[Dioxin-l] delay in RCRA PCB LDRs (Land Disposal Restrictions)

[Tony Tweedale]

LDR's are, more or less the heart of haz waste disposal under RCRA Subtitle
C (Haz Waste management), are generally a sham.  In some circumstances
termed "land disposal ban", they usually set weak treatment standards
(often, incineration) before they can be disposed.	-tony t.
----

[Federal Register: February 16, 2000 (Volume 65, Number 32)]
[Proposed Rules]
[Page 7809-7814]
>From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr16fe00-36]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 268

[FRL-6538-2]
RIN 2050-AE76


Deferral of Phase IV Standards for PCB's as an Underlying
Hazardous Constituent in Soil

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to temporarily defer a portion of the rule
applying Land Disposal Restrictions (LDR) under the Resource
Conservation and Recovery Act (RCRA) to underlying hazardous
constituents (UHC) in soils contaminated with certain characteristic
hazardous wastes. EPA promulgated this rule on May 26, 1998.
Specifically, EPA is proposing to temporarily defer the requirement
that polychlorinated biphenyls (PCBs) be considered a UHC when they are
present in soils that exhibit the Toxicity Characteristic for metals.
EPA is proposing this action because the regulation appears to be
discouraging generators from cleaning up contaminated soils, which is
contrary to what EPA intended when we promulgated alternative treatment
standards for contaminated soils. In addition, EPA needs more time to
restudy the issue of appropriate treatment standards for metal-
contaminated soils which also contain PCBs as UHC. If this proposal is
finalized, the Agency would still require generators to treat these
soils to meet LDR standards for all hazardous constituents except PCBs.
Generators would also be required to treat PCBs if the total
concentration of halogenated organic compounds in the soil equals or
exceeds 1000 parts per million.

DATES: Submit comments on or before April 3, 2000.

ADDRESSES: Address written comments on this proposed rule to the docket
clerk at the following address: RCRA Information Center (RIC), Crystal
Gateway I, First Floor, 1235 Jefferson Davis Highway, Arlington, VA.
The Docket Identification Number is F-2000-PCBP-FFFFF. The RIC is open
from 9:00 a.m. to 4:00 p.m., Monday through Friday, excluding Federal
holidays. To review docket materials, the Agency recommends that the
public make an appointment by calling (703) 603-9230. The public may
copy a maximum of 100 pages from any regulatory docket at no charge.
Additional copies cost $0.15/page. The index and some supporting
materials are available electronically. See the Supplementary
Information section for information on accessing them.

FOR FURTHER INFORMATION CONTACT: For general information, contact the
RCRA Hotline at (800) 424-9346 or TDD (800) 553-7672 (hearing
impaired). In the Washington, D.C. metropolitan area, call (703) 412-
9810 or TDD (703) 412-3323. For more detailed information on specific
aspects of this rulemaking, contact Ernesto Brown, Office of Solid
Waste, Mail Code 5303W, U.S. Environmental Protection Agency, 1200
Pennsylvania Ave NW, Washington, D.C. 20460-0002, (703) 308-8608,
brown.ernie@epa.gov

SUPPLEMENTARY INFORMATION: You can find the index and the following
supporting materials on the Internet at: http://www.epa.gov/epaoswer/
hazwaste/ldr/index.htm

Preamble Outline:

I. Authority
II. Purpose
III. How Can I Influence EPA's Thinking on this Rule?
IV. Background
A. Land Disposal Restrictions Program
B. Soils Subject to LDR Requirements
C. Alternative Treatment Standards for Contaminated Soils
D. Underlying Hazardous Constituents
V. Need to Defer the Phase IV Rule
A. Why Has Remediation Stopped?
B. Why is EPA Considering Temporary Deferral?
C. What is the Effect of the Deferral?
VI. State Authorization
VII. Regulatory Assessments
A. Executive Order 12866
B. Regulatory Flexibility Act
C. Unfunded Mandates Reform Act
D. Paperwork Reduction Act
E. Executive Order 13045: Protection of Children from Environmental
Health Risks and Safety Risks
F. National Technology Transfer and Advancement Act
G. Executive Order 12898: Environmental Justice
H. Executive Order 13132: Federalism
I. Executive Order 13084: Consultation and Coordination with Indian
Tribal Governments

I. Authority

    EPA is proposing these regulations under the authority of sections
1006(B), 2002, and 3004 of RCRA, as amended, 42 U.S.C. 6905, 6012(a),
6921, and 6924.

