefit.25 In addition, the debris treatment technologies can be
problematic in some instances, especially when the standard of 0.6 cm
surface removal is applied to brick, cloth, concrete, paper, pavement,
rock or wood debris treated with high pressure steam or water sprays.
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\25\ BP Exploration Alaska Inc estimated that managing hazardous
debris in compliance with the existing 40 CFR 268.45 regulations,
rather than including hazardous debris in on-going cleanups on
similarly contaminated media, would cost $3,200-$6,000 a ton since
Debris Rule treatment technologies are rarely used in remote Alaska
areas.
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EPA requests comments on whether the current LDR treatment
standards for hazardous debris remain appropriate or whether hazardous
debris should, instead, be subject to treatment standards similar to
the standards in today's proposed rule for contaminated media, or
whether some combination of the standards would be most appropriate.
For example, EPA could allow the Director to impose either the generic
debris treatment technologies codified in the Hazardous Debris Rule or,
if appropriate, specify site-specific LDR treatment standards (either
as constituent concentrations or specified technologies) using the
proposed site-specific, minimize threat Media Treatment Variance. Since
under today's proposal, site-specific minimize threat Media Treatment
Variances are only available for contaminated media with constituent
concentrations less than Bright Line concentrations, EPA requests that
commenters who support site-specific, minimize threat variances for
debris address application of the Bright Line to debris. More
generally, EPA requests comments on whether the variances provided for
in 40 CFR 268.44(h) are sufficient to provide for appropriate
management of hazardous debris or whether the Media Treatment Variances
proposed today would be more appropriate.
While today's proposed rule does not include changes to the
existing LDR treatment standards and requirements for hazardous debris,
EPA could include new LDR treatment standards or requirements in
response to public comment. Issues associated with hazardous debris and
the possibility of
[[Page 18814]]
including debris in the final Part 269 regulations are also discussed
in sections (V)(A)(2) and (V)(A)(4)(b) of today's preamble.
D. Remediation Management Plans (RMPs)
1. General Requirements--Sec. 269.40
Today's proposed rule provides for considerable site-specific
decision making as to how contaminated media should be managed as part
of remedial actions. This is particularly so in the case of media that
are determined not to contain hazardous waste (on the condition that
there is compliance with a RMP that would address any hazards), and
thus would not be subject to any of the national, generic Subtitle C
management standards. Today's proposal would provide a new
administrative mechanism--RMPs--as the means for documenting, providing
for public review and comment, and enforcing these site-specific
requirements.
Under the proposal, a RMP would be required (1) whenever hazardous
contaminated media are managed according to Part 269, and (2) whenever
a contained-in determination is made for non-hazardous contaminated
media (i.e., contaminated media are determined by the Director to not
contain hazardous wastes), and (3) whenever non-hazardous contaminated
media are managed in accordance with site-specific management
requirements prescribed by the overseeing Agency. Thus, any management
of contaminated media that would need a permit according to
Sec. 270.1--if Part 269 did not apply--would require a RMP.
It should be understood that RMPs could also be used (if deemed
appropriate by the Director) as the procedural/administrative vehicle
for imposing management requirements, in addition to those required
under Part 269, for any hazardous cleanup wastes under Part 264, and as
requirements for management of non-hazardous cleanup wastes. The
following are examples of the types of management requirements that
could be imposed under a RMP, and the circumstances under which those
requirements could apply. When applicable, a RMP must include
requirements for management of:
1. Hazardous contaminated media at the media cleanup site, imposed
pursuant to Part 269;
2. Hazardous contaminated media at the media cleanup site, imposed
pursuant to applicable unit-specific provisions of Part 264 (e.g.,
standards for tanks, landfills, etc.);
3. Hazardous contaminated media at a permitted, off-site hazardous
waste management facility, imposed pursuant to the Part 269 LDR
treatment standards;
4. Other types of hazardous cleanup wastes (e.g., debris, sludges)
that are managed in compliance with applicable provisions of this
chapter;
5. Non-hazardous contaminated media (i.e., media that have been
determined by the Director to not contain hazardous wastes, in
accordance with Sec. 269.4), that are managed either at a media cleanup
site or elsewhere, in accordance with site-specific or other management
requirements imposed pursuant to any applicable State or Federal
management requirements, which do not require the presence of hazardous
waste; and/or
6. Other types of non-hazardous cleanup wastes that are generated
from a media cleanup site and managed either at the site or elsewhere,
in accordance with management requirements imposed pursuant to
applicable State or Federal regulations.
As explained above, RMPs would always be required whenever Part 269
requirements are implemented, except when the cleanup is conducted
under circumstances where a permit is not required, such as in CERCLA
responses. In the case of CERCLA on-site removal or remedial actions,
RMPs would not be required. Generally, however, a Record of Decision
(ROD), or other CERCLA decision document, would specify the
requirements for compliance with Part 269, if the remedy involved
management of contaminated media.
As mentioned already, the provisions of this rule would not waive
or replace otherwise applicable provisions of Subtitle C. For example,
if the cleanup will be taking place at an operating RCRA Treatment
Storage or Disposal Facility (TSDF),26 that TSDF would still need
a traditional RCRA permit for its ongoing operations. If that facility
wanted to conduct cleanup according to Part 269, the RCRA permit for
the site could serve as the RMP, or the facility could have both a RMP
and a RCRA permit. In addition, if hazardous waste management units are
to be employed during the remedial activities, such units would have to
be operated in compliance with the appropriate standards of 40 CFR Part
264 (except Subparts B and C, for general facility standards and
preparedness and prevention) for design; operation; closure and post-
closure; handling procedures; transportation, and inspection of units
or equipment.
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\26\ i.e., hazardous waste management activities apart from the
cleanup activities would require a RCRA permit. Although the part of
the site where the remediation was taking place could be considered
a ``media remediation site,'' the entire facility could not be
considered a ``clean up only'' site, and therefore would be subject
to applicable RCRA requirements, including permitting, and RCRA
Secs. 3004(u) and (v) facility, and beyond the facility boundary,
corrective action. (See definition of media remediation site in 40
CFR 269.3, and preamble section (V)(A)(3)).
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The Agency is proposing this approach because the requirements of
Subparts A and D-DD are appropriate to ensure safe, protective
operation of such units for hazardous contaminated media, just as they
are appropriate for new wastes. EPA is proposing not to require
compliance with parts B and C because those sections were designed for
long-term operating hazardous waste facilities, and not one-time
cleanup actions. However, EPA recognizes that other 40 CFR Part 264
standards may not be appropriate under certain site-specific
circumstances. EPA solicits comments on what other, if any, provisions
of 40 CFR Part 264 should not be applicable to management of hazardous
contaminated media at media cleanup sites.
The proposed requirements concerning RMPs (Subpart D) are the only
provisions of Part 269 that could be applied to management of all types
of hazardous cleanup wastes. EPA considered restricting RMPs to address
only management of media. Under such an option, however, other types of
cleanup wastes, such as debris and sludges, would require a permit--a
second authorizing document under the RCRA permit requirements of Part
270. The Agency does not propose to limit RMPs in this way, because
RMPs are intended to expedite permitting and accelerate cleanups for a
wide variety of sites, and because they can adequately address public
participation concerns. As explained in section II of this proposed
rule, the requirement to obtain RCRA permits for cleanups has often
frustrated desirable cleanup activities. Thus, limiting RMPs to
management of contaminated media would severely limit the relief that
this rule is intended to provide.
In addition, RMPs would be required only if cleanup wastes are
managed in such a way that requires a RCRA permit, or to document
contained-in decisions (that media do not contain hazardous waste), and
the management requirements for the non-hazardous contaminated media.
In many cases, hazardous cleanup wastes could be managed in such a way
that does not trigger the requirement for a RCRA permit. An example
would be a site where contaminated media are simply excavated and
transported off-site to a permitted facility for treatment or
[[Page 18815]]
disposal. Another example would be treatment or storage in units that
are exempt from permitting requirements, such as wastewater treatment
units, or less than 90-day treatment or storage in tanks or containers.
In summary, if absent proposed Part 269, a cleanup action did not
require a RCRA permit under Sec. 270.1, and a RMP is not needed to
document a contained-in decision, it would not need a RMP.
Under proposed Sec. 269.40(e), a RMP could be a ``stand alone''
document, or as might often be the case, a part of a more comprehensive
document prepared by the overseeing agency. An example of a
comprehensive document would be an enforcement order that explains the
overall remedy for a contaminated site. The order would specify the
requirements for management of hazardous cleanup wastes, and other
remedial requirements such as cleanup standards and source control
requirements. The order's media management requirements would not
necessarily have to be presented as a separate plan, so long as those
requirements were clearly specified to enable public review and
comment. On the other hand, an overseeing agency might prefer to issue
a RMP for a cleanup site, and use the RMP as the vehicle for specifying
other remedial requirements, in addition to those for waste management.
Proposed Sec. 269.40(c) provides that RMPs may constitute RCRA
permits for the purpose of satisfying permitting requirements under
RCRA section 3005(c). RMPs are designed to streamline the
implementation of remedial actions that need RCRA permits by requiring
less extensive review and comment procedures than are required for RCRA
permits. In addition, facility-wide corrective action requirements
would not generally apply to RMPs. (See preamble discussion of media
cleanup sites elsewhere in this proposed rule).
Proposed Sec. 269.40 (f) and (g) specify that approval of a RMP
would not convey any property rights, or any exclusive privilege of any
sort, and that approval of a RMP does not authorize any injury to
persons or property, or any invasion of other private rights, or any
infringement of State or local laws or regulations. These statements
were taken from RCRA permitting requirements. (See Sec. 270.4 (b) and
(c)). EPA believes that these statements should apply in the same
manner to RMPs as they do to RCRA permits.
EPA believes it may also be appropriate to specify that compliance
with a RMP during its term would constitute compliance, for purposes of
enforcement, with Subtitle C of RCRA. This would be consistent with 40
CFR 270.4(a) for RCRA permits. The Agency requests comments on this
issue.
2. Content of RMPs--Sec. 269.41
The purpose of a RMP is to document the requirements for the
contaminated media that are being managed at the media cleanup site,
and to justify these requirements. This documentation is necessary
because it (1) defines the enforceable provisions that apply to
contaminated media management activities; (2) provides information to
the Director that is sufficient to determine that these actions will be
conducted according to applicable provisions; and (3) provides
sufficient information and opportunity for public comment through the
public participation procedures in Sec. 269.43(e).
Although RMPs may be required for the management of media that
result from investigations and treatability studies, the Agency
believes that the process and content requirements for such RMPs should
be as streamlined as possible. In those cases, under the proposed rule
it would only be necessary to include relevant information to determine
that media management activities would be in compliance with the
requirements of this Part, and other applicable requirements. This
would ease the administrative burden on investigations and treatability
studies, and therefore facilitate getting these activities underway at
cleanup sites. EPA requests comments on whether this streamlining is
appropriate, and whether more should be done to reduce the
administrative burdens associated with investigations and treatability
studies in regard to today's proposal.
Since several different types of cleanup wastes may be managed
under approved RMPs, the RMP must define what types of materials are
being managed according to their requirements. For media that will be
managed by the requirements of this Part, the proposed rule provides
that information must demonstrate that the materials are indeed media,
as defined in proposed Sec. 269.3. For hazardous contaminated media and
other hazardous cleanup wastes that must be managed according to the
substantive requirements under Subtitle C, information would be
required to demonstrate what type of cleanup wastes would be managed in
order to identify the applicable, substantive Subtitle C regulations.
This information would be necessary to indicate that the planned
remedial activities involving those materials would be in compliance
with those substantive requirements. For non-hazardous contaminated
media which would be managed according to applicable State/Federal
requirements, the RMP would have to include enough information to allow
the Director to determine that the media did not contain hazardous
waste. Also, the RMP would have to show that the media would be managed
in compliance with any applicable State/Federal requirements.
It is important to demonstrate that the contaminated media being
managed would meet the definition in the proposed Sec. 269.3, and that
planned treatment of those media would meet the treatment requirements
of this Part, if applicable. The RMP would have to provide any
information on the media (or waste) characteristics, and the
constituent concentrations that would affect how the materials should
be treated and/or managed. Particularly, the RMP would have to provide
information on initial concentrations of contaminants in the media so
that the overseeing agency could determine when any applicable required
treatment reductions are met. Also, some contaminants are treated more
or less successfully with different types of technologies. Accordingly,
this information could affect how those contaminants should be treated.
Different management requirements could be more appropriate for
different sites, depending on the volumes of hazardous contaminated
media to be managed at the site. Therefore, EPA proposes that RMPs
would be required to include information on the volumes of wastes and
media to be managed.
The RMP should also specify the types of treatment and management
that will be used to treat the contaminated media under the RMP. With
this information the Director could determine if other Subtitle C
requirements would be applicable to that treatment, such as the 40 CFR
Part 264 standards. The Director also could determine if the treatment
would be conducted in a way that would be protective of human health
and the environment.
As discussed in the section ``Treatment Requirements for Hazardous
Contaminated Media'' of today's proposed rule, EPA is concerned about
the potential for remedial technologies to cause cross-media transfer
of contaminants. For example, contaminants could be volatilized for
removal from the soil, but releasing them to the air could then
contaminate the air. Obviously, this would not accomplish the Agency's
goal of actual cleanup of contaminants. Instead the
[[Page 18816]]
Agency proposes to control the potential of cross-media transfer by
requiring that the RMP would include information on how the treatment
system would be designed and operated so that the transfer of
pollutants to other environmental media would be minimized.
As discussed earlier, EPA is currently developing a set of guidance
documents called Best Management Practices for Soils Treatment
Technologies. These documents will provide guidance for controlling
cross-media contamination from different categories of remedial
technologies. This guidance will be made available for comment before
it is finalized.
In EPA's experience, accurate waste analysis is critical in
selecting effective remedial waste management requirements. Thus, the
proposed rule states that RMPs would include information on planned or
completed sampling, and analysis procedures necessary to many aspects
of the remedial actions, including: characterization, ensuring
effective treatment, and demonstrating compliance with the treatment
standard. In addition, the RMP would include quality assurance, and
quality control procedures to validate the results of the sampling and
analysis.
The Agency is currently developing guidance on how to sample, test,
and analyze contaminated media. This guidance would be used to
characterize the contaminated media being managed in a way that EPA
would generally consider adequate for compliance with this Part. This
draft guidance is available for comment in the docket for today's
proposal.
EPA has found it necessary to collect treatability data for
contaminated media so that it can set treatment standards with
reasonable faith that those standards can be met with available
technologies, and provide information on which technologies have
accomplished what results on what kinds of contaminated media to
potential users. Today's proposed rule would provide tremendous
flexibility in LDR treatment standards because, among other things, of
a lack of data regarding what treatment levels can actually be met in
practice. One of the rule's goals is to provide data to ensure
appropriate, future treatment requirements. In order to collect this
much-needed data, the proposed rule would require that upon conclusion
of implementation of remedial technologies (both full-scale as well as
treatability studies), conducted under approved RMPs, data be submitted
to EPA in the manner specified in Appendix B to this Part. (See
Secs. 269.41(c)(9) and 269.42(b)). The Agency will make these data
available to the public once they have been compiled into EPA's NRMRL
treatability database. EPA proposes that data from treatability studies
be submitted as soon as the treatability study (or studies) has been
completed. Full-scale operating data would be submitted every three
years, or after the cleanup has been completed, whichever is first.
Treatability data. The National Risk Management Research Laboratory
treatability database is available through the Alternative Treatment
Technology Information Center (ATTIC) system or on disk at no charge
from EPA. The ATTIC system provides access to several independent
databases as well as a mechanism for retrieving full-text documents of
key literature. The ATTIC system can be accessed with a personal
computer and modem 24 hours a day, and no user fees are charged.
To access the ATTIC system, set your PC communications software as
follows:
Name: ATTIC
Number: (703) 908-2138
Baud Supported: Up to 14,400
Parity: N
Data Bits: 8
Stop Bits: 1
Terminal Emulations: ANSI, VT100
Duplex: Full
For further information on the ATTIC system, please call the ATTIC
Hotline at: (703) 908-2137, or contact the ATTIC Program Manager:
Daniel Sullivan, U.S. EPA (MS 106), 2890 Woodbridge Avenue, Edison, NJ
08837-3679, phone: (908) 321-6677, fax: (908) 906-6990.
The Agency requests comments on whether this procedure and format
will meet the goals of providing access to the public and regulated
community about achievable treatment at cleanup sites, and whether it
will provide adequate information to the Agency for the development of
future rulemakings.
For many reasons, the Director could decide that further
information in the RMP is needed to determine compliance with this
Part. If the Director does request further information (according to
Sec. 269.41(c)(10)), the owner/operator shall revise the proposed RMP
to include that information.
Fostering innovative technologies. The Agency believes that
environmental regulations and policies should promote, rather than
inhibit, the innovation and adaptation of new technologies. By adopting
such a strategy, environmental policy can promote both the economy and
the environment by creating new industries, jobs, and a new capability
to make environmental progress. We therefore are seeking comments on
how this regulation can further innovative technology as well.
In order to clarify what the Agency means by innovative technology
in this case, the following is a definition from the White House
``Bridge to a Sustainable Future'' document from April 1995. ``[A]
technology that reduces human and ecological risks, enhances cost
effectiveness, improves efficiency, and creates products and processes
that are environmentally beneficial or benign. The word ``technology''
is intended to include hardware, software, systems, and services.
Categories of environmental technologies include those that avoid
environmental harm, control existing problems, remedied or restore past
damage, and monitor the state of the environment.''
One example of how this proposed rule attempts to foster innovative
technologies is by creating a new media treatment variance. In cases
where innovative technologies will be protective of human health and
the environment, given site-specific conditions, a media treatment
variance could set an alternative treatment standard using an
innovative technology.
The Agency requests comments on what specific regulatory or policy
changes should be added to the rule to: (1) Increase incentives for
innovative technologies; and (2) identify and reduce any existing
barriers to innovative technologies. Specifically, the Agency requests
comments on how RCRA requirements can be changed, in a manner
acceptable to all concerned parties, to allow for rapid technology
development.
EPA solicits comments on the desirability of, and possible
approaches for, tailoring regulatory requirements for technologies when
the risk of a major system failure is impossible, remote, or without
significant risk from unit operations commonly called ``soft landing
technologies.'' For such technologies, particularly those that are in-
situ, a high level of regulatory control does not appear necessary.
Certain ex-situ technologies such as soil washing also seem to present
a minimal risk. EPA requests comments and suggestions specifically on
how regulatory requirements could be tailored to ``soft landing''
technologies. For example, should RMPs for soft landing technologies
have a more streamlined approval process than other RMPs; or should
they be exempt from permitting requirements entirely; or should their
requirements be tailored differently?
[[Page 18817]]
3. Treatability Studies--Sec. 269.42
EPA recognizes that treatability studies are likely to be an
important component of evaluation, selection, and application of LDR
treatment technologies, especially for innovative technologies. Thus,
it may be highly desirable or even necessary to generate site-specific,
pilot-scale treatability information to support preparation of
Remediation Management Plans (RMPs).
In Sec. 269.42 of today's proposed rule, EPA proposes that
treatability studies would be conducted subject to the discretion of
the Director, and in accordance with appropriate provisions of 40 CFR
269.41 and 269.43. (See discussion above). If a treatability study were
going to be conducted under a RMP, the RMP would include information
describing how the study would be conducted, including relevant design
and operating parameters, information on waste characteristics, and
sampling and analytical procedures.
If applicable, the currently available Treatability Sample
Exclusion Rule could be used for treatability studies; however, the
rule might not cover all situations where relief for treatability
studies is needed. EPA solicits comments on whether it would be
preferable to revise the Treatability Sample Exclusion Rule (40 CFR
261.4(e)-(f)) to allow site-specific decisions regarding quantities and
time frames for treatability studies that have been conducted in
support of activities covered by HWIR-media, or other cleanup projects.
The Agency recently revised the Treatability Sample Exclusion Rule
to allow up to 10,000 kg of contaminated media to be used in
treatability studies without permits or manifests. In promulgating the
revision, EPA was aware, based on comments received on the proposal,
that the quantity limits were not always sufficient to allow
treatability studies of appropriate scale, particularly for in-situ
treatments. Because treatability studies in support of HWIR-media
activities have the objective of improved remedial decision-making and
cleanups, and would take place under regulatory oversight, EPA sees
merit in facilitating appropriate scale studies, and requests comments
on whether to allow the Director to determine, on a site-specific
basis, to exempt waste under treatability studies when necessary in
order to obtain effective treatability study results. The Director
would be required to ensure, as always, that exempting the wastes would
not pose a threat to human health and the environment. The Agency
requests comments on any other approaches to effective treatability
studies, and other issues related to this area.
4. Approval of RMPs--Sec. 269.43
This section of the proposed rule sets out procedures for review
and approval of RMPs. If, however, the overseeing Agency were using an
alternative document as discussed above, and if the Agency had review
and approval requirements for the document (that provide equivalent or
greater opportunities for public review and comment), then those
alternative procedures could be used. Examples of these procedures
would be the RCRA permit, or the permit modification procedures in Part
270. If necessary, the Director could also require further review and
comment procedures.
The proposed rule would require both the owner and operator to sign
the draft RMP before submitting it to the Director for review and
approval. The owner and the operator's signatures would certify their
agreement to implement the provisions of the RMP if the RMP is approved
as submitted. In the context of cleanups, EPA has found that, on
occasion, either the owner or operator is unwilling to sign a permit
application. For example, a property owner may be unwilling to sign,
because of fear of liability, where a lessee is conducting a cleanup.
EPA solicits comments on whether signatures of both the owner and
operator are needed in every case.
The Director could require modification or additional information
that might be necessary for demonstrating compliance with the
requirements of this Part. For example, to allow EPA and the States
flexibility in using existing enforceable documents and procedures to
comply with the requirements for RMPs, the Agency is not proposing
national requirements in areas such as record keeping and reporting.
EPA believes that the Director should specify any additional
requirements that he/she determines necessary, (but that do not have
national requirements specified in Part 269) in the RMP. The Agency
requests comments on whether EPA should specify national requirements
for record keeping and reporting, or any other requirements for RMPs.
Once the Director determines that the draft RMP adequately
demonstrates compliance with the requirements of this Part, he/she
could add provisions to the proposed RMP that specify conditions under
which the media must be managed, in accordance with this Part and other
applicable provisions of Subtitle C. The Director could also add
contained-in concentrations for media that would be managed under the
RMP. If media that originally contain hazardous wastes were to be
treated to a point at or below which they no longer would contain the
wastes, then these levels would be necessary to define when the media
no longer contain hazardous wastes.
If the Director had established applicable State-wide contained-in
concentration levels, or if all media at the site were to be managed as
hazardous contaminated media, then such contained-in levels could
simply be referenced in the RMP.
The Director must also document site-specific minimize threat
determinations or other treatment variances in the RMP if such a
determination were made for the site in question. This would provide
the public the opportunity to review and comment on both contained-in
and minimize threat decisions.
EPA considers public review and comment procedures to be an
extremely important part of the review and approval process for
remedial activities. The Agency intends for the procedures provided in
this proposed rule to balance the need for public involvement with the
need for fast and efficient approval of remedial activities.
In essence, EPA is proposing to require the use of the minimum
public participation requirements set out in RCRA section 7004(b).
Thus, the first step in the proposed public review and comment
procedures is for the Director to publish in a major local newspaper of
general circulation, and broadcast over a local radio station his/her
intention to approve the RMP. This notice would provide the public with
the opportunity to submit written or oral comments, and would be
required to specify the length of time that the public has to comment.
The proposed rule specifies that the comment period shall be no shorter
than 45 days. At this time, the Director would also be required to
transmit a written notice of his/her intent to approve the RMP to each
unit of local government having jurisdiction over the area in which the
site was located, and to each State agency having any authority under
State law with respect to any construction or operations at the site.
The next step is an informal hearing. The Director could determine
on his/her own initiative that a hearing is appropriate, or receive a
request for a hearing. In either case the Director would be required to
schedule a hearing to discuss issues relating to approval of the RMP.
The hearing would provide the interested public an opportunity to
present written or oral statements. The Director would be required,
whenever
[[Page 18818]]
possible, to schedule the hearing at a location that is convenient to
the site's nearest population center. The Director would be required to
give notice again in the newspaper and on the radio of the hearing's
date, time, and subject matter.
After the comment period, and after the hearing (if one is held)
the Director would be required to consider and respond to all
significant written and oral comments (received by the deadline) on the
proposed RMP. If the Director determines that it is appropriate, he/she
may modify the RMP to accommodate the comments received.
At that point, the Director would be required to determine if the
RMP were adequate, and if it met the requirements of this Part. If so,
he/she would be required to notify the owner/operator and all other
commenters in writing that the RMP had been approved. Once the RMP had
been approved, it would be an enforceable document, and a final Agency
action (not subject to administrative appeals in Sec. 124.19 of this
part).
EPA requests comments on whether these public participation
requirements are appropriate for RMPs. The Agency also requests
comments on public participation requirements in the State
Authorization section of this proposal. The Agency is proposing this
approach to public participation for RMPs because RMPs can serve as
RCRA permits if necessary; hence, the Agency is proposing to follow the
statutory requirements for public participation for RCRA permits. The
Agency also requests comments on whether there should be different
levels of public participation if the media contain hazardous wastes,
or if the Director determines that the media do not contain hazardous
wastes. The Agency requests comments on whether there should be some
flexibility in the public participation requirements based on the
different types of activities that could be performed according to
RMPs. See further discussion of this issue below in the State
Authorization section (V)(E)(6)(b) of the preamble regarding essential
elements for an HWIR-media program.
Proposed Sec. 269.43(f) specifies that RMPs that require combustion
of cleanup wastes at a media cleanup site would have to be approved
according to the more rigorous procedures that are required for RCRA
permits under Part 270. Technologies involving higher levels of energy
input generally achieve higher levels of contaminant removal/
destruction, and may do so with greater consistency over a range of
conditions. Nevertheless, higher energy systems potentially may have
undesirable side-effects. As in the case of combustion, regulatory
attention, including preliminary demonstrations of performance through
trial burns, etc., has been found necessary to address these concerns.
5. Modification of RMPs--Sec. 269.44
Plans for remedial actions sometimes need to be modified. Often,
modifications are necessary as new information becomes available, or
when unforeseen circumstances arise. In order to retain the most
flexibility for overseeing Agencies that have their own requirements
for modification of remedial plans, this rule proposes that the RMP
specify procedures for any necessary modifications. The Agency believes
that if the modifications include a major change in the management of
hazardous contaminated media at the site, the modification procedures
should provide opportunities for public review and comment.
6. Expiration, Termination, and Revocation of RMPs--Sec. 269.45
In a similar manner as modifications to RMPs, EPA intends for the
Director to specify in the RMP the procedures under which the RMP will
expire, terminate, or be revoked. RMPs which constitute permits for
land disposal facilities must be reviewed every five years to comply
with the statutory requirements under RCRA section 3005(c)(3), and all
RMPs which constitute RCRA permits must be renewed at least every 10
years, if they will remain in effect longer than that, in order to
comply with the statutory requirements under RCRA section 3005(c)(3).
E. Streamlined Authorization Procedures for Program Revisions (Part
271)
1. Statutory and Regulatory Authorities
Section 3006(b) of RCRA, 42 U.S.C. 6929(b), instructs EPA, after
notice and opportunity to comment, to authorize State programs, unless
the Agency finds that the State program is not equivalent to the
Federal program, nor consistent with the Federal program, nor adequate
in providing for enforcement. General standards and requirements for
State authorization are set forth in 40 CFR Part 271. Following
authorization, EPA retains the enforcement authorities of RCRA sections
3008, 7003 and 3013, although the authorized State has primary
enforcement responsibility. Pursuant to RCRA section 3009, 42 U.S.C.
6929, States may choose to implement hazardous waste management
requirements that are either more stringent or broader in scope than
the Federal requirements. State requirements that are more stringent
may be included in a State's authorized program; requirements that are
broader in scope are not part of the authorized State program. \27\
(See 40 CFR 271.1(i)).
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\27\ More stringent State requirements are typically those which
impose additional requirements on wastes or facilities that are
already addressed by the Federal program. Broader in scope
requirements are typically those that would address wastes or
facilities not covered by the Federal program. The authorization
status of a State's requirements does not in any way affect the
ability of a State to enforce such requirements as a matter of State
law.
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2. Background and Approach to Streamlined Authorization
EPA has been reviewing State authorization applications and
authorizing State hazardous waste programs since the early 1980's.
Currently 49 States and territories have received final authorization
as defined in 40 CFR 270.2 for the base RCRA program.\28\ To varying
degrees these same States and territories are also authorized to
implement provisions promulgated under the Hazardous and Solid Waste
Amendments of 1984 (HSWA). Many States have more than a decade of
experience promulgating rules for and implementing authorized hazardous
waste programs.
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\28\ In this context, the ``base'' RCRA program refers to
authorization for all or part of the regulations promulgated by EPA
prior to January 26, 1983.
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Once a
FR Doc. 96-10096 Requirements for Management of Hazardous Contaminated Media (HWIR-Media)
uthorized, States are required to adopt and become authorized
for new and revised Federal requirements that are more stringent than
the authorized State program. (See 40 CFR 271.21). Since EPA regularly
revises the RCRA regulations in response to statutory provisions, court
ordered deadlines, evolving science, and changing Agency priorities,
States continually submit program revisions to EPA for review and
approval.
Under the current authorization structure, all revisions to
authorized State hazardous waste programs, including minor changes, are
potentially subject to the same standards of application and receive
the same level of EPA scrutiny. Preparation, review, and processing of
these program revisions represent a significant resource commitment on
the part of EPA and the States. Occasionally, States and EPA Regions
can experience delays in authorization of State program revisions
during which EPA and a State are jointly implementing many portions of
the RCRA program. For example, in many States EPA is still implementing
[[Page 18819]]
regulations promulgated pursuant to the 1984 HSWA amendments. Any delay
in authorization of State program revisions concerns EPA and State
regulators, and can confuse the public and the regulated community who
often must interact with both agencies for even routine inquiries
(e.g., the status of a pending permit application or the compliance of
a given hazardous waste management facility).
EPA is continuously improving the administrative processes
associated with authorization of State program revisions. Over the past
years, improvements have been made through joint training of State and
Federal authorization staff, increased emphasis on early EPA
involvement in initial preparation of authorization applications, and
delegation of the authority to grant authorization for program
revisions to EPA Regional offices. EPA believes that the quality of
State program revision applications has improved and therefore, EPA
review and approval of these submittals has accelerated.
Over the past two years, many EPA rulemaking workgroups (including
the HWIR FACA Committee) began to discuss and/or develop streamlined
authorization procedures specific to their rulemakings. Based on these
discussions, EPA became concerned that some of the recently gained
efficiencies in authorization processes could be lost if every new
Federal rule contained its own specialized authorization procedures.
EPA believes that promulgating specific authorization procedures for
each new rule could force State and Regional authorization personnel to
continually revise their application formats and review procedures. EPA
is especially concerned since many States do not apply for
authorization of new Federal regulations one rule at a time, but
``cluster'' their authorization applications. Establishing slightly
different authorization procedures for each new Federal rule might
preclude clustering of program revisions, and actually slow
authorization by forcing States and EPA Regions to prepare and process
separate program revision applications for each new rule.
To address this situation, and to further improve the authorization
process, EPA developed two generic sets of streamlined procedures for
the authorization of program revisions. The first set of streamlined
procedures was proposed in the Phase IV proposal (60 FR 43654, August
22, 1995); \29\ the second set is being proposed today. EPA believes
that these procedures would formalize some efficiencies in the
authorization of State program revisions piloted by some States and EPA
Regions.
---------------------------------------------------------------------------
\29\ EPA is not now reopening the comment period on the Phase IV
proposal.
---------------------------------------------------------------------------
In addition, EPA believes that, by using these new generic
procedures, States and EPA Regions would continue to be able to cluster
their authorization applications, and conduct successful reviews, by
including all Category 1 rules in one authorization package, and all
Category 2 rules in another authorization package. (See preamble
(V)(E)(3) for discussion of Categories 1 and 2). States and EPA Regions
could even choose to coordinate the submittal dates for these
authorization packages. For example, the Category 2 application could
be submitted prior to the Category 1 application. This would allow the
EPA Region to include an authorization decision for both applications
in one Federal Register notice.
Through use of two sets of authorization procedures, EPA hopes to
tailor the level of effort for preparation, review, and approval of
revision applications to the significance of the program revision. Both
new sets of procedures would significantly streamline authorization of
program revisions. However, both would also provide for EPA review of
State program revisions and maintain opportunities for public review
and comment on EPA's proposed authorization decisions.
In developing streamlined authorization procedures, EPA used three
guiding principles. First, States are EPA's partners in environmental
protection. Although EPA must maintain minimum national standards for
hazardous waste management, the Agency recognizes that many States have
sophisticated, and highly-developed programs for hazardous waste
management and cleanup designed to meet their individual circumstances
and priorities. Second, State programs do not have to be exactly the
same as the Federal program to be equivalent. EPA review of State
programs must focus on whether State programs would achieve the same
results. (See S. Rept. 98-248 p. 62). Third, EPA should continue to
promote the most efficient use of State and Federal authorization
resources and take advantage of opportunities to streamline and
otherwise encourage State authorization.
3. Streamlined Procedures--Sec. 271.21
a. Phase IV proposal--Category 1. In the recent Phase IV Land
Disposal Restrictions (LDR) proposal (60 FR 43654, August 22, 1995),
EPA proposed a streamlined set of authorization procedures that would
apply to certain routine changes to the LDR program, such as the
application of treatment standards to newly identified wastes. The
streamlined authorization procedures proposed with Phase IV have come
to be known as Category 1 procedures for authorization of program
revisions, or simply ``Category 1.''
In the Phase IV proposal, EPA explained that the proposed
streamlined authorization procedures would also be used for certain
other revisions to the LDR program and could be considered for future,
non-LDR, rules. EPA proposed the generic streamlined authorization
procedures for Category 1 in the Phase IV proposal because many of the
changes to the LDR program proposed in the Phase IV proposal exemplify
the types of program revisions EPA believes should be addressed by
Category 1. In general, EPA believes Category 1 authorization
procedures would be appropriate for rules or parts of rules that do not
change the basic structure of the authorized State program, or expand
the State program into significant new areas or jurisdictions. For
example, the application of LDR treatment standards to newly identified
wastes and revisions to existing LDR treatment standards discussed in
the Phase IV proposal would be additions of new wastes to an existing
program, changes to numeric criteria, or improvements in existing
procedures. These would have minimal effect on the basic scope or
implementation of authorized State LDR programs.