II. Purpose

    EPA is proposing this action because the existing regulation
appears to discourage remediation of certain contaminated soils,
contrary to EPA's intent in promulgating alternative treatment
standards for contaminated soils. In addition, EPA needs more time to
review the issue of appropriate treatment standards for metal-
contaminated soils that also contain PCBs as UHC.

III. How Can I Influence EPA's Thinking on this Rule?

    In developing this proposal, we tried to address the concerns of
all our stakeholders. Your comments will help us improve this rule. We
invite you to provide different views on options we propose, new
approaches we haven't considered, new data, how this rule may affect
you, or other relevant information. We welcome your views on all
aspects of this proposed rule. Your comments will be most effective if
you follow the suggestions below:
    <bullet> Explain your views as clearly as possible and why you feel
that way.
    <bullet> Provide solid technical and cost data to support your
views.
    <bullet> If you estimate potential costs, explain how you arrived
at the estimate.
    <bullet> Tell us which parts you support, as well as those you
disagree with.
    <bullet> Provide specific examples to illustrate your concerns.
    <bullet> Offer specific alternatives.
    <bullet> Refer your comments to specific sections of the proposal,
such as the units or page numbers of the preamble, or the regulatory
sections.
    <bullet> Make sure to submit your comments by the deadline in this
notice.
    <bullet> Be sure to include the name, date, and docket number with
your comments.

[[Page 7810]]

IV. Background

A. Land Disposal Restrictions Program

    The LDR program requires that generators of hazardous wastes
pretreat the wastes before they can be disposed of on land. The
treatment must substantially reduce the toxicity or mobility of the
hazardous waste to minimize short-and long-term threats to human health
and the environment posed by the waste's disposal. EPA typically
accomplishes this objective by requiring that hazardous constituents in
the wastes be treated to, or be present at levels no greater than
levels that can be achieved using the Best Demonstrated Available
Technology for the waste.

B. Soils Subject to LDR Requirements

    The rule subjects soils contaminated with hazardous wastes to LDR
requirements when a generator excavates soils from an area of
contamination and disposes of it in a land disposal unit. (See RCRA
sections 3004(d)(3) and (e)(3); 63 FR 28602) \1\. Before the Agency
promulgated LDR Phase IV standards, the Agency subjected contaminated
soil to the same land disposal restriction treatment standards that
apply to industrial process waste. EPA, however, has promulgated
different treatment standards for contaminated soils than for process
wastes. The Agency did so because:
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    \1\ Technically, the soils which are subject to LDRs, are a)
soil which contains a listed hazardous waste, and b) soil which
exhibits (or, in some cases, exhibited) a characteristic of
hazardous waste. See discussion at 63 FR 28617-28619. This notice
applies to subsets of each of these types of contaminated soils, as
explained later in this notice. This notice also uses the term
``contaminated soils'' to refer to soils which may potentially be
subject to LDRs.
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    Soils are physically different from process wastes, so that the
same treatment standards may not be technically appropriate. See 63 FR
28603.
    When generators apply treatment standards for process wastes to
contaminated soils, environmentally counterproductive results can
ensue, because generators often choose not to undertake remediation
such as the exhumation and treatment of contaminated soils, even though
the Agency feels is the most permanent approach. See 63 FR 28603-28604.
This is because EPA cannot always compel generators of contaminated
soil to exhume, treat and redispose the soils.
    The relevant statutes and rules often allow generators to remediate
soils by leaving contaminated soil in place and providing controls on
possible human exposure to those soils, (for example, capping) which
can be much less expensive than requiring that generators excavate and
treat the soil. See 63 FR 28603-28604; see also Louisiana Environmental
Action Network v. EPA, 172 F. 3d 65, 67, 70 (D.C. Cir. 1999) which
upheld EPA's authority to develop more lenient treatment standards for
contaminated soils and other remediation wastes in order to encourage
remediation involving exhumation and treatment of these wastes, since
``the agency's authority to compel high-quality disposition of such
waste is not as great as it is for as yet undisposed waste.''