Since Category 1 authorization procedures are designed for rules or
parts of rules that do not significantly change the way a State might
implement its authorized program, EPA believes it is essential that the
State first be authorized for the appropriate prerequisite program
component. For example, the Phase IV proposal would allow use of
Category 1 authorization procedures only in States already authorized
for the LDR Third Third regulations (55 FR 22520, June 1, 1990) since
the LDR Third Third rule essentially completed the framework of the LDR
program. Interested individuals are encouraged to refer to the LDR
Phase IV proposal at (60 FR 43654, August 22, 1995), for more
information on Category 1 authorization requirements and procedures.
Note that in today's proposed rule, EPA would reserve 40 CFR 271.21(h)
for finalization of the generic Category 1 streamlined authorization
procedures proposed in 40 CFR 271.28 of the LDR Phase IV proposal.
[[Page 18820]]
b. Today's proposal--Category 2. In this proposed rule, EPA
addresses authorization of program revisions that have significant
impacts on State hazardous waste programs. EPA is proposing generic
Category 2 authorization procedures today because we believe the HWIR-
media rule exemplifies the type of program revisions which could be
addressed using the Category 2 procedures. In general, EPA believes
that Category 2 authorization procedures would be appropriate for rules
or portions of rules that address areas not previously covered by the
authorized State program, or that substantially change the nature of
the program.
For example, implementation of the HWIR-media regulations proposed
today would involve policy decisions for management of hazardous
contaminated media. These policy decisions would likely affect the way
States implement hazardous waste requirements at cleanup sites, and
State HWIR-media programs would probably be significantly different
from the States' previously authorized programs. As with the Category 1
procedures discussed above, EPA believes it could be appropriate to
require States to be authorized for certain rules prior to receiving
authorization for certain Category 2 rules. For instance, a
prerequisite for authorization of today's HWIR-media regulations would
be final authorization as defined by 40 CFR 270.2 for the ``base'' RCRA
program (the base RCRA program is defined in footnote #28 in (V)(E)(2)
of today's proposed rule).
The Category 2 authorization procedures proposed today consist of
the following components: (i) Requirements for Category 2 revision
applications; (ii) criteria to be used by EPA to determine if Category
2 revision applications are complete; and (iii) procedures for EPA
review and approval of Category 2 revision application. Each of these
components is discussed in detail below.
When developing the authorization procedures discussed today, EPA
sought to balance its desire to recognize successful State performance
and experience with the need to ensure adequate implementation of
minimum Federal requirements. EPA requests comments on (1) whether the
authorization procedures proposed today sufficiently recognize the
sophistication of State programs, while maintaining an appropriate
level of EPA review; (2) whether these provisions are appropriate for
authorization of the HWIR-media regulations (alternative approaches to
HWIR-media authorization and HWIR-media eligibility are discussed in
section (V)(E)(6)(a) of today's proposed rule); (3) other types of
regulations that these procedures could address; and (4) whether the
development of generic sets of authorization procedures will preclude
or inhibit clustering of program revision applications, thereby
potentially slowing their authorization. EPA also requests comments
from State, tribal, and territorial governments on the degree to which
the authorization approach proposed today will streamline and create
efficiencies in the preparation, review, and approval of revision
applications.
i. Requirements for Category 2 revision applications
(Sec. 271.21(i)(1)). EPA is proposing that Category 2 revision
applications include: (1) a certification by the State attorney general
(or the attorney for State agencies that have independent legal
counsel) that the laws and regulations of the State provide authority
to implement a program equivalent to the Federal program; (2) a
certification by the State program director that the State has the
capability to implement an equivalent program and commits to
implementing an equivalent program; (3) an update to the State/EPA
Memorandum of Agreement (MOA) and/or State Program Description (PD) if
necessary; and (4) copies of all applicable State laws and regulations
showing that such laws and regulations are fully effective. EPA also
proposes to allow States, at their discretion, to submit any additional
information that they believe will support their revision application.
State certifications (Sec. 271.21(i)(1)(i)). The State
certifications should specifically address the Category 2 rule for
which a State is seeking authorization, and include reference to State
authorities and requirements that provide for a State program
equivalent to the Federal program.
The State attorney general's certification should include specific
citations to the State laws and regulations that the State would rely
on to implement an equivalent program. If appropriate, the attorney
general's certification should include citations to judicial decisions
that demonstrate that the State's laws and regulations provide for an
equivalent program. All State laws and regulations cited in the State
attorney general's certification must be fully effective at the time
the certification is signed. Copies of all cited laws, regulations, and
judicial decisions must be attached to the State's certification.
In cases where authorization of a Category 2 rule is contingent on
the State already being authorized for certain rules, EPA is proposing
that the State attorney general's certification include certification
that the State is authorized for the prerequisite requirements.
Although information on a State's authorization status is, of course,
available to EPA, the Agency believes that requiring that the State AG
certification address prerequisite requirements would ensure that the
State adequately considers these requirements when preparing the
authorization application. In addition, States should note that
existing regulations at 40 CFR 271.21(a) and (c) require an authorized
State to keep EPA fully informed of any proposed changes to its basic
statutory or regulatory authorities, its forms, procedures, or
priorities, and to notify EPA whenever they propose to transfer all or
part of the authorized program from the approved State agency to
another State agency. Failure by an authorized State to keep EPA fully
informed of changes to State statutes and regulations may affect
authorization of that State's program revision applications.
The State program director's certification should specifically
address the State's intent and capability to implement an equivalent
program. The State program director is the ``director'' as defined at
40 CFR 270.2. If EPA has established essential elements for the rule in
question, the State program director's certification must address each
essential element individually. Essential elements are discussed in
detail below. It may be helpful for the State to reference State
policies, procedures, or other documents that support the State program
director's certification. When referenced, these documents should be
fully effective at the time of the certification, and copies must be
attached.
Essential elements (Sec. 271.21(i)(1)(ii). EPA could choose to
promulgate essential program elements for any Category 2 rule.
Essential elements summarize critical program components and/or
implementation requirements. They would be intended to focus State and
EPA resources on a review of critical program components to determine
whether the State program will achieve the same results as the Federal
program, rather than on line-by-line comparisons of State and Federal
regulations. Essential elements could include regulatory provisions,
and enforcement or capability considerations. EPA emphasizes that the
purpose of essential elements is not to promote detailed or exhaustive
re-
[[Page 18821]]
evaluations of authorized State programs. Instead, essential elements
should be used by State and EPA Regions to ensure that all impacts of
certain Category 2 program revisions have been identified and
adequately considered. As discussed in section (V)(E)(3)(b)(iii) of the
preamble below, EPA would give great deference to States in their
certifications of programmatic intent and capability.
EPA would establish essential elements as specifically as possible;
however, because of the varying degrees to which States are authorized
for the RCRA program and HSWA amendments, some essential elements could
overlap with authorized requirements in some States. For example, one
of the essential elements proposed today for the HWIR-media rule is
``authority to address all media that contain hazardous wastes listed
in Part 261 Subpart D of this chapter, or that exhibit one or more of
the characteristics of hazardous waste defined in Part 261, Subpart C
of this chapter.'' Some States that have already been authorized for
various portions of the RCRA program, including the corrective action
program, and the land disposal restrictions for hazardous debris. These
States have already promulgated--and are using--appropriate rules for
addressing media.
If EPA promulgates essential elements for a particular rule, EPA
proposes that the Director's certification would address each essential
element individually. When State program components corresponding to an
essential element have already been reviewed by EPA when authorizing a
previous program revision, the Agency would not re-evaluate the State
program component. In these cases, EPA would evaluate the essential
element portion of the Director's certification only to verify that the
State did, in fact, consider the essential element when deciding how it
would implement the program revision at issue.
EPA is not proposing that essential elements replace the
authorization checklists currently used by States and EPA to document
authorized State authorities. However, to ensure that work is not
duplicated, future authorization checklists would incorporate any
promulgated essential elements. EPA is proposing essential elements for
the HWIR-media rule; these elements are discussed in section
(V)(E)(6)(b) of the preamble to today's proposed rule.
Update to the State/EPA Memorandum of Agreement and/or State
Program Description (Sec. 271.21(i)(1)(iii)). EPA is proposing that the
Category 2 revision application would include either updates to the
State/EPA Memorandum of Agreement and Program Description or
certification by the Director that such updates are not necessary. EPA
believes that these updates or certifications must be required because
Category 2 rules could affect the way a State implements its authorized
program.
Consequently, implementation of the proposed program revision could
raise issues not addressed by the existing MOA or PD. For example, a
State hazardous waste agency may choose to rely on another State agency
(e.g., a State water control board) to implement some Category 2 rules.
In these cases the State/EPA MOA and Program Description should be
updated to reflect the various roles and responsibilities of the two
State agencies, and to designate a lead agency for communications with
EPA. (See 40 CFR 271.6). If an update to the State/EPA MOA is needed,
it should be finalized and signed by the State and EPA before final
authorization of the program revision.
EPA does not believe authorization of Category 2 program revisions
would routinely necessitate updates to State/EPA Memorandums of
Agreement or Program Descriptions. In cases where the MOA already
addresses issues such as routine State program monitoring, sharing of
information, and procedures for State enforcement, Category 2 revisions
could simply add additional requirements to those already implemented
by the State agency, and updates would not typically be necessary.
Similarly, when the State Program Description already addresses the
setting of State priorities, organizational structures, and
implementation strategies, and a Category 2 program revision only adds
to RCRA requirements already implemented by the State agency, updates
would not typically be necessary. In other cases, Category 2 program
revisions--even those that would simply add to the RCRA requirements
already implemented by a State--could have significant resource
implications that should be addressed in an update to the State Program
Description.
ii. Completeness check (Secs. 271.21(i)(2) and 271.21(k)). When EPA
receives a Category 2 revision application, the Agency would conduct a
completeness check to determine if the application contains all of the
required components. To be considered complete, Category 2 revision
applications must include the State attorney general and Director
certifications, any necessary updates to the State/EPA MOA and PD, and
copies of all cited laws and regulations, as discussed above.
The criteria for completeness checks of Category 2 revision
applications would be essentially the same as those proposed in the
Phase IV proposal for completeness checks of Category 1 revision
applications. Like Category 1 revision applications, Category 2
revision applications would be considered incomplete if: (1) Copies of
the laws and regulations cited by the State in their certifications
were not included; (2) the statutes and regulations cited by the State
were not in effect; (3) the State was not yet authorized for any
prerequisite regulations; or (4) the State certifications contain
significant errors or omissions.
EPA proposes to allow 30 days for the completeness check. When the
Agency determines that a Category 2 revision application is incomplete,
it will notify the State in writing. This written notification will
specifically identify the application's deficiencies, and provide the
State an opportunity to revise and re-submit its application. In cases
where a State application was deemed incomplete because of minor errors
or omissions, and the State and EPA are in agreement on correction of
such errors, the Agency could choose to proceed with the review and
approval process discussed below, emphasizing that final authorization
of the State program would be contingent on agreed upon corrections to
errors in the State application.
iii. Review and approval (Sec. 271.21(i)(3)). Following
determination that a Category 2 program revision application is
complete, EPA would review the application as necessary to confirm that
the State revisions are equivalent to applicable Federal rules. During
this review, EPA could, for example, examine an update to the State/EPA
Memorandum of Agreement, if one were submitted, to see if it addressed
implementation roles. Similarly, EPA could review the State Director's
certification of essential elements to learn more about how the State
intended to implement the program revision.
EPA proposes to allow a maximum period of 60 days, beginning when
the Agency determines that a program revision application is complete,
to consider the application, and to prepare a Federal Register notice
requesting public comment on EPA's tentative authorization decision.
Although EPA and the State may agree to a shorter or longer review
period, EPA believes that it would be possible to confirm the
revision's equivalence and prepare the
[[Page 18822]]
necessary Federal Register notice within 60 days.
Through the initial authorization of the State program, EPA would
have become familiar with the program, and with the laws and
regulations of the State. In addition, through the existing procedures
for EPA monitoring and oversight of authorized State programs, EPA
would be familiar with a State's program priorities, implementation
strategies, policies, and procedures. Therefore, authorization of
program revisions should be a straightforward process, where EPA's role
would be to confirm that the State has adequately considered
implementation of the program revision at issue, and has appropriately
certified that the State laws and regulations provide for a program
equivalent to the Federal program. EPA emphasizes that the review of
program revision applications that are provided for in proposed 40 CFR
271.21(i)(3) should be used only to address the particular program
revision at issue. Concerns EPA might have with parts of the State
program that are already authorized should be addressed during EPA's
monitoring and oversight of the State program.
EPA believes that the exact level of review necessary to confirm
that a State's revisions provide for a program equivalent to the
Federal program would vary from State to State, and from rule to rule.
For example, in cases where EPA is very familiar with the State program
(e.g., in the case of HWIR-media, in a State authorized for corrective
action), the review necessary for EPA to confirm equivalence would not
be extensive. In other cases, a State may be proposing to implement a
program revision using a non-hazardous waste authority, or a
combination of authorities, and the level of review necessary for EPA
to confirm equivalency could be more intensive. EPA has developed the
Category 2 authorization procedures to allow States and EPA Regions the
flexibility to establish the level of review necessary for a
determination of equivalence, rather than presupposing that any given
level of review would be appropriate in all States for all Category 2
program revisions.
EPA proposes to use the procedures for an immediate final rule (see
40 CFR 271.21(b)(3)) to request comments on its tentative decision to
approve or disapprove a Category 2 program revision. Immediate final
rules, which are published in the Federal Register, provide a 30-day
public comment period, and go into effect 60 days after publication
unless significant adverse comment is received. An example of
significant adverse comment would be comments demonstrating that the
cited State authorities do not provide for an equivalent program. EPA
believes that immediate final rules would typically be the most
efficient way to publish and seek comments on its proposed program
revision authorization decisions; however, the Agency and a State could
agree to use a proposed/final Federal Register notice (as provided for
under 40 CFR 271.21(b)(4)), if they believed such notice would be more
appropriate to their circumstances.
EPA's goal is to authorize State program revisions in a timely way.
EPA is committed to working with State agencies to address any
deficiencies or areas of confusion in State applications, and to
support States as they develop their programs. EPA emphasizes that,
when processing program revision applications, it would give great
deference to the State in: (1) interpretation of State laws and
regulations and the judgement that such laws and regulations provide
for an equivalent State program; and (2) certifications of State intent
and capability. As always, EPA encourages States to work closely with
the Agency when developing revision applications. The Agency has found
that this ``up front'' investment is often the most effective way to
streamline authorization.
c. Clarification of the meaning of the term ``Equivalent''
(Sec. 271.21(j)). EPA is taking this opportunity to clarify that the
term ``equivalent'' means that the proposed State program is no less
stringent than the Federal program. EPA hopes that this clarification
allows States and Regions to efficiently focus authorization
applications and review on the ability of the proposed State programs
to meet the minimum national standards, rather than on line-by-line
comparisons of State and Federal regulations. One of EPA's guiding
principles in developing streamlined authorization procedures for
program revisions was that State programs do not have to be exactly the
same as the Federal program to be equivalent, and that EPA should focus
its authorization review on environmental results.
EPA is considering applying the definition of ``equivalent''
discussed above to all authorization decisions, including authorization
of Category 1 program revisions, authorization of program revisions
using the existing regulations, and final authorization as defined in
40 CFR 271.3. If EPA decided to apply the definition of equivalent to
all authorization decisions, the definition would be finalized in 40
CFR 270.2. EPA requests comments on whether or not the definition of
``equivalent'' discussed above should be applied to all authorization
decisions and, if commenters believe that the clarification should be
applied to all authorization decisions, whether or not the definition
should be finalized in 40 CFR 271.21(j) or 40 CFR 270.2.
d. Table of Authorization Categories (Sec. 271.21 Table 1). EPA is
proposing to record rules or parts of rules eligible for Category 2
authorization procedures and any prerequisite requirements in Table 1
of 40 CFR 271.21. EPA believes that tabulating the different Category 2
rules and their prerequisite requirements is the most effective and
efficient way to present and maintain this information. If the
procedures for Category 1 proposed in the LDR Phase IV proposal are
finalized, the information proposed in Sec. 271.28(a) of that proposed
rule, and any future Category 1 rules and prerequisite requirements,
would be also presented in table form.
e. Relationship of Category 1 and 2 procedures to existing
authorization procedures for program revision, and request for comments
on the need for a third Category. EPA believes that all revisions to
authorized State hazardous waste programs required in the future could
be appropriately addressed using either the Category 1 authorization
procedures proposed in the LDR Phase IV proposal, or the Category 2
authorization procedures proposed today. EPA believes that the Category
1 and Category 2 procedures would be appropriate for all program
revisions since each retains a level of EPA review appropriate to the
program revision at issue, and incorporates an opportunity for the
public to comment on EPA's proposed authorization decisions. Under this
scenario, the existing program revision procedures in 40 CFR
271.21(b)(1) would apply only to authorization of rules or parts of
rules promulgated prior to finalization of the Category 1 and 2
authorization procedures discussed today.
Alternatively, EPA could retain the existing program revision
procedures as Category 3, and use them to authorize major revisions to
State hazardous waste programs (e.g., States authorized for the first
time for land disposal restrictions). EPA requests comments on the need
for a third authorization category and the types of revisions that
might require that level of review. In addition, EPA is considering not
changing the current program revision rules, and instead applying the
streamlined authorization procedures discussed today and in the Phase
IV proposal as guidance to authorization of existing rules. EPA
requests comment on the degree to
[[Page 18823]]
which Category 1 and 2 authorization procedures should be used as
guidance when implementing the current procedures for authorization of
program revisions.
4. Authorization for Revised Technical Standards for Hazardous Waste
Combustion Facilities
Recently, EPA proposed Revised Technical Standards for Hazardous
Waste Combustion Facilities published in the Federal Register on April
19, 1996 at (61 FR 17358). In this document, EPA requested comment on
whether the streamlined authorization procedures that were proposed on
August 22, 1995, (see 60 FR 43654, 43686) should apply to States
seeking authorization for this rule. Note that in today's proposed
rule, those procedures are classified as Category 1.
In requesting comment on the use of Category 1 procedures in the
April 19, 1996 combustion standards proposal, EPA made a distinction
among those States that would be approved to implement the final rule
pursuant to 40 CFR Part 63, Subpart E (in the Clean Air Act (CAA)
regulations), those States simply incorporating this rule into their
RCRA regulations, and those States that would be seeking to implement
the rule for the first time under RCRA authority. EPA continues to
believe that the Category 1 procedures would be appropriate for those
States that would be incorporating the combustion standards rule from
an already approved State air program into the State RCRA program.
However, EPA stated in the combustion proposal its belief that for all
other States, the slightly more extensive authorization procedures
developed as part of today's HWIR-media proposal would be most
appropriate. This preference is based on the complexity and
significance of the combustion standards rule, which substantially
revises the performance standards for hazardous waste combustion
facilities. EPA believes that the Category 2 procedures provide the
benefits of streamlined authorization, while allowing a slightly longer
period for EPA review.
Because the Category 2 authorization procedure had not been
proposed before the combustion standards rule was developed, EPA was
unable to request comments on whether the proposed Category 2
procedures should apply to the authorization of those States that did
not incorporate by reference an approved State CAA program for the
combustion standards rule. Thus, EPA is now taking the opportunity in
today's notice to request this comment. EPA will consider comments made
regarding today's notice when developing the final combustion standards
rule.
5. Request for Comment on Application of Category 1 Procedures to
Portions of HWIR-waste Proposal
In the recent proposal to establish self-implementing exit levels
for listed hazardous wastes, waste mixtures, and derived-from wastes
(the HWIR-waste rule), EPA announced that it was considering the
possibility of using streamlined authorization procedures for some
portions of the exit rule. (See 60 FR 66344, 66411-12, (December 21,
1995)). EPA has completed its initial evaluation of this issue, and is
proposing today to apply the Category 1 procedures set forth in the LDR
Phase IV rulemaking to major portions of the exit proposal.
Specifically, EPA is proposing to allow States to use Category 1
procedures for all portions of proposed 40 CFR 261.36 (the exit levels,
requirements for qualifying for an exemption based on these levels, and
the conditions for maintaining an exemption). However, EPA is proposing
to restrict this option to States that have already obtained
authorization for the pre-1984 base program, including the 1980
Extraction Procedure Toxicity Characteristic. (Authorization for the
1990 Toxicity Characteristic that replaced the EP rule would also be
acceptable). The two toxicity characteristic rules closely resemble the
exit proposal. All three rules require waste handlers to determine
whether their wastes contain specified hazardous constituents in
concentrations exceeding specified threshold levels. All three schemes
also are self-implementing, requiring the waste handler to keep records
but requiring no prior approval by Federal or State authorities. Thus,
States that have been authorized for the base program have experience
in drafting rules similar to the proposed exit rule. They also have
significant experience in enforcing a self-implementing waste
determination scheme that covers both organic and metallic waste
constituents. Although the proposed exit scheme for listed waste
involves many more constituents than either the EP or TC rule, EPA does
not believe that increasing the number of constituents that waste
handlers must evaluate would warrant, by itself, a detailed review of
the State program.
Neither the base program nor the 1990 Toxicity Characteristic
include any conditions for maintaining an exit. The conditions proposed
in Sec. 261.36, however, would be requirements for retesting,
notification, and record keeping similar to requirements in the base
program and the TC. Moreover, they would be easy to understand, and
relatively easy to detect, if violated. Accordingly, EPA believes that
the Category 1 procedures would be appropriate for these conditions.
EPA requests comments on its proposal to allow use of Category 1
procedures for all portions of Sec. 261.36. The proposed Category 1
procedures are described in detail in the preamble to LDR Phase IV
proposal at (60 FR 43654, 43687-88, August 22, 1995). Proposed
regulatory text is set out at (60 FR 43654, 43698-99, August 22, 1995).
EPA is also proposing to allow States that have obtained
authorization for the Third Third LDR rule to use Category 1 procedures
for the alternative ``minimize threat'' treatment standards in proposed
revisions to Sec. 261.40 and proposed new Sec. 268.49. States that are
already authorized for the basic framework of the LDR program are
familiar with the type of rule changes needed, have adopted all or most
of the underlying LDR program, and have experience in implementing and
enforcing the rules. The minimize threat levels would merely be
different numerical alternatives to some of the existing BDAT
standards. No change to any other portion of the LDR program would be
required.
The December 1995 HWIR-waste proposal also contains an option for
alternative, less restrictive exit levels based on constraining the
type of management that the wastes will receive. Under this option,
wastes with higher constituent concentrations would be exempted from
Subtitle C control if they were not placed in land treatment units. EPA
believes that this option may present significant new issues not
previously addressed in the base program or any subsequent program
revision. Consequently, EPA is not proposing to apply Category 1
procedures to this portion of the waste exit proposal. Rather, EPA is
proposing to allow States that wish to adopt this option to use the
Category 2 procedures proposed in today's proposed rule. EPA requests
comments on this proposal, and the alternative of allowing States to
use Category 1 procedures for this ``management condition'' option.
6. HWIR-media Specific Authorization Considerations--Sec. 271.28
During the development of today's proposed rule, EPA considered a
number of authorization alternatives before deciding to propose the
Category 2 authorization procedures discussed above. One approach would
have based eligibility for final HWIR-media authorization on whether a
State was
[[Page 18824]]
authorized to implement the corrective action regulations under RCRA
section 3004(u). Under this approach, all HWIR-media authorization
applications would have been prepared, reviewed, and approved using
streamlined procedures,30 but States that were not authorized for
corrective action would have been granted HWIR-media authorization for
a two-year provisional period. During this period, States would have
been required to demonstrate their ability to implement an equivalent
program.
---------------------------------------------------------------------------
\30\ Although considered prior to development of the streamlined
Category 1 and 2 authorization procedures discussed today, the
streamlined procedures considered for HWIR-media authorization most
closely resembled those proposed as Category 1 in the LDR Phase IV
proposal.
---------------------------------------------------------------------------
After careful consideration, EPA tentatively determined that lack
of corrective action authorization should not prejudice a State's
ability to receive prompt authorization for the HWIR-media program.
Many States that are not authorized for corrective action nonetheless
have highly-developed, sophisticated cleanup programs that they are
using to address RCRA facilities, sometimes through work-sharing
agreements with EPA Regions. EPA believes that it would be inefficient
to require States to undergo a two-year provisional demonstration
period, if EPA is already familiar with the State's program, and
confident in the State's ability to make appropriate cleanup decisions.
In addition, EPA was concerned that a provisional period approach would
be cumbersome and confusing, because it would rely on two different
procedures, and because it involved, for States authorized under this
approach, a significant resource commitment. Instead, EPA decided to
propose a single authorization approach using the streamlined Category
2 process discussed above--not only for States authorized for
corrective action, but for all States that have received final
authorization for the ``base'' RCRA program. (See footnote #28,
(V)(E)(2) of this preamble for a definition of the base RCRA program).
This would allow almost all States to be eligible to use the
streamlined Category 2 authorization procedures to their applications
for HWIR-media authorization. An alternative approach to HWIR-media
eligibility, where States proposing to use authorized hazardous waste
authorities to implement an HWIR-media program would be authorized
using the Category 1 authorization procedures, and all other States
would be authorized using the Category 2 authorization procedures, is
discussed in section (V)(E)(6)(a) of this preamble for today's proposed
rule.
Although EPA did not decide to propose that State authorization for
HWIR-media be based, in part, on a State's corrective action
authorization status, the Category 2 procedures proposed today would
incorporate many of the streamlined procedures contemplated by the HWIR
FACA Committee. EPA solicits comments on whether the alternative
discussed above (predicating authorization for HWIR-media on corrective
action authorization, and requiring non-corrective action authorized
States to undergo a two-year provisional period) would be more
appropriate to HWIR-authorization and therefore should be finalized in
lieu of the approach proposed today. The Agency also requests comment
on other alternatives that would differentiate between States which are
authorized for RCRA corrective action, and those which are not.
a. Eligibility for HWIR-media authorization. EPA proposes that
authorization to administer an approved HWIR-media program would be
made available only to those States that have received final
authorization as defined in 40 CFR 270.2 to implement the base RCRA
program (the base RCRA program is defined in footnote #28 in section
(V)(E)(2) of today's preamble). Before granting a State final
authorization, EPA would determine that the State in question had legal
and administrative structures in place to implement an equivalent
program, that the State program was consistent with the Federal program
and other authorized State programs, and that the State had adequate
enforcement authorities.
EPA believes that final authorization would be an essential
prerequisite to HWIR-media authorization because States that have
received final authorization are allowed to decide that solid wastes
met the definition of hazardous wastes. This authority includes the
authority to make contained-in decisions that are a central element of
the HWIR-media program. EPA believes that experience making hazardous
waste decisions would be essential to a State's ability to make
contained-in decisions for media with concentrations of hazardous
constituents that are below the Bright Line. In addition, States that
have received final authorization would have demonstrated capability in
permitting, ground water protection, oversight, and enforcement of
hazardous waste management requirements.
States seeking authorization to implement the new HWIR-media LDR
treatment standards and treatment variances must first have received
final or interim authorization for the LDR program through the Third
Third LDR rule (55 FR 22520, June 1, 1990). As discussed in the Phase
IV proposal, EPA believes that the LDR Third Third rule established the
general framework and infrastructure of the LDR program. Since the new
LDR treatment standards and treatment variances rely on the existing
infrastructure of the LDR program, EPA believes that it would be
necessary for States to be authorized for the LDR Third Third rule
before they could be authorized to implement those portions of the
HWIR-media program. EPA requests comments on whether the Third Third
LDR rule would be the appropriate prerequisite requirement for
authorization of the changes to the LDR program proposed today. If
commenters believe that the Third Third LDR rule is not appropriate,
EPA requests suggestions for an alternative prerequisite (e.g., the LDR
Solvents and Dioxins Rule, (51 FR 40572, November 7, 1986)).
States that have not received final authorization or LDR
authorization could seek HWIR-media authorization concurrently with, or
subsequent to, those authorizations. Unauthorized States could work
with EPA under cooperative agreements to implement the HWIR-media
program, if interested.
Alternative proposal for HWIR-media eligibility. Alternatively, EPA
could allow States that are planning to use authorized hazardous waste
authorities to implement the HWIR-media program to use the generic
procedures for Category 1 for HWIR-media authorization, and reserve the
generic Category 2 procedures for States proposing to implement the
HWIR-media with non-authorized authorities (e.g., State Superfund-like
authorities). This approach would allow streamlined authorization
procedures to apply to almost all States by retaining the prerequisite
of final RCRA base program authorization (rather than corrective action
authorization), and would provide States proposing to use authorities
familiar to EPA with the most streamlined procedures available.
EPA requests comments on this alternative to HWIR-media
authorization eligibility, and whether or not this approach should be
finalized in lieu of the eligibility approach discussed above. EPA also
requests general comments on the feasibility of determining
authorization categories based on the type of authority a State
proposes to use, rather than on the impact or significance of the
program revision at issue.
[[Page 18825]]
Authorization of tribes. EPA is currently developing a proposal to
clarify the eligibility of tribes to receive authorization to
administer their own hazardous waste programs. The proposal would
discuss in detail existing RCRA authorities that EPA believes allow
tribes to seek full or partial hazardous waste program authorization.
If this proposal is finalized, any tribe that wishes to obtain final
base RCRA program authorization would likewise be eligible for HWIR-
media authorization. Tribes that choose to receive only partial
authorization would not be eligible to obtain HWIR-media authorization,
since the scope of such a partial program would be limited. EPA
believes that in order to adequately implement the HWIR-media program,
a tribe (like a State) should receive final authorization to implement
the base RCRA program.
b. HWIR-media essential elements (Sec. 271.28(a)). EPA may choose
to establish essential elements for any Category 2 rule. As discussed
above (see preamble section (V)(E)(3)(b)(i)), the purpose of essential
elements is to focus State and EPA resources on critical program
components.
EPA believes that essential elements would be especially important
when authorizing States to implement the HWIR-media program because it
anticipates that many States would seek authorization for HWIR-media
using existing, non-RCRA, State authorities. For example, some States
could choose to rely on State Superfund-like authorities that could
address a broader universe of sites and/or wastes than the RCRA
corrective action or HWIR-media programs, and provide considerable
flexibility and discretion to State agencies in specification of
cleanup requirements. Alternatively, some States could choose to rely,
in part, on a program that is less comprehensive than the Federal HWIR-
media program. For example, a State could choose to rely on its
pesticide management authorities to implement the HWIR-media program
for media that were contaminated with pesticides. EPA believes that the
HWIR-media essential elements would help State and Federal staff
efficiently determine if these non-RCRA State authorities provide for
equivalent State programs. EPA believes that the States' reliance on
broad or flexible authority should not make approval of HWIR-media
revision applications more difficult, as long as the State clearly
provided for implementation of the HWIR-media program essential
elements.
EPA has identified the following essential elements for the HWIR-
media program:
(i) Authority to address all media that contain hazardous wastes
listed in Part 261, Subpart D of this chapter, or that exhibit one or
more of the characteristics of hazardous waste defined in Part 261,
Subpart C of this chapter.
(ii) Authority to address the hazards associated with media that
are managed as part of remedial activities and that the Director has
determined do not contain hazardous wastes (according to Part 269), but
would otherwise be subject to Subtitle C regulation. States that choose
to make contained-in decisions only when concentrations of hazardous
constituents in any given media are protective of human health and the
environment, absent any additional management standards (i.e., eatable,
drinkable concentrations), may receive HWIR-media authorization without
certifying their ability to impose management standards on media that
no longer contain hazardous waste.
(iii) Authority to include, in the definition of media, materials
found in the natural environment such as soil, ground water, surface
water, and sediments, or a mixture of such materials with liquids,
sludges, or solids that are inseparable by simple mechanical removal
processes and made up primarily of media.
(iv) Authority to exclude debris (as defined in Sec. 268.2) and
non-media remediation wastes from the requirements of Part 269 (except
those for Remediation Management Plans).
(v) Authority to use the contained-in principle (or equivalent
principles) to remove contaminated media from the definition of
hazardous wastes only if they contain hazardous constituents at
concentrations at or below those specified in Appendix A.
(vi) Authority to require compliance with LDR requirements listed
in Sec. 269.30 through Sec. 269.34.
(vii) Authority to issue, modify and terminate (as appropriate)
permits, orders, or other enforceable documents to impose management
standards for media as described in essential elements 1-6 and 8 and 9.
(viii) Requirements for public involvement in management decisions
for hazardous and non-hazardous media as described in Sec. 269.43(e).
(ix) Authority to require that data from treatability studies and
full scale treatment of media that contain hazardous waste be submitted
to EPA for inclusion in the NRMRL treatability database.
The essential elements of HWIR-media programs are proposed in 40
CFR 271.28(a).
The preceding essential elements were developed for the proposed
options included in today's proposed rule. If EPA chooses to finalize
the alternatives discussed in this proposal, rather than the proposed
options, then the essential elements will be revised to represent the
final version of today's rule more accurately.
The Agency requests comments on the essential elements proposed for
HWIR-media authorization. The Agency also requests comments on whether
essential elements in general should be promulgated as rules, or
suggested as guidance only.
Specifically, the Agency requests comment on the essential element
(viii) for public participation. Many cleanups, particularly if they
were short term, or involved wastes that would not remain on site,
could warrant less public participation. For example, if a State agency
were cleaning up spilled petroleum in soil, which exhibited the
hazardous TC characteristic for benzene, and the remedy called for
digging it up immediately for off-site treatment or disposal, should
the Agency wait to clean up the site until it was in compliance with
the public participation requirements described above? Should the final
rule allow for different degrees of public participation depending on
the nature of the activities being performed? Should EPA allow
decisions to be made on a site-specific or case-specific basis about
the level of public participation necessary?
c. Monitoring of State HWIR-media programs and program withdrawal
(Sec. 271.28(b)). The Agency is not proposing requirements for
monitoring of State HWIR-media programs; however, a discussion of how
EPA expects this monitoring should take place is included below. The
procedures for partial program withdrawal discussed below were
developed by the HWIR-media workgroup to complement the streamlined
authorization procedures anticipated for HWIR-media.
A number of changes have occurred since these procedures were
developed. First, EPA has chosen to propose generic, streamlined
authorization procedures rather than establish authorization procedures
specific to the HWIR-media rule. (See the above discussion of Category
1 and 2 program revision authorization procedures in section
(V)(E)(3)). Second, the authorization procedures for the HWIR-media
rule, while significantly streamlined from the existing procedures for
authorization of program
[[Page 18826]]
revisions, include a level of EPA review not anticipated by the
workgroup when monitoring and partial program withdrawal procedures
were developed.
EPA has also addressed the oversight and monitoring of authorized
State programs more generally through a number of Agency workgroups and
initiatives. EPA requests comments on the degree to which the
monitoring procedures discussed below should be considered for
application beyond the HWIR-media rule. In addition, EPA requests
comments on whether partial program withdrawal would be feasible, and
whether such a provision would be necessary.
i. Monitoring of State HWIR-media programs. EPA believes that some
monitoring of State programs is necessary to ensure that the
considerable flexibility provided by today's proposed rule would be
implemented in a way that is protective of human health and the
environment. This was a particular concern to stakeholders during the
development of today's proposed rule because it allows a more
streamlined authorization for program revisions. For this reason,
stakeholders were concerned that State programs might not receive
sufficient up-front review prior to authorization to ensure that the
program would be conducted protectively.
EPA currently conducts routine monitoring of State programs in
order to identify conflicting EPA and State priorities, or areas where
the State program seems to be significantly at variance with Federal
rules or guidance. The purpose of routine monitoring is not to direct
the priorities or site-specific implementation decisions of any given
State program, but to identify problematic trends in the program.
Typically, the procedures for routine State program monitoring are
specified in the State/EPA Memorandum of Agreement, the annual or
biannual State/EPA Grant Workplan, or other written State/EPA
agreements. Often, routine State program monitoring will include mid-
and end-of-year State/EPA meetings, periodic oversight inspections, and
review of State files or enforcement cases.
EPA believes that most concerns regarding a State's implementation
of its authorized HWIR-media program could be resolved through routine
State program monitoring activities. If concerns regarding a State's
HWIR-media program implementation cannot be resolved during routine
monitoring, EPA would identify those concerns and propose options for
resolution. Depending on the degree of EPA's concerns, the Agency would
increase its monitoring of the State program accordingly. When serious
concerns are identified, and when a State's failure to address these
concerns adequately would cause significant risk to human health or the
environment, EPA would warn the State, in writing, that the State's
HWIR-media authorization could be withdrawn.
Decisions to increase the monitoring of State programs could be
made by EPA based on the Agency's own information, or based on
information submitted by independent third parties who allege poor or
inadequate performance by the State HWIR-media program. (See proposed
40 CFR 271.28(d)). EPA would consider such allegations when making
decisions about the level of program monitoring necessary in an HWIR-
media authorized State. Third party allegations are also discussed in
the section of this preamble that addresses withdrawal of authorized
State HWIR-media programs.
ii. Program withdrawal (Sec. 271.28(b)). In the event that EPA and
the State could not resolve their differences during program
monitoring, EPA could choose to withdraw the State's HWIR-media program
authorization. Program withdrawal would be for the HWIR-media portion
of the State's authorization program only.
EPA would not withdraw HWIR-media authorization without first
providing the State an opportunity to address EPA's concerns using the
monitoring discussed above. In addition, EPA would not withdraw HWIR-
media authorization without first giving the State clear, written
warning that program withdrawal was imminent.
EPA proposes that, in addition to program withdrawal initiated for
cause by EPA, any person could petition EPA at any time to withdraw a
State's HWIR-media program authorization based on allegations that the
program fails to meet the minimum national standards for an HWIR-media
program as set forth in 40 CFR 271.28(a), and discussed in today's
proposal. Whenever such petitions are received, EPA would provide
copies of the petition and all supporting documentation to the State
and allow the State at least 30 days to respond. Following the State's
response and any independent EPA investigation, EPA would respond to
all third-party allegations in writing.
When EPA determines that a State's HWIR-media program authorization
should be withdrawn, EPA will publish its tentative decision to
withdraw the State's HWIR-media program in the Federal Register, and
provide the public, including the State, at least 60 days to review and
comment on the tentative program withdrawal determination. If
requested, EPA would also hold an informal public hearing. At the close
of the review and comment period, EPA would publish its final decision
regarding withdrawal of the State's HWIR-media program in the Federal
Register. EPA's notice of final decisions would include responses to
any significant comments received during the public review and comment
period.
Following withdrawal of a State's HWIR-media program, EPA would
administer the HWIR-media program in that State using the Federal
standards for HWIR-media, and Federal enforcement authorities. (See
Sec. 271.28(c)). EPA believes it is important for HWIR-media program
implementation to continue even in States that lose their HWIR-media
program authorization because reverting to existing RCRA Subtitle C
hazardous waste management requirements would disrupt and delay the
cleanup process. In addition, since States that receive HWIR-media
authorization would expect that management standards for contaminated
media would be tailored to specific cleanup sites through the HWIR-
media process, EPA believes that it would be appropriate to continue
implementation of the program for new cleanups even if a State's HWIR-
media program authorization is withdrawn. Otherwise, management
standards could revert to the existing RCRA standards for hazardous
waste once a State's authorization for HWIR-media was withdrawn; then,
the State would no longer be able to approve Remediation Management
Plans (RMPs) or make contained-in decisions for contaminated media.
Remediation Management Plans that were approved by the State prior to
the withdrawal of its HWIR-media program would remain in effect.
However, EPA could use Federal enforcement authorities to impose
additional management requirements in these RMPs as necessary to ensure
protection of human health and the environment.
d. HWIR-media authorization in States that can be no more stringent
Than the Federal Program. Some States' statutes prohibit the
promulgation of any rules that are more stringent than Federal RCRA
regulations. EPA does not believe that such statutes would prohibit
States from adopting and implementing any portion of Part 269,
including decisions to continue regulation of media with constituent
concentrations below Bright Line concentrations as hazardous. As
proposed, this media management decision would be completely
discretionary with the overseeing
[[Page 18827]]
agency. Consequently, it would be impossible to argue that a State that
chooses to continue regulation of contaminated media under Subtitle C
would be ``more stringent'' than the Federal RCRA program. As proposed,
the Bright Line would not automatically reclassify media, even under
the Federal RCRA program. Rather, it would act as a ``ceiling'' below
which an agency overseeing cleanup of a site would have the authority
and discretion to determine whether the media should continue to be
managed as hazardous waste.
States that could be no more stringent than the Federal program
might, however, be required to adopt regulations equivalent to the new
regulations for LDR treatment standards and media treatment variances
and remediation piles. Since these new requirements would be less
stringent than the existing requirements, a State that is prohibited
from having more stringent regulations might be required to provide
equivalent flexibility.
7. Effect in Authorized States
Under section 3006 of RCRA, EPA may authorize qualified States to
administer and enforce the RCRA program within the State. Following
authorization, EPA retains enforcement authority under section 3008,
3013, and 7003 of RCRA, although authorized States have primary
enforcement responsibility.
Prior to the Hazardous and Solid Waste Amendments of 1984 (HSWA), a
State with final RCRA authorization administered the State hazardous
waste program, in lieu of EPA administering the Federal program in that
State. When new, more stringent, Federal requirements were promulgated
or enacted, authorized States were required to update their hazardous
waste programs within specified time frames to remain equivalent to the
Federal program, as revised. States were not required to update their
hazardous waste programs to conform to new Federal requirements that
were less stringent than the authorized State program. New Federal
requirements did not take effect in authorized States until the State
adopted the requirements as State law and received authorization to
implement the new requirements (in lieu of the Federal program).
In the HSWA amendments of 1984, Congress specified that the new
requirements enacted in the amendments and all implementing regulations
promulgated by EPA would take effect immediately in authorized and non-
authorized States. (See RCRA section 3006(g); 42 U.S.C. 6926(g)). While
States are still required to update their authorized hazardous waste
programs to remain equivalent to the Federal program, EPA is directed
to carry out HSWA requirements in authorized States until the State
modifies its program, and receives final or interim authorization.
Since EPA modifies portions of the Federal hazardous waste program
enacted prior to the HSWA amendments and portions of the Federal
program enacted by the HSWA amendments, there are different time frames
by which revisions to the Federal RCRA program become effective in
authorized States. New, more stringent, Federal regulations that are
promulgated pursuant to the pre-HSWA program do not take effect in
authorized States until the State modifies and updates its hazardous
waste program. New, more stringent, Federal regulations promulgated
pursuant to the HSWA amendments take effect immediately in authorized
and non-authorized States, and are implemented by EPA until the State
adopts the new requirements and revises its authorized program. New
Federal regulations (HSWA and pre-HSWA program) that are considered
less stringent than the existing Federal or authorized State programs
are optional for States to adopt and do not go into effect unless and
until States adopt them, and are authorized to implement the provisions
in lieu of EPA (except for less stringent HSWA requirements that are in
effect and implemented by EPA in unauthorized States, such as Alaska).
To ensure that authorized State programs accurately reflect the Federal
program, States are required to update their authorized hazardous waste
programs to incorporate all more stringent Federal regulations within
the time frames specified in 40 CFR 271.21(e).
Today's proposal is promulgated in part pursuant to pre-HSWA
authority, and in part pursuant to HSWA. The following sections of this
proposed rule are proposed pursuant to pre-HSWA authority: (1)
Codification of the contained-in policy for constituents lacking Bright
Line concentrations; (2) Bright Line concentrations and decisions that
media no longer contain hazardous waste; and (3) RMP issuance for
management of remediation wastes that contain hazardous wastes. The
following elements of today's proposal are proposed pursuant to HSWA
and would be modifications to the existing HSWA program that would
cause the Federal program to become less stringent: (1) LDR treatment
requirements for hazardous contaminated soil addressed under new Part
269; (2) new regulations for remediation piles; (3) media treatment
variances; and (4) interpretations that RCRA section 3004 (u) and (v)
do not apply to cleanup-only facilities. In today's proposal,
revocation of the CAMU regulations would be more stringent than
existing HSWA regulations.
In general, today's proposal is less stringent than the existing
Federal hazardous waste program and, therefore, optional for States to
adopt. The sole exception is the proposed revocation of the CAMU
regulations, which would be considered more stringent, and would thus
require adoption by States within the time frames set forth in 40 CFR
271.21(e). These time frames would provide that State modifications be
made within one year of the date of the Federal program change, or
within two years if State statutory amendments are necessary.
Since the bulk of the HWIR-media program proposed today is less
stringent than the existing Federal RCRA program, it would not be
effective in authorized States unless and until the State chose to
adopt it and become authorized. EPA believes that the relief provided
by the HWIR-media program would significantly increase the speed and
efficiency of cleanups. Therefore, States seeking authorization for a
HWIR-media program would be encouraged to use their existing State
enforcement authorities to provide for HWIR-media style relief while
their authorization applications were being reviewed.
a. Pre-HSWA requirements. The pre-HSWA requirements proposed today
would be less stringent than the existing RCRA requirements. Because
they would be less stringent, they would be optional for States to
adopt, and would not take effect in authorized States unless and until
the State adopted and became authorized for them. States with final
authorization (or States seeking final authorization concurrently with
this rule), that choose to obtain authorization for today's HWIR-media
rule, would have to adopt requirements that were no less stringent than
the requirements specified in Part 269. States that seek final program
authorization after finalization of HWIR-media regulations could choose
to apply for final program authorization without the HWIR-media
program.
b. HSWA Requirements. The HSWA requirements proposed today (with
the exception of CAMU revocation) would relate to the Land Disposal
Restriction (LDR) program, and would be less stringent than existing
LDR requirements. They would be, therefore, optional in HSWA authorized
States
[[Page 18828]]
and would not go into effect unless and until a State adopted and
became authorized for them. Normally, less stringent HSWA requirements
automatically take effect in non-HSWA authorized States. However, the
Part 269 LDR treatment requirements would not take effect because they
apply only to cleanup wastes addressed under a Part 269 program. Thus,
they would become effective in non-HSWA authorized States only when
such States obtain authorization to run a Part 269 program. States
authorized for the LDR program that choose to obtain HWIR-media
authorization, would have to adopt requirements that would be at least
as stringent as the LDR requirements specified in Part 269. States that
seek LDR authorization after promulgation of final HWIR-media
regulations would have to adopt requirements no less stringent than the
existing (non-Part 269) Federal LDR program, if they chose not to seek
authorization for today's HWIR-media requirements.
Media treatment variances. Under current regulations at 40 CFR
268.44, EPA may grant waste- or site-specific variances from treatment
standards in cases where it can be demonstrated that the treatment
standard is inappropriate for the waste, or that the waste cannot be
treated to specified levels, or treated by specified methods. Today's
proposed rule would retain the availability of treatment variances in
the implementation of the HWIR-media program, and establish HWIR-media
specific treatment variance procedures for media managed under Part
269. The Agency is clarifying today that States could seek
authorization for both the site-specific treatment variance procedures
in 40 CFR 268.44, and the HWIR-media specific treatment variance
procedures proposed in Part 269. EPA is aware that some States,
especially States that chose to adopt the Federal LDR program by
reference, could have already received authorization to issue site-
specific LDR treatment variances under 40 CFR 268.44. Because there has
been some confusion about this issue, and because EPA's current
proposal would encourage States to become authorized for treatment
variances, EPA requests the States to note in their HWIR-media program
revision application, or other authorization application, or in
official correspondence, whether or not they believe that they have
been authorized for site-specific LDR treatment variances under 40 CFR
268.44. EPA would then evaluate that aspect of a State submittal to
confirm the State's authorization for treatment variances. EPA requests
comments on this proposal, especially from States that believe they are
already authorized to approve LDR treatment variances.
CAMU revocation. EPA is proposing today to revoke the CAMU
regulations at 40 CFR 264.552 and to ``grandfather'' CAMUs approved
prior to the publication date of the final HWIR-media rule. Since
revocation of the CAMU regulations would remove that option at the
Federal level, even States that have adopted CAMU regulations as a
matter of State law and/or become authorized for CAMUs would be blocked
from approving new CAMUs by this date, when these more stringent
Federal rules would go into effect. Of course, States could still use
their CAMU regulations for non-hazardous wastes at their discretion, or
for media that do not contain hazardous wastes (and that are not
subject to LDRs).
In order to ensure that requirements for ``grandfathered'' CAMUs
remain enforceable, States that have already been authorized for the
CAMU regulations, and that choose to grandfather CAMUs, should retain
their CAMU regulations (for those grandfathered CAMUs) until those
CAMUs have expired or are terminated. States would be required,
however, to make clear that existing State CAMU regulations would not
be used to grant any new CAMUs for management of Federally hazardous
waste after the date of publication of the final HWIR-media rule.
c. Examples. The following examples illustrate the effect of
today's proposed rule in authorized States.
Example One: The State has received final base program
authorization but has not yet been authorized for the land disposal
restriction program.
Because the State has received final base program authorization,
and the pre-HSWA HWIR-media regulations proposed today are less
stringent than the existing program, the pre-HSWA HWIR-media
regulations would not be effective in the State unless and until the
State adopted and became authorized for them.
Since EPA would still be implementing the LDR program in the
State, the Part 269 LDR treatment requirements for hazardous
contaminated media and treatment variances for contaminated media
would be effective immediately upon approval of the State's HWIR-
media program, and would be implemented by EPA until the State
received the necessary LDR program authorization. On the other hand,
the new remediation pile provisions would become effective
immediately in non-HSWA authorized States, because they are HSWA
requirements that are not specific to the Part 269 program.
Example Two: The State has received final base program
authorization, and is also authorized for the land disposal
restriction program through the Third Third LDR rule.
Since the State has received final authorization and the pre-
HSWA HWIR-media regulations proposed today are less stringent than
the existing program, the pre-HSWA HWIR-media regulations would not
be effective unless and until the State adopted and became
authorized for them, as discussed in example one. Similarly, since
the State would be authorized for the land disposal restriction
program, and the remediation pile provisions (which are considered
HSWA provisions becau
FR Doc. 96-10096 Requirements for Management of Hazardous Contaminated Media (HWIR-Media)
se they affect LDRs) proposed today are
considered less stringent than the existing LDR program, the
remediation pile provisions proposed today would not be effective in
the State unless and until the State adopted and became authorized
for them.
For the less stringent Part 269 treatment standards, as
explained in example one, these would not become effective in the
State until the State chose to adopt a Part 269 program. Because the
State would already be authorized for a sufficient LDR program, the
State could also be authorized to run the LDR program of the HWIR-
media program.
Example Three: The State is authorized for the corrective action
management unit rule.
The CAMU revocation provision proposed today is the only
provision that is more stringent than the existing Federal RCRA
program and, therefore, mandatory for States to adopt. In addition,
because revocation of the CAMU regulations would remove that option
at the Federal level, even States that have adopted CAMU regulations
as a matter of State law would be blocked from implementing those
regulations when more stringent Federal rules take effect (date of
publication of final HWIR-media rule).
8. Request for Comment on EPA's Approach to Authorization
EPA requests general comments on the approach to authorization
outlined in today's proposal. In addition, as discussed above, EPA
specifically requests comments that address the following issues and
areas:
a. The use of differential authorization procedures for State
program revisions, and whether the Category 2 authorization procedures
discussed today would sufficiently recognize the sophistication of
State programs while maintaining an appropriate level of EPA review.
EPA is specifically interested in the ability of these procedures to
adequately address evaluation of a State's capability to implement any
given program revision;
b. The effect of differential authorization procedures, if any, on
State's and EPA's ability to cluster authorization applications (i.e.,
the ability to prepare and review program revision applications that
address more than one rule at the same time);
c. Whether the Category 2 procedures discussed today would be
appropriate for authorization of the HWIR-media regulations, and other
types of
[[Page 18829]]
regulations which these procedures should address;
d. The degree to which the authorization approach proposed today
would, in practice, streamline and make preparation, review, and
approval of State program revision applications more efficient;
e. The use of essential elements to target authorization
applications and review and whether essential elements should be
specified in regulations or discussed in preambles as guidance;
f. The need for a third authorization Category to address major
revisions to State programs, the types of program revisions a third
Category might address, and the potential requirements and procedures
for a third Category;
g. The degree to which the Category 1 and 2 authorization
procedures discussed today should be applied as guidance when
authorizing existing rules using the current program revision
procedures;
h. The clarification of the definition of equivalent, and whether
the proposed definition should be used for all authorization decisions,
or only for the Category 2 authorization decisions discussed in today's
proposal;
i. The use of Category 2 authorization procedures for authorization
of those States not incorporating an approved State CAA program for the
combustion standards rule by reference (as discussed in section
(V)(E)(4) of today's preamble);
j. The alternative approach to HWIR-media authorization discussed
in section (V)(E)(6)(a);
k. Whether final base-program authorization is the appropriate
prerequisite requirement for authorization of the general HWIR-media
program;
l. Whether authorization for the LDR Third Third rule is the
appropriate prerequisite requirement for authorization of the LDR
portion of the HWIR-media rule;
m. The alternative approach to HWIR-media eligibility that would
allow States proposing to use previously authorized authorities to
implement an HWIR-media program to use the Category 1 authorization
procedures, discussed in section (V)(E)(6)(a);
n. The approach to authorization of LDR treatment variances
discussed in section (V)(E)(7)(b);
o. The degree to which the monitoring procedures discussed today
would conform to the program monitoring procedures currently in place;
p. Whether the monitoring procedures discussed today are necessary,
whether they should be codified for the HWIR-media rule, and whether
they should be considered for application beyond the HWIR-media rule;
q. The feasibility of partial program withdrawal and the necessity
for such a provision;
r. The proposed and alternative approaches to HWIR-media
implementation following program withdrawal;
s. The effect today's proposed approach to authorization might have
on a State's desire to seek authorization for a State HWIR-media
program; and
t. Other suggestions for improvements to the authorization process.
F. Corrective Action Management Units--Sec. 264.552
Today's proposed rule, at Sec. 264.552, would withdraw the existing
regulations for Corrective Action Management Units (CAMUs), which were
promulgated on February 16, 1993 (58 FR 8658). Today's proposal for
Part 269 would replace much of the flexibility under the current CAMU
regulations as they apply to contaminated media. EPA does not intend to
withdraw the CAMU regulations without, at the same time, substituting
one of today's options in its stead.
States with existing CAMU regulations would need to come in for
program revisions, to make their programs as stringent as the Federal
program. Today's proposal would also grandfather CAMUs that have
already been approved by EPA and the States, by the publication date of
the final HWIR-media rule. The original CAMU rulemaking also included
provisions for temporary units to be used for management of cleanup
wastes. These provisions would not be affected under today's proposal,
thus the Agency is not reopening these requirements for comment at this
time.
The CAMU rule was the Agency's initial attempt to resolve many of
the problems that have been encountered by EPA and State cleanup
programs in applying the prevention-oriented Subtitle C regulations
(specifically, the land disposal restrictions (LDRs) and minimum
technology requirements (MTRs)) to the management of cleanup wastes.
The rule has allowed regulators to designate an area at a facility as a
CAMU, and has specified that placement of cleanup wastes into a CAMU
does not trigger LDR or MTR requirements that would otherwise apply.
Because the rule was designed to provide flexibility to regulators for
prescribing site-specific management requirements for cleanup wastes,
the regulations do not prescribe specific standards for design or
operation of CAMUs, or generic national treatment standards for cleanup
wastes that are managed in CAMUs. Since its promulgation, the final
CAMU rule has been used by EPA's Superfund program, the RCRA corrective
action program, and other State cleanup programs. However, the actual
number of CAMUs that have been approved to date is relatively small.
EPA is aware of fewer than twenty CAMUs that have been approved.
Some parties have argued that the CAMU rule allows regulators too
much discretion in determining appropriate, site-specific management
requirements for cleanup wastes. Those parties support the idea of
having some type of minimum national LDR treatment standards for
cleanup wastes (especially for sludges and other non-media wastes),
rather than allowing regulators to specify treatment requirements on a
case-by-case basis.
When the HWIR-FACA Committee was initiated, EPA, and most of the
State participants on the committee, agreed to consider whether the
CAMU regulations should be modified or replaced with a different
regulatory approach.
The Agency is proposing to replace the existing CAMU regulations
with today's proposed rule, except that it would retain existing CAMUs
approved prior to publication of the final HWIR-media rule. The Agency
believes that much of the site-specific flexibility provided in the
CAMU rule has been preserved in this proposal, especially for less-
contaminated media. Further, the proposal would modify the minimum LDR
treatment standards specified in the Part 269 regulations specifically
to be more compatible with the realities of treating contaminated
media. Today's proposal should also minimize potential disruptions to
site cleanups that are planned or underway, since existing CAMUs
approved prior to the publication date of a final HWIR-media rule could
continue to operate until their cleanup activities are complete. (See
discussion below.)
At the same time, the Agency believes that the CAMU rule has been
used successfully to expedite cleanups, and that it has provided much
needed flexibility for remedial actions at RCRA corrective action and
Superfund. Furthermore, replacing the CAMU regulations with today's
HWIR-media rules could have a significant impact in some situations,
particularly in remedies involving sludges and other non-media wastes.
The proposal would cover only contaminated media, whereas all types of
cleanup wastes can be managed in CAMUs. Actually, a number of the CAMUs
that have already
[[Page 18830]]
been approved will be managing sludges from cleanups. Thus, the
flexibility provided under the proposed HWIR-media rule would apply to
a more limited spectrum of cleanup wastes. Sludges and other non-media
cleanup wastes would be subject to the traditional hazardous waste
regulations, including LDRs and MTRs. (See discussion in section
(V)(A)(2) of this preamble.)
Therefore, the Agency requests comments on what benefits might
accrue if the CAMU rule were retained. (See letter from M. L. Mullins,
Vice President-Regulatory Affairs, Chemical Manufacturers Association,
to Michael Shapiro, Director, Office of Solid Waste, EPA (August 22,
1995).) Specifically, the Agency requests comments on what the
ramifications may be of failing to provide the degree of relief that
the CAMU rule has provided. The Agency is also interested in ways that
the CAMU might be modified to target the CAMU provisions on wastes that
pose lower risks. For example, the Agency could incorporate a Bright
Line approach in CAMU.
Today's proposed rule would grandfather CAMUs that were approved
before the publication date of this rule. Thus, an owner/operator who
was conducting a cleanup that involved an approved CAMU would be able
to continue using the unit until the cleanup is complete, under the
terms of the permit or order. EPA believes that this provision is
reasonable and would help avoid delays and disruptions to ongoing
cleanup actions. In addition, EPA believes that not providing this type
of grandfathering would raise important questions of fairness because
they were approved according to the regulations in effect at the time,
and because EPA has encouraged the use of CAMUs when the flexibility
they provide is necessary to selecting and implementing sensible,
protective remedies.
EPA considered various grandfathering options for CAMUs, such as
establishing a certain time limit (e.g., one year) for operating
existing CAMUs after the Part 269 rules were promulgated. EPA does not
believe that such a limitation would be necessary or desirable. Some
remedies require several years to fully implement, and could be
adversely affected if an existing CAMU had to cease operations. For
example, risks of exposure to highly contaminated sites could continue
for several more years while the regulators, owners, and operators
negotiate a new site remedy, instead of implementing the CAMU remedy
they had already agreed upon and determined would be protective. The
CAMUs that have been approved to date have been a key factor in
accelerating the cleanup process and allowing protective remedies to be
implemented at considerable cost savings.
If today's rule is finalized as proposed, States that have adopted
the CAMU regulations would be required to revise these regulations
after the publication of final HWIR-media regulations in order to
remain as stringent as the Federal program. (Except when the State CAMU
rules are as stringent as the current Federal program, for example, in
requiring wastes to be treated to LDRs before being placed in a CAMU.)
Of course, States would still be allowed to use the Area of
Contamination (AOC) concept, which would not be changed by today's
proposal (55 FR 8666, 8758-8760, March 8, 1990; and also the memorandum
from Michael Shapiro, Director, Office of Solid Waste, Stephen D.
Luftig, Director, Office of Emergency and Remedial Response, and Jerry
Clifford, Director, Office of Site Remediation Enforcement, EPA to RCRA
Branch Chiefs and CERCLA Regional Managers, (March 13, 1996)). More
discussion on State authorization for these HWIR-media rules is
presented in section (V)(E) of this preamble.
G. Remediation Piles--Secs. 260.10 and 264.554
Today's rulemaking proposal would establish a new type of unit--
remediation piles--that would preserve needed flexibility for
conducting certain types of cleanup activities. Proposed Sec. 260.10
specifies the following definition:
Remediation Pile means a pile that is used only for the
temporary treatment or storage of remediation wastes, including
hazardous contaminated media (as defined in Sec. 269.3), during
remedial operations.
This definition would appear in Sec. 260.10, where most of the RCRA
hazardous waste regulatory definitions are codified, rather than in
Sec. 269.3, which defines terms specific to the Part 269 regulations.
This is because remediation piles would be able to accept all types of
remediation wastes, rather than only hazardous contaminated media. As a
result, remediation piles could be approved for remedial actions that
are not regulated by Part 269.
The primary reason for creating this new type of unit is that under
current regulations, waste piles are considered land disposal units,
and all hazardous wastes must be treated to LDR standards before being
placed into the pile. Remediation piles, however, would not be
considered land disposal units under this proposed rule; they are not
listed in section 3004(k), (see discussion below); and these
regulations clearly specify that they may be used only for temporary
treatment or storage of cleanup wastes. For reasons noted below, the
Agency believes that this type of unit, which would not trigger LDRs,
would provide necessary flexibility in situations where application of
the LDRs would create obstacles to common sense remedies.
One of the principal goals of this proposed rule is to achieve a
net environmental benefit by facilitating the cleanup of as many
contaminated sites as possible. The Agency also believes that
remediation piles would be necessary to facilitate the cleanup of many
previously contaminated sites. The physical, economic, and technical
limitations on the operation of a cleanup program could dictate that
remediation wastes be temporarily stored and/or concentrated in a
centralized location onsite prior to completion of the remedial
activity. Similarly, once the wastes had been placed in a remediation
pile it could be advantageous to begin some form of treatment or
pretreatment to reduce the level of threat posed by the wastes prior to
its ultimate disposal.
Because of the potentially large volumes of contaminated media
encountered during remedial action, prohibiting such wastes from being
temporarily treated or stored in onsite piles (unless it met LDR
standards) would be counterproductive since it would be a disincentive
to the cleanup activities. The Agency believes that the temporary
existence of a controlled activity using a remediation pile would be
preferable to the continuing, unmanaged presence of contaminated media,
and the resulting threat against human health and the environment, for
an indefinite period of time. In endorsing the idea of remediation
piles, the Agency is in no way authorizing the indefinite operation of
the piles, or the use of them for permanent disposal. The obligatory,
temporary nature of remediation piles is the primary difference between
the piles and the previously used CAMUs.
The design and operating requirements for remediation piles are
specified in proposed Sec. 264.554. Although these provisions are being
proposed in Sec. 264.554, remediation piles could also be approved
under orders, and at interim status facilities. As explained above,
placement of remediation wastes into a remediation pile would not
trigger RCRA land
[[Page 18831]]
disposal restrictions, because such placement would not constitute
``land disposal'' according to RCRA Sec. 3004(k)'s definition of land
disposal. For a further discussion of the Agency's position that would
be reasonable to interpret Sec. 3004(k) to exclude placement of
remediation wastes into units used solely for cleanup purposes. (See 58
FR 8658, 8662, (February 16, 1993)). The unit would also not be subject
to minimum technology requirements (MTRs) under section 3004(o), since
the pile would not be considered a land disposal unit subject to those
requirements.
Other types of piles (e.g., piles not used for cleanup purposes)
would remain subject to the Subpart L requirements of Parts 264 and
265, and wastes placed into such piles would be subject to LDRs.
Additionally, the use of a remediation pile does not allow remediation
wastes to be entirely exempt from the LDR requirements. Since
remediation piles are temporary and not intended for disposal, all
wastes being held in remediation piles must eventually meet LDRs at the
time of their ultimate disposal.
EPA's objective in proposing the concept of remediation piles in
Part 264 rather than in Part 269 with the rest of the HWIR-media
provisions is that the Agency wishes to encourage remedial action of
contaminated sites by making the use of these units more widely
available for those cleanups that are not mandated by RMPs under Part
269, or include remediation wastes other than contaminated media.
Remediation piles are intended to preserve flexibility for decision
makers in situations where site cleanup involves the temporary storage
or treatment of remediation wastes prior to disposal. Unlike CAMUs,
remediation piles could not be used for disposal of wastes; remediation
piles would be required to close by removal of wastes (i.e., ``clean
close''), as do tanks, containers, and other types of hazardous waste
storage and treatment units. As with the existing CAMU regulations,
remediation piles would have to be located at the cleanup site, and
could not be used to manage any wastes other than remediation wastes.
The flexibility that would be provided by the proposal for
remediation piles is currently available through use of the CAMU
concept; such units would currently be considered CAMUs for regulatory
purposes, and would be subject to the requirements of Sec. 264.552. The
net effect of this proposal for remediation piles would thus be to
preserve the existing flexibility and regulatory relief from LDRs and
MTRs in situations involving the temporary placement of remediation
wastes in piles. Although today's Part 269 proposal would provide some
relief for these types of situations (particularly for below the Bright
Line wastes), EPA believes that remediation piles would be useful in
facilitating cleanups at a large number of sites.
Because wastes and media volumes, and the expected duration of
cleanup activities at cleanup sites all vary, EPA believes that the
Director is best able to determine the site-specific conditions for the
safe and effective operation of a remediation pile on a site-specific
basis. Therefore, today's proposal for remediation piles does not
prescribe any specific design or operating standards; the Director
would establish such requirements on a case-by-case basis, using the
decision factors specified for Temporary Units. (See Sec. 264.553(c)).
EPA considered a more prescriptive approach that would have
established certain minimum standards for remediation piles. For
example, standards for liners could be specified in the regulation, as
could standards for covers or other methods for controlling air
emissions, and wind and water dispersal, or other design and operating
standards. Comments are requested as to whether more national
uniformity is necessary in the design and operation of remediation
piles, or whether such decisions are more appropriately made on a site-
specific basis. Comments are also requested as to the types of minimum
standards that should be applied to remediation piles (assuming such
national standards are necessary), whether certain time limits or
renewable time limits should be set for operating such units, and
whether creating this new type of unit would be necessary at all.
H. Dredged Material Exclusion--Sec. 261.4
In addition to the media management requirements discussed above,
today's proposed rule contains a provision to clarify the relationship
of RCRA Subtitle C to dredged material. Specifically, EPA today
proposes to establish that dredged material disposed in waters of the
United States in accordance with a permit issued under section 404 of
the Clean Water Act (CWA) or in ocean waters in accordance with a
permit issued under section 103 of the Marine Protection, Research, and
Sanctuaries Act (MPRSA),31 would not be subject to Subtitle C of
the Resource Conservation and Recovery Act (RCRA)(Sec. 261.4(h)). This
approach is authorized under RCRA section 1006, which calls for the
Agency, in implementing RCRA, to avoid duplication with other Federal
statutes.
---------------------------------------------------------------------------
\31\ ``Permit'' also includes the administrative equivalent, a
finding of compliance with the substantive requirements of the CWA
or MPRSA, for U. S. Army Corps of Engineers' civil works projects
authorized by Congress.
---------------------------------------------------------------------------
At present, if dredged material proposed for disposal in the
aquatic environment is contaminated or suspected of being contaminated,
the potential application of both RCRA Subtitle C regulations, and
dredged material regulations under CWA or MPRSA, complicates efficient
assessment and management of potential environmental impacts. Today's
proposal would eliminate the potential overlap of RCRA Subtitle C with
the CWA and MPRSA programs by establishing an integrated regulatory
scheme for dredged material disposal that ensures an accurate and
environmentally sound evaluation of any potential impacts to the
aquatic environment.
Dredged Material Regulation Under CWA and MPRSA
Section 404 of the CWA establishes a permit program to regulate the
discharge of dredged or fill material into waters of the United States
that is jointly administered by the U. S. Army Corps of Engineers
(Corps) and EPA. Proposed discharges must comply with the environmental
criteria provided in 40 CFR Part 230 in order to be authorized. The EPA
and Corps regulations under section 404 define dredged material as
``material that is excavated or dredged from waters of the United
States.'' Dredged material can be mechanically or hydraulically
dredged, and disposed of by barges or pipelines into river channels,
lakes, and estuaries. Today's proposal does not address ``fill
material,'' such as that discharged to replace portions of the waters
of the United States with dry land.
In addition to such discharges as open water disposal from a barge,
the section 404 regulations specifically identify the runoff or return
flow from a contained land or water disposal area into waters of the
United States as a discharge of dredged material. In most cases, this
type of discharge occurs from a weir and outfall pipe to drain water
from a confined disposal facility (CDF), including the water entrained
with the solid portion of the dredged material discharged at the site
and from rainwater runoff. Impacts to uplands, as well as groundwater,
air, and other endpoints, can be addressed within the section 404
permitting process as potential impacts of a discharge of dredged
material into waters of the U.S. However, in those cases where upland-
[[Page 18832]]
disposed dredged material has no return flow to waters of the United
States, as defined by section 404, the dredged material is not
regulated under the CWA, and therefore may be subject to RCRA Subtitle
C, even under today's proposed regulatory revision.
The MPRSA regulates the transportation of material, including
dredged material, that will be dumped into ocean waters. Section 102 of
the MPRSA requires that EPA, in consultation with the Corps, develop
environmental criteria for reviewing and evaluating applications for
ocean dumping permits. Section 103 of the MPRSA assigns to the Corps
the responsibility for authorizing the ocean dumping of dredged
material, subject to EPA review and concurrence. In evaluating proposed
ocean dumping activities, the Corps is required to determine whether
such proposals comply with EPA's ocean dumping criteria (40 CFR Parts
220-228).