C. Alternative Treatment Standards for Contaminated Soils

    Generators have the option of complying either with the existing
treatment standards for industrial process waste or with the new soil
treatment standards. The purpose for these new standards is to
encourage generators to remediate and treat contaminated soil, and in
particular, to avoid discouraging such remediation when soil is
contaminated with organic hazardous constituents. See 63 FR 28603. For
soils contaminated with organic hazardous constituents, this choice
posed special potential to discourage aggressive remediation because
the Agency treatment standards for organic hazardous constituents in
process wastes are based on performance of combustion technology.
Generators often cannot achieve these standards except by combusting
the wastes--a very expensive remedy for soils, and not always
technically appropriate. See 63 FR 28603-28604. In recognition of this
limitation, EPA established the special soil treatment standards for
organics at levels that generators may achieve by technologies other
than combustion; that is, EPA established the standards based on the
performance of non-combustion technologies. See 63 FR 28614-28617.

D. Underlying Hazardous Constituents

    Importantly for the present proposal, the existing standards
further require that generators treat all UHC in contaminated soils.
See 63 FR 28608-28609; 40 CFR 268.49(d). A ``UHC,'' for this purpose,
is any hazardous constituent that might be present in the soil at
levels exceeding 10 times the Universal Treatment Standard for that
constituent. See 40 CFR 268.49(d). In the Phase IV rule, EPA imposed
this requirement for the first time on soils exhibiting the Toxicity
Characteristic (TC) for metals, and on soils containing listed
hazardous wastes. \2\
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    \2\ The requirement already applied, however, to soils
exhibiting the ignitability, corrosivity, reactivity, or organic
toxicity characteristics.
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    PCBs can be an example of UHC in contaminated soils, including
metal-containing soils. Where this occurs, the Phase IV rule
establishes an alternative treatment standard of 100 ppm total PCBs in
soil (10 times the Universal Treatment Standard) or 90 percent
reduction of total PCB concentrations in the soil, whichever is higher.
See 40 CFR 268.49(c). The other option available to generators is to
treat soils to the standards applicable to process wastes, although in
that instance as well, soils that exhibit a hazardous characteristic
must achieve treatment standards for UHCs before they are disposed on
land. 40 CFR 268.40(e). EPA found that generators can achieve these
standards without applying combustion technology, see 63 FR 28616 Table
4, although treatment often requires that heat be applied to the waste,
as occurs with thermal desorption technology.
    The statutory provisions potentially address PCBs in soils in other
way. The so-called California list provision, RCRA section
3004(d)(2)(E), provides that hazardous wastes that contain halogenated
organic compounds at concentrations equal to or exceeding 1000 ppm
cannot be land disposed. Congress specified this level (and the other
California list levels) as a starting point in the land disposal
prohibition process, prohibiting land disposal of wastes that pose the
most obvious hazards. See 51 FR 44718 (Dec.11, 1986). PCBs are a type
of halogenated organic compound. Consequently, in the absence of the
Phase IV PCB standards, the 1000 ppm level would be the upper bound of
PCBs that can be in contaminated soil without triggering LDR treatment
requirements (i.e., contaminated soils could not be land disposed equal
to or greater than 1000 ppm).

V. Need to Defer the Phase IV Rule

A. Why Has Remediation Stopped?

    Unfortunately, initial indications are that the requirement that
PCBs be treated as a UHC in soils exhibiting the TC for metals is
having an effect opposite to what EPA intended. Cleanups of sites with
metal characteristic soils where PCBs are now a UHC and where the
remedy was to involve soil exhumation, treatment and redisposal have
stopped, or been seriously delayed. See Letter from Phillip Comella
Esq. to Steven

[[Page 7811]]