Dredged Material Regulation Under RCRA
RCRA (42 U.S.C. 6901 et seq.) regulates the assessment, cleanup,
and disposal of solid and hazardous wastes under Subtitles D and C,
respectively. A solid waste is considered hazardous for regulatory
purposes if it is listed as hazardous in RCRA regulations or exhibits
any of four hazardous waste characteristics: ignitability, corrosivity,
reactivity, or toxicity. Dredged material could trigger RCRA's Subtitle
C requirements by exhibiting any of the four characteristics or by
containing a listed hazardous waste.
EPA regulations at 40 CFR Parts 270 and 124 set forth application
requirements and procedures for issuing RCRA hazardous waste permits
under RCRA Subtitle C. In developing a permit, the permitting authority
considers the potential pathways of human and ecological exposures to
hazardous wastes resulting from releases at the unit, and the potential
magnitude and nature of those exposures. Permit conditions are
established as necessary to achieve compliance with the standards and
restrictions set forth in Parts 264 and 266 through 268 (and proposed
269) (or the authorized State program). In addition, RCRA section
3005(c)(3) authorizes the permit writer, on a site-specific basis, to
add conditions to a permit that go beyond the applicable regulations
where such additional requirements are necessary to protect human
health and the environment (42 U.S.C. Sec. 6925(c)(3)).
The specific requirements of RCRA Subtitle C that would otherwise
apply to the disposal of dredged materials in the aquatic environment
would differ depending on whether these activities were considered to
be acts of ``land disposal'' as defined in RCRA Sec. 3004(k). If
considered to be ``land disposal,'' a more extensive set of
requirements under RCRA Subtitle C would apply, including land disposal
restrictions treatment standards (Sec. 3004(m)) and minimum technology
requirements (Sec. 3004(o)).
Clarification of Regulatory Jurisdiction
EPA proposes to revise the RCRA regulations to provide that the
discharge of dredged material to waters of the United States pursuant
to a permit under section 404 of the CWA or to ocean waters pursuant to
a permit under section 103 of the MPRSA would not be subject to RCRA
Subtitle C requirements. Specifically, 40 CFR 261.4, which lists
exclusions from the hazardous waste provisions of RCRA, would be
amended by adding dredged material discharges covered by CWA or MPRSA
permits (or authorized administratively in the case of Corps civil
works projects) to the list of exclusions.
This proposal would exclude dredged material disposal only from the
requirements of Subtitle C, and would not exclude it from the
requirements of Subtitle D. This exclusion would not diminish the
authority of the Administrator to take action under section 7003 of
RCRA to address situations of imminent hazard to human health or the
environment. As noted above, upland disposal of dredged material with
no return flow to waters of the United States (i.e., not regulated
under section 404 of CWA) would not be subject to the exclusion, and
therefore would still be subject to the requirements of RCRA Subtitle C
as appropriate. Finally, management of dredged material not disposed of
in waters of the United States in accordance with a permit issued under
section 404 of the Clean Water Act (CWA), or not disposed of in ocean
waters in accordance with a permit issued under section 103 of the
Marine Protection, Research, and Sanctuaries Act (MPRSA), (e.g.,
dredged material managed for purposes of cleanup under RCRA corrective
action or CERCLA), would not be eligible for this exclusion, and
therefore, could be subject to RCRA Subtitle C requirements.
Today's proposed rule would establish an integrated approach to the
regulation of dredged material disposal that would avoid duplicative
regulatory processes, while ensuring an accurate, appropriate, and
environmentally sound evaluation of potential impacts to the aquatic
environment. This approach is authorized under section 1006(b) of RCRA,
which states that ``the Administrator * * * shall avoid duplication, to
the maximum extent practicable, with the appropriate provisions of * *
* the Federal Water Pollution Control Act (CWA), * * * the Marine
Protection, Research and Sanctuaries Act, * * *, and such other Acts of
Congress as grant regulatory authority to the Administrator.'' Section
1006(b) of RCRA calls for the provisions of RCRA to be integrated with
other statutes, including the CWA and the MPRSA, to avoid duplication
when such integration ``can be done in a manner consistent with the
goals and policies expressed'' in RCRA and the other Acts.
The Agency believes that the CWA and MPRSA programs described above
fully protect human health and the environment from the consequences of
dredged materials disposal. These programs incorporate appropriate
biological and chemical assessments to evaluate potential impacts on
water column and benthic organisms, and the potential for human health
impacts caused by food chain transfer of contaminants. They also make
available appropriate control measures for addressing contamination in
each of the relevant pathways. These programs are more fully described
in support documents that are included in the record for this proposal
and are available in the docket for today's proposed rule.
The Agency believes that RCRA Subtitle C coverage of dredged
materials disposal in the aquatic environment, whether or not this
disposal is considered to be ``land disposal'' under RCRA, is
duplicative and unnecessary when considered alongside the CWA and MPRSA
coverage of these activities. The overriding goal of each of the three
statutory programs is to protect human health and the environment, and
the CWA and MPRSA programs fully achieve this goal by addressing the
proposed aquatic disposal of dredged material.
Moreover, applying the RCRA Subtitle C program together with the
CWA and MPRSA permitting programs might be unduly burdensome and cause
unnecessary procedural difficulties--e.g., by requiring duplicate
permit applications and procedures. It is also possible that the
duplicative nature of the programs could in fact increase environmental
risks by causing delays in proper disposal. The Agency believes that
today's proposal, which would divide coverage, would therefore be
[[Page 18833]]
appropriate and consistent with the goals and policies in each of these
statutes. Accordingly, under RCRA Sec. 1006(b), today's regulatory
proposal would be an appropriate way to integrate the CWA and MPRSA
permitting schemes with the RCRA Subtitle C program.
VI. Alternative Approaches to HWIR-media Regulations
EPA believes that the specific regulatory proposal that is
presented in today's proposed rule is consistent with the objectives
that EPA and the States had in mind for the HWIR-media rule. Those
objectives are discussed in section III of this preamble. However,
alternative approaches may offer significant advantages as well as
disadvantages compared to today's proposed rule; some might be quite
different from the proposal. EPA will continue to examine such
alternatives, and invites commenters to address these fundamental
issues in addition to providing comments on the specifics of the rule
as proposed.
As explained previously in this preamble, today's proposed rule was
created expressly to reflect the concepts and directions identified in
the ``Harmonized Approach'' developed by the FACA Committee. Thus,
although a number of alternatives were identified and considered by EPA
and other parties throughout the process of developing this proposal,
adhering to the Harmonized Approach in many cases precluded certain
alternative concepts from being included. In addition, not all
controversial issues were resolved by the FACA Committee. In fact, some
issues central to the framework of today's proposed rule provoked
strong disagreement. The Agency specifically requests comments on
alternatives in the areas where agreement was not reached.
In EPA's view, a critical element both within the proposal and in
the other alternatives identified in the preamble (e.g., the Unitary
Approach) is the rationale used for exempting wastes from Subtitle C.
Under today's proposed rule, implementing agencies would be able to
allow lower-risk contaminated media to generally exit the Subtitle C
system based on the contained-in principle (i.e., Subtitle C doesn't
apply if EPA or a State determines that a medium doesn't contain wastes
that present a hazard (hazardous wastes) based on site-specific
circumstances or controls in a RMP). The legal theory supporting
``conditional exclusions'' is broader than the contained-in theory, and
need not be limited to contaminated media. The ``conditional
exclusion'' theory is based upon EPA's understanding that RCRA provides
EPA and the States the discretion to determine that a waste need not be
defined as ``hazardous'' where restrictions are placed on management
such that no improper management could occur that might threaten human
health or the environment. (See definition of hazardous waste at RCRA
section 1004(5)(B)). The HWIR-waste proposal included a full discussion
of the legal basis for this position (60 FR 66344-469, Dec. 21, 1995).
This theory is also discussed in section (V)(A)(4)(a). For the sake of
clarity, it is repeated below.
EPA's original approach to determining whether a waste should be
listed as hazardous focused on the inherent chemical composition of the
waste and assumed that mismanagement would occur causing people or
organisms to come into contact with the waste's constituents. (See 45
FR 33113, (May 19, 1980)). Based on more than a decade of experience
with waste management, EPA believes that it is inappropriate to assume
that worst-case mismanagement will occur. Moreover, EPA does not
believe that worst-case assumptions are compelled by statute.
In recent hazardous waste listing decisions, EPA identified some
likely ``mismanagement'' scenarios that are reasonable for almost all
wastewaters or non-wastewaters, and looked hard at available data to
determine if any of these are unlikely for the specific wastes being
considered, or if other scenarios are likely, given available
information about current waste management practices. (See the
Carbamates Listing Determination (60 FR 7824, (February 9, 1995)) and
the Dyes and Pigments Proposed Listing Determination (59 FR 66072,
(December 22, 1994)). Further extending this logic, EPA believes that
when a mismanagement scenario is not likely, or has been adequately
addressed by other programs, the Agency need not consider the risk from
that scenario in deciding whether to classify the waste as hazardous.
EPA believes that the definition of ``hazardous waste'' in RCRA
section 1004(5) permits this approach to hazardous waste
classification. Section 1004(5)(B) defines as ``hazardous'' any waste
that may present a substantial present or potential hazard to human
health or the environment ``when improperly * * * managed.'' EPA reads
this provision to allow it to determine the circumstances under which a
waste may present a hazard and to regulate the waste only when those
conditions occur. Support for this reading can be found by contrasting
section 1004(5)(B) with section 1004(5)(A), which defines certain
inherently dangerous wastes as ``hazardous'' no matter how they are
managed. The legislative history of Subtitle C of RCRA also appears to
support this interpretation, stating that ``the basic thrust of this
hazardous waste title is to identify what wastes are hazardous in what
quantities, qualities, and concentrations, and the methods of disposal
which may make such wastes hazardous.'' H.Rep. No. 94-1491, 94th Cong.,
2d Sess. 6 (1976), reprinted in ``A Legislative History of the Solid
Waste Disposal Act, as Amended,'' Congressional Research Service, Vol.
1, 567 (1991) (emphasis added).
EPA also believes that section 3001 gives it flexibility in order
to consider the need to regulate as hazardous those wastes that are not
managed in an unsafe manner (section 3001 requires that EPA decide, in
determining whether to list or otherwise identify a waste as hazardous
waste, whether a waste ``should'' be subject to the requirements of
Subtitle C.) EPA's existing regulatory standards for listing hazardous
wastes reflect that flexibility by allowing specific consideration of a
waste's potential for mismanagement. (See Sec. 261.11(a)(3)
(incorporating the language of RCRA section 1004(5)(B)) and
Sec. 261.11(c)(3)(vii) (requiring EPA to consider plausible types of
mismanagement)). Where mismanagement of a waste is implausible, the
listing regulations do not require EPA to classify a waste as
hazardous, based on that mismanagement scenario.
The Agency believes, therefore, that it may be appropriate for EPA
and the States to consider site-specific management controls when
making decisions that media and remediation wastes, managed pursuant to
a RMP or RAP under the various alternatives to today's proposed rule,
are exempt from Subtitle C. EPA believes that this approach may be
especially appropriate in the Part 269 context, because of the
significant level of oversight generally given to cleanup actions.
State or EPA oversight of cleanup activities, and the requirements set
out in the RMP for management controls that are tailored to site-
specific circumstances, could ensure that the site-specific management
controls that the Director used as a basis for the ``conditional
exclusion'' decision would continue to be implemented. EPA or States
could specify that media exempted under ``conditional exclusions''
would only be considered nonhazardous so long as they were managed in
the manner specified by the Director in the RAP or
[[Page 18834]]
RMP. Deviations (any, or specific ones) would result in a reversion to
Subtitle C regulation.
Using this legal theory could have several advantages in the
context of an HWIR-media rule. For one, allowing all contaminated media
or remediation wastes to exit from Subtitle C could avoid many of the
complexities that come with regulation within the hazardous waste
regulatory system. Overseeing agencies would have much more flexibility
to prescribe inclusive, site-wide solutions for contaminated media,
rather than a limited series of separate approaches. In particular,
more types of cleanup wastes, such as old sludges, could be covered
under the HWIR-media system. This would provide significantly greater
relief, because many corrective actions address old wastes as well as
contaminated media.
Under the proposed rule, it would be entirely possible that cleanup
wastes at the same site could be subject to as many as three different
sets of regulatory requirements (for example, ``base'' Subtitle C
regulations for non-media, modified Subtitle C regulations for media
above the Bright Line, and site-specific requirements for media below
the Bright Line). Using a conditional exclusion theory without dividing
remediation wastes and media, and without dividing media above and
below the bright line, could allow all cleanup wastes at a site to be
covered under a single regulatory regime that would be more
straightforward to implement, and easier to comply with and understand.
A specific alternative, introduced earlier in this proposal, called
the Unitary Approach, would take a different approach on a number of
key elements from the proposed approach. The following sections present
detailed discussions of (1) the Unitary Approach, (2) a hybrid
conditional exclusion approach which would combine elements of both the
Unitary Approach and the proposed approach and, (3) some of the key
elements of these several alternatives that deserve careful
consideration.
A. The Unitary Approach
1. Overview of Unitary Approach
Under the Unitary Approach suggested by Industry (see letter from
James R. Roewer, USWAG Program Manager, Utilities Solid Waste
Activities Group, to Michael Shapiro, Director, Office of Solid Waste,
EPA (September 15, 1995) in the docket to today's proposal) and
discussed previously in section IV of this preamble, management of
remediation wastes would proceed according to requirements set forth in
an enforceable remedial action plan (RAP) approved by EPA or an
authorized State. The RAP could be part of another document, for
example, a CERCLA ROD, corrective action RFI workplan, etc. The non-RAP
portions of the document might deal with other aspects of the
investigation and cleanup not addressed in this proposed rule, such as
the cleanup goals to be achieved, the extent of materials to be
excavated during the cleanup, or the scope of the pre-cleanup
investigation. This would be intended to avoid duplication and overlap
with existing cleanup program requirements, while assuring that the RAP
adequately described how remediation wastes will be managed
protectively. In that manner, the RAP would be similar to the RMP in
today's proposed rule.
More than one RAP might be used during the course of a remediation.
For example, one document might govern management of wastes from the
investigation or pilot study phase, while another might be employed for
the remediation phase. A RAP might also be prepared and submitted for
approval to allow subsequent management as remediation wastes, of
materials that were originally produced as ``hazardous wastes'' during
remediation and that had previously been staged as such, for example,
drill cuttings or produced ground water.
Remediation wastes that would otherwise be hazardous wastes would
not be subject to regulation as hazardous wastes when managed in
accordance with an approved RAP. All hazardous remediation wastes
managed during the cleanup, including during the investigation phases,
would be eligible for management under a RAP. This is consistent with
today's proposed approach for RMPs.
Management standards for the remediation wastes would be set forth
in the approved RAP. The management standards would be tailored to be
protective of human health and the environment, as determined by the
overseeing Agency. EPA or the authorized State could employ such
standards as it deemed appropriate for the specific remediation wastes
involved, the location where the remediation wastes would be managed,
and the site-specific risk posed by the contemplated management
approach. For example, the substantive standards of the RCRA
containment building regulations might be suitable in a given
situation, or local ground water considerations might make it advisable
for particular treatment tanks to have secondary containment. In
setting the standards for a given RAP, the overseeing agency could turn
to existing State or federal standards or remediation waste management
practice or experience appropriate for the wastes as managed during the
remedial activities contemplated by the RAP.
The RAP would have to describe how the wastes to be managed under
it would be aggregated and stored, both on-site, and if applicable,
off-site. The nature and effectiveness of any treatment methodologies
to be used would need to be described as well. The specific method and
location for disposal of any wastes or treatment residuals that would
otherwise be required to be managed as hazardous waste would also be
addressed. Of course, the option of simply managing a particular
remediation waste as a hazardous waste would remain available and, in
such an instance, that aspect of remediation waste management would not
be addressed in the RAP subject to review and approval pursuant to this
Part.
In the Unitary Approach proposed by industry, RCRA treatment
requirements and the land disposal restrictions would not apply to
remediation wastes, and there would be no Bright Line concept ensuring
that higher-concern wastes were managed under Subtitle C-like
standards. EPA and overseeing States would have the authority to
prescribe in RAPs whatever management and treatment standards they
deemed appropriate; the only specific regulatory standard would be that
remedies be protective of human health and the environment. EPA
recognizes that this approach would give program implementers much
needed flexibility in overseeing cleanups. In its economic analysis
supporting today's rulemaking (discussed later in this preamble), EPA
assumed that the costs of waste treatment would be comparable under
both the proposed and the Unitary approaches, because the overseeing
agencies in both cases would generally require some level of treatment
where a remedy involved management of highly contaminated waste. EPA
acknowledges that the specific language of the Unitary Approach, as
proposed by industry, does not provide guidance on when treatment might
be needed. EPA solicits comments on whether the Unitary Approach (if
adopted) should include specific direction in this area, and what
language might be appropriate. One approach would be to include a
Bright Line with a presumption for treatment of wastes above the Bright
Line. This approach, however, would raise the implementation
difficulties discussed
[[Page 18835]]
elsewhere. Another approach would be to capture the same intent through
more general and flexible regulatory language. For example, the rule
might specify that the overseeing agency consider, and as appropriate
require, waste treatment before land disposal, where the remediation
waste might present a substantial risk, either because of high
concentrations of hazardous constituents or because it could not be
contained reliably over time. This language would not prescribe a
specific approach in any given situation, but it would ensure that
treatment was seriously considered where wastes presented significant
risks and effective treatment was available.
2. Legal Authority for the Unitary Approach
As discussed above (introduction to section VI), EPA believes that
RCRA provides the Agency with the discretion to determine that wastes
should not be defined as ``hazardous'' when mismanagement of the waste
is not likely.
If EPA were to finalize a rule similar to the one suggested in the
Unitary Approach, which is based upon a ``conditional exclusion'' or
``conditional exemption'' theory, the Agency would base the finding
that mismanagement of the covered wastes and media is unlikely on the
Agency's belief that States that are authorized for the HWIR-media
program will set appropriate management standards, and provide an
appropriate level of oversight of remedial actions, so as to ensure
that such wastes are managed protectively. Specifically, EPA's
conclusion that mismanagement is not likely would be based primarily on
the rule's provisions for prior State program approval, public notice
and comment on all RAPs, and ``streamlined'' State program withdrawal
where a State is found not to be operating its HWIR-media program in a
protective manner.
The Agency requests comment on whether this conclusion would be
appropriate.
3. LDRs Under the Unitary Approach
Earlier in today's proposal, EPA discussed the applicability of the
land disposal restrictions (LDRs) to contaminated media and requested
comments on alternatives to the approach to the LDRs taken today. Under
the Unitary Approach, remediation wastes (including contaminated media)
addressed in a RAP would, as a general matter, be excluded from all
RCRA Subtitle C requirements, including LDRs. The proponents of the
Unitary Approach have not put forth a legal rationale to explain why
LDRs would not continue to apply to hazardous wastes that are
determined not to be hazardous after their point of generation. As was
discussed in section (V)(A)(4) of this preamble, following the logic of
the court in Chemical Waste Management v. EPA, 976 F.2d 2 (D.C. Cir.
1992), elimination of a waste's ``hazard'' designation does not
necessarily eliminate LDR obligations. Thus, for wastes that have
entered the Subtitle C system, and for which LDRs have attached, a
finding that such wastes are conditionally exempt from RCRA may not
eliminate LDR obligations.
If EPA were to promulgate a program modeled after the Unitary
Approach, the Agency would likely address the residual LDR issue by
applying the ``new treatability group'' approach to LDRs [instead of
the approach proposed today]. As discussed earlier, changes in
treatability group can result when the properties of a waste that
affect treatment performance change enough so that the waste is no
longer considered similar to the wastes EPA evaluated when it
established the applicable LDR treatment standards. Each change in
treatability group is a new point of generation for purposes of
determining whether a waste is hazardous under RCRA Subtitle C.
Therefore, if contaminated media were, by definition, considered a new
treatability group under the LDR program, and, as discussed in the
Unitary Approach, media addressed in a RAP is, by definition, not
considered hazardous waste, media addressed in a RAP would not be
subject to the LDR treatment standards. This would typically remove
contaminated media addressed in a RAP from the duty to comply with the
LDR requirements.32
---------------------------------------------------------------------------
\32\ The exception would be media that are still considered
hazardous (e.g., because a RAP has not been issued) when removed
from the land. In this case, the applicable LDRs would attach and
the media would have to attain compliance with the standards of RCRA
section 3004(m) even if it were later made subject to a RAP and
therefore determined to no longer be hazardous.
---------------------------------------------------------------------------
For remediation wastes other than media, as long as the wastes were
not prohibited from land disposal when first placed (i.e., when first
land disposed), the land disposal restrictions do not attach unless
these wastes are still considered hazardous when they are removed from
the land. Therefore, if, due to issuance of a RAP, such wastes were
determined to be non-hazardous before they were removed from the land,
the land disposal restrictions would not apply. This approach would
remove most non-media remediation wastes addressed in a RAP from the
duty to comply with LDR requirements.33
---------------------------------------------------------------------------
\33\ The exception would be non-media hazardous remediation
wastes (e.g., sludges, hazardous debris) which were first land-
disposed (placed) after the effective date of the applicable land
disposal prohibition.
---------------------------------------------------------------------------
As discussed above, EPA has struggled with the application of LDR
requirements in developing today's proposal. The Agency requests
comments on alternative approaches to the LDR requirements which would
support a program modeled after the Unitary Approach consistent with
the requirements of RCRA section 3004(m). For example, since a program
modeled after the Unitary Approach would not automatically release all
remediation wastes from the duty to comply with the LDRs, should the
Agency concurrently promulgate the other approaches to the LDRs
proposed today?
4. The RAP Process Under the Unitary Approach
To initiate the RAP process, the owner or operator of a facility at
which the remediation would be conducted, would submit the proposed RAP
to the Director. Upon receipt of the RAP, the Director would give
public notice via local newspapers of the availability of the RAP and
the opening of a minimum thirty-day comment period. If significant
written opposition that also requested a hearing on the RAP were
received during the comment period, an informal hearing might be held
at a location in the vicinity of the facility at which the remediation
would be conducted. Fifteen days advance notice of the hearing would
have to be given. Not later than thirty days after the close of the
public comment period or the conclusion of any informal hearing,
whichever were later, the Director would have to inform the applicant
in writing of whether the RAP satisfied the appropriate criteria. In
the case of a denial, the Director must include a written statement of
the reasons for denial. The Director's decision would be final Agency
action for purposes of judicial review.
Major modifications and terminations of RAPs would follow the same
procedures. The Director could terminate the RAP for cause at any time.
A ``for cause'' event could include noncompliance with RAP provisions,
failure of a remediation waste treatment methodology to perform as
expected, or some unexpected negative impact of a treatment technology,
for example.
[[Page 18836]]
5. State Authorization for the Unitary Approach
The Unitary Approach presented a proposal for State Authorization
which was based on self-certification by States. EPA is not soliciting
comment on this aspect of the Unitary Approach as proposed by Industry,
because the Agency believes that there are statutory limitations to
authorizing States by self-certification. If the Agency were to
finalize the Unitary Approach, EPA would likely authorize States
according to the process described in section (V)(E) of this proposal.
EPA would adjust the essential elements described in that section in
order to reflect the essential elements of the Unitary Approach, as
opposed to today's proposed approach.
6. Enforcement Authorities Under the Unitary Approach
As with the proposed approach, EPA would retain its remedial and
enforcement authorities with respect to solid wastes and hazardous
substances that are not hazardous wastes (e.g., section 7003 of RCRA
and sections 104 and 106 of CERCLA). Furthermore, EPA would have
authority to revoke a State's authorization for this program without
revoking any other Subtitle C program authorization held by the State,
in which case EPA would then oversee completion of any ongoing
activities under RAPs previously approved by the State in question. In
any instance where a remediation waste was not managed in accordance
with the approved RAP an appropriate enforcement response could be
initiated by the authorized State, or if the State was dilatory in that
respect, by EPA. (As in the proposed approach, remediation wastes that
were managed out of compliance with the RAP could lose their exemption
from Subtitle C.)
7. State Jurisdiction Under the Unitary Approach
Once a State has obtained authorization for this program, it would
have authority to issue and oversee the contents and implementation of
RAPs. Of course, that authority would extend only to management of
remediation wastes within the authorized State. A State's authority
with regard to RAP approval, however, would not run to wastes that
would be managed in full accord with otherwise applicable hazardous
waste management requirements. In other words, in the same way as in
the proposed approach, if the owner or operator elected to manage
hazardous wastes produced during remediation in full accord with
otherwise applicable hazardous waste management requirements, there
would simply be no need to seek redundant approval for such activities
by means of RAP submission.
Of course, a State's authority would not extend beyond its borders.
Accordingly, if an entity managing remediation wastes wished to manage
remediation wastes in a RAP in a State other than that in which the
remediation would be conducted, it would be required to get approval
from the other State for that portion of the RAP addressing management
in that other State. If the entity managing the remediation wastes
wished to manage them in accordance with the otherwise applicable
hazardous waste management requirements of the other State, no RAP
approval would be necessary from that State for those activities. (In
this respect, the Unitary Approach is similar to today's proposed
approach).
As described above, all remediation wastes (including contaminated
media, debris and non-media wastes) would be eligible for management
under a RAP. Remediation waste might be defined, consistent with
Sec. 260.10, as ``all solid and hazardous wastes, and all media
(including groundwater, surface water, soils and sediments) and debris,
which contain listed hazardous wastes or which themselves exhibit a
hazardous characteristic, that are managed for the purpose of
implementing cleanup. For a given facility or media remediation site,
remediation wastes may originate only from within the facility or site
boundary, but may include waste managed in implementing RCRA sections
3004(v) or 3008(h) for releases beyond the facility boundary.'' This
Unitary Approach would not have a Bright Line. Nor would this approach
use a contained-in theory, but rather a conditional exclusion theory
for excluding remediation wastes from the definition of hazardous
wastes under Subtitle C.
The Agency requests comments on the approach outlined above. In
particular, the Agency requests comments on whether the Unitary
Approach should be adopted as described, or whether some combination of
the several approaches discussed in today's preamble would be more
appropriate.
B. Hybrid Approach
The Unitary Approach (discussed above) as an alternative to today's
proposed rule would use a conditional exclusion theory to exempt all
remediation wastes from Subtitle C regulation (except, in some cases,
LDRs).
A more limited use of a conditional exemption for the HWIR-media
rule would be compatible with (i.e., would not preclude) most of
today's proposed rule. There are, in fact, a variety of ways in which
one might combine important features of today's proposed rule with the
Unitary Approach. For example, the rule could retain a Bright Line
provision to distinguish between higher-risk and lower-risk media and
wastes. Under this kind of an alternative, wastes above Bright Line
concentrations could remain subject to modified Subtitle C
requirements, similar to the approach proposed today. Another option
would be to have all above and below the Bright Line wastes and media
exempt from Subtitle C, but subject to different alternative management
requirements. Either way, the rule could prescribe alternative
management standards that might be very similar to ``base'' Subtitle C
standards, or to the modified LDR standards specified in the proposal
for above the Bright Line media.
The Agency also notes that a conditional exclusion approach could
be implemented either on a national or site-specific basis.
Specifically, as is urged by industry supporting the Unitary Approach,
the Agency could make a generic determination that any remediation
wastes managed according to a RAP that is issued by an approved program
(subject to appropriate public participation requirements) would not be
considered a hazardous waste under the RCRA program. Alternatively, the
rule could leave that decision up to the overseeing agency on a site-
specific basis, thus requiring the regulator explicitly to make the
determination that, because of the management conditions imposed, all
or some part of the media and wastes at the site do not present a
``hazard'' and thus should not be considered ``hazardous'' wastes. The
Agency requests comment on which approach would be appropriate for
implementing an HWIR-media rule based on a conditional exclusion
theory.
For purposes of illustration, one such approach could use a
conditional exclusion to exempt all remediation wastes below a Bright
Line from Subtitle C. (This approach is presented as the hybrid
contingent management option in Table 1.) Under this approach, the rule
would define a Bright Line, either as constituent concentrations, or
qualitatively. Then, the rule could specify that if EPA or an
authorized State determined that remediation wastes were below a Bright
Line at a specific site, and site-specific management requirements were
written into a RAP or RMP, then those remediation wastes would be
exempt
[[Page 18837]]
from Subtitle C so long as they were managed in accordance with the
provisions of the RAP/RMP. In this type of a HWIR-media program, LDRs
would be required for remediation wastes where LDR attached. (See
(V)(C)). Also, a RMP for remediation wastes that were above the Bright
Line would have to be the equivalent of a RCRA permit, because those
remediation wastes would be subject to Subtitle C.
This hybrid option could have several advantages over the approach
proposed today. This option would not set requirements for contaminated
media that are different than those for other remediation wastes, which
could simplify remedy decisions at cleanup sites. Also this option
would eliminate the uncertainty of whether remediation wastes below the
Bright Line would be subject to Subtitle C. The proposed approach
allows the overseeing Agency to determine whether contaminated media
below the Bright Line should be exempted from Subtitle C or not. Under
this alternative option, remediation wastes below the Bright Line would
be exempt from Subtitle C as long as they were managed in accordance
with the RAP or RMP. Also, RAPs for wastes below the Bright Line could
be simpler because they would not have to meet all the procedural
requirements for RCRA permits.
The Agency requests comments on this alternative approach, and on
other alternatives that could be adopted to exempt remediation wastes,
as appropriate, from Subtitle C regulation. In doing so, the Agency is
particularly interested in comments on the key elements of an HWIR-
media rule discussed in the following section.
C. Key Elements of an HWIR-media Rule
EPA believes that many of the key elements of the different options
and alternatives presented in this proposal could be combined in
different ways to construct an effective HWIR-media program. The
following is a discussion of those key elements, and a table
illustrating three different combinations of the key elements. This
table is intended to facilitate comparison of options. EPA requests
comments on the combinations of key elements as presented, or on other
combinations.
Table 1
----------------------------------------------------------------------------------------------------------------
Hybrid contingent
Key elements Proposed option management option Unitary approach
----------------------------------------------------------------------------------------------------------------
Legal Theory......................... Contained-in........... Conditional Exclusion Conditional Exclusion.
for below the Bright
Line.
Scope................................ Media only............. All remediation wastes. All remediation wastes.
Bright Line.......................... Bright Line--10-3 and Bright Line (a) (for No Bright Line.
Hazard index of 10. media) same as
proposal, or (b)
qualitative Bright
Line*.
Hazardous vs. Non-hazardous.......... All media above Bright All remediation wastes All remediation wastes
Line are subject to above Bright Line are managed according to
Subtitle C; below is subject to Subtitle C; RAP or RMP are not
site-specific decision. below (when managed hazardous.
according to RAP or
RMP) are not hazardous.
LDRs................................. LDRs required for media LDRs required for LDRs required for
where LDRs attaches**. wastes where LDRs wastes where LDRs
attaches**. attaches***.
Permitting........................... RMP serves as RCRA RMP serves as RCRA No requirement that RAP/
permit for media that permit for wastes that RMP serve as RCRA
remain subject to are above the Bright permit, since wastes
Subtitle C. Line; for wastes below are not subject to
the Bright Line, RMP Subtitle C.
does not have to serve
as RCRA permit.
----------------------------------------------------------------------------------------------------------------
* See discussion of qualitative Bright Line below.
** See discussion of applicability of LDRs in section (V)(C).
*** See discussion of alternative option for LDR applicability in section (VI)(A)(3).
1. Scope of the Rule (Regarding Non-media Remediation Wastes)
The proposed rule would apply only to contaminated media.
Therefore, as discussed in section (V)(A)(2) of this preamble,
hazardous cleanup wastes that are not media (such as sludges or other
wastes that have not been mixed with soils or ground water), would only
be eligible under the proposal for the limited regulatory relief
provided by the provisions allowing management in remediation piles and
through remediation management plans. Otherwise, these remediation
wastes would be subject to existing Subtitle C requirements.
EPA recognizes that at many sites, cleanups involve excavating and
managing large volumes of these non-media remediation waste materials.
Therefore, the HWIR-media proposal is only a partial solution to the
overall problem of regulating cleanups under RCRA Subtitle C. The
Agency recognizes that excluding non-media from the HWIR-media rule
coverage would leave in place many of the Subtitle C problems that
arise in the course of cleanup. This issue was the subject of much
discussion during the HWIR FACA process. As discussed above, today's
proposed approach for resolution of this issue is linked to the
contained-in theory that is used for exempting wastes from Subtitle C
jurisdiction. Since the contained-in theory only applies to media that
``contain'' or do not ``contain'' hazardous wastes, the theory cannot,
by definition, be extended to non-media wastes. These wastes are
regulated under Subtitle C not because they ``contain'' hazardous
wastes, but because they are hazardous wastes.
A conditional exclusion approach, like the Unitary Approach
discussed above, would not make a distinction between media and non-
media remediation wastes. All remediation wastes would be eligible for
relief.
Because ``pure'' remediation wastes (i.e., those that have not been
mixed with environmental media) are often similar--if not identical
to--the ``as generated'' wastes for which the land disposal
restrictions and other Subtitle C requirements were originally created,
it has been argued that existing LDR and other requirements are more
appropriate for management of these wastes than the HWIR-media
requirements. To address this concern for the more concentrated wastes,
the Agency could retain the concept of the Bright Line, for example,
but determine that all remediation wastes above the Bright Line would
be subject to the current national Subtitle C LDR standards, and all
remediation wastes below the Bright Line would be eligible for a
``conditional exclusion''
[[Page 18838]]
from Subtitle C requirements under a site-specific RAP or RMP. This
alternative would be identical to today's proposed approach, except
that it would include non-media remediation wastes, and rely on a
conditional exclusion theory (see discussion below) to exclude wastes
below the Bright Line from Subtitle C as opposed to the contained-in
theory. The Agency requests comments on this and any other alternative
approaches for the scope of today's proposed rule.
Commenters should also review section (V)(A)(2) of today's preamble
and Sec. 269.2 of today's proposed rule for a further discussion of the
scope of the proposal, including a discussion of whether and how
contaminated debris should be included in the rule.
2. The Bright Line
The Bright Line concept originated as a compromise between those on
the FACA Committee who favored setting uniform national standards for
most, if not all, contaminated media, and those who favored a large
degree of site-specific flexibility in the rule. In essence, the Bright
Line serves to provide certainty that higher-risk media (if they are
land disposed) would be treated to established national standards,
while overseeing agencies would have considerable discretion in
prescribing management standards for lower-risk media. This is
conceptually similar to the ``principal threat'' concept that has been
used in the Superfund program for several years (``A Guide to Principal
Threat and Low Level Threat Wastes'' EPA/Superfund Publication: 9380.3-
06FS (November 1991) and 40 CFR 300.430(a)).
In any case, distinguishing between higher- and lower-risk
remediation wastes, and ensuring that the higher-risk wastes are
handled according to certain minimum standards, has a number of
positive aspects that are consistent with established Agency policies.
However, reaching consensus on exactly how to calculate Bright Line
concentrations is a considerable challenge. The Bright Line concept has
something of a ``philosophical lightning rod'' among the various
stakeholders.
The Agency has proposed one method of calculating the Bright Line,
but has analyzed three alternative methods for calculating the Bright
Line in the ``Economic Assessment.'' The Agency used the Soil Screening
Levels (SSLs) from Superfund as the basis for calculating the proposed
Bright Line. The SSLs are set using a residential exposure scenario.
The Agency has already received comments from stakeholders that the
residential exposure setting is not an appropriate basis for
calculating the Bright Line at many remediation sites. The Agency
acknowledges that, by using certain exposure assumptions in determining
the Bright Line, especially residential exposure assumptions, the
actual risks posed by remediation wastes at the site could be, in some
circumstances, significantly lower than the 10-3 implied by the
Bright Line. However, as discussed in section (V)(A)(4) the Bright Line
is not intended to be an indication of actual risk, but is intended to
reflect relative risks. Nonetheless, it is possible that setting the
Bright Line in this way could lead to confusion, for example, in
communicating to the public the actual risks posed by the site, and
other similar problems. The 10-3 level is used to determine which
wastes would typically receive stringent oversight, including treatment
according to national treatment standards, but it does not reflect
actual risks at actual sites. An alternative approach would be to use
industrial land use assumptions in setting Bright Line levels. At this
time, however, EPA does not believe that there is enough consensus
around a methodology for non-residential exposure scenarios (e.g.,
industrial exposure scenarios) that could be used as the basis for a
national rulemaking. The Agency requests suggestions of widely accepted
methodologies for determining non-residential exposure scenarios (e.g.,
industrial
FR Doc. 96-10096 Requirements for Management of Hazardous Contaminated Media (HWIR-Media)
exposure scenarios). The Agency also requests comments on
whether the Bright Line should be based on different exposure scenarios
(e.g., industrial). If so, how should the appropriate scenarios for a
site be determined? How should the methodology for assessing
alternative exposure scenarios be developed or used? Finally, the
Agency has received comments from stakeholders that 10-3 may be
too high of a risk for the Bright Line. The Agency requests comments on
using alternative risk levels (such as 10-4) to set the Bright
Line.
The Agency also requests comment on the alternative of setting a
qualitative Bright Line. The rule could describe qualitatively what
should constitute ``above the Bright Line'' wastes and ``below the
Bright Line wastes.'' The overseeing agency approving the RMP or RAP
could determine for each specific site whether wastes were above or
below the Bright Line, and specify that in the RMP or RAP. For example,
the rule could define ``above the Bright Line wastes'' as wastes that
have unusually high concentrations compared to the rest of the
remediation waste at the site, or wastes that are highly mobile, or
highly toxic. If the overseeing agency evaluated those criteria and
determined that remediation wastes at that site met those criteria,
then those wastes would be required to be managed as ``above the Bright
Line wastes.'' The Agency requests comments on the merits of
promulgating a qualitative Bright Line.
The combination of the Bright Line with the contained-in principle
was of particular concern to the States. Although the Bright Line (as
originally designed by the HWIR FACA Committee) was supposed to be a
``bright,'' clear distinction between media regulated under national
standards and media subject to site-specific requirements, the Agency
(at the request of the States), decided to propose the Bright Line not
as an automatic contained-in concentration, but as an upper limit (or
``ceiling'') for contained-in determinations.
The Agency requests comments on whether the Bright Line concept
should be retained, or whether all contaminated media (or all
remediation wastes) should be subject to the same set of standards.
3. RAPs, RMPs, and RCRA Permits
The final key element of an HWIR-media program is whether the RAP
or RMP must serve as a RCRA permit. Substantively, RAPs (discussed
under the Unitary Approach) and RMPs (discussed under the proposed
approach) serve the same purpose, but they differ in certain procedural
respects. Under the proposed approach, some contaminated media and
remediation wastes managed under RMPs would remain subject to Subtitle
C. In those cases, RMPs must serve as RCRA permits for those wastes and
media. Because all remediation wastes managed under RAPs under the
Unitary Approach would be exempt from Subtitle C, RAPs need not serve
as RCRA permits. Therefore, RMPs are proposed as meeting the minimum
statutory requirements for public participation for RCRA permits, while
RAPs are discussed as requiring even more simplified public
participation requirements. Although neither the proposed approach nor
the Unitary Approach propose to require it, it is EPA's expectation
that in cases of extensive cleanups or significant on-site treatment,
public participation procedures under either option would be more
extensive than the statutory minimum. At the same time, the RAP
approach would allow simplified procedures for routine responses (for
example, removals) involving low concentration wastes.
[[Page 18839]]
4. Request for Comments
EPA requests comments on all of these key elements of an HWIR-media
rule. EPA also requests comments on different combinations of these
elements, including, but not limited to, the combinations discussed in
this proposal as the proposed approach, the Unitary approach and the
hybrid option.
VII. Effective Date of Final HWIR-Media Rule
Regulations promulgated pursuant to RCRA Subtitle C generally
become effective six months after promulgation. RCRA section 3010
provides, however, for an earlier, or immediate, effective date in
three circumstances: (1) Where the industry regulated by the rule at
issue does not need six months to come into compliance; (2) the
regulation is in response to an emergency situation; or (3) for other
good cause.
Most of the rule proposed today would become effective within six
months after promulgation. EPA is proposing, however, to make the CAMU
rule withdrawal and ``grandfathering'' provisions, discussed in section
(V)(F) above, effective upon publication. The basis for this decision
is that the Agency does not believe that the regulated community
requires six months to come into compliance with the CAMU withdrawal.
Since all CAMUs approved at the time of publication of the final rule
are ``grandfathered,'' withdrawal of the rule would not require any
action on the part of those with approved CAMUs.
The Agency requests comments on whether it would be appropriate to
make the CAMU withdrawal immediately effective.
VIII. Regulatory Requirements
A. Assessment of Potential Costs and Benefits
1. Executive Order 12866
Under Executive Order 12866 (58 FR 51735, October 4, 1993), the
Agency must determine whether this regulatory action is
``significant.'' Significant regulatory actions must be assessed in
detail and are subject to full OMB review under Executive Order 12866
requirements. The order defines ``significant regulatory action'' as
one that is likely to result in a rule that may:
(a) Have an annual effect on the economy of $100 million or more,
or adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
(b) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another Agency;
(c) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs, or the rights and obligations of
recipients thereof; or
(d) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
The Agency has determined that today's proposed rule is a
``significant regulatory action'' under part (a) and possibly part (d)
above. These parts are discussed fully in Executive Order 12866. This
proposed rulemaking action is subject to full OMB review under the
requirements of the Executive Order. The Agency has prepared an
``Economic Assessment of the Proposed Hazardous Waste Identification
Rule for Contaminated Media,'' in support of today's action. A summary
of this assessment is presented under section 4 below.
2. Background
As discussed in section (V)(A)(4)(a) of this preamble, the Agency
has determined that media which ``contain'' hazardous waste must be
managed as hazardous waste until they no longer contain such waste.
Under this approach, EPA Regions and authorized States determine, on a
case-by-case basis, what media ``contain'' hazardous waste, and
therefore must be managed as hazardous waste.
RCRA Subtitle C regulatory requirements may be applied to
contaminated media generated during several different types of site
cleanups, including CERCLA remedial actions, State Superfund actions,
RCRA corrective actions, RCRA closures, and voluntary cleanups. If
contaminated media containing hazardous wastes are excavated in the
process of site cleanup, they are required to be managed according to
RCRA Subtitle C standards. These stringent requirements for excavated
media, which often contain low levels of hazardous waste, have resulted
in site cleanup decisions that effectively leave in place large volumes
of contaminated media. As discussed in section (II)(A), EPA and the
States have recognized that there are fundamental differences in the
incentives and objectives for prevention-orientated versus cleanup-
orientated waste management programs. Today's proposal seeks to
alleviate many of the disincentives currently associated with the
application of traditional RCRA Subtitle C requirements to cleanup
programs.
3. Need for Regulation
Traditional RCRA Subtitle C management requirements for all
excavated media containing any level of hazardous waste have resulted
in less than optimal resource allocation. From a social perspective,
too many resources are required to be devoted to the management of very
low-risk media. This misallocation restricts availability of limited
resources for use in other investments, including effective management
of high-risk media and wastes. In addition, this disconnect between
risk and management requirements creates disincentives for cleanup,
impedes ongoing cleanup processes, and restricts the protective cleanup
options available for consideration by the stakeholders. These
unanticipated market distortions resulting from traditional RCRA
Subtitle C management requirements for all excavated media containing
any level of hazardous waste has convinced the Agency that reform is
necessary. Through many discussions with stakeholders, particularly
State and Federal cleanup programs, the Agency has determined that such
reforms should provide meaningful regulatory structure and guidance
designed to ensure safe management while, at the same time, providing
site-specific flexibility that will help facilitate accelerated
cleanups around the country. Particularly, as this proposal was
designed specifically for the cleanup scenario, EPA believes that it
will be better suited to the situations encountered at typical cleanup
sites than some of the current regulations which are more appropriate
for as-generated wastes. Specifically, EPA believes that reforms
presented in today's proposal will facilitate more timely and less
costly cleanups while maintaining protection of human health and the
environment.
4. Assessment of Potential Costs and Benefits
The Agency has prepared an ``Economic Assessment'' to accompany
today's proposed rulemaking. This ``Economic Assessment'' has been
submitted to the Office of Management and Budget in accordance with
Executive Order 12866.
a. Description of the HWIR-media proposal. HWIR-media will address
an important limitation of the current RCRA Subtitle C program. The
Subtitle C regulatory framework was designed primarily to ensure the
safe cradle-to-grave management of currently generated hazardous
wastes. Furthermore, the Subtitle C program
[[Page 18840]]
seeks to prevent releases, minimize generation, and maximize the
legitimate reuse and recycling of hazardous waste. Subtitle C
regulations contain detailed procedural and substantive management
requirements that, when applied to the cleanup of contaminated media,
often create incentives to leave this material in place or to select
remedies that otherwise minimize the applicability of RCRA regulations.
In addition, the level of regulation is not always commensurate with
the risks posed by contaminated media. For example, media having very
low levels of contamination are often regulated as hazardous waste
under RCRA Subtitle C as a result of the contained-in policy.
The proposed rule would revise existing RCRA Subtitle C regulations
by creating a new decision process for identifying and managing
contaminated media. Under this framework, a set of hazardous
constituent concentration levels would constitute a ``Bright Line'' for
separating higher and lower levels of contaminated media. One Bright
Line is proposed for soil and a second Bright Line for ground water and
surface water. The proposed rule does not include a Bright Line for
sediments; instead, site-specific decisions alone would determine
whether sediment contains hazardous waste. Media that contain levels of
contamination above the Bright Line would be managed as ``hazardous
contaminated media'' under revised Subtitle C standards. Contaminated
media with all constituent concentrations below the Bright Line would
be eligible for a determination by the EPA, or authorized State agency
overseeing the cleanup, that the media do not contain hazardous waste.
Today's proposal would also replace and withdraw the requirements
for Corrective Action Management Units (CAMUs), simplify the state
authorization procedures for RCRA program revisions, and streamline the
permitting requirements for management of all types of remediation
waste. Furthermore, the proposal would exempt from RCRA Subtitle C,
dredged material permitted under the Clean Water Act or the Marine
Protection, Research and Sanctuaries Act (MPRSA).
b. HWIR-media options analyzed. Executive Order 12866 requires and
assessment of reasonably feasible alternatives to the proposed
regulatory option. The Agency analyzed several options for this
``Economic Assessment.'' These options vary in two dimensions:
(i) types of remediation waste eligible for exclusion from Subtitle
C.34 The options include either:
\34\ Although, throughout this analysis, the Agency
characterizes media determined to no longer contain, or wastes no
longer considered hazardous, to be excluded or otherwise not subject
to RCRA Subtitle C, as discussed in section (V)(C) of this Preamble,
those wastes may nevertheless continue to be subject to LDRs.
---------------------------------------------------------------------------
--Contaminated media only (soils, non-navigational sediments, ground
water, surface water), or
--All remediation waste (the above contaminated media plus old waste
and debris); and
(ii) partial or complete exclusion of such wastes from Subtitle C.
The options include potential exclusion from Subtitle C regulation of
either:
--Media with all constituent concentrations below a proposed Bright
Line, or
--All media, regardless of the extent of contamination.
The primary options analyzed are identified in Exhibit A below.
Exhibit A.--Primary Options Analyzed
------------------------------------------------------------------------
Levels of contamination potentially
excluded from subtitle C regulation
Remediation wastes eligible for ---------------------------------------
exclusion Lower and higher
Lower risk risk (No bright
(bright line)* line)
------------------------------------------------------------------------
Contaminated Media Only......... Proposed Bright Conditional
Line Option Exemption Option.
(Proposed Rule).
All Remediation Waste........... Expanded Bright Expanded
Line Option. Conditional
Exemption
Option** (Unitary
Approach).
------------------------------------------------------------------------
* Three other Bright Line options were examined applying alternative
Bright Line concentrations. These findings are present in the Appendix
to the full Economic Assessment, located in the RCRA Docket materials
for this Action.
** This option is similar to the ``Unitary Approach'' proposed by
industry.
Note: The Proposed Option contains no Bright Line for sediments. Only
site-specific determination is proposed for the cleanup of
contaminated sediments.
The Bright Line for contaminated soil under the proposed and
expanded Bright Line options is defined for approximately one hundred
hazardous constituents for which EPA has calculated Soil Screening
Levels (SSLs). These SSLs are based on potential human health risk and
were developed using risk equations and exposure assumptions specified
in EPA's ``Risk Assessment Guidance for Superfund (RAGS).'' A lifetime
cancer risk of 10-6 for carcinogens and a hazard quotient of one
for non-carcinogens was applied to determine the Soil Screening Levels
(SSLs). The HWIR-media soil Bright Line levels were derived from the
inhalation and ingestion pathways of the SSLs, and correspond to an
excess lifetime cancer risk of 10-3 for carcinogens and a hazard
quotient of 10.
The levels from the inhalation and ingestion pathways from the
Superfund SSLs are multiplied by 10 if the constituent is a non-
carcinogen, and by 1,000 if the constituent is a carcinogen to achieve
the target risk levels (referred to as the ``risk adjustment''). The
Bright Line concentration is the lower of the risk-adjusted inhalation
or soil ingestion-based levels. All Bright Line levels are capped at
10,000 ppm and the lead Bright Line is set at 4,000 ppm. The
Conditional Exemption Options (base and expanded) do not rely on Bright
Line constituent contamination levels. All contaminated media or all
remediation waste would be exempt from RCRA Subtitle C under these
options. Rather than using the Bright Line to determine management
regimes, site-specific Remediation Management Plans would specify the
management standards.
The Agency examined three alternative Bright Lines for the
``Economic Assessment.'' The findings are presented in Appendix C to
the full
[[Page 18841]]
``Economic Assessment,'' which is located in the docket for this
action. The Bright Line for Alternative One (1) matches the proposed
Bright Line but includes ground water leachate as an additional
exposure pathway. The Alternative Two (2) Bright Line is based upon a
compilation of the most stringent levels combining numbers from the
Multipathway Analysis, constituent-specific ground water levels, and
Exemption Quantitation Criteria (EQCs) for constituents without
adequate analytical methods, or for which exit levels are below
detection. The Alternative Three (3) Bright Line multiplies Soil
Screening Levels for both carcinogens and non-carcinogens by 1,000,
corresponding to a 10-3 cancer risk and a hazard quotient of
1,000, respectively. Appendix A of the full ``Economic Assessment''
provides the Bright Line levels for each constituent for the proposed
Bright Line and the three alternative Bright Lines. Appendix C of the
``Economic Assessment'' discusses the findings for Alternatives 1, 2,
and 3.
c. Data sources and methodology. The ``Economic Assessment'' of
this proposed action analyzes the impact of HWIR-media options on the
following types of remediation wastes: soils, sediments, ground water,
old waste, and debris. Soils, sediments, and ground water are analyzed
under the contaminated media only options (see Exhibit A), while old
waste and debris are included under the all remediation waste options.
Sludges at remediation sites frequently are found to be mixed with soil
and sediment. These sludges are generally inseparable and occasionally
indistinguishable from their host media. Such mixtures are included in
the soil volumes analyzed under all options. Sludges were also found to
be occasionally classified as old waste. Sludges identified in this
manner are included in the old waste volumes examined under the all
remediation waste options. The vast majority of media-like sludges,
however, are believed to be generated from operating Subtitle C and
Subtitle D surface impoundments and managed as hazardous waste. A
sensitivity analysis presented in the Economic Assessment examines
potential cost savings of applying the proposed Bright Line to sludges
from these facilities. Data and analytical limitations have prevented
an analysis of surface water impacts under the HWIR-media options.
The ``Economic Assessment'' projects a full range of potential cost
savings from HWIR-media options; it does not attempt to estimate the
actual cost savings. EPA used this approach because of the substantial
uncertainties affecting the implementation of HWIR-media, including (1)
the extent of State adoption of the rule; (2) the impact of the
existing corrective action management unit (CAMU) rule, which has been
disrupted by litigation; and (3) the extent of voluntary use of the
HWIR-media flexibility by remediation decision-makers. To simplify the
analysis, the Economic Assessment first estimates high-end potential
cost savings by assuming that (1) all States quickly adopt HWIR-media;
(2) the CAMU rule is ineffective; and (3) less expensive management
methods are chosen when available under HWIR-media. Sensitivity
analyses are then developed that address the impacts of these
assumptions, resulting in a broad range of potential economic impacts.
The Agency recognizes that HWIR-media may stimulate a certain degree of
accelerated cleanup activity and corresponding cost impacts immediately
following promulgation but has not developed a sensitivity analysis for
this potential scenario.
For soil and sediment, EPA's analysis of potential cost savings of
HWIR-media was conducted in six steps: (1) Develop an HWIR-media
database of a sample of CERCLA remedial action and RCRA corrective
action contaminated soil and sediment sites, detailing the amount of
contaminated soil and sediment at each site and the maximum
concentration of each hazardous constituent in each volume; (2) develop
a basis for predicting the management technologies and costs for each
site in the database under both the baseline and the HWIR-media
options; (3) project the methods and costs of managing contaminated
soil and sediment under the baseline of current Subtitle C requirements
for the sample of sites in the HWIR-media database; (4) project the
methods and costs of managing soil and sediment under the HWIR-media
options for the sites in the database; (5) estimate the annual volume
of soil and sediment to be remediated at all CERCLA remedial action,
RCRA corrective action, RCRA closure, State superfund, and voluntary
cleanup sites; and (6) estimate potential high-end aggregate cost
savings by multiplying the changes in weighted average management costs
under Steps 3 and 4 by the annual volumes from Step 5.
The Agency compiled a soil and sediment database using available
data reported in CERCLA Records of Decision (RODs) signed in Federal
fiscal years 1989 through 1993, the Corrective Action Regulatory Impact
Analysis, and supporting research. Management methods were assigned to
particular volumes of contaminated soil and sediment in the HWIR-media
database based on the type of hazardous constituents in the
contaminated media, the concentration of these hazardous constituents,
and the volume to be remediated. The baseline and HWIR-media
contaminated soil and sediment volumes reflect the amount of
contaminated media planned to be managed at cleanup sites under current
regulations. This analysis assumes a baseline site characterization
cost that remains unchanged under HWIR-media. Beyond this, the HWIR-
media analysis assumes that the unit or general area of contamination
initially identified as containing constituents above the Bright Line
will incur the cost of additional sampling and analysis costs. This is
necessary to refine estimates of ``hot spot'' volumes and to
distinguish between volumes above and below the Bright Line at specific
sites. These incremental sampling and analysis costs are estimated at
two dollars per ton for all soils and sediments. Volumes below the
Bright Line will not incur these new costs. The Agency has not
estimated the difference in implementation costs between the Bright
Line and Expanded Bright Line options. The Expanded Bright Line option
may result in lower incremental implementation costs because it avoids
the need to separately characterize and manage contaminated media and
other remedial wastes that are mixed together. Additional sampling and
analysis costs are not incurred for volume partitioning under the no
Bright Line option.
The media volume and cost estimates developed in Steps 1 through 4
above apply to a sample of RCRA and CERCLA facilities included in the
HWIR-media database. The HWIR-media proposal, as written, will affect
additional soil and sediment volumes from other actions, including RCRA
closures, State Superfund sites, and voluntary cleanups. The baseline
rate of contaminated soil and sediment generation for all potentially
affected actions is estimated at 8.1 million tons annually for the
period from 1996 through 2000. The results of the HWIR-media database
analysis for the sample of sites were used to determine the fraction of
annual contaminated soil and sediment volumes above and below the
Bright Line and corresponding net cost impacts.
The methodology used to estimate ground water volumes, costs, and
cost savings differs from the methodology for contaminated soil and
sediment because of the lack of site-specific data on volumes of
contaminated ground water. The ground water analysis used data on
[[Page 18842]]
the hazardous constituents present at actual CERCLA ground water
cleanup sites (contained in the HWIR-media database) combined with
randomly generated ground water volume estimates that reflect the
national distribution of contaminated ground water plume volumes.
Cleanup cost data were based on an analysis using a modified version of
EPA's Cost of Remedial Action (CORA) Model. For estimating potential
ground water cleanup cost savings under HWIR-media, EPA developed a
methodology consisting of two major components: (1) A Monte Carlo
simulation that generates hypothetical sites and estimates cleanup
volumes associated with different target contaminant concentrations;
and (2) a costing component based on EPA's CORA Model.
For the analyses conducted under the ``expanded'' options, old
waste is defined as waste generated prior to the enactment of RCRA. The
nationwide baseline volume generation of old waste under both RCRA and
CERCLA is estimated at 1.8 million tons annually. This volume was
estimated based on a comparison of the results of RCRA Corrective
Action RIA analysis, HWIR-database results for RCRA soil, and database
results for old waste at RCRA sites. Experts indicate that management
methods for old wastes are typically similar to those for contaminated
soil. Cost savings from HWIR-media, therefore, are estimated by
applying the approach used for contaminated soils. Only the expanded
options, which incorporate all remediation wastes into the HWIR-media
analysis, address old waste.
The expanded options, which incorporate all remediation waste, also
address hazardous debris. EPA gathered information on the current and
projected management of hazardous debris from past regulatory and cost
impact analyses, supplemented by expert opinion and best professional
judgment. Total baseline contaminated debris generation is estimated at
0.36 million tons annually. The cost and economic impact analysis
prepared for the Phase I Land Disposal Restrictions (LDR) rule for
hazardous debris provided information on the amount of debris generated
from cleanup activities, technologies used to manage the debris, and
the projected average cost of treating debris under the baseline. EPA
contacted several industry experts to discuss potential management
practices under HWIR-media. The Agency also used the Corrective Action
RIA for costs of Subtitle C and on-site disposal units, while the
Subtitle D cost was derived from published sources.
d. Findings. This section presents the key findings of the
``Economic Assessment.'' The volumes of remediation wastes affected and
associated net cost savings for the proposed option are presented.
Findings for the primary alternatives are also presented. In addition,
this section briefly summarizes key sensitivity analyses, non-monetary
effects (both positive and negative), and industry impacts.
i. Volume Impacts and Cost Savings Proposed and Expanded Bright
Line Options. Exhibit B identifies the portion of remediation waste
that is estimated to be above and below the Proposed Bright Line Option
(Proposed Rule) and the Expanded Bright Line Option. Ground water is
excluded from this summary because the volume of ground water treated
under the baseline and under HWIR-media is a function of the treatment
duration required to achieve target constituent concentrations.
Therefore, the total volume of contaminated ground water cannot be
simply divided into volumes above and below the HWIR-media Bright Line.
The Agency, however, estimates that only about 5 percent of CERCLA
ground water sites contaminated with HWIR-media constituents have
constituent concentrations that are all below the Bright Line.
Exhibit B.--Remediation Wastes Above and Below the Proposed and Expanded Bright Line Options
[Million tons per year]
----------------------------------------------------------------------------------------------------------------
Above bright line Below bright line
Media type Baseline ---------------------------------------------------
Volume Percent Volume Percent
----------------------------------------------------------------------------------------------------------------
Soil--CERCLA, State, and Voluntary............. 3.08 1.23 40 1.85 60
Soil--RCRA..................................... 4.56 0.46 10 4.10 90
Sediment--CERCLA............................... 0.14 0.04 25 0.10 75
Sediment--RCRA................................. 0.32 0.03 10 0.29 90
Proposed Bright Line Option.................... 8.10 1.76 22 6.34 78
Old Waste--CERCLA.............................. 0.65 0.24 37 0.41 63
Old Waste--RCRA................................ 1.14 0.42 37 0.72 63
Debris......................................... 0.36
Expanded Bright Line Option.................... 10.25 2.42 24 7.47 76
----------------------------------------------------------------------------------------------------------------
Note: The above and below bright line estimates exclude debris. Representative constituent concentration data
for debris were unavailable.
The total annual volume of soil and sediment subject to RCRA
Subtitle C jurisdiction may decline by up to 78 percent under the
proposed option. Subtitle C volume under the proposed option drops from
the baseline of 8.10 million tons to 1.76 million tons annually. The
addition of old waste and debris under the expanded Bright Line option
increases the total annual Subtitle C baseline volume to 10.25 million
tons annually, an increase of 27 percent. The total volume eligible for
exclusion from Subtitle C increases 18 percent, going from 6.34 million
tons to 7.47 million tons annually.
The potential reduction in the volume of remediation waste managed
under Subtitle C is the major reason for the cost savings of the
Proposed HWIR-media Rule. Management procedures for remediation wastes
below the Bright Line are substantially less costly due to less
stringent requirements. In addition, treatment requirements for volumes
above the Bright Line are modified, resulting in additional cost
savings. The ``Economic Assessment'' estimates that about 84 percent of
the potential cost savings of the proposed rule are from volumes below
the Bright Line; the remaining savings are from volumes above the
Bright Line.
Exhibit C presents point estimates for high-end total cost savings
potentially resulting from the HWIR-media Proposal. These estimates are
presented by remediation waste type, for the Proposed and the Expanded
Bright Line Options. The potential high-end aggregate nationwide cost
savings under the Proposed Bright Line Option are
[[Page 18843]]
estimated at $1.2 billion, annually. This estimate is derived from an
annual baseline management cost estimate of $2.4 billion, covering
soil, sediment, and groundwater. Most of the savings under the proposed
option, $1.1 billion, result from reduced RCRA and CERCLA soil
management costs. The Expanded Bright Line Option has a baseline
management cost estimate of $3.2 billion, annually. The management
costs under this HWIR-media option are reduced to $1.6 billion,
resulting in net cost savings of approximately $1.6 billion per year.
All estimated cost savings are net of implementation costs for the
affected volumes, as discussed under section (4)(c) above. Actual
nationwide cost savings may be significantly less than high-end
estimates presented here. As noted earlier, several factors may
contribute to reduced savings, including: the extent of State adoption,
the impact of existing CAMU rule, and the extent to which remediation
decision-makers adopt the less expensive media management technologies
available under HWIR-media.
Exhibit C.--Estimated High-End Cost Savings Under the Proposed and Expanded Bright Line Options
----------------------------------------------------------------------------------------------------------------
Annual total cost
---------------------------------- Net annual cost
Media type HWIR-media savings
Baseline options
----------------------------------------------------------------------------------------------------------------
Million Dollars
--------------------------------------------------
Soil--CERCLA, State, and Voluntary........................... 1,152 522 630 (55%)
Soil--RCRA................................................... 670 251 419 (63%)
Sediment--CERCLA............................................. 47 19 28 (63%)
Sediment--RCRA............................................... 52 22 30 (57%)
Ground Water--CERCLA......................................... 223 169 54 (24%)
Ground Water--RCRA Corrective Action......................... 281 213 68 (24%)
Proposed Bright Line Option.................................. 2,425 1,196 1,229 (51%)
Old Waste--CERCLA............................................ 165 85 80 (49%)
Old Waste--RCRA.............................................. 290 149 141 (49%)
Debris....................................................... 294 203 91 (31%)
Expanded Bright Line Option.................................. 3,174 1,633 \35\ 1,541
(49%)
----------------------------------------------------------------------------------------------------------------
\35\ Inclusion of sludges increases this total to $1,732 million annually.
Conditional Exemption and Expanded Conditional Exemption (no Bright
Line) Options. Volume impacts and potential net cost savings under the
Conditional Exemption Options are difficult to estimate because these
options do not establish specific Bright Line levels for contaminant
concentrations, or any minimum treatment standards. Instead, the
management of contaminated media (Conditional Exemption) or
contaminated media and other remediation wastes (Expanded Conditional
Exemption) would be determined by individual States or oversight
agencies based on site-specific cleanup plans. Because of the lack of
cleanup management standards or detailed guidance, States or oversight
authorities may continue to follow current standards and cleanup
decisions may be delayed or continue to be delayed. Thus, the
conditional exemption options, despite increased flexibility, may
actually achieve fewer cost savings than the Proposed Bright Line
Option in the near term.
Over time, however, States are likely to develop their own explicit
standards and guidelines for cleanup decisions that may be roughly
equivalent to the Bright Line scenario. Conversations with various
State officials have indicated that contaminated media containing
concentrations close to the proposed Bright Line levels would likely be
managed as if it were above the Bright Line. Eventually, therefore,
State standards may likely be set similar to the proposed Bright Line
levels. This would result in similar cost savings for the Conditional
Exemption Options, over the longer term. The Conditional Exemption
Options do, however, allow more management flexibility than the Bright
Line Options. The Agency is not able to predict how various factors
will affect State selection of cleanup remedies under the Conditional
Exemption Options. EPA, therefore, has no basis to believe that, over
the long term, cost savings under the Conditional Exemption Options are
likely to be significantly different compared to the Bright Line
Options.
ii. Sensitivity analyses. The ``Economic Assessment'' contains
several sensitivity analyses, including analyses of three major
analytical assumptions used to develop the baseline:
--all States quickly adopt and implement the HWIR-media Proposal;
--corrective action management units (CAMUs) and temporary units (TUs)
are not used at any cleanup sites; and
--cleanup waste containing only a hazardous characteristic, in addition
to media contaminated with listed hazardous wastes, are affected by
HWIR-media.
The Agency has also developed a table designed to illustrate the
distinctions between the baseline and corresponding management costs
and cost savings under alternative policy options and implementation
scenarios. This table is presented under ``Other Sensitivity Analyses''
at the end of this section.
State adoption. The options analyses presented above assume all
States adopt, receive EPA authorization, and implement HWIR-media upon
promulgation of the Final Rule. This scenario may not be completely
realistic. Some States may not develop HWIR-media programs.
Furthermore, programs that are developed are not likely to become
effective immediately after the final rule is promulgated. These State
programs will likely receive EPA authorization over a few years. In
addition, States that do not adopt HWIR-media may influence program
development and cleanup decisions in other States because of such
factors as industry pressures, local or regional environmental issues,
or public concerns and perceptions.
California, Illinois, New Jersey, New York, and Pennsylvania are
the major generators of contaminated media in the United States. These
States, combined, generate roughly 35 percent of the total annual
volume of contaminated media managed ex-situ in the nation. These
[[Page 18844]]
States may be more likely to develop HWIR-media programs than other
States for several reasons. For example, generators located in these
States may be large potential beneficiaries from the rule. In addition,
these States are likely to have larger and better developed cleanup
programs and resources, allowing for protective site-specific cleanup
decisions, and oversight. If only these States adopt HWIR-media, total
annual cost savings may be reduced by approximately 60 to 70 percent.
This assumes the remediation waste types and contaminants in these
States are representative of the national total.
Another method for estimating the potential impacts of State
adoption is a phased-in approach. Previous Agency-State interaction
experience under RCRA indicates roughly 33 percent of the impacts of
HWIR-media may begin accruing within one year after promulgation, 67
percent after two years, and 100 percent after three years. Total cost
savings under HWIR-media may correspond to such a phased-in scenario.
Corrective Action Management Units (CAMUs). On February 16, 1993,
the Agency published final regulations for corrective action management
units (CAMUs) and temporary units (TUs). Under this action, placement
of remediation wastes in an approved CAMU would not trigger land
disposal restriction (LDR) requirements or minimum technology
requirements (MTRs). Critics of this action brought suit against the
Agency, challenging both the legal and policy basis for the CAMU Rule.
The Agency has agreed to reexamine the CAMU regulations in the context
of HWIR-media. Because of the litigation, the resulting limited use of
CAMUs and the likely CAMU phase-out, the HWIR-media analysis assumed
that CAMUs do not, and have never existed. Some CAMUs, however,
currently exist and are grandfathered into the HWIR-media proposal. The
Agency has conducted a sensitivity analysis, assuming the final
``expanded'' CAMU is effective in the baseline, in an effort to analyze
the potential maximum impact of the CAMU provision.
There are some differences in the types of benefits achieved by
CAMU and HWIR-media rules. This analysis assumes that the two rules
achieve similar benefits for contaminated soils and sediments. The
Agency's analysis in support of the final expanded CAMU Rule
(``Regulatory Impact Analysis of the Final Rulemaking on Corrective
Action Management Units and Temporary Units,'' Office of Solid Waste,
U.S. EPA, January 11, 1993) estimated that the rule would reduce the
volume of contaminated soil and sediment subject to LDR standards by 57
percent for CERCLA volumes and 72 percent for RCRA volumes. Based on
these percentages, the Agency estimates that potential soil and
sediment cost savings HWIR-media would decline by approximately $640
million or 52 percent if the final ``expanded'' CAMU rule was fully
effective.
Listed versus characteristic contaminated media. The proposed rule
does not distinguish between media contaminated with listed hazardous
wastes, and media that must be managed as hazardous waste because it
exhibits a characteristic. In both cases, the concentration levels of
individual hazardous constituents in the media determine how the media
will be regulated under HWIR-media. Early HWIR-media discussions
focused only on media contaminated with listed hazardous waste. A
sensitivity analysis was conducted for CERCLA and RCRA contaminated
soil volumes. This analysis indicates the potential net savings from
the Proposed Bright Line Option may be reduced by up to 10 percent if
characteristic only media volumes were removed from HWIR-media
consideration.
Other sensitivity analyses. Previous sensitivity analyses
independently examined potential impacts on cost savings associated
with limited state adoption, fully effective expanded CAMU, and
characteristic contaminated media. This discussion compares the effects
of limited state adoption, CAMU impacts under alternative
implementation scenarios, and extends the analysis to the expanded
Bright Line and no Bright Line (Unitary Approach) option. The purpose
of this discussion is to present a direct comparison of impacts
potentially associated with alternative policy options and
implementation scenarios relevant to CAMU and HWIR-media.
The HWIR-media analysis is difficult to compare to the CAMU cost
savings analysis. There is wide variation in assumptions related to
baseline treatments, affected facilities, remediation waste types and
volumes, and the projected remediation time frame for each analysis.