Silverman, EPA Office of General Counsel, April 21, 1999 detailing
experiences of private entities, including waste generators, treaters
and disposers; Memorandum to Administrative Record, November 2, 1999
(detailing experiences of EPA site managers). As set out in more detail
in these communications, the reason is that as a practical matter a
choice is now being presented between combustion and leaving soils in
place. Some of the reasons attributed for this are:
    <bullet> limited effective non-combustion treatment presently
available for PCBs, and what there is involves mobile units which face
potential permitting delays at non-Superfund sites.
    <bullet> lack of State authorization to implement the amended soil
standards, thus retaining PCBs as a UHC, without the option of treating
to 10 times the Universal Treatment Standards or 90 percent reduction
from initial concentration.
    Commenters further note that at least some of these situations
could be eligible for a treatment variance under 40 CFR 268.44. Such
situations can occur when the standard is demonstrably not achievable
using non-combustion technology, or when treatment to LDR levels would
discourage aggressive remediation. See LEAN v. EPA, 172 F. 3d at 70
(upholding EPA authority to issue treatment variances for remediation
wastes where existing treatment standard discourages aggressive
remediation). But there are undesirable delays attendant in the
variance process, and EPA in any case believes that if a problem with a
rule is widespread, it is appropriate to amend the rule rather than
issuing variances piecemeal.
    EPA does not necessarily agree with all of these comments, but does
believe that remediations involving soils contaminated with both PCBs
and metals are being delayed or stopped. This has taken place after
promulgation of the new Phase IV requirements respecting these soils,
and it appears that at least some of the reasons for these delays are
legitimate. Thus, this aspect of the Phase IV rule appears to be having
an environmentally counterproductive effect of delaying cleanups and
discouraging aggressive remediation.

B. Why is EPA Considering Temporary Deferral?

    EPA believes it is appropriate to temporarily defer the requirement
that PCBs be treated as an underlying hazardous constituent in TC soils
under RCRA 1006(b) in order to investigate how best to integrate the
RCRA LDR requirements for PCBs with the cleanup programs under
Comprehensive Environmental Response, Compensation, and Liability Act
(CERCLA) and RCRA (both the specific ``corrective action'' requirements
of RCRA 3004 (u) and (v) and 3008(h), and the cleanup requirements
applying to RCRA regulated units, e.g., during closure).
    An additional reason EPA is considering a temporary deferral is to
investigate further the relationship of the RCRA rules with those for
PCB remediation wastes EPA issued under the authority of the Toxic
Substances Control Act (TSCA) not long after EPA promulgated the Phase
IV rule. See 63 FR 35384 (June 29, 1998). TSCA allows ``bulk PCB
remediation wastes'' including soils containing 50 ppm PCBs or greater
to be disposed without treatment in a TSCA disposal facility or an RCRA
subtitle C landfill. See 40 CFR 761.61(b)(2)(i). These TSCA standards,
which allow disposal without treatment of soils containing any
concentrations of PCBs greater or equal to 50 ppm, were not established
to represent levels at which threats posed by land disposal of PCB-
containing soils are minimized. Furthermore, those rules require
persons disposing of PCBs to comply with all other applicable Federal,
State, and local laws and regulations. These regulations consequently
cannot be read as preempting RCRA requirements. Nonetheless, the TSCA
rule serves a similar purpose as the RCRA Phase IV rule--an attempt to
encourage aggressive remediation of contaminated soil (see 63 FR 35386)
and reflects the Agency's judgment that land disposal of these soils is
reasonably protective. Certainly as an interim measure EPA believes it
appropriate to seek to coordinate better the two sets of rules, and
thus to defer the Phase IV rule while we further evaluate the workings
and actual effect of the two sets of rules.