The relationship between CAMU and alternative HWIR-media options
presented in this section should be considered for general comparative
purposes only.
Limited implementation of HWIR-media, as defined in this analysis,
assumes HWIR-media adoption by the five states listed above. Limited
implementation of CAMUs implies that only grand fathered CAMUs will
operate. Aggressive implementation assumes 100 percent state adoption
of HWIR-media and the final ``expanded'' CAMU rule. Total annual
baseline management costs for HWIR-media affected remediation wastes,
assuming full LDR compliance, are estimated at $3.52 billion (Exhibit
D). This estimate covers RCRA and CERCLA soils and sediments,
groundwater, old waste, debris, and sludges. Aggressive implementation
of the expanded CAMU rule, covering all remediated waste except
groundwater, would reduce this estimate to $2.67 billion, resulting in
annual cost savings of approximately $0.84 billion. These savings were
estimated to range from $1.20 to $2.00 billion in the January 11, 1993
Regulatory Impact Analysis for CAMU. A significant reduction in the
level of incineration applied in the baseline accounts for the majority
of this difference. Furthermore, CAMU assumed accelerated clean-up
(remediation) levels in the years immediately following rule
promulgation. Data available to the Agency since completion of the CAMU
analysis in 1993 have proven both of these factors to be significantly
overestimated. Cost savings attributable to only the current in-place
(grand fathered) CAMUs are estimated at $0.04 billion annually.
The HWIR-media proposal and options reflect annual aggregate cost
savings above and beyond the revised estimate for expanded CAMU.
Aggressive implementation of the HWIR-media proposal, without CAMU
consideration, is estimated to result in high-end cost savings of $1.23
billion beyond the baseline for soils, sediments, and groundwater.
These savings are reduced to approximately $0.43 billion under the
limited implementation scenario. Annual cost savings with the inclusion
of old waste, debris, and sludges under the Expanded Bright Line and
Unitary options may range anywhere from $0.61 to $2.07 billion,
depending upon the option and extent of state adoption.
The Agency also examined the potential aggregate cost savings
assuming both promulgation of HWIR-media, and retaining the expanded
CAMU rule. Annual cost savings assuming full state adoption increase by
approximately $0.59 billion beyond the HWIR-media proposal without
CAMU. These incremental savings are derived from the inclusion of
additional facilities previously unaffected by CAMU, plus an expanded
media scope covering soils, sediments, and groundwater. With limited
state adoption of HWIR-media, savings
[[Page 18845]]
increase by about $0.04 billion annually, derived only from
groundwater. While not presented in Exhibit D, full implementation of
the HWIR-media Unitary Approach option was found to provide no
incremental savings beyond the expanded CAMU rule. The extent of
implementation of both CAMU and HWIR-media has a significant impact on
incremental and aggregate cost savings. Aggressive implementation of
the HWIR-media proposal, combined with the final ``expanded'' CAMU,
results in aggregate annual cost savings of $1.44 billion, or
approximately 17 percent beyond the HWIR-media only scenario. Aggregate
savings, while significantly lower overall, increase from $0.43 to
$0.88 billion when the HWIR-media limited implementation scenario is
combined with the final ``expanded'' CAMU.
Exhibit D.--Estimated Remediation Waste Management Costs Under Alternative Policy Options and Implementation
Scenarios
----------------------------------------------------------------------------------------------------------------
Implementation Scenario
---------------------------------------------------
Aggressive Limited Implementation
Implementation -------------------------
Remediation waste baseline and policy option --------------------------
Remediation Remediation
waste Cost waste Cost
management savings management savings
costs costs
----------------------------------------------------------------------------------------------------------------
Billion Dollars Per Year
---------------------------------------------------
Baseline 36 management costs: (no CAMU, no HWIR-media, all
remediation waste)......................................... 3.52 ........... 3.52 ...........
Policy option and impact from baseline: Corrective Action
Management Units (CAMU).................................... 2.67 37 0.84 3.48 0.04
HWIR-media bright-line Proposal: (no CAMU consideration).... 2.29 1.23 3.09 0.43
Aggregate Cost Savings: HWIR-Media Bright-Line proposal with
expanded CAMU.............................................. 2.08 1.44 2.63 0.88
HWIR-media expanded bright-line option: (no CAMU
consideration)............................................. 1.79 1.73 2.91 0.61
HWIR-media expanded no bright-line option (unitary
approach): (no CAMU consideration)......................... 1.45 2.07 2.79 0.73
----------------------------------------------------------------------------------------------------------------
\36\ This baseline includes CERCLA cleanup volumes managed under the Area of Contamination (AOC) concept.
Current AOC management of RCRA volumes is believed to be negligible and is not included in this baseline.
\37\ Updated data leading to significant revisions in baseline treatment methods, costs, volumes affected, and
remediation schedule have led the Agency to adjust this figure from earlier estimates.
iii. Nonmonetary positive and negative effects. Currently, cleanup
activities generating contaminated media containing a listed hazardous
waste or exhibiting a hazardous characteristic are subject to the LDRs
and MTRs when they involve placement of waste upon the land. When LDRs
are triggered, contaminated media are subject to stringent and often
costly treatment standards. Cleanup decision-makers, therefore, often
prefer remedies that leave contaminated media in place in an effort to
avoid triggering the LDRs. When MTRs are triggered by the creation,
expansion, or replacement of landfills and surface impoundments
managing hazardous waste, contaminated media are subject to technical
standards for liner, cover, and leachate collection systems. Thus,
cleanup decision-makers have, in the past, avoided consolidating or
otherwise moving contaminated media during cleanup to bypass the MTRs.
When the costs resulting from LDRs and MTR are incorporated into a
cleanup decision many cleanups become economically infeasible. The
Agency believes, however, that with the increased flexibility and
corresponding cost savings under the HWIR-media Proposed Rule, facility
and site managers will conduct more cleanups than are currently being
performed. Several factors would provide incentives to perform cleanups
if excessive LDR and MTR costs were not incurred. For example, cleaning
up a site reduces future potential liability, increases the salability
of the land, and may generate public good will. Exhibit E summarizes
the anticipated changes in management methods under HWIR-media.
Exhibit E.--Anticipated Incentives Created by HWIR-media
------------------------------------------------------------------------
HWIR-media
incentives for Reason for change or
Baseline management plans non-hazardous no change
media
------------------------------------------------------------------------
No excavation or treatment Manage in-situ or LDRs either would not
(e.g., containment). ex-situ. apply or would be
more flexible and
therefore a less
costly ex-situ
method may be
chosen. Could also
encourage in-situ or
on-site ex-situ
management because
HWIR-media lets a
facility operate
under a Remediation
Management Plan
instead of a more
costly Part B permit
for in-situ or ex-
situ treatment.
Manage in-situ................ Manage ex-situ... LDRs either would not
apply or would be
more flexible and
therefore a less
costly (non-LDR) ex-
situ method may be
chosen.
Manage ex-situ................ None; would still Previously preferred
choose ex-situ ex-situ to in-situ
treatment. or no treatment;
ability to select a
less costly ex-situ
method under HWIR-
media will not cause
shift from ex-situ
management. May,
however, choose a
less expensive ex-
situ method.
------------------------------------------------------------------------
[[Page 18846]]
Although HWIR-media will reduce the stringency of regulation for
some media currently managed as hazardous waste, EPA does not expect
any of the options to significantly increase risks to human health and
the environment for two reasons. First, there is a built-in process to
minimize these risks under the HWIR-media proposal, namely State or EPA
oversight of cleanups through Remediation Management Plan review,
approval, and oversight. Second, under all of the options considered,
active management of contaminated media is likely to eliminate possible
exposure pathways. Thus, the Agency believes that the potential for
negative benefits, that is, potential increases in risk, is negligible.
Thus, EPA's selection of a regulatory option is driven primarily by
balancing option protectiveness, improved long-term effectiveness of
cleanups, implementation issues, and overall cost savings.
iv. Industry impacts. The economic impacts of HWIR-media will be
distributed across industries that generate contaminated media and
other remediation waste, as well as the environmental services industry
which helps manage such contamination. All regulatory options will
result in cost savings for generating industries and revenue losses, to
some extent, for the commercial environmental services industry.
Petroleum and coal products (SIC 29), chemicals and allied products
(SIC 28), and fabricated metals products (SIC 34), are the major
industries generating contaminated media that will be affected by HWIR-
media. Firms in these industries will be the main beneficiaries of cost
savings from changes in cleanup practices. Total potential cost savings
by industry, however, are estimated to represent less than 0.1 percent
of each industry's aggregate annual revenues. Firm level impacts within
affected industries are likely to be more diverse, depending upon the
nature and extent of individual facility/firm cleanup responsibilities.
Potential remedial action cost savings for an affected ``typical firm''
in the chemicals or fabricated metals industry are estimated to
represent less than 2.0 percent of annual revenues.
The initial HWIR-media cost savings associated with a particular
cleanup or set of cleanups could range from a one-time event (for firms
with a single unit), to a continuous stream over the next 15 to 20
years for firms with multiple units/sites. These cost savings may help
stimulate productive efficiencies, both on a micro- and macroeconomic
level, depending upon how the cost savings are managed. Investment of
the savings in the form of increased capital reserves, new capital
purchases, or increased research and development may have long-term
positive economic impacts on affected firms, and the general economy.
Furthermore, much of the cost of most cleanup activities often falls on
insurance companies. A reduction in projected remedial action costs as
a result of HWIR-media may stimulate competitive insurance companies to
lower premiums in an effort to expand market share.
Unlike in the case of generators, the effect of any cost savings
associated with this rule will be to reduce the revenue stream to firms
in the commercial environmental services industry. These firms work for
a variety of generators who schedule cleanups at different times in the
future. HWIR-media will not, however, have a uniform impact on the
entire industry. Instead, the impacts will vary across three distinct
industry segments: (1) the solid waste management industry segment,
which provides transportation and disposal services for non-hazardous
waste and contaminated media, (2) the hazardous waste management
industry segment, which provides transportation and disposal services
for hazardous waste and contaminated media, and, (3) the cleanup
services industry segment, which provides engineering and technical
advice for management of hazardous wastes.
The demand for the services of the solid waste management industry
segment will increase under HWIR-media as more remediation wastes are
disposed of in Subtitle D landfills. In contrast, the hazardous waste
management industry segment could face a reduction in their revenue
streams as smaller volumes are likely to be managed at commercial
Subtitle C facilities. In addition, volumes that continue to be managed
at such facilities may require less extensive treatment. The cleanup
services industry segment is likely to incur reductions in their
revenue streams under HWIR-media because over 95 percent of hazardous
wastes and media are managed on-site. This implies that a large portion
of projected cost savings to generators may translate into reduced
revenues for this industry.
These industry segments are not mutually exclusive. Many of the
larger firms in the environmental services industry operate in more
than one segment of the industry. In addition, the analysis does not
consider the impact of HWIR-media in increasing the speed of cleanup
and stimulating new cleanups, which will offset revenue losses.
A decrease in demand for the services of the environmental services
industry under HWIR-media will lower prices in the short-run as firms
compete for the lower demand. At a lower price, however, services may
be offered at a loss. Consequently, environmental services firms may
exit the industry, consolidate, or decrease in size, and the supply of
services may decline, until a new long-run equilibrium is reached.
5. Regulatory Issues
Regulatory issues most pertinent to this proposed action include
environmental justice and Federal unfunded mandates. Both of these
issues are discussed below.
a. Environmental Justice. Under Executive Order 12898, ``Federal
Actions to Address Environmental Justice in Minority Populations and
Low-Income Populations,'' as well as through EPA's April 1995,
``Environmental Justice Strategy, OSWER Environmental Justice Task
Force Action Agenda Report,'' and National Environmental Justice
Advisory Council, EPA has undertaken to incorporate environmental
justice into its policies and programs. To address this goal, EPA
examined the impacts of HWIR-media on low-income populations and
minority populations. EPA concluded that HWIR-media will advance
environmental justice, as follows:
--By encouraging the use of innovative treatment techniques, HWIR-media
will reduce the number of hazardous waste incinerators that need to be
located throughout the nation. This, in turn, will reduce the
likelihood of an incinerator being sited in a low-income or minority
community, thereby avoiding the negative public perceptions associated
with incinerators.
--HWIR-media will assist in expediting site cleanups across the nation,
by reducing the need for time-consuming permitting of on-site cleanup
activities, increasing the flexibility of decision-makers to respond to
site-specific conditions, and lessening administrative and regulatory
complications and delays. This may free Superfund and other remediation
resources to address additional sites. By encouraging excavation of
contaminated media, the HWIR-media proposal will expedite the
restoration of sites and lead to their beneficial use, which may result
in new jobs and increased economic activity in low-income or minority
communities. This economic activity could take the form of increased
employment of local community members at the
[[Page 18847]]
cleanup sites; the sale and redevelopment of sites for new economic
activities; and new beneficial uses for remediated properties, such as
parks, transportation facilities, and even hospitals.
--HWIR-media's public participation provisions will enable local
residents and other members of the public to participate in the
development and approval of Remediation Management Plans.
The Agency believes that the oversight restrictions required under
the HWIR-media proposal will ensure that increased human health risks
to local communities are highly unlikely.
b. Unfunded mandates. The Agency also evaluated the proposed HWIR-
media rule for compliance with the Unfunded Mandates Reform Act of
1995. Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), P.L.
104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal Mandates'' that
may result in expenditures to State, local, and tribal governments, in
the aggregate or to the private sector, of $100 million or more in one
year. Before promulgating a rule for which a written statement is
needed, section 205 of the UMRA generally requires EPA to identify and
consider a reasonable number of regulatory alternatives and adopt the
least costly, most cost-effective or least burdensome alternative that
achieves the objectives of the rule. The provisions of section 205 do
not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including tribal governments, it must have developed under
section 203 of the UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments, enabling
officials of affected small governments to have meaningful and timely
input in the development of EPA regulatory proposals with significant
Federal intergovernmental mandates, and informing, educating, and
advising small governments on compliance with the regulatory
requirements.
Today's rule contains no Federal mandates (under the regulatory
provisions of Title II of the UMRA) for State, local, or tribal
governments or the private sector because the UMRA generally excludes
from the definition of ``Federal intergovernmental mandate'' duties
that arise from participation in a voluntary Federal program. Rather,
State and tribal organizations are under no obligation to participate
in the Part 269 program. In addition, promulgation of the HWIR-media
rule, because it is considered generally less stringent than current
requirements, is not expected to result in mandated costs estimated at
$100 million or more to any State, local, or tribal governments, in any
one year. Thus, today's proposal is not subject to the requirements of
sections 202 and 205 of the UMRA. Finally, EPA has determined that the
proposed HWIR-media rule contains no regulatory requirements that might
significantly or uniquely affect small governments. Specifically, the
program is generally less stringent than the existing program and makes
no distinctions between small governments and any potentially regulated
party.
B. Regulatory Flexibility Analysis
The Regulatory Flexibility Act of 1980 requires Federal agencies to
assess whether proposed regulations will have a significant economic
impact on a substantial number of small entities. EPA's ``Guidelines
for Implementing the Regulatory Flexibility Act'' (May 1992), have
determined that a Regulatory Flexibility Analysis (RFA) is required for
all rulemakings, unless no impact is expected on any small entity.
These guidelines further require the Agency to develop and consider
alternatives that mitigate the impact of the rule on small entities.
Furthermore, the Agency reserves the flexibility to tailor the level of
effort devoted to an RFA based on the severity of a rule's anticipated
impacts on small entities.
The Agency has determined that today's proposed rule will not have
a significant adverse economic impact on a substantial number of small
entities. HWIR-media confers remediation waste management cost savings
on the regulated community while imposing implementation costs in cases
where firms voluntarily seek cost savings. Therefore, in cases where
remediation wastes are managed in the same manner under any option as
under the baseline, no additional costs will be incurred under HWIR-
media. If a different management method is used, a generator may have
to incur additional implementation costs to obtain management cost
savings. An economically rational generator, however, will change the
management method and incur these additional implementation costs only
if it is confident of obtaining net benefits, such as savings on
remediation waste management.
In summary, the rule will confer net benefits in situations where
the generator changes the management method under HWIR-media or impose
zero net costs in situations where the generator uses baseline
management methods. Because HWIR-media is not expected to impose net
costs on any small entities, the Agency has not considered options to
mitigate the impacts of the proposed rule on such entities. A full
discussion of HWIR-media in the context of small entities is presented
in Chapter 6 of the ``Economic Assessment.''
C. Paperwork Reduction Act
The information collection requirements in this proposed rule have
been submitted for approval to the Office of Management and Budget
(OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. An
Information Collection Request (ICR) document has been prepared by EPA
(ICR No. 1775.01) and a copy may be obtained from Sandy Farmer, OPPE
Regulatory Information Division; U.S. Environmental Protection Agency
(2137); 401 M Street, S.W., Washington, D.C. 20460 or by calling (202)
260-2740. This Information Collection Request is titled ``Hazardous
Waste Identification Rule for Contaminated Media'' (or ``HWIR-media'').
The Agency has estimated the burden associated with complying with
the requirements of this proposed rule. Included in that burden are
estimates for industry respondents for complying with the specific
requirements for: reading the regulations; media treatment variances;
review of treatment results; content of RMPs; treatability studies;
approval of RMPs; and expiration, termination and revocation of RMPs.
For State respondents, the burden was estimated for interstate movement
of contaminated media; and procedures for authorization of State
hazardous waste programs.
The Agency has determined that this collection of information is
necessary to determine compliance with the requirements of this
proposal. In addition, the Agency will use the data collected to
determine if Federal treatment standards are appropriate and whether
they should be revised in the future. Responses to the collection of
[[Page 18848]]
information will be required to obtain or retain a benefit. For
industry respondents, that benefit would be the more flexible
requirements for management of hazardous contaminated media proposed in
this proposal, instead of having to comply with the current Subtitle C
standards. For State respondents, adoption of this regulation is
optional, and the benefit would be for receiving authorization for this
regulation. Section 3007(b) of RCRA and 40 CFR Part 2, Subpart B, which
define EPA'sgeneral policy on the public disclosure of information,
contain provisions for confidentiality. EPA has tried to minimize the
burden of this collection of information on respondents.
The universe of respondents is expected to be sites conducting
cleanup under: RCRA corrective action and closure; State and Federal
CERCLA (or CERCLA-like) removal and remedial actions; and State
voluntary cleanup programs which involve approval of RMPs. EPA
estimates that the industry sites most likely to be affected by these
requirements will be associated with the following SIC codes: 28
(Chemical and Allied Products); 2911 (Petroleum Refining); 34
(Fabricated Metal Products); and 3568 (Power Transmission Equipment).
EPA estimates that the annual respondent burden hours will be: for
industry 259,165; for States 3,058; for a total of 262,223. The annual
costs will be: for industry $63,661,186; for States $88,387; for a
total of $63,749,573. The average per response for industry respondents
would be 121.2 hours, and the average per response for state
respondents would be 174.3 hours. The frequency of response would be
once. The number of industry respondents would be 2,139 per year, and
State respondents would be 16 per year.
EPA estimates total capital and start-up annualized over expected
useful life to be: for industry $0.00; for states $0.00; total
operation and maintenance to be: for industry $8.00; for States $8.00;
and purchases of services to be: for industry $61,497; for States
$0.00.
Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a Federal agency. This includes the time
needed to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements;
train personnel to be able to
FR Doc. 96-10096 Requirements for Management of Hazardous Contaminated Media (HWIR-Media)
respond to a collection of information;
search data sources; complete and review the collection of information;
and transmit or otherwise disclose the information.
An Agency may not conduct or sponsor, and a person is not required
to respond to a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations are listed in 40 CFR Part 9 and 48 CFR Chapter 15.
Comments are requested on the Agency's need for this information,
the accuracy of the provided burden estimates, and any suggested
methods for minimizing respondent burden, including through the use of
automated collection techniques. Send comments on the ``ICR for HWIR-
media'' to the Director, OPPE Regulatory Information Division; U.S.
Environmental Protection Agency (2137); 401 M St., S.W., Washington,
D.C. 20460; and to the Office of Information and Regulatory Affairs;
Office of Management and Budget; 725 17th Street, N.W., Washington,
D.C. 20503; marked ``Attention: Desk Officer for EPA.'' Include the ICR
No. 1775.01 in any correspondence.
Since OMB is required to make a decision concerning the ICR between
30 and 60 days after April 29, 1996, a comment to OMB is best assured
of having its full effect if OMB receives it by May 29, 1996. The final
rule will respond to any OMB or public comments on the information
collection requirements contained in this proposal.
List of Subjects
40 CFR Part 260
Hazardous Waste.
40 CFR Part 261
Hazardous Waste.
40 CFR Part 264
Hazardous Waste.
40 CFR Part 269
Administrative practice and procedures, Hazardous Waste, reporting
and record keeping requirements.
40 CFR Part 271
Administrative practice and procedure and Intergovernmental
relations.
Authority: These regulations are proposed under the authority of
sections 2002(a), 3001, 3004, 3005, 3006, and 3007 of the Solid
Waste Disposal Act of 1970, as amended by the Resource Conservation
and Recovery Act of 1976 [RCRA], as amended by the Hazardous and
Solid Waste Amendments of 1984 [HSWA], 42 U.S.C. 6912(a), 6921,
6924, 6926, and 6927.
Dated: April 12, 1996.
Carol M. Browner,
Administrator.
For the reasons set out in the preamble, 40 CFR Parts 260, 261,
262, 264, 268, 270 and 271 are proposed to be amended, and Part 269 is
proposed to be added as follows:
PART 260--HAZARDOUS WASTE MANAGEMENT SYSTEM: GENERAL
Subpart A--General
1. The authority citation for part 260 continue to read as follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921-6927, 6930, 6934, 6935,
6937, 6937, 6938, 6939, and 6974.
1a. Section 260.1 is amended by revising paragraphs (a), (b)
introductory text, (b)(1), (b)(2), (b)(3) and (b)(4) to read as
follows:
Sec. 260.1 Purpose, scope, and applicability.
(a) This part provides definitions of terms, general standards, and
overview information applicable to Parts 260 through 269 of this
chapter.
(b) In this part:
(1) Section 260.2 sets forth the rules that EPA will use in making
information it receives available to the public and sets forth the
requirements that generators, transporters, or owners or operators of
treatment, storage, or disposal facilities must follow to assert claims
of business confidentiality with respect to information that is
submitted to EPA under Parts 260 through 269 of this chapter.
(2) Section 260.3 establishes rules of grammatical construction for
Parts 260 through 269 of this chapter.
(3) Section 260.10 defines the terms which are used in Parts 260
through 269 of this chapter.
(4) Section 260.20 establishes procedures for petitioning EPA to
amend, modify, or revoke any provision of parts 260 through 269 of this
chapter and establishes procedures governing EPA's action on such
petitions.
* * * * *
2. Section 260.2 is amended by revising paragraph (a) and the first
sentence of paragraph (b) to read as follows:
Sec. 260.2 Availability of information; confidentiality of
information.
(a) Any information provided to EPA under Parts 260 through 269 of
this chapter will be made available to the public to the extent and in
the manner authorized by the Freedom of
[[Page 18849]]
Information Act, 5 U.S.C. section 552, section 3007(b) of RCRA and EPA
regulations implementing the Freedom of Information Act and section
3007(b), part 2 of this chapter, as applicable.
(b) Any person who submits information to EPA in accordance with
parts 260 through 269 of this chapter may assert a claim of business
confidentiality covering part or all of that information by following
the procedures set forth in Sec. 2.203(b) of this chapter. * * *
3. Section 260.3 is amended by revising the introductory text to
read as follows:
Sec. 260.3 Use of number and gender.
As used in parts 260 through 269 of this chapter:
* * * * *
Subpart B--Definitions
4. Section 260.10 is amended by revising the first sentence, by
removing the second sentence, and by adding paragraph (3) to the
definition for ``facility'' and adding the definition for ``remediation
pile'' to read as follows:
Sec. 260.10 Definitions.
When used in Parts 260 through 273 of this chapter, the following
terms have the meanings given below:
* * * * *
Facility * * *
* * * * *
(3) Notwithstanding paragraphs (1) and (2) of this definition, a
media remediation site, as defined in Sec. 269.3, does not constitute a
facility for the purposes of Sec. 264.101.
* * * * *
Remediation Pile means a pile that is used only for the temporary
treatment or storage of remediation wastes, including hazardous
contaminated media (as defined in 40 CFR 269.3), during remedial
operations.
* * * * *
Subpart C--Rulemaking Petitions
5. Section 260.20(a) is amended by revising the first sentence to
read as follows:
Sec. 260.20 General.
(a) Any person may petition the Administrator to modify or revoke
any provisions in Parts 260 through 273 of this chapter.
* * * * *
PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE
Subpart A--General
6. The authority citation for part 261 continues to read as
follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, and 6933. 6a.
Section 261.1(a)(1) is revised to read as follows:
Sec. 261.1 Purpose and scope.
(a) * * *
(1) Subpart A defines the terms ``solid waste'' and ``hazardous
waste,'' identifies those wastes which are excluded from regulation
under Parts 262 through 270 of this chapter and establishes special
management requirements for hazardous waste produced by conditionally
exempt small quantity generators and hazardous waste which is recycled.
* * * * *
7. Section 261.4 is amended by adding paragraphs (g) and (h) to
read as follows:
Sec. 261.4 Exclusions.
* * * * *
(g) Non-hazardous contaminated media. Media that are managed as
part of remedial activities and that the Director has determined do not
contain hazardous wastes (according to 269.4), but would otherwise be
hazardous contaminated media, are not hazardous wastes.
(h) Dredged material discharged in accordance with a permit issued
under section 404 of the Federal Water Pollution Control Act [33 U.S.C.
Sec. 1344] or in accordance with a permit issued for the purpose of
transporting material for ocean dumping under section 103 of the Marine
Protection, Research, and Sanctuaries Act of 1972 [33 U.S.C. 1413] is
not a hazardous waste. For purposes of this subsection, the following
definitions apply:
(1) The term ``dredged material'' has the same meaning as defined
in 40 CFR 232.2.
(2) The term ``dredged material discharged'' has the same meaning
as discharge of ``dredged material'' as defined in 40 CFR 232.2.
(3) The terms ``ocean'' and ``dumping'' have the same meaning as
defined in 40 CFR 220.2.
(4) The term ``permit'' means a permit issued by the U.S. Army
Corps of Engineers (Corps) or approved State under section 404 of the
Federal Water Pollution Control Act [33 U.S.C. Sec. 1344]; and/or a
permit issued or by the Corps under section 103 of the Marine
Protection, Research, and Sanctuaries Act of 1972 [33 U.S.C. 1413]; or
in the case of a Corps civil-works project, the administrative
equivalent of a permit, as provided for in Corps regulations (e.g., see
33 CFR 336.1(b), 33 CFR 336.2(d), and 33 CFR 337.6).
Subpart C--Characteristics of Hazardous Wastes
8. Section 261.20(b) is revised to read as follows:
Sec. 261.20 General.
* * * * *
(b) A hazardous waste which is identified by a characteristic in
this subpart is assigned every EPA Hazardous Waste Number that is
applicable as set forth in this subpart. This number must be used in
complying with the notification requirements of section 3010 of the Act
and all applicable record-keeping and reporting requirements under
parts 262 through 265 and parts 268 through 270 of this chapter.
* * * * *
Subpart D--Lists of Hazardous Wastes
9. Section 261.30(c) is revised to read as follows:
Sec. 261.30 General.
* * * * *
(c) Each hazardous waste listed in this subpart is assigned an EPA
Hazardous Waste Number which precedes the name of the waste. This
number must be used in complying with the notification requirements of
section 3010 of the Act and certain record-keeping and reporting
requirements under parts 262 through 265 and parts 268 through 270 of
this chapter.
* * * * *
PART 262--STANDARDS APPLICABLE TO GENERATORS OF HAZARDOUS WASTE
10. The authority citation for part 262 continues to read as
follows:
Authority: 42 U.S.C. 6906, 6912, 6922, 6923, 6925, 6937, and
6938.
10a. Section 262.11(d) is revised to read as follows:
Sec. 262.11 Hazardous waste determination.
* * * * *
(d) If the waste is determined to be hazardous, the generator must
refer to parts 261, 264 through 269 and part 273 of this chapter for
possible exclusions or restrictions pertaining to management of the
specific waste.
[[Page 18850]]
PART 264--STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE
TREATMENT, STORAGE, AND DISPOSAL FACILITIES
11. The authority citation for part 264 continues to read as
follows:
Authority: 42 U.S.C. 6905, 6912(a), 6924, and 6925.
11a. Section 264.552 is amended by redesignating paragraphs (a)
through (h) as paragraphs (c) through (j); and by adding new paragraphs
(a) and (b) to read as follows:
Sec. 264.552 Corrective Action Management Units (CAMU).
(a) Corrective Action Management Units may not be approved under
this subpart after (date of publication of final rule).
(b) A Corrective Action Management Unit that was approved according
to the provisions of the subpart prior to (date of publication of final
HWIR-media rule) remains subject to the requirements of this part.
* * * * *
12. Part 264 is amended by adding new Sec. 264.554 to subpart S to
read as follows:
Sec. 264.554 Remediation piles.
(a) For piles that are used only for the temporary treatment or
storage of remediation waste (including hazardous contaminated media as
defined in 40 CFR 269.3) during remedial operations that are conducted
in accordance with an approved permit or order, the Director may
prescribe on a case-by-case basis design and operating standards for
such units that are protective of human health and the environment. In
establishing case-by-case standards for remediation piles, the Director
shall consider the decision factors for temporary units, as specified
in Sec. 264.553.
(b) Placement of remediation waste (including hazardous
contaminated media) into a remediation pile designated in an approved
permit or order shall not constitute placement in a land disposal unit
for the purposes of section 3004(k) of RCRA.
(c) Any remediation pile to which site-specific requirements are
applied in accordance with paragraph (a) of this section shall be:
(1) Located within the boundary of the facility or media
remediation site (as defined in 40 CFR 269.3); and
(2) Used only for the temporary treatment or storage of remediation
wastes (as defined in 40 CFR 260.10).
(d) The Director shall specify in the permit or order the design,
operating, and closure requirements for any remediation pile, the
length of time the remediation pile will be allowed to operate, and any
requirements for control of cross-media contaminant transfer.
Remediation piles shall not be permitted to operate beyond the time
that remedial operations are completed.
PART 268--LAND DISPOSAL RESTRICTIONS
13. The authority citation for part 268 continues to read as
follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921, and 6924.
Subpart A--General
13a. Section 268.1(b) is revised to read as follows:
Sec. 268.1 Purpose, scope and applicability.
* * * * *
(b) Except as specifically provided otherwise in this part, Part
261 of this chapter, or in cases where hazardous contaminated media are
subject to treatment standards under Part 269 in this chapter, the
requirements of this part apply to persons who generate or transport
hazardous waste and owners and operators of hazardous waste treatment,
storage, and disposal facilities.
* * * * *
14. 40 CFR is amended by adding part 269 to read as follows:
PART 269--REQUIREMENTS FOR MANAGEMENT OF HAZARDOUS CONTAMINATED
MEDIA
Subpart A--General Provisions
Sec.
269.1 Scope.
269.2 Purpose and applicability.
269.3 Definitions.
269.4 Identification of media not subject to regulation as
hazardous wastes.
Subpart B--Other Requirements Applicable to Management of Hazardous
Contaminated Media
269.10 Applicability of other requirements.
269.11 Intentional contamination of media prohibited.
269.12 Interstate movement of contaminated media.
Subpart C--Treatment Requirements
269.30 Minimum LDR treatment requirements for media.
269.31 Media treatment variances.
269.32 More stringent treatment standards.
269.33 Review of treatment results.
269.34 Management of treatment residuals.
Subpart D--Remediation Management Plans (RMPs)
269.40 General requirements.
269.41 Content of RMPs.
269.42 Treatability studies.
269.43 Approval of RMPs.
269.44 Modification of RMPs.
269.45 Expiration, termination, and revocation of RMPs.
Appendix A to Part 269--HWIR-Media Bright Line Numbers
Appendix A-1 to Part 269--Bright Line Numbers
Appendix A-2 to Part 269--Bright Line Numbers for Ground Water
Appendix B to Part 269--Submittal of Treatability Data
Authority: 42 U.S.C. 6912(a), 6921, 6924, 6925, and 6926.
Subpart A--General Provisions
Sec. 269.1 Scope.
(a) The provisions of this part apply only to contaminated media
that would otherwise be subject to regulation as hazardous wastes under
RCRA Subtitle C regulations. The only exception is Subpart D of this
part, which applies to all remediation wastes, including contaminated
media.
(b) The provisions of this part modify and replace only certain
specific Subtitle C regulations as they apply to the management of
hazardous contaminated media. Other Subtitle C regulations that are not
specifically addressed under this part will continue to apply to the
management of hazardous contaminated media.
(c) The provisions of this part apply only to the treatment,
storage, transportation and disposal of hazardous contaminated media
that is conducted pursuant to site remediation activities. This part is
not intended to affect remedy selection decisions. This part is
intended to affect only decisions regarding the management of hazardous
contaminated media as part of cleanup activities.
(d) The constituent concentration levels specified in Appendix A to
this part are not cleanup levels, and the Environmental Protection
Agency does not support their use as cleanup levels under Federal or
State cleanup programs.
(e) The provisions of this part are not self-implementing. They may
be applied to specific remedial actions only as approved by EPA, or a
State authorized for this part.
Sec. 269.2 Purpose and applicability.
(a) The purpose of this part is to establish standards for
management of hazardous contaminated media that are generated as part
of remedial activities.
(b) The provisions of this part apply to treatment, storage and
disposal of hazardous contaminated media which is conducted in
accordance with a Remediation Management Plan (RMP) approved by EPA or
a State program authorized for this part.
[[Page 18851]]
(c) The provisions of this part do not apply to non-media hazardous
remediation wastes (except Subpart D) or to hazardous contaminated
media that are not managed in a way that would otherwise subject the
media to the requirements of this chapter.
Sec. 269.3 Definitions.
For the purposes of this part, the following definitions apply:
Bright Line constituent means any constituent found in media that
is listed in Appendix A of this part, and that is:
(1) The basis for listing of a hazardous waste (as specified in
Appendix VII of 40 CFR Part 261) found in that media; or
(2) A constituent that causes the media to exhibit a hazardous
characteristic.
Hazardous contaminated media means media that contain hazardous
wastes listed in Part 261 Subpart D of this chapter, or that exhibit
one or more of the characteristics of hazardous waste defined in Part
261 Subpart C of this chapter, except media which the Director has
determined do not contain hazardous wastes pursuant to Sec. 269.4 of
this part (non-hazardous contaminated media).
Media means materials found in the natural environment such as
soil, ground water, surface water, and sediments, or a mixture of such
materials with liquids, sludges, or solids which is inseparable by
simple mechanical removal processes and is made up primarily of media.
This definition does not include debris (as defined in 40 CFR 268.2).
Media remediation site means an area contaminated with hazardous
waste that is subject to cleanup under State or Federal authority, and
areas in close proximity to the contaminated area at which remediation
wastes are being or will be managed pursuant to State or Federal
remediation authorities (such as RCRA corrective action or CERCLA). A
media remediation site is not a facility for the purpose of
implementing corrective action under 40 CFR 264.101, but may be subject
to such corrective action requirements if the site is located within
such a facility (as defined in 40 CFR 260.10).
Non-hazardous contaminated media means media that are managed as
part of remedial activities and that the Director has determined do not
contain hazardous wastes (according to Sec. 269.4), but would otherwise
be subject to Subtitle C regulation.
Remediation Management Plan means the plan that describes
specifically how hazardous contaminated media will be managed in
accordance with this part. Such a plan may also include, where
appropriate, requirements for other remediation wastes and any other
(non-Part 269) requirements applicable to hazardous contaminated media.
Sediment is the mixture of assorted material that settles to the
bottom of a water body. It includes the shells and coverings of
mollusks and other animals, transported soil particles from surface
erosion, organic matter from dead and rotting vegetation and animals,
sewage, industrial wastes, other organic and inorganic materials and
chemicals.
Soil means unconsolidated earth material composing the superficial
geologic strata (material overlying bedrock), consisting of clay, silt,
sand, or gravel size particles (sizes as classified by the U.S. Soil
Conservation Service), or a mixture of such materials with liquids,
sludges, or solids which is inseparable by simple mechanical removal
processes and is made up primarily of soil.
Sec. 269.4 Identification of media not subject to regulation as
hazardous wastes.
(a) The Director may, as appropriate, determine that media which
are generated and managed as part of remedial activities, and which
would otherwise be subject to regulation under this chapter, do not
contain hazardous wastes, provided that:
(1) There are no Bright Line constituents (as defined in
Sec. 269.3) in the media in concentrations equal to or greater than
those specified in Appendix A of this part;
(2) The basis for the decision that the media do not contain
hazardous wastes is documented in a Remediation Management Plan (RMP)
approved in accordance with Subpart D of this part; and
(3) Appropriate requirements for the management of the media are
specified in such RMP. Such materials will be considered non-hazardous
contaminated media (as defined in Sec. 269.3).
(b) [Reserved]
Subpart B--Other Requirements Applicable to Management of Hazardous
Contaminated Media
Sec. 269.10 Applicability of other requirements.
(a) Except where expressly indicated, for hazardous contaminated
media that are regulated under this part, the applicable requirements
of 40 CFR Parts 262-267 and 270 continue to apply to the treatment,
storage, and disposal of hazardous contaminated media.
(b) For hazardous contaminated media and non-hazardous contaminated
media that remain subject to LDRs, the provisions of 40 CFR Part 268 do
not apply, except for the following: 40 CFR 268.2 through 268.7
(definitions, dilution prohibition, surface impoundment treatment
variance, case-by-case extensions, no migration petitions, and waste
analysis and recordkeeping), and 40 CFR 268.50 (prohibition on storage
prior to land disposal). Compliance with these provisions of Part 268,
and with the provisions of Subpart C of this part, shall constitute
compliance with the provisions of section 3004(m) of RCRA.
Sec. 269.11 Intentional contamination of media prohibited.
No generator, transporter, or owner or operator of a treatment,
storage, or disposal facility shall in any way deliberately combine
media and hazardous waste so as to become subject to the provisions of
this part.
Sec. 269.12 Interstate movement of contaminated media.
(a) Hazardous contaminated media and non-hazardous contaminated
media that are transported out of the State in which they are generated
are subject to the requirements of 40 CFR parts 262-268 and 270 outside
of the originating State, unless:
(1) The receiving State and any State through which the waste will
be transported has been authorized to implement this part (or EPA is
implementing this part in that State); and
(2) The generating State notifies the authority implementing Part
269 in the receiving State and any State through which the material
will be transported of the plans to transport such media into or
through that State and provides an opportunity to comment on the draft
RMP setting out the basis for the classification of such media.
(b) If a receiving State or a State through which such media are
transported is authorized for this part 269, that State may determine
that media originating in other States:
(1) Contains hazardous waste and must be managed under Parts 261-
268 and 270 when in that State; or
(2) Contains hazardous waste and must be managed under this part
when in that State; or
(3) Contains solid waste and must be managed under that State's
solid waste or other applicable authorities; or
(4) Contains no waste.
[[Page 18852]]
Subpart C--Treatment Requirements
Sec. 269.30 Minimum LDR treatment requirements for media.
(a) The requirements of this subpart apply to the following
materials when they are removed from the land, except as identified in
paragraph (b) of this section:
(1) Media subject to the requirements of this part as identified by
Sec. 269.1(a), (including media that have been determined, pursuant to
Sec. 269.4, to no longer contain hazardous wastes) when the waste
contaminating the media was prohibited from land disposal at the time
it was placed.
(2) Media subject to the requirements of this part as identified by
Sec. 269.1(a), (including media that have been determined, pursuant to
Sec. 269.4, to no longer contain hazardous wastes) when the waste
contaminating the media is prohibited from land disposal at the time
the media is removed from the land. To identify the effective date of
applicable land disposal prohibitions, see 40 CFR part 268, Appendix
VII.
(b) The requirements of this subpart do not apply to media
identified by paragraph (a)(2) of this section when they are
determined, pursuant to Sec. 269.4, not to contain hazardous wastes
before they are removed from the land.
(c) Media treatment standards must be specified in each RMP for all
media identified by paragraph (a) of this section.
(d) Prior to land disposal, media identified in paragraph (a) of
this section must be treated according to the applicable treatment
requirements specified in paragraphs (e) and (f) of this section unless
a variance is given according to Sec. 269.31 (Media Treatment
Variances), or the Director requires more stringent treatment standards
according to Sec. 269.32.
(e) (1) For soils, treatment must achieve the following standards
for all constituents subject to treatment that are present in the soils
at concentrations greater than 10 times the Universal Treatment
Standard for the constituent(s):
(i) For non-metals, 90 percent reduction in total constituent
concentrations, except as provided by paragraph (e)(2) of this section.
(ii) For metals, 90 percent reduction in constituent concentrations
as measured in leachate from the treated media (tested according to the
TCLP) or 90 percent reduction in total constituent concentrations,
except as provided by paragraph (e)(2) of this section.
(2) When treatment of any constituent subject to treatment to a 90
percent reduction standard would result in a concentration less than 10
times the Universal Treatment Standard for that constituent, 10 times
the Universal Treatment Standard shall be the treatment standard.
Universal Treatment Standards are identified in 40 CFR 268.48 Table
UTS.
(3) In addition to the treatment required by paragraph (e)(1) of
this section, soils that exhibit the characteristic of ignitability,
corrosivity, or reactivity must be treated by deactivation technologies
which eliminate these characteristics.
(4) In addition to the treatment requirements of paragraphs (e)(1)
and (3) of this section, the following treatment is required for soils
that contain nonanalyzable constituents:
(i) Where the soil also contains analyzable constituents, treatment
of those analyzable constituents to the levels specified in paragraph
(e)(1) of this section; and
(ii) For soils containing only nonanalyzable constituents,
treatment by the method specified in Sec. 268.42 for the waste
contained in the media.
(f) For media other than soils, such as ground water and sediments,
treatment must achieve the applicable part 268 treatment standard(s)
for each constituent subject to treatment.
(g) Constituents subject to treatment are:
(1) For media identified by paragraph (a) of this section because
they contain or contained wastes listed under part 261, subpart D of
this chapter, the constituents identified as regulated hazardous
constituents in the table ``Treatment Standards for Hazardous Wastes''
in Sec. 268.40 of this chapter for such waste; and
(2) For media identified by paragraph (a) of this section because
it exhibits a characteristic of hazardous wastes as defined by part
261, subpart C of this chapter, any constituent listed in 40 CFR
268.48, Table UTS--Universal Treatment Standards that is present in the
media, except zinc and vanadium.
(h) Treatment technologies employed in meeting these treatment
standards must be designed and operated in a manner that controls the
transfer of contaminants to other media.
Sec. 269.31 Media treatment variances.
(a) The Director may approve a variance from a treatment
standard(s) specified in Sec. 269.30, if the owner/operator
demonstrates to the satisfaction of the Director that:
(1) Compliance with the standard(s) is technically impracticable;
or
(2) Compliance with the standard(s) would require the use of a
technology which is inappropriate for the media to be treated because
the physical or chemical properties of media differ significantly from
the media EPA examined in establishing the standard, or the standard is
otherwise inappropriate for the hazardous contaminated media; or
(b) For media containing all constituents at levels below those
specified in Appendix A of this part, the Director may approve a
variance from a treatment standard specified in Sec. 269.30 by
specifying a level or method of treatment, if any, which substantially
diminishes the toxicity of the waste or substantially reduces
likelihood of migration of hazardous constituents from the waste so
that short- and long-term threats to human health and the environment
are minimized based on site-specific considerations.
(c) The Director may request any additional information, including
additional sampling and analysis, if necessary to evaluate a media
treatment variance demonstration.
(d) The Director may specify a media treatment variance as a
numerical standard or as a specified treatment method or technology.
(e) Technologies used to comply with media treatment variances must
optimize efficiency, result in substantial reductions in toxicity or
mobility of constituents, and control cross media transfer.
(f) Proposed media treatment variances must be identified in RMPs
and shall, at a minimum, be subject to the public participation
requirements for RMPs specified in Sec. 269.43.
Sec. 269.32 More stringent treatment standards.
For soil, the Director may require that constituents subject to
treatment be treated to achieve standards more stringent than the
standards specified in Sec. 269.30, if s/he determines that the
treatment required under Sec. 269.30(e) and (f) would not substantially
diminish the toxicity of the waste or substantially reduce the
likelihood of migration of hazardous constituents from the waste so
that short-term and long-term threats to human health and the
environment are minimized, based on site-specific circumstances.
Sec. 269.33 Review of treatment results.
If data indicate that the treatment standards specified in a RMP
have not been met, the owner/operator shall:
(a) Submit a new or modified RMP containing procedures for treating
the media subject to treatment to compliance with the specified
treatment standard; or
[[Page 18853]]
(b) Submit an application for a media treatment variance under
Sec. 269.31(a) (1) or (2); or
(c) If appropriate, request that the Director specify a level or
method of treatment, if any, that would meet the requirement of
Sec. 269.31(b).
Sec. 269.34 Management of treatment residuals.
(a) Treatment residuals from treating media identified by
Sec. 269.30(a) shall be managed as follows:
(1) Media residuals shall be subject to the standards of this part;
(2) Non-media residuals shall be subject to the RCRA Subtitle C or
D standards applicable to the waste contaminating the media before
treatment.
Subpart D--Remediation Management Plans (RMPs)
Sec. 269.40 General requirements.
(a) Before hazardous contaminated media may be managed according to
the provisions of this part, the owner/operator must receive approval
by the Director of a Remediation Management Plan (RMP), in accordance
with the procedures in Sec. 269.43.
(b) A RMP must be an enforceable document, and shall specify
requirements for management of hazardous and non-hazardous contaminated
media at a media remediation site, according to the provisions of this
part and according to other applicable requirements of Subtitle C,
including 40 CFR part 264 (except subparts B and C). A RMP may also
incorporate requirements for the management of other remediation wastes
at a media remediation site, in compliance with applicable provisions
of part 264 of this chapter.
(c) For remedial activities involving treatment, storage or
disposal of remediation wastes that would require a RCRA permit under
40 CFR 270.1, a RMP approved by the Director, and containing the
necessary 40 CFR part 264 substantive requirements, shall constitute a
RCRA permit for those activities, for the purposes of section 3005(c)
of RCRA.
(d) The corrective action requirements of sections 3004 (u) and (v)
of RCRA do not apply to persons engaging in treatment, storage, or
disposal of hazardous wastes solely as part of a cleanup action
pursuant to a RMP.
(e) A RMP may be:
(1) A stand-alone document that addresses only the requirements of
this part, and does not address other remedial activities or units; or
(2) Included as part of a more comprehensive document that
specifies requirements for compliance with this part, in addition to
requirements for other remedial activities for the site. Such documents
must be approved by the Director according to procedures that allow
equivalent or greater opportunities for public involvement than those
prescribed in Sec. 269.43. Examples of such documents may include
enforcement orders (that meet the minimum notice requirements of
Sec. 269.43), RCRA permits or permit modifications issued to hazardous
waste management facilities, or other similar remedial documents
approved by the Director.
(f) Approval of a RMP does not convey any property rights of any
sort, or any exclusive privilege.
(g) Approval of a RMP does not authorize any injury to persons or
property or invasion of other private rights, or any infringement of
State or local law or regulations.
Sec. 269.41 Content of RMPs.
(a) A draft RMP submitted to the Director for approval must contain
sufficient information to demonstrate to the Director that the proposed
management activities for contaminated media at the site will comply
with the requirements of this part. If a draft RMP is submitted as part
of a more comprehensive document(s) (in accordance with
Sec. 269.40(e)(2)), it may simply reference or otherwise identify where
the information pertaining to part 269 requirements can be found in
such document(s).
(b) If a RMP will be used only for the management of investigation
derived wastes or for treatability studies, the RMP need only include
the relevant information necessary to determine that the investigation
or treatability study will be conducted in accordance with applicable
requirements. It may not be necessary to include all the information
specified in paragraph (c) of this section.
(c) The following information must be included in any RMP (except
as specified in paragraph (b) of this section):
(1) Information demonstrating that the materials to be managed in
accordance with this part are media, as defined in Sec. 269.3.
(2) If applicable, information identifying hazardous remediation
wastes (other than hazardous contaminated media) which will be managed
according to the RMP but not under the requirements of 40 CFR part 269,
and specifying that management of those wastes will comply with the
applicable requirements of 40 CFR parts 260 through 268.
(3) If applicable, information identifying non-hazardous
contaminated media, and specifying how such media will be managed.
(4) Description of the remediation wastes to be managed in
accordance with the RMP, including information on constituent
concentrations, and other properties of media and wastes that may
affect how such materials should be treated and/or otherwise managed.
(5) Estimates of volumes of the hazardous contaminated media to be
managed according to the provisions of this part;
(6) Plans or proposals specifying the technology(s), handling
systems, design and operating parameters to be used in treating
remediation wastes prior to disposal, in accordance with applicable LDR
standards of Secs. 269.30 through 269.34, or 40 CFR part 268, as
applicable.
(7) Information which demonstrates to the Director that any
proposed treatment system will be designed and operated in a manner
that will adequately control the transfer of pollutants to other
environmental media.
(8) Information which describes planned sampling and analysis
procedures necessary to characterize the wastes or media to be managed,
to ensure effective treatment of the materials has occurred, and to
demonstrate compliance with the treatment standard, including quality
assurance and quality control procedures.
(9) Agreement to submit data as specified in Appendix B of this
part regarding treatment information from both treatability studies and
full scale implementation of treatment systems conducted for the
remedial activities under this RMP. Data from treatability studies
shall be submitted as soon as the treatability study (or studies) has
been completed. Full scale implementation data shall be submitted every
three years, or after cleanup has been completed, whichever is first.
(10) Other information determined by the Director to be necessary
for demonstrating compliance with the provisions of this part.
Sec. 269.42 Treatability studies.
(a) If the Director determines that a treatability study is
necessary to determine the efficacy of a proposed treatment technology,
and if conduct of the study requires a RCRA permit, the study may be
approved under a RMP. In addition to the other requirements of this
part, such RMPs shall specify how the study(s) will be conducted,
including relevant data on system design and operating parameters,
waste
[[Page 18854]]
characteristics, sampling, and, analytical procedures.
(b) Upon conclusion of a treatability study conducted according to
an approved RMP, data shall be submitted to (EPA Headquarters) in the
manner specified in appendix B of this part.
Sec. 269.43 Approval of RMPs.
(a) Draft RMPs shall be reviewed and approved according to the
procedures specified in paragraphs (b) through (f) of this section.
Alternative procedures which provide the same or greater opportunities
for public review and comment may also be used, including the RCRA
permit procedures of 40 CFR part 270, or the permit modification
procedures of 40 CFR 270.41.
(b) A proposed RMP shall be signed in accordance with 40 CFR
270.11.
(c) The Director may, if necessary, add provisions to a draft RMP
specifying the conditions under which media will be managed pursuant to
the RMP, and concentration levels below which media will be determined
not to contain hazardous waste. Such provisions may not be necessary
when:
(1) The Director has established applicable State-wide contained-in
concentration levels; or
(2) All media to be managed at the site will be managed as
hazardous contaminated media, therefore making contained-in levels
unnecessary.
(d) The Director may, if necessary, add provisions to a draft RMP
specifying when threats to human health and the environment will be
considered to have been minimized.
(e) When the Director determines that a draft RMP is complete and
adequately demonstrates compliance with applicable requirements, the
RMP shall be approved according to the following minimum procedures. If
appropriate, the Director may require additional review and comment
procedures.
(1) A notice of the Director's intention to approve the RMP shall
be:
(i) Published in a major local newspaper of general circulation and
broadcast over a local radio station, according to the procedures of 40
CFR 124.10(d); and
(ii) Sent to each unit of local government having jurisdiction over
the area in which the site is located, and to each State agency having
any authority under State law with respect to any construction or
operations at the site. The notice shall provide an opportunity for the
public to submit written comments on the RMP within no fewer than 45
days.
(2) If within the comment period the Director receives written
notice of opposition to the Director's intention to approve the RMP and
a request for a hearing, the Director shall hold an informal hearing
(including an opportunity for presentation of written and oral views)
to discuss issues relating to the approval of the RMP. The Director may
also determine independently that an informal hearing on the RMP is
appropriate. Whenever possible, the Director shall schedule such
hearing at a location convenient to the nearest population center to
the site and give notice in accordance with paragraph (i)(1) of this
section, of the date, time and subject matter of such hearing.
(3) The Director shall consider and respond to any significant
written or oral comments received by the comment deadline on the
proposed RMP, and may modify the RMP based on those comments as
appropriate.
(4) When the Director determines that the RMP adequately
demonstrates compliance with all applicable requirements, s/he shall
notify the owner/operator, and all other commenters on the proposed
RMP, in writing, that the RMP has been approved. The Director's
approval of a RMP shall constitute final Agency action (not subject to
the administrative appeals in 40 CFR 124.19).
(f) For remedial actions involving on-site combustion of hazardous
remediation wastes, the procedural requirements for issuance of RCRA
permits (specified in 40 CFR Parts 124 and 270 shall at a minimum be
followed for review and approval of RMPs.
Sec. 269.44 Modification of RMPs.
(a) The Director shall specify in the RMP procedures for modifying
the RMP. Such procedures must provide adequate opportunities for public
review and comment on any modification that would result in a major or
significant change in the management of contaminated media at the site,
or which otherwise merits public review and comment.
(b) The Director may unilaterally modify an approved RMP, through
appropriate procedures for public review and comment, based on new
information which indicates that such modification may be necessary to
ensure the effective implementation of remedial actions at the site.
Sec. 269.45 Expiration, termination, and revocation of RMPs.
The Director shall specify in an approved RMP the procedures under
which the RMP will expire, be terminated or revoked. RMPs that pursuant
to Sec. 269.40(c) constitute RCRA permits for the purposes of section
3005(c), shall be for a fixed term, not to exceed 10 years, although
they may be renewed. In addition, any such RMP for a hazardous waste
land disposal facility shall be reviewed five years after date of
issuance or reissuance and shall be modified as necessary to assure
that the facility continues to comply with currently applicable
requirements of RCRA sections 3004 and 3005. All RMPs which constitute
RCRA permits must be renewed at least every 10 years (if they will
remain in effect longer than that).
Appendix A to Part 269--HWIR-Media Bright Line Numbers
Appendix A-1 presents the Bright Lines for soil for the 107
HWIR-media constituents with Soil Screening Levels (SSLs). Appendix
A-2 presents the Bright Lines for groundwater ingestion for 211
HWIR-media constituents.1 The Bright Lines for both soil and
groundwater exposures are calculated using a target risk of
10-3 for carcinogens and RfD x 10 for non-carcinogens. For
constituents that have both carcinogenic and non-carcinogenic health
effects, the lower of the two Bright Lines is reported.
---------------------------------------------------------------------------
\1\ EPA was unable to develop ground water Bright Lines for nine
constituents that lacked both an oral reference dose and an oral
slope factor.
---------------------------------------------------------------------------
Appendix A-1 to Part 269--Bright Line Numbers for Soil
The Bright Lines for soil in Appendix A-1 are based upon SSLs
presented in the Superfund Soil Screening Guidance, which is
available in the docket for this proposed rule. SSLs have been
developed for 107 HWIR-media constituents and are calculated using
risk equations presented in EPA's ``Risk Assessment Guidance for
Superfund (RAGS).'' SSLs are either based on exposure by direct soil
ingestion or by inhalation of volatiles from soil. The SSLs for
these two exposure pathways are calculated using different risk
equations. In addition, since carcinogens and non-carcinogens pose
different kinds of health effects, there are two separate equations
for each exposure pathway, depending upon the carcinogenicity of the
constituent. These equations for each pathway are presented below:
Inhalation of Soil Contaminants
For cancer health effects:
[[Page 18855]]
[GRAPHIC] [TIFF OMITTED] TP29AP96.000
For non-cancer health effects:
[GRAPHIC] [TIFF OMITTED] TP29AP96.001
The exposure assumptions used in the above risk equations for
inhalation of soil contaminants are presented in Exhibit 1.
Ingestion of Soil Contaminants
For cancer health effects:
[GRAPHIC] [TIFF OMITTED] TP29AP96.002
For non-cancer health effects:
[GRAPHIC] [TIFF OMITTED] TP29AP96.003
The exposure assumptions used in the above risk equations for
ingestion of soil contaminants are presented in Exhibit 2.
The calculated soil screening values for both the inhalation and
ingestion pathways correspond to a cancer risk level of 10-6
for carcinogens and a non-cancer hazard quotient of one for non-
carcinogens. The SSLs for cancerous and non-cancerous constituents
are, therefore, multiplied by 1,000 and 10 respectively, so that the
reported Bright Lines correspond to a target risk of 10-3 for
carcinogens and RfD x 10 for non-carcinogens. All Bright Lines for
soil are capped at 10,000 parts per million (ppm).
The soil saturation limit (Csat) for a constituent is reported
as the inhalation pathway SSL if the Csat is lower than the
calculated SSL. Csats are not risk-adjusted (i.e., they are not
multiplied by a factor of 10 or 1,000) when calculating Bright
Lines. When the Csat is lower than the risk-adjusted SSL for the
soil ingestion pathway, the Bright Line is set at the Csat. The soil
Bright Lines for 17 constituents are set at their Csat.
Exhibit 1.--Exposure Assumptions Used To Calculate Soil Inhalation
[Soil Screening Levels]
----------------------------------------------------------------------------------------------------------------
Corresponding HWIR-media assumptions
----------------------------------------------------------------------
Cancer Non-cancer
----------------------------------------------------------------------------------------------------------------
SSL=soil screening level................. calculated........................... calculated.
TR=target excess lifetime cancer......... (mg/kg).............................. (mg/kg).
THQ=risk................................. 10-\6\............................... ..............................
AT=target hazard quotient................ ..................................... 1.
URF=averaging time....................... 70 years............................. 30 years.
RfC=inhalation unit risk factor.......... constituent.......................... ..............................
EF=inhalation reference.................. specific............................. constituent
ED=concentration......................... (ug/m\3\)-\1\........................ specific.
VF=exposure frequency.................... ..................................... (mg/m\3\).
PEF=exposure duration.................... 350 days/yr.......................... 350 days/yr.
soil-to-air volatilization........... 30 years............................. 30 years.
factor............................... constituent.......................... constituent.
particulate emission factor.......... specific............................. specific.
m\3\/kg.............................. m\3\/kg.
6.79 x 10\8\......................... 6.79 x 10\8\.
m\3\/kg.............................. m\3\/kg.
----------------------------------------------------------------------------------------------------------------
Exhibit 2.--Exposure Assumptions Used To Calculate Soil Ingestion
[Soil Screening Levels]
----------------------------------------------------------------------------------------------------------------
Corresponding HWIR-media assumptions
----------------------------------------------------------------------
Cancer Non-Cancer
----------------------------------------------------------------------------------------------------------------
SSL = soil screening level............... calculated........................... calculated.
TR = target excess lifetime cancer....... (mg/kg).............................. (mg/kg).
THQ = risk............................... 10-6................................. ..............................
AT = target hazard quotient.............. ..................................... 1.
BW = averaging time...................... 70 years............................. 6 years.
SF = body weight......................... ..................................... 15 kg.
RfD = oral slope factor.................. constituent.......................... ..............................
IF = oral reference dose................. specific............................. constituent.
IR = age-adjusted soil ingestion......... (mg/kg/day)-1........................ specific.
EF = factor.............................. ..................................... (mg/kg/day).
ED = soil ingestion rate................. 114 mg-yr/kg-day..................... ..............................
exposure frequency................... ..................................... 200 mg/day.
exposure duration.................... ..................................... 350 days/yr.
350 days............................. 6 years.
----------------------------------------------------------------------------------------------------------------
[[Page 18856]]
Appendix A-1.--Bright Line Numbers for Soil
----------------------------------------------------------------------------------------------------------------
Bright Line
CAS No. Constituent for soil Path Basis
(ppm)
----------------------------------------------------------------------------------------------------------------
630-20-6....................... 1,1,1,2-Tetrachloroethane
71-55-6........................ 1,1,1-Trichloroethane.... 980 Inhal............ Csat.
79-34-5........................ 1,1,2,2-Tetrachloroethane 400 Inhal............ Cancer.
79-00-5........................ 1,1,2-Trichloroethane.... 800 Inhal............ Cancer.
76-13-1........................ 1,1,2-Trichloro-1,2,2-
trifluoroethane
75-34-3........................ 1,1-Dichloroethane....... 9800 Inhal............ Non-Cancer.
75-35-4........................ 1,1-Dichloroethylene..... 40 Inhal............ Cancer.
96-18-4........................ 1,2,3-Trichloropropane
95-94-3........................ 1,2,4,5-
Tetrachlorobenzene
120-82-1....................... 1,2,4-Trichlorobenzene... 2400 Inhal............ Non-Cancer.
96-12-8........................ 1,2-Dibromo-3-
chloropropane
107-06-2....................... 1,2-Dichloroethane....... 300 Inhal............ Cancer.
78-87-5........................ 1,2-Dichloropropane...... 110 Ingest........... Cancer.
122-66-7....................... 1,2-Diphenylhydrazine
542-75-6....................... 1,3-Dichloropropene...... 100 Inhal............ Cancer.
99-65-0........................ 1,3-Dinitrobenzene
123-91-1....................... 1,4-Dioxane
99999-04-0..................... 12378 PeCDFuran
58-90-2........................ 2,3,4,6-Tetrachlorophenol
95-95-4........................ 2,4,5-Trichlorophenol.... 10000 Cap.............. Non-Cancer.
93-76-5........................ 2,4,5-
Trichlorophenoxyacetic
acid
88-06-2........................ 2,4,6-Trichlorophenol.... 10000 Cap.............. Cancer.
120-83-2....................... 2,4-Dichlorophenol....... 2400 Ingest........... Non-Cancer.
94-75-7........................ 2,4-Dichlorophenoxyacetic
acid (2,4-D)
105-67-9....................... 2,4-Dimethylphenol....... 10000 Cap.............. Non-Cancer.
51-28-5........................ 2,4-Dinitrophenol........ 1600 Ingest........... Non-Cancer.
121-14-2....................... 2,4-Dinitrotoluene....... 1600 Ingest........... Non-Cancer.
95-80-7........................ 2,4-Toluenediamine
606-20-2....................... 2,6-Dinitrotoluene....... 780 Ingest........... Non-Cancer.
823-40-5....................... 2,6-Toluenediamine
57117-31-4..................... 23478 PeCDFuran
99999-03-0..................... 2378 HpCDDioxins
99999-06-0..................... 2378 HpCDFurans
99999-02-0..................... 2378 HxCDDioxins
99999-05-0..................... 2378 HxCDFurans
99999-01-0..................... 2378 PeCDDioxins
1746-01-6...................... 2378 TCDDioxin
51207-31-9..................... 2378 TCDFuran
95-57-8........................ 2-Chlorophenol........... 3900 Ingest........... Non-Cancer.
126-99-8....................... 2-Chloro-1,3-butadiene
110-80-5....................... 2-Ethoxyethanol
91-59-8........................ 2-Naphthylamine
79-46-9........................ 2-Nitropropane
88-85-7........................ 2-sec-Butyl-4,6-
dinitrophenol (Dinoseb)
91-94-1........................ 3,3'-Dichlorobenzidine... 1000 Ingest........... Cancer.
119-90-4....................... 3,3'-Dimethoxybenzidine
119-93-7....................... 3,3'-Dimethylbenzidine
107-05-1....................... 3-Chloropropene
56-49-5........................ 3-Methylcholanthrene
57-97-6........................ 7,12-
Dimethylbenz(a)anthracen
e
83-32-9........................ Acenaphthene............. 10000 Cap.............. Non-Cancer.
67-64-1........................ Acetone (2-propanone).... 10000 Cap.............. Non-Cancer.
75-05-8........................ Acetonitrile (methyl
cyanide)
98-86-2........................ Acetophenone
107-02-8....................... Acrolein
79-06-1........................ Acrylamide
107-13-1....................... Acrylonitrile
309-00-2....................... Aldrin................... 40 Ingest........... Cancer.
319-84-6....................... alpha-HCH................ 100 Ingest........... Cancer.
62-53-3........................ Aniline (benzeneamine)
7440-36-0...................... Antimony (and compounds 310 Ingest........... Non-Cancer.
N.O.S.).
140-57-8....................... Aramite
7440-38-2...................... Arsenic (and compounds 400 Ingest........... Cancer.
N.O.S.).
7440-39-3...................... Barium (and compounds 10000 Cap.............. Non-Cancer.
N.O.S.).
71-43-2........................ Benzene.................. 500 Inhal............ Cancer.
92-87-5........................ Benzidine
98-07-7........................ Benzotrichloride
50-32-8........................ Benzo(a)pyrene........... 90 Ingest........... Cancer.
205-99-2....................... Benzo(b)fluoranthene..... 900 Ingest........... Cancer.
100-51-6....................... Benzyl alcohol
[[Page 18857]]
100-44-7....................... Benzyl chloride
56-55-3........................ Benz[a]anthracene........ 900 Ingest........... Cancer.
7440-41-7...................... Beryllium (and compounds 100 Ingest........... Cancer.
N.O.S.).
319-85-7....................... beta-HCH................. 400 Ingest........... Cancer.
111-44-4....................... Bis(2-chloroethyl) ether. 300 Inhal............ Cancer.
39638-32-9..................... Bis(2-chloroisopropyl)
ether
117-81-7....................... Bis(2-ethylhexyl) 210 Inhal............ Csat.
phthalate.
75-27-4........................ Bromodichloromethane..... 1800 Inhal............ Csat.
74-83-9........................ Bromomethane............. 20 Inhal............ Non-Cancer.
71-36-3........................ Butanol.................. 9700 Inhal............ Csat.
85-68-7........................ Butyl benzyl phthalate... 530 Inhal............ Csat.
7440-43-9...................... Cadmium (and compounds 390 Ingest........... Non-Cancer.
N.O.S.).
75-15-0........................ Carbon disulfide......... 110 Inhal............ Non-Cancer.
56-23-5........................ Carbon tetrachloride..... 200 Inhal............ Cancer.
57-74-9........................ Chlordane................ 500 Ingest........... Cancer.
108-90-7....................... Chlorobenzene............ 940 Inhal............ Non-Cancer.
510-15-6....................... Chlorobenzilate
124-48-1....................... Chlorodibromomethane..... 1900 Inhal............ Csat.
67-66-3........................ Chloroform............... 200 Inhal............ Cancer.
74-87-3........................ Chloromethane
7440-47-3...................... Chromium (and compounds 3900 Ingest........... Non-Cancer.
N.O.S.).
218-01-9....................... Chrysene................. 10000 Cap.............. Cancer.
156-59-2....................... cis-1,2-Dichloroethene... 1500 Inhal............ Csat.
10061-01-5..................... Cis-1,3-Dichloropropene
7440-50-8...................... Copper
1319-77-3...................... Cresols
98-82-8........................ Cumene
57-12-5........................ Cyanide (amenable)....... 10000 Cap.............. Non-Cancer.
72-54-8........................ DDD...................... 3000 Ingest........... Cancer.
72-55-9........................ DDE...................... 2000 Ingest........... Cancer.
50-29-3........................ DDT...................... 2000 Ingest........... Cancer.
2303-16-4...................... Diallate
53-70-3........................ Dibenz(a,h)anthracene.... 90 Ingest........... Cancer.
74-95-3........................ Dibromomethane (methylene
bromide)
75-71-8........................ Dichlorodifluoromethane
75-09-2........................ Dichloromethane 7000 Inhal............ Cancer.
(Methylene Chloride).
60-57-1........................ Dieldrin................. 40 Ingest........... Cancer.
84-66-2........................ Diethyl phthalate........ 520 Inhal............ Csat.
56-53-1........................ Diethylstibestrol
60-51-5........................ Dimethoate...............
131-11-3....................... Dimethyl phthalate 1600 Inhal............ Csat.
122-39-4....................... Diphenylamine
298-04-4....................... Disulfoton
84-74-2........................ Di-n-butyl phthalate..... 1100 Inhal............ Csat.
117-84-0....................... Di-n-octyl phthalate..... 10000 Cap.............. Non-Cancer.
115-29-7....................... Endosulfan............... 40 Ingest........... Non-Cancer.
72-20-8........................ Endrin................... 230 Ingest........... Non-Cancer.
106-89-8....................... Epichlorohydrin
141-78-6....................... Ethyl acetate
60-29-7........................ Ethyl ether
97-63-2........................ Ethyl methacrylate
62-50-0........................ Ethyl methanesulfonate
100-41-4....................... Ethylbenzene............. 260 Inhal............ Csat.
106-93-4....................... Ethylene dibromide
96-45-7........................ Ethylenethiourea
52-85-7........................ Famphur
206-44-0....................... Fluoranthene............. 10000 Cap.............. Non-Cancer.
86-73-7........................ Fluorene................. 10000 Cap.............. Non-Cancer.
50-00-0........................ Formaldehyde
64-18-6........................ Formic acid
110-00-9....................... Furan
58-89-9........................ gamma-HCH (Lindane)...... 500 Ingest........... Cancer.
76-44-8........................ Heptachlor............... 100 Ingest........... Cancer.
1024-57-3...................... Heptachlor epoxide (a,b,g 70 Ingest........... Cancer.
isomers).