C. What is the Effect of the Deferral?

    Should EPA adopt a temporary deferral, the statutory California
list provision mentioned above (RCRA section 3004(d)(2) (E)) would
create an upper bound on the concentration of PCBs in soil that could
be disposed without treatment. As explained earlier, that upper bound
would be 1,000 ppm, the statutory limit for halogenated organic
compounds. This means that a temporary deferral would only affect a
relatively narrow class of wastes: soils exhibiting the TC for metals
and containing PCBs in concentration between 100 ppm and 1000 ppm.
    RCRA allows temporary deferral of the Phase IV requirement. As in
the temporary deferral of RCRA requirements to accommodate a
potentially overlapping regulatory regime for underground storage tanks
at issue in Edison Electric Inst. v. EPA, 2 F. 3d 438 (D.C. Cir. 1993),
EPA here needs to investigate further the relationship of different
sets of rules addressing PCB-contaminated soil disposal. These soils
will be managed protectively during a deferral period, either in RCRA
subtitle C or TSCA-approved landfills, and there is a reasonable upper
bound on the concentration of PCBs that could be disposed of without
treatment. See 2F.3d at 452-53 citing these factors as a reasonable
justification for a comparable temporary deferral. Moreover, EPA may
permissibly alter land disposal restriction treatment standards for
remediation wastes in order to encourage aggressive remediations. See
LEAN, 172 F. 3d at 69-70.
    A final note: The Agency is not contemplating any type of deferral
for other organic hazardous constituents in TC metal soils. Nor is EPA
accepting comments on the requirement to treat PCBs present as
underlying hazardous constituents in soil exhibiting the TC due to
organics. This requirement has been in place without significant issue
since 1994 and so is unrelated to the Phase IV rule. The scope of
today's document thus is exclusive to soils exhibiting the TC for
metals containing PCBs as an underlying hazardous constituent.
    The requirement to treat PCBs as a UHC also can apply to soils
containing a listed hazardous waste, where the generator elects to
comply with the alternative soil standard of 10 times Universal
Treatment Standard or 90 percent reduction of initial concentrations.
See 40 CFR 268. 49(d). Although the comments EPA has received to this
point have dealt exclusively with situations involving soils exhibiting
the TC for metals, EPA also solicits comment on whether PCBs should
continue to be considered a potential UHC for listed wastes being
treated to comply with the alternative soil standards. It should be
noted, however, that a generator would have the option of treating the
soil to the standards for process wastes, see 40 CFR 268.49(b), in
which case there is no requirement to treat UHCs. Thus, generators
would not appear to be facing the same quandary as they do with TC
soils with PCBs as a UHC.

VI. State Authorization

    Under section 3006 of RCRA, EPA may authorize qualified States to

[[Page 7812]]

administer and enforce the RCRA hazardous waste program within the
State. Following authorization, we maintain independent enforcement
authority under sections 3007, 3008, 3013, and 7003 of RCRA, although
authorized States have enforcement responsibility. A State would become
authorized for today's proposed PCB treatment standard for contaminated
soil by following the approval process described under 40 CFR 271.21.
See 40 CFR part 271 for the overall standards and requirements for
authorization.
    Like all land disposal restriction treatment standards, today's
changes are proposed under the authority of 3004(g) and (m) of RCRA.
These statutory provisions were enacted as part of the Hazardous and
Solid Waste Amendments (HSWA) of 1984. Under section 3006(g) of RCRA,
new requirements promulgated under the authority of statutory
provisions added by HSWA go into effect in authorized States at the
same time as they do in unauthorized States--as long as the new
requirements are more stringent than the requirements a State is
currently authorized to implement.
    However, none of the provisions in today's proposed rule are more
stringent than the existing Federal requirements. Authorized States are
not required to modify their programs when we promulgate changes to
Federal requirements that are less stringent than existing Federal
requirements. This is because RCRA section 3009 allows the States to
impose (or retain) standards that are more stringent than those in the
Federal program. (See also 40 CFR 271.1(i)). Therefore, States that are
authorized for the LDR program would not be required to adopt today's
proposed changes, and these changes would not go into effect until the
State revised its LDR program accordingly. However, if EPA finalizes
the proposed temporary deferral, we would encourage States to allow
compliance with today's proposed PCB treatment standard for
contaminated soil if they have the ability under State law to waive
existing land disposal restriction treatment standards, or if they have
adopted them but are not yet authorized. Again, if a State were not
currently authorized for the LDR program, we would implement this
proposed treatment standard in that State.