118-74-1....................... Hexachlorobenzene........ 400 Ingest........... Cancer.
608-73-1....................... Hexachlorocyclohexane
77-47-4........................ Hexachlorocyclopentadiene 20 Inhal............ Non-Cancer.
67-72-1........................ Hexachloroethane......... 10000 Cap.............. Cancer.
70-30-4........................ Hexachlorophene
87-68-3........................ Hexachloro-1,3-butadiene. 1000 Inhal............ Cancer.
[[Page 18858]]
193-39-5....................... Indeno(1,2,3-cd)pyrene... 900 Ingest........... Cancer.
78-83-1........................ Isobutyl alcohol
78-59-1........................ Isophorone............... 3400 Inhal............ Csat
143-50-0....................... Kepone
7439-92-1...................... Lead (and compounds 4000 Fixed............
N.O.S.).
108-31-6....................... Maleic anhydride
7439-97-6...................... Mercury (and compounds 70 Inhal............ Non-Cancer.
N.O.S.).
126-98-7....................... Methacrylonitrile
67-56-1........................ Methanol
72-43-5........................ Methoxychlor............. 3900 Ingest........... Non-Cancer.
78-93-3........................ Methyl ethyl ketone
108-10-1....................... Methyl isobutyl ketone
80-62-6........................ Methyl methacrylate
298-00-0....................... Methyl parathion
7439-98-7...................... Molybdenum
108-39-4....................... m-Cresol
91-20-3........................ Naphthalene-
7440-02-0...................... Nickel (and compounds 10000 Cap.............. Non-Cancer.
N.O.S.).
98-95-3........................ Nitrobenzene............. 390 Ingest........... Non-Cancer.
62-75-9........................ N-Nitrosodimethylamine
86-30-6........................ N-Nitrosodiphenylamine... 10000 Cap.............. Cancer.
621-64-7....................... N-Nitrosodi-n-propylamine 90 Ingest........... Cancer.
10595-95-6..................... N-Nitrosomethylethylamine
100-75-4....................... N-Nitrosopiperidine
930-55-2....................... N-Nitrosopyrrolidine
55-18-5........................ N-Nitroso-diethylamine
924-16-3....................... N-Nitroso-di-n-butylamine
3268-87-9...................... OCDD
99999-07-0..................... Octachlorodibenzofuran
(OCDF)
152-16-9....................... Octamethyl
pyrophosphoramide
95-48-7.................
FR Doc. 96-10096 Requirements for Management of Hazardous Contaminated Media (HWIR-Media)
....... o-Cresol................. 10000 Cap.............. Non-Cancer.
95-50-1........................ o-Dichlorobenzene........ 300 Inhal............ Csat.
95-53-4........................ o-Toluidine
56-38-2........................ Parathion
608-93-5....................... Pentachlorobenzene
82-68-8........................ Pentachloronitrobenzene
(PCNB)
87-86-5........................ Pentachlorophenol........ 3000 Ingest........... Cancer.
108-95-2....................... Phenol................... 10000 Cap.............. Non-Cancer.
25265-76-3..................... Phenylenediamine
298-02-2....................... Phorate
85-44-9........................ Phthalic anhydride
1336-36-3...................... Polychlorinated biphenyls 1000 Ingest........... Cancer.
23950-58-5..................... Pronamide
129-00-0....................... Pyrene................... 10000 Cap.............. Non-Cancer.
110-86-1....................... Pyridine
106-47-8....................... p-Chloroaniline.......... 3100 Ingest........... Non-Cancer.
106-44-5....................... p-Cresol
106-46-7....................... p-Dichlorobenzene........ 10000 Cap.............. Cancer.
106-49-0....................... p-Toluidine
94-59-7........................ Safrole
7782-49-2...................... Selenium (and compounds 3900 Ingest........... Non-Cancer.
N.O.S.).
7440-22-4...................... Silver (and compounds 3900 Ingest........... Non-Cancer.
N.O.S.).
93-72-1........................ Silvex (2,4,5-TP)
57-24-9........................ Strychnine and salts
100-42-5....................... Styrene.................. 1400 Inhal............ Csat.
99-35-4........................ sym-Trinitrobenzene
127-18-4....................... Tetrachloroethylene...... 10000 Cap.............. Cancer.
3689-24-5...................... Tetraethyl
dithiopyrophosphate
7440-28-0...................... Thallium
108-88-3....................... Toluene.................. 520 Inhal............ Csat.
8001-35-2...................... Toxaphene................ 600 Ingest........... Cancer.
156-60-5....................... trans-1,2-Dichloroethene. 3600 Inhal............ Csat.
10061-02-6..................... Trans-1,3-Dichloropropene
75-25-2........................ Tribromomethane 10000 Cap.............. Cancer.
(Bromoform).
79-01-6........................ Trichloroethylene........ 3000 Inhal............ Cancer.
75-69-4........................ Trichlorofluoromethane
126-72-7....................... Tris(2,3-
dibromopropyl)phosphate
7440-62-2...................... Vanadium................. 5500 Ingest........... Non-Cancer.
75-01-4........................ Vinyl chloride 2 Inhal............ Cancer.
(Chloroethene).
1330-20-7...................... Xylenes.................. 320 Inhal............ Csat.
[[Page 18859]]
7440-66-6...................... Zinc (and compounds 10000 Cap.............. Non-Cancer.
N.O.S.).
----------------------------------------------------------------------------------------------------------------
Appendix A-2 to Part 269--Bright Line Numbers for Ground Water
The Bright Lines for ground water in Appendix A-2 were
calculated directly from risk equations in RAGS. Since carcinogens
and non-carcinogens pose different kinds of health effects, two sets
of risk equations and exposure assumptions are used to calculate
Bright Lines for groundwater: For cancer health effects:
[GRAPHIC] [TIFF OMITTED] TP29AP96.004
For non-cancer health effects:
[GRAPHIC] [TIFF OMITTED] TP29AP96.005
The exposure assumptions used in the above risk equations are
presented in Exhibit 3. These exposure assumptions are consistent
with those used to develop the SSLs. For constituents with
calculated Bright Lines for ground water less than the detection
limit, the groundwater Bright Line is set at the detection limit, as
defined by the Exemption Quantitation Criteria (EQC). The ground
water Bright Lines for 15 constituents are set at their EQC's.
Exhibit 3.--Exposure Assumptions Used to Calculate Ground Water Bright Lines
----------------------------------------------------------------------------------------------------------------
Corresponding HWIR-media assumptions
-----------------------------------------------------------------
Cancer Non-Cancer
----------------------------------------------------------------------------------------------------------------
C = Constituent Calculated (mg/l).................. Calculated (mg/l).
concentration in
groundwater.
TR = Target excess lifetime 10-3--1 70 years................... --30 years.
cancer risk.
AT = Averaging time........ 70 kg.............................. 70 kg.
BW = Body weight........... Constituent........................ ...........................
SF = Oral cancer slope Specific........................... Constituent.
factor.
RfD = Oral reference dose... (mg/kg/day)-1...................... Specific.
IR = Groundwater ingestion ................................... (mg/kg/day).
rate.
EF = Exposure frequency.... 2 liters/day....................... 2 liters/day.
ED = Exposure duration..... 350 days, 30 years................. 350 days, 30 years.
----------------------------------------------------------------------------------------------------------------
Table to Appendix A-2.--Bright Lines for Groundwater
----------------------------------------------------------------------------------------------------------------
Groundwater
CAS No. Constituent Bright Line Basis
(mg/l)
----------------------------------------------------------------------------------------------------------------
630-20-6............................ 1,1,1,2-Tetrachloroethane..... 3 Cancer.
71-55-6............................. 1,1,1-Trichloroethane......... (\1\) ..........................
79-34-5............................. 1,1,2,2-Tetrachloroethane..... 0.4 Cancer.
79-00-5............................. 1,1,2-Trichloroethane......... 1 Non-Cancer.
76-13-1............................. 1,1,2-Trichloro-1,2,2- 10000 Non-Cancer.
trifluoroethane.
75-34-3............................. 1,1-Dichloroethane............ 0.9 Cancer.
75-35-4............................. 1,1-Dichloroethylene.......... 0.1 Cancer.
96-18-4............................. 1,2,3-Trichloropropane........ 2 Non-Cancer.
95-94-3............................. 1,2,4,5-Tetrachlorobenzene.... 0.1 Non-Cancer.
120-82-1............................ 1,2,4-Trichlorobenzene........ 4 Non-Cancer.
96-12-8............................. 1,2-Dibromo-3-chloropropane... 0.06 Cancer.
107-06-2............................ 1,2-Dichloroethane............ 0.9 Cancer.
78-87-5............................. 1,2-Dichloropropane........... 1 Cancer.
122-66-7............................ 1,2-Diphenylhydrazine......... 0.1 Cancer.
542-75-6............................ 1,3-Dichloropropene........... 0.1 Non-Cancer.
99-65-0............................. 1,3-Dinitrobenzene............ 0.04 Non-Cancer.
123-91-1............................ 1,4-Dioxane................... 8 Cancer.
99999-04-0.......................... 12378 PeCDFuran............... 0.00001 Cancer.
58-90-2............................. 2,3,4,6-Tetrachlorophenol..... 10 Non-Cancer.
95-95-4............................. 2,4,5-Trichlorophenol......... 40 Non-Cancer.
93-76-5............................. 2,4,5-Trichlorophenoxyacetic 4 Non-Cancer.
acid.
88-06-2............................. 2,4,6-Trichlorophenol......... 8 Cancer.
120-83-2............................ 2,4-Dichlorophenol............ 1 Non-Cancer.
94-75-7............................. 2,4-Dichlorophenoxyacetic acid 4 Non-Cancer.
(2,4-D).
105-67-9............................ 2,4-Dimethylphenol............ 7 Non-Cancer.
51-28-5............................. 2,4-Dinitrophenol............. 0.7 Non-Cancer.
121-14-2............................ 2,4-Dinitrotoluene............ 0.1 Cancer.
95-80-7............................. 2,4-Toluenediamine............ 0.03 Cancer.
606-20-2............................ 2,6-Dinitrotoluene............ 0.1 Cancer.
823-40-5............................ 2,6-Toluenediamine............ 70 Non-Cancer.
57117-31-4.......................... 23478 PeCDFuran............... 0.000001 Cancer.
99999-03-0.......................... 2378 HpCDDioxins.............. 0.00005 Cancer.
99999-06-0.......................... 2378 HpCDFurans............... 0.00005 Cancer.
[[Page 18860]]
99999-02-0.......................... 2378 HxCDDioxins.............. 0.000005 Cancer.
99999-05-0.......................... 2378 HxCDFurans............... 0.000005 Cancer.
99999-01-0.......................... 2378 PeCDDioxins.............. 0.000001 Cancer.
1746-01-6........................... 2378 TCDDioxin................ 0.0000005 Cancer.
51207-31-9.......................... 2378 TCDFuran................. 0.000005 Cancer.
95-57-8............................. 2-Chlorophenol................ 2 Non-Cancer.
126-99-8............................ 2-Chloro-1,3-butadiene........ (1)
110-80-5............................ 2-Ethoxyethanol............... 100 Non-Cancer.
91-59-8............................. 2-Naphthylamine............... 0.1 Cancer.
79-46-9............................. 2-Nitropropane................ (1)
88-85-7............................. 2-sec-Butyl-4,6-dinitrophenol 0.4 Non-Cancer.
(Dinoseb).
91-94-1............................. 3,3'-Dichlorobenzidine........ 0.2 Cancer.
119-90-4............................ 3,3'-Dimethoxybenzidine....... 6 Cancer.
119-93-7............................ 3,3'-Dimethylbenzidine........ 0.01 EQC Floor.
107-05-1............................ 3-Chloropropene............... (1)
56-49-5............................. 3-Methylcholanthrene.......... 0.01 EQC Floor.
57-97-6............................. 7,12-Dimethylbenz(a)anthracene 0.01 EQC Floor.
83-32-9............................. Acenaphthene.................. 20 Non-Cancer.
67-64-1............................. Acetone (2-propanone)......... 40 Non-Cancer.
75-05-8............................. Acetonitrile (methyl cyanide). 2 Non-Cancer.
98-86-2............................. Acetophenone.................. 40 Non-Cancer.
107-02-8............................ Acrolein...................... 7 Non-Cancer.
79-06-1............................. Acrylamide.................... 0.1 EQC Floor.
107-13-1............................ Acrylonitrile................. 0.2 Cancer.
309-00-2............................ Aldrin........................ 0.005 Cancer.
319-84-6............................ alpha-HCH..................... 0.01 Cancer.
62-53-3............................. Aniline (benzeneamine)........ 10 Cancer.
7440-36-0........................... Antimony (and compounds 0.1 Non-Cancer.
N.O.S.).
140-57-8............................ Aramite....................... 3 Cancer.
7440-38-2........................... Arsenic (and compounds N.O.S.) 0.05 Cancer.
7440-39-3........................... Barium (and compounds N.O.S.). 30 Non-Cancer.
71-43-2............................. Benzene....................... 3 Cancer.
92-87-5............................. Benzidine..................... 0.03 EQC Floor.
98-07-7............................. Benzotrichloride.............. 0.007 Cancer.
50-32-8............................. Benzo(a)pyrene................ 0.01 Cancer.
205-99-2............................ Benzo(b)fluoranthene.......... 0.1 Cancer.
100-51-6............................ Benzyl alcohol................ 100 Non-Cancer.
100-44-7............................ Benzyl chloride............... 0.5 Cancer.
56-55-3............................. Benz[a]anthracene............. 0.2 Cancer.
7440-41-7........................... Beryllium (and compounds 0.02 Cancer.
N.O.S.).
319-85-7............................ beta-HCH...................... 0.05 Cancer.
111-44-4............................ Bis(2-chloroethyl) ether...... 0.08 Cancer.
39638-32-9.......................... Bis(2-chloroisopropyl) ether.. 1 Cancer.
117-81-7............................ Bis(2-ethylhexyl) phthalate... 6 Cancer.
75-27-4............................. Bromodichloromethane.......... 0.7 Cancer.
74-83-9............................. Bromomethane.................. 0.5 Non-Cancer.
71-36-3............................. Butanol....................... 40 Non-Cancer.
85-68-7............................. Butyl benzyl phthalate........ 70 Non-Cancer.
7440-43-9........................... Cadmium (and compounds N.O.S.) 0.2 Non-Cancer.
75-15-0............................. Carbon disulfide.............. 40 Non-Cancer.
56-23-5............................. Carbon tetrachloride.......... 0.3 Non-Cancer.
57-74-9............................. Chlordane..................... 0.02 Non-Cancer.
108-90-7............................ Chlorobenzene................. 7 Non-Cancer.
510-15-6............................ Chlorobenzilate............... 0.3 Cancer.
124-48-1............................ Chlorodibromomethane.......... 1 Cancer.
67-66-3............................. Chloroform.................... 4 Non-Cancer.
74-87-3............................. Chloromethane................. (\1\)
7440-47-3........................... Chromium (and compounds 2 Non-Cancer.
N.O.S.).
218-01-9............................ Chrysene...................... 1 Cancer.
156-59-2............................ cis-1,2-Dichloroethene........ 4 Non-Cancer.
10061-01-5.......................... Cis-1,3-Dichloropropene....... 0.1 Non-Cancer.
7440-50-8........................... Copper........................ 10 Non-Cancer.
1319-77-3........................... Cresols....................... 20 Non-Cancer.
98-82-8............................. Cumene........................ 10 Non-Cancer.
57-12-5............................. Cyanide (amenable)............ 7 Non-Cancer.
72-54-8............................. DDD........................... 0.4 Cancer.
72-55-9............................. DDE........................... 0.3 Cancer.
50-29-3............................. DDT........................... 0.2 Non-Cancer.
2303-16-4........................... Diallate...................... 1 Cancer.
53-70-3............................. Dibenz(a,h)anthracene......... 0.002 Cancer.
[[Page 18861]]
74-95-3............................. Dibromomethane (methylene 4 Non-Cancer.
bromide).
75-71-8............................. Dichlorodifluoromethane....... 70 Non-Cancer.
75-09-2............................. Dichloromethane (Methylene 10 Cancer.
Chloride).
60-57-1............................. Dieldrin...................... 0.005 Cancer.
84-66-2............................. Diethyl phthalate............. 300 Non-Cancer.
56-53-1............................. Diethylstibestrol............. 0.02 EQC Floor.
60-51-5............................. Dimethoate.................... 0.07 Non-Cancer.
131-11-3............................ Dimethyl phthalate............ 4000 Non-Cancer.
122-39-4............................ Diphenylamine................. 9 Non-Cancer.
298-04-4............................ Disulfoton.................... 0.01 Non-Cancer.
84-74-2............................. Di-n-butyl phthalate.......... 40 Non-Cancer.
117-84-0............................ Di-n-octyl phthalate.......... 7 Non-Cancer.
115-29-7............................ Endosulfan.................... 0.02 Non-Cancer.
72-20-8............................. Endrin........................ 0.1 Non-Cancer.
106-89-8............................ Epichlorohydrin............... 0.7 Non-Cancer.
141-78-6............................ Ethyl acetate................. 300 Non-Cancer.
60-29-7............................. Ethyl ether................... 70 Non-Cancer.
97-63-2............................. Ethyl methacrylate............ 30 Non-Cancer.
62-50-0............................. Ethyl methanesulfonate........ 0.02 EQC Floor.
100-41-4............................ Ethylbenzene.................. 40 Non-Cancer.
106-93-4............................ Ethylene dibromide............ 0.001 Cancer.
96-45-7............................. Ethylenethiourea.............. 0.03 Non-Cancer.
52-85-7............................. Famphur....................... 0.02 EQC Floor.
206-44-0............................ Fluoranthene.................. 10 Non-Cancer.
86-73-7............................. Fluorene...................... 10 Non-Cancer.
50-00-0............................. Formaldehyde.................. 70 Non-Cancer.
64-18-6............................. Formic acid................... 700 Non-Cancer.
110-00-9............................ Furan......................... 0.4 Non-Cancer.
58-89-9............................. gamma-HCH (Lindane)........... 0.07 Cancer.
76-44-8............................. Heptachlor.................... 0.02 Cancer.
1024-57-3........................... Heptachlor epoxide (alpha, 0.005 Non-Cancer.
beta, gamma).
118-74-1............................ Hexachlorobenzene............. 0.05 Cancer.
608-73-1............................ Hexachlorocyclohexane......... 0.05 Cancer.
77-47-4............................. Hexachlorocyclopentadiene..... 3 Non-Cancer.
67-72-1............................. Hexachloroethane.............. 0.4 Non-Cancer.
70-30-4............................. Hexachlorophene............... 0.1 Non-Cancer.
87-68-3............................. Hexachloro-1,3-butadiene...... 1 Cancer.
193-39-5............................ Indeno(1,2,3-cd)pyrene........ 0.1 Cancer.
78-83-1............................. Isobutyl alcohol.............. 100 Non-Cancer.
78-59-1............................. Isophorone.................... 70 Non-Cancer.
143-50-0............................ Kepone........................ 0.02 EQC Floor.
7439-92-1........................... Lead (and compounds N.O.S.)... (\1\)
108-31-6............................ Maleic anhydride.............. 40 Non-Cancer.
7439-97-6........................... Mercury (and compounds N.O.S.) 0.1 Non-Cancer.
126-98-7............................ Methacrylonitrile............. 0.04 Non-Cancer.
67-56-1............................. Methanol...................... 200 Non-Cancer.
72-43-5............................. Methoxychlor.................. 2 Non-Cancer.
78-93-3............................. Methyl ethyl ketone........... 200 Non-Cancer.
108-10-1............................ Methyl isobutyl ketone........ 20 Non-Cancer.
80-62-6............................. Methyl methacrylate........... 30 Non-Cancer.
298-00-0............................ Methyl parathion.............. 0.09 Non-Cancer.
7439-98-7........................... Molybdenum.................... 2 Non-Cancer.
108-39-4............................ m-Cresol...................... 20 Non-Cancer.
91-20-3............................. Naphthalene................... 10 Non-Cancer.
7440-02-0........................... Nickel (and compounds N.O.S.). 7 Non-Cancer.
98-95-3............................. Nitrobenzene.................. 0.2 Non-Cancer.
62-75-9............................. N-Nitrosodimethylamine........ 0.01 EQC Floor.
86-30-6............................. N-Nitrosodiphenylamine........ 20 Cancer.
621-64-7............................ N-Nitrosodi-n-propylamine..... 0.01 EQC Floor.
10595-95-6.......................... N-Nitrosomethylethylamine..... 0.01 EQC Floor.
100-75-4............................ N-Nitrosopiperidine........... 0.02 EQC Floor.
930-55-2............................ N-Nitrosopyrrolidine.......... 0.04 Cancer.
55-18-5............................. N-Nitroso-diethylamine........ 0.02 EQC Floor.
924-16-3............................ N-Nitroso-di-n-butylamine..... 0.02 Cancer.
3268-87-9........................... OCDD.......................... 0.0005 Cancer.
99999-07-0.......................... Octachlorodibenzofuran (OCDF). 0.0005 Cancer.
152-16-9............................ Octamethyl pyrophosphoramide.. 0.7 Non-Cancer.
95-48-7............................. o-Cresol...................... 20 Non-Cancer.
95-50-1............................. o-Dichlorobenzene............. 30 Non-Cancer.
95-53-4............................. o-Toluidine................... 0.4 Cancer.
[[Page 18862]]
56-38-2............................. Parathion..................... 2 Non-Cancer.
608-93-5............................ Pentachlorobenzene............ 0.3 Non-Cancer.
82-68-8............................. Pentachloronitrobenzene (PCNB) 0.3 Cancer.
87-86-5............................. Pentachlorophenol............. 0.7 Cancer.
108-95-2............................ Phenol........................ 200 Non-Cancer.
25265-76-3.......................... Phenylenediamine.............. 2 Non-Cancer.
298-02-2............................ Phorate....................... 0.07 Non-Cancer.
85-44-9............................. Phthalic anhydride............ 700 Non-Cancer.
1336-36-3........................... Polychlorinated biphenyls..... 0.01 Cancer.
23950-58-5.......................... Pronamide..................... 30 Non-Cancer.
129-00-0............................ Pyrene........................ 10 Non-Cancer.
110-86-1............................ Pyridine...................... 0.4 Non-Cancer.
106-47-8............................ p-Chloroaniline............... 1 Non-Cancer.
106-44-5............................ p-Cresol...................... (\1\).
106-46-7............................ p-Dichlorobenzene............. 4 Cancer.
106-49-0............................ p-Toluidine................... 0.4 Cancer.
94-59-7............................. Safrole....................... 0.5 Cancer.
7782-49-2........................... Selenium (and compounds 2 Non-Cancer.
N.O.S.).
7440-22-4........................... Silver (and compounds N.O.S.). 2 Non-Cancer.
93-72-1............................. Silvex (2,4,5-TP)............. 3 Non-Cancer.
57-24-9............................. Strychnine and salts.......... 0.1 Non-Cancer.
100-42-5............................ Styrene....................... 70 Non-Cancer.
99-35-4............................. sym-Trinitrobenzene........... 0.02 Non-Cancer.
127-18-4............................ Tetrachloroethylene........... 4 Non-Cancer.
3689-24-5........................... Tetraethyl dithiopyrophosphate 0.2 Non-Cancer.
7440-28-0........................... Thallium...................... (1)
108-88-3............................ Toluene....................... 70 Non-Cancer.
8001-35-2........................... Toxaphene..................... 0.08 Cancer.
156-60-5............................ trans-1,2-Dichloroethene...... 7 Non-Cancer.
10061-02-6.......................... Trans-1,3-Dichloropropene..... 0.1 Non-Cancer.
75-25-2............................. Tribromomethane (Bromoform)... 7 Non-Cancer.
79-01-6............................. Trichloroethylene............. (1)
75-69-4............................. Trichlorofluoromethane........ 100 Non-Cancer.
126-72-7............................ Tris(2,3- 0.2 EQC Floor.
dibromopropyl)phosphate.
7440-62-2........................... Vanadium...................... 3 Non-Cancer.
75-01-4............................. Vinyl chloride (Chloroethene). 0.04 Cancer.
1330-20-7........................... Xylenes....................... 700 Non-Cancer.
7440-66-6........................... Zinc (and compounds N.O.S.)... 100 Non-Cancer.
----------------------------------------------------------------------------------------------------------------
1 No Data.
Appendix B to Part 269--Submittal of Treatability Data
Both treatability data and full-scale operating data shall be
submitted to EPA for entry into the National Risk Management
Research Laboratory (NRMRL) treatability database system. Data from
treatability studies shall be submitted as soon as the treatability
study (or studies) has been completed. Full-scale operating data
shall be submitted every three years, or after the cleanup has been
completed, whichever is first.
Data shall be submitted to: Chief, Site Management Support
Branch,National Risk Management Research Laboratory,26 West Martin
Luther King Drive,Cincinnati, Ohio 45268.
A copy of the entire treatability/performance study should be
submitted if possible. No particular format is required for
presentation of the data; however, the following information must be
included:
--Site/laboratory name and address
--Point of contact
--Technology (or technologies) used
--Chemicals of contamination
--Size of study (i.e., bench top, pilot plant, full scale)
--Volumes treated
--Description of study/abstract
--Beginning and ending concentrations
--Percent removal
--Analytical method
--Source matrix
--Any important operational parameters
--Any other information that the site feels is important
Sites should be aware that any data submitted will be available
to the general public through the NRMRL treatability database. Sites
should not submit confidential business information (CBI) material.
PART 270--EPA ADMINISTERED PERMIT PROGRAMS: THE HAZARDOUS WASTE
PERMIT PROGRAM
Subpart A--General Information
15. The authority citation for part 270 continues to read as
follows:
Authority: 42 U.S.C. 6905, 6912, 6924, 6925, 6927, 6939, and
6974.
15a. Section 270.1 (a)(1) is revised to read as follows:
Sec. 270.1 Purpose and scope of these regulations.
(a) Coverage. (1) These permit regulations establish provisions for
the Hazardous Waste Permit Program under Subtitle C of the Solid Waste
Disposal Act, as amended by the Resource Conservation and Recovery Act
of 1976, as amended (RCRA), (Pub. L. 94-580, as amended by Pub. L. 95-
609 and by Pub. L. 96-482; 42 U.S.C. 6091 et seq.). They apply to EPA
and to approved States to the extent provided in part 271 of this
chapter. Other requirements can be found in Part 269 of this chapter.
* * * * *
[[Page 18863]]
PART 271--REQUIREMENTS FOR AUTHORIZATION OF STATE HAZARDOUS WASTE
PROGRAMS
16. The authority citation for part 271 continues to read as
follows:
Authority: 42 U.S.C. 6905, 6912(a) and 6926.
16a. Section 271.21 is amended by revising paragraph (b)
introductory text, (b)(1), (b)(2) and (e)(2) introductory text; by
reserving paragraph (h) and by adding paragraphs (i), (j) and (k) and
by adding a table to the end of the section to read as follows:
Sec. 271.21 Procedures for revision of State programs.
* * * * *
(b) Revision of a State program shall be accomplished as follows:
(1) The State shall submit a modified program description, Attorney
General's Statement, Memorandum of Agreement, or such other documents
as EPA determines to be necessary under the circumstances. Submittals
to support Category 1 and Category 2 program revisions (as listed in
Table 1) shall be in accordance with paragraph (i) of this section.
(2) The Administrator shall approve or disapprove program revisions
based on the requirements of this part and of the Act. In approving or
disapproving program revisions, the Administrator shall follow the
procedures of paragraph (b) (3) or (4) of this section. Procedures for
review and approval of Category 1 and Category 2 program revisions (as
listed in Table 1) shall be in accordance with paragraph (i) of this
section.
* * * * *
(e) * * *
(2) Federal program changes are defined for purposes of this
section as promulgated amendments to 40 CFR parts 124, 270, 260-269 and
any self-implementing statutory provisions (i.e., those taking effect
without prior implementing regulations) which are listed as State
program requirements in this subpart. States must modify their programs
to reflect Federal program changes and must subsequently submit the
modifications to EPA for approval.
* * * * *
(h) (Reserved).
(i) Category 2 program revisions. Category 2 program revisions and
prerequisite requirements are identified in Table 1 of this section.
The procedures for authorization of Category 2 program revisions are as
follows:
(1) The State shall submit an application for authorization of
Category 2 program revision(s). The State application shall include:
(i) A certification by the State Attorney General (or the attorney
for the State agency(ies) which have independent legal counsel) that
the laws and regulations of the State provide adequate authority to
implement a State program equivalent to the Federal program as listed
in Table 1;
(ii) A certification by the Director (as ``Director'' is defined in
40 CFR 270.2) that the State intends to and has the capability to
implement a State program equivalent to the Federal program. EPA may
establish essential program elements for any Category 2 rule. When
established, the Director's certification shall address each essential
element individually.
(iii) An update to the State/EPA Memorandum of Agreement (MOA)
provided in Sec. 271.8 or a certification by the Director stating that
the current MOA provides for adequate implementation of the program
revision(s).
(iv) An update to the Program Description provided in Sec. 271.6 or
a certification by the Director stating that the current Program
Description adequately addresses implementation of the program
revision(s).
(v) Copies of all cited State laws and regulations showing that the
cited State laws and regulations are lawfully adopted and fully
effective at the time the certifications are signed.
(vi) At the State's discretion, any additional information which
the State believes will support the application.
(2) Within 30 days of receipt of a Category 2 program revision
application, EPA will review the application to determine if it is
complete. If EPA determines that the application is not complete, EPA
will provide the State a concise written Statement of the deficiencies
of the application.
(3) Within 60 days of determining a Category 2 application is
complete, EPA will review the application to determine whether the
application describes a State program equivalent to the Federal program
and follow the procedures of paragraph (b)(3) of this section for an
immediate final rule to publish its decision to authorize or deny
authorization of the program revision. The State and EPA may agree to a
longer or shorter review period. The State and EPA may agree to use the
procedures of paragraph (b)(4) of this section for a proposed/final
rule.
(j) For purposes of Category 2 program revisions, State programs
will be considered equivalent to the Federal program if the laws and
regulations cited by the State provide for a program no less stringent
than the analogous Federal program.
(k) For purposes of Category 2 program revisions, State
certifications will be considered incomplete when:
(1) Copies of cited statutes or regulations were not included;
(2) The statutes or regulations cited by the State are not in
effect;
(3) The State is not yet authorized for certain RCRA rules
specified as necessary before seeking authorization of the program
revision at issue, as identified in Table 1;
(4) The certification contains significant errors or omissions.
Table 1 to Sec. 271.21
----------------------------------------------------------------------------------------------------------------
Program revision Prerequisite regulations Category
----------------------------------------------------------------------------------------------------------------
HWIR-media rule 40 CFR Part 269 (except 40 CFR 269.30- Final authorization as defined in Sec. 2
26934). 270.2.
LDR treatment requirements for media 40 CFR 269.30-26934... LDR Third Third Rule, 55 FR 22520 Jun. 2
1, 1990.
Site-specific LDR treatment variances 40 CFR 268.44........ LDR Third Third, 55 FR 22520 Jun. 1, 2
1990.
HWIR-waste rule (60 FR 66344-663469, December 21, 1995).... Final authorization as defined in Sec. 2
270.2.
Revised Technical Standards for Hazardous Waste Combustion Final authorization as defined in Sec. 2
Facilities April 19, 1996. 270.2.
----------------------------------------------------------------------------------------------------------------
[[Page 18864]]
17. Add a new Sec. 271.28 to subpart A to read as follows:
Sec. 271.28 Specific authorization provisions for an HWIR-media
program.
(a) The essential elements of an HWIR-media program are:
(1) Authority to address all media that contain hazardous wastes
listed in Part 261, Subpart D of this chapter, or that exhibit one or
more of the characteristics of hazardous waste defined in part 261,
subpart C of this chapter.
(2) Authority to address the hazards associated with media that are
managed as part of remedial activities and that the Director has
determined do not contain hazardous wastes (according to 40 CFR 269.4),
but would otherwise be subject to Subtitle C regulation. States that
choose to make contained-in decisions only when the concentrations of
hazardous constituents in any given media are protective of human
health and the environment, absent any additional management standards
(i.e., eatable, drinkable concentrations), may receive HWIR-media
authorization without certifying their ability to impose management
standards on media that no longer contain hazardous waste.
(3) Authority to include, in the definition of media, materials
found in the natural environment such as soil, ground water, surface
water, and sediments, or a mixture of such materials with liquids,
sludges, or solids that are inseparable by simple mechanical removal
processes and made up primarily of media.
(4) Authority to exclude debris (as defined in 40 CFR 268.2) and
non-media cleanup wastes from the requirements of 40 CFR part 269
(except the requirements for Remediation Management Plans).
(5) Authority to use the contained-in principle (or equivalent
principles) to remove contaminated media from the definition of
hazardous waste only if they contain hazardous constituents at
concentrations at or below those specified in appendix A of part 269 of
this chapter.
(6) Authority to require compliance with LDR requirements listed in
40 CFR 269.30 through 269.34.
(7) Authority to issue, modify and terminate (as appropriate)
permits, orders, or other enforceable documents to impose management
standards for media as described in essential elements 1-6 and 8 and 9.
(8) Requirements for public involvement in management decisions for
hazardous and non-hazardous media as described in 40 CFR 269.43(e).
(9) Authority to require that data from treatability studies and
full scale treatment of media that contain hazardous waste be submitted
to EPA for inclusion in the National Risk Management Research
Laboratory treatability database.
(b) EPA may withdraw authorization of a State HWIR-media program
whenever:
(1) The State has failed to adequately address EPA concerns; or
(2) The State's HWIR-media program does not provide authority for
all of the HWIR-media program essential elements as set forth in this
section; or
(3) The State's HWIR-media program meets any one of the criteria
for general program withdrawal as set forth in Sec. 271.22. When
withdrawing a State's HWIR-media program authorization, EPA will use
the procedures of Sec. 271.21(b)(4) for a proposed/final rule to
provide notice of the proposed authorization decision.
(c) Following withdrawal of a State's HWIR-media program, the State
is barred from making contained-in decisions or from approving RMPs and
EPA will implement the Federal HWIR-media program in the State. RMPs
issued by a State pursuant to its HWIR-media program prior to program
withdrawal will remain in effect; however, EPA may use its enforcement
authorities to impose additional requirements on media managed pursuant
to such RMPs, as necessary to protect human health and the environment.
(d) Any person may, at any time, submit written information to EPA
alleging inadequate State performance of an authorized HWIR-media
program and EPA will consider such information when making decisions
about the appropriate phase of monitoring for a State HWIR-media
program. EPA will provide copies of all such written information to the
Director and give the State at least 30 days to respond. Following
receipt of the State's response, EPA will respond to all such
information in writing. EPA and the State may agree to waive the
opportunity for State response.
[FR Doc. 96-10096 Filed 4-26-96; 8:45 am]
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