VII. Regulatory Assessments

A. Executive Order 12866

    Under Executive Order 12866, (58 FR 51735 (October 4, 1993)) the
Agency must determine whether a regulatory action is ``significant''
and therefore subject to OMB review and the requirements of the
Executive Order. The Order defines ``significant regulatory action'' as
one that is likely to result in a rule that may:
    (1) 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;
    (2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
    (4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
    ``It has been determined that this rule is not a ``significant
regulatory action'' under the terms of Executive Order 12866 and is
therefore not subject to OMB review.''

Economic Assessment

    We estimated the costs of today's final rule to determine if it is
a significant regulation as defined by the Executive Order. The
analysis considered compliance cost savings from the deferral and
resulted in cost savings. A detailed discussion of the methodology used
for estimating the costs, economic impacts and the benefits
attributable to today's final rule, followed by a presentation of the
cost, economic impact and benefit results were prepared and documented
in the following report: ``Economic Assessment of the Deferral of Phase
IV Land Disposal Restriction Treatment Standards for Polychlorinated
Biphenyls (PCBs) as an Underlying Hazardous Constituent in Contaminated
Soils.'' This report can be found in its entirety in the docket for
today's proposed rule. A summary of the report is provided below.

Methodology

    To estimate the cost savings associated with today's proposed
deferral of UHC requirements for PCB-containing hazardous soils, the
Agency estimated the difference between the costs that would have been
incurred in the absence of the deferral and the costs estimated under
the post-regulatory environment with the deferral. The cost savings are
reported in a range of savings based upon two baseline scenarios: one
baseline scenario compels incineration or other thermal treatment for
TC metal PCB-containing hazardous waste soils followed by
immobilization of the residue; a second baseline scenario is based upon
a number of compliance alternatives, including (1) thermal treatment
(e.g., incineration/thermal desorption, other); (2) nonthermal
treatment (e.g., solvent extraction/soil washing, chemical
dechlorination, ex-situ bioremediation, immobilization); (3) source
controls (e.g., capping); (4) no site remediation; and, (5)
treatability variances. The second baseline scenario models soil
washing, chemical dechlorination and immobilization of the soil for
half of the affected soils. The other half of the soils are modeled to
be treated through thermal treatment. This baseline scenario will
result in lower cost savings because the range of remedies is largely
less expensive than thermal treatment.

Volume Results

    The procedure for estimating the volumes of PCB-containing
hazardous wastes affected by today's proposed rule is detailed in the
background document ``Economic Assessment of the Deferral of Phase IV
Land Disposal Restriction Treatment Standards for Polychlorinated
Biphenyls (PCBs) as an Underlying Hazardous Constituent in Contaminated
Soils,'' which was placed in the docket for today's proposed rule. The
Agency has assumed that 60 percent of all TC metal soils with organic
UHCs (104,730 tons) contain PCBs.

Estimated Cost Savings

    The extent of the cost savings from the proposed deferral of LDR
treatment standards for TC metal PCB-containing hazardous waste soils
depends on the decision whether to remediate the site, the decision to
switch to in-situ clean-up remedies (avoiding LDR treatment standards)
and the decision to pursue other administrative remedies such as
treatability variances. As the result, EPA has estimated the
incremental treatment cost savings attributable to the deferral of the
Phase IV LDR treatment standards for PCBs as a UHC in hazardous soils
to total between $35.3 million and $86 million annually for the thermal
treatment baseline--post regulatory scenario and $33.2 million and
$55.3 million annually for the multiple remedy/response baseline-post
regulatory scenario.

B. Regulatory Flexibility Act

    Pursuant to the Regulatory Flexibility Act of 1980, 5 U.S.C. 601 et
seq., when an agency publishes a notice of rulemaking, for a rule that
will have a

[[Page 7813]]

significant effect on a substantial number of small entities, the
agency must prepare and make available for public comment a regulatory
flexibility analysis that considers the effect of the rule on small
entities (i.e., small businesses, small organizations, and small
governmental jurisdictions). The overall economic impact of today's
proposed rule to defer LDR treatment standards for TC metal PCB-
containing hazardous waste soils results in cost savings ranging from
$33.2 million to $86 million. For the reasons stated above in the
estimated cost savings discussion of section X.A.3, the Agency does not
believe that today's proposed rule will have a significant impact on a
substantial number of small entities.

C. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of the UMRA generally requires EPA to identify
and consider a reasonable number of regulatory alternatives and adopt
the least costly, most cost-effective or least burdensome alternative
that achieves the objectives of the rule. The provisions of section 205
do not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including tribal governments, it must have developed under
section 203 of the UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments, enabling
officials of affected small governments to have meaningful and timely
input in the development of EPA regulatory proposals with significant
Federal intergovernmental mandates, and informing, educating, and
advising small governments on compliance with the regulatory
requirements.
    EPA has determined that this rule does not include a federal
mandate that may result in estimated costs of $100 million or more to
either state, local, or tribal governments in the aggregate. The rule
would not impose any federal intergovernmental mandate because it
imposes no enforceable duty upon state, tribal or local governments.
States, tribes and local governments would have no compliance costs
under this rule. It is expected that states will adopt this rule, and
submit it for inclusion in their authorized RCRA programs, but they
have no legally enforceable duty to do so. For the same reasons, EPA
also has determined that this rule contains no regulatory requirements
that might significantly or uniquely affect small governments. In
addition, as discussed above, the private sector is not expected to
incur costs exceeding $100 million. Thus, today's rule is not subject
to the requirements of sections 202 and 205 of UMRA.

D. 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. EPA has
prepared and Information Collection Request (ICR) document: OSWER ICR
No. 1442.15 (LDR PhaseIV), and a copy may be obtained from Sandy Farmer
by mail at OPPE Regulatory Information Division; U.S. Environmental
Protection Agency (2137); 401 M St., SW; Washington, D.C. 20460, by
email at farmer.sandy@epamail.epa.gov, or by calling (202) 260-2740. A
copy may also be downloaded off the internet at http://www.epa.gov/icr.
    EPA believes the changes in this proposed rule to the information
collection do not constitute a substantive or material modification.
This proposed rule would not change any of the information collection
requirements that are currently applicable RCRA Land Disposal
Restrictions Phase IV except to possibly reduce those requirements by
requiring fewer references to PCBs. There is no net increase in
recordkeeping and reporting requirements (if anything, there may be a
slight decrease, as just noted). As a result, the reporting,
notification, or recordkeeping (information) provisions of this rule
will not need to be submitted for approval to the Office of Management
and Budget (OMB) under section 3504(b) of the Paperwork Reduction Act,
44 U.S.C. 3501 et. seq.

E. Executive Order 13045: Protection of Children from Environmental
Health Risks and Safety Risks

    Executive Order 13045: ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies
to any rule that: (1) is determined to be ``economically significant''
as defined under Executive Order 12866, and (2) concerns an
environmental health or safety risk that EPA has reason to believe may
have a disproportionate effect on children. If the regulatory action
meets both criteria, the Agency must evaluate the environmental health
or safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency.
    This proposed rule is not subject to the Executive Order because it
is not economically significant as defined in Executive Order 12866,
and because the Agency does not have reason to believe the
environmental health or safety risks addressed by this action present a
disproportionate risk to children. The public is invited to submit or
identify peer-reviewed studies and data, of which the agency may not be
aware, that assessed results of early life exposure that may result
from this activity.

F. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C.
272 note) directs EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. The NTTAA directs EPA
to provide Congress, through OMB, explanations when the Agency decides
not to use available and applicable voluntary consensus standards.
    This proposed rulemaking does not involve technical standards.
Therefore, EPA is not considering the use of any voluntary consensus
standards.

G. Executive Order 12898: Environmental Justice

    Under Executive Order 12898, ``Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income

[[Page 7814]]

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. EPA is committed to addressing environmental justice
concerns, and is assuming a leadership role in environmental justice
initiatives to enhance environmental quality for all residents of the
United States. The Agency's goals are to ensure that no segment of the
population, regardless of race, color, national origin, or income,
bears disproportionately high and adverse human health and
environmental effects as a result of EPA's policies, programs, and
activities, and all people live in clean and sustainable communities.
To address this goal, EPA considered the impacts of this final rule on
low-income populations and minority populations and concluded.
    Today's proposed rule is intended to encourage aggressive
remediation of contaminated soils, and thus, and to benefit all
populations. As such, this rule is not expected to cause any
disproportionately high and adverse impacts to minority or low-income
communities versus non-minority or affluent communities.

H. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' are defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
    Under section 6 of Executive Order 13132, EPA may not issue a
regulation that has federalism implications, that imposes substantial
direct compliance costs, and that is not required by statute, unless
the Federal government provides the funds necessary to pay the direct
compliance costs incurred by State and local governments, or EPA
consults with State and local officials early in the process of
developing the proposed regulation. EPA also may not issue a regulation
that has federalism implications and that preempts State law, unless
the Agency consults with State and local officials early in the process
of developing the proposed regulation.
    This proposed rule does not have federalism implications. It will
not have substantial direct effects on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government,
as specified in Executive Order 13132. EPA has determined that this
proposed rule, if adopted, would not have ``federalism implications''
within the meaning of Executive Order 13132. This is because the
proposal would not impose any direct effects on States, would not
preempt State law, and would not constrain State administrative
discretion. In fact, States need not even adopt this proposal as part
of their authorized programs. Thus, the requirements of section 6 of
the Executive Order do not apply to this rule.

I. Executive Order 13084: Consultation and Coordination with Indian
Tribal Governments

    Under Executive Order 13084, EPA may not issue a regulation that is
not required by statute, that significantly or uniquely affects the
communities of Indian tribal governments, and that imposes substantial
direct compliance costs on those communities, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by the tribal governments, or EPA consults with those
governments. If EPA complies by consulting, Executive Order 13084
requires EPA to provide to the Office of Management and Budget, in a
separately identified section of the preamble to the rule, a
description of the extent of EPA's prior consultation with
representatives of affected tribal governments, a summary of the nature
of their concerns, and a statement supporting the need to issue the
regulation. In addition, Executive Order 13084 requires EPA to develop
an effective process permitting elected officials and other
representatives of Indian tribal governments ``to provide meaningful
and timely input in the development of regulatory policies on matters
that significantly or uniquely affect their communities.''
    Today's rule does not significantly or uniquely affect the
communities of Indian tribal governments. Today's proposal does not
create a mandate on State, local or tribal governments. The rule does
not impose any enforceable duties on these entities. Accordingly, the
requirements of section 3(b) of Executive Order 13084 do not apply to
this rule.

List of Subjects in 40 CFR Part 268

    Environmental protection, Hazardous waste.

    Dated: February 9, 2000.
Carol M. Browner,
Administrator.
    For the reasons set out in the preamble, chapter I, title 40 of the
Code of Federal Regulations is proposed to be amended as follows:

PART 268--LAND DISPOSAL RESTRICTIONS

    1. The authority citation for part 268 continues to read as
follows:

    Authority: 42 U.S.C. 6905, 6912(a), 6921, and 6924.

Subpart C--[Amended]

    2. Section 268.32 is added to subpart C to read as follows:

Sec. 268.32  Waste specific prohibitions--California list waste.

    Effective [insert effective date of final rule], hazardous wastes
containing halogenated organic compounds in total concentrations
greater than or equal to 1,000 mg/kg are prohibited from land disposal.

Subpart D--[Amended]

    3. Section 268.49 is amended by revising paragraph (d) to read as
follows:

Sec. 268.49  Alternative LDR treatment standards for contaminated soil.

* * * * *
    (d) Constituents subject to treatment. When applying the soil
treatment standards in paragraph (c) of this section, constituents
subject to treatment are any constituents listed in 40 CFR 268.48 Table
UTS-Universal Treatment Standards that reasonable expected to be
present in any given volume of contaminated soil, except flouride,
selenium, sulfides, vanadium, zinc, and PCB's when present in soils
exhibiting the characteristic of toxicity solely because of presence of
metals, at concentrations greater than ten times the universal
treatment standard.
* * * * *
[FR Doc. 00-3672 Filed 2-15-00; 8:45 am]
BILLING CODE 6560-50-P

